Date: 20020724
Docket: IMM-2106-02
Neutral citation: 2002 FCT 816
BETWEEN:
ELIYA CHOUBAEV
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application for a stay of the removal order came before me at Toronto, Ontario, on May 13, 2002. The applicant was to be removed to Russia on May 15, 2002. At the end of the hearing, I denied the motion with reasons to follow. These are my reasons.
[2] The applicant is a 26 year old citizen of Russia who arrived in Canada on May 22, 1990 as a visitor. He has remained here ever since.
[3] He arrived accompanying his father, brother and three siblings as well as two grandmothers.
[4] His parents returned to Russia and both mother and father re-entered some time later but on different dates.
[5] The parents as well as three siblings filed a claim for refugee status and in July of 1993 they were determined to be Convention refugees; others in March of 1994.
[6] The father then submitted an application for landing for himself and other members of the family in 1996. Landing was granted except to this applicant since he had been convicted of two offences under the Criminal Code of Canada, to wit : break and enter as well as break, enter and theft.
[7] As a result of the conviction, a section 27 report was made and he was found to be a person described in paragraphs 27(2)(a) and 19(1)(c) of the Immigration Act. A conditional deportation order issued July 18, 1997.
[8] In August of 1997, he was again reported pursuant to section 27 of the Immigration Act because of further criminal convictions in June of 1997:
a) 3 charges of break, enter and theft
b) possession of a prohibited weapon
c) possession of an unregistered restricted weapon
d) possession of property obtained by crime exceeding $5,000.00.
[9] In August of 1997, a warrant for arrest for the applicant's removal was issued while he was still in detention.
[10] In October of 1997, upon his release, the applicant was placed on terms and conditions pending determination of his claim for refugee protection, which was denied in November of 1998. The conditional deportation order then became effective December 14, 1998.
[11] In January 1999, the applicant sought leave to judicial review the decision of the Convention Refugee Determination Division. His application was dismissed in March of 1999 for failure to file a Motion Record.
[12] In September 2000, the applicant made an inland application for permanent residence in Canada based on humanitarian and compassionate grounds (the "H & C application"). The respondent acknowledged receipt of that application in December of 2000 but said that it would be transferred to the centre in Scarborough for processing. On January 3, 2001, the applicant was advised that he could expect a decision within 12 months but no answer had yet been given by the time of this hearing. The applicant requested that his removal be deferred until his H & C application had been decided; however, a deferral was only granted until April 30, 2002.
[13] Notice of removal arrangements were directed to the applicant by letter dated April 30, 2002, scheduling his removal from Canada on May 15, 2002. It is this Notice to Report from which the applicant now launches his application for judicial review.
[14] In order for a stay to be granted, the applicant has the burden of showing that there is a serious issue to be tried, that he would suffer irreparable harm if returned to his country of origin, and that the balance of convenience is in his favour. As is already clear, I am of the view that the applicant did not meet his burden in this case.
[15] First, the decision under review is the Removal Officer's Notice to Report - it is not the officer's refusal to defer beyond April 30, 2002 or the H & C decision itself (which was not in fact rendered, and which the applicant does not seek to compel in his underlying application). Therefore, to the extent that many of the applicant's arguments raised issues concerning his H & C application, they are not relevant to this motion for a stay - the relevant issues here relate to the Notice of Application filed May 8, 2002. The applicant has alleged few (if any) errors committed by the Removal Officer in issuing the Notice to Report and has accordingly failed to persuade me that there are serious issues to be tried.
[16] Moreover, as stated by the respondent, the applicant is inadmissible in Canada as a person described by paragraph 19(1)(c) of the Immigration Act.
[17] In my view, the balance of convenience also favours the respondent in this situation. In light of the applicant's criminal history and his inadmissibility in Canada, the respondent's interest in fulfilling its mandate pursuant to section 48 of the Immigration Act outweighs that of the applicant.
[18] For all of these reasons, I denied the applicant's motion for a stay.
JUDGE
OTTAWA, Ontario
July 24, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2106-02
STYLE OF CAUSE: Eliya Choubaev v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Monday, May 13, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE ROULEAU
APPEARANCES:
Mr. Daniel Fine FOR APPLICANT
Ms. Pamela Larmondin FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Daniel Fine FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada