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Stay decision

By immlawyer

Date: 20090830 Docket: IMM-2024-09 OTTAWA, ONTARIO, AUGUST 30, 2009 PRESENT:The Honourable Mr. Justice de Montigny BETWEEN: NGHIA TRONG NGUYEN-TRAN, a.k.a. TRAN TRONG NGHI NGUYEN and THE MINISTER OF CITIZENSHIP AND IMMIGRATION ORDER UPON MOTION on behalf of the applicant for an Order staying the execution of the removal order scheduled to take place on Monday, 31 August 2009, until the disposition of the underlying Application for Leave and Judicial Review of the decision by the Immigration Appeal Division dismissing his appeal against his removal order for inadmissibility for serious criminality; AND UPON reading the material before the Court; AND UPON hearing counsel for the parties by telephone conference; AND UPON directing myself to the tri-partite test for a stay first developed in the case of R.J.R. MacDonald Limited v. Canada ([1994] 1 S.C.R. 312), as applied to stays of deportation by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1998), 86 N.R. 302; AND UPON finding that the applicant has established a serious issue to be tried in relation to the underlying application challenging the decision of the Immigration Appeal Division. The applicant submits that the IAD erred in two respects, first in importing an aggravating factor (membership in a criminal gang) found in an unrelated enforcement section of the Immigration and Refugee Protection Act into its analysis under an H&C appeal pursuant to s. 67 of the Act, and second in holding that the applicant posed a secondary danger to the Canadian public because of a risk that someone might try to kill the applicant in public. While not expressing any opinion as to the merit of these arguments, they clearly can not be considered as manifestly without merit or frivolous and vexatious; AND UPON finding that the applicant would suffer irreparable harm if removed to Vietnam before the judicial review is determined, as it would make his return to Canada dependant upon the authorization prescribed by section 52 of the Act. Moreover, the removal of the applicant would seriously prejudice his ability to establish the so-called Ribic factors (as set out in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL)) in a new Immigration Appeal Division hearing, should this Court allow the underlying application and remit the matter back to the Board. Indeed, the IAD found in the impugned decision that the most compelling factors in favour of allowing the appellant?s appeal were the effect of his removal on his mother and sister. The removal of the applicant would seriously compromise his ability to successfully make this argument in a new hearing, if ever this Court were to overturn the IAD decision that is now the subject of the underlying application. AND UPON finding that in those circumstances, the balance of convenience favours the applicant. Considering the number of years the applicant has spent in Canada, the harm he would face upon removal is much greater than any inconvenience to the respondent in delaying his removal until the application for leave and judicial review is finally determined. THIS COURT ORDERS that this motion is granted. The removal of the applicant is therefore stayed, until the underlying application for leave and judicial review is finally determined. "Yves de Montigny" Judge

Full post as published by Canadian Immigration Blawg on August 30, 2009 (boomark / email).