Date: 20080502
Docket: IMM-2013-08
Citation: 2008
FC 575
Vancouver, British
Columbia,
May 2, 2008
PRESENT: The Honourable Mr. Justice Pinard
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
JOSE
FRANCISCO CARDOZA QUINTEROS
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
motion is for an order pursuant to section 18.2 of the Federal Courts Act,
staying the order of Immigration Division (ID) Member Shaw Dyck, dated April
29, 2008, releasing the respondent from detention. The applicant requests that
the impugned order be stayed until the earlier of either:
(a)
the
application for leave and for judicial review of that order is determined on
its merits; or
(b)
the
respondent’s next statutorily required detention review hearing.
[2]
The
respondent is a citizen of El
Salvador who
came to Canada on September 2, 2007 and made
a claim for refugee protection. He was required to return to the port of entry
for continued examination on September 4, 2007.
[3]
On that
date, the respondent was interviewed by two officers with the Canada Border
Services Agency (CBSA). During the course of that interview, the respondent
made a number of statements regarding his involvement with a criminal
organization in El
Salvador, the
MS-13 or the Mara Salvatrucha, between 1999 and 2004. Among other things, the
respondent admitted having killed two to four people, and having witnessed
between one hundred to one hundred and fifty murders.
[4]
After this
interview, the respondent was reported by the CBSA as being inadmissible to Canada under paragraph 37(1)(a) of
the Immigration and Refugee Protection Act, S.C. 2001, ch. 27 (IRPA),
for organized criminality.
[5]
The
respondent was detained due to concerns with his identity, but at the
respondent’s second detention review hearing, which took place on September 13,
2007, the applicant sought to have the respondent’s detention continued due to
the danger it argued he posed to the public. At this hearing, counsel for the
respondent stated that the respondent denied having been a member of the MS-13,
and that he had claimed to be a member of that organization because he wanted
admission into Canada. ID Member Nupponen concluded
that the respondent could be released on terms and conditions.
[6]
The
applicant filed an application for leave and judicial review of that decision,
but did not seek a stay of the respondent’s release pending the disposition of
that application.
[7]
An
admissibility hearing was held and, on February 22, 2008, ID Member Tessler
determined that the respondent “was a member of the Mara Salvatrucha in El
Salvador”, and that he is inadmissible for organized criminality under
paragraph 37(1)(a) of IRPA. The respondent was ordered deported from Canada. Neither this determination
nor this order have been challenged by the respondent.
[8]
On March 31,
2008, the respondent applied for a Pre-Removal Risk Assessment (PRRA), and
filed his final PRRA submissions on April 22, 2008. According to the applicant,
this application will be processed on an expedited basis.
[9]
On April
17, 2008, the applicant’s judicial review application of ID Member Nupponen’s
decision regarding the detention of the respondent was allowed. More
particularly, Justice Hansen ruled that ID Member Nupponen had erred in law in
concluding that, even if the respondent had been convicted of robbery, this
conviction did not come within the purview of paragraph 246(f)(ii) of the Immigration
and Refugee Protection Regulations, S.O.R./2002-227.
[10]
On April
21, 2008, the respondent voluntarily reported to the CBSA to be retaken into
custody.
[11]
As required
by subsection 57(1) of IRPA, a detention review hearing was held on April 23,
2008. In a decision released April 29, 2008, ID Member Shaw Dyck came to the
conclusion that the respondent should be released from detention on terms and
conditions.
[12]
The
applicant has applied for leave and for judicial review of this decision, and
in the meantime, seeks a stay of the respondent’s release.
[13]
In order
to obtain a stay, an applicant must demonstrate: (1) that there is a serious
issue to be tried; (2) that the applicant would suffer irreparable harm if no
order were granted; and (3) that the balance of convenience favours the
granting of the order (Toth v. Canada (Minister or Employment and
Immigration) (1988), 86 N.R. 302 (F.C.A)).
[14]
Upon
hearing counsel for the parties and upon reading the material filed, I am
satisfied that there is a serious issue to be tried with respect to ID Member
Shaw Dyck’s consideration of the following facts:
(a)
the
unchallenged determination made on February 22, 2008, by ID Member Tessler that
the respondent “was a member of the Mara Salvatrucha in El Salvador”, and that
he is inadmissible for organized criminality under paragraph 37(1)(a) of IRPA;
(b)
the
unchallenged deportation order subsequently made against the Respondent;
(c)
the impact
that the media attention to this case, and the imminence of the respondent’s
removal, may have on the respondent, considering that the ID member has
concluded that the respondent had a tendency to commit violent criminal acts when
in situations of conflict.
Given the nature of the above serious issue, I do not find
that the danger to the public, if a stay is not granted, is purely speculative.
The danger is real and, for the purpose of this motion, it constitutes
irreparable harm.
[15]
Finally,
the security of the public, in the circumstances, tips the balance of
convenience in favour of the applicant.
[16]
Consequently,
ID Member Shaw Dyck’s order releasing the respondent from detention will be
stayed, although not on all terms proposed by the applicant, until the earlier
of either:
(a)
the
application for leave and for judicial review of that order is determined on
its merits; or
(b)
the day on
which the Pre-Removal Risk Assessment (PRRA) is determined.
ORDER
Immigration Division Member Shaw Dyck’s order, dated
April 29, 2008, releasing the respondent from detention, is stayed until the
earlier of either:
(a) the application for leave and
for judicial review of that order is determined on its merits; or
(b) the day on which the
Pre-Removal Risk Assessment (PRRA) is determined.
“Yvon
Pinard”
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