Date: 19991201
Docket: IMM-5680-99
BETWEEN:
NECRUMA CUFF
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
A) Background
[1] These reasons deal with an application by Necruma Cuff, a citizen of Jamaica, (the applicant) to stay the execution of a departure order to be effective December 3, 1999 and issued on November 4, 1999 by a Senior Immigration Officer (the S.I.O.) pursuant to subsection 27(4) of the Immigration Act (the Act) who was satisfied the Applicant was a person in Canada who entered as a visitor and remains here for a period of time greater than that for which he was authorized and this contrary to paragraphs 27(2)(e) and 26(1)(c) of the Act.
[2] The S.I.O."s departure order flows from a report dated March 8, 1998 made to the Deputy Minister, by an Immigration Officer, pursuant to subsection 27(2) of the Act based on information in his possession at the time namely the Applicant was on September 9, 1999 admitted into Canada as a visitor for a period ending December 15, 1997 but remained here after expiry without written authority. The Applicant had been authorized to enter Canada as a farm worker and had been coming to Canada under the Farm Worker Program since 1994.
[3] The Applicant filed on November 24, 1999, pursuant to subsection 82.1 of the Act, an application in this Court for leave and judicial review challenging the November 4, 1999 departure order.
[4] Two grounds are raised by the applicant in this stay application. First, the respondent erred in law in issuing the departure order at this time (emphasis mine) because the respondent knew or ought to have known of the Applicant"s application for landing and application for reinstatement of his visitor"s status were pending and that therefore it was premature to consider and/or issue such order. Second, the respondent"s decision was made in bad faith because of the S.I.O."s knowledge of the Applicant"s outstanding applications.
[5] The stay which the Applicant seeks is effective until such time as the respondent decides on the Applicant"s outstanding application for landing.
[6] Factually, there has been a change in circumstances affecting the Applicant since his visitor"s visa expired on December 15, 1997. He met in February of 1998 his future wife, Kisha John, a permanent resident in Canada. They were married on May 23, 1998. On April 30, 1999 the Applicant, based on his wife"s sponsorship made an application for a visa exemption which, if granted, would constitute an application for landing in Canada. On the same day, he applied for an extension of his expired visitor"s visa and employment authorization. On August 27, 1999 the Applicant"s wife gave birth to their son.
[7] On September 1, 1999 the Applicant was arrested and told that there was a deportation order against him, which he denies knowledge of. He was released on bail; he attended the respondent"s offices on September 9, 1999 and told that his application for landing was in process. On September 14, 1999 the Applicant received from the respondent an acknowledgment of his application for permanent residence in Canada indicating his application had been forwarded to the Case Processing Centre and that within 12 weeks he would be contacted by mail should an interview be required.
B) Discussion
[8] In order to obtain a stay the Applicant must meet each element of the three part test of serious issue, irreparable harm and balance of convenience.
[9] In this case, the applicant does not pass the serious issue or arguable test recognizing the Supreme Court of Canada said in RJR - MacDonald v. Canada (1994) 1 S.C.R. 311 the threshold is a low one with the judge making a preliminary assessment of the merits to determine whether the underlying application is neither frivolous or vexatious.
[10] The applicant was obliged to demonstrate there was a serious issue affecting or surrounding the legality of the departure order; he has failed to do so. In substance the applicant does not challenge the legality of the departure order; the applicant says it should not have issued before the respondent decided on his outstanding landing and visitor reinstatement applications. In other words, the applicant argues a stay is
warranted because of his outstanding applications
[11] It has been consistently held by judges of this Court that in and of itself, without more, an outstanding application for exemption, based on humanitarian and compassionate grounds (H & C), from the requirement that an application for permanent residence be processed outside of Canada, is not grounds for granting a stay. There is no obligation on the respondent to consider an H & C Application before effecting removal.
Some of these authorities to this effect are: Younge v. M.C.I., IMM-2566-96, January 3, 1997, Richard J., as he then was,; Balasumbramaniam v. M.C.I., IMM-3858-98, August 4th, 1998, Richard A.C.J., as he then was; Ram v. M.C.I., IMM-1939-96, June 21, 1996, MacKay J. I should add that judges of this Court have emphasized that notwithstanding removal the processing of an H & C Application continues.
[12] There may be circumstances where the nexus between an outstanding H & C Application and a removal order is such as to warrant the Court"s intervention by granting a stay of a removal order. See for example Shchelkanov , (1994) 76 F.T.R. 151, and Appiagyei v. M.C.I., IMM-2486-95, September 18th, 1995. However, in the case before me such circumstances have not been demonstrated, for example, undue delay in processing the H & C Application. The allegation of bad faith on the part of the S.I.O. has no merit. The S.I.O. was simply performing a statutory duty under subsection 27(4) of the Act which requires the S.I.O. to make a departure order if satisfied that the applicant overstayed his visitor"s visa, which is admitted.
[13] Having determined the applicant has not made out a serious issue, I agreed not to discuss the other elements of the tri-partite test.
[14] For these reasons, the stay application is dismissed.
"François Lemieux"
Judge
Toronto, Ontario
December 1, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-5680-99 |
| STYLE OF CAUSE: NECRUMA CUFF |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: MONDAY, NOVEMBER 29, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: LEMIEUX J. |
DATED: WEDNESDAY, DECEMBER 1, 1999
| APPEARANCES: Mr. Hamza Kisaka |
| For the Applicant |
| Mr. Toby J. Hoffman |
| For the Respondent |
| SOLICITORS OF RECORD: Hamza N. H. Kisaka |
Barrister and Solicitor
1752 Eglinton Avenue West
Toronto, Ontario
M6E 2H6
| For the Applicant |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 19991201
Docket: IMM-5680-99
Between:
| NECRUMA CUFF |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER