Date: 20000615
Docket: IMM-2896-00
BETWEEN:
DEJAN KOCKOVSKI
MERI KOCKOVSKI
DAVOR KOCKOVSKI
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLAIS J.
[1] I have heard this motion for a stay by teleconference on June 14, 2000 at 11:00 a.m.
[2] The applicants Dejan Kockovski, Meri Kockovski and Davor Kockovski are Macedonian citizens who came to Canada in September 1997.
[3] They made an application for Convention refugee status in September 1997 and were denied on May 20, 1999. They made an application before the Post Determination Refugee Claimant in Canada Unit in June 1999 for refugee status but were denied on April 26, 2000.
[4] The applicants received an order dated June 1, 2000, requiring them to leave Canada on June 14, 2000. On June 2, 2000, Mr. Alan Franklin sent a letter to Mr. Greg Bennett, Removals Unit, Citizenship and Immigration Canada, advising him that Dejan Kockovski ("the applicant") intended to file an application for leave and judicial review of the CRDD decision, pursuant to section 49 of the Immigration Act, and requesting a stay of removal, with that letter, Mr. Bennett was provided with a copy of the cases confirming that a stay in these circumstances was automatic. This letter was received via courier by Mr. Bennett on June 5, 2000. Subsequently, Mr. Bennett advised Mr. Thansingh that he would not grant the automatic stay of removal, despite the cases that had been provided to him.
[5] The applicant filed an application for leave and for judicial review on June 7, 2000. The applicant further applied to the Court for an extension of time under subsection 82.1(5) of the Immigration Act on the following grounds:
| The Applicant was misinformed by his former counsel, an immigration consultant, that he was required by law to wait until determination of his P.D.R.C.C. application before he could appeal the negative decision on his C.R.D.D. application. The Applicant was served with his P.D.R.C.C. decision on April 26, 2000. |
[6] Relating to the extension of time pursuant to sub-paragraph 49(1)(c)(i), the applicant submits that there is an automatic stay on a deportation order executable against a person determined by the Refugee Division not to be a Convention refugee, where the person against whom the order was made files an application for leave and for judicial review under the Immigration Act.
[7] The applicant suggests that this automatic stay applies even if the application is filed beyond the fifteen (15) day period ordinarily provided by sub-section 82.1(2), whenever the application includes an application for extension of time to commence proceedings.
[8] Both parties acknowledged that there is a considerable delay between the date of notification of the CRDD decision and the date of filing of the application for leave and judicial review.
[9] Nevertheless, this Court has ruled in Sholev v. Canada (M.E.I.)1, that a stay of execution of a removal order becomes effective by operation of sub-paragraph 49(1)(c)(i) once the applicant files in the Federal Court an application for leave and for judicial review.
[10] In Sholev supra, Justice MacKay said:
| In my opinion, the purpose of s. 49(1)(c)(i) is to provide by statute for a stay of removal of a person who applies for leave to seek judicial review of a negative decision in regard to his or her claim to be a Convention refugee. It recognizes that removal of a person, who has availed himself or herself of the only process available to question a negative decision on a claim to be a refugee, would be unfair before disposition of the application for judicial review. It avoids applications to stay execution of removal orders which otherwise would be made to the court whenever removal was pursued before disposition of an application for leave and for judicial review. |
| In my view, a stay of execution of a removal order becomes effective by operation of s. 49(1)(c)(i) once the applicant files in this court an application for leave and for judicial review, even if that be filed beyond the 15 day period ordinarily provided by s. 82.1(2) for filing wherever it includes or is accompanied by an application for an extension of time to commence the proceedings. |
[11] In Ziyadah v. Canada (M.C.I.)2, Justice Pelletier has carefully reviewed the arguments that were presented by both parties, similar arguments were presented to me this morning.
[12] I adopt Justice Pelletier"s reasons in the Ziyadah case, reasons that were also adopted by Justice Richard in Ragunathan v. Canada (M.C.I.)3 and also by Justice Lutfy in Gyle v. Canada (M.C.I.)4, and subsequently by Justice Dawson in Chayka v. Canada (M.C.I.)5 and finally, in Anderson v. Canada (M.C.I.)6 by Justice Heneghan.
[13] The principal expression in Sholev has been followed consistently in the jurisprudence.
[14] For these reasons, I consider that I have no jurisdiction to grant a stay, given that there is already a statutory stay in the Act.
[15] It will not be necessary to address the three elements of the test for the stay.
[16] For these reasons, the application for a stay of the removal order executable June 14, 2000 is dismissed on the ground that the removal order is stayed by the operation of law; specifically in sub-paragraph 49(1)(c)(i) of the Immigration Act, and as a consequence, there is a statutory stay in those circumstances and no order of the Court is required.
Pierre Blais
Judge
OTTAWA, ONTARIO
June 15, 2000
__________________3 (1995) F.C.J. No. 1616 (T.D.).
4 [1998] 161 F.T.R. 223 (T.D.).