Federal Court Decisions

Date: 20040220

Docket: IMM-896-04

Citation: 2004 FC 256

BETWEEN:

                                                                 HUNG PONG MAN

                                                                                                                                                       Applicant

                                                                                 and

                                                  THE MINISTER OF CITIZENSHIP

                                                           AND IMMIGRATION and

                                           THE SOLICITOR GENERAL OF CANADA

                                                                                                                                               Respondents

                                                            REASONS FOR ORDER

LEMIEUX J.

[1]                 These reasons reflect the oral decision rendered when granting Mr. Man a stay of his removal to China.

[2]                 Mr. Man has been in Canada for 15 years and is 40 years old. His spouse of 15 years is Sui Fong Fung. She is now a Canadian citizen. They have three children born in Canada ages 14, 12 and 3. He is his family's sole support.

[3]                 He made an H & C application which was turned down in January of this year. That application was apparently compelled after a danger opinion was issued against him which blocked his appeal from a deportation order to the Immigration Appeal Division which had jurisdiction to stay his deportation. He had been landed in 1991 under a special programme as a result of the Tian An Men Square massacre.

[4]                 The danger opinion was issued against Mr. Man after his 1994 conviction for possession of heroin for the purpose of trafficking. In 1998 he was convicted for possession of cocaine for the purpose of trafficking.

[5]                 I was of the view a serious question arose:

1)          whether the H & C officer erred in failing to consider Mr. Man's rehabilitation as required by the H & C guidelines;

2)          whether the decision was substantively reasonable on the test enumerated by the Federal Court of Appeal in Hawthorne v. Canada, [2003] 2 F.C. 555 at paragraph 36; and

3)          whether the H & C officer erred in finding, if the family was broken up, the family without Mr. Man would find support in Canada.

[6]                 I found irreparable harm if his removal was not stayed. He is the family's sole source of support. In Hawthorne, supra, a stay had been issued in similar circumstances (see paragraph 20).

[7]                 Having met the serious issue and irreparable harm tests, the balance of convenience favoured the applicant.

[8]                 I granted a stay pending determination of leave and judicial review.

(Sgd.) "F. Lemieux"

      Judge

Vancouver, British Columbia

February 20, 2004

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-896-04

STYLE OF CAUSE:                           Hung Pong Man v

                                            The Minister of Citizenship and Immigration et al.

PLACE OF HEARING:                     Vancouver British Columbia

DATE OF HEARING:                       February 16^th, 2004

REASONS FOR ORDER : LEMIEUX J.

DATED:                                                February 20^th, 2004

APPEARANCES:

Darryl W. Larson                                                                           FOR APPLICANT

Esta Resnick                                                                                    FOR RESPONDENTS

SOLICITORS OF RECORD:

Embarkation Law Group                                                               FOR APPLICANT

Vancouver BC

Morris Rosenberg                                                                           FOR RESPONDENTS

Deputy Attorney General of Canada