Date: 19991203
Docket: IMM-5306-99
Ottawa, Ontario, the 3rd day of December 1999
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
BETWEEN:
DAVINDER SINGH
Applicant
- and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER & REASONS FOR ORDER
[1] Mr. Davinder Singh has filed a notice of application for leave and for judicial review of the decision of an immigration officer denying his application for landing on humanitarian and compassionate grounds, and the decision to execute an existing deportation order. Before me is a notice of motion for:
(a) an interim order quashing the deportation order,
(b) an order staying the execution of the deportation order,
| (c) an interim order staying the decision to deny Mr. Singh's application for permanent residence in Canada, |
| (d) an order directing the Minister to grant Mr. Singh permanent residence in Canada within one week, and |
(e) costs of the motion.
[2] The background facts are difficult to discern from the material filed, but I have attempted to do so by referring to that material, as well to material in related proceedings initiated by Mr. Singh in Court File No. IMM-3481-99, which Mr. Singh refers to in this application, and Court File No. IMM-5430-99. Particulars of those applications are described below.1 First, however, I will set out what appear to be the relevant facts, including the procedural history relating to the deportation order that is now of concern to Mr. Singh.
[3] It appears that Mr. Singh came to Canada in 1995 from India, and that his wife and family are still in India. The "humanitarian and compassionate" decision that is the subject of this proceeding apparently was made on October 26, 1999, more than two years after Mr. Singh's application was submitted. Mr. Singh indicates that he was directed to report for a review of that decision, and was arrested at that time. I assume he was released, because he says also that he was directed to report to the "Airport Enforcement Center" on November 9, 1999. The purpose of that direction to report is not stated.
[4] It also appears that Mr. Singh has recently been convicted of sexual assault, but he has appealed. The appeal is still pending. Apparently he was granted bail pending the hearing of his appeal.
[5] Mr. Singh says that he had a valid employment authorization up to April 30, 1999 and has submitted an application for renewal. I assume that no renewal has been issued.
[6] From documents filed by Mr. Singh in Court File No. IMM-5430-99, it appears that the "deportation order" referred to in the present application originated with a conditional departure order dated October 24, 1995. It reads as follows:
| I hereby make a conditional departure order against you pursuant to subsection 28(1) of the Immigration Act because I am satisfied that you are a person described in: |
| paragraph 27(2)(a) and 19(2) [illegible] |
| paragraph 27(2)(a) of the Immigration Act by reason of paragraph 19(2)(d) of the Immigration Act, in that you are a person in Canada, other than a Canadian citizen or a permanent resident, who cannot or do [sic] not fulfil or comply with any of the conditions or requirements of this Act or the Regulations or any orders or directions lawfully made or given under this Act or Regulations. |
| Important |
| This order will be deemed to be a deportation order where no certificate of departure is issued within the applicable period specified in the Immigration Regulations. |
| Subject to section 56 of the Immigration Act, where a deportation order is made against a person, the person shall not, after the person is removed from or otherwise leaves canada, come into canada without the written consent of the Minister unless an appeal from the order has been allowed. |
[7] Subsection 19(2) of the Immigration Act says that an immigrant cannot be granted admission to Canada if he is a member of one of a number of classes as described in paragraphs 19(2)(a) to (d). The class referred to in paragraph 19(2)(d) is:
| (d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations. |
[8] Taking the conditional departure order at face value, I infer that the immigration officer who dealt with Mr. Singh's application for landing was of the opinion that, in the words of the Immigration Act, Mr. Singh is a "member of an inadmissible class". The factual basis for that conclusion is not stated on the conditional departure order.
[9] An immigration officer who concludes that a person is a member of an inadmissible class is required to make a report under subsection 27(2) of the Immigration Act. In this case, the report would have been made under paragraph 27(2)(a), the relevant portion of which reads as follows:
| 27(2). An immigration officer [...] shall [...] forward a written report to the Deputy Minister setting out the details of any information in hte possession of the immigration officer [...] that a person in Canada, other than a Canadian citizen or permanent resident, is a person who |
| (a) is a member of an inadmissible class [...]. |
[10] What happened next is not clear, but if the normal procedures were followed, the Deputy Minister would have forwarded the report to a senior immigration officer pursuant to paragraph 27(3)(a), the relevant portion of which reads as follows:
| 27(3) [...] the Deputy Minister, on receiving a report referred to in subsection (1) or (2), shall, if the Deputy Minister considers it appropriate to do so in the circumstances, forward a copy of that report to a senior immigration officer and may |
| (a) direct that a determination be made with respect to any or all of the allegations mentioned in the report where the person is a person described in |
| (i) paragraph 2(a) by reason of paragraph 19(2)(d) [...]. |
[11] The duty of a senior immigration officer who receives of a report under paragraph 27(3)(a) is set out in subsection 27(4), the relevant portions of which read as follows:
| 27(4) Subject to section 28, where a senior immigration officer receives a report and a direction made pursuant to paragraph (3)(a) in respect of a person [...], the senior immigration officer shall: |
| (a) allow the person to remain in Canada if it would not be contrary to this Act or the regulations to allow the person to remain in Canada, or |
| (b) make a departure order against the person if the senior immigration officer is satisfied that the person is a person described in |
| (i) paragraph 2(a) by reason of paragraph 19(2)(d) [...]. |
[12] In this case, there is a conditional departure order that refers to subsection 28(1), which reads as follows:
| 28(1) Where a senior immigration officer is of the opinion that a person who claims to be a Convention refugee is eligible to have their claim referred to the Refugee Division and is a person in respect of whom the senior immigration officer would, but for this section, have made an exclusion order [...] or a departure order [...], the senior immigration officer shall make a conditional departure order against the person. |
[13] From this I infer that Mr. Singh made a refugee claim, which caused section 28 to override subsection 27(4). Material filed by Mr. Singh in Court File IMM-3481-99 suggests that his refugee claim failed. How it failed, or when, or why, is not stated.
[14] Where a conditional departure order has been issued against a person who makes a refugee claim and the refugee claim fails, the conditional departure order becomes effective as a departure order. It is sometimes called a "deemed departure order". That is the result of the combined operation of the definition of "departure order" in subsection 2(1), and subsection 28(2). Those provisions read as follows:
| 2(1) In this Act: |
| "departure order" means a departure order issued under subsection 27(4) or 32(7) and includes a conditional departure order that has become effective under subsection 28(2) or 32.1(6). |
| 28(2) No conditional departure order made pursuant to subsection (1) against a person who claims to be a Convention refugee is effective unless and until |
| (a) the person withdraws the claim to be a Convention refugee; |
| (a.1) the person is determined by a senior immigration officer not to be eligible to make a claim to be a Convention refugee and has been so notified; |
| (b) the person is declared by the Refugee Division to have abandoned the claim to be a Convention refugee and has been so notified; |
| (c) the person is determined by the Refugee Division not to be a Convention refugee and has been so notified; or |
| (d) the person is determined pursuant to subsection 46.07(1.1) or (2) not to have a right under subsection 4(2.1) to remain in Canada and has been so notified. |
[15] Court File No. IMM-3481-99 was initiated on July 14, 1999, when Mr. Singh filed a notice of application for leave to challenge the departure order that apparently came into existence upon the failure of his refugee claim. He also sought an order staying its execution. That application for leave was dismissed on October 1, 1999. As is the practice in this Court, no reasons were given for the dismissal. However, I note that in response to the leave application, counsel for the Minister argued that the deportation order came into existence by operation of law, and so there was no decision of a federal official that could be reviewed. With respect to the application for a stay of the execution of the departure order, counsel for the Minister argued that there was no evidence that a decision had been made with respect to the execution of the deportation order, and so the application for a stay of its execution was premature.
[16] I note that in Court File No. IMM-3481-99, the departure order was referred to as a deportation order. I do not know whether, in the context of this case, anything turns on the distinction. I note also that in that case counsel for the Minster said that the "deportation order" had come into existence automatically under section 32.1 of the Immigration Act, rather than subsection 28(2). I am unable to determine why that section reference was used. It is possible that section 32.1 is the correct reference, and that my reconstruction of the facts, as stated above, is incorrect. I do not know whether anything turns on which section was applicable.
[17] Court File No. IMM-5430-99 was initiated on November 9, 1999 when Mr. Singh filed a notice of application for leave to challenge the decision to issue the conditional departure order. There is nothing in the file indicating that the leave application was served on the Minister. In that application Mr. Singh alleges among other things that the conditional departure order was not in fact made on October 24, 1995, that immigration officials have subsequently stated that there was no such order, and that he was notified of the existence of the order only on November 1, 1999. He also indicates that he has never been given reasons for the decision to issue the conditional departure order. By way of precaution, Mr. Singh has included in his application a request for an extension of time to commence his application for leave to challenge the order. That leave application has not yet been dealt with.
[18] I turn now to the present motions.
[19] The motion for an interim order quashing the deportation order (the departure order) is dismissed. The validity of that order is the subject of Court File No. IMM-5430-99 and will be dealt with in that proceeding in due course, if leave is granted.
[20] The motion for an order directing the Minister to grant Mr. Singh permanent residence in Canada must also be dismissed. There is an issue as to whether the Court has the jurisdiction to make such an order, which would be tantamount to exercising a power that Parliament has granted to the Minister or a Ministry official. However, even if the Court does have that jurisdiction, the material on file does not establish that all of the statutory conditions for a grant of permanent residence have been met.
[21] For the same reason, the motion for an an interim order staying the decision to deny Mr. Singh's application for permanent residence in Canada must also be dismissed.
[22] As to the question of whether Mr. Singh ought to be allowed to pursue his application for permanent residence from within Canada, that is the subject of the present application for leave to challenge the negative "humanitarian and compassionate" decision. The merits of that decision will be dealt with in this proceeding in due course, if leave is granted.
[23] Next I will deal with the motion for a stay of the execution of the deportation order (departure order). The execution of such an order may be stayed if the applicant establishes that there is a serious issue to be tried, that irreparable harm would result if the stay is not granted, and that the balance of convenience favours granting the stay.
[24] Normally, an application to stay the execution of a removal order is made only when a "removal officer", an official who deals with the actual removal of the person, issues a document directing the person to report for removal at a specific place and time. As the period of notice is often very short, a stay application made in response to such a direction must often be dealt with by conference call on an emergency basis, a situation that is less than ideal.
[25] Counsel for the Minister argues that in this case, the stay application is premature because there is no evidence that Mr. Singh has been directed to report for removal. Mr. Singh's notice of motion indicates that he was directed to report to the "Airport Enforcement Centre" on November 9, 1999. It is not clear whether that was a direction to report for removal or for some other purpose.
[26] There is no reason in principle why a person who is subject to a removal order should not be permitted to seek an interim injunction that would prohibit the removal officers from deciding to issue a direction to report. In substance, that is what Mr. Singh is asking the Court do so. The legal tests for the issuance of such an injunction would be substantially the same as for a stay of execution. However, I am not persuaded that, in the absence of a direction to report, Mr. Singh is at risk of irreparable harm. For that reason, the application for a stay of the deportation order (departure order ) is dismissed. Mr. Singh may bring a new motion if he is directed to report for removal.
[27] Finally, I will deal with the motion for costs. In this proceeding, costs cannot be awarded in the absence of "special reasons" (Immigration Rule 22). In most cases, the award of costs in a matter to which Immigration Rule 22 applies is justified by acts of the Minister's officials that put an applicant to unnecessary trouble and expense. It is premature in this case to make any such determination. The matter of costs should be deferred until a decision is made with respect to the disposition of Mr. Singh's application for leave and for judicial review.
Karen R. Sharlow
Judge
__________________1The application in this case also refers to other applications made by Mr. Singh under Court Files No. IMM-1283-99 and IMM-2487-99, but I have not reviewed those files.