Thangeswaralingam v. Canada (Minister of Citizenship and Immigration), 2002 FCT 652

Date: 20020610

Docket: IMM-2421-02

Neutral citation: 2002 FCT 652

BETWEEN:

                                       BAHEERATHAN THANGESWARALINGAM

                                                                                                                                                       Applicant

                                                                                 and

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MacKAY J.

[1]                 These are the Reasons for the Order issued May 27, 2002 staying the Applicant's removal from Canada. I heard from counsel at a hearing by teleconference on the afternoon of May 27, 2002.

[2]                 The Applicant, Baheerathan Thangeswaralingam, is a 29 year old Sri Lankan Tamil man. He arrived in the United States at Miami International Airport on July 8, 2000 and was immediately detained by U.S. Immigration because he did not have proper documentation. He was held at a U.S. Immigration Processing Center from July 9, 2000 to July 26, 2000, but was released after making a claim for asylum in the United States. Upon his release, he immediately boarded a bus to Plattsburgh, Vermont, where he arrived on the evening of July 27, 2000. On the morning of July 28, 2000, he crossed the border into Canada at Lacolle, Québec, claiming refugee status upon his arrival in Canada.

[3]                 The Applicant's refugee claim was dismissed by the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") on February 17, 2002. He applied for Leave and Judicial Review of this decision, and that application is still pending before this Court.

[4]                 On May 14, 2002, the Applicant received a removal order from Citizenship and Immigration Canada ("CIC"), which was to be exercised on May 28, 2002 at 8:30 a.m. In a fax sent May 17, 2002 by counsel for the Applicant to CIC, counsel for the Applicant protested that the removal order was unlawful as the Applicant should have been granted a statutory stay pending the outcome of his Application for Leave and Judicial Review pursuant to s. 49(1)(c)(i) of the Immigration Act, R.S.C. 1985, c. I-2. The relevant provision reads:

[5]                 In a faxed response dated May 22, 2002, CIC stated that s. 49(1)(c)(i) was not applicable to the Applicant because of the exception found in s. 49(1.1)(a), which reads:

[6]                 In a series of faxes between May 22, 2002 and May 24, 2002, counsel for the Applicant protested that the s. 49(1.1)(a) exception did not apply in the circumstances of the Applicant's case as he had not sojourned in the United States. On May 24, 2002, CIC confirmed its decision to remove the Applicant since, in its view, s. 49(1.1)(a) applied as an exception to s. 49(1). On May 27, 2002, the Applicant filed for Leave and Judicial Review of the May 24, 2002 decision.

[7]                 By this motion, the Applicant sought an interim stay of removal until such time as either or both of his Applications for Leave or Judicial Review are decided. To this end, the Applicant made two arguments in the alternative: (i) that s. 49(1)(c)(i) prevents CIC from removing him until such time as his Application for Leave and Judicial Review of the CRDD decision has been resolved; or (ii) that a judicial stay should be granted in the circumstances.

[8]                 At the hearing, counsel for the Applicant and the Respondent Minister of Citizenship and Immigration made submissions about the correct judicial interpretation of the word "sojourned" in s. 49(1.1)(a) and the applicability of the exception under that provision to the Applicant. There are differing interpretations of s. 49(1.1)(a): see Aguilar v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 20 (T.D.) and Mikhailov v. Canada (Minister of Citizenship and Immigration) (2000), 191 F.T.R. 1.    That is the very issue raised by the Application for Leave and Judicial Review filed on May 27, 2002, and I do not propose to resolve it in dealing with this stay application. In my view, that is a serious issue before the Court at this stage.

[9]                 In the result, I disposed of the application on the arguments presented with respect to a judicial stay. As noted, there is a serious issue raised by the second Application for Leave and Judicial Review, although in so saying, I do not prejudge the merits of that Application.

[10]            Concerning the issue of irreparable harm, I take particular note of the exceptional nature of s. 49(1.1)(a). Parliament has seen fit, under s. 49(1)(c)(i), to provide for a statutory stay of removal for all applicants generally, until the disposition of any application for judicial review of a CRDD determination, presumably for reasons of fairness. In this Applicant's case, that statutory stay is said not to be applicable because of the assertion on behalf of the Minister that the s. 49(1.1)(a) exception is applicable. In the determination of proceedings for judicial review of the Minister's decision, the Court would be concerned with a question of law, an issue on which the Court would owe little or no deference to the Minister. If his interpretation of s. 49(1.1)(a) is found to be in error, so that a statutory stay should now be in effect, the loss of the opportunity to have the benefit of that stay, pending determination of the Application for Leave and for Judicial Review, would constitute irreparable harm in the circumstances of this case.

[11]            In my opinion, the balance of convenience favours the granting of a stay. Therefore, by the Order signed May 27, 2002, I allowed the Applicant's motion and ordered a stay of his removal pending the disposition of the Application for Leave and Judicial Review filed on May 27, 2002, or pending the earlier disposition of the Application for Leave and Judicial Review of

the CRDD decision.

                                                                                                                                                                       (signed) W. Andrew MacKay

                                                                                                     _______________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

June 10, 2002.