Date: 20030922
Docket: IMM-4423-03
Citation: 2003 FC 1094
Toronto, Ontario, September 22nd, 2003
Present: The Honourable Mr. Justice Blanchard
BETWEEN:
CHI HAO LU
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is a motion for a stay of the execution of the Removal Order made against the applicant under which Order the applicant is to be removed from Canada on September 22, 2003, until such time as the pending Application for Leave and for Judicial Review has been dealt with by the Court.
Facts
[2] The applicant, Chi Hao Lu, was born in Saigon, Vietnam on December 25, 1963. He came to Canada on February 6, 1980 as a permanent resident. Both of his parents, his two brothers and two sisters are all citizens of Canada. The applicant also has a daughter, Sylvia Lu, who was born on June 12, 1994 in Kitchener, Ontario, and is therefore a Canadian citizen. The applicant was married but separated from his wife on July 1, 2000. His ex-wife lives in Kitchener with his daughter.
[3] The applicant was convicted of several criminal offences between 1983 and 1991; one count of robbery (March 24, 1983), one count of assault with a weapon (October 29, 1984), one count of attempt to break and enter with intent and fraudulently obtaining food and lodging (June 24, 1987), possession of property obtained by crime (June 30, 1987), possession of property obtained by crime (February 19, 1988), fraud under $1000, attempt to fraud under $1000, and uttering a forged document (all on October 29, 1991). Because of these criminal convictions, a removal order was issued against the applicant on April 22, 1986. The applicant appealed this decision to Immigration Appeal Division (IAD) and on January 5, 1987, the IAD issued an order staying the execution of the removal order on terms and conditions. By order dated March 30, 1989, the IAD continued the stay of execution of the removal order. By order dated February 21, 1992, on application by the respondent, the IAD cancelled the stay, dismissed the appeal and directed the execution of the removal order made on April 22, 1986 as soon as reasonably practical.
[4] On April 11, 2003, the applicant applied to have his appeal re-opened. He submitted that the IAD panel breached the rules of natural justice by failing to include a provision giving the applicant an opportunity to revisit the execution of the removal order should he be rehabilitated prior to the execution of the removal order.
[5] In their decision not to re-open the appeal, the Board stated that they were not satisfied that the IAD failed to observe a principal of natural justice when they granted the respondent's application to cancel the stay of execution of the applicant's removal order and dismiss the appeal in February, 1992. As there was no violation of a principle of natural justice, the requirements of s.71 of the IRPA were not met and the case could not be re-opened. The applicant now seeks to judicially review the decision of the IAD not to re-open his appeal.
[6] The applicant has held several jobs in Canada and considers himself to be a productive member of Canadian Society. Has not committed a crime or offense since his last conviction in October 28, 1991.
Analysis
[7] In order to succeed on his motion to stay the execution of the removal order, the applicant must establish that there is a serious issue to be tried, that he would suffer irreparable harm by reason of his deportation and that the balance of convenience lies in his favour.
Serious Issue
[8] The issue as to whether the IAD's equitable jurisdiction to re-open a hearing has been restricted by virtue of s. 71 of the Immigration and Refugee Protection Act (IRPA) has not yet been dealt with by this Court. A review of the clause by clause analysis of the section appears to support the respondent's contention that s. 71 explicitly defines the only ground, namely, natural justice, upon which the IAD can re-open an appeal. The determination of that issue will have a bearing on the Court's consideration of the other grounds raised by the applicant. I am of the view that the above issue should not be one determined in the context of a last minute stay application. Given the low threshold in order to meet the first branch of the tripartite test for a stay, I therefore find, that for the purposes of this motion, a serious issue has been established.
Irreparable Harm
[9] The applicant argues that since he never had any ties with Communist Vietnam, he should not be returned to that country. Although the documentary evidence refers to Vietnam's bleak human rights record, it does not support the premise that a person with the applicant's profile would be at risk if returned to Vietnam at this time. I find that the applicant's risk allegations to be speculative and unsupported by the evidence. Nor can such allegations support the applicant's alleged Charter violations. It is well established that Charter decisions, "cannot be based upon the unsupported hypotheses of enthusiastic counsel." (MacKay v. Manitoba, [1989] 2 S.C.R. 357, at 361-362)
[10] The consequences of this deportation, relocation and separation from family are unpleasant and distasteful. However, they do not in my view establish a prejudice that goes beyond that which is inherent in the notion of deportation itself.
[11] The applicant has had the benefit of a Pre-Removal Risk Assessment (PRRA) at which his circumstances and that of the country reports on Vietnam were considered. The PRRA officer determined that the applicant would not be subject to risk of unusual treatment or punishment should he be returned to Vietnam.
[12] On the evidence, I am in essential agreement with the respondent's argument. There is no legal or factual foundation for the applicant's arguments with respect to irreparable harm or any alleged Charter violation. In conclusion, the applicant has not satisfied me that he would suffer irreparable harm if removed to Vietnam.
Balance of Convenience
[13] In the circumstances, given the Minister's obligations to execute a removal as soon as practicable, the balance of convenience should favour the respondent.
Conclusion
[14] For the above reasons, the motion for a stay of the removal order will be dismissed.
ORDER
THIS COURT ORDERS that the motion for a stay of the removal order is dismissed.
"Edmond P. Blanchard"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4423-03
STYLE OF CAUSE: CHI HAO LU
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 22, 2003
REASONS FOR ORDER
AND ORDER BY: BLANCHARD J.
APPEARANCES BY: Mr. Frederick S. Wang
For the Applicant
Ms. Kareena R. Wilding
For the Respondent
SOLICITORS OF RECORD: Mr. Wang
Bay Street Immigration Lawyers
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030922
Docket: IMM-4423-03
BETWEEN:
CHI HAO LU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER