Federal Court Decisions

Date: 20061219

Docket: IMM-6249-06

Citation 2006 FC 1522

Ottawa, Ontario, December 19, 2006

PRESENT:     The Honourable Mr. Justice Lemieux

BETWEEN:

KEITH BRIAN MOSES

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

Respondents

REASONS FOR ORDER AND ORDER

[1]   The applicant is a self-represented litigant and a British citizen who, upon motion returnable on motions day in Toronto on December 4, 2006, sought orders declaring invalid “the decision to bring into force a removal order against the Applicant as referred to in the letter dated October 11, 2006 from the Canada Border Services Agency (CBSA) and all actions taken by the Respondents as a result of its being in force as null and void.”  

[2]   The CBSA letter indicated to Mr. Moses that “you are the subject of a removal order that is in force.”  The letter stated he was required to present himself at the CBSA office for an interview and to bring certain items such as his passport, any Immigration appeal or Federal Court documents or documents concerning criminal matters.  He did not attend the CBSA on the appointed day but contacted it later and came in for an interview at which time he was advised he could make a PRAA application by December 1, 2006, which he did.

[3]   The applicant first entered Canada on October 24, 2005 and was granted visitor status for six months.  He made a refugee claim on November 21, 2005.  At the time, a conditional deportation order was issued against him.  His claim was declared abandoned on July 13, 2006.  He sought leave to judicially review this decision in court file IMM-4117-06.

[4]   By the operation of section 49(2)(d) of the Immigration and Refugee Protection Act, (the Act) his conditional removal order came into force 15 days after notification his refugee claim was declared abandoned.

[5]   Section 48(1) of the Act provides a removal order is enforceable if it has come into force and is not stayed.

[6]   To further complicate matters, subsection 231(1) of the Immigration and Refugee Protection Regulations (the Regulations) provides for a statutory stay if an application for leave for judicial review is filed where the Refugee Protection Division has rejected a claim and section 232 does likewise when a person is notified he/she may make a PRAA application and does so.  Mr. Moses therefore, enjoys a statutory stay from his removal under section 232 of the Regulations.  

[7]   I agree with counsel for the Ministers, the applicant’s motion must be dismissed.  He, in effect, is seeking by way of interlocutory motion an interim declaration of rights which he cannot have (see, Sawridge Band v. R. [2003] 4 F.C. 748, affirmed by the Federal Court of Appeal [2004] 316 N.R. 332.)  Alternatively, the applicant is seeking final relief by way of an interlocutory motion which is improper. (see Strizhkov v. MCI (1998), 150 F.T.R. 244).

[8]   There is no merit in the applicant’s reliance on the exception identified in Cruz v. Canada (Minister of Citizenship and Immigration) 2001 FCT 491.  There was no decision by an Immigration Officer to bring into force the departure order.  That order came into force by the operation of the Act.  Moreover, the issuance of a declaration is always a matter of discretion and is not mandatory as the applicant argues.

[9]   The applicant acknowledges he has a statutory stay arising under section 232 of the Regulations.  His real concern is the length of the stay as contrasted with the statutory stay triggered by section 231 of the same Regulations when he filed his application for leave and judicial review in IMM-4117-06.

[10]   I agree with counsel for the Ministers the applicant does not enjoy a statutory stay under section 231 of the Regulations because his refugee claim was not rejected but was abandoned.  The Act clearly distinguishes the situation where a claim is rejected (paragraph 49(2)(c) from that where a claim is declared abandoned (paragraph 49(2)(d).  This Court has recognized the difference (See Mwakotbe v. Canada (Minister of Citizenship) 2006 FC 1227.

[11]   To the extent the applicant transformed his December 4^th motion into a judicial stay application, I see no serious issue and he enjoys a statutory stay. 

[12]   Finally, I see no basis for the other remedies sought by the applicant. 

[13]   After this Order was written, a search of recorded entries revealed that Justice Barnes has dismissed the applicant’s leave application in IMM-4117-06.     

ORDER

THIS COURT ORDERS that the applicant’s motion is dismissed.

“François Lemieux”

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-6249-06

STYLE OF CAUSE:                          KEITH BRIAN MOSES v.

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

PLACE OF HEARING:                    TORONTO, ONTARIO

DATE OF HEARING:                      December 4, 2006

REASONS FOR ORDER AND ORDER   Lemieux, J.

DATED:                                             December 19, 2006

APPEARANCES:

SOLICITORS OF RECORD: