Date: 20011010
Docket: IMM-3342-01
Neutral Citation: 2001 FCT 1108
Ottawa, Ontario, this 10th day of October 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
HANNAH ESSIAW
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PELLETIER J.
[1] At the conclusion of the hearing of this motion for a stay of execution of a departure order, I gave reasons for dismissing the motion. This is the substance of those reasons which have been put into a more structured form than the original oral comments.
[2] The applicant is a 66-year-old woman from Ghana who came to Canada to visit her son and daughter-in-law in December 1998. The son and daughter-in-law both work outside the home so the applicant assumed the care of the couple's two children during the day. The applicant's visitor's visa was extended twice and in the course of the second extension, she made an application pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2, S. 89 ("the Act") for an exemption from the requirement that applications for permanent residence be made from outside Canada. That application was refused and an application for leave and judicial review of that decision was commenced on July 3, 2001. When the last extension of the applicant's visitor's visa expired, a departure order was made pursuant to subsection 27(4) and paragraph 26(1)(c) of the Act requiring her to leave Canada on the ground that she was a person who entered Canada as a visitor and had remained in Canada for a period greater than was authorized.
[3] There is an important distinction between a departure order and a deportation order. If a person subject to a departure order leaves Canada voluntarily, she will be provided upon request a certificate confirming her departure. The effect of the certificate is that the departure is recognized as voluntary and has no implications for the applicant's right to return to Canada in the future. If the person does not leave Canada, or leaves Canada but does not obtain the certificate, the departure order is deemed to become a deportation order. As a result, the person may then be forcibly removed if she has remained in Canada. Whether she is removed or leaves voluntarily but does not obtain a certificate, the result is the same, the person cannot reenter Canada without a permit from the Minister (section 55 of the Act).
[4] In this case, the applicant is subject to a departure order which will become a deportation order on July 29, 2001 unless, before that date, she leaves Canada and obtains a certificate confirming her departure. She has brought an application for a stay of execution of the departure order saying that she ought not be put in the position of having the departure order against her converted into a deportation order while she awaits the outcome of her application for judicial review. Her motion has been met by the argument that the relief sought is beyond the jurisdiction of this Court to grant or that the application is premature.
[5] In support of the first proposition, the respondent relies upon a line of cases beginning with Rajan v. Canada, [1994] F.C.J. No. 1618, (1994), 86 F.T.R. 70, in which Rothstein J. (as he then was) had before him an application seeking the following relief:
"(a) a Stay of the Transformation of the Departure Order, issued in absentia against the applicant on 16 September 1994 at the Scarborough CIC, from metamorphosizing into a deemed deportation order on 27 October 1994, and,
(b) an order directing the respondent not to require the applicant to leave Canada until a reasonable time following (i) the final determination of the pending applications before this Honourable Court and (ii) the respondent's compliance with any orders ensuing therefrom."
Rothstein J. held that the order with respect to the metamorphosis of the order was simply beyond the Court's jurisdiction to grant because to do so would amount to rewriting the law enacted by Parliament. Specifically, the Immigration Act provides that a departure order becomes a deportation order after a certain interval. It is not within the Court's jurisdiction to change that interval by granting a stay of execution of the departure order. Rothstein J. declined to follow Llewellyn v. Canada, [1994] F.C.J. 384, (1994), 74 F.T.R. 221, a decision in which an order in the very terms sought before him was made by Jerome A.C.J.
[6] With respect to the stay of the departure order, Rothstein J. held that the motion was premature as no arrangements were in place to remove the applicant in that case from Canada. This reflected the fact that in the ordinary course of events, a person subject to a deportation order will be called in by departmental officials and given a Direction to Report, which is a document specifying the date and means of the person's removal from Canada. No such Direction had been given in Rajan, and none has been given here.
[7] Rajan was followed in Verich v. Canada, [1996] F.C.J. No. 400 (Noël J.) and Weir v. Canada, [1998] F.C.J. No. 494 (McKeown J.). Verich relied upon Rothstein J.'s argument that the application was premature, while Weir referred to prematurity and lack of jurisdiction.
[8] Rajan was not followed inCalderon v. Canada, [1995] F.C.J. No. 393, (1995), 92 F.T.R. 107, in which Simpson J. held that section 18.2 of the Federal Court Act, R.S.C. 1985, c. F-7, allowed a judge of the Trial Division to stay a departure order. That section provides as follows:
18.2 On an application for judicial review, the Trial Division may make such interim orders as it considers appropriate pending the final disposition of the application.
18.2 La Section de première instance peut, lorsqu'elle est saisie d'une demande de contrôle judiciaire, prendre les mesures provisoires qu'elle estime indiquées avant de rendre sa décision définitive.
Simpson J. reasoned that extraordinary circumstances could justify the granting of a stay under the jurisdiction conferred upon the Court in section 18.2 of the Act.
[9] The respondent relies upon Rajan and the cases which follow it, while the applicant relies upon Calderon.
[10] The issue, as framed by the different results in Rajan and Calderon, is whether the Court has jurisdiction to stay a departure order. In her analysis, Simpson J. relied upon paragraph 27(1)(a) of the Immigration Regulations, 1978 to support her conclusion that a departure order can be stayed:
27. (1) Subject to subsection (2), a certificate of departure referred to in section 32.02 of the Act that verifies that a person in respect of whom a departure order has been issued has left Canada may be issued not later than 30 days
27. (1) Sous réserve du paragraphe (2), l'attestation de départ prévue à l'article 32.02 de la Loi, qui constate le départ d'une personne visée par une mesure d'interdiction de séjour, doit être délivrée, selon le cas :
(a) where the departure order is stayed, after the day on which the stay is no longer in effect;
a) s'il y a sursis d'exécution de la mesure d'interdiction de séjour, dans les 30 jours qui suivent la date de cessation d'effet du sursis d'exécution;
The stay referred to in this provision could be the statutory stay created by subsection 49(1) of the Act as opposed to a judicially ordered stay.
[11] Nonetheless, taking paragraph 27(1)(a) of the Regulations at face value, it would appear to be the answer to the argument that any interference with a departure order is essentially an amendment of the Act. The effect of the paragraph is that the period during which an order is stayed does not count for purposes of the date at which a departure order is converted into a deportation order. The result in Rajan is still correct but perhaps not quite for the reason suggested. The portion of the prayer for relief staying "the transformation of the Departure Order ... metamorphosizing into a deemed deportation order..." ought to have been dismissed, not because it was beyond the jurisdiction of the Court but because the relief requested was provided by operation of law, if the applicant was otherwise entitled to a stay.
[12] The counter argument is that this analysis is needlessly punitive of those who choose to pursue their rights. Unless a person leaves within the statutory period, or is successful in obtaining a stay within the statutory period, their departure will be deemed to be a deportation. As a result, they will require a Ministerial permit to return to Canada. One ought not to be penalized for exercising their right to challenge an unfavourable administrative decision. Or so goes the argument.
[13] To put this argument in context, one must remember that the Act requires that where a person other than a permanent resident is found to be a member of an inadmissible class, the adjudicator is directed to issue a deportation order against them. See subsection 32(6) of the Act. However, where the adjudicator believes that the person should be allowed to return to Canada without a Ministerial permit and "that the person will leave Canada within the applicable period", then the adjudicator may issue a departure order. See subsection 32(7) of the Act. The issuance of a departure order therefore represents the exercise of a discretion in favour of the applicant based upon a belief that the applicant will leave the country within the period provided by the Act and Regulations. If applicants choose not to take the benefit of that favourable discretion by leaving the country as required, then they are treated as they would have been if it had been determined that they were not likely to leave Canada. This simply amounts to a determination that one cannot get the benefit of a departure order by agreeing to leave Canada and then seeking to retain the benefit of that order when one refuses to leave Canada. This is no injustice.
[14] This leaves the argument of prematurity which Rothstein J. framed as follows:
[para12] In respect of the application for an order directing the respondent not to require the applicant to leave Canada, I think this application is premature. If the applicant does not leave Canada of her own volition, as I earlier indicated, a stay application may be brought when the applicant is advised by the respondent as to when she must leave. This aspect of the stay application therefore must also be dismissed.
Rothstein J. was dealing with a departure order as opposed to a deportation order. Since the order did not contemplate action against the applicant by the Minister within the prescribed period, there was nothing which could be the subject of a stay of execution.[1] In other words, there is little logic in ordering the Minister to desist when the Minister does not propose to act.
[15] At the time of the bringing of this motion, the departure order had not changed into a deportation order. As in Rajan, the application for a stay was therefore premature.
[16] For those reasons the application for a stay is dismissed.
"J.D. Denis Pelletier"
Judge
[1] This is subject to the exception found at subparagraph 55(3)(a)(ii) which provides that the Minister may remove someone during the statutory period by providing them with a certificate of departure. That type of action could be the subject of a motion for a stay.