Date: 20090121
Docket: IMM-254-09
Citation: 2009 FC 52
Ottawa, Ontario, January 21,
2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS AND THE
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Applicants
and
SUWALEE
IAMKHONG
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
[24] …previous
decisions to detain the individual must be considered at subsequent reviews and
the Immigration Division must give clear and compelling reasons for departing
from previous decisions. (Emphasis added).
(As held by the Federal Court of Appeal, in
a decision penned by Justice Marshall Rothstein, in Canada
(Minister of Citizenship and Immigration) v. Thanabalasingham,
2004 FCA 4, [2004] 3 F.C.R. 572 (C.A.)).
II. Introduction
[2]
The
Ministers are requesting an order staying the Immigration
Division’s order to release the Respondent.
[3]
The
Ministers are of the view that the Respondent is a danger to the public and
that she is unlikely to appear for her removal from Canada.
III. Background
[4]
The
Respondent, Ms. Suwalee Iamkhong is a citizen of Thailand.
[5]
In 1994, she
traveled to Hong Kong to work as an exotic dancer. In Hong Kong, she had her
blood tested and was told that she was HIV-positive.
[6]
Two
weeks after the blood test she received a work visa to enter Canada to work as an exotic
dancer, which she did from her arrival in Canada in 1995.
[7]
Four months after her arrival and as part of the visa renewal
process, the Respondent had a medical examination, which included a blood test.
The test results were acceptable and the visa was renewed. The visa continued
to be renewed periodically for some considerable time. The Respondent maintains
that she mistakenly thought that the blood test she took for her visa renewal
included an HIV test. Because the visa was renewed she claims that she thought,
again mistakenly, that the HIV- positive result in Hong Kong was
an error.
[8]
The
Respondent married a Canadian citizen and had unprotected sex with her husband.
In February of 2004, the Respondent became ill and was diagnosed as
HIV-positive. In 2004, criminal charges were brought against her and she was
convicted of criminal negligence causing bodily harm and aggravated assault,
under sections 221 and 268 of the Criminal Code, R.S., 1985, c. C-46.
[9]
On January 16, 2007, the Respondent was convicted of these
offenses and on August 16, 2007, she was sentenced to three years, less one
year of credit for time served in pre-trial detention, on each count, to be
served concurrently.
[10]
As
a result of these convictions, an inadmissibility report was issued against her
pursuant to section 44 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA) and this report was referred to an admissibility
hearing. The Respondent challenged this report but her application for judicial
review was dismissed in Iamkhong v. Canada
(Public Safety and Emergency Preparedness), 2008 FC
1349.
[11]
The Respondent completed her sentence and was delivered to the
immigration authorities pursuant to section 59 of the IRPA.
[12]
She
was detained under the IRPA and had three detention review hearings.
[13]
The
first hearing was held on December 16, 2008. The second detention review was
held on December 23, 2008. The third and final detention review took place on
January 19, 2009.
[14]
The
Ministers are challenging the order of the Immigration Division whereby the
Respondent was released. The Ministers filed an application for Leave and for
Judicial Review against this decision and this proceeding is the underlying
application in the case at bar.
IV. Issue
[15]
The
issues are whether the Ministers established that there is a serious issue to
be tried, that they will suffer irreparable harm if the Respondent is released
from detention and that the balance of inconvenience favours them (Toth
v. M.E.I., (1988) 86 N.R. 302 (F.C.A.)).
IV. Analysis
A. Serious
issue
[16]
The meaning of the term “serious issue” is derived from the
decisions of the Supreme Court of Canada in Manitoba (Attorney General) v.
Metropolitan Stores (MTS) Ltd., [1987]
1 S.C.R. 110 and RJR-MacDonald Inc. v. Canada (Attorney
General), [1994] 1 S.C.R. 311. In
these two cases, the Supreme Court explained that the term “serious issue”
means that the application is not frivolous or vexatious; therefore,
the threshold is low and involves a preliminary assessment of the merits of the
case. A prolonged examination of the merits is neither necessary nor desirable
(RJR-MacDonald Inc. v. Canada (Attorney General), above at pp.
335, 337-338). As the application is neither vexatious nor
frivolous, the Court concludes that a serious issue has been raised and the
second and third prongs of the tests are therefore considered below.
[17]
The threshold of “serious issue to be tried” is significantly lower
than the threshold of a prima facie case (North
American Gateway Inc. v. Canada (Canadian Radio-Television and Telecommunications Commission), [1997] F.C.J. No. 628, 214 N.R. 146, at pp. 148-149 (C.A.); North of Smokey Fishermen's Assn. v. Canada
(Attorney General), 2003 FCT 33, 229
F.T.R. 1 at para. 18).
(i) Flight
Risk
[18]
At
the 30-day detention review hearing, the Board member ordered the Respondent’s
release by accepting a bond of $6000 in cash and $17000 in performance from
several individuals without first assessing these individuals’ reliability as
bondspersons, specifically, in regard to influence exerted on the Respondent.
[19]
Yet,
at the 7-day detention review hearing, another adjudicator refused the release,
finding that the Respondent’s brother-in-law and a friend did not exert sufficient
influence on her to ensure compliance.
[20]
At
the 30-day detention review hearing, the Board member was required to explain
why he decided to depart from his colleague’s earlier decision without
examining the bondspersons. The Board member did not have evidence as to
whether these bondspersons asserted sufficient control over the Respondent. The Federal
Court of Appeal held, in Canada (Minister of Citizenship and
Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R.
572 (C.A.):
[24] …previous decisions to detain
the individual must be considered at subsequent reviews and the Immigration
Division must give clear and compelling reasons for departing from previous
decisions. (Emphasis added).
[21]
In
the case at bar, the Board member did not explain any consideration as to why
the bondspersons were suitable whereas his colleague concluded that the
Respondent’s brother-in-law and a friend were not sufficiently suitable.
[22]
The
Board member did not sufficiently examine the character of the bondspersons, themselves,
or the relationship of the bondspersons to the Respondent. This also
constitutes an error:
[22] In my view, the
effect of a security deposit must be considered as part of the consideration of
the question as to whether the detainee is likely to appear for removal. This
in turn requires consideration of the character of the person posting the
security since it is possible that the posting of security by certain elements
will reduce the likelihood of the detainee appearing for removal. Consequently
it was unreasonable for the Adjudicator to order that the security deposit in
this case could be posted by anyone. If he thought that security was required
to ensure the appearance of the respondents for removal, he was required to
direct his mind to the issue of the circumstances of the person putting up the
deposit and their relationship to the respondent.
(Canada (Minister of
Citizenship and Immigration) v. Zhang, 2001 FCT 522, 205
F.T.R. 91).
(ii) Danger to the Public
[23]
The
second issue raised by the Ministers is the Board’s error regarding the danger
that the Respondent represents for the public. The Board member had evidence
before him that the Respondent was convicted of two serious offences. The Board
member also had evidence before him that the Respondent intentionally infected
her husband (Mens rea was required for a
conviction on both counts). At the 7-day detention review hearing, the
adjudicator specifically noted that the Respondent was not credible when she
was alleging that she did not know about her HIV infection.
[24]
At
the 30-day hearing, the Board member had no additional evidence to reliably ensure
that the Respondent had rehabilitated or that she would not reoffend.
[25]
Recognizing
the consequences of the offences, the Board member needed clear and convincing
evidence that the Respondent would not have unprotected sex before concluding
that the Respondent would not be a danger to the public.
[26]
In
light of the foregoing, the Ministers meet the low
threshold of “serious issue to be tried”, which, as specified, is much lower
than the threshold of a prima facie case.
B. Irreparable
harm
[27]
Irreparable harm would occur if the Respondent is released as she
would not appear nor be available for removal from Canada.
This would prevent the Minister from fulfilling his statutory obligations.
[28]
In addition, if the Respondent reoffends, as recognizing from
elements of the background of the case (level of understanding due to less than
completion of primary education, previous assault convicted offences, even with
voluntary service), by having unprotected sex, this would result in irreparable
harm for a victim.
C.
Balance of convenience
[29]
The
inconvenience experienced by the Respondent is limited to a detention of a
maximum of 30 days until her next detention review. Inversely, if the
Respondent is released and she does not appear for her removal, the Minister
and the Canadian public will experience much greater inconvenience.
[30]
The
balance of convenience favours the Ministers.
V. Conclusion
[31]
In
light of the above, the stay motion is granted until the final determination
of the underlying application.
JUDGMENT
THIS COURT ORDERS that the stay motion be granted until the final determination of
the underlying application.
“Michel M.J. Shore”
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