Muncan v. Canada ( Minister of Citizenship and Immigration )
IMM-2701-97
Campbell J.
24/2/98
10 pp.
Federal Court Judges' discretion under Federal Court Act, s. 18.2 to grant stay applications where relating to removal orders under Immigration Act-Mixed judicial opinion as to scope of that discretion-Application for stay of removal order-Applicant immigrated to Canada in 1975 when 7 years old-Now 29 with child born in Canada-Over ten-year period, convicted of 23 criminal offences-Declared danger to public in 1996-Deportation order issued in 1997-Review of conflicting case law-Application on injunction can be related to general merits and surrounding context, not simply limited to deportation order-Serious issue-Irreparable harm to applicant if removed to Yugoslavia, halfway around world, where hasn't lived since 7 years old and not speaking language-If wanted to contest case meaningfully, no possible way applicant could do it from there-Balance of convenience certainly with applicant-Stay granted until decision made on extension of time and leave application itself-Will have to reapply if extension of time and leave both granted-No jurisdictional limit to Court's discretion under Act, s. 18.2-In application for stay of removal order under Immigration Act, issue whether fair and just to grant it-Issue not legal worth of deportation order, issue whether appropriate to allow removal order to take effect while judicial issue pending-Answer requiring analysis of all facts in legal and practical context of applicant's case-Thus, in considering entire context in deciding whether to exercise discretion provided under Act, s. 18.2, far too technical perspective to require deportation order to be challenged on judicial review or to limit application of appropriate injunctive test to circumstances of deportation order itself-Tripartite test for granting stay found in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 to be applied to all facts under consideration in judicial review application outstanding-Serious question that must exist has to do with merit of grounds of judicial review application itself, and irreparable harm and balance of convenience considerations include reference to practical impact removal order will have on applicant and family-On irreparable harm question, each case must be decided on its own merits-To say harm must suit particular guideline, such as threat to applicant's life or safety setting, unnecessary limit upon discretionary powers in Act, s. 18.2-Discretion under s. 18.2 exercised with fullest vision possible-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.2 (as enacted by S.C. 1990, c. 8, s. 5).