Date: 20010327
Docket: IMM-646-01
Neutral Citation: 2001 FCT 246
Halifax, Nova Scotia, this 27th day of March, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
LANCE RONALD SYLVESTER BYNOE
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
[1] This is a motion by the applicant for an order staying the removal order issued against the applicant on January 15, 2001 whereby the applicant was to be removed from Canada on March 29, 2001.
[2] The applicant is a permanent resident of Canada having been granted landed immigrant status on April 18, 1990. He was convicted of the offence of conspiracy to commit the indictable offence of trafficking in a narcotic on May 4, 1999 and received a sentence of 34 months imprisonment.
[3] His parole reports are excellent in that he obtained a rating of 14 which means that in his classification, 4 out of 5 offenders will not commit an indictable offence after release.
[4] The applicant has a common-law wife of five years and a son three years old. His father lives in Toronto.
[5] On October 15, 1999, he was found to be a danger to the public in Canada pursuant to subsection 70(5) of the Immigration Act (the "Act").
[6] The applicant provides care for his child and for his common-law wife who is sickly.
[7] In order to grant a stay, I must be satisfied that the applicant has met the tri-partite test outlined in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.). The applicant must meet all three parts of the tri-partite test. Summarized, these tests are:
1. Has the applicant demonstrated that he has a serious issue to be tried?
2. Has he demonstrated that he would suffer irreparable harm if the stay order was not granted?
3. Has he demonstrated that the balance of convenience considering the total situation of both parties favours the order being granted?
Serious Issue
[8] I am satisfied that the applicant has raised a serious issue in that he has stated that the filing of his out of time application for leave and for judicial review brought into play the statutory stay of subparagraph 49(1)(c)(i) of the Act. This Court is divided on that issue. This raises a serious issue to be tried.
Irreparable Harm
[9] The applicant has just been reunited with his common-law wife and son, both of whom he cares for. As well, the applicant is certainly well on the road to rehabilitation. It would result in irreparable harm in this case to the applicant should this situation be changed pending the determinations of his applications.
Balance of Convenience
[10] The balance of convenience favours the applicant so as to allow him to stay in Canada until his applications are decided. If the applicant is unsuccessful, the respondent can then remove him from Canada. There should not be a lengthy delay.
[11] The applicant's motion is allowed.
ORDER
[12] IT IS ORDERED that the removal order issued against the applicant on January 15, 2001 is hereby stayed until the applicant's application for extension of time to file his judicial review, his application for leave to file a judicial review, his application for judicial review (if the extension of time and leave are granted) and his H & C application (if one has been filed) are finally dealt with by the Court.
"John A. O'Keefe"
J.F.C.C.
Halifax, Nova Scotia
March 27, 2001.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-646-01
STYLE OF CAUSE:LANCE RONALD SYLVESTER BYNOE
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, MARCH 19, 2001
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Mr. Munyonzwe Hamalengwa
FOR APPLICANT
Mr. Martin Anderson
FOR RESPONDENT
SOLICITORS OF RECORD:
Munyonzwe Hamalengwa
45 Sheppard Avenue East, suite 900
Toronto, Ontario M2N 5W9
FOR APPLICANT
Department of Justice
Ontario Regional Office
130 King Street West
Toronto, ON M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010327
Docket: IMM-646-01
Neutral Citation: 2001 FCT 246
BETWEEN:
LANCE RONALD SYLVESTER BYNOE
Applicant
- and -
THE MINISTER OF CITIZENSHIP &
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER