Date: 20011109
Docket: IMM-4963-01
Neutral citation: 2001 FCT 1235
BETWEEN:
ROMAN VAKIRIAK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Rendered orally on November 5, 2001, as edited)
[1] The facts in this case appear very similar to those in Araujo v. Minister of Citizenship and Immigration, IMM-3660-97, where Madam Justice McGillis stated:
The Court routinely hears, on an urgent basis, applications to stay the execution of deportation orders. However, in the present case, the applicant failed to institute his proceedings in a timely manner, and he chose to disobey a valid deportation order. As a result, he is in Canada unlawfully and a warrant is outstanding for his arrest. In the circumstances, the applicant cannot request the Court to exercise its equitable jurisdiction to stay the order that he has chosen to disobey.
[2] In the present case, the only difference is that he was arrested for a provincial infraction and the immigration authorities were notified. Furthermore, on the merits, the motion is denied since the applicant has failed to demonstrate that his judicial review application raises a serious issue to be tried. The applicant has also failed to satisfy me that he will suffer irreparable harm if removed to the Ukraine.
[3] The applicant bases his H & C application on the harm that allegedly will be done to him for evading military service for reasons of moral conviction. The Board, at his refugee hearing, stated at pages 2 and 3:
When asked about the reasons for his moral objection, the claimant stated that it was a matter of his personality and that he is naturally against fighting. In exception of the claimant's above assertion, however, there is no other evidence in the claimant's background or activities to substantiate that he is a pacifist objector. Further, it appears that the claimant did not engage in any previous manifestation of such alleged moral conviction.
[4] The Board then concluded at pages 3 and 4:
For the above reason and after a careful review of all the evidence, the panel members are not satisfied that the claimant has established, on a balance of probabilities, that he has evaded military service for reasons of conscientious objection. As indicated above, the conscription law of the Ukraine is a law of general application, and military service could not, in itself, be a ground for a claim to a well-found fear of persecution.
The evidence reveals that the special law in Ukraine provides for alternative service to citizens on the religious ground. The claimant's failure to discuss his reservations in serving the military with his priest or the army officials for exploring the possibility of alternative service further reinforces the panel's finding that the claimant's motivation to leave the country is not conscientious objection to military service.
[5] The applicant had a PDRCC review and the PCDO referred to the Board's decision and also stated the following in connection with the applicant's military call up:
· The web site of the Ukraine Embassy to the USA shows that the Ukraine army, in an attempt to modernize and economize, will not use conscription. The web site of NATO for March of this year shows that the suspension of conscription remains in force and is likely to be policy for years while the military of that state modernizes, and that Ukraine is following a strong trend in NATO.
· The UN Commission on Human Rights document on military service also makes clear what the panel indicated that it had knowledge of, namely that alternative service is available in Ukraine should the applicant actually be required to serve, despite the present policy on conscription.
[6] Furthermore, it has been held by this Court consistently that there is no obligation upon the respondent to consider an H & C application prior to removing a person unlawfully in Canada and that such an application in and of itself does not operate to bar his or her removal from Canada. See: Mortimore v. Minister of Citizenship and Immigration, IMM-3143-00.
[7] In the case before me the applicant only filed an H & C application in June 2001. His application will continue to be processed after he returns to the Ukraine. Moreover, it is plain and obvious that the applicant's decision to get married on October 27, 2001 is in response to the respondent's intention to remove him. To adopt the words of Rouleau J. in Banwait v. M.C.I., IMM-1259-98:
I see no transgressions in the conduct of the Minister; no expectations granted the applicant; if he chose to marry while still not having his situation favourably determined by Canadian authorities, it is at his peril, not that of the Minister who has a duty to uphold the laws of Canada.
[8] The motion for a stay is denied.
"W. P. McKeown"
JUDGE
TORONTO, ONTARIO
November 9, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4963-01
STYLE OF CAUSE: ROMAN VAKIRIAK
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, NOVEMBER 5, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MCKEOWN J.
DATED: FRIDAY, NOVEMBER 9, 2001
RENDERED ORALLY ON NOVEMBER 5, 2001
APPEARANCES: Mr. Steven Beiles
For the Applicant
Mr. Stephen Gold
For the Respondent
SOLICITORS OF RECORD: Macdonald, Sager, Manis
Barristers & Solicitors
800-150 York St.
Toronto, Ontario
M5H 3S5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011109
Docket: IMM-4963-01
Between:
ROMAN VAKIRIAK
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER