Yamani v. Canada ( Solicitor General )
IMM-4557-93
MacKay J.
20/6/94
9 pp.
Application for injunction against issuance of removal order pending disposition of applications for judicial review -- After 1988 application for citizenship, Security Intelligence Review Committee (SIRC) reporting applicant person described in Immigration Act, s. 19(1)(g) -- Governor General in Council directing Solicitor General to certify applicant person so described -- Application of test set out in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 -- Application allowed -- (1) Serious issues raised in applications for judicial review, including Charter questions relating to validity and application of provisions of Act concerning procedures for dealing with persons determined to be security risk, which may require exclusion from Canada -- (2) Applicant, family will suffer irreparable harm, not redressable in monetary damages, if stay not granted -- Deportation order inevitable result of inquiry[cad 211]Immigration Act, s. 49 prohibiting execution of deportation order pending disposition of any appeal from adjudicator's decision -- Continued residence in Canada not immediately affected by issuance of deportation order, but some risk upon issuance thereof applicant may be detained, or subjected to regular, frequent reporting requirements -- Either possibility adversely affecting ability to pursue continuing university graduate studies -- If deportation order issued against applicant, could not sponsor wife's application for permanent residence, her status as visitor unlikely to be extended so that she would also be subject to inquiry leading to her removal from Canada -- If applicant and wife deported will probably be sent to different countries -- Stress adversely affecting children -- Adverse effects upon family members may be considered in assessing irreparable harm: Toth v. Canada (Minister of Employment and Immigration), [1989] 1 F.C. 535 (C.A.) -- (3) Balance of convenience favouring grant of stay -- Recognizing grant of stay would constitute irreparable harm to public interest, following factors significant in seeking to balance competing claims: (1) SIRC report making no finding of risk of immediate harm or danger; (2) no likelihood of "provoking cascade of stays and exemptions"; (3) Crown not pursuing maintenance of statutory processes with great urgency, as matter of applicant's status under consideration since 1988; (4) grant of stay simply preserving status quo; (5) efficiency of processes in dealing with applicant's situation fostered if question of deportation order pursued only after applications for judicial review finally determined -- Stay should interfere minimally with inquiry process, and relate only to likely decision arising from resumed inquiry -- No removal order or deportation order to issue against applicant pending final determination of applications for judicial review -- Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(g), 27(3) (as am. by S.C. 1992, c. 49, s. 16), 32, 39, 40 (as am. idem, s. 30), 49 (as am. idem, s. 41) -- Federal Court Act, R.S.C., 1985, c. F-7, s. 18.2 (as enacted by S.C. 1990, c. 8, s. 5).