Date:20010227
Docket: IMM-92-01
Neutral Citation: 2001 FCT 122
BETWEEN:
OLEG VELITCHKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
HENEGHAN J.
[1] Mr. Oleg Velitchko (the "Applicant") seeks an order staying execution of the deportation order issued against him on January 4, 2001. The deportation order was issued following the conduct of an Inquiry pursuant to the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). The deportation order was issued pursuant to section 32 of the Act.
[2] On December 20, 2000, the Minister of Citizenship and Immigration (the "Respondent"), through her delegate, Claudette Deschênes, issued two opinions that the Applicant constitutes a danger to the public in Canada. One opinion was made pursuant to section 53(1) of the Act and the other, pursuant to section 70(5) of the Act. The two opinions were served upon the Applicant on January 5, 2000.
[3] On January 8, 2000 the Applicant commenced two applications for leave and judicial review. In cause T-92-01 he challenges the validity of the danger opinion issued pursuant to section 53(1) and in cause T-93-01 he challenges the danger opinion issued pursuant to section 70(5) of the Act.
[4] On February 15, 2001, the Applicant filed a Notice of Motion in each proceeding, seeking a stay of execution of the deportation order which was issued on January 4, 2001.
[5] The Applicant filed an Affidavit in support of the motion for a stay, together with relevant documentation concerning the status of human rights visitation in Belarus. In his Affidavit, the Applicant sets forth the facts upon which he relies to support his request for a stay of the deportation order.
[6] The Applicant entered Canada in September 1995. He is a national of Belarus. He successfully pursued an application to remain in Canada as a Convention refugee, following a hearing before the Immigration and Refugee Board Division. By its decision dated July 4, 1996, the Immigration and Refugee Board found the Applicant to be a Convention refugee.
[7] Subsequently the Applicant was convicted of criminal offences in 1997 and 1998. He was sentenced to a jail term. He remains in custody pursuant to a warrant issued under the Act.
[8] On October 5, 2000, the Applicant was notified that a Ministerial opinion would be sought pursuant to sections 70(5) and 53(1) of the Act. He made submissions concerning this notification. As noted above, the Minister issued her opinions on December 20, 2000.
[9] The test for granting a stay of a deportation order is set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.). An applicant must show that there is a serious issue for trial in the underlying application for judicial review, that irreparable harm will result if the stay is denied, and that the balance of convenience favours him.
[10] In this case, the applications for leave and judicial review challenge the validity of the danger opinions issued by the Minister. In light of divergent jurisprudence in this Court concerning danger opinions under the Court, I find that these challenges raise a serious issue.1 In my opinion, the Applicant has satisfied the first branch of the Toth test.
[11] In the circumstances of this case, I am also satisfied that the Applicant has demonstrated that he will suffer irreparable harm, that is harm which cannot be compensated by an award of damages, if he is deported before this court rules on his applications for leave and judicial review. The Applicant has a right to seek judicial review of the Minister's danger opinions. He has filed applications for leave and judicial review. Those applications will be rendered nugatory if he is deported at this time.
[12] Since the Applicant has met the requirements of showing a serious issue for trial and irreparable harm if the stay is not granted, the balance of convenience falls in favour of the Applicant.
[13] Execution of the deportation order issued on January 4, 2001 is stayed pending a decision on the Applicant's applications for leave and judicial review of the Minister's danger opinions issued on December 20, 2000. If leave is granted, the stay will remain in effect pending disposition of the applications for judicial review, subject to any further order of this Court.
[14] These reasons will be filed in IMM-92-01 and placed on IMM-93-01 and have the same force and effect as if it were filed.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
February 27, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: OLEG VELITCHKO |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| DATE OF HEARING: WEDNESDAY, FEBRUARY 21, 2001 |
| PLACE OF HEARING: HALIFAX, NOVA SCOTIA |
| REASONS FOR ORDER BY: HENEGHAN J. |
DATED: TUESDAY, FEBRUARY 27, 2001
| APPEARANCES BY: M. Lee Cohen |
| SOLICITORS OF RECORD: M. Lee Cohen |
Barrister and Solicitor
P.O. Box 304, Halifax CRO
6690 Second Street
Halifax, Nova Scotia
B3J 2N7
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20010227
Docket: IMM-92-01
Between:
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
__________________
1See Said Ahmed Houssein v. M.C.I. 2001 FCT 6.
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