Date: 20040723
Docket: IMM-6217-04
Citation: 2004 FC 1032
OTTAWA, ONTARIO, THIS 23rd DAY OF JULY 2004
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
ZAHID SALEEM BUTT
RAHILA ANJUM BUTT
ALOOJ SALEEM BUTT
ADDIQA SALEEM BUTT
ALLISHA SALEEM BUTT
ZEESHAN SALEEM BUTT
ALEENA SALEEM BUTT
FATIMA SALEEM BUTT
Applicants
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion on behalf of the applicants to obtain a stay of execution of a removal order effective immediately.
[2] The applicants were informed of the negative decision of the Pre-Removal Risk Assessment Officer on April 15, 2004, yet, it is only on July 12, 2004, that they filed an application for leave and judicial review in respect of that decision, a delay of some three months. The applicants now seek a stay of the removal order that is currently valid until the merits of their application for leave and judicial review have been disposed of.
[3] By virtue of paragraph 72(2)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), the applicants had fifteen days from the date when the decision was communicated to them to serve and file their application. That being said, paragraph 72(2)(c) of the Act provides that a judge of the Court may, for "special reasons", extend this time period.
[4] As an extension of time is a condition precedent to the consideration of their leave application, the applicants must for the purpose of this stay motion, also establish that the request for an extension of time made in their leave application raises a serious issue. To do so, the applicants must put before me evidence from which I could conclude that there are special reasons upon which this Court could extend the time. In this respect, the case law requires, that the applicants establish that they had, throughout the period with respect to which the extension is being sought, the intention to challenge the decision in issue, but that they were prevented from doing so by reason of factors which were beyond their control (Semenduev v. Canada (Minister of Citizenship and Immigration) (2003), 234 F.T.R. 222 at para. 2 (F.C.T.D.), [1997] F.C.J. No. 70 at para. 2 (F.C.T.D.) (QL)). Manifestly, those conditions are not satisfied in the present case.
[5] In his affidavit sworn to on July 14, 2004, the applicant, Zahid Saleem Butt, simply expresses his agreement with the reasons for delay given in the application for leave and judicial review and points out that the applicants "were discouraged from doing anything about the PRRA refusal because we were told it is impossible to do anything to stay pour [sic] deportation."
[6] In his application for leave and judicial review, the applicant now blames his former immigration consultant (who accompanied him the day he was remitted in person on April 15, 2004 the negative PRRA decision) who discourages "the applicants from trying to do anything after the end of these procedures". On the other hand, the applicant would have "only learned about the possibility of asking for judicial review of this decision at demonstration, and activities of the Pakistan Action Committee over the month (sic) of May and June".
[7] I do not believe that the allegations made in the application for leave and judicial review, nor the general statement quoted from the applicant's affidavit, raise serious grounds upon which this Court could conclude that the applicants had the intention to avail themselves of the legal recourses available to them throughout the relevant period, but that they were prevented from doing so because of circumstances beyond their control. The evidence on this key aspect is unclear and convoluted and the position taken by the applicants is somewhat contradictory. Either the applicants chose to follow the advice provided to them by their former representative or they were ignorant of their right to make a judicial review application (which is difficult to believe here since they were represented by an immigration consultant and have in the past through their previous counsel made a judicial review application against the decision of the Immigration and Refugee Board who dismissed their refugee claim). In either cases, the alleged circumstances do not raise serious grounds to extend the delay for making a judicial review application.
[8] At the hearing of this motion, applicants' new counsel suggested that the reason for delay may have been that his clients were waiting for a decision to be rendered on their humanitarian and compassionate application (the latter was rejected on July 9, 2004 and is not the object of any application for leave and judicial review). Again, this is not a valid reason to justify the delay. Finally, the general situation in Pakistan does not in itself explain why the applicants have not acted promptly in the present case.
[9] As the applicants have failed to put before me evidence upon which I could conclude that their request for an extension raises a serious issue, it follows that I cannot consider their application for judicial review as raising a serious issue. Since the first requirement of the tripartite test (serious issue, irreparable harm and balance of convenience) set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), (1988), 6 Imm. L.R. (2nd) 123 (F.C.A.) is not met here, the present motion for stay must fail.
ORDER
THIS COURT HEREBY ORDERS that :
This motion for a stay of the removal order is dismissed.
"Luc Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6217-04
STYLE OF CAUSE: ZAHID SALEEM BUTT ET AL. v. THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: OTTAWA and MONTREAL BY CONFERENCE CALL
DATE OF HEARING: JULY 22, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: JULY 23, 2004
APPEARANCES:
STEWART ISTVANFFY FOR THE APPLICANTS
FRANÇOIS JOYAL FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY FOR THE APPLICANTS
MONTREAL, QC
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA