[2000] 4 F.C. 20
IMM-4491-99
Maria Eva Rivera Aguilar, Carlos Ernesto Hernandez Rivera and Reynaldo Joselito Hernandez Rivera (Applicants)
v.
Minister of Citizenship and Immigration (Respondent)
Indexed as: Aguilar v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Lemieux J.—Montréal, December 20, 1999; Ottawa, March 29, 2000.
Citizenship and Immigration — Exclusion and removal — Statutory stay of removal order — Inapplicable to those residing, sojourning in U.S.A. — Applicants, mother and two sons, natives of El Salvador — Arrived in Canada separately from U.S.A. — Claimed refugee status on ground of well-founded fear of persecution — Claim denied — Conditional departure orders made by immigration officer — Applicants seeking stay of execution of removal orders under Immigration Act, s. 49(1) — Whether applicants did “sojourn” in U.S.A. within meaning of Act, s. 49(1.1) — Interpretation of word “sojourn” required — Word to be defined according to ordinary dictionary meaning — Meaning of “sojourning” based on physical presence in American territory — Female applicant granted automatic stay of removal order as merely transited U.S.A. without sojourning — No evidence male applicants did not sojourn in U.S.A. — Judicial stay not applicable to them.
This was an application, under subsection 49(1) of the Immigration Act, for a stay of execution of removal orders made against the applicants. The latter, a mother and her two sons, natives of El Salvador, arrived separately in Canada from the United States in November and December 1998. They claimed refugee status on the ground of a well-founded fear of persecution. Since the refugee claim made by each of the applicants was eligible to be determined, a conditional departure order was made against them which would become effective in the event that the Refugee Division rejected their claims. The Refugee Division refusing to grant the applicants refugee status, the conditional departure order (removal order) became effective against each of them. The applicants asked the Court to stay the execution of the removal order under subsection 49(1) of the Act. The respondent replied that, pursuant to subsection 49(1.1) of the Act, the automatic stay that operates where an application for leave and for judicial review is filed does not apply where a claimant has resided or sojourned in the United States before arriving in Canada. The issue herein was whether the applicants “sojourned” in the United States before crossing the Canadian border and claiming refugee status in Canada.
Held, the application should be allowed in part.
It is essential to examine the word “sojourn” in order to dispose of the case. There have been few decisions of the Federal Court dealing with the interpretation of the words “sojourn” and “reside” as they are used in subsection 49(1.1) of the Act. The manner in which the Court must interpret that provision is governed by the application of the principles of statutory construction. The most important principle of statutory interpretation, is that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. The most appropriate definition of the word “sojourn” is that which corresponds to its ordinary dictionary meaning. Parliament’s intention is expressed not only in the ordinary meaning of the words used, but also in the manner in which those words are understood in their context. The meaning of “sojourning” must be based on the physical presence of the applicants in American territory and according to the circumstances surrounding that presence. “Sojourning” means remaining in a precise place for a period of time; by determining the length of the period of time in question, it is possible to define the concept of “sojourning” more concretely. Where a refugee claimant decides to pass through the United States, he is engaged in a spectrum of movements which comprises three major stages: he could be physically established in a specific place for a long period, that is “residing”; or he could be physically established in a specific place for a time and then leave, that is “sojourning”; or he could be physically established, in a temporary manner, for a short period of time or for reasons beyond his control, that is “transiting”.
The female applicant, who was present on American territory for only one day, merely transited and did not sojourn within the meaning of subsection 49(1.1) of the Act. Therefore, she should be granted the automatic stay provided for in subsection 49(1) of the Act. The situation of the male applicants was not as clear, given that they were in American territory for two weeks before arriving in Canada. The evidence produced by the male applicants was insufficient. They should have described and explained their travel through the United States. The burden of proof rested on the male applicants, who alone were capable of recounting the stages in their travels. They have not met the burden of proof in that they have not established a prima facie case or that they would suffer irreparable harm were refugee status denied. Judicial stay did not apply to their case. Having regard to the absence of evidence, their motion for a stay of execution had to be dismissed.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.2 (as enacted by S.C. 1990, c. 8, s. 5).
Immigration Act, R.S.C., 1985, c. I-2, ss. 9 (as am. by S.C. 1992, c. 49, s. 4), 20(1)(a), 28 (as am. idem, s. 17; 1995, c. 15, s. 6), 48, 49(1) (as am. by S.C. 1992, c. 49, s. 41), (1.1) (as enacted idem).
CASES JUDICIALLY CONSIDERED
APPLIED:
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1; El Jechi v. Minister of Employment and Immigration (1988), 25, F.T.R. 196; 8 Imm. L.R. (2d) 64 (F.C.T.D.).
DISTINGUISHED:
Albuja v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (T.D.).
CONSIDERED:
Papadogiorgakis (In re) and in re Citizenship Act, [1978] 2 F.C. 208 (T.D.).
REFERRED TO:
Toth v. Canada (Minister of Employment and Immigration), [1989] 1 F.C. 535 (1988), 6 Imm. L.R. (2d) 123; 86 N.R. 302 (C.A.); RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; (1994), 111 D.L.R. (4th) 385; 164 N.R. 1; Blaha v. Canada (Minister of Citizenship & Immigration), [1971] F.C. 521 (T.D.).
AUTHORS CITED
New Shorter Oxford English Dictionary on Historical Principles. Oxford: Clarendon Press, 1993. “sojourn”.
Petit Larousse illustré. Paris: Larousse, 1995, “demeurer”, “passer”, “rester”, “transit”, “transiter”, “traverser”.
Petit Robert 1: dictionnaire alphabétique et analogique de la langue française. Montréal: Les Dictionnnaires Robert-Canada S.C.C., 1989, “demeurer”, “passer”, “rester”, “séjour”, “séjourner”, “transit”, “transiter”, “traverser”.
APPLICATION, under subsection 49(1) of the Immigration Act, for a stay of execution of removal orders made against applicants. Application allowed in part.
APPEARANCES:
Jorge Colasurdo for applicants.
François Joyal for respondent.
SOLICITORS OF RECORD:
Jorge Colasurdo, Montréal, for applicants.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for judgment rendered by
Lemieux J.:
INTRODUCTION
[1] The central issue raised in this motion is whether the applicants “sojourned” in the United States before crossing the Canadian border and claiming refugee status in Canada. If I were to conclude that the applicants did in fact “sojourn” in the United States, they could not be granted an automatic stay of a removal order as provided in subsection 49(1) [as am. by S.C. 1992, c. 49, s. 41] of the Immigration Act, R.S.C., 1985, c. I-2 (the Act), because of the exclusion provided in subsection 49(1.1) [as enacted idem] of the Act.
[2] The applicants, a mother and her two sons, are natives of El Salvador; they arrived in Canada separately from the United States in November and December 1998 and claimed refugee status on the ground that they have a well-founded fear of persecution if they were to return to their country.
[3] At the border, an immigration officer made a report to a senior immigration officer regarding each of the applicants under paragraph 20(1)(a) of the Act, since none of them had a visa as required by section 9 [as am. idem, s. 4]. The senior immigration officer concluded that the refugee claim made by each of the applicants was eligible to be determined, and so made a conditional departure order against them which would become effective in the event that the Refugee Division rejected their refugee claims, as set out in section 28 [as am. idem, s. 17; 1995, c. 15, s. 6] of the Act. The conditional departure order against Ms. Aguilar is dated December 28, 1998, and the orders against each of her sons are dated November 30, 1998.
[4] On August 6, 1999, the Refugee Division refused to grant the applicants refugee status. Accordingly, as set out in subsection 28(2) of the Act, the conditional departure order became effective against each of the applicants (removal order).
[5] Upon receiving that decision, the applicants filed an application for leave and for judicial review. However, the applicants received a letter dated November 24, 1999, requiring that they leave Canada and go to the United States by December 21, 1999. The applicants are asking this Court to stay the execution of the removal order.
[6] At the hearing of this motion, I granted an interim stay until the decision of the Court was delivered.
FACTS
[7] The female applicant, Maria Eva Rivera Aguilar, obtained a tourist visa for the United States on or about October 1, 1998. After obtaining that visa, the female applicant left El Salvador by airplane on December 26, 1998, making a brief stopover in the United States, and arrived in Canada on December 28, 1998, the date on which she claimed refugee status in Canada.
[8] Her sons, the other applicants, left El Salvador on November 1, 1998, crossed the Mexican border on November 17, 1998, and crossed through the United States without status. They arrived in Canada by bus on November 30, 1998, the date on which they claimed refugee status in Canada.
[9] Essentially, the reason behind executing the departure order lies in the fact that pursuant to subsection 49(1.1) of the Act, the automatic stay that operates where an application for leave and for judicial review is filed (including all subsequent steps, which covers the appeals provided by the Act) does not apply in a case where a claimant has resided or sojourned in the United States before arriving in Canada. The respondent contends that the applicants sojourned in the United States before claiming refugee status in Canada.
APPLICABLE PROVISION
[10] Section 49 of the Act reads as follows:
49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed
(a) in any case where the person against whom the order was made has a right of appeal to the Appeal Division, at the request of that person until the time provided for the filing of the appeal has elapsed;
(b) in any case where an appeal from the order has been filed with the Appeal Division, until the appeal has been heard and disposed of or has been declared by the Appeal Division to be abandoned;
(c) subject to paragraphs (d) and (f), in any case where a person has been determined by the Refugee Division not to be a Convention refugee or a person’s appeal from the order has been dismissed by the Appeal Division,
(i) where the person against whom the order was made files an application for leave to commence a judicial review proceeding under the Federal Court Act or signifies in writing to an immigration officer an intention to file such an application, until the application for leave has been heard and disposed of or the time normally limited for filing an application for leave has elapsed and, where leave is granted, until the judicial review proceeding has been heard and disposed of,
(ii) in any case where the person has filed with the Federal Court of Appeal an appeal of a decision of the Federal Court--Trial Division where a judge of that Court has at the time of rendering judgment certified in accordance with subsection 83(1) that a serious question of general importance was involved and has stated that question, or signifies in writing to an immigration officer an intention to file a notice of appeal to commence such an appeal, until the appeal has been heard and disposed of or the time normally limited for filing the appeal has elapsed, as the case may be, and
(iii) in any case where the person files an application for leave to appeal or signifies in writing to an immigration officer an intention to file an application for leave to appeal a decision of the Federal Court of Appeal on an appeal referred to in subparagraph (ii) to the Supreme Court of Canada, until the application for leave to appeal has been heard and disposed of or the time normally limited for filing an application for leave to appeal has elapsed and, where leave to appeal is granted, until the appeal has been heard and disposed of or the time normally limited for filing the appeal has elapsed, as the case may be;
(d) in any case where a person who has claimed to be a Convention refugee or whose appeal has been dismissed by the Appeal Division has been determined by an adjudicator to be a person described in paragraph 19(1)(c), (c.1), (c.2), (d), (e), (f), (g), (j), (k) or (l), 19(2)(a), (a.1) or (b), 27(1)(a), (a.1), (a.2), (a.3), (d), (g) or (h) or 27(2)(d), until seven days have elapsed from the time the order was made or became effective, whichever is later, unless the person agrees that the removal order may be executed before the expiration of that seven day period;
(e) in any case where a person has been determined to be not eligible to have a claim to be a Convention refugee referred to the Refugee Division, until seven days have elapsed from the time the order was made or became effective, whichever is later, unless the person agrees that the removal order may be executed before the expiration of that seven day period; and
(f) in any case where a person has been determined pursuant to subsection 69.1(9.1) not to have a credible basis for the claim to be a Convention refugee, until seven days have elapsed from the time the order became effective, unless the person agrees that the removal order may be executed before the expiration of that seven day period.
(1.1) Subsection (1) does not apply to
(a) a person residing or sojourning in the United States or St. Pierre and Miquelon who is the subject of a report made pursuant to paragraph 20(1)(a); or
(b) a person who has been determined to be not eligible to make a claim to be a Convention refugee by reason of paragraph 46.01(1)(b) and who is to be removed to a country with which the Minister has entered into an agreement under section 108.1 for sharing the responsibility for examining refugee claims.
(2) [Repealed, 1999, c. 31, s. 133.] [Emphasis mine.]
ARGUMENTS OF THE PARTIES
The applicants
[11] The applicants contend that the immigration officer exceeded his powers under the Act by executing the removal order. The submission is that the applicants never intended to sojourn in the United States, and that their sole objective was to cross through American territory in order to claim refugee status in Canada. The applicants further submit that their lack of status in the United States establishes the veracity of their aforementioned stated objective.
[12] The applicants also point out to this Court that an application for leave and for judicial review is currently pending before it, and that no decision has been made to date. Having regard to the fact that this was not a case in which there was no credible basis, which would have resulted in the application of an exception to the automatic stay under paragraph 49(1)(f) of the Act, the applicants submit that they would suffer irreparable harm if they were to leave Canada before their application for leave and for judicial review were heard. The submission is that a decision to that effect would violate their rights of access to judicial review, and that the American authorities could require that they be deported to El Salvador.
The respondent
[13] It is submitted that the applicants did in fact sojourn in the United States before crossing the Canadian border, according to the ordinary meaning of the expression “sojourn”, or “séjourner” in French. The respondent contends that each and every one of the applicants stayed in at least one place during their passage through the United States, even though their stop may have been only temporary.
[14] Moreover, the respondent submits that the applicants’ intention is of no relevance to the application of this paragraph. In other words, the respondent submits that the applicants do not meet the requirements for being granted an automatic stay under subparagraph 49(1)(c)(i) of the Act.
[15] The respondent contends that the applicants have not established that they meet the tests set out in the case law, as developed by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration), [1989] 1 F.C. 535 It was argued that no prima facie case has been brought to the attention of the Court, that the applicants have not established that there would be irreparable harm if they were sent back to the United States, and that the balance of convenience operates in favour of the respondent, since under section 48 of the Act the respondent has a duty to execute removal orders as soon as reasonably practicable.
[16] As well, in this case, it appears that no application for leave has been allowed, and in these circumstances section 18.2 of the Federal Court Act, R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5], which authorizes this Court to make interim orders, cannot apply.
THE ISSUE
[17] After an analysis of the record, it appears that this case may be summarized in a single question:
Did the immigration officer commit a reviewable error in applying subsection 49(1.1) of the Immigration Act?
[18] Nonetheless, in the event that this question were to be answered in the negative, this Court would then have to determine whether there are grounds for granting a judicial stay, as those grounds were established by the Federal Court of Appeal in Toth, supra, and reiterated in RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, by the Supreme Court of Canada.
[19] As has been noted, the answer to the question here calls for an interpretation of the word “sojourn” within the meaning of subsection 49(1.1) of the Act. The respondent does acknowledge that the applicants did not reside in the United States.
ANALYSIS
Interpretation of subsection 49(1.1) of the Act
[20] There have been very few decisions by this Court dealing with the interpretation of the expressions “sojourn” and “reside” as they are used in subsection 49(1.1) of the Act. However, I recently had occasion to consider the application of the exception set out in subsection 49(1.1) of the Act, in Albuja v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (T.D.).
[21] As I said in Albuja, supra, the manner in which this Court must interpret that subsection is governed by the application of the principles of statutory construction, as they were recently reiterated by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, by Mr. Justice Iacobucci, at pages 40-41:
Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.
I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”.
[22] This case differs from Albuja, supra; in Albuja, it was not necessary to look any further into the meaning of the expressions “sojourn” and “reside”. In this case, it is essential that we examine the expression “sojourn” in order to dispose of the case. The objective remains the same--we must determine the intention of Parliament.
(i) Ordinary meaning of “sojourn”
[23] There has been only one judgment of the Federal Court, Trial Division, that has interpreted the meaning of the expression “sojourn” under the Act. In El Jechi v. Minister of Employment and Immigration (1988), 25 F.T.R. 196, my colleague Mr. Justice Teitelbaum held [at page 198]:
Unless some other manner is given as to how a word in a statute should be interpreted, I am satisfied that it should be given its ordinary every day meaning provided the said definition is consistent with the purpose of the section in which it appears.
…
The applicants were admitted into the United States with the right “to sojourn” therein for up to six months. This does not mean that by remaining one night in the United States they were “sojourning” there.
I believe that the best definition of the word sojourning is that found in Black’s Law Dictionary, (5th Ed.):
“Sojourning. This term means something more than “travelling”, and applies to a temporary, as contradistinguished from a permanent, residence.”
…
Sojourning is more than merely “passing through”. The applicants were “passing through” the United States in order to arrive at the Canadian border. [Emphasis mine.]
[24] I agree with Teitelbaum J. that the most appropriate definition of the expression “sojourn” is the one that corresponds to its ordinary dictionary meaning.
[25] I note that the Petit Robert 1: dictionnaire alphabétique et analogique de la langue française defines the expressions “séjour” and “séjourner”, the French equivalents of the English noun and verb “sojourn”, as follows:
[translation]
Séjour: 1 The act of sojourning, of spending a period of time in a place
Séjourner: 1 To stay for a relatively long time in a place and have one’s residence there but without being established there. 2 To stay in one place for a long time. [Emphasis mine.]
[26] The English-language dictionary New Shorter Oxford English Dictionary on Historical Principles defines “sojourn” as follows:
1- A temporary stay at a place
2- Stay temporarily; reside for a time. [Emphasis mine.]
(ii) Objective nature of the definition of “sojourn” within the meaning of the Act
[27] The applicants are asking me to add a subjective dimension to the definition of “sojourn” which requires that this Court examine their intention as they crossed the United States. They also plead their lack of status in the United States.
[28] Parliament’s intention is expressed not only in the ordinary meaning of the expressions used, but also in the manner in which those expressions are understood in their context. In writing subsection 49(1.1), Parliament has used the expressions “residing” and “sojourning” to define who is denied an automatic stay. In my opinion, the internal consistency of this subsection demands that we apply the same kind of dimensions to those expressions.
[29] In Papadogiorgakis (In re) and in re Citizenship Act, [1978] 2 F.C. 208 (T.D.), Mr. Justice Thurlow laid down the principles that apply to determining residence in citizenship cases. He referred to the decision of Mr. Justice Pratte in Blaha v. Ministre de la Citoyenneté et de l’Immigration, [1971] F.C. 521 (T.D.), while applying certain distinctions; I note that the meaning of “reside” is determined largely in terms of physical presence. Accordingly, I conclude that the quality of “sojourning” must be determined in the same manner: based on the physical presence of the applicants in American territory, and according to the circumstances surrounding that presence.
[30] This approach rules out the intention of the applicants while they were present in the United States and the fact that their presence in that country was illegal as factors to be considered in determining whether they sojourned there.
(iii) Tests that involve both stability and movement
[31] Nonetheless, I must examine this in more depth, since the concept of “sojourning” involves an element of travel, of mobility, interrupted by periods of stability, as opposed to the concept of “residing”, which refers to an element of stability. As I determined earlier, “sojourning” means remaining in a precise place for a period of time; by determining the length of the period of time in question, we shall be able to define the concept of “sojourning” more concretely.
[32] To that end, I shall analyse the definition of expressions that are similar to the concept of “sojourning” but are distinguished from it in particular by the length of the stability, and thereby produce a spectrum of the movements probably engaged in by a refugee claimant during his or her passage through the United States. This will enable us to determine a claimant’s situation on a case-by-case basis. The expressions most relevant here are: demeurer, rester, transiter, traverser and passer.
[33] The Petit Robert 1 defines these various terms as follows:
[translation]
Demeurer… [remain] 1 … Stop, stay in places.
Rester … [stay] 1 Continue to be in a place.
Transiter … [transit] 1 Cause to pass through in transit.
2 Pass through, travel through in transit.
Transit … [transit (noun)] 1 Situation of travellers on a stopover, when they do not pass across police checkpoints.
Traverser … [cross] 1 Pass through, penetrate from one part to another …. 2 Force a passage across …. II … Go across (a space) from one end, one side to the other See: Franchir [pass across], parcourir [go across].
Passer … [pass through] I…. Travel in a continuous movement (in relation to a fixed place, to an observer) ….
II…. Cross (a place, an obstacle) See: franchir [pass across], traverser [cross].
[34] The Petit Larousse illustré defines them as follows:
[translation]
Demeurer … [remain] 1. Inhabit, have one’s domicile …. 2. Stay for a time in the place where one is.
Rester … [stay] 2. Continue to sojourn in a place or with someone …. 2. Inhabit, reside somewhere …. 4. Keep, continue to be in, the same position, the same situation.
Transiter … [transit] Be in transit in a place.
Transit … [transit (noun)] 2. Situation of a traveller, on an air stopover, who remains within the airport premises.
Traverser … [cross] 1. Pass from one side to the other …. 2. Penetrate from one part to another.
Passer … [pass through] 1. Go, travel in a continuous movement …. 2. Cause to go from one place to another; cause to cross; cause to go.
[35] In English, these expressions are similar to: “to stay, to remain, to cross, to go through, to pass, to transit”.
[36] In fact, on the spectrum of movements engaged in by a refugee claimant, if he or she passes through American territory, we could theoretically establish three major stages: being physically established in a specific place for a long period--residing--where there is little physical movement; being physically established in a specific place for a time and then leaving--sojourning; and lastly, being physically established, in a temporary manner, for a short period of time or for reasons beyond his or her control-- transiting.
[37] As may be seen, these expressions (in French) are almost synonymous, but can be separated into two groups and connected to two of the three physical situations described above, which make up the spectrum of movements: the expressions “demeurer” (remain) and “rester” (stay) are plainly connected to the situation of sojourning and the expressions “traverser” (cross) and “passer” (pass through) are clearly connected to the situation of transiting between two places.
Application to the instant case
[38] As I noted earlier, the female applicant, Maria Eva Rivera Aguilar, was present on American territory for only one day. Accordingly, having regard to the physical movements in which she engaged in the United States, it seems to be entirely appropriate to conclude that she merely transited, or made a stopover, and did not sojourn within the meaning of subsection 49(1.1) of the Act. I therefore find that the female applicant may be granted the automatic stay provided for in subsection 49(1) of the Act. In fact, the circumstances surrounding Ms. Aguilar’s passage are similar to those set out in El Jechi, supra, in which refoulement to the United States was not allowed.
[39] However, the situation of the female applicant’s two sons is not as clear. Given that they were in American territory for two weeks before arriving in Canada, it is possible that they did sojourn within the meaning of the Act.
[40] Counsel for the respondent asked me to infer from the period of time that the male applicants needed to reach Canada that they must necessarily have “sojourned” within the meaning of the Act, but counsel did not produce any evidence to me that the male applicants did indeed remain or stay temporarily in the United States.
[41] However, I cannot agree with that inference on the mere basis that a certain period of time elapsed before the applicants arrived in Canada. In fact, it would be equally open to me to infer from the male applicants’ affidavits that they did not have access to an effective and rapid means of locomotion to reach Canada. If I were to reach that conclusion, I would then have to acknowledge that the male applicants merely transited the United States.
[42] In the circumstances, it would be difficult for me to adopt either one of these contentions. There is actually insufficient evidence in either case. The evidence that should have been produced by the male applicants ought to have detailed their passage through the United States, day by day: where they passed through, and why one place rather than another. In other words, the male applicants should have described and explained their travel through the United States.
[43] However, I have no choice but to dispose of the case submitted to me. In this case, I must also interpret the Act in accordance with the principles referred to earlier, in order to determine where the burden of establishing the relevant facts lies.
[44] Having regard to the prevailing situation in immigration cases in Canada, and the elementary evidentiary principles, it is absolutely logical to conclude that the burden of proof rests on the male applicants, who alone are capable of recounting the stages in their travels. Once those facts are established by affidavit, it is then up to the respondent to examine the applicants or to present rebuttal evidence.
[45] On the day this case was heard, the applicants attempted to file a detailed affidavit to explain their time in the United States, and counsel for the respondent objected to this for entirely valid reasons. I therefore refused to allow this belated affidavit to be filed.
[46] I therefore conclude that it was up to the male applicants to put the relevant facts in evidence, in order to persuade the Court that they did not actually sojourn in the United States. Since they have failed to meet this requirement of the Act, I find that I am obliged to dismiss the motion by Ms. Aguilar’s two sons.
Application of judicial stay
[47] In their motion record, the male applicants raised the question of the application of judicial stay to their situation, if this Court were to conclude that the automatic stay does not apply, as the Court has done in the case of Ms. Aguilar’s sons. Argument on this point was very brief at the hearing, and so I shall do only a brief analysis of it.
[48] I find that the male applicants have not met the burden of proof in that they have not established a prima facie case or that there would be irreparable harm. The affidavit in support of this motion certainly does not establish the necessary facts. Judicial stay therefore does not apply in this case.
[49] Accordingly, having regard to the absence of factual evidence, I dismiss this motion in the case of the applicants Carlos Ernesto Rivera Aguilar and Reynaldo Joselito Hernandez Rivera, without prejudice to the filing of a new motion for a stay with a precise, detailed affidavit regarding the circumstances of their presence in the United States before coming to Canada.
CONCLUSION
[50] This motion is allowed in part.
[51] I allow the application for a stay of execution of the removal order made against the applicant Maria Eva Rivera Aguilar, applying the automatic stay provided in subparagraph 49(1)(c)(i) of the Act.
[52] I dismiss the application for a stay of execution of a removal order made against the applicants Carlos Ernesto Hernandez Rivera and Reynaldo Joselito Hernandez Rivera by the immigration officer, Michel Blouin, on November 24, 1998.
[53] I order that the interim stay granted in Montreal on December 21, 1998, be lifted.