Bedminster v. Canada (Minister of Citizenship and Immigration), docket IMM-970-00

     IMM-970-00

     February 26, 2000

Present:      The Honourable Mr. Justice Pelletier

Between:

     ANTHEA BEDMINSTER,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

     The Applicant requests a stay of a direction to report for removal from Canada and an extension of time within which to bring this application.

     With respect to the extension, I find that the delay in bringing this application and the necessity of short service was caused or contributed to by the perplexing refusal of the legal aid clinic which the applicant consulted to bring an application for a stay of the applicant"s removal while agreeing to bring an application for judicial review.      No doubt there are reasons for this course of conduct but they are not obvious.

     With respect to the merits of the application, it fails on the question of serious issue to be tried. The applicant argues that the effect of s.27(2) of the Immigration Regulations 1978 is to preclude the Minister removing a person subject to a departure order within the period within which a Certificate of Departure may be issued, namely within 30 days of, in this case, the determination

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that a person is not a member of the post determination refugee claimants class. The applicant argues that the 30 day period is intended to allow the applicant to consider his/her position with respect to various issues, including legal action, and cannot be abridged by an involuntary removal.

     I do not accept the argument and find that the Immigration Act deals with the issue with sufficient clarity that it does not raise a serious issue to be tried. S.55(3)a)ii) specifically provides for the issuance of a Certificate of Departure in respect of a removal within the 30 day period contemplated by s.32.01 of the Act and s.27(2) of the Regulations. I find no ambiguity in those provisions which would raise a serious issue to be tried.

     That said, I am proceeding on the assumption that upon complying with the Direction to Report, the Applicant will be issued a Certificate of Departure. The Minister"s representative undertook that this would occur.

     Since the test for the making of a stay is conjunctive, the negative finding with respect to the question of serious issue to be tried is fatal to the application.

     There will be an order that the application is dismissed.

                                     J.D. Denis Pelletier

                                     Judge