Date: 20071109
Docket: IMM-3640-07
Citation: 2007
FC 1166
Ottawa, Ontario,
November 9, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
MUHAMMAD GHAZANFAR SHAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is an
application for a stay of a deportation to Pakistan.
[2]
The
application for leave in this case has been filed more than five months late.
[3]
The Court
has the obligation to consider the reasons provided to explain why an extension
of time should be provided.
[4]
In fact,
the Court shall consider whether the underlying leave application should be
considered.
[5]
Madam
Justice Danièle Tremblay-Lamer had addressed the same issue in Mutti v. Canada (Minister of Citizenship and
Immigration),
2006 FC 97 at paragraphs 2-4:
2 As
an extension of time is a condition precedent to the consideration of the
underlying leave application, the applicant must, for the purposes of the stay
motion, also establish that the request for an extension of time is justified.
If he is denied the extension of time, there is no leave application to be
disposed of and consequently the Court does not have jurisdiction to hear the
motion for a stay (Dessertine et al c. M.C.I., IMM-3931-00, August 14, 2000;
Paredes c. M.C.I., IMM-3989-97, October 20, 1997, Noël J. (as he then was)).
3 It
is well established that the four factors set out in Canada
(Attorney General) v. Hennelly, [1999] F.C.J. No. 846 (F.C.A.) govern the
discretionary decision of whether or not to grant the extension of time. To be
granted an extension of time, an applicant must demonstrate:
·
1. a continuing intention to pursue his or her
application;
·
2. that the application has some merit;
·
3. that no prejudice to the respondent arises from
the delay; and
·
4. that a reasonable explanation for the delay
exists.
4 Assuming
without deciding that the first three requirements are met, I find that the
applicant has not provided any valid reasons for the delay. Having poor legal
representation and ignorance of the law are neither excuses nor justifications
for a delay. Further, I note that his contentions are not supported by
affidavit. The request for an extension of time is thus denied. The leave
application is out of time and is therefore dismissed. Consequently, the Court
is without jurisdiction to entertain this motion for a stay.
[6]
In my
view, this decision applies to the case before the Court.
[7]
The reason
provided to excuse the late filing is the ignorance of the law. I should note
that the applicant appeared previously before the Federal Court with a similar
application regarding a decision denying his refugee claim, he is therefore
aware of the time frame requested by the Federal Courts Rules.
[8]
I have
reviewed the reasons provided by the applicant to excuse the late filing of his
application.
[9]
To grant
such an extension of time, I must be persuaded that the applicant met the test
established in Canada (Attorney General) v.
Hennelly,
[1999] F.C.J. No. 846 (F.C.A.), above.
[10]
In my
view, the applicant failed to demonstrate:
a) a continuing intention to
pursue his or her application, failed;
b) that the application has some
merit;
c) that a reasonable explanation
for the delay exists.
It is sufficient
to conclude that the request for an extension of time be denied.
[11]
Therefore,
the Court is without jurisdiction to entertain this motion for a stay.
[12]
If I would
consider the motion for a stay on its merits, the applicant would have to
demonstrate that a serious issue exists, that he would suffer irreparable harm
if deported and that the balance of convenience is in his favour.
[13]
I have no
hesitation to conclude that no evidence was provided that a serious issue
exists, that the applicant will suffer irreparable harm, if deported, and I
agree with the respondent that the balance of convenience favours the
respondent.
[14]
This
motion for a stay should be dismissed.
ORDER
THIS COURT ORDERS that:
a)
the motion
for an extension of time to file an application for leave and for judicial
review of the decision of the PRRA officer be dismissed;
b)
the motion
for a stay of the deportation be dismissed.
“Pierre
Blais”
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