Docket: IMM-2464-02
Neutral citation: 2002 FCT 701
BETWEEN:
RAVINDRAN ANDREW PAUL ANANDAPPA
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Ravindran Andrew Paul Anandappa, the applicant, a 31 year old male Tamil citizen of Sri Lanka, seeks a stay of a departure order at a time when that order has not been converted into a deportation order by force of law under subsection 32.02(1) of theImmigration Act (the Act) because no certificate of departure has been issued within the period presented under section 27 of the Immigration Regulations (the Regulations).
[2] Counsel for the Minister argues this Court has no jurisdiction to stay a departure order, or alternatively, the stay application is premature. She relies on jurisprudence of this Court which developed with Justice Rothstein's decision in Rajan v. Canada, [1994] F.C.J. 1618 when he was a member of the Trial Division. Section 32.02(1) of the Act reads:
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.
[3] Section 27 of the Regulations reads:
27. (1) Subject to subsection (2), a certificate of departure referred to in section 32.02 of the Act that verifies that a person in respect of whom a departure order has been issued has left Canada may be issued not later than 30 days
(a) where the departure order is stayed, after the day on which the stay is no longer in effect;
(b) where the Minister has declared a moratorium in respect of the removal of all nationals of the country of which the person is a national, after the end of the moratorium; or
(c) in any other case, after the day on which the departure order becomes effective.
(2) In the case of a person who claims to be a Convention refugee but who has been determined by the Refugee Division not to be a Convention refugee, a certificate of departure referred to in subsection (1) may be issued not later than 30 days after the latest of
(a) if the person does not submit an application for a determination referred to in paragraph 11.4(2)(b) within the period referred to in that paragraph, the day on which the person is notified by the Refugee Division of its determination;
(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;
(c) if the person is a member of the post-determination refugee claimants in Canada class but an immigration officer has determined that the person shall not be granted landing, the day on which the person is notified of that determination; and
(d) where the departure order is stayed, the day on which the stay ceases to have effect. SOR/88-180, s. 1; SOR/89-38, s. 11; SOR/93-44, s. 19; SOR/97-182, s. 12.
27.1 A conditional removal order or a copy thereof shall be considered to have been served on a person who claims to be a Convention refugee if it is sent by ordinary mail to the person at that person's last known address. SOR/93-412, s. 15.
Background
[4] The applicant came to Canada on July 14th, 1997 and made a refugee claim. A conditional departure order was issued against him that same day by a Senior Immigration Officer. It reads:
DEPARTURE ORDER
Document no: V802548552 Off File No.:
Client ID: 3442-4766
To: Ravindran Andre Anandappa Born 30 Nov. 1970
and a citizen of Sri Lanka
I hereby make a conditional departure order against you pursuant to subsection 28(1) of the Immigration Act because I am satisfied that you are a person described in:
Paragraph 19(2)(d) & 9(1):
Paragraph 19(2)(d) of the Immigration Act in that you do not comply with the requirements of subsection 9(1) of the Immigration Act as you have not applied for and obtained an immigrant visa before appearing at a port of entry.
IMPORTANT
This order will be deemed to be a deportation order where no certificate of departure is issued within the applicable period specified in the Immigration Regulations.
Subject to section 56 of the Immigration Act, where a deportation Order is made against a person, the person shall not, after the person is removed from or otherwise leaves Canada, come into Canada without the written consent of the Minister unless an appeal from the order has been allowed.
[5] On May 25th, 1998 he was found not to be a Convention Refugee and a judge of this Court denied him leave to commence judicial review proceedings.
[6] On February 16th,1999 he made an application for landing in Canada based on humanitarian and compassionate grounds. His application was denied on December 5th, 2000 and leave of this Court was refused.
[7] On May 15th, 2002 his application under the PDRCC provision of the Regulations was denied as it was determined he would not be at risk should he return to Sri Lanka.
[8] Since the PDRCC decision his departure order is no longer conditional and the provisions of section 27(2)(b) of the Regulations are operative. He has been advised that he has now 30 days to leave Canada voluntarily i.e. the period within which a certificate of departure may be issued. That period will expire June 21st, 2002.
[9] I add the applicant on or about July 2001 applied through the Canadian Embassy in Buffalo for permanent residency in Canada in the independent category band as a skilled worker- a Chef. That application is still pending.
[10] The importance of voluntarily leaving Canada armed with a certificate of departure is that he may return to Canada without a Minister's permit, if entry is otherwise lawful. (See Section 55 of the Act)
Analysis
[11] Justice Pelletier, as a member of the Trial Division, in Essiaw v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1108 reviewed in depth the statutory and regulatory provisions governing departure orders and the case law of this Court on whether a stay of a departure order is within the jurisdiction of this Court and if so is such an application premature before the time period for the issuance of a certificate of departure has expired.
[12] Justice Pelletier ruled this Court had jurisdiction to stay a departure order but it would be premature to do so. On jurisdiction he states at paragraph 11 in Essiaw the following:
Nonetheless, taking paragraph 27(1)(a) of the Regulations at face value, it would appear to be the answer to the argument that any interference with a departure order is essentially an amendment of the Act. The effect of the paragraph is that the period during which an order is stayed does not count for purposes of the date at which a departure order is converted into a deportation order. The result in Rajan is still correct but perhaps not quite for the reason suggested. The portion of the prayer for relief staying "the transformation of the Departure Order ... metamorphosizing into a deemed deportation order ..." ought to have been dismissed, not because it was beyond the jurisdiction of the Court but because the relief requested was provided by operation of law, if the applicant was otherwise entitled to a statutory stay. (Emphasis mine)
[13] On prematurity he ruled:
Rothstein J. was dealing with a departure order as opposed to a deportation order. Since the order did not contemplate action against the applicant by the Minister within the prescribed period, there was nothing which could be the subject of a stay of execution. ... In other words, there is little logic in ordering the Minister to desist when the Minister does not propose to act.
.....
At the time of the bringing of this motion, the departure order had not changed into a deportation order. As in Rajan, the application for a stay was therefore premature.
For those reasons the application for a stay is dismissed.
[14] The use in paragraphs 27(1)(a) and 27(2)(d) of the Regulations of the words "Where a departure order is stayed" as Justice Pelletier observed could be either a statutory stay created by subsection 49(1) of the Act or a judicially imposed stay.
[15] I supplement Justice Pelletier's reasoning on jurisdiction by touching on two other factors.
[16] First, it has been well recognized by this Court that in some circumstances a judicial stay can be issued barring a removal officer's action under section 48 of the Act from executing a removal order as soon as practicable. "Removal order" is defined in section 2 of the Act to mean, inter alia, a departure order.
[17] Second, more importantly the words "where a departure order is stayed" in paragraph 27(2)(d) of the Regulation would have no meaning if they were confined to a statutory stay provided under section 49(1) of the Act because a statutory stay under that provision is not available to a person who has been determined not to be a member of the post determination refugee claimant class.
[18] In Rajan supra Justice Rothstein was of the view an application for an order directing the Minister not to require the applicant to leave Canada was premature. He said:
If the applicant does not leave Canada of her own volition, ... a stay application may be brought when the applicant is advised by the respondent she must leave.
[19] Rajan has consistently been followed by judges of this Court holding that unless any removal arrangements have been made and a removal date given a stay application is premature (SeeMarkheva v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1319, Verich v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 400 and Weir v. Canada (Minister of Citizenship and Immigration, [1998] F.C.J. No. 494 and of course Essiaw, supra.
[20] Those decisions are sound and are anchored by sound policy reasons.
[21] First, the rationale underlying the prematurity bar to a stay application at this time is sound in my view. It gives the applicant a choice to voluntarily comply with the departure order which is the policy of the Act in that if he does so armed with a certificate of departure he may reenter Canada without the requirement of a Minister's permit (See subsection 55(3) of the Act.)
[22] Second, it leaves it up to the Minister to prioritize the scheduling of the removal of persons in Canada as a matter of administrative policy. One factor in that prioritization may be the applicant's outstanding application for permanent residence in Canada, and how imminent the visa officer's decision is forthcoming.
[23] For these reasons, the stay application is dismissed.
"François Lemieux"
J.F.C.C.
Toronto, Ontario
June 20, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2464-02
STYLE OF CAUSE:RAVINDRAN ANDREW PAUL ANANDAPPA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, JUNE 17, 2002
REASONS FOR ORDER BY: LEMIEUX J.
DATED: THURSDAY, JUNE 20, 2002
APPEARANCES BY: Mr. Michael Korman
For the Applicant
Ms. Catherine Vasilaros
For the Respondent
SOLICITORS OF RECORD: Otis & Korman
Barristers and Solicitors
290 Gerrard Street East
Toronto, Ontario
M5A 2G4
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020620
Docket: IMM-2464-02
BETWEEN:
RAVINDRAN ANDREW PAUL ANANDAPPA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER