Tran v. Canada (Solicitor General), 2005 FC 1094

Date: 20050812

Docket: IMM-4798-05

Citation: 2005 FC 1094

OTTAWA, ONTARIO, this 12^th day of August 2005

PRESENT: The Honourable Mr. Justice Pinard

BETWEEN:

                                                                  DUNG TRAN

                                                                                                                                          Applicant

                                                                        - and -

                                      THE SOLICITOR GENERAL FOR CANADA

                                                                                                                                     Respondent

UPON A MOTION on behalf of the applicant for a stay of execution of the Removal Order in respect of the applicant pending the determination of his current outstanding Humanitarian and Compassionate Grounds Application;

AND UPON reading the material before the Court;

AND UPON hearing counsel for the parties by teleconference;

                                           REASONS FOR ORDER AND ORDER

[1]         The applicant arrived in Canada in 1985 and was landed at that time. He was convicted of a number of serious criminal offences and as a result was issued a conditional deportation order. The applicant lost his landed status at that time. He was convicted of eight counts of robbery, possession of an unregistered restricted weapon and possession of a weapon for which he was sentenced to 26 months imprisonment. He was in prison from December 1992 to December 1994.

[2]                The applicant made a claim for refugee status which was denied on May 29, 1995. His application for leave was dismissed on September 26, 1995. He subsequently applied under the Family Class, as an independant and in the post-determination refugee in Canada class, all of which were dismissed. He has also made a number of humanitarian and compassionate grounds applications which were denied. Leave to bring an application for judicial review was denied for at least one of these applications. There is a current outstanding humanitarian and compassionate grounds application.

[3]                The applicant was subsequently convicted of a narcotics offence in January of 2001. That offence was committed in breach of the terms and conditions of his release from immigration hold and resulted in the forfeiture of a bond of $5,000.

[4]                The applicant was scheduled for removal in March of 2005. At that time, his counsel applied for a stay of removal pending the outstanding application for leave in respect of his Pre-Removal Risk determination which was negative. The stay motion was dismissed by Mr. Justice de Montigny and subsequently, the application for leave and for judicial review was dismissed by order of Mr. Justice Gibson, dated June 17, 2005.

[5]                In his reasons, Mr. Justice de Montigny addressed the fact that the applicant has a wife and seven children in Canada from whom he would be separated. The stay was dismissed in any event on the basis that this was the type of hardship normally attendant on removal.

[6]                The applicant failed to report for his scheduled removal. He was arrested on or around July 7, 2005. He attempted to evade arrest at that time.

[7]                The applicant has been in detention since his arrest. The expulsions officer, who is the same officer who was in charge of the earlier scheduled removal, obtained a laissez-passer, a travel document from the Vietnamese Embassy enabling the applicant to travel to Vietnam. The applicant by his counsel requested a deferral of removal on July 25, 2005, which was denied by letter dated July 29, 2005.

[8]                Considering the rest of the evidence before me in the above factual context, I find that the applicant has failed to meet the well established tri-partite test (Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 ( F.C.A.)) for warranting a stay of removal, given the lack of a serious issue, the absence of demonstrable proof of irreparable harm, and the balance of convenience favouring the Minister. In that regard, I generally agree with the submissions contained in paragraphs 16 to 45 inclusive of the respondent's written submissions opposing this stay motion.

                                                                       ORDER

Consequently, the requested stay is denied and the motion is dismissed.

       JUDGE

OTTAWA, ONTARIO

August 12, 2005

                                                               FEDERAL COURT

                                                       SOLICITORS OF RECORD

DOCKET:                                                        IMM-4798-05

STYLE OF CAUSE:                                         DUNG TRAN v. THE SOLICITOR GENERAL FOR CANADA

PLACE OF HEARING:                                    Ottawa, Ontario

HEARING BY TELECONFERENCE:             August 11, 2005

REASONS FOR ORDER BY:                         PINARD J.

DATED:                                                            August 12, 2005

APPEARANCES:

Mr. Fredrick Blake Kenwell                              FOR THE APPLICANT

Ms. Kristina Dragaitis                            FOR THE RESPONDENT

SOLICITORS OF RECORD:

Blake Kenwell Law Office                                 FOR THE APPLICANT

Toronto, Ontario

John H. Sims, Q.C.                                           FOR THE RESPONDENT

Deputy Attorney General of Canada