Bui v. Canada (Minister of Citizenship and Immigration), 2001 FCT 652

Date: 20010613

Docket: IMM-483-01

Neutral Citation: 2001 FCT 652

BETWEEN:

TRONG VONH BUI

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

                                                  REASONS FOR ORDER

MacKAY J.:

[1]               These are reasons for a stay of removal of the Applicant from Canada, granted on June 11^th at Vancouver, pending determination of the Applicant's application for leave and for judicial review.

[2]               The Applicant is a 27 years old citizen of Vietnam who has resided in Canada since 1988. His mother and two sisters also reside in Canada and he is involved in a common-law relationship with a permanent resident of Canada. He has no immediate family in Vietnam. At the conclusion of an immigration enquiry concerning the Applicant's status, on January 18, 2001 he was issued a deportation order and he was also served with two danger opinions, one made pursuant to paragraph 46.01(1)(e) and the other pursuant to subsection 70(5) of the Immigration Act, R.S.C. 1985, c. I-2 as amended. He says he was not previously advised of the opinions, though they were issued in 1999.

[3]               The Applicant appealed his deportation order to the Immigration Appeal Division and he made application for leave and for judicial review of the danger opinions. A date set for his Appeal Division hearing was later cancelled because of the danger opinions, but his appeal has not been dismissed. Counsel advised that the Applicant has requested that the Board make no decision on its jurisdiction to deal with the matter pending determination of his application for judicial review now before the Court.

[4]               That application has been perfected and is before the Court, awaiting determination of the application for leave, and if it is granted, a hearing date. The principal issue raised by the application for judicial review concerns the fairness of the procedure followed by the Minister's delegate in rendering the danger opinions, without providing an opportunity for the Applicant to know and comment upon the report made to that delegate. The issue arises in light of the decision of the Court of Appeal in The Minister of Citizenship and Immigration v. Bhagwandass (Docket A-850-99), 2001 FCA 49, March 7, 2001.

[5]               In May 2001 the Applicant moved to Montreal to reside with his family. He advised Citizenship and Immigration Canada of the move. On June 6^th he was arrested in Montreal by immigration authorities. On June 7^th he was removed to Vancouver and on Friday, June 8^th he was advised that he would be removed on Tuesday, June 12, 2001 at 2:00 a.m.

[6]               The application for a stay was filed in the Court on the afternoon of Monday, June 11^th, to be heard on an urgent basis. I agreed to hear the matter then. Although the removal order made against the Applicant was nearly six months old, implementation of that order was effected very quickly, effectively five days, including Saturday and Sunday, after the Applicant's arrest in Montreal.

[7]               After hearing counsel for the Applicant and for the Minister, I determined that the stay should be granted.

[8]               In my opinion the application for leave and for judicial review, now before the Court, raises a serious issue to be tried in light of the decision of the Court of Appeal in Bhagwandass. Further it is my opinion that there would be irreparable harm if the Applicant were now removed from Canada and subsequently his application for leave and for judicial review were to result in a determination in his favour with the result that the Minister's danger opinions would be set aside. If he were now to be removed under the outstanding removal order, any appeal to the Appeal Division of the Immigration and Refugee Board concerning the validity of that order would be moot, and any possibility of having the matter considered would be lost. Further, if he were now removed from Canada and subsequently a decision is made to allow his application for judicial review, Canada's reputation for fairness in the process in dealing with immigrants and permanent residents, as the Applicant is, would be tarnished, since he would have been removed before his remedies contesting the validity of the process of removal had been exhausted.

[9]               In the circumstances, I conclude that the balance of convenience lies with the Applicant.

[10]             An Order issued granting the Applicant's for a stay of the removal order, pending determination of his application for leave and for judicial review.

(Sgd.) "W. Andrew MacKay"                                 Judge

Vancouver, British Columbia

13 June 2001

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                              IMM-483-01

STYLE OF CAUSE:             Trong Vonh Bui v. The Minister of Citizenship and Immigration

PLACE OF HEARING:Vancouver, British Columbia

DATE OF HEARING:           June 11, 2001

REASONS FOR ORDER OF THE COURT BY: MacKay J.

DATED:                                  June 13, 2001

APPEARANCES:    

Vance Goulding                                                         FOR APPLICANT     

Mark Sheardown                                                        FOR RESPONDENT

SOLICITORS OF RECORD:

Vance Goulding                                                         FOR APPLICANT

Vancouver, British Columbia

Deputy Attorney General of Canada                        FOR RESPONDENT

Department of Justice

Vancouver, British Columbia