Date: 20010306
Docket: IMM-799-01
Citation: 2001 FCT 152
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
HARJINDER SINGH PATWAL
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is a motion by The Minister of Citizenship and Immigration ("applicant") for an order staying the release of Harjinder Singh Patwal ("respondent") from detention until the disposition of the applicant's application for leave and judicial review of the decision of Immigration Adjudicator M. Tessler dated February 20, 2001.
[2] The respondent arrived in Canada on December 19, 2000 without any identification papers in his possession. When interviewed at the airport by an immigration officer, the respondent admitted to being an active member of a group called the Babbar Khalsa, a group that is involved in terrorist activities. The respondent also indicated that he would rejoin the group if sent back to India. The respondent has no contacts in Canada.
[3] The respondent's detention was continued on December 21, 2000 on the grounds that he would not voluntarily appear for the continuation of his inquiry. The respondent's detention was also continued on December 28, 2000 and on January 23, 2001. At his January 23, 2001 hearing, the respondent denied being a member of the Babbar Khalsa. At this hearing, the adjudicator issued a conditional deportation order against the respondent as he concluded that there were reasonable grounds to believe that the respondent was a member of an organization engaged in terrorism.
[4] At the February 20, 2001 detention review hearing, Adjudicator Tessler ordered that the respondent be released on certain conditions. Adjudicator Tessler found that things had not changed much since the last review hearing and he agreed with the previous adjudicator that the respondent's testimony had created credibility problems.
[5] The applicant is seeking a stay of the February 20, 2001 release decision.
[6] In order to grant a stay, I must be satisfied that the applicant has met the tri-partite test outlined in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.). The applicant must meet all three parts of the tri-partite test. Summarized, these parts are:
| 1. Has the applicant demonstrated that there is a serious issue to be tried? |
| 2. Has the applicant demonstrated that it would suffer irreparable harm if the stay order was not granted? |
| 3. Has the applicant demonstrated that the balance of convenience, considering the total situation of both parties, favours the order being granted? |
Serious Issue
[1] I am of the opinion that the applicant has raised a serious issue. That issue is whether the adjudicator properly complied with subsection 103(7) of the Act. The adjudicator stated in part as follows:
| . . . It has been considered by adjudicators, including myself, all of the circumstances of your case and your detention has been continued. There have been no substantial changes, save for the fact that the Department has prepared its package for the Minister and served it on counsel. |
Irreparable Harm
[2] The Minister argued that irreparable harm would occur if the respondent was released as he would not appear nor be available for removal from Canada. This would prevent the Minister from fulfilling her statutory obligations. I agree that irreparable harm would result.
Balance of Convenience
[3] I am of the opinion that the balance of convenience favours the applicant. The respondent arrived without documentation and if he is ordered to be removed, then it is in the best interests of the applicant that he can be located.
[4] The order of Adjudicator Tessler, dated February 20, 2001 (the "adjudicator's order") is stayed until the earlier of:
| 1. The disposition of the within application for leave and for judicial review of the adjudicator's order and decision, or |
| 2. The respondent's next statutorily required detention review hearing scheduled for March 19, 2001. |
[1] I will leave it up to counsel to attempt to work out a schedule which could allow them and the Court to have the application for leave and the application for judicial review determined before March 19, 2001 if that is at all possible. This procedure is based on the fact that the time period from now until March 19, 2001 is very short and co-operation on everyone's part will be needed in order to have the matter determined.
(Sgd.) "John A. O'Keefe"
Judge
March 6, 2001
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
v.
Harjinder Singh Patwal
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: February 26, 2001 |
| REASONS FOR ORDER OF O'KEEFE |
APPEARANCES:
| Ms. Kim Shane For the Applicant |
| Mr. Mishal Abrahams For the Respondent |
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney
| General of Canada For the Applicant |
Kang Abrahams Chahal
Barristers & Solicitors
| North Delta, BC For the Respondent |
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