CITIZENSHIP AND IMMIGRATION |
Exclusion and Removal |
Removal of Refugees |
Anandappa v. Canada (Minister of Citizenship and Immigration)
IMM-2464-02
2002 FCT 701, Lemieux J.
20/6/02
8 pp.
Application for stay of departure order at time when order has not been converted into deportation order by force of law under Immigration Act, s. 32.02(1) as no certificate of departure has been issued within period presented under Immigration Regulations, s. 27--Conditional departure order issued against applicant on day arrived in Canada, made refugee claim (July 14, 1997)--In May 1998, found not to be Convention refugee, denied leave to commence judicial review proceedings--February 1999 H&C application for landing denied in December 2000, leave to commence judicial review proceedings denied--Post-determination Refugee Claimants in Canada (PDRCC) application denied; determination would not be at risk should he return to Sri Lanka--Since PDRCC decision, departure order no longer conditional, provisions of Regulations, s. 27(2)(b) operative; applicant advised has 30 days to leave Canada voluntarily-- Application dismissed--Essiaw v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1108; [2001] F.C.J. No. 1520 (T.D.) (QL) applied--Jurisdiction in Federal Court to stay departure, but would be premature to do so as no point in ordering Minister to desist when Minister does not propose to act--Also, well recognized by Court that in some circumstances, judicial stay can be issued barring removal officer's action under Act, s. 48 from executing removal order as soon as practicable--Removal order defined in Act, s. 2 to mean, inter alia, departure order--More importantly, words "where a departure order is stayed" in Regulations, s. 27(2)(d) would have no meaning if confined to statutory stay provided under Act, s. 49(1) as statutory stay thereunder not available to person determined not to be member of PDRCC--Rajan v. Canada (Minister of Employment and Immigration) (1994), 86 F.T.R. 70 (F.C.T.D.), consistently followed in Federal Court, holding that unless any removal arrangements have been made, removal date given stay application premature-- Sound rationale: gives applicant choice to voluntarily comply with departure order; leaving Canada with certificate of departure allows applicant to re-enter Canada without requirement of Minister's permit; leaves it up to Minister to prioritize scheduling of removal of persons in Canada as matter of administrative policy--Immigration Act, R.S.C., 1985, c. I-2, ss. 2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), 32.02(1) (as enacted by S.C. 1992, c. 49, s. 22), 48, 49(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 16; S.C. 1990, c. 8, s. 52)--Immigration Regulations, 1978, SOR/78-172, s. 27.