Aparicio v. Canada ( Minister of Citizenship and Immigration )
IMM-4951-99
Lutfy J.
27/10/99
10 pp.
Motion to stay execution of deportation order (to Portugal) following Minister's danger opinion-Lengthy criminal record-Motion allowed-Serious issue: applicant still subject to statutory stay pursuant to Immigration Act, s. 49(1)(b), as appeal before Immigration Appeal Division (IAD) yet to be dismissed-Conflicting decisions in Trial Division as to whether Minister's danger opinion, in and of itself, ending statutory stay and Court of Appeal has not specifically dealt with issue-Furthermore, motions continue to be filed, on behalf of respondent, before IAD seeking dismissal of proceedings on ground of lack of jurisdiction-This ongoing practice puts into question "automatic" extinguishment of appeal and statutory stay upon issuance of danger opinion-Two other concerns: standard of review of reasonableness simpliciter, which may be applicable concerning refusals of applications pursuant to Immigration Act, s. 114(2), may also be relevant on judicial review of Minister's danger opinions-Also, concern as to timing of applicant's deportation: respondent has attempted to execute removal order within one week of danger opinion and even prior to filing of motion to dismiss IAD appeal-This appears more hasty than "as soon as reasonably practicable" may require in context of applicant's relatively short, although repeated, sentences and 32 years spent in Canada as permanent resident-Irreparable harm: in view of uncertainty as to whether IAD has equitable jurisdiction to reopen appeal from deportation order after Minister's danger opinion has been set aside by way of judicial review, but where applicant has been deported, and of fact recent decisions seem to require motion to reopen be filed prior to execution of removal order, applicant can be said to suffer irreparable harm if his application for judicial review were granted and he were required to file motion to reopen before IAD from outside Canada-Balance of convenience: applicant's undertaking to remain in immigration detention pending final disposition of application for judicial review in Trial Division resolving issue of balance of convenience in his favour-Legal issues at play in proceeding, applicant's presence in Canada for 32 years and undertaking to remain in immigration detention outweighing public interest in Minister executing deportation orders as soon as reasonably practicable-Immigration Act, R.S.C., 1985, c. I-2, ss. 49(1)(b) (as am. by S.C. 1992, c. 49, s. 41), 114(2) (as am. idem, s. 101).