Date: 19991027
Docket: IMM-4951-99
BETWEEN:
JAIME VALDEMAR APARICIO
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
INTRODUCTION
[1] On October 7, 1999, the applicant was advised that the Minister of Citizenship and Immigration, through her delegate, had formed the opinion that he was a danger to the public in Canada, pursuant to subsection 70(5) of the Immigration Act.1
[2] On the same day, the applicant filed an application for leave and for judicial review of the Minister"s danger opinion.
[3] On October 8, 1999, a departmental official advised that the applicant would be removed to Portugal, his country of citizenship, the following week.
[4] On October 12, 1999, the applicant"s counsel was informed that the deportation was to be executed on October 13, 1999 at 2:00 p.m. and he immediately filed a motion to stay the execution of the deportation order.
[5] This motion to stay was first scheduled to be heard on October 13, 1999 at 10:00 a.m. The Court requested the respondent to file materials and the matter was continued to be heard on October 15 and 18, 1999. The respondent agreed to keep in abeyance the applicant"s removal from Canada, pending the adjudication of this motion to stay.
FACTUAL BACKGROUND
[6] The applicant, 44 years of age, is a permanent resident of Canada who was sponsored to this country by his father some thirty-two years ago.
[7] Since 1975, the applicant has acquired a lengthy criminal record. In September 1999, he completed serving a ten-month sentence, one which is substantially longer than his other terms of incarceration. He has also been fined and been made subject to probation orders.
[8] On May 27, 1999, an adjudicator issued a deportation order against the applicant. An appeal before the Immigration Appeal Division was filed by the applicant from this deportation order. This appeal triggered the statutory stay of the deportation order, pursuant to paragraph 49(1)(b) of the Immigration Act.
[9] The applicant has been in immigration detention since the completion of his last sentence in September 1999.
ANALYSIS
[10] On this motion to stay, the applicant has the burden of establishing that: (a) there exists a serious issue concerning his application for judicial review; (b) his immediate deportation to Portugal would cause irreparable harm; and (c) the balance of convenience favours his remaining in Canada pending the disposition of the main proceeding.
| i) Serious issue |
[11] The serious issue raised by the applicant is that he is still subject to a statutory stay, pursuant to paragraph 49(1)(b) of the Immigration Act, because his appeal before the Immigration Appeal Division has yet to be dismissed. I agree that this issue is neither frivolous nor vexatious for two reasons.
[12] First, there are conflicting decisions in the Trial Division as to whether the Minister"s danger opinion, in and of itself, ends the statutory stay. In Solis v. Canada (Minister of Citizenship and Immigration),2 Justice Gibson concluded that the statutory stay remained in effect, notwithstanding the issue of the Minister"s danger opinion, until the Immigration Appeal Division had disposed of the appeal from the deportation order. In Pratt v. Canada (Minister of Citizenship and Immigration)3 and in The Minister of Citizenship and Immigration v. Condello,4 Justice MacKay concluded that the Minister"s danger opinion under subsection 70(5) "effectively removed"5 the statutory stay under paragraph 49(1)(b), even though the appeal before the Immigration Appeal Division was still pending. In Darabanitei v. The Minister of Citizenship and Immigration,6 my former colleague Justice Wetston reached the same conclusion.
[13] In Pratt, Justice MacKay relied on the following statement of the Court of Appeal in The Minister of Citizenship and Immigration v. Williams:7
| The effect then of the Minister forming and giving notification of her opinion under s. 70(5) is to substitute a right of judicial review for a right of appeal of the deportation order, a substitution of the exercise by the Minister of his discretion to relieve from lawful deportation for the exercise of a similar discretion of the Appeal Division under s. 70(1)(b), and the substitution of a right to seek a judicial stay in lieu of a statutory stay. |
[14] The reasons for decision in Solis were issued the day prior to the hearing in Williams. There is no indication that either Solis or the specific issue raised in that case were directly considered by the Court of Appeal in Williams. Pratt and Condello were, as noted earlier, decided after Williams. There was no appeal nor certification of a serious question in Solis, Pratt, Condello and Darabanitei.
[15] The thoughtful analysis of Justice MacKay in Pratt and Condello was based on dicta in Williams. However, it is fair to say that the Court of Appeal has not specifically and directly addressed whether the statutory stay survives the Minister"s danger opinion while the Immigration Appeal Division has yet to dismiss the appeal from the deportation order for lack of jurisdiction. In my view, the applicant has raised a serious issue on the basis of the conflicting decisions in the Trial Division.
[16] There is a second reason, in my view, to conclude that the applicant has raised a serious issue on this motion to stay. Despite the decisions in Pratt, Condello and Darabanitei, motions continue to be filed, on behalf of the respondent, before the Immigration Appeal Division seeking the dismissal of appeals on the ground of lack of jurisdiction. This ongoing practice puts into question the "automatic" extinguishment of the appeal and the statutory stay upon the issuance of the danger opinion.
[17] Even in this case, as recently as October 12, 1999, an immigration official filed a notice of motion with the Immigration Appeal Division seeking an order that this applicant"s appeal be dismissed. Counsel for the respondent could not explain why this process continues in light of the Minister"s position that her danger opinion, in and of itself, extinguishes both the right of appeal of the deportation order and the statutory stay created by paragraph 49(1)(b ). This is an issue, neither frivolous nor vexatious, which requires further consideration and clarification.
[18] While I am fully satisfied, at least for the purposes of this motion, that the applicant has raised a serious issue concerning the statutory stay, I also expressed two other concerns to counsel during the hearing. First, the standard of review of reasonableness simpliciter, which may be applicable concerning the refusals of applications pursuant to subsection 114(2) of the Immigration Act,8 may also be relevant on judicial review of the Minister"s danger opinions. In Williams ,9 the Court of Appeal noted the similarity between an appeal from a deportation order under paragraph 70(1)(b) of the Act and an exercise of the Minister"s discretion on humanitarian and compassionate grounds under subsection 114(2). The second concern I raised was admittedly not so much grounded in law, but rather a reaction to the timing of the applicant"s deportation. The respondent has attempted to execute the removal order within a week of the danger opinion and even prior to the filing of the motion to dismiss the Immigration Appeal Division appeal. This appears more hasty than "as soon as reasonably practicable"10 may require in the context of the applicant"s relatively short, although repeated, sentences and the thirty-two years he has spent in Canada as a permanent resident. Also, if the immigration manager"s notation that the applicant is "involved in the drug trade" is intended to suggest more than possession of a narcotic, the comment is not supported in the material before me.11
| (ii) Irreparable harm |
[19] The applicant argues that if he is deported immediately, the Immigration Appeal Division will have lost its equitable jurisdiction to reopen his appeal from the deportation order, in the event that he succeeds in having the Minister"s danger opinion set aside on this application for judicial review. The respondent characterizes this position as speculative and without merit.
[20] This is another area of the law which is very fluid. In Canada (Minister of Citizenship and Immigration) v. Harrison,12 Justice Reed concluded that, in the current state of the law, she could not "interpret the provisions of the Immigration Act as dictating that jurisdiction [of the Immigration Appeal Division] is terminated when a deportation order is executed, if the individual has filed a motion to reopen before the execution of the deportation order."13 More recently, in Toledo v. Canada (Minister of Citizenship and Immigration),14 Justice Sharlow reached the same conclusion where the individual"s motion to reopen an appeal of a deportation order was made, but not adjudicated upon, prior to the execution of the removal. In her words:
| The question, then, is whether the Appeal Division has the jurisdiction to hear the reopened appeal of a deportation order, if the motion to reopen is made before the deportation order is executed but is not granted until afterward. On this point the Immigration Act is silent, and so the question becomes whether or not the existence of section 75 necessarily implies that the Appeal Division has that jurisdiction. |
...
| ... the Appeal Division must have the jurisdiction in this case not only to consider the motion to reopen, but to grant the motion and hear the reopened appeal, despite the execution of the deportation order. |
[21] Counsel was not able to provide any case law, however, on the issue raised by the applicant in this proceeding. Does the Immigration Appeal Division have the equitable jurisdiction to reopen the appeal from a deportation order after the Minister"s danger opinion has been set aside by way of judicial review but where the applicant has been deported? This issue remains unresolved. The recent decisions, which did not involve danger opinions, seem to require that the motion to reopen be filed prior to the execution of the removal order. In this context, I am satisfied that, in the circumstances of this case and with the current state of the case law, the applicant can be said to suffer an irreparable harm if his application for judicial review were granted and he were required to file a motion to reopen before the Immigration Appeal Division from outside Canada.
| (iii) Balance of convenience |
[22] The applicant is prepared to remain in immigration detention pending the final disposition of this application for judicial review in the Trial Division. This undertaking, in my view, resolves the issue of the balance of inconvenience in his favour. There was no suggestion that the respondent would assure the applicant"s return to Canada if his application for judicial review of the danger opinion were successful. The legal issues at play in this proceeding, the applicant"s presence in Canada for thirty-two years and his undertaking to remain in immigration detention outweigh, in this particular case, the public interest in the Minister executing deportation orders as soon as reasonably practicable.
CONCLUSION
[23] Accordingly, the applicant"s motion will be granted. The conflicting case law since the decision in Solis makes it inappropriate, in my view, to continue to rely on the statutory stay. An order will go granting a judicial stay of the applicant"s deportation, pending the final disposition of his application for leave and for judicial review in the Trial Division. The parties may seek directions if they wish this proceeding to be dealt with on an expedited basis.
"Allan Lutfy"
Ottawa, Ontario J.F.C.C.
October 27, 1999
__________________3 (1997), 130 F.T.R. 137at paragraphs 49 to 55.
6 An unreported order in (25 July 1997), No. IMM-2524-97 (F.C.T.D.).
7 [1997] 2 F.C. 646 (C.A.) at paragraph 15.
8 Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 at paragraphs 57-62.
9 Supra note 7 at paragraph 13.
10 Section 48 of the Immigration Act provides that a removal shall be executed as soon as reasonably practicable.
11 Page 7 of the documents attached to the affidavit of the respondent"s deponent.