Date: 19990920
Docket: IMM-4651-99
BETWEEN:
FRANZ ROGER MARTIN and ADONIS GEORGE
KYRIAZIS MARTIN, by his litigation guardian SOPHIA KYRIAZIS
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
BLAIS J.
[1] The applicant seeks an order staying a deportation order scheduled to be executed on September 20, 1999.
[2] After a telephone conference held on Friday, September 17, 1999, I ordered that the applicant be denied on the ground that the applicant has not demonstrated that he will suffer irreparable harm if the deportation order is executed.
[3] I also informed the parties that written reasons for my order will follow. These are the reasons.
[4] The applicant immigrated to Canada in 1971.
[5] He was ordered deported on October 4, 1984 as a result of criminal convictions. The applicant appealed from this order to the Immigration Appeal Board and on January 16, 1995 the Board ordered deportation.
[6] The Minister brought a motion in 1986 to have the case reconsidered and the appeal dismissed as a result of the convictions of more criminal offences. On March 11, 1994, the appeal by the applicant was dismissed by the Board. The applicant sought to reopen the appeal before the Board by motion dated October 27, 1995 and this request to reopen was denied by the decision dated November 17, 1995.
[7] The judicial review of that decision was dismissed finally by the Court of Appeal by judgment dated December 17, 1997.
[8] The applicant is seeking to have his appeal reopened by the Appeal Division on the basis of new information which he believes is relevant to all of the circumstances of this case.
[9] The applicant suggests that the fact that he has a child born at the end of 1997 represents new information and in light of the new decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) [1999] S.C.J. No. 39, File No. 25823, July 9, 1999, the Immigration Appeal Division should reopen the case and assess the interest of the child before a decision be rendered to deport him from Canada.
[10] The applicant suggests that having the applicant separated from his child violates his rights under section 7 of the Charter of Rights and this Court should stay the removal order until the applicant has his child interests be assessed by the Immigration Appeal Division.
[11] The applicant has mentioned that he has not yet filed a request for reconsideration before the Immigration Appeal Division.
[12] The applicant has filed an application for leave of the decision of the removal order by an Immigration officer.
[13] The applicant suggests that to separate the applicant from his child born at the end of 1997 constitutes an irreparable harm because he will be out of the country for a long time.
[14] The respondent submits that the last decision by the Federal Court of Appeal was rendered at the end of 1997, at about the same time the applicant"s child was born.
[15] The respondent suggests that the question of the child interest could have been brought before the Court long before Friday, September 17, 1999 and that the applicant has waited until the deportation order was issued to raise that particular point before the Court.
[16] The respondent suggests that in that particular case the separation of the applicant"s child from his father does not constitute a sufficient element to stop the deportation order.
[17] The respondent also suggests that the deportation order is pending since 1984 and the applicant has no reason but his own attitude to be before the Court at this very last minute.
[18] This case is different from the Baker case, in this case, the applicant has a child and this child probably will stay with his mother here in Canada and will be safe.
[19] If the applicant is deported pursuant to the deportation order, he will obviously suffer some inconvenience but he is aware since 15 years that this deportation order is pending and he was also aware, as mentioned in his affidavit and the affidavit of his wife Sophia Kyriazis, that when they made the decision to have this child, the deportation order could be executed any time.
[20] I was not convinced by the applicant that he will suffer irreparable harm if deported from Canada, so it is not necessary to consider the two other elements of the test for a stay.
[21] For these reasons, the application for stay is denied.
Judge
OTTAWA, ONTARIO
September 20, 1999