Date: 20000329
Docket: IMM-4265-99
BETWEEN:
ALEXANDRE MIKHAILOV
LARISSA KLIMANOVA
Applicants
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON, J.:
[1] This is a motion for a stay of the execution of the Applicants" removal to the United States scheduled to take place on March 30, 2000. The Applicants submit that a statutory stay applies pursuant to clause 49(1)(c)(i)1 of the Immigration Act and therefore, that the Minister"s Removal Order is illegal since their application for leave to commence judicial review proceedings in the Federal Court, which was filed on October 20, 1999, has not yet been disposed of.
[2] The Respondent submits that the Removal Order is legal and valid pursuant to the following exception to a statutory stay set out at paragraph 49(1.1)(a) of the Act:
| Subsection (1) [of section 49"i.e., the stay of execution provision"] does not apply to |
| (a) a person residing or sojourning in the United States or St.Pierre and Miquelon who is the subject of a report made pursuant to paragraph 20(1)(a). |
In the Respondent"s submission, since the Applicants entered Canada from the United States, paragraph 49(1.1)(a) of the Act applies and consequently, there is no statutory stay of the execution of the removal order.
[3] The Applicants are Russian citizens who left their country on December 14, 1998 and arrived in New York on the same day. From New York, they went to Miami where they stayed seven days, and then returned to New York for three more days. From New York, they took a bus to Canada. They arrived in Canada on December 24, 1998 and claimed refugee status at the border.
[4] The issue is whether the Applicants fall within the exception to the statutory stay provisions set out at paragraph 49(1.1)(a) of the Act--namely, whether they sojourned in the United States. The Applicants submit that the ten days they spent in the United States do not constitute sojourning, but merely passing through the United States in order to come to Canada. They swear in their affidavits that their travel agent in Russia had suggested that they buy a seven-day tour package to Miami in order to secure an American visa and that they went to Miami only because they were afraid to leave the airport upon arriving in New York. They felt that if they did not use their prepaid tickets to Miami, the airport authorities would become suspicious, send them back to Russia or put them in jail.
[5] In effect, the Applicants characterize the 10-day period they spent in the United States as being "in transit" to Canada and that this time period does not amount to a sojourn by the terms of the Immigration Act . In this regard, they refer to a decision of this Court, El Jechi v. Minister of Employment and Immigration, (1988) 25 F.T.R. 196, where it was held that a one-night stay in the United States did not constitute sojourning, but was simply ""passing through" the United States in order to arrive at the Canadian border" ( p. 198). In arriving at his decision, Teitelbaum, J. suggested that an applicant"s intention is relevant in determining whether s/he did in fact sojourn in the United States: "I can only conclude from the uncontradicted facts given in evidence that it was the intention of the applicants to travel through part of the United States to reach the Canadian border where they would claim refugee status" (p.198, emphasis in original). Further, the fact that the applicants in El Jechi stayed in the United States only one night and took the first available flight the following day convinced the Court that "the applicants had no intention to sojourn in the United States nor any intention to remain in the United States more than was absolutely necessary, that is, one night" (198).
[6] With respect, I disagree that the concept of sojourning as expressed at paragraph 49(1.1)(a) of the Act contains an intentional component. The usual meaning of sojourn is a temporary stay in a place, regardless of an individual"s intention or particular reasons for that stay. The New Shorter Oxford English Dictionary2 defines a "sojourn" as follows: "a temporary stay at a place; a delay; a digression." The verb "to sojourn" is defined as "stay temporarily; reside for a time. Tarry, delay." Other dictionaries propose similar definitions. The Canadian Dictionary of the English Language3 defines the verb "sojourn" as "To reside temporarily" and the noun as "A temporary stay; a brief period of residence." Roget"s International Thesaurus4 provides the following synonyms for sojourn: "sojourning, sojournment, temporary stay; stay, stop; stopover, stopoff, stayover, layover."
[7] In my view, none of these definitions suggest that intention is a component of sojourning. At best, the most that can be said about one"s "intention" in sojourning is that it is necessarily temporary; that is, one intends to stay at a particular place temporarily. Accordingly, I cannot see how it can be argued that the Applicants did not sojourn in the United States because they only intended to stay temporarily. Even on their own argument, the United States was a "digression" or "stopoff" to Canada, and therefore, a sojourn by the terms expressed in the previous paragraph.
[8] The Applicants qualify their stay in the United States as being "in transit" to Canada. I cannot accept this argument. An individual cannot remain in transit for ten days. Taken to its logical conclusion, this argument would mean than an individual could stay in the United States for any given period of time and then claim that s/he was not sojourning because s/he never intended to stay but was simply passing through.
[9] In my view, the Applicants fall within the exception set out in paragraph 49(1.1)(a).5
[10] Alternatively, the Applicants argue that a stay should be granted on the basis of Toth v. MEI (1988), 86 N.R. 302 (F.C.A.); they submit that there is a serious question to be tried, that they would suffer irreparable harm if they had to go the United States, and that the balance of convenience favours them. In order to succeed in their argument, they must establish all of the elements of the Toth test.
[11] On the question of irreparable harm, the Applicants argue that they would face irreparable harm if they went to the United States because they would possibly be detained. In this regard, they cite a September 1998 report by Human Rights Watch entitled "United States--Locked Away: Immigration Detainees in Jails in the United States" and submit that "asylum seekers in the United States are generally detained (page 26 [of Report], first paragraph)" (paragraph 30 of Applicants" Written Representations of their Motion Record). Although the U.S. Immigration and Naturalization Act provides, as the Human Rights Watch Report points out, that all asylum seekers shall be detained pending a resolution of their claims, the Report also notes that people are detained "because they lack valid documents for entering or remaining in the United States; to protect public safety; to ensure their presence at ongoing immigration proceedings; or to prevent them from remaining in the United States after they have been ordered to return to their home countries" (p. 30 of Human Rights Watch Report, p. 39 of Applicants" Record). This seems to suggest that detention is limited to people seeking asylum in the United States, not in Canada. Further, I believe that none of the reasons for detention listed in the Report apply to the Applicants. Moreover, a subsequent study by Human Rights Watch6 suggests that detention is no longer routine and reports that case-by-case reviews have been implemented such that individuals would not be detained if they could show that they do not constitute a danger to society, that they have community ties, and would likely appear for future hearings.
[12] Even if the Applicants were detained, I am not convinced that this would constitute irreparable harm. Irreparable harm is not mere inconvenience or financial or emotional hardship.7 As MacKay, J. indicated in Boquoi v. MEI, [1993] F.C.J. No. 983 at paragraph 13:
| "Difficult as the circumstances may appear to the applicants if they are required to leave Canada, their circumstances do not constitute irreparable harm as that has come to be defined by jurisprudence. Mere economic dislocation or difficulties or inconvenience do not constitute irreparable harm in circumstances where, at the time, neither applicant has a right to remain in Canada." |
[13] Further, I find support for the view that the Applicants will not suffer irreparable harm if removed to the United States in the decision of Simpson, J. in Calderon v. MCI, (1995) 92 F.T.R. 107at 111, where the learned judge says:
| In Kerrutt v. Minister of Employment and Immigration (1992), 53 F.T.R. 93 (F.C.T.D.), Mr. Justice MacKay concluded that, for the purposes of a stay application, irreparable harm implies the serious likelihood of jeopardy to an applicant"s life or safety. This is a very strict test and I accept its premise that irreparable harm must be very grave and more than the unfortunate hardship associated with the breakup or relocation of the family. |
The evidence adduced by the Applicants does not demonstrate that there is a serious likelihood of jeopardy to their life or safety. In this regard, I also agree with this Court"s decision in Karthigesu v. M.C.I., [1998] F.C.J. No. 1038, which held that being detained in the United States, does not in itself, constitute irreparable harm.
[14] Since the Applicants have not established that they would suffer irreparable harm if they had to go to the United States, I need not deal with the serious issue test or the question of balance of convenience.
[15] This motion for a stay of the execution of the removal order against the Applicants to the United States is therefore dismissed.
Marc Nadon
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date : 20000329
Dossier : IMM-4265-99
BETWEEN:
ALEXANDRE MIKHAILOV
LARISSA KLIMANOVA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4265-99
| STYLE OF CAUSE: ALEXANDRE MIKHAILOV |
LARISSA KLIMANOVA
Applicants
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 27, 2000
| REASONS FOR ORDER OF THE HONOURABLE MR.JUSTICE NADON |
DATED: March 29, 2000
APPEARANCES:
Ms. Styliani Markaki for the Applicants
Ms. Annie Van der Meerschen for the Respondent
SOLICITORS OF RECORD:
Styliani Markaki
Montreal, Quebec for the Applicants
Morris Rosenberg
Deputy Attorney General for Canada
Ottawa, Ontario for the Respondent
__________________
1 Clause 49(1)(c)(i) stipulates:
Subject to subsection (1.1), the execution of a removal order made against a person is stayed...subject to paragraphs (d) and (f), in any case where a person has been determined by the Refugee Division not to be a Convention refugee or a person"s appeal from the order has been dismissed by the Appeal Division,...where the person against whom the order was made files an application for leave to commence a judicial review proceeding under the Federal Court Act or signifies in writing to an immigration officer an intention to file such an application, until the application for leave has been heard and disposed of or the time normally limited for filing an application for leave has elapsed and, where leave is granted, until the judicial review proceeding has been heard and disposed of.
2 Edited by Lesley Brown, volume 2, Oxford: Clarendon Press, 1993, p. 2936.
3 Toronto: ITP Nelson Publishing Company, 1997, p. 1299.
4 Edited by Robert L. Chapman, Fifth edition, Harper Collins, 1992, p. 167.
5 I have just been made aware of Lemieux, J."s decision in Aguilar v. MCI (file IMM-4491-99) dated March 29, 2000 which supports my conclusion herein. At pages 13-14 (paragraphs 29-30), Lemieux, J. states his view that physical presence and "les circonstances se rattachant à cette présence," and not intention, are the relevant indicia in determining whether a person has sojourned in the United States.
6 Human Rights Watch, "United States," http://www.hrw.org/wr2k/Us.htm
7 Please see also: Khan v. MEI, [1992] F.C.J. No. 1031, Kerrutt v. MEI, (1992) 53 F.T.R. 93.