Kwan v. Canada (Minister of Citizenship and Immigration), (1998) 159 F.T.R. 262 (TD)

• Judge: Blais, J.
• Court: Federal Court (Canada)
• Case Date: December 04, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 159 F.T.R. 262 (TD)

Kwan v. Can. (M.C.I.) (1998), 159 F.T.R. 262 (TD)

MLB headnote and full text

Temp. Cite: [1998] F.T.R. TBEd. DE.085

Wing Cho Kwan (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-6181-98)

Indexed As: Kwan v. Canada (Minister of Citizenship and Immigration)

Federal Court of Canada

Trial Division

Blais, J.

December 7, 1998.

Summary:

Kwan applied for a stay of a deportation order pending his application for leave to commence an application for judicial review of an immigration officer's decision.

The Federal Court of Canada, Trial Divi­sion, dismissed the application.

Aliens - Topic 1797

Exclusion and expulsion - Deportation of persons in Canada - Deportation order - Execution of - [See Aliens - Topic 1798 ].

Aliens - Topic 1798

Exclusion and expulsion - Deportation of persons in Canada - Deportation order - Execution precluded where another judicial order would be violated - Section 50 of the Immigration Act pre­cluded execu­tion of a deportation order where it would result in a violation of another judicial order - Also, execution was stayed until a jailed deportee had finished serving his sentence - Kwan was ordered deported - He was on parole -He sought a stay of execution arguing that he was still an inmate and that the Minister had to wait until the end of the probation period to deport him - Kwan also argued that de­portation would force him to violate the conditions he signed pursuant to the Parole Board decision - The Federal Court of Canada, Trial Divi­sion, dismissed the ap­plication - See paragraphs 1 to 18.

Aliens - Topic 1800

Exclusion and expulsion - Deportation of persons in Canada - Deportation or removal order - Stay of - Kwan argued that deportation to China would cause him irreparable harm in that: (1) after serving time for drug trafficking, he was not a danger to the public and was back work­ing, trying to get his life in order; (2) it would split up his family; (3) he would be subject to sanctions under the Criminal Code of the People's Republic of China - The Federal Court of Canada, Trial Divi­sion, rejected the argument - See para­graphs 21 to 31.

Cases Noticed:

Wood v. Minister of Employment and Immigration (1986), 2 F.T.R. 58 (T.D.), consd. [para. 11].

Cuskic v. Canada (Minister of Citizenship and Immigration) (1997), 130 F.T.R. 232 (T.D.), consd. [para. 12].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, appld. [para. 19].

Statutes Noticed:

Criminal Code of the People's Republic of China, sect. 7 [para. 28]; sect. 171 [para. 29].

Immigration Act, R.S.C. 1985, c. I-2, sect. 48 [para. 5]; sect. 50 [para. 6].

Counsel:

Wendy A. Danson, for the applicant;

Brad Hardstaff, for the respondent.

Solicitors of Record:

McCuaig Desrochers, Edmonton, Alberta, for the applicant;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent.

This application was heard by telecon­ference between Ottawa, Ontario and Ed­monton, Alberta, on December 4, 1998, by Blais, J., of the Federal Court of Canada, Trial Division, who delivered the following decision at Ottawa, Ontario, on December 7, 1998.