Date: 19981103
Dockets: IMM-4444-98
IMM-5590-98
BETWEEN:
SAMUEL CHARLES GYLE
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
The application in IMM-4444-98
[1] On September 1, 1998, the applicant sought leave for judicial review of the June 17, 1998 determination of the Convention Refugee Determination Division that he was not a Convention refugee.
[2] His application also sought an extension of time for the filing of his proceeding, which was launched some eight weeks beyond the usual fifteen-day time period from the date of the C.R.D.D. decision. The application for the extension of time is provided for in subsection 82.1(5) of the Immigration Act.1
[3] Counsel for the applicant acknowledges that his application for leave has not been perfected. No application record has been filed by the applicant. Accordingly, pursuant to Rule 14 of the Federal Court Immigration Rules, 1993,2 the application for the extension of time and for leave for judicial review is dismissed.
[4] In Sholev v. Minister of Employment and Immigration,3 MacKay J. ruled that "... a stay of execution of a removal order becomes effective by operation of s. 49(1)(c) (i) once the applicant files in this Court an application for leave and for judicial review, even if that be filed beyond the fifteen-day period ordinarily provided by ss. 82.1(2) ...". If it were necessary to decide the issue in this case, I would adopt the reasoning and the conclusion of Justice MacKay in Sholev. However, today"s dismissal of the application for judicial review in any event terminates the statutory stay relied upon by the applicant.
[5] The applicant"s motion for the enforcement of the statutory stay of the removal order is, in these circumstances, moot and will be dismissed.
The application under IMM-5590-98
[6] The applicant also seeks a discretionary stay of the execution of the removal order which is to be executed this evening.
[7] As I understand the applicant"s principal argument, the conditional departure order issued against the applicant on May 5, 1997 pursuant to subsection 28(1) of the Immigration Act cannot be deemed to be a deportation order while a statutory stay pursuant to paragraph 49(1)(c) of the Act is in force. For the applicant, the time period required to lapse before the conditional departure order can be deemed to be a deportation order cannot run while the statutory stay is in force.
[8] This argument, whatever its merits, appears to have no application on the facts of the case.
[9] The conditional departure order became an effective departure order upon notification to the applicant of the negative determination by the C.R.D.D.: paragraph 28(2)(d) of the Immigration Act. The applicant did not seek a review of his case as a member of the post-determination refugee claimants in Canada class. Accordingly, on August 28, 1998, more than thirty days after the applicant was advised of his failure to seek the P.D.R.C.C. review, the departure order was deemed to be a deportation order made against him: subsection 32.02(1) of the Act and subsection 27(1) of the Regulations. In other words, the deportation order was in effect prior to the applicant"s filing of his application for leave for judicial review on September 1, 1998. Any right he had to a statutory stay was triggered after the departure order had been deemed to be a deportation order. The statutory stay can no longer be in effect after today"s dismissal of his application for leave for judicial review. Accordingly, I see no legal impediment to the execution of the deportation order this evening.
[10] Even if I have erred in my analysis of the applicant"s argument to establish a serious issue, I have concluded that his representations on irreparable harm and balance of convenience must also fail. The applicant"s deportation to the United Kingdom will cause hardship and inconvenience for his common-law wife of three years, her nine-year old child and their daughter born in 1997. The mental health challenges faced by his common-law wife may also be exacerbated by his departure. Even if this situation might, in some exceptional circumstances, constitute irreparable harm, this cannot be the case here. The applicant was subject to a deportation order in March 1994, prior to his meeting his common-law wife. He was certified to be a danger to the public in November 1995 and was removed to the United Kingdom in early April 1996. He returned to Canada without the respondent"s consent in October 1996. There is no evidence of irreparable harm to himself and the hardship that will be caused to his common-law wife and their children cannot constitute irreparable harm to the applicant and his family in these circumstances. For these same reasons, the balance of convenience clearly rests with the respondent.
[11] The application for a discretionary stay will also be dismissed.
Judge
Ottawa, Ontario
November 3, 1998
__________________
1 R.S.C. 1985, c. I-2.
2 SOR/93-22.
3 (1994), 78 F.T.R. 188 at paragraph 9. See also Freemantle v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1188 (T.D.) at paragraph 13; Ragunathan v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1616 (T.D.); and Raphael v. Ministre de la Citoyenneté et Immigration (19 June 1998), IMM-1537-98, without reasons.
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