Portillo v. Canada ( Minister of Citizenship and Immigration )
IMM-337-98
Richard A.C.J.
7/8/98
13 pp.
Application to stay deportation order pending determination of three applications for leave and judicial review of (i) Minister's decision applicant danger to public in Canada pursuant to Immigration Act, s. 70(5), (ii) Minister's decision to remove him from Canada, and (iii) removal officer's decision to remove applicant on August 10, 1998-Applicant citizen of El Salvador-Landed in Canada as Convention refugee in 1984-In May 1993 report issued under Immigration Act, s. 27, alleging applicant permanent resident described in s. 27(1)(d)(ii), in that convicted of offence for which term of imprisonment of five years or more may be imposed-In August deportation order issued-In July 1994 Immigration and Refugee Board, Appeal Division (IAD) dismissing appeal therefrom-In 1995 CRDD determining applicant not Convention refugee-In December 1995 determined not to be member of Post-Determination Refugee Claimants in Canada Class-Arrested for removal from Canada in January 1998, but released on conditions-Leave to commence judicial review application, motion to reopen appeal to IAD granted-In June 1998 Minister's delegate determining applicant danger to public in Canada pursuant to s. 70(5)-Applicant having two infant children with Canadian citizen-Has sole custody of daughter, while son in Ministry home-Submissions restricted to irreparable harm, balance of convenience-Applicant's primary argument on irreparable harm that family will be irrevocably divided if deported-Maintaining if deported will be unable to take either child with him to El Salvador-Law divided on whether disruption of family, without more, constituting irreparable harm for purposes of granting stay of removal from Canada-Evidence applicant will have number of options in respect of both children if deported to El Salvador-Removal not automatically causing irrevocable division of family-Applicant not establishing irreparable harm will flow from deportation in respect of division of family-Applicant's secondary submission that if deported IAD will lose jurisdiction to entertain appeal thus causing him irreparable harm-On basis of Tsang v. Canada (Minister of Citizenship & Immigration) (1997), 37 Imm. L.R. (2d) 1 (F.C.A.), when danger opinion rendered under s. 70(5), applicant will lose right to appeal to Appeal Division if appeal hearing not commenced before July 10, 1995 (date s. 70(5) coming into force)-If applicant establishing hearing of appeal commenced prior to July 10, 1995 IAD will retain full equitable jurisdiction-If not establishing hearing of appeal commenced prior to July 10, 1995, no right of appeal according to Tsang-In either case, deportation not leading to irreparable harm-Applicant not establishing irreparable harm-Balance of convenience favouring respondent-Motion dismissed-Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(d)(ii), 70(5) (as am. by S.C. 1995, c. 15, s. 13)-Act to amend the Immigration Act and the Citizenship Act and to make a consequential amendment to the Customs Act, S.C. 1995, c. 15, s. 13(4).