Date: 20080926
Docket: IMM-4187-08
Citation: 2008 FC 1088
Ottawa, Ontario, September 26, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
The Minister of public safety
and emergency preparedness
Applicant
and
Michael xanthoudakis and
Eneliko SABINE
Respondents
REASONS
FOR ORDER AND ORDER
[1]
The
Minister applies under section 18.2 of the Federal Courts Act for an
order staying the order of Immigration Division Member Paul Kyba dated
September 22, 2008, releasing the Respondents from detention, on terms and
conditions as set out in that order. The Minister asks that the order be
stayed until a
final determination has been made in its application for leave and judicial
review of that order.
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[2]
Mr.
Xanthoudakis is an Australian citizen and the owner of a T-shirt business. Mr.
Sabine is a citizen of New Zealand and is employed as a
mechanical engineer at the Sydney Opera House in Australia.
[3]
They
travelled together to Canada from Australia on September 18, 2008.
They were examined by the Canada Border Services upon entry to Canada in Winnipeg. They
stated that they were coming to Canada to go fishing at a
forest lodge, but they had no fishing equipment with them. They stated that
they were being met by an individual they met through the internet but they did
not have his name only his phone number.
[4]
The
individuals that were at the airport to meet them are members of the Rock
Machine, a motorcycle club that was notorious in the late 90’s and early part
of this decade for its criminal activities and violent dispute with the Hells
Angels motorcycle club. The Member found that the Applicants were to be taken
from Winnipeg to Gimli,
where there was to be a meeting where the Applicants may have become members of
the Rock Machine. The Minister alleges that the Respondents wish to form a
branch of the Rock Machine in Australia. In their luggage was
clothing and badges of the Rock Machine and a list of names of members.
[5]
The
Respondents were detained at the Airport and, as required by subsection 57(1)
of the Immigration and Refugee Protection Act, a detention review
hearing was
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held on September 22, 2008. The Minister sought
their continued detention on the grounds that they are a danger to the public
and unlikely to report for an admissibility hearing. The Minister relied on
subsection 246(b) of the Immigration and Refugee Protection Regulations,
S.O.R. 2002-227, which provides that a factor to be taken into consideration is
assessing whether a person is a danger to the public is “association with a
criminal organization within the meaning of subsection 121(2) of the Act”.
That subsection defines criminal organization as “an organization that is
believed on reasonable grounds to be or to have been engaged in activity that
is part of a pattern of criminal activity …”
[6]
In
a decision made immediately following the hearing, Member Paul Kyba came to the
conclusion that the Respondents should be released from detention on terms and
conditions.
[7]
The
Minister has applied for leave and judicial review of that decision, and in the
interim, seeks a stay of the Respondents’ release.
[8]
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 of Employment and
Immigration) (1988), 86 N.R. 302 (F.C.A.).
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[9]
Upon
hearing counsel for the parties and reading the material filed, I am satisfied
that the first part of the tripartite test has been met. There is a serious
issue as to whether the Member erred and applied the wrong test in asking
whether the Respondents were “members” of the Rock Machine, rather than asking
whether they were “associated with” the Rock Machine. Further there is a
serious issue as to whether, having found that the Rock Machine was a criminal
organization some time ago, the Member erred in failing to find that this satisfied
the definition of a ‘criminal organization’ set out in subsection 121(2) of the
Act.
[10]
Given
the nature of the serious issue, I find that the danger to the public, if a
stay is not granted, is not purely speculative. The danger is real and
constitutes irreparable harm.
[11]
The
balance of convenience lies with the Minister and the public interest in
enforcing the provisions of the Act and in protecting the public.
[12]
Consequently,
Member Paul Kyba’s order dated September 22, 2008, releasing the Respondents
from detention will be stayed.
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ORDER
THIS COURT ORDERS THAT
the decision of Paul Kyba, dated
September 22, 2008, is stayed
until the earlier of:
(a) the application for leave and
for judicial review is determined on its merits; or
(b) the Respondents’ next
statutorily required detention review hearing.
“Russel W. Zinn”
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