Date: 20110407
Docket: IMM-1832-11
Citation: 2011 FC 439
Vancouver, British Columbia, April
7, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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B456
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
B456
is one of 490 some Sri Lankan Tamils who came to Canada in August 2010 on board
the undocumented ship the Sun Sea. He, like the others, filed a claim
for refugee status. He carried no identification papers.
[2]
He
was detained and has been subject to 30-day detention reviews. Through diligent
time-consuming work by the Canada Border Services Agency (CBSA) his web of
deceit was finally cast aside. He is nothing but a bold-faced liar. It has been
established beyond doubt that if he is not still a Tamil Tiger, he certainly
was. He was in the armed naval wing of the Liberation Tigers of Tamil Elam
(LTTE) a terrorist organization. He was written up as being inadmissible and
has now been found by the Immigration Division of the Immigration and Refugee
Board to be inadmissible under section 34(1) of the Immigration and
Refugee Protection Act (IRPA) as being a member of an organization
that engages, has engaged or will engage in, among other things, terrorism.
[3]
As
a result of this determination, he is no longer eligible to claim refugee
status. However, he is still entitled to and has demanded a Pre-Removal Risk
Assessment (PRRA) in accordance with sections 97 and 112 and following of IRPA.
[4]
After
his identity was established, and his connection with the Tamil Tigers
(although he is maddeningly vague as to when that association ended), he
remained in detention. In the review handed down in February, the member
charged with the matter considered him to be a flight risk. However, his March
detention hearing was heard by another member who ordered his release on terms
and conditions.
[5]
The
Minister has filed an application for leave and for judicial review of that
decision and by motion seeks an order staying the release. On consent, an
interim stay was granted by Mr. Justice O’Keefe to allow time to obtain
relevant transcripts and to properly prepare for the hearing which took place
before me yesterday.
I. The Guiding Principles
[6]
As
in any motion for a stay or for an interlocutory injunction the moving party
must establish a serious issue, irreparable harm and that the balance of
convenience is in his favour (Toth v Canada (Minister of Employment and
Immigration) (1988), 86 NR 302 (FCA) and RJR-MacDonald Inc v Canada (Attorney
General), [1994] 1 S.C.R. 311).
[7]
The
second guiding principle is that there must be clear and compelling reasons to
depart from previous detention decisions. This was established by the Federal
Court of Appeal in Canada (Minister of
Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4, [2004] 3
FCR 572. In speaking for the Court Mr. Justice Rothstein, as he then was,
answered a certified question as follows:
At each detention review made pursuant to
sections 57 and 58 of the Immigration Refugee Protection Act, S.C.
2001, c. 27, the Immigration Division must come to a fresh conclusion whether
the detained person should continue to be detained. Although an
evidentiary burden might shift to the detainee once the Minister has established
a prima facie case, the Minister always bears the ultimate burden of
establishing that the detained person is a danger to the Canadian public or is
a flight risk at such reviews. However, 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.
[8]
I
think it fair to say there has been some inconsistency with respect to the
treatment of those on board the Sun Sea. Their stories differ, the appreciation
thereof by different decision-makers may differ, and as well different judges
have come to different conclusions in assessing decisions be it on stay
motions, such as this, or on judicial review. This is quite understandable
because there is intense pressure to render a decision before the next 30-day
detention review.
[9]
For
example, there has been a disagreement as to whether an issue is serious if it
is non-frivolous and non-vexatious or whether a more elevated standard is required
in that a stay may effectively grant what is being sought on the merits. I
refer to the decision of Mr. Justice de Montigny in The Minister of
Citizenship and Immigration v B157, Docket IMM-6862-10, rendered December
6, 2010.
II. Decision
[10]
I
have come to the conclusion that a stay of the decision releasing B456 from
detention should be granted. The parties agreed that, in that event, I should
order an expedited hearing of the judicial review itself. I shall so do.
[11]
No
matter which test is to be applied, the Minister has established several
serious issues.
[12]
In
the decision rendered February 3, 2011, the deciding member was looking forward
to the next significant event in B456’s encounter with Canadian authorities,
which was an admissibility hearing which was then scheduled for April 27. Thus,
he was looking ahead some two-and-a-half months.
[13]
Since
then the admissibility hearing was moved up and he was declared inadmissible.
That decision is not being contested.
[14]
The
effect of that decision is most significant. B456’s long-term goal is to become
a permanent resident and thus be in position to sponsor his wife and children
who remain in Sri
Lanka.
However, as matters presently stand, the effect of sections 21 and 112(3)(a) of
IRPA means he can never become a permanent resident and thus is unable to
sponsor his family.
[15]
There
are three recourses available to him, two of which were considered by the
deciding member. The PRRA papers have been delivered to him. Although not cast
in stone, one might expect a decision within three months. Even if the PRRA is
successful, although he would be permitted to remain in Canada, he could not become a
permanent resident.
[16]
There
are two possible ways B456 could become a permanent resident. The first is by
way of application of section 34(2) of IRPA which provides:
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(2) The
matters referred to in subsection (1) do not constitute inadmissibility in
respect of a permanent resident or a foreign national who satisfies the
Minister that their presence in Canada would not be detrimental to
the national interest.
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(2) Ces
faits n’emportent pas interdiction de territoire pour le résident permanent
ou l’étranger qui convainc le ministre que sa présence au Canada ne serait
nullement préjudiciable à l’intérêt national.
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[17]
There
is anecdotal evidence that given the volume of such applications, the
investigation which has to be carried out, and the fact that the Minister must
decide personally, such an application may be pending for several years before
a decision is made.
[18]
The
other recourse is to apply for permanent resident status from within Canada on humanitarian and
compassionate grounds in accordance with section 25 of the Act. The section 34(2)
and section 25 applications are quite distinct (The Minister of Public
Safety and Emergency Preparedness v Ramadan Agraira, 2011 FCA 103 and Segasayo
v Canada (Minister of Citizenship and Immigration), 2010 FC 173, [2010] FCJ
No 205 (QL), aff’d 2010 FCA 296, [2010] FCJ No 1343, (QL).
[19]
Another
serious issue is that there was no clear and compelling reason to depart from
the February decision. The projected time-frame to the next significant
step, now the PRRA rather than the admissibility hearing, is roughly the
same. The member also considered the section 34(2) application, which has not
yet been filed, and assumed that B456 would not be removed from Canada until the Minister’s
decision. Such an application does not have the legal effect under the Act or
the Regulations of resulting in a stay, and no practice to that effect has been
established. See Smith v. Canada (Attorney General) 2009 FC 228, [2010] 1
FCR 3. If B456’s PRRA application is successful, presumably he would be
released from detention. If it is not, then the section 34(2) application may
become relevant.
[20]
The
member also erred in stating: “I believe that now the admissibility hearing is
over, your removal from Canada is not as imminent as
suggested by Minister’s counsel. Therefore I find that I have clear and
compelling reasons to depart from member Tessler’s decision on the 3rd
of February, 2011.”
[21]
This
viewpoint is clearly wrong. In February the admissibility hearing was pending.
If he was not declared to be inadmissible, then his refugee claim would be
reactivated. If unsuccessful, he would still be entitled to a PRRA. It would
only be after the PRRA that he would be removal-ready. Now that the whole
process has been accelerated, the risk to B456 that he would be removed from Canada is more imminent than
it was in February.
[22]
The
member also got the PRRA wrong. The practice is that after the decision is
rendered the applicant is called in for a personal interview to receive the
decision. If the decision is unsuccessful, the applicant is interviewed about
appearing for removal and if the officer is not satisfied he would then be
arrested. Although that may be the practice, the decision has been made before
the call-in notice and cannot be changed if the applicant fails to appear. The
member was of the view he had every reason to appear because his ultimate goal
was to become a permanent resident, and only by appearing would he find out
that the decision is positive. If the decision is positive he can find out
about it by other means, and even if positive it does not assist him in seeking
permanent resident status.
[23]
As
to irreparable harm, the member recognized that B456 is a flight risk but that
the terms and conditions imposed alleviated that risk. His long-lost brother
posted a $5,000 bond and a promissory note for another $30,000, which is very
significant considering his limited resources, other than equity in his house.
[24]
I
question the reasonableness of that assessment, but do not have to come to any
conclusion. It may well be that the member has more of the milk of human
kindness than I do. Should one assume that one who has lied through his teeth
and not communicated with his brother for 20 years will live up to his promise
to his brother to abide by the terms and conditions of his release?
[25]
Although
irreparable harm could be framed several ways, there is irreparable harm in
that B456 is a flight risk. There is also significant public interest in the
administration of the Act as noted by Mr. Justice Mosley in The Minister of
Citizenship and Immigration v B188, IMM-6390-10 and Mr. Justice Zinn in The
Minister of Citizenship and Immigration v B017, IMM-6541-10. There is
a public interest in dealing effectively with large scale people-smuggling
operations. This applies equally to the balance of convenience. It is far
better to preserve the status quo ante until the merits of the
application for judicial review can be considered. The hearing is expedited and
B456 is statutorily entitled to another detention review, which may be as early
as next week.
[26]
Counsel
for B456 submitted that it should make no difference how one arrives in Canada. I disagree.
Although all the hearings relating to those on board the Sun Sea
naturally focus on immigration and refugee law, it cannot be forgotten that the
Sun Sea is a ship and that the
admiralty jurisdiction of this Court is also in issue. The (UK) Colonial Courts of
Admiralty Act, 1890, 53 & 54 Vic, c 27, gives this Court
jurisdiction over prize and ships engaged in the slave trade. An undocumented
ship such as the Sun
Sea, which has violated a
plethora of international and Canadian laws, faces a rebuttable presumption
that she is engaged either in piracy or in the slave trade. The English
admirals did not take kindly to such activities. Neither should we.
ORDER
THIS COURT ORDERS that:
1. The motion for a
stay is granted;
2. The
respondent’s release from detention is stayed until the earlier of either the
determination of the Minister’s application for judicial review on the merits
or the respondent’s next statutorily required detention review hearing;
3. The
application for leave is granted and the application for judicial review is deemed to have
been commenced;
4. The
hearing will be held on Thursday, May 26, 2011, to commence at 9:30 a.m., at 701 West
Georgia Street, 3rd Floor, in the City of Vancouver, Province of
British Columbia, for a duration not exceeding three (3) hours;
a. The record shall comprise the
motion records as well as such additional documents, if any, of which the tribunal shall send certified copies to the parties and the registry of
the Court on or before April 15, 2011.
b. Further
affidavits, if any, shall be served and filed by the applicant on or before Tuesday,
April 19, 2011.
c. Further
affidavits, if any, shall be served and filed by the respondent on or before April
26, 2011.
d. Cross-examination,
if any, on affidavits shall be completed on or before May 2, 2011.
e. The
applicant’s further memorandum of argument, if any, shall be served and filed
on or before May 6, 2011.
f. The
respondent’s further memorandum of argument, if any, shall be served and filed
on or before May 11, 2011.
g. The
transcript of cross-examinations, if any, shall be filed on or before May 11, 2011.
5. The
applicant shall serve and file a motion for a confidentiality order under Rule 151
of the Federal Courts Rules to be determined by the case management
judge or the hearing judge; and
6. Until
such time as the motion for a confidentiality order is determined, the
Application for Leave and for Judicial Review and all documents filed or
delivered in connection therewith shall be sealed and treated as confidential.
“Sean
Harrington”
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