CITIZENSHIP AND IMMIGRATION |
Exclusion and Removal |
Inadmissible Persons |
Melo v. Canada (Minister of Citizenship and Immigration)
IMM-742-00
Pelletier J.
27/3/00
14 pp.
Application for stay of 1994 deportation order of applicant as result of criminality--Father of three children--Thriving extended family in Canada--Court must decide whether applicant will be deported now, before hearing of judicial review of failed request to have deportation order reconsidered--Stay granted--Question whether decision in Shchelkanov v. Canada (Minister of Employment and Immigration) (1994), 76 F.T.R. 151 (F.C.T.D.) governing situation; if not, whether tri-partite test in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) satisfied--Shchelkanov deciding Court without jurisdiction to stay execution of valid deportation order pending disposition of some other proceeding which did not put into question validity of deportation order--However, Bal v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 199 (T.D.), where Noël J. (as he then was) decided he should assert jurisdiction until issue resolved by Court of Appeal, should be followed--As to application of Toth tri-partite test, serious issue to be tried: more sensitive consideration of children's interests might yield different result--Loss of benefit of application for judicial review constituting irreparable harm for purposes of this application: Suresh v. Canada, [1999] 4 F.C. 206 (C.A.)--Applicant's 33-year residence in Canada tilts balance of convenience in his favour--Stay conditional upon applicant's continuing to keep peace.