Date: 20001205
Docket: IMM-5999-00
BETWEEN:
GIULIAN MUNTEANU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLAIS J.
[1] This is a motion for a stay of the removal order made against the applicant.
[2] The Refugee Division rejected a refugee claim by the applicant on February 16, 1998.
[3] The applicant admitted that he was notified by letter dated February 25, 1998, that his conditional departure order would become a deemed departure order on March 26, 1998.
[4] The applicant was arrested on April 8, 1998 and was told that he would be detained and sent back to Romania. He escaped on April 15, 1998 and travelled outside the country. He was arrested again by immigration officers in Saskatoon on October 25, 2000 and is still detained.
[5] The applicant applied on November 21, 2000, the day before he was supposed to be deported, for an extension of time for filing an application for leave of the decision of the Refugee Board dated February 16, 1998.
[6] The applicant suggests that he is entitled to a statutory stay under paragraph 49(1)(c) of the Immigration Act.
[7] Regarding whether subparagraph 49(1)(c)(i) of the Act allows a statutory stay where an applicant has filed an application for leave for judicial review outside the time limit, we are facing two currents of jurisprudence.
[8] Justice Heald of the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) [1988] F.C.J. No. 587 (F.C.A.), held that an application for leave for judicial review which is not made within the time limits prescribed for doing so under the Immigration Act is not covered by the statutory stay of subparagraph 49(1)(c)(i) of the Act:
| 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). |
| Paragraph 51(1)(c) is now subparagraph 49(1)(c)(i). |
[9] The respondent submits:1
| The principle respecting statutory stays and timely applications enunciated in Toth is equally applicable to the facts in the case at bar. That is, no statutory stay pursuant to s. 49(1)(c)(i) is operative where the application for leave for judicial review is filed several weeks/months, and in this case, several years out of time. |
[10] In fact, the application for leave for judicial review in the case at bar was filed two years and nine months after the decision of the Refugee Board.
[11] I also rely on the recent decision of Mr. Justice Nadon in Gustave v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1779, October 27, 2000 (IMM-5287-00), that also supports that no statutory stay exists in cases such as the case at bar.
[12] In his decision, Justice Nadon made an extensive review of the case law and particularly of the decision by Justice Mackay in Sholev v. Canada (Minister of Employment and Immigration) (1994), 78 F.T.R. 188 (F.C.T.D.). Justice Nadon said, relating to the Sholev decision:
| 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. |
| 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. |
| 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 a first instance, I might not have come to the same conclusion as my learned colleague. |
[13] Justice Nadon also said:
| 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. |
[14] Therefore, my conclusion is that there is no statutory stay.
[15] Nevertheless, like my learned colleague, Justice Nadon, I am also of the opinion that the applicant who files a late application is not without any recourse as was decided inToth, supra. The applicant, in the present case, is entitled to a stay based on the tripartite test set out by the jurisprudence.
[16] Thus, the applicant has to demonstrate that there is a serious issue to be tried, that he could suffer irreparable harm, if deported, and that the balance of convenience is on his side.
[17] I have carefully reviewed the written submissions by the applicant, and the applicant has failed to identify a serious issue to be tried.
[18] The applicant has not provided any valid reasons why it took almost three years to file this application for an extension of time to file an application for leave.
[19] The applicant only relies on a suggestion that "there may have been a fundamental breach of natural justice", as the Board and the applicant did not properly understand each other's questions and answers during the hearing.
[20] That suggestion is only speculative and based on his memory, three years after the facts.
[21] Regarding the irreparable harm, the only evidence before the Court is the decision of the Refugee Division where it is decided:
| The panel concluded, however, again noting the claimant's own experiences in the military, that there is insufficient evidence before it on which to conclude that there is a reasonable chance the claimant would face disproportionate punishment for his desertion because of his part-Hungarian ethnicity. No evidence was adduced to indicate that the claimant would face disproportionate punishment for any of the reasons enumerated in the Convention refugee definition for reasons of his military service desertion. |
[22] The applicant failed to convince the Court that he could suffer irreparable harm if deported.
[23] Finally, in my view, it is obvious that the balance of convenience favours the Minister performing her statutory duty, pursuant to section 48 of the Immigration Act.
[24] For these reasons, the motion for a stay of removal is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 5, 2000
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