Braga v. Canada (Minister of Citizenship and Immigration), 2001 FCT 80

Date: 20010215

Docket: IMM-5820-00

Neutral Citation: 2001 FCT 80

BETWEEN:

RAMIRO BRAGA

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

BLANCHARD J.

[1] The applicant, Ramiro Braga, has brought a motion for a stay of a removal order. The grounds of the motion are that the applicant has raised a serious issue to be tried with respect to a decision pursuant to subsection 70(5) of the Immigration Act R.S.C. 1985 c. I-2, declaring the applicant a danger to the public in Canada for which leave for judicial review is sought. The applicant claims he would suffer irreparable harm if deported to Portugal, and that the balance of convenience favours him.

[2] The applicant is 39 years old, a father of two children, has been residing in Canada since May, 14, 1969, and has since never returned to Portugal.

[3] On or about January 14, 1999, the applicant was convicted and sentenced to two years of jail less one day, on five counts of robbery.

[4] On September 30, 1999, a Deportation Order was issued.

[5] On October 24, 2000, the Minister's delegate formed the opinion that the applicant constituted a danger to the public in Canada.

[6] On January 8, 2001, the appeal of the September 30, 1999 deportation order was dismissed on the basis that the Appeal division lacked jurisdiction to hear the appeal, pursuant to paragraph 70(5)(c) of the Immigration Act.

[7] The decision of the Minister's delegate, pursuant to subsection 70(5) of the Immigration Act is the subject of the application for leave and for judicial review. The applicant is requesting a stay until his application has been determined.

[8] Therefore I must determine whether the applicant will be deported now before the judicial review of the danger opinion or if the stay should be granted until disposition of the application. This raises two questions. Firstly, whether the Shchelkanov⁽¹⁾⁽²⁾ decision governs this situation; secondly, in the event that Shchelkanov does not determine the present case, whether the tri-partite test set out in the Toth⁽³⁾ decision has been met.

[9] In Shchelkanov, Strayer J, as he then was, stated that the Court did not have jurisdiction to stay the execution of a valid deportation order until disposition of some other proceeding which did not question the validity of the deportation order:

Basing myself on the power as now defined in section 18.2, I do not consider it "appropriate" to stay the execution of a valid order made by an adjudicator under section 27 and 32.1 [of the Immigration Act] on the basis that the Court has before it an application for judicial review of the alleged failure of the Minister to make a decision under subsection 114(2), when the proper making of the latter is not a legal pre-condition for the execution of the former.⁽⁴⁾

[10] In Melo, Pelletier J. distinguishes Shchelkanov and adopts the reasons set forth by Noël J., as he then was, in Bal⁽⁵⁾, and states:

Whatever the Court of Appeal decided in Akyampong supra, that case has not been followed and its authority is therefore in doubt. The various theories as to the source of this Court's jurisdiction to stay a deportation order pending the disposition of a collateral proceeding must remain theories until the Court of Appeal decides the issue directly if it is able to do so, or indirectly, if it has occasion to consider the scope of section 18.2 of the Federal Court Act in other proceedings. The humanity and common sense of Noël J.'s approach to the issue commend themselves to me and I adopt it as my own. I find that Shchelkanov and those cases which follow it do not, with respect, preclude me from granting a stay even if the deportation order itself is not in question.⁽⁶⁾

[11] In the present case, the applicant was denied his right to appeal the deportation order given the issuance of a danger opinion by the Minister's delegate, that decision is undergoing leave for application and for judicial review. Even though the applicant is not attacking the deportation order, the underlying judicial review will certainly have an impact on the deportation order, since the appeal was refused solely on the basis that a danger opinion was issued. Therefore, I find this Court has the jurisdiction to grant a stay even if the deportation order itself is not in question.

[12] In immigration matters, this Court has clearly established that the test for considering whether to grant a stay of proceedings is similar to that of an interlocutory injunction.⁽⁷⁾ The test requires, for the granting of such an order, that the applicant demonstrate:

(1) that he has raised a serious issue to be tried in the underlying judicial review application;

(2) that he would suffer irreparable harm if no order was granted; and

(3) that the balance of convenience considering the total situation of both parties, favours the grant of the stay.

Serious Issue to be Tried

[13] The underlying judicial review application deals with a danger opinion by the Minister pursuant to subsection 70(5) of the Immigration Act R.S.C. 1985, c. I-2. In my view, two issues will have to be dealt with in the judicial review. Firstly, was the decisional process which led to the danger opinion appropriate? Secondly, by failing to give reasons did the Minister's delegate breach the duty of fairness? In Bhagwandass⁽⁸⁾, Mr. Justice Gibson held that a danger opinion is subject to judicial review if the appropriate content of the duty of fairness was not provided. I am not called upon to decide the underlying judicial review, suffice it to say that I am satisfied that the Minister's delegate's failure to give reasons, in a danger opinion, is in and of itself sufficient to raise a serious issue to be tried in the underlying judicial review.

[14] I therefore find that the applicant raised a serious issue to be tried in the underlying judicial review application.

Irreparable harm

[15] The issue of irreparable harm, in this case, does not turn upon the possibility of persecution or physical harm to the applicant. The applicant will be deported to Portugal, which is not a country known for persecuting its citizens. Therefore, irreparable harm, must be based upon the particular circumstances of the applicant.

[16] The evidence reveals that the applicant is separated from his common-law spouse and has two children all living in Toronto.

[17] The applicant claims to maintain an active part in his children's lives. The applicant expressed regret that he was away from his children for too long during his incarceration and since he is back he wishes to remain a visible and active part of their lives. The impact of separation on the children must certainly be taken into account in such circumstances.

[18] Further, I note that the applicant arrived in Canada when he was nine years old and has not returned to Portugal since 1969. The applicant has no ties in Portugal. His entire family is in Canada and he has no cultural connection to Portugal.

[19] Although unpleasant, the above circumstances are not unusual in deportation situations and would not amount to irreparable harm for the purposes of a stay application. As stated by Pelletier J. in Melo, a case very similar to the case at bar:

But if the phrase irreparable harm is to retain any meaning at all, it must refer to some prejudice beyond that which is inherent in the notion of deportation itself. To be deported is to lose your job, to be separated from familiar faces and places. It is accompanied by enforced separation and heartbreak. There is nothing in Mr. Melo"s circumstances which takes it out of the usual consequences of deportation. (...) As unhappy as these circumstances are, they do not engage any interests beyond those which are inherent in the nature of a deportation.⁽⁹⁾

[20] However, what is determining in the present case in considering irreparable harm, is the fact that the applicant, by operation of law was denied his right to appeal the deportation order on the issuance of the danger opinion. The very opinion that is subject to judicial review. I found a serious issue to be tried based on the underlying judicial review application and not on any other considerations. This Court has held that a loss of the benefit of an application can constitute irreparable harm. I make mine the words of Pelletier J. who stated in Melo:

It is in circumstances similar to these that Robertson J.A. held in Suresh v. Canada [1999] 4 F.C. 206, [1999] F.C.J. No. 1180 that the loss of the benefit of an application can amount to irreparable harm within the meaning of the tri-partite test in Toth. If there is to be any reality to the judicial review application, the status quo must be maintained. While the benefit in question may appear to be one for the children, it is also a benefit for Mr. Melo. I find that the loss of the benefit of the application for judicial review constitutes irreparable harm for the purposes of this application.⁽¹⁰⁾

[21] Having analysed the events described in the applicant's affidavit and having reviewed the record before this Court, I find that the applicant would suffer irreparable harm if the stay is not granted. The applicant's claim for irreparable harm is set out in his affidavit in support of the application for a stay. The applicant has lost his right to appeal the deportation order, based on the issuance of a danger opinion that is the subject of an application for leave and for judicial review, it is on that basis that I find irreparable harm.

[22] For these reasons, I therefore find that the applicant will suffer irreparable harm if removed from Canada at this time.

Balance of convenience

[23] Finally, I must consider whether the balance of convenience considering the total situation of both parties favours the grant of a stay.

[24] Mr. Braga came to this country at a young age and has been a resident of this country for over 30 years with no remaining ties in his native Portugal.

[25] The applicant's problem with drug dependency led him to 5 criminal convictions in 1999. I note the applicant pleaded guilty, and served his time. He was released on June 2, 2000 and I accept that the authorities approved his release because the applicant did not pose a flight risk and did not pose a danger to the public.

[26] The applicant has demonstrated while he was incarcerated, and on his own initiative, that he gained control of his life and was able to end his drug dependency.

[27] I believe that all of these factors tilt the balance of convenience in favour of the applicant, and I will so find.

[28] The stay will be granted until disposition of the application for leave and for judicial review and if granted until the disposition of the Judicial Review. However, in view of the applicant's criminal record the stay will be subject to a condition that the respondent will have leave to apply to any judge of this Court to vacate the stay in the event that Mr. Braga is charged with any criminal offence prior to the expiry of the stay.

ORDER

[29] IT IS ORDERED THAT:

1. The stay is granted until disposition of the application for leave and for judicial review and if granted until the disposition of the Judicial Review.

2. The stay will be subject to a condition that the respondent will have leave to apply to any judge of this Court to vacate the stay in the event that Mr. Braga is charged with any criminal offence prior to the expiry of the stay.

"Edmond P. Blanchard"

J.F.C.C.

Toronto, Ontario

February 15, 2001

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-5820-00

STYLE OF CAUSE: RAMIRO BRAGA

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

DATE OF HEARING: MONDAY, FEBRUARY 12, 2001

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY: BLANCHARD J.

DATED: THURSDAY, FEBRUARY 15, 2001

APPEARANCES BY: Mr. Fernando D. Martins

For the Applicant

Mr. Greg George

For the Respondent

SOLICITORS OF RECORD: Costa & Associate

Barristers & Solicitors

1462 Dundas Street West

Toronto, Ontario

M6J 1Y7

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

Date: 20010215

Docket: IMM-5820-00

BETWEEN:

RAMIRO BRAGA

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

AND ORDER

1.

¹ Shchelkanov

2.

² v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 496 (F.C.T.D.).

3.

³ Toth. v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123.

4.

⁴ Supra, note 1.

5.

⁵ Bal v. Canada, [1993] F.C.J. No. 319.

6.

⁶ Melo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 403 at paragraph 8.

7.

⁷ Toth. v. Canada (Minister of Employment and Immigration) (1988), supra, note 2.

8.

⁸ Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 619.

9.

⁹ Melo v. Canada (Minister of Citizenship and Immigration), supra, note 5, at paragraph 21.

10.

¹⁰ Id. at paragraph 22.