Toronto, Ontario, August 23rd, 2005
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for a Stay order by Mervyn Gayle. He asks that the execution of his Removal be stayed until the Federal Court has determined the outcome of his Application for Leave and Judicial Review.
[2] At the conclusion of the hearing, I informed the parties to these proceedings that the Application for Stay is denied and I would write brief reasons.
[3] I would want to make it clear that these reasons only apply to the present application for stay and for no other application that the Applicant may wish to make.
[4] It is trite law that for a removal order to be stayed, the Applicant must show that a serious issue has been raised, that the Applicant will suffer irreparable harm if the Applicant is removed and that the balance of convenience is in his favour. These requirements are conjunctive, that is, the Applicant must satisfy all three branches of the test before the Court will grant an Order to Stay a removal.
[5] After reading the material submitted by both the Applicant and the Respondent and after hearing the submissions of the parties over a period of two hours, it is very clear that the Applicant would not suffer irreparable harm if removed from Canada.
[6] The Applicant submits, as to the issue of irreparable harm, the failure of the removal officer to consider the best interests of the Applicant's wife and of his child who is not the child of the Applicant's present wife. The custody of his child is not with the Applicant but with the Applicant's ex-wife, the child's mother.
[7] With regard to the best interests of the child, no evidence has been made to indicate that the Applicant has taken an interest in the child.
[8] There is no evidence that the Applicant has supported the child, either morally or financially.
[9] After the hearing, I stated, on the subject of a serious issue, I was satisfied that the claimant showed a "serious" issue. I said this, as I was satisfied, that because the bar to show a serious issue is very low, the issue raised by the Applicant concerning his criminality and his good behaviour for the last four or so years may not have been sufficiently considered by the removal officer.
ORDER
THIS COURT ORDERS THAT the Applicant has failed to show irreparable harm, the present application for stay is denied.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4934-05
STYLE OF CAUSE: MERVYN GAYLE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 22, 2005
APPEARANCES:
Mario Bellissimo FOR APPLICANT
Alexandre Tvadian FOR RESPONDENT
SOLICITORS OF RECORD:
Ormston, Bellissimo, Younan
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada