Digests

Gustave v. Canada (Minister of Citizenship and Immigration)

IMM-5287-00

Nadon J.

27/10/00

12 pp.

Applicant, citizen of Saint-Lucia, seeking stay of execution of removal order--Applicant arriving in Canada in 1994, claiming refugee status five years after arrival--In March 2000 conditional departure order issued as remaining in Canada after ceasing to be visitor--In August 2, 2000 found not to be Convention refugee--Leave application to commence judicial review proceedings of Board's decision filed out of time--Application to be considered as member of Post-determination Refugee Claimants in Canada Class dismissed as out of time--Motion denied--Applicant not meeting tri-partite test set out in Toth v. Canada (Minister of Employment and Immigration), [1989] 1 F.C. 535 (T.D.) as Nadon J. satisfied neither that applicant will suffer irreparable harm if stay not granted nor that leave application raising serious issue as no explanation why filed late--Only remaining issue whether late leave application to commence judicial review proceedings within ambit of Immigration Act, s. 49(1)(c)(i), permitting stay of execution of removal order where subject of order applying for leave to commence judicial review proceeding until such application heard, disposed of--Ziyadah v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 152 (T.D.) dealing with identical issue--In that case, Pelletier J. following MacKay J.'s decision Sholev v. Canada (Minister of Employment and Immigration) (1994), 78 F.T.R. 188 (F.C.T.D.)--Neither Sholev nor Ziyadah followed herein as appears Toth not brought to attention of MacKay, Pelletier JJ.--Federal Court of Appeal having jurisdiction with respect to Refugee Board matters under Immigration Act, 1976, s. 51(1)(c) when decision rendered in Toth--Although ss. 49(1)(c)(i), 51(1)(c) not identical, differences immaterial--S. 49(1)(c)(i) providing in clear, unambiguous terms for stay of execution of removal order only when applicant filing application for leave within time prescribed by Act--When time prescribed expired, late filing not staying removal order--Result arrived at in Sholev leading to absurd consequence in that person subject to deportation order could evade deportation until apprehension, perhaps years later, and then make late application for leave, judicial review including application for extension of time--Parliament could not have intended such result--Immigration Act, R.S.C., 1985, c. I-2, s. 49(1)(c)(i) (as am. by S.C. 1992, c. 49, s. 41)--Immigration Act, 1976, S.C. 1976-77, c. 52, s. 51(1)(c) (as am. by S.C. 1988, c. 35, s. 16).