Date: 19980504
Docket: IMM-1564-98
BETWEEN:
PHALETH LY,
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD J.:
[1] The applicant seeks a stay of the execution of a deportation order issued on February 26, 1998, following a determination by the Minister's delegate that the applicant had not shown the existence of compassionate and humanitarian considerations that would warrant that the applicant be exempted from applying for landing outside Canada. The applicant filed an application for leave and for judicial review against the decision of the Minister's delegate.
[2] The applicant, a citizen of Cambodia, entered Canada on July 15, 1994, as a visitor. After his arrival, he made a claim for Convention refugee status. On August 1, 1996, his claim was denied by the Refugee Division, and on October 15, 1996, his application for leave was dismissed for failure to file his record. On February 5, 1997, a Post-Claim Determination Officer found that the applicant was not a member of the post-determination refugee claimants class in Canada.
[3] Although he was informed on April 14, 1998, of the planned removal of May 5, 1998, the applicant did not bring this motion for a stay until April 30, 1998.
[4] This application is governed by the three-stage test in RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311.
[5] Even if I were to accept, for the purpose of this motion, that the applicant has demonstrated a serious question to be tried, he has not established that he will suffer irreparable harm if the relief is not granted, nor has he met the third aspect of the three-stage test relative to the balance of convenience should the removal be carried out on May 5, 1998. The fact that he has resided in Canada since 1994 and would be separated from family and spouse do not constitute irreparable harm under current jurisprudence. Nor will his removal impede his ability to pursue the application for leave filed by his counsel with supporting affidavits. The applicant filed some documentary material concerning current conditions in Cambodia. He has not demonstrated a link between that general documentary evidence in Cambodia and his personal situation. His personal situation, as an objector to military service, was considered by the Refugee Division and his claim was considered by a Post-Claim Determination Officer.
[6] Further, section 48 of the Immigration Act provides that a removal order must be executed as soon as reasonably practical, subject to sections 49 and 50 which are not applicable here.
[7] Accordingly, the application for a stay is dismissed.
__________________________
Judge
Ottawa, Ontario
May 4, 1998
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