CITIZENSHIP AND IMMIGRATION |
Exclusion and Removal |
Thangeswaralingam v. Canada (Minister of Citizenship and Immigration)
IMM-2421-02
2002 FCT 652, MacKay J.
10/6/02
5 pp.
Motion for interim stay of removal until either or both of applications for leave to commence judicial review proceeding decided--Applicant, Tamil from Sri Lanka, arriving in United States on July 8, 2000--Immediately detained because not having proper documentation--Released on July 26, 2000, making way to Canada by July 28, 2000--CRDD dismissing refugee claim--Application for leave and judicial review of that decision still pending--Applicant receiving removal order on May 14, 2002 to be executed May 28--Protesting should have been granted statutory stay pending outcome of application for leave, judicial review--Immigration Act, s. 49(1)(c)(i) providing execution of removal order stayed until application for leave to commence judicial review proceeding heard, disposed of--Citizenship and Immigration Canada (CIC) relying on s. 49(1.1)(a), exempting application of s. 49(1) to person sojourning in United States--Applicant arguing not sojourning in United States, but CIC confirming decision to remove applicant--Applicant applied for leave and judicial review of that decision as well--At hearing parties making submissions about correct interpretation of "sojourned" in s. 49(1.1)(a)--Cases differing as to interpre-tation of s. 49(1.1)(a): Aguilar v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 20 (T.D.) and Mikhailov v. Canada (Minister of Citizenship and Immigration) (2000), 191 F.T.R. 1 (F.C.T.D)--Second application for leave, judicial review raising this very issue-- Serious issue that should not be dealt with in stay application--In judicial review proceedings Court would be concerned with question of law, on which would owe little or no deference to Minister--If Minister's interpretation of s. 49(1.1)(a) found to be in error, so that statutory stay should be in effect, loss of opportunity to have benefit of stay, pending determination of application for leave, judicial review constituting irreparable harm to applicant--Balance of convenience favouring granting of stay--Motion allowed-- Immigration Act, R.S.C., 1985, c. I-2, s. 49(1)(c)(i) (as am. by S.C. 1992, c. 49, s. 41), (1.1)(a) (as am. idem).