Date: 19981207
Docket: IMM-6181-98
BETWEEN:
WING CHO KWAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLAIS J.
[1] The applicant has filed yesterday an application for leave to commence an application for judicial review of the decision of Kathy Galloway, immigration officer, dated November 18, 1998 and communicated to Wing Cho Kwan on or about that date to execute a removal order against Wing Cho Kwan by deporting him from Canada to China, on December 8, 1998.
[2] This motion is for an interlocutory order staying the execution of the removal order until such time as the application for leave and for judicial review in this action be disposed of.
[3] This is the third application for judicial review by the same applicant in less than twelve months.
[4] The other applications were dismissed on October 14, 1998 by Justice Gibson.
[5] Pursuant to section 48 of the Immigration Act "a removal order shall be executed as soon as reasonably practicable".
[6] Section 50 brings some restriction to that obligation:
| Execution stayed where other proceedings
50(1) A removal order shall not be executed where
| (a) the execution of the order would directly result in a contravention of any other order made by any judicial body or officer in Canada; or |
| (b) the presence in Canada of the person against whom the order was made is required in any criminal proceedings and the Minister stays the execution of the order pending the completion of those proceedings. |
50(2) Not to be executed until after sentence completed
(2) A removal order that has been made against a person who was, at the time it was made, an inmate of a penitentiary, jail, reformatory or prison or becomes an inmate of such an institution before the order is executed shall not be executed until the person has completed the sentence or term of imprisonment imposed, in whole or as reduced by a statute or other law or by an act of clemency.
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| Sursis motivé par d'autres procédures
50. (1) La mesure de renvoi ne peut être exécutée dans les cas suivants_:
| a) l'exécution irait directement à l'encontre d'une autre décision rendue au Canada par une autorité judiciaire; |
| b) la présence au Canada de l'intéressé étant requise dans le cadre d'une procédure pénale, le ministre ordonne d'y surseoir jusqu'à la conclusion de celle-ci. |
50(2) Sursis dans le cas des détenus
(2) L'incarcération de l'intéressé dans un pénitencier, une prison ou une maison de correction, antérieurement à la prise de la mesure de renvoi ou à son exécution, suspend l'exécution de celle-ci jusqu'à l'expiration de la peine, compte tenu des réductions légales de peine et des mesures de clémence.
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[7] The applicant"s counsel suggested that given that the applicant is on parole following a decision made on May 8, 1998, the individual is still an inmate and the Minister has to wait until the end of the probation period before having the power to deport the applicant.
[8] The applicant"s counsel also suggested that, deporting the applicant right now, would force him to violate the conditions that he has signed following the parole board decision and violate the law and would be against section 50 of the Immigration Act .
[9] The respondent"s counsel suggests that the National Parole Board is not a judicial body that is submitted to section 50 of the Immigration Act and has also submitted evidence that the National Parole Board takes into account the question of deportation and there is no problem to have an individual on parole removed from the country and that the supervision continues in the event the parolee returns to the country.
[10] I have also reviewed the order for release that was filed as exhibit "D" to the notice of motion to the applicant where it is clearly mentioned in the notice to an immigration officer:
Should a removal order be made against you, that you report for removal when and where directed to by an immigration officer.
[11] I conclude that the removal order is no surprise for the applicant. I refer to Wood v. Min. of Employment & Immigration (1986), 2 F.T.R. 58 (Fed. T.D.):
The Minister can defer the execution of a deportation order only if the person who is to be deported is subject to a judicial order containing specific provisions that would be violated if the deportation order were to be executed. Accordingly, where the applicant was subject to a probation order, which contained no condition compelling the presence of the applicant in Canada or his attendance in court at a specified time and place, there was no obligation on the part of the Minister to defer his responsibility to execute the valid deportation order.
[12] The two counsel refer to Cuskic v. Canada (Minister of Citizenship and Immigration) [1997] Court File IMM-29-97, where Justice Rothstein said:
Parliament did not enact section 50 to benefit offenders. Section 50 was enacted to provide direction in the case of conflict between orders made by the Minister and orders of other judicial bodies or officers in Canada. Generally, that direction is that execution of a deportation order is to be subservient to the paramountcy of any other order.
[13] Referring to exhibit "B" of the applicant"s affidavit, page 3, in the reasons for decision, this is specifically mentioned:
You are however not a Canadian citizen and should the Immigration Department order you deported, you will not be illegible for the day parole directed.
[14] The exhibit "B" to the affidavit of Kathleen Galloway on December 3, 1998, is also specific on the conditions of a deportation order for an individual that is on parole.
[15] Those administrative decisions are made to avoid any contradictions between the parole system and the decision made under the Immigration Act.
[16] In that case, the applicant has challenged many decisions taken under the Immigration Act and now he challenges the removal order on the grounds that that removal order will force him to contravene to a court order.
[17] I refer to a decision by Justice Denault in George Nafal c. Le Ministre, IMM-4765-98, September 22, 1998:
En l"espèce, le demandeur a résisté à plusieurs avis de départ qu"il a contestés sans succès. Il s"oppose maintenant à l"avis d"expulsion aux motifs qu"il l"obligerait à contrevenir à l"ordre de la Cour d"appel de demeurer à son lieu de résidence.
J"estime que cette requête ne peut réussir dans la mesure où le demandeur n"a pas démontré qu"il pouvait bénéficier de l"exception énoncée à l"Article 50 de la Loi , ni qu"il rencontrait le test énoncé par les tribunaux pour obtenir le sursis de l"avis d"expulsion, à savoir démontrer l"existence d"une question sérieuse à débattre, du tort irréparable qu"il subirait si la mesure devait être exécutée et enfin, les inconvénients qui pencheraient en sa faveur.
En effet, je ne suis pas convaincu que l"exécution de la mesure d"expulsion contreviendrait directement à la décision de la cour d"appel du Québec de permettre son élargissement de prison en attente d"audition de son appel. Dans la mesure où le demandeur, s"il devait être expulsé, enfreindrait la condition de résidence qui lui fut imposée, ceci n"aurait pour résultat que de le retourner en prison. Comme l"a énoncé mon collègue le juge Rothstein dans Cuskic v. Canada , 39 Imm. L.R. (2nd):
Parliament did no enact section 50 to benefit offenders. Section 50 was enacted to provide direction in the case of conflict between orders made by the Minister and orders of other judicial bodies or officers in Canada.
Par ailleurs, la présence du demandeur n"est pas requise lors de l"audition de son appel, de sorte qu"il ne rencontre pas l"exigence prévue au sous-paragraphe 50(1)(b) de la Loi .
[18] I have to reject that request because the evidence filed in this case cannot bring the conclusion that the applicant should benefit from section 50 of the Immigration Act.
[19] I will consider now if the applicant has met the test established by the Supreme Court of Canada in R.J.R. - MacDonald v. Canada [1994] 1 R.C.S. 311 at 315.
Serious Issue
[20] For the reasons I gave in the previous paragraphs, I do not think there is a serious issue to be tried in that case.
Irreparable Harm
[21] Regarding the second element of the test, the applicant"s counsel suggests that the applicant is not a danger to the public, he is back working in Jasper, Alberta trying to get his life in order.
[22] The applicant"s counsel mentioned that his removal to China will split up the family and it is not sure that his family will be able to join him in China and that a status quo pending the decision on judicial review would be much better for the stability of the family.
[23] The respondent"s counsel suggests that the jurisprudence is clear that the splitting up of the family is not relevant particularly the consequences for the two members of the family that are not deported to China.
[24] The respondent "s counsel also mentioned that the motives on humanitarian and compassionate grounds applications were already assessed by previous decisions for the same applicant and that the decision based on the fact that he is a danger to the public is still there and that that decision was made on the grounds that he was convicted for drug trafficking.
[25] I refer to the decision in Castro v. The Minister of Citizenship and Immigration , unreported, IMM-2729-97, July 4, 1997, made by Judge Pinard:
Separation from a pregnant wife and two children may constitute personal inconvenience and may even result in hardship, but it does not establish irreparable harm.
[26] The applicant"s counsel suggests with two documents that there is a possibility that the applicant would be punished by Chinese authorities.
[27] Exhibit "M" referred to in the applicant"s affidavit, is a letter dated January 6, 1998 by Fok Woo Ping; essentially, this letter refers to the translation of the relevant provision from the PRC Criminal Code and Antidrug Regulations but Mr. Fok Woo Ping precisely mentioned:
However, I am not qualified to give a proper legal opinion.
[28] Section 7 of the translation of Criminal Code of the People"s Republic of China says:
Any Chinese national who commits a criminal offence outside the territory of the People"s Republic of China, will be subject to the sanctions authorized under this Criminal Code, even though he may have been tried by the courts of the foreign country; provided that in the event he has received the penalty issued by the foreign court, the penalty he may receive authorized under this code may be reduced or waived.
[29] Chapter 2, Criminal Offences, Section 171, says:
The manufacturing, trafficking, importation of opium, heroin, morphine and any other prohibited narcotics will be punishable by way of incarceration for a period of not more than 5 hears and a fine.
[30] Regulations to the Narcotics Control Act, mention:
2. (5)...any trafficking, illegal importation and manufacturing of opium not more than 200 grams, heroin not more than 10 grams, or any other narcotics less than 10 grams, shall be punishable by way of incarceration of not more than 7 years, labour or confinement, and a fine.
[31] My conclusion from that evidence is that there is a possibility that the applicant would be punished by Chinese authorities but it is more speculation and that it does not establish irreparable harm in that case.
Balance of Convenience
[32] Given the lack of serious issue and irreparable harm, the balance of convenience lies in favour of the respondent and I do not have to elaborate more than I did on that.
[33] For these reasons, the motion for a stay is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
DECEMBER 7, 1998
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