Moktari v. Canada ( Minister of Citizenship and Immigration )
IMM-4922-97
Lutfy J.
1/12/97
8 pp.
Application for stay of deportation order to Iran-Applicant seeking leave, judicial review of decision of immigration officer denying request to depart Canada to country where he will not face danger-Urgency surrounding application for injunctive relief not permitting thorough review of procedural issues and distinction between Sivaraj v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 64 (F.C.T.D.) and Sivakumar v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 872 (C.A.) concerning choice of proceedings-In June 1994, after three prior convictions since arrival in Canada, applicant sentenced to four-year term of imprisonment for trafficking in cocaine-On September 5, 1996, deportation order issued against applicant on grounds convicted of offence for which term of imprisonment of more than six months imposed-Serious issue raised herein not substantially different from those in Sivakumar and Sivaraj-Execution of deportation orders challenged on Charter grounds-Applicant raising serious issue-No serious issue raised, however, in asserting deportation must be postponed pending outcome of application, yet to be filed, under Immigration Act, s. 114(2)-Applicant's evidence concerning irreparable harm general, limited-No evidence of risk assessment made by respondent concerning applicant's return to Iran-Sufficient uncontradicted evidence that, as army deserter, applicant would face certain consequences in Iran not compensable in damages-Irreparable harm linked directly to serious issue-Success applicant may achieve herein of no practical effect if, as army deserter, returned to Iran-Balance of convenience also rests with applicant-Court must weigh irremediable consequences of applicant's return to Iran against respondent's authority, statutory duty in executing deportation order-Balance of convenience favouring granting of stay-Application granted-Immigration Act, R.S.C., 1985, c. I-2, s. 114 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 29; c. 29, s. 14; S.C. 1990, c. 38, s. 1; 1992, c. 49, s. 102; 1994, c. 26, s. 36).