Date: 19980505
Docket: IMM-1517-98
MONTRÉAL, QUEBEC, THE 5th DAY OF MAY 1998
Present: RICHARD MORNEAU, PROTHONOTARY
Between:
VILMA VILUS
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The applicant may serve his record and file it with this Court pursuant to Rule 10(2) of the Federal Court Immigration Rules, 1993, together with the returns of service thereof on the parties, within three (3) days of the date of this order;
The respondent"s time limit for filing and serving its memorandum of argument will commence as of the date of service of the applicant"s record.
The applicant"s motion is otherwise dismissed.
Richard Morneau
Prothonotary
Certified true translation
M. Iveson
Date: 19980505
Docket: IMM-1517-98
Between:
VILMA VILUS
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the applicant for leave to amend his application for leave to commence an application for judicial review (the application).
Facts
[2] On May 26, 1997, the applicant applied to the respondent for permanent residence as the spouse of a Canadian citizen.
[3] On February 19, 1998, the applicant was advised that his application for a ministerial exemption could not be granted and that a report had been issued against him pursuant to section 27 of the Immigration Act, R.S.C., 1985, c. I-2 (the Act), because he had failed to comply with the Act.
[4] After this report was issued, a departure order was made against the applicant on March 5, 1998 (the March 5 decision).
[5] On March 18, 1998, the applicant submitted a claim for Convention refugee status to the respondent.
[6] On March 27, 1998, the applicant was notified pursuant to subsection 44(1) of the Act that he was not eligible to have his refugee claim determined because a departure order had previously been made against him (the March 27 decision).
[7] On April 3, 1998, the applicant commenced his application for judicial review of the March 27 decision.
[8] Through the instant motion, according to the explanations given to the Court by his counsel, the applicant now seeks to have the March 5 decision too set aside by means of his application.
Analysis
[9] Even though it is very much in the applicant"s interest to have the March 5 decision set aside in order to succeed in his application, the fact remains that the March 5 decision is distinct and separate from the one referred to in the application.
[10] It was the applicant"s responsibility to commence an application for judicial review of the March 5 decision, and it seems that this would still be possible with leave of the Court.
[11] In my view, it would be incongruous to allow the applicant to challenge this decision now when he has not previously sought such a remedy. The affidavit filed in support of his motion is silent as to why the March 5 decision has not yet been challenged in a separate application for judicial review. There is accordingly no reason to apply the opening clause of Rule 302 of the Federal Court Rules (1998) in the instant case.
[12] This motion will accordingly be dismissed.
[13] The applicant will have a very short time during which to serve and file his record under Rule 10 of the Federal Court Immigration Rules, 1993.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
May 5, 1998
Certified true translation
M. Iveson
BETWEEN
VILMA VILUS
Applicant
- and -
| MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.:
STYLE OF CAUSE:
IMM-1517-98
VILMA VILUS
Applicant
AND
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING:May 4, 1998
REASONS FOR ORDER BY RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER:May 5, 1998
APPEARANCES:
Jean Ernest Pierre for the applicant
Josée Paquin for the respondent
SOLICITORS OF RECORD:
Jean Ernest Pierre for the applicant
Montréal, Quebec
George Thomsonfor the respondent
Deputy Attorney General of Canada
Ottawa, Ontario
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