Date: 20000329
Dockets: IMM-886-00
IMM-887-00
BETWEEN:
CLYNT MAYLAND ANDERSON
Applicant
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] The Applicant has commenced two proceedings in this Court. In Court File No. IMM-886-00 (hereinafter "IMM-886-00"), the Applicant requests that his application pursuant to section 114(2) of the Immigration Act (hereinafter the "Act") be determined by an immigration officer by March 31, 2000. In Court File No. IMM-887-00 (hereinafter "IMM-887-00"), the Applicant seeks leave to commence an application for judicial review pursuant to section 82.1 of the Act relative to the decision of the Immigration and Refugee Board of Canada, Convention Refugee Determination Division dated March 10, 1999 of which the Applicant was notified on or about March 17, 1999 that the Applicant was not a Convention refugee. In IMM-887-00, the Applicant also seeks an extension of time within which to bring his application for judicial review of the decision of the Convention Refugee Determination Division.
[2] The Applicant brought a Notice of Motion in each of these proceedings, seeking a stay of the deportation order directing his removal from Canada which is scheduled for March 31, 2000. The two actions were heard together on March 6, 2000. The basis advanced for the stay of the deportation order is the disposition of the outstanding application for leave and judicial review which arises from the decision of the Convention Refugee Determination Division which found that the Applicant is not a Convention Refugee.
[3] The Applicant, who came to Canada on May 28, 1997, claimed to be a Convention Refugee. A negative decision was rendered by the Convention Refugee Determination Division on March 10, 1999. The Applicant sought consideration as a member of the Post-Determination Refugee Claimants in Canada. By a decision dated February 9, 2000, the Applicant was advised that it had been determined that he was not a member of this class.
[4] Section 49(1)(c)(i) of the Act provides a Statutory Stay of a deportation order when a person who has been determined not to be a Convention Refugee has filed an application for leave to commence a judicial review proceeding under the Federal Court Act. This is the situation in IMM-887-00 but I note that the statutory stay granted by section 49(1)(c)(i) of the Act does not apply to the application for judicial review which is the subject of IMM-886-00.
[5] In Sholev v. Canada (M.E.I.) (1994), 78 F.T.R. 188 (F.C.T.D.) Mr. Justice MacKay described the purpose of section 49(1)(c)(i) of the Act at paragraph 8 and 9, as follows:
| [8] In my opinion, the purpose of paragraph 49(1)(c)(i) is to provide by statute for a stay of removal of a person who applies for leave to seek judicial review of a negative decision in regard to his or her claim to be a Convention refugee. It recognizes that removal of a person, who has availed himself or herself of the only process available to question a negative decision on a claim to be a refugee, would be unfair before disposition of the application for judicial review. It avoids applications to stay execution of removal orders which otherwise would be made to the Court whenever removal was pursued before disposition of an application for leave and for judicial review. |
| [9] In my view, a stay of execution of a removal order becomes effective by operation of paragraph 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 15 day period ordinarily provided by subsection 82.1(2) for filing wherever it includes or is accompanied by an application for an extension of time to commence the proceedings. In this case the statutory stay was applicable, in my opinion, from May 10, 1994, when the application for leave and for judicial review and for an extension of time was filed. From that time the matter is before the Court for determination, subject to the applicant meeting all further requirements to perfect his application. If those steps are not taken the application will be dismissed and thus disposed of by the Court. |
[6] I adopt the reasoning of Mr. Justice McKay. The motions for a stay of the deportation order scheduled for March 31, 2000 are dismissed on the ground that the order is stayed by operation of section 49(1)(c)(i) of the Act in relation to IMM-887-00 and as a result, no order of the Court is required in either IMM-887-00 or IMM-886-00.
[7] These reasons apply to each proceeding IMM-887-00 and IMM-886-00, and a copy of the reasons will be filed in each file.
[8] I decline to certify a question on the ground that it has been previously held that this Court cannot certify a serious question of general importance pursuant to section 83(1) of the Act in connection with an application for a stay of execution of a deportation order (see Kayumba v. Canada (Solliciteur général) (1994), 76 F.T.R. 238 and Sereno v. Canada (Solliciteur général) (1994), 75 F.T.R. 71.)
"E. Heneghan"
J.F.C.C.
TORONTO, ONTARIO
March 29, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: CLYNT MAYLAND ANDERSON |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| DATE OF HEARING: MONDAY, MARCH 6, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: HENEGHAN J. |
DATED: WEDNESDAY, MARCH 29, 2000
APPEARANCES: Mr. Micheal Crane
For the Applicant
Ms. A. Leena Jaakkimaimen
For the Respondent
| SOLICITORS OF RECORD: Micheal Crane |
Barrister & Solicitor
166 Pearl Street, Suite 200
Toronto, Ontario
M5H 1L3
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
Date: 20000329
Dockets: IMM-886-00
IMM-887-00
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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