Date: 20001027
Docket: IMM-5287-00
BETWEEN:
PATRICIA GERTRUDE GUSTAVE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] The applicant, a citizen of Saint-Lucia, seeks an order staying the execution of a removal order made against her on October 4, 2000. The immigration authorities intend to remove the applicant from Canada on October 28, 2000. She is scheduled to depart on flight AC968 leaving Toronto at 11:00 a.m. for Saint-Lucia.
[2] The applicant, who was found not to be a Convention refugee by the Refugee Division of the Immigration and Refugee Board (the "Board"), has filed an application with this Court seeking leave to commence judicial review proceedings of the Board's decision dated August 2, 2000.
[3] The applicant arrived in Canada on November 19, 1994 and claimed refugee status five years after her arrival. On March 21, 2000 a conditional departure order was made pursuant to section 28 of the Immigration Act (the "Act"), given that she had not applied for a visa prior to coming to Canada and had remained in the country after ceasing to be a visitor. On August 2, 2000 she was found not to be a Convention refugee.
[4] On August 28, 2000 the applicant filed an application, outside of the prescribed delay of fifteen days following notification of the Board's decision, to be considered as a member of the Post-determination Refugee Claimant in Canada Class (the "PDRCC"). The applicant ought to have filed her PDRCC application by August 23, 2000. Her leave application to commence judicial review proceedings of the Board's decision was filed on October 10, 2000. The applicant is obviously out of time and needs to obtain an extension of time from this Court.
[5] I should also add that on September 21, 2000 the applicant filed an application, on humanitarian and compassionate grounds, to apply for permanent residence from within Canada pursuant to subsection 114(2) of the Act. On October 4, 2000 the applicant was advised that due to late filing, she could not be considered as a member of the PDRCC. Finally, on October 17, 2000 the applicant sought a deferral of her removal, but this was denied on October 19, 2000.
[6] The applicant submits that she has meets the tri-partite test set out by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302. Unfortunately for the applicant , I disagree. In my view, she has not met the test. Firstly, as I indicated to counsel during the hearing, the applicant has not satisfied me that she will suffer irreparable harm if I do not grant the stay which she seeks. Secondly, as I also indicated to counsel at the hearing, satisfying me on the existence of a serious issue also means that I must be satisfied that there is a serious issue in respect of that part of her application which seeks an extension of time. On the evidence before me, I am not so satisfied. In support of her motion, the applicant filed an affidavit dated October 17, 2000. There is absolutely nothing in that affidavit or elsewhere in the evidence which attempts to explain why the leave application was filed late. Consequently, the applicant has not satisfied me that her leave application raises a serious issue.
[7] During the hearing, I understood from counsel that the applicant had also filed a leave application in regard to her PDRCC decision. That decision is to the effect that her application is refused because she did not apply within fifteen days of notification . The applicant's leave application in regard to the PDRCC decision does not, in my view, raise a serious issue. Recently, in Adam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1375 (F.C.A.) (QL), the Federal Court of Appeal stated in unequivocal terms that an immigration officer had no jurisdiction to extend the statutory time limit for filing an application under the PDRCC regulations. At page 3, Madam Justice Sharlow, for the Court, stated:
| [19] The first question is whether an immigration officer has the inherent jurisdiction to extend the statutory time limit for filing an application under the PDRCC regulations. In my view, the answer must be no. The time limit is an integral part of the determination procedure for the PDRCC class and thus is a statutory limitation on the authority of immigration officers to deal with applications under the PDRCC regulations. The language of the time limitation is clear and unambiguous. |
The Court went on to state that the fifteen-day delay time limitation of the PDRCC Regulations did not violate section 7 of the Canadian Charter of Rights and Freedoms.
[8] Therefore, the applicant fails on the tri-partite test. There remains, however, an issue for determination. That issue was not raised by the applicant, but was brought to my attention by Ms. Mitchell, counsel for the Minister. The issue is whether the applicant's late leave application to commence judicial review proceedings of the Board's decision dated August 2, 2000 is an application which falls within the ambit of subparagraph 49(1)(c)(i) of the Act, which reads as follows:
| 49. (1) Subject to subsection (1.1), the execution of a removal order made
against a person is stayed
|
49. (1) Sauf dans les cas mentionnés au paragraphe (1.1), il est sursis à
l'exécution d'une mesure de renvoi :
|
| (c) subject to paragraphs (d) and (f), in any case where a person has been determined by the Refugee Division not to be a Convention refugee or a person's appeal from the order has been dismissed by the Appeal Division,
|
c) sous réserve des alinéas d) et f), dans le cas d'une personne qui s'est vu refuser le statut de réfugié au sens de la Convention par la section du statut ou dont l'appel a été rejeté par la section d'appel :
|
| (i) where the person against whom the order was made files an application for
leave to commence a judicial review proceeding under the Federal Court Act or signifies in writing to an immigration officer an intention to file such an application, until the application for leave has been heard and disposed of or the time normally limited for filing an application for leave has elapsed and, where leave is granted, until the judicial review proceeding has been heard and
disposed of,
|
|
| (i) si l'intéressé présente une demande d'autorisation relative à la présentation d'une demande de contrôle judiciaire aux termes de la Loi sur la Cour fédérale ou notifie par écrit à un agent d'immigration son intention de le faire, jusqu'au prononcé du jugement sur la demande d'autorisation ou la demande de contrôle judiciaire, ou l'expiration du délai normal de demande d'autorisation, selon le cas,
|
|
| [9] In my view, with the greatest respect for my colleagues who take a different view, a leave application which is not filed within the prescribed delay does not have the effect of staying a removal order. |
| [10] The issue which I must decide is identical to the one which Mr. Justice Pelletier addressed in Ziyadah v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 152 (T.D.). In Ziyadah, supra, Pelletier J. had to decide whether an application for leave to commence judicial review proceedings of a Refugee Division decision, filed out of time, entitled an applicant to a statutory stay pursuant to subparagraph 49(1)(c)(i) of the Act. The learned judge stated the question before him, at pp. 156-159 as follows: |
| [1] Ali Mohamed Ziyadah is a citizen of Libya who came to Canada on a temporary visa in January 1997 to further his education. At the expiry of his visa in September 1997, he applied for refugee status. On October 2, 1997 a conditional removal order was made against him pending the disposition of his application for refugee status. The Convention Refugee Determination Division (CRDD) heard his application on September 28, 1998 and its decision, when issued, was dated March 29, 1999. In the interim, Mr. Ziyadah had moved 2 or 3 times and had not informed the Convention Refugee Determination Division of his whereabouts. He did not receive notice of the rejection of his application until May 18, 1999 when Immigration Canada advised him to report for deportation to Libya on June 8, 1999. He immediately consulted counsel and launched an application for judicial review which included an application for an extension of time within which to bring the application as he was well outside the 15-day period prescribed by subsection 82.1(3) [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act, R.S.C., 1985 c. I-2 as amended from time to time (the Act). By notice of motion, he then sought a stay of the removal order pending the disposition of the application for leave, judicial review of the CRDD decision, and extension of time for the bringing of the judicial leave application. |
| [2] The issue which is raised by these facts is the applicability of the statutory stay found at subparagraph 49(1)(c)(i) [as am. idem, s. 41] to the facts of this case: |
| 49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed |
| (a) in any case where the person against whom the order was made has a right of appeal to the Appeal Division, at the request of that person until the time provided for the filing of the appeal has elapsed; |
| (b) in any case where an appeal from the order has been filed with the Appeal Division, until the appeal has been heard and disposed of or has been declared by the Appeal Division to be abandoned; |
| (c) subject to paragraphs (d) and (f), in any case where a person has been determined by the Refugee Division not to be a Convention refugee or a person's appeal from the order has been dismissed by the Appeal Division, |
| (i) where the person against whom the order was made files an application for leave to commence a judicial review proceeding under the Federal Court Act or signifies in writing to an immigration officer an intention to file such an application, until the application for leave has been heard and disposed of or the time normally limited for filing an application for leave has elapsed and, where leave is granted, until the judicial review proceeding has been heard and disposed of . . . [Emphasis added.] |
| [3] The issue arises because of the decision of MacKay J. in Sholev v. Canada (Minister of Employment and Immigration) (1994), 78 F.T.R. 188 (F.C.T.D.) in which a similar set of facts arose. Sholev made an application for judicial review of the CRDD decision rejecting his refugee claim after the time for making an application for leave and judicial review had expired. He included in his application a request for an extension of time for the bringing of the application for leave and judicial review. MacKay J. had to decide whether the statutory stay in subparagraph 49(1)(c)(i) applied when the application for leave was made out of time and after the making of a removal order. He found that the statutory stay did apply in those circumstances. |
| [4] MacKay J. relied upon the discretionary power found at subsection 82.1(5) [as am. idem, s. 73] of the Act in reaching his conclusion. The latter subsection allows a judge, for special reasons, to extend the time for the making of an application for leave and judicial review. The benefit of that subsection would be lost to persons subject to a removal order if subparagraph 49(1)(c)(i) were read so as to make the statutory stay inapplicable simply as a result of the failure to make the application in time. Put another way, the power to extend the time is meaningless if it does not apply when a person is out of time, the only circumstance in which such a power is required. |
| [5] The respondent Minister says, with respect, that Sholev is wrongly decided. She argues that the result arrived at in Sholev means that one who is liable to be deported as a result of a decision of a federal tribunal could hide out until they were apprehended and then make a late application for leave and judicial review (including an application for extension of time). Such an application would then preclude immediate removal from Canada. Such a result rewards non-compliance with legal obligations and cannot have been intended by Parliament. |
| [6] There is merit in the Minister's argument. Support for it can be found in the language of subparagraph 49(1)(c)(i) where it speaks of the "time normally limited" for making such an application. The time normally limited is 15 days. The extended time contemplated by subsection 82.1(5) arises from special circumstances, which is different from the time normally limited. Were I deciding this at first instance, I might not have come to the same conclusion as my learned colleague. |
| [7] It is obvious that I am not deciding this at first instance. MacKay J.'s reasoning was accepted by Richard J. (as he then was) in Ragunathan v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1616 (T.D.) (QL), and by Lutfy J. in Gyle v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1596 (T.D.) (QL). |
| [11] Further on in his reasons, after a careful review of the relevant jurisprudence on the doctrine of stare decisis and more particularly the decision of Granger J. in R. v. Koziolek, [1999] O.J. No. 657 (Gen. Div.) (Q.L.), Mr. Justice Pelletier concludes that he ought to follow the decision of MacKay J. in Sholev v. Canada (Minister of Employment and Immigration) (1994), 4 F.C. 152 (T.D.). At paragraphs 12 and 13 of his reasons, the learned judge makes the following comments: |
| [12] I believe that the approach adopted by Granger J. is particularly apt when there is no possibility of an appeal to resolve the uncertainty created by conflicting judgments on a particular point. In saying this, I emphasize that the problem is not created by the judges who are bound to interpret the law according to their best judgment, but by a system which does not allow for these conflicting opinions to be resolved. |
| [13] In this case, for the reasons set out above, I adopt the reasoning of MacKay J. in Sholev because I am not persuaded that my colleague ignored any relevant authority or statutory provision. As such, his decision is one which I ought to adopt for the sake of rationality and consistency in the law. |
| [12] The approach taken by Granger J. in R. v. Koziolek, supra, to which my colleague refers at paragraph 12 of his reasons, is the following1: |
| In R. v. Northern Electric Co. Ltd., [1955] 3 D.L.R. 449 (Ont. H.C.) McRuer, C.J. H.C. stated at p. 466: |
| Having regard to all the rights of appeal that now exist in Ontario, I think Hogg J. stated the right common law principle to be applied in his judgment in R. ex rel. McWilliam v. Morris, [1942] O.W.N. 447 where he said: "The doctrine of stare decisis is one long recognized as a principle of our law". Sir Frederick Pollock says, in his First Book of Jurisprudence, 6th ed., p. 321: "The decisions of an ordinary superior court are binding on all courts of inferior rank within the same jurisdiction, and, though not absolutely binding on courts of co-ordinate authority nor on that court itself, will be followed in the absence of strong reasons to the contrary". |
| I think that "strong reasons to the contrary" does not mean a strong argumentative reason appealing to the particular Judge, but something that may indicate that the prior decision was given without consideration of a statute or some authority that ought to have been followed. I do not think "strong reasons to the contrary" is to be construed according to the flexibility of the mind of the particular Judge. |
| According to Chief Justice McRuer and Justice Wilson, the decisions of Judges of co-ordinate courts are persuasive and should be given considerable weight unless there are very cogent reasons to depart from such decision. |
| The authoritative view requires Judges to follow all previous decisions of their colleagues, allowing the Court of Appeal to correct any error if necessary. Although this approach provides certainty in law, it may be unnecessarily restrictive, particularly |
| in situations where the previous decisions were given without consideration of a statute or relevant caselaw [sic]. |
| On the other hand, the least restrictive view as represented by the position of Lord Goddard suggests that Judges ought to follow decisions of their colleagues out of judicial comity and only depart from them when they are wrong. While the flexibility |
| shown in this approach is more preferable to the restrictive opinion, it fails to provide any criteria to determine when it can be said that a previous decision was wrong. If it only requires a difference of opinion about the law to permit a Judge to depart from previous decisions, then the concerns raised by Hughes J. in Kartna may be relevant. |
| Between these two views lies the proposition as put forward by Justice Wilson and Chief Justice McRuer that Judges ought to feel bound to follow previous decisions of their colleagues, unless certain factors exist to persuade them to decide the case differently. |
| In my opinion, it is imperative in a large trial court such as the Ontario Court of Justice that as much certainty as possible be brought to the law until the Court of Appeal rules on a point. This can best be achieved by following the approach as set out by Chief Justice McRurer. Accordingly, although I find much merit in the approach advocated by Mr. Thomas, I feel I must follow the Judgment of McIsaac J. unless there is some indication that his decision was given without considering the appropriate case-law. I am satisfied that McIsaac J. considered all of the relevant case-law. The criteria to justify not following a judgment of McIsaac J. does not exist in this case and, accordingly, the appeal is dismissed. |
| [13] I prefer the view put forward on this issue by Lord Goddard C.J. in Police Authority for Huddersfield v. Watson, [1947] 1 K.B. 842 at p. 848 where he says: |
| . . . I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction. He is only bound to follow the decisions which are binding on him, which, in the case of a judge of first instance, are the decisions of the Court of Appeal, the House of Lords and the Divisional Court. |
| [14] In any event, whether I follow Lord Goddard's approach or that of Granger J., I am nonetheless of the view that I ought not to follow the decision of MacKay J. in Sholev, supra. It does not appear, from my reading of the Sholev, supra, and Ziyadah, supra, decisions that the Court of Appeal's decision in Toth, supra, was brought to the attention of Mackay J. and Pelletier J. Ms. Mitchell brought the case to my attention for the proposition that an application for leave, not made within the time limits prescribed by the Act, does not fall within the ambit of subparagraph 49(1)(c)(i). In Toth, supra, Heald J., for the Court, dealt with the issue at pages 303-304 as follows: |
| [1] Heald, J.: This is an application for an order staying the execution of the deportation order issued against the applicant on July 27, 1971, and also, for an order for directions as to the expediting of the within applications for extension of time within which to apply for leave to appeal and for leave to appeal. Those applications were filed in the Court on May 30, 1988. |
| [2] The question of the Court's jurisdiction to grant a stay in the circumstances of this case, was argued extensively at the hearing before us. Counsel for the applicant submitted, initially, that the provisions of paragraph 51(1)(c) of the Immigration Act, 1976, applied so as to effect a stay of the deportation order. (The applicable portions read: |
| 51.(1) ... the execution of a removal order is stayed |
| (c) in any case where the person ... files an appeal or signifies in writing to an immigration officer that he intends to appeal a decision of the Board to the Federal Court of Appeal, until the appeal has been heard and disposed of or the time for filing an appeal has elapsed, as the case may be;") |
| I am not persuaded that this provision assists the applicant in the circumstances of this case. The decision of the Immigration Appeal Board which dismissed the applicant's appeal and ordered that he be deported as soon as practicable is dated March 29, 1988. Section 84 of the Act provides that applications for leave to appeal the Board's decision must be made within 15 days or within such extended time as a Judge of this Court may, for special reasons allow. As noted supra, the application for extension of time within which to apply for leave was not filed until May 30, 1988. It is therefore apparent that no timely appeal has been filed. It is equally apparent that no timely signification in writing to an immigration officer of an intention to appeal has been established on this record. In my view, an intention to apply for an extension of time within which to apply for leave to appeal, which is not timely, is not encompassed by the words employed in paragraph 51(1)(c) supra. Accordingly, I reject the invitation of counsel for the applicant to construe that paragraph as effecting a stay of the deportation order upon the filing of the May 30th application. Such a construction would distort to an unacceptable degree, the plain meaning of the words used by Parliament in that paragraph. In my view, the stay imposed pursuant to paragraph 51(1)(c) applies only where the appeal is timely or, at the very least, the application for leave to appeal is timely. Accordingly, I reject the submissions of counsel for the applicant with respect to jurisdiction under paragraph 51(1) (c). |
[15] When the Court of Appeal rendered its decision in Toth, supra, the jurisdiction in immigration matters, and more particularly with respect to Refugee Board decisions, was that of the Federal Court of Appeal. Challenges to Board decisions were then taken by way of appeals and not by way of judicial review applications. Although the wording of subparagraph 49(1)(c)(i) of the present Act is not in terms identical to those of paragraph 51(1)(c) of the Immigration Act 1976, I am of the view that the differences are immaterial and that the Court of Appeal's decision ought to be followed by the Trial Division. I see nothing in the wording of subparagraph 49(1)(c)(i) of the present Act which would allow me to distinguish the present case from that of Toth, supra. On the contrary, it seems to me that the wording of subparagraph 49(1)(c)(i) provides, in clear and unambiguous terms, for a stay of the execution of a removal order only when an applicant files his application for leave within the time prescribed by the Act. When the time prescribed by the Act to file a leave application has expired, late filing does not stay a removal order. Whether the granting of an extension of time by a judge upon leave being given to an applicant brings the application within the ambit of subparagraph 49(1)(c)(i), I need not address at the present time.
[16] Although an applicant who files late is deprived of a statutory stay, this does not mean that such an applicant is without any recourse. In Toth, supra, after having concluded that the applicant was not entitled to a statutory stay of his deportation order, the Court of Appeal went on to conclude that the applicant was entitled to a stay based on the tri-partite test set out by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396. In the present matter, the applicant also sought a stay based on the tri-partite test.
[17] In her written arguments, at paragraphs 24-25, Ms. Mitchell makes the following submissions:
| 24 It is submitted, with respect, that Sholev and subsequent caselaw which have followed it have been wrongly decided, for two reasons. First, section 49(1)(c)(i) of the Immigration Act speaks of the "time normally limited" for making an application for leave. Pursuant to section 82.1(3) of the Act, that time is fifteen days from when an applicant is notified of the decision. The extended time contemplated by section 82.1(5) arises only "for special reasons", which is plainly different from the "time normally limited" in section 49(1)(c)(i). |
| 25 Second, the result arrived at in Sholev runs contrary to the rule of statutory interpretation known as the consequential analysis or absurdity rule. That rule requires that consequences that are judged to be absurd or otherwise unacceptable be presumed not to have been intended as part of the legislative purpose. If Sholev is correct, a person subject to a deportation order could evade deportation until apprehension, perhaps years later, and then make a late application for leave and judicial review that includes an application for extension of time. The result in Sholev automatically precludes immediate removal from Canada pending the outcome of the leave application. That result is contrary to section 48 of the Immigration Act, which requires that the removal order be executed as soon as reasonably practicable. It also rewards non-compliance with legal obligations, and cannot have been intended by Parliament. |
[18] I am in complete agreement with Ms. Mitchell's submissions. As I was writing these reasons, I came across a leave application in file IMM-3455-00 where the applicant filed his leave application almost three and a half years after being notified of the Board's decision. The leave application was filed on July 4, 2000 whereas the Board's decision was rendered on January 14, 1997. One of the submissions which the Minister makes in opposing the applicant's leave application in that file is that the applicant was prompted to file his leave application upon being notified by the immigration authorities that they intended to execute the removal order made against him. That submission, on my review of the file, appears to be correct.
[19] The foregoing, in my view, supports Ms. Mitchell's submission that "a person subject to a deportation order could evade deportation until apprehension, perhaps years later, and then make a late application for leave and judicial review that includes an application for extension of time...". With great respect for the contrary view, I agree entirely with Ms. Mitchell's submission that the result arrived at in Sholev, supra, leads to an absurd consequence which could not have been intended by Parliament.
[20] For these reasons, the applicant's motion for a stay of the removal order made against her is denied.
"Marc Nadon"
J.F.C.C.
Toronto, Ontario
October 27, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: PATRICIA GERTRUDE GUSTAVE |
Applicant
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: MONDAY, OCTOBER 23, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: NADON J. |
DATED: FRIDAY, OCTOBER 27, 2000
| APPEARANCES BY: Mr. Munyonzwe Hamalengwa |
| SOLICITORS OF RECORD: MUNYONZWE HAMALENGWA |
| Deputy Attorney General of Canada |
FEDERAL COURT OF CANADA
Date: 20001027
Docket: IMM-5287-00
Between:
| PATRICIA GERTRUDE GUSTAVE |
Applicant
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
__________________
1 This extract from R. v. Koziolek, supra, appears on page 12 of the case report in QuickLaw at paragraphs 14a and 15.
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