Date: 20000222
Docket: IMM-746-00
BETWEEN:
JEAN RODRIGUES
Applicant
| - and - |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.:
[1] This is a motion for the stay of the execution of a removal Order. The applicant seeks a stay pending disposition of her application for leave to commence a judicial review application and the disposition of that application if leave is granted.
[2] The application seeks review of an oral decision made by an immigration removals officer on February 2, 2000, refusing to delay "the execution of a removal order, dated January 26, 2000". The applicant also seeks an order staying execution of the removal order until her application for landing on humanitarian and impassionate grounds, filed last August, has been processed.
[3] It is necessary, first, to set out the relevant statutory provisions and the circumstances giving rise to the January 26, 2000 "order".
[4] On February 4, 1999, the applicant was found by the CRDD not to be a Convention refugee. On December 15, 1999 she was found not to be at risk if she returned to Guyana; she was found not to be a member of PDRCC (Post Determination Refugee Claimant in Canada). On January 26, 2000, this decision was handed to her in person, and she was told that if she did not leave Canada within 30 days (i.e.: by February 25, 2000), the departure order that existed against her would become a deportation order.
[5] A person in the position of this applicant is given an opportunity, under the legislation, to voluntarily leave the country pursuant to a departure order, before the order becomes a deportation order. If the person leaves, voluntarily, advantages arise, e.g. the ability to return without the need for a Minister"s permit. This is effected by giving the individual a departure certificate when they leave.
[6] A departure order becomes a deportation order by operation of subsection 32.02(1) of the Immigration Act.
| Where no certificate of departure is issued within the applicable period specified in the regulations to a person against whom a departure order has been made, the departure order is deemed to be a deportation order made against the person. |
Regulation 27 provides that certificates of departure (which prevent the order becoming a deportation order) may only be issued within 30 days of the departure order becoming effective.
| 27(2) |
| a certificate of departure ... may be issued not later than 30 days after the latest of .... |
| (b) the day on which the person is notified that an immigration officer has determined that the person is not a member of the post-determination refugee claimants in Canada class; |
[7] Until recently, departure certificates were only issued to those individuals who made their own travel arrangements and paid their own fares. Recently, however, a policy decision was taken by the respondent to assist individuals in leaving the country within the 30 day period, by making travel arrangements for them, paying their fares, and giving them a departure certificate.
[8] Pursuant to this policy, this applicant was given a Direction to Report on Wednesday, February 23, 2000, for return to Guyana. Thus, although the departure order does not become a deportation order until February 25, 2000, travel arrangements have been made for this applicant and she has been advised that if she does not take advantage of this opportunity, a warrant will be issued for her arrest and she will be deported pursuant to the deportation order that will exist as of February 26, 2000.
[9] The issuance of the Direction to Report on January 26, 2000, led to the applicant"s request to the immigration officer that he exercise his discretion to defer removal, and to his oral response of February 2, 2000, that he did not have jurisdiction to do so until the departure order became a deportation order.
[10] Counsel for the applicant argues that the immigration officer has discretion, now, because the definition of "removal order" in section 1 of the Immigration Act , states that a removal order is "a departure order, an exclusion order or a deportation order", and his obligation arises from section 48 of the Act , which states that:
| ... a removal order shall be executed as soon as reasonably practicable". |
[11] I am not persuaded that the definition of "removal order" and section 48 can be read in isolation from section 32.02 of the Act and Regulation 27. The removals officer does not have jurisdiction to change the removal order itself or to prevent a departure order from becoming a deportation order pursuant to section 32.02 of the Act. His authority relates only to the execution of that order. (Analogous to the authority of a bailiff to determine how and to some extent when to execute a court order.).
[12] The offer to the applicant of an opportunity to leave on February 23, 2000, is not the execution by the removals officer of the removal order. The officer"s refusal to defer removal pursuant to those arrangements was not a fettering of discretion but merely a recognition of the fact that the departure order had not yet turned into a deportation order. (The respondent should revise the Notice it gives to individuals pursuant to this new program to make its effect clear. I fear its present form is part of the reason for the confusion in this case.)
[13] It is only if the applicant does not leave on February 23, 2000, and the departure order subsequently turns into a deportation order on February 26, 2000, that the removals officer"s authority to remove, and his discretion to defer removal becomes operative. Thus, the applicant"s motion is at present premature.
[14] Accordingly, for the reasons given, the motion will be dismissed.
"B. Reed"
J.F.C.C.
TORONTO, ONTARIO
February 22, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-746-00 |
| STYLE OF CAUSE: JEAN RODRIGUES |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| DATE OF HEARING: MONDAY, FEBRUARY 21, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: REED J. |
DATED: TUESDAY, FEBRUARY 22, 2000
APPEARANCES: Mr. Richard Addinall
For the Applicant
Ms. Lori Hendricks
For the Respondent
| SOLICITORS OF RECORD: Audrey G. Campbell |
Barrister & Solicitor
South Etobicoke Community Legal Services
2970 Lake Shore Blvd. West
Toronto, Ontario
M8V 1J5
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
| FEDERAL COURT OF CANADA |
Date:20000222
Docket: IMM-746-00
Between:
| JEAN RODRIGUES |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER