Date: 20000308
Docket: IMM-1002-00
BETWEEN:
BOGDAN WYDRZYNSKI
Applicant
| - and - |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Mr. Wydrzynski, the Applicant, has applied for a stay of a deportation order which is to be carried out on Thursday, March 9, 2000 at 9:00 a.m. with his removal to the United States.
[2] Mr. Wydrzynski entered Canada in September 1998 and claimed Convention refugee status. He alleged a fear of religious persecution in Poland. His fear was based on his membership in a particular religious group, that is Ecclesiastic Christians. His claim was referred to a hearing before the Convention Refugee Determination Division (hereinafter "CRDD") in Montreal and the hearing was set for May 6, 1999.
[3] Mr. Wydrzynski did not appear at the hearing before the CRDD on the grounds of illness. He received notification from the CRDD that a further hearing would be held on May 20, 1999, to provide him with an opportunity to show why a declaration of abandonment of claim should not be issued.
[4] Mr. Wydrzynski did not appear at this hearing nor did he provide the medical certificates which were requested to explain his absence on May 6 and on May 20. On October 21, 1999 the CRDD issued a Notice of Abandonment Decision of Convention Refugee Claim. In the meantime, Mr. Wydrzynski signed a Withdrawal of the Convention Refugee Claim, in Montreal on June 3, 1999.
[5] By Notice of Motion dated January 27, 2000 the Applicant brought an application before the CRDD, seeking the reinstatement of his application for Convention Refugee Status. That motion, which was presented in writing, remains outstanding.
[6] The Applicant had been issued a Conditional Departure Order upon his arrival in Canada pending determination of his Convention Refugee Claim. On January 26, 2000, the Applicant received a letter advising that his removal from Canada was scheduled for March 9, 2000 at 9:00 a.m. The Motion seeking a stay of this order was filed on February 24, 2000. The Applicant seeks a Stay of the Removal Order, pending the determination of his Motion for the Reinstatement of his Convention Refugee Claim which is now before the CRDD.
[7] The issue is whether the Applicant can satisfy the tri-partite test.
[8] This test requires an Applicant to show as follows:
| i) that there is a serious issue to be tried; |
| ii) that he would suffer irreparable harm unless the stay were granted; and |
| iii) that the balance of convenience favours him. |
[9] This test was established in Toth v. Minister of Employment and Immigration1. It is recognized that the requirements of this test are conjunctive, so the Applicant must satisfy all three elements of the test before this Court can grant a stay of the removal order (see Toth v. M.E.I., supra).
[10] In my opinion, this application must fail. While it was argued that the outstanding Notice of Motion before the CRDD gives rise to a "serious issue to be tried" because it provides the Applicant with his "day in Court", I am not persuaded that this is a serious issue, in the circumstances of this case.
[11] Mr. Wydrzynski had two opportunities to present his case to the CRDD in May 1999 and did not do so. He did nothing, in relation to the decision issued by the CRDD concerning the deemed abandonment of his claim, for some three months after their decision was issued.
[12] Even if Mr. Wydrzynski had been able to meet the first element on the tri-partite test, he fails on the second ground, that of irreparable harm. There is no evidence that he would suffer irreparable harm following his removal to the United States. His motion remains outstanding before the CRDD. If he receives a positive ruling, he can take the appropriate steps to deal with the reinstatement of his claim for refugee status from the United States.
[13] In the circumstances, it is not necessary for me to comment on the balance of convenience element.
[14] The motion is dismissed.
"Elizabeth Heneghan"
J.F.C.C.
TORONTO, ONTARIO
March 8, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-1002-00 |
| STYLE OF CAUSE: BOGDAN WYDRZYNSKI |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| DATE OF HEARING: MONDAY, MARCH 6, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: HENEGHAN J. |
DATED: WEDNESDAY, MARCH 8, 2000
APPEARANCES: Mr. Jack Davis
For the Applicant
Ms. Ann Margaret Oberst
For the Respondent
| SOLICITORS OF RECORD: Cecil L. Rotenberg, Q.C. |
Barrister & Solicitor
255 Duncan Mill Road
Suite 808
North York, Ontario
M3B 3H9
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
| FEDERAL COURT OF CANADA |
Date: 20000308
Docket: IMM-1002-00
Between:
| BOGDAN WYDRZYNSKI |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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