Date: 20010502
Docket: IMM-1042-01
Neutral Citation: 2001 FCT 423
BETWEEN:
ALIOUNE BADA SYLL
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] Alioune Bada Syll (hereinafter "the Applicant") is a citizen of Senegal. He arrived in Canada in 1995 as a student.
[2] The Applicant married Cynthia Dixson, a Canadian citizen, on April 7, 2000. Their daughter was born on September 17, 2000.
[3] In August 1999, the Applicant was arrested and charged with possession and trafficking of 1.84 grams of marijuana. He was later charged with conspiracy to traffic.
[4] The Applicant plead guilty and was sentenced to three months house arrest, eight months probation (suspended sentence) and twelve months probation.
[5] The Applicant has been subpoenaed to testify as a witness at a criminal trial from May 7th to 11th, 2001.
[6] On February 12, 2001, the Applicant attended an inquiry before an adjudicator. The adjudicator determined that the Applicant was a person described in paragraphs 27(2)(a) and 19(2) (a) of the Immigration Act, R.S.C. 1985, c. I-2. A deportation order was issued pursuant to section 32(6) of the Act.
[7] The Applicant applied for permanent residency but his application was denied.
[8] On March 5, 2001, the Applicant filed an Application for Judicial Review of the adjudicator's decision to issue a deportation order. The grounds for the Application are that the deportation order was issued without consideration of the Applicant's family circumstances in Canada, without giving him adequate notice of the inquiry and without informing him of the potentially severe outcome.
[9] On April 19, 2001, the Applicant filed a motion for an order to stay the deportation order until such time as his Application for Judicial Review is determined.
[10] On April 25, 2001, I heard the motion for a stay in the presence of counsel for the Applicant and the Minister of Citizenship and Immigration in Halifax, Nova Scotia. This matter was heard in conjunction with the motion for a stay filed in IMM-1039-01.
[11] To succeed on a motion for a stay, an applicant must meet all of the following requirements of the tri-partite test as set out in Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A.):
a) whether there is a serious issue to be determined by the Court;
b) whether the party seeking the stay would suffer irreparable harm if the stay were not granted; and
c) whether on the balance of convenience the party seeking the stay will suffer the greater harm from the refusal to grant the stay.
[12] I am satisfied that based on the evidence before me there is no serious issue to be determined by the Court.
[13] The adjudicator ordered deported the Applicant pursuant to section 32(6) of the Act. Section 32(6) of the Act reads as follows:
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Where a adjudicator decides that a person who is the subject of an inquiry is a person described in subsection 27(2), the adjudicator shall, subject to subsection (7) and 32.1(5), make a deportation order against that person.
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S'il conclut que l'intéressé relève d'un des cas visés par le paragraphe 27(2), l'arbitre, sous réserve des paragraphes (7) et 32.1(5), prend une mesure d'expulsion à son endroit.
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[14] Pursuant to this section, where the adjudicator has found that an individual has been convicted of a criminal offence in violation of the terms of section 27 of the Act, a deportation order must be made against that individual.
[15] The adjudicator had no discretion to examine the circumstances surrounding the Applicant's family situation. Once the adjudicator determined that the Applicant had been convicted of a criminal offence, as in this case, he had no choice but to issue a deportation order against the Applicant.
[16] For these reasons, the motion for a stay of the deportation order issued on February 12, 2001 is dismissed.
JUDGE
OTTAWA, Ontario
May 2, 2001
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