Date: 20001208
Docket: IMM-4091-00
BETWEEN:
BEHROOZ POURSADEGHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for a stay of execution of a removal order of the applicant.
[2] The application for leave and judicial review filed on October 10, 2000 is challenging two danger opinions, both issued on September 18, 1998.
[3] This application was filed almost two years outside the time limit.
[4] So far, the respondent did not succeed in obtaining travel documents to remove the applicant and the applicant has not cooperated.
[5] The respondent submits that it is premature to hear an application for a stay in such circumstances.
[6] The respondent also submits that the Court may not entertain and decide an application for stay that concerns an application for leave and judicial review that was filed outside the time limits prescribed by subsection 82.1(3) of the Immigration Act.
[7] In order to obtain an extension of time, the applicant must establish that there was some valid reason to justify the delay, that the applicant was not negligent and always had the intention of contesting the impugned decision. He also has to establish that there is a serious issue to be tried.
[8] In my view, the applicant failed to demonstrate that he has a reasonable excuse for the long delay.
[9] If I see no justification for the delay to file and serve an application for leave, therefore there is no serious issue to be tried in the circumstances.
[10] As Justice Tremblay-Lamer decided in Dessertine et als. v. M.C.I., IMM-3931-00, August 14, 2000:
| Compte tenu que l'ignorance de la loi n'est pas un excuse pour justifier une prorogation de délai et compte tenu que les affidavits des demandeurs ne contiennent aucune explication pour expliquer le retard à déposer leur demande d'autorisation, la requête pour extension de délai est rejetée. La Cour est donc sans juridiction pour entretenir la requête en sursis. |
[11] Also, in Paredes v. M.C.I., IMM-3989-97, October 20, 1997, Justice Noël held:
| La demande d'extension de délai est refusée, la partie requérante n'ayant pas été en mesure d'établir que sa demande de permission soulève une question sérieuse. La Cour est donc sans juridiction pour entretenir la demande de sursis. |
[12] Justice MacKay in Shellner v. M.C.I., IMM-1378-96, April 23, 1996, stated:
| UPON hearing counsel for the parties by telephone conference and upon consideration of submissions made, the Court, after brief deliberation, rendering decision orally, concluded as follows: |
| In the circumstances here it is questionable that a case is established that would warrant an order to extend the time to file an application for leave and for judicial review, and without an extension of time there would be no issue before the Court. |
[13] Justice Noël in Semenduev v. M.C.I., IMM-4727-96, January 17, 1997, held:
| The application for leave and for judicial review with respect to which the stay is being sought pertains to a decision rendered two years ago wherein it was determined that the applicant was a danger to the public in Canada. |
| ... |
| As an extension of time is a condition precedent to the consideration of his leave application, the applicant must, in order to satisfy me that it raises a serious issue, also establish that his application for an extension of time raises a serious. To do so, the Applicant must put before me evidence from which I could conclude that there are grounds upon which this Court could extend the time. In this respect, the case law requires amongst other things that the Applicant establish that he had, throughout the period with respect to which the extension is being sough the intention to challenge, in the legal sense, the decision in issue, but that he was prevented from doing so by reason of factors which were beyond his control. |
| ... |
| I do not believe that his last allegation, nor the above quoted passages from the affidavits of the Applicant raise serious grounds upon which this Court could conclude that the Applicant had the intention to avail himself of the legal recourse available to him throughout the relevant period. |
| ... |
| In my view it is inconceivable that a person in the position of the applicant who was aware of his rights and who had the continuous intent to avail himself of those rights over a two year period would have limited his efforts to a single set of inquiries about legal aid at the time when the decision was rendered...Quite obviously, if the Applicant took no steps of any sort towards overturning the certification over a two year period, it is because he ceased to hold the intention to do so. |
| As for purposes of this stay application, the Applicant has failed to put before me evidence upon which I could conclude that his application for an extension raises a serious issue, it follows that I could not look upon his application for judicial review as raising a serious issue. |
[14] Pursuant to the second element of the test, the decision of the Minister's delegate rendered on September 18, 1998 has addressed risk considerations the applicant may face if returned to Iran.
[15] The applicant filed new evidence in support.
[16] In my view, the applicant, who has left Iran sixteen years ago, failed to convince the Court that he could face irreparable harm if deported to Iran.
[17] I also conclude that the balance of convenience favours the respondent given the long period of time since the decision was rendered.
[18] For these reasons, the motion for a stay is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 8, 2000