Federal Court Decisions

Date: 20070205

Docket: IMM-404-07

Citation:  2007 FC 130   

Toronto, Ontario, February 5, 2007

PRESENT:     The Honourable Mr. Justice Hughes

BETWEEN:

VERONICA SOOYINGALEUNG

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]               This is a motion requesting a stay of removal order until the underlying application for leave for judicial review can be finally determined.

[2]               The underlying application seeks a review of a decision in respect of a Humanitarian and Compassionate Application made by the Applicant, wherein that application was dismissed.  Having reviewed the records filed and heard submissions of Applicant’s counsel, I am satisfied that no serious issue arises here.  There is no fact overlooked, there is no law overlooked or misapplied.  There is no basis upon which a Court would set aside that decision.  As to irreparable harm, there has been nothing shown on the record that would constitute harm beyond that expected in many cases of dislocation and return to a country where ties have become remote.  The Courts have said that this is insufficient.  Therefore I dismiss the application on its merits.

[3]               A second point arises in respect of the underlying application.  The Notice of Application acknowledges that the decision was made and communicated to the Applicant over six months ago.  Therefore in addition to seeking leave to make an application for judicial review, the Applicant is required to seek leave for an extension of time to file the application.  Although the Notice, improperly, seeks to explain the delay citing failure to receive detailed reasons, and poor advice from an immigration consultant.  That is a matter for evidence, not for the Notice.

[4]               A problem arises since a motion to stay a removal order is, in these circumstances, based on an out of time application.  Unless leave is given to file the application late, there is no basis for a stay of removal order.  Therefor applicants seeking a stay of a removal order based on a late filed application should provide the judge hearing the motion for a stay with evidence that would satisfy the Court that permission to file an application late should be given.

[5]               The Court should, on the motion for a stay, also decide the issue as to permission to file late.  If the Applicant fails to persuade the Court that late filing is permissable, the stay motion fails.  If the Applicant succeeds, then the stay motion is then to be dealt with on its merits.

[6]               In this case, I reiterate, I have dismissed the motion on its merits.

ORDER

For the Reasons given:

THIS COURT ORDERS that

1.                  The motion for a stay is dismissed.

2.                  No order as to costs.

“Roger T. Hughes”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-404-07

STYLE OF CAUSE:                         

VERONICA SOOYINGALEUNG v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      February 5, 2007

REASONS FOR ORDER

AND ORDER:                                   HUGHES J.

DATED:                                             February 5, 2007

APPEARANCES:

SOLICITORS OF RECORD: