Date: 20100714
Docket:
IMM-4049-10
Citation:
2010 FC 744
Ottawa,
Ontario, July 14, 2010
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Applicant
and
TALAL AL ACHKAR
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
The
respondent’s release could interfere with the Minister’s duty to Canadian
society, that of removing the respondent from Canada at the first reasonable
opportunity.
[2]
In
this case, the respondent exhausted all recourse open to him: in particular,
his refugee claim, his application on humanitarian and compassionate (H&C)
grounds and his pre-removal risk assessment (PRRA) application were all
rejected.
[3]
In
this case, the Immigration Division (ID) of the Immigration and Refugee Board agreed
to have the proposed guarantor guarantee the respondent’s release by paying
$700 without explaining how or why it deemed him able to act as guarantor. The
ID simply indicated that the guarantor was credible and that he testified in a
sincere manner. This is not enough.
[4]
However,
there is nothing in the evidence to show that the guarantor is able to ensure
that the respondent will comply with the conditions imposed on his release. The
decision of the ID does not take into consideration how the guarantor will be
able to exercise control over the respondent.
[5]
In
fact, the guarantor himself admitted that he did not know whether the
respondent would listen to him.
[6]
Considering
all of the above, the ID’s finding does not correctly apply paragraph 47(2)(b)
of the Immigration and Refugee Protection Regulations (SOR/2002-227)
(the Regulations), which states that a person who posts a guarantee must be able
to ensure that the person in respect of whom the guarantee is required will comply
with the conditions imposed.
[7]
The
decision, in itself, is unreasonable and demonstrates the existence of a serious
issue.
[8]
As
was explained in Canada (Minister of Public Safety and Emergency
Preparedness) v. Jemall Renee Wiseman, IMM-2417-07,
order dated June 21, 2007, written by Justice Michel Beaudry:
Also of concern is the fact that the Board
failed to assess whether the person posting the guarantee would be able to
ensure compliance in accordance with paragraph 47(2)(b) of the Immigration and
Refugee Protection Regulations S.O.R/2002-227 (the Regulations) while the two previous
boards had found that another bond guarantor was necessary.
The Court is of
the opinion that the applicant will suffer irreparable harm by the release of
the respondent with the conditions set by the Board in its decision. The
balance of convenience favours the applicant.
II. Preliminary remarks
[9]
Under
Rule 76 of the Federal Courts Rules, SOR/98-106, the style of cause is
amended to correct the name of the respondent, which is Talal AL ACHKAR,
and not Talal AL CHAKAR as indicated in the application for leave and
judicial review.
III. Introduction
[10]
The
Minister seeks to obtain an order from this Court staying the ID’s order to
release the respondent, which stay is sought until the next detention review or
pending determination of the application for leave and judicial review by this
Court.
[11]
The
Court accepts the applicant’s position and grants the stay based on the
supporting reasons.
IV. Facts
[12]
Certain
facts arise out of the affidavit of Marilyne Trudeau, Hearings Officer, dated
July 13, 2010, and the exhibits to the affidavit.
[13]
The
respondent, Talal Al Achkar, a 19-year-old citizen of Lebanon, was born on
August 3, 1990.
[14]
Mr. Achkar
and his father came to Canada on November 28, 2006, holding visitors’
visas.
[15]
On
February 2, 2007, after the start of the war in Lebanon, Mr. Achkar,
then a minor, and his father claimed refugee protection at the Gatineau immigration
office.
[16]
A
report under subsection 44(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA) was then written against Mr. Achkar,
in accordance with section 41 and paragraph 20(1)(a) of the
IRPA, and a conditional departure order was issued against him.
[17]
On
July 11, 2010, Mr. Achkar was released by the Gatineau Police Force then
immediately handed over to and detained by the Canada Border Services Agency
(CBSA) because it considered that it had grounds to believe that Mr. Achkar
would not voluntarily appear for his removal from Canada.
[18]
On
July 12, 2010, Mr. Achkar was met by an immigration officer. He then
admitted that he had not reported his changes of address, that he did not
currently have a fixed address, that he had a spouse in Canada who was
pregnant, but that he did not know her surname or telephone number.
[19]
The
applicant has no information on Mr. Achkar’s spouse.
[20]
On
July 13, 2010, the grounds for Mr. Achkar’s detention were reviewed
by the ID.
[21]
Mr. Achkar
presented an alternative to his detention, through Danny Camara, the spouse of his
spouse’s mother, who offered to guarantee compliance with the conditions of
release by depositing $700.
[22]
When
he testified, Mr. Camara admitted that he had only known Mr. Achkar
since March 2010, since he had been living with his step-daughter in his
home.
[23]
Mr. Camara
admitted that he was completely unaware of Mr. Achkar’s situation with
respect to immigration and the existence of criminal charges against him.
[24]
Mr. Camara
stated that he had had very few conversations with Mr. Achkar and that he [TRANSLATION]
“had not told [him] his life story”.
[25]
Mr. Camara
testified that he did not know whether Mr. Achkar would listen to him when
he came home.
[26]
The
alternative to detention proposed by Mr. Achkar is not reasonable:
a. Mr. Achkar
failed to comply with the conditions imposed and did not notify the CBSA of his
changes of address;
b. If he had not
been arrested by the police, he would still be in Canada illegally;
c. Mr. Achkar
currently faces outstanding criminal charges for three recent criminal offences;
d. The detention
would not be long considering Mr. Achkar’s imminent removal because the
CBSA will request the withdrawal or stay of criminal charges to allow his
removal to take place in the shortest time possible;
o such requests
for withdrawal or stay of criminal charges is a common practice to carry out
removal;
o in the
circumstances, it was premature to talk about postponing removal, considering
information was unavailable at the time of reviewing the grounds for detention
in the first 48 hours;
e. While the Court
recognizes Mr. Camara’s willingness to help, he would not be able to exercise
sufficient control over Mr. Achkar;
f.
The
level of familiarity between Mr. Achkar and Mr. Camara was not sufficient
to exercise control over Mr. Achkar, considering that they have only known
each other for three months, that during this period, they have had very little
communication and that Mr. Camara was not aware of Mr. Achkar’s
criminal record or immigration file;
g. Mr. Camara
himself stated that did not know whether Mr. Achkar would listen to him
when he came home.
[27]
The
ID rendered its decision orally.
[28]
In
its reasons, the ID determined that Mr. Camara was a credible person who
testified in a sincere manner.
[29]
In
its reasons, the ID stated that Mr. Achkar was a flight risk.
[30]
In
its reasons, the ID stated that it could not conclude that Mr. Achkar had knowingly
moved to avoid immigration and stated that it assumed that he did not provide
the name and telephone number of his spouse because he did not want to
embarrass her and her family.
[31]
In
its reasons, the ID did not mention the degree of familiarity or relationship
between Mr. Achkar and Mr. Camara.
[32]
In
its reasons, the ID did not mention Mr. Camara’s ability to exercise
sufficient control over Mr. Achkar.
[33]
In
its reasons, the ID did not explain how the conditions of release were
sufficient to counterbalance the fact that Mr. Achkar was a flight risk.
[34]
Therefore,
the ID made an offer of release based on the following terms:
a) Danny Camara
must provide $700;
b) the
respondent must report at the dates, times and locations determined by the CBSA
or the ID;
c) the
respondent must report to a CBSA officer within 72 hours of his release and
twice a week after that;
d) the
respondent must confirm his departure on the date determined by the CBSA;
e) the
respondent must reside at all times with Danny Camara;
f)
the
respondent must not work without a work permit;
g) the
respondent must inform the CBSA/CIC of any new arrest, charges or convictions;
h) the
respondent must not use drugs unless prescribed by a doctor.
V. Issue
[35]
The
only issue is whether the Minister demonstrated the existence of a serious
issue and irreparable harm and that the balance of convenience is in its
favour.
VI. Analysis
[36]
The
Minister must meet the conditions of the tripartite test set out in Toth v.
Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302
(F.C.A.). All three conditions must be met. Failure to meet one of them would
be conclusive.
A. SERIOUS
ISSUE
[37]
The
term “serious issue” or “question sérieuse” in French is derived
from the Supreme Court of Canada decision in Manitoba (Attorney
General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 R.C.S. 110 and J.R.-Macdonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.
[38]
In
both of these decisions, the Court explained that the “serious issue” means
that the application is not frivolous or vexatious. However, the threshold is
very low. An analysis of the merits of the application is neither necessary nor
desirable (R.J.R.-Macdonald, above, at pp. 335 and 337-338; Wang
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148 at
para. 11). Once the judge is satisfied that the application is not
frivolous or vexatious, he or she must, as a general rule, find that the serious
issue test has been met.
Applicable
Law
[39]
Subsection 58(1)
of the IRPA states:
58. (1). The Immigration division
shall order the release of a permanent resident or a foreign national unless
it is satisfied, taking into account prescribed factors, that:
(a) they are a danger to the
public;
(b) they are unlikely to appear
for examination, an admissibility hearing, removal from Canada, or at a
proceeding that could lead to the making of a removal order by the Minister
under subsection 44(2);
|
58. (1). La section prononce la mise
ne liberté du résident permanent ou de l’étranger, sauf sur preuve, compte
tenu des critères règlementaires, de tel des faits suivants :
(a) le résident permanent ou l’étranger
constitue un danger pour la sécurité publique;
(b) le résident permanent ou l’étranger
se soustraira vraisemblablement au contrôle, à l’enquête ou au renvoi, ou à
la procédure pouvant mener à la prise par le ministre d’une mesure de renvoi
en vertu du paragraphe 44(2);
|
[40]
Sections 245,
246, and 248 of the Regulations list the factors that must be taken into
account to determine whether the detention of a person should be continued.
[41]
These
factors include, but are not limited to, the risk that the person does not
report for his or her removal from Canada.
[42]
Paragraph 47(2)(b)
of the Regulations requires that a person who posts a guarantee must ensure
that the person in respect of whom the release order is required will comply
with the conditions of his or her release:
47. (2) A person who posts a guarantee
must
(a) be a Canadian citizen or a
permanent resident, physically present and residing in Canada;
(b) be able to ensure that
the person or group of persons in respect of whom the guarantee is required
will comply with the conditions imposed; and
(c) present to an officer
evidence of their ability to fulfil the obligation arising from the
guarantee.
(Emphasis added.)
|
47. (2) La personne qui
fournit une garantie d’exécution, autre qu’une somme d’argent, doit :
a) être citoyen canadien ou résident
permanent effectivement présent et résidant au Canada;
b) être capable de faire en sorte que
la personne ou le groupe de personnes visé par la garantie respecte les
conditions imposées;
c) fournir à un agent la preuve qu’elle
peut s’acquitter de ses obligations quant à la garantie fournie.
(La Cour souligne).
|
[43]
The
ID erred in failing to correctly apply paragraph 47(2)(b) of the
Regulations. This error warrants the Court’s intervention.
[44]
In
a recent decision, Castillo v. Canada (Minister of Public Safety and
Emergency Preparedness), 2009 FC 1022, Justice J. François Lemieux decided
that the Minister raised a serious issue, that of whether the ID had “…properly
assess[ed] the requirement in paragraph 47(2)(b) of the IRPA that
the guarantor must be able to ensure that Mr. Castillo will comply with
the conditions imposed on his release”.
[45]
The
same holds true in this case. The proposed guarantor’s ability to ensure that
Mr. Achkar complies with the conditions imposed on his release is crucial.
[46]
It
is important to note that despite the fact that the ID recognized that
Mr. Achkar is a flight risk, it named Mr. Camara as guarantor on
a cash deposit of $700.
[47]
However,
the evidence before the ID demonstrated, among other things, that Mr. Camara
1. has only
known the respondent since March 2010;
2. was
completely unaware of the respondent’s situation as to his status in Canada and
the existence of criminal charges against him;
3. admitted that
he had had very few conversations with the respondent and that he had not told
him his life story;
4. does not know
whether the respondent would listen to him when he came home.
(Affidavit of Marilyne Trudeau).
[48]
It
is an error of law to not thoroughly consider the conditions of release to counterbalance
the fact that Mr. Achkar is a flight risk.
[49]
In
Canada (Minister of Public Safety and Emergency Preparedness Canada)
v. Vargas, 2009 FC 1005, at paragraphs 56 to 59, this Court decided
that a decision of the ID on a guarantor was unreasonable because, among other
things, it had neglected to analyze the proposed guarantors’ ability to control
the respondent and did not consider that the guarantors had very limited
knowledge of the respondent.
[50]
In
Canada (Public Safety and Emergency Preparedness) v. Sankar,
2009 FC 934, at paragraph 11, Justice Richard Boivin also decided that a
decision of the ID raised a serious issue regarding, among other things, the
proposed guarantor’s ability to exercise control over the respondent.
[51]
The
ID erred in not realizing the proposed guarantor’s ability to
ensure that Mr. Achkar would comply with his conditions of release.
[52]
In
this regard, it should be noted that the evidence cited above demonstrates that
Mr. Achkar has only tenuous ties to the guarantor. Therefore, Mr. Achkar
is bound only by a moral obligation to comply with his conditions to prevent
his guarantor’s loss of the deposited guarantee.
[53]
The
guarantor himself admitted that he did not know whether Mr. Achkar would listen
to him.
The fact that the guarantor had only known the respondent for a few months and
that he knew nothing about him or his history with immigration authorities in
Canada or about his problems with the police indicates that the ID should have
analyzed his ability to exercise control over Mr. Achkar.
[54]
Mr. Achkar’s
release could interfere with the Minister’s duty to Canadian society, that of
removing Mr. Achkar from Canada at the first reasonable opportunity.
[55]
In
this case, Mr. Achkar exhausted all recourse open to him: in particular, his
refugee claim, his H&C application and his PRRA application were all
rejected.
[56]
In
this case, the ID agreed to have the proposed guarantor guarantee Mr. Achkar’s
release by paying $700 without explaining how and why it deemed him able to act
as guarantor. The ID simply indicated that the guarantor was credible and that he
testified in a sincere manner. This is not enough.
[57]
However,
there is nothing in the evidence to show that the guarantor is able to ensure
that Mr. Achkar will comply with the conditions imposed on his release. The
decision of the ID does not take into consideration how the guarantor will be
able to exercise control over Mr. Achkar.
[58]
In
fact, the guarantor himself admitted that he did not know whether Mr. Achkar
would listen to him.
[59]
Considering
all of the above, the ID’s finding does not correctly apply paragraph 47(2)(b)
of the Regulations, which states that a person who posts a guarantee must be able
to ensure that the person in respect of whom the guarantee is required will
comply with the conditions imposed.
[60]
The
decision, in itself, is unreasonable and demonstrates the existence of a serious
issue.
B. IRREPARABLE
HARM
[61]
The
ID admits that Mr. Achkar is a flight risk.
[62]
In
the past, Mr. Achkar had failed to report any changes of address to the
CBSA, a warrant was issued for his arrest for immigration purposes and he faces
three criminal charges in Canada.
[63]
The
chosen guarantor is unable to exercise control over Mr. Achkar and ensure
that he will appear for any other detention reviews and for his removal from
Canada.
[64]
The
result of the ID’s failure is that Mr. Achkar’s release could interfere
with the Minister’s duty to Canadian society to remove him from Canada at the
first reasonable opportunity.
[65]
This
factor also constitutes irreparable harm.
C. BALANCE OF
CONVENIENCE
[66]
The
flight risk that Mr. Achkar represents is an important factor. This weighs
in favour of the order sought by the Minister.
[67]
The
inconveniences that could be caused by continued detention until the next
detention review or until the Court decides on the issue do not displace the
interests of the public, which the Minister seeks to preserve in applying the
IRPA (paragraph 3(1)(h)).
[68]
Thus,
the balance of convenience decisively favours the Minister.
[69]
For
all these reasons, the Court grants the stay motion as requested, i.e. until
the next detention hearing or until the application for leave and judicial
review is heard by this Court.
JUDGMENT
THE COURT ORDERS that the stay motion
be granted, i.e. until the next detention hearing or until the application for
leave and judicial review is heard by this Court.
"Michel
M.J. Shore"
Certified true
translation
Catherine Jones,
Translator