Date: 19980915
Docket: IMM-4545-98
BETWEEN:
ANDRIY MARKHEVKA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
WETSTON, J.
[1] The applicant seeks a stay of removal.
[2] The applicant arrived in Canada on December 18, 1996, on a visitor's visa with an expiry date of June 17, 1997.
[3] On June 5, 1997, the Applicant's visitor's visa was extended until December 17, 1997.
[4] On December 17, 1997, the applicant's visitor's visa was extended until January 15, 1998.
[5] On January 27, 1998, the applicant's visitor's visa was extended until March 6, 1998. The terms and conditions of the extension were that the applicant "must leave Canada by 6 March 1998."
[6] On March 30, 1998, and Officer of the respondent sent a decision to the applicant advising him that s/he was unable to approve another visitor extension request by the applicant. The letter provided the following reason:
| As defined by the Immigration Act, a visitor means "a person who is lawfully in Canada, or seeks to come into Canada, for a temporary purpose." |
[7] On April 17, 1998, the applicant applied for the re-instatement of his visitor's visa.
[8] On June 30, 1998, the applicant's application for the re-instatement of his visitor's visa was refused because it was determined by the officer that he was no longer a bona fide visitor.
[9] A section 27 report was issued by an immigration officer, with respect to the applicant, on June 30, 1998, on the basis that the applicant had remained in Canada without status since he ceased to be a visitor, on March 6, 1998.
[10] On August 18, 1998, a departure order was issued with respect to the applicant which stated that he must depart Canada within 30 days, on or before September 17, 1998. If the applicant does not leave Canada within this time period, his departure order will be deemed to be a deportation order.
[11] There are presently no removal arrangements in place with respect to the applicant as he is still subject to a departure order, which expires as of Thursday, September 17, 1998. Only on September 17, 1998, if the applicant has not left Canada, will the departure order be deemed to be a deportation order.
[12] As the applicant is only subject to a departure order, the respondent has not made any removal arrangements with respect to the applicant. Therefore, there is presently no removal date for the applicant.
[13] In my opinion, when an applicant on a stay motion is subject to a departure order, the stay motion is premature and the Court has no jurisdiction to hear the motion.
| Weir v. M.C.I. (F.C.T.D., April 17, 1998, IMM-1679-98). |
| Verich v. M.C.I. (F.C.T.D., March 25, 1996, IMM-811-96). |
| Kaler v. M.C.I., [1994] F.C.J. No. 134 (T.D.). |
[14] This would dispose of this application at this time. However, the applicant seeks an extension of time to consider the leave application. An extension of time may be granted if the entire delay is satisfactorily accounted for and the application discloses a fairly arguable case within the jurisdiction of the Court under s.18.1 the Federal Court Act.
| Grewal v. Canada M.E.I., [1985] 2 F.C.263 (F.C.A.). |
[15] In support of his extension of time motion, the applicant has stated that his Immigration Consultant incorrectly advised him that he had thirty days to seek leave for judicial review of the respondent's decisions. The applicant stated that he contacted his present counsel on September 4, 1998, believing that he was "well within the time frame for filing a case at Federal Court."
[16] In my opinion an extension of time is warranted. Under the circumstances the applicant was out of time by only two days.
[17] With respect to the stay I have considered the tri-partite test for determining whether interlocutory injunctions should be granted pending a determination of a case on its merits, namely, (i) whether there is a serious question to be tried; (ii) whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm; and (iii) the balance of convenience, in terms of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction pending a decision on the merits.
| R.J.R. MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311 (S.C.C.) |
[18] I have serious reservations as to the existence of a serious question in this matter. The fact that the officer determined that the applicant had not established that he was a bona fide visitor does not raise a serious issue in light of the reasons provided by the applicant in support of his re-instatement application. There are two matters on August 18, 1998. One with respect to s.27(4), the departure order, and the second being the status report under s.27(2)(e). Nevertheless, I do not have to answer this question. In my opinion no irreparable harm has been established. The test is conjunctive and, in this case, irreparable harm is more than unfortunate circumstances, such as financial loss, or the inability to attend an interview for permanent residence at a Canadian Consulate in the United States as opposed to the Consulate in the Ukraine.
[19] With respect to the balance of convenience, the applicant has not met the third aspect of the tri-partite test, insofar as the balance of convenience favours the Minister and not the applicant.
[20] Accordingly, the motion for a stay of removal at this time is dismissed. There is no order as to costs.
"Howard I. Wetston"
Judge
Toronto, Ontario
September 15, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4545-98
| STYLE OF CAUSE: ANDRIY MARKHEVKA |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MONDAY, SEPTEMBER 14, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: WETSTON, J.
DATED: TUESDAY, SEPTEMBER 15, 1998
APPEARANCES:
Mr. Max Chaudhary
For the Applicant
Ms. Andrea M. Horton
For the Respondent
SOLICITORS OF RECORD:
M. Max Chaudhary
Barrister & Solicitor
255 Duncan Mills
Suite 405
North York, ON
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980915
Docket: IMM-4545-98
Between:
ANDRIY MARKHEVKA
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER