Dias v. Canada (Minister of Citizenship and Immigration), 2001 FCT 677

                                                                                                                                  Date: 20010620

                                                                                                         Court File No.: IMM-6415-00

                                                                                                       Neutral Citation: 2001 FCT 677

Ottawa, Ontario, this 20^th day of June, 2001

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                   PATRICK ALEXANDER DIAS

                                                                                                                                            Applicant

                                                                         - and -

                                MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The applicant has applied for a stay of his removal from Canada to Jamaica. I have read and carefully considered all of the evidence tendered by the parties. I have heard counsel for both parties.

[2]                In order to succeed on his motion to stay the execution of the removal order, the applicant must establish that there is a serious issue to be tried, that he would suffer irreparable harm by reason of his deportation and that the balance of convenience lies in his favour.

[3]                The underlying judicial review application deals with a request to quash two danger opinions by the Minister pursuant to subsection 70(5) and subparagraph 46.01(1)(e)(iv) of the Immigration Act, R.S.C. 1985, c. I-2.

[4]                The respondent has consented to leave being granted for the underlying judicial review of the danger opinions.

[5]                Given that the respondent conceded that there is a serious issue to be tried, I will deal directly with irreparable harm.

[6]                By operation of subsection 70(5) of the Immigration Act, the applicant loses the benefit of an appeal of his deportation order where the Minister is of the opinion the applicant constitutes a danger to the public of Canada.

[7]                It is my view that the loss of the benefit of such an application can amount to irreparable harm within the meaning of the tripartite test in Toth v. Canada (Minister of Employment and Immigration), [1999] 1 F.C. 535.

[8]                Should the applicant be successful on the underlying judicial review and have the danger opinion quashed, the right to appeal the removal order may be restored, but to what avail when removal has already been executed? To assume no prejudice to the applicant, as a result of the removal, is to ignore the requirement of a ministerial permit for readmission to the country. I suspect that the obtention of such a permit is somewhat more difficult for a person with a criminal record.

[9]                It is my view that execution of the removal order before the hearing of the underlying judicial review will effectively render the judicial review nugatory. The loss of the benefit of these proceedings, in my view, amounts to irreparable harm for the purpose of the tripartite test in Toth.    

[10]            The applicant has been a permanent resident of Canada for almost 10 years. His wife, three children, his parents and his sister all reside in Canada. The applicant has shown remorse and pleaded guilty to his crime, served his time and while incarcerated attended school to improve his education. He is now gainfully employed, supports his family and has a stable home life. The evidence further shows that the applicant has cut all ties with Jamaica.

[11]            In the circumstances, I am satisfied that the balance of convenience lies in favour of the applicant.

[12]            For these reasons, the motion for a stay of execution of the removal order dated June 14, 2001 will be granted until the disposition of the underlying judicial review.

                                                                       ORDER

THIS COURT ORDERS that:

1.                   The motion for a stay of execution of the removal order dated June 14, 2001 is granted until the disposition of the underlying judicial review.

                                                                                                                        "Edmond P. Blanchard"                

                                                                                                                                                   Judge