Date: 20031201
Docket: IMM-7541-03
Citation: 2003 FC 1404
Toronto, Ontario, December 1st, 2003
Present: The Honourable Madam Justice Snider
BETWEEN:
SELVARAJA KATHIRVELU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant seeks, for the second time, a stay of his removal from Canada. His first stay application was heard by Justice von Finckenstein on October 1, 2003 and dismissed. The underlying decision at that time was the enforcement officer's order to report for removal. An application for leave and judicial review has recently been filed with this court in respect of that decision.
[2] Thus, as of October 1, 2003, the Applicant had no further recourse; he was legally required to report on October 3, 2003. He did not report. A Warrant for Arrest has been issued. Immigration officials have been unable to locate the Applicant. No new removal arrangements have been made and none are pending since the whereabouts of the Applicant are unknown.
[3] However, it appears that the Applicant has been in contact with counsel. He has obtained a further medical opinion, upon which he now wishes to rely for this second stay application. In passing, I note that there was no compelling reason why this report could not have been obtained earlier. I am left with the conclusion that it was obtained for the sole purpose of addressing a deficiency identified by Justice von Finckenstein in the reasons for his Order.
[4] In all aspects, this motion for a stay is an abuse of process. Since the date for the Applicant's removal has passed, the underlying leave application is moot. In the absence of a removal order, any request for a stay is premature.
[5] Nevertheless, even if not moot, this motion should fail. Firstly, I refer to the decision of this Court in Antonucci v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1320, where Justice Noel, in dismissing a second stay application in similar circumstances, stated as follows:
...even before considering the possibility of exercising my discretion in the applicant's favour I must be able to find that she did not deliberately nullify the effect of Madame Justice McGillis's decision by failing to attend for her departure on September 25 as she was supposed to do. The evidence shows that the applicant was aware of her departure date and that the stay she sought was denied on September 24, 1996.
The facts, in this case, are indistinguishable from those dealt with by Justice Noel.
[6] Further, even if I were to proceed to the merits of a stay application on the basis of Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), I would deny this motion. If ever there was a situation where the balance of convenience favours the Respondent, this is it. To allow failed claimants to ignore valid removal orders and to use that time to try to assemble new evidence is not acceptable. The system in place under the Immigration and Refugee Protection Act, S.C. 2001, s.27 ensures that each person coming to Canada is given multiple opportunities to regularize his status. It also demands fairness of every decision maker in the process, subject to the oversight of this Court. Finally, it requires that the persons affected and their counsel respect the law and the finality of decisions once alternatives have been exhausted or not accessed. The Applicant's actions in this case are inexcusable and cannot be condoned. Thus this motion would fail to meet the conjunctive tri-partite test set out in Toth, supra.
[7] For these reasons, this motion will be denied.
ORDER
THIS COURT ORDERS that the motion is denied.
"Judith A. Snider"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7541-03
STYLE OF CAUSE: SELVARAJA KATHIRVELU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 1, 2003
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: DECEMBER 1, 2003
APPEARANCES:
Mr. Raoul Boulakia
FOR APPLICANT
Ms A. Leena Jaakkimainen
FOR RESPONDENT
SOLICITORS OF RECORD:
Raoul Boulakia
Barrister and Solicitor
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20031201
Docket: IMM-7541-03
BETWEEN:
SELVARAJA KATHIRVELU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER