Date: 20090114
Docket: A-642-08
Citation: 2009 FCA 7
Present: RICHARD
C.J.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
(Applicant in the Federal Court)
and
Dong Zhe LI
Dong Hu LI
Respondents
(Respondents in the Federal Court)
REASONS FOR ORDER
RICHARD C.J.
[1]
This is a
motion by the appellant seeking a stay of the Orders of Justice Heneghan dated
December 23, 2008 and December 29, 2008 wherein Justice Heneghan dismissed the
Minister’s application for judicial review of the decision of Member King of
the Immigration Division which ordered that the respondents, LI, Dong Hu and
LI, Dong Zhe be released from Immigration detention subject to certain terms
and conditions.
[2]
In
particular, the appellant is seeking an Order for a stay of release of the
respondents until the earlier of either the final determination of the
underlying appeal or the next statutorily required detention review under the Immigration
and Refugee Protection Act.
[3]
The
supporting affidavit of Randal Hyland, Hearings Officer, sworn on December 30,
2008, states that Dong Hu Li and Dong Zhe Li (Li brothers) are fugitives from China. They are subjects of warrants of arrest
issued by the Chinese authorities who allege that the Li brothers are wanted
for conspiring to commit fraud involving millions of dollars through the transfer
of funds from bank accounts of victim companies into the bank accounts of
companies controlled by either Dong Zhe Li or Dong Hu Li. The Li brothers have
been under Immigration detention since February 2007 when they were arrested by
Canadian authorities because an Exclusion Order was issued against them and
they were unlikely to appear for removal.
[4]
Counsel
for the appellant argues that there is a serious issue in the underlying appeal
given that the Federal Court Judge certified the following serious question of
general importance:
Does lengthy
detention become “indefinite” detention, and consequently a breach of
section 7 of the Charter, where the tribunal estimates future
length of detention based on a detainee’s anticipated pursuit of all available
processes under IRPA and the Regulations including Federal Court proceedings?
[5]
With
respect to irreparable harm, counsel for the appellant argues that the Li
brothers are fugitives from justice and that the Immigration Division members
have repeatedly found the Li brothers to be a serious flight risk and that the
Li brothers’ history reveals that they will make every effort to avoid Canadian
authorities.
[6]
Counsel
for the appellant also refers to previous orders of the Federal Court granting
a stay of the execution of the Release Orders where the Federal Court found that
the Minister will suffer irreparable harm if the stay is not granted.
(IMM-2818-08, IMM-2820-08, June 30, 2008 per Tremblay-Lamer J. and IMM-4038-08,
IMM-4039-08, October 1, 2008 per de Montigny J.).
[7]
With
respect to the balance of convenience, counsel for the appellant claims that it
favours staying the Li brothers release considering that they are fugitives
from justice, their flight risk, and their history of avoiding Canadian
authorities.
[8]
Counsel
for the appellant has undertaken to the Court that the appellant will take
steps to expedite the hearing of the appeal.
[9]
Counsel
for the respondents concedes for the purposes of this stay motion only that
there is a serious issue since the Trial Division has declared a certified
question.
[10]
However,
the respondents assert that there is no irreparable harm and that the balance
of convenience favours them and not the appellant and as such the stay motion
should be dismissed.
[11]
The
respondents allege that any risk that does arise from the loss of public faith
that persons subject to removal orders might not be removed by absconding is
not substantial enough, when based upon speculation, to deprive them of their
(albeit strictly controlled) liberty.
[12]
The
respondents further assert that even if there is some risk of eroding public
confidence in the effectiveness of the removal process if the Li brothers
abscond, the more important risk is that continued detention is and will
continue to violate the Li brothers’ right to not be detained indefinitely. The
balance of convenience favours upholding member King’s order of release and
Madam Justice Heneghan’s affirmation of that order especially since the terms
and conditions of release are very strict.
[13]
The respondents
also raise the issue of clean hands and claim that the appellant withheld the
disclosure of evidence that was relevant to the issue of detention which was
available on April 24, 2008 and was not disclosed to the respondents until
August 11, 2008; in particular, the PRRA Officer’s decision that they were at
risk of torture should they be returned to China.
[14]
However
this finding was made known to the respondents on or about June 13, 2008
(Respondents’ Motion Record TAB 4) and is subject to a final determination by
the Minister’s delegate.
[15]
The issue
of the lawfulness of the process of restriction assessment has been challenged
in another proceeding before the Federal Court (IMM 3786-08).
[16]
In my
opinion, these considerations do not constitute sufficient grounds to refuse
the requested stay of proceedings.
[17]
Accordingly,
I am satisfied that the appellant has met the three-part test in RJR-MacDonald
v. Canada (Attorney General), [1994] 1 S.C.R. 311.
[18]
The Release
Orders of Immigration division Member King, dated September 11, 2008
and the Order of Justice Heneghan dated December 23, 2008 and December 29, 2008
in FC File Nos. IMM-4038-08 and IMM-4039-08, will be stayed until the earlier
of either :
(a) the final
determination of the appeal; or
(b) the
respondent’s next statutorily required detention review hearing;
“J.Richard”
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