Docket: IMM-2451-12
Citation: 2012 FC 368
Ottawa, Ontario, March 28,
2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Applicant
|
|
and
|
|
|
B147
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR ORDER AND
ORDER
[1]
B147
assisted persons who were not in possession of a visa, passport or other
document to enter Canada.
[2]
B147
was found by the Immigration Division of the Immigration and Refugee Board to
have been engaged in a transnational crime, that of human cargo smuggling
operations; and, thus, the Immigration Division decided the Respondent is
inadmissible pursuant to paragraph 37(1)(b) of the Immigration and
Refugee Protection Act. A deportation order was issued in the Respondent’s
regard on August 16, 2011.
[3]
The
Applicant is now seeking a stay of an Immigration Division Release from
Detention Order of March 7, 2012, by which B147 would be released from
detention.
[4]
B147
has been in detention since arriving in Canada on August
13, 2010. This, according to reasons previously rendered, as specified in the
file, by which B147 was found not to be credible in his exchanges with the
Canada Border Services Agency and apprehension that the Respondent would not
appear for his admissibility hearing; and, subsequently, if he was to be
removed, he would not appear for his removal.
[5]
Due
to the release from the detention order issued by the Immigration Division
member on March 7, 2012, the Applicant is seeking a stay, thus, the continued
detention of the Respondent.
[6]
The
length of the Respondent’s detention has been put into question by the
Respondent in respect of its duration and due to uncertainty as to how much
longer it will last.
[7]
In
order to obtain a stay, an applicant must demonstrate (1) a serious issue to be
tried; (2) irreparable harm, if no order is granted; and (3) a balance of
convenience which favours the granting of the order (Toth v Canada (Minister
of Employment and Immigration) 1986, 86 NR 302 (FCA)).
[8]
Upon
hearing counsel for both parties and upon taking cognizance of the material
filed, the Court is satisfied that a serious issue exists:
(a) the
Respondent is inadmissible under section 37(1)(b) as discussed above;
(b) a
deportation order is in effect against the Respondent; and
(c) the
Respondent has been considered to lack credibility on issues pertaining to his
person and his previous activities.
[9]
The
Court does not find the serious issue to be speculative. Due to real
credibility concerns, detailed in the file, irreparable harm to the
administration of justice and to the integrity of the immigration system would
arise, if the Respondent becomes clandestine.
[10]
Finally,
due to the background facts, the Court considers the balance of convenience
does favour the Applicant.
[11]
As
considered by Justice Marshall Rothstein (then of the Federal Court) in Sahin
v Canada (Minister of
Citizenship and Immigration) (TD), [1995] 1 FC 214 at para. 31:
… There is also public interest, although
perhaps somewhat less than in the case of public danger, in detaining a person
when there are grounds for believing he or she would not appear for
examination, inquiry or removal. This public interest must be weighed against
the liberty interest of the individual but expedite the immigration
proceedings.
(Reference is
also made to the whole paragraph, re-expedition.)
[12]
Therefore,
for all of the above reasons, the recent order releasing the Respondent from
detention is to be stayed, although not on all the terms proposed by the
Applicant but rather until the earlier of either for the purposes of
expedition:
(a) the
application for leave and for judicial review of that release from detention
order is determined on its merits; or
(b) the
day on which a Pre-removal Risk Assessment (PRRA) is determined.
ORDER
THIS COURT
ORDERS that the March 9, 2012 order, releasing the Respondent from
detention be stayed until the earlier of either:
(a) the
application for leave and for judicial review of that order be determined on
its merits; or
(b) the
day on which the Pre-removal Risk Assessment be determined.
“Michel M.J. Shore”
Email this Content