Date: 20110307
Docket: IMM-1111-11
Citation: 2011
FC 257
Ottawa, Ontario,
March 7, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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B232
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Respondent
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AMENDED REASONS FOR ORDER AND
ORDER
I. Overview
[1]
Society
cannot rest secure if its decision-makers take undue risks, afoul of the
parameters of their jurisdictions.
[2]
Constitutional
Supremacy does not call for a separation of powers wherein the three separate
branches of government, executive, legislative and judicial, function in three
distinct solitudes.
[3]
The
executive branch implements its policies within the parameters of legislative
will. The legislative will is expressed in enacted legislation by elected
officials on behalf of the people whom they serve; and the judicial function is
neither to judge by individual whim nor wit, but simply to interpret the
legislative will.
[4]
The
introductory paragraphs of every statute provide the instructions of the voice
to be heard and the very purpose or will that must be interpreted in each Act.
[5]
Therefore,
in the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
the fragility of the human condition is addressed as is the integrity of the
immigration system. This means that the collectivity of individuals that make
up Canadian society must be considered in regard to their safety in each
decision as the introductory paragraphs clearly specify. The legislative will,
as is legislated in the Act, is set therein.
II. Introduction
[6]
The
Respondent is a 40-year-old, single, Sri Lankan citizen who admits to having
worked for the Liberation Tigers of Tamil Eelam (LTTE), a terrorist
organization identified and listed in the Criminal Code Regulations
Establishing a List of Entities as a terrorist entity. The Respondent
arrived in Canada, with 491 others, in
conditions described as a “human cargo” smuggling operation on the ship, MV Sun
Sea.
[7]
The
Minister of Public Safety and Emergency Preparedness (the Minister) sought the
Respondent’s continued detention on the basis that he is being investigated as
inadmissible on security grounds.
III. Judicial Procedure
[8]
The
Applicant, the Minister of Citizenship and Immigration, is seeking to stay a
second order releasing the Respondent from immigration detention, dated
February 17, 2011, made by a Member of the Immigration Division of
the Immigration and Refugee Board. In a related proceeding, MCI v B232
in Court File No. IMM-341-11, the Minister sought leave and judicial review of
a previous release order by the Immigration Division dated January 18, 2011 of
the same Respondent. By court order dated February 8, 2011, Justice Blanchard granted the Minister’s
motion to stay the release order of January 18, 2011. The Court also granted
the application for leave and expedited the judicial review application with
the hearing set to be held on March 10, 2011, at 11:30 a.m. Ottawa time. The Minister
seeks to consolidate this proceeding with IMM-341-11 and have the proceedings
heard together.
[9]
According
to the Applicant, the February 17, 2011 decision to release the Respondent on
its terms and conditions contains significant errors raising a serious issue
and warranting the granting of a stay:
(a) While the Member accepted that there
was a reasonable suspicion that the Respondent may be inadmissible on security
grounds, the Member erred in applying the threshold for the “necessary steps”
in assessing the Minister’ investigatory steps of the reasonable suspicion;
(b) The Member misapplied the test for
danger to the public;
(c) The Member gave an incomplete analysis
of the Respondent’s flight risk; and
(d) Finally, the Member released the
Respondent on minimal terms conditions, notably with no surety to ensure his
compliance with his conditions, particularly continued co-operation with CBSA’s
on-going investigation.
IV. Point of Procedure
[10]
These
proceedings are to be joined and consolidated with the related proceedings in
IMM-341-11.
[11]
The
Respondent relies on the facts as set out in the Order of Justice Edmond Blanchard, dated
February 8, 2011, in IMM-341-11. These facts are not in dispute (MCI v B282
(IMM-341-11), February 8, 2011 Order of Blanchard, J. – Exhibit “C” to the
Affidavit of Elly Huang, Applicant’s Motion Record).
V. Background
[12]
On
August 13, 2010, a vessel called the MV Sun Sea arrived in Canadian waters off
the west coast of Vancouver
Island, British
Columbia.
[13]
Members
of the Royal Canadian Mounted Police (the RCMP) secured the ship. The RCMP
found the Respondent and 491 other persons (the Migrants) on board the vessel.
[14]
The
Respondent and the Migrants were detained by Canada Border Services Agency
(CBSA) officers under the IRPA to determine their identity and
admissibility to Canada.
VI. Detention Reviews
A. Identity Not Established
[15]
The
Respondent appeared for his first detention review hearing on August 19, 2010.
The Immigration Division of the Immigration and Refugee Board (Immigration
Division or ID) ordered the Respondent’s continued detention pursuant to s.
58(1)(d) of the IRPA as his identity was not yet established.
[16]
The
Respondent’s detention was continued on identity grounds at subsequent
detention review hearings, specifically, on August 25, 2010, September 16,
2010, October 13, 2010, and November 8, 2010. The ID noted in particular that
the Respondent arrived in Canada with no primary identity documents. Those documents appear
to have only arrived in Canada between the October
and November hearings.
B. Detention
[17]
On
December 2, 2010, the Respondent appeared for his sixth detention review
hearing. At that hearing, the Immigration Division continued the
Respondent’s detention on security grounds pursuant to s. 58(1)(c) of IRPA
specifically that the Minister was taking necessary steps to inquire into a
reasonable suspicion that the Respondent is inadmissible on grounds of
security.
[18]
The
Member at the hearing found that the Respondent lived in an area controlled by
the Liberation Tigers of Tamil Eelam (LTTE), he was incarcerated for a period
of a year in Sri Lanka and has an identification card issued by the
International Organization for Migration (IOM), an organization involved in
rehabilitating and reintegrating Tamils involved in the armed conflict in Sri
Lanka.
[19]
The
Member was also of the view that the Respondent’s identity had not yet been
established, but that the Minister was attempting to establish his identity.
[20]
The
Respondent appeared for his seventh detention review hearing on December 20,
2010, at which time his detention was again continued in order for the Minister
to inquire into a reasonable suspicion of inadmissibility for security reasons.
The Member at that hearing found that, despite the fact that the Respondent
refused to sign a waiver allowing the Minister to access information about the
Respondent from the IOM, the Minister was nonetheless taking reasonable steps
to find information related to the matter.
[21]
The
Member was also of the view that the Minister was making reasonable efforts to
ascertain the Respondent’s identity.
[22]
On
January 18, 2011, Member McPhalen of the Immigration Division departed from the
findings of the previous seven detention review hearings and released the
Respondent on “minimal terms and conditions.”
[23]
With
respect to the ground of continued detention for security investigation
purposes, the Member concluded that there was no longer an on-going
investigation and found that CBSA “know who you are, at least for the purposes
of a security investigation”. The Member also doubted the reliability of the
information available from the IOM and further found that, because the
Respondent refused to sign the waiver, the investigation was at an end and that
there was no reason for continued detention on this ground.
[24]
With
respect to continued detention on the basis that the Respondent is unlikely to
appear for removal or an admissibility hearing, the Member concluded that the
Respondent is not a flight risk solely on the basis that his debt has been
paid.
[25]
With
respect to the ground that the Respondent is a danger to the public, the Member
summarily dismissed the possibility of continued detention on the ground of
danger to the public saying “I have no evidence of anything he might have done
in the past that is dangerous” and “There’s no evidence on the balance of
probabilities that the person concerned was an LTTE member or associated with
the LTTE.”
[26]
Consequently,
the Member released the Respondent on “minimal terms and conditions”, in substance,
a $500 deposit to be posted by the Respondent himself, with some suggestion,
not stated in the order for release, that he reside with a local Hindu temple
(Transcript of Proceedings, Detention Review Hearing dated January 18, 2011 –
Exhibit “D” to the Affidavit of Elly Huang, Applicant’s Motion Record).
VII. Judicial Review
[27]
The
Minister sought leave and judicial review of the January 18, 2011 release order
in Court File No. IMM-341-11. By order of the court dated February 8, 2011,
Justice Blanchard granted a stay of the
release order of January 18, 2011. Justice Blanchard also granted the application for leave.
The hearing of the judicial review application will be held on Thursday, March
10, 2011, at 11:30 a.m. Ottawa time. The Court ordered expedited time-lines for the filing
of the Certified Tribunal Record, further affidavits and further memorandum of
argument (MCI v B282 (IMM-341-11), February 8, 2011 Order of Blanchard,
J. – Exhibit “C” to the Affidavit of Elly Huang, Applicant’s Motion Record).
VIII. Detention Review – February 17, 2011
[28]
On
February 17, 2011, the Immigration Division held the ninth detention review
hearing. At the hearing, the Minister did not pursue continued detention
on identity grounds; nevertheless, the Minister did argue for continued
detention on three grounds: danger to the public pursuant to s. 58(1)(a)
of IRPA; unlikely to appear for removal or admissibility hearing
pursuant to s. 58(1)(b) of IRPA; and the Minister is taking
necessary steps to inquire into a reasonable suspicion that the Respondent may
be inadmissible on security grounds of IRPA pursuant to s. 58(1)(c)
of IRPA.
[29]
In
his Reasons, Member Rempel held that there were not clear and compelling
reasons to issue a different decision than Member McPhalen at the January
18, 2011 detention review. Member Rempel ordered the release of the Respondent
on “minimal terms and conditions”, being the same terms and conditions as
imposed by the release order dated January 18, 2011, with the addition of a
curfew.
[30]
Member
Rempel adopted the same terms and conditions imposed by Member McPhalen with
the additional condition of a nightly curfew between 12:00 a.m. and 6:00 a.m.
except for an emergency or as authorized by CBSA (Decision and Reasons of
Immigration Division dated February 17, 2011 – Exhibit “A” to the Affidavit of
Elly Huang, Applicant’s Motion Record).
IX. Issues
[31]
The
three-part test for an order to stay a Release Order is as follows:
(a) Is there is a serious issue to be tried with
respect to the Release Order;
(b) Would the Minister or the public
suffer irreparable harm if the Respondent’s release is not stayed; and
(c) Does the balance of convenience
favour an order staying the Respondent’s release? (Toth v Minister of
Employment and Immigration (1988), 86 NR 302 (FCA)).
X. Analysis
[32]
The
person seeking the stay order must demonstrate an arguable case and that the
issues being raised are not frivolous or vexatious (Canada (MSPEP) v Iamkhong, 2009 FC 52 at paras
16-17. Toth, above.
[33]
In
an order made by this Court on November 26, 2010, Justice Russel Zinn
distinguished the decision in Canada (MCI) v XXXX (IMM-5368-10), supra,
on the appropriate threshold for serious issue and held that “granting a stay
of an order releasing a person from immigration detention does not effectively
grant the Minister the relief sought in the underlying judicial review
application challenging the order to release. It merely preserves the status
quo.” The serious issue test is to be measured on the standard set
out by the Supreme Court of Canada in Manitoba (Attorney General) v
Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 and RJR-MacDonald Inc. v
Canada (Attorney General), [1994] 1 S.C.R. 311, namely whether “there is a
serious question to be tried as opposed to a frivolous or vexatious claim.”(Canada (MCI) v. XXXX
(IMM-5368-10)).
[34]
The
Court accepts the position of the Applicant that a higher threshold for
“serious issue” has been met in this case.
A. Steps for Security Investigation
[35]
Member
Rempel erred in applying the threshold for the “necessary steps” in assessing
the Minister’ investigatory steps of the reasonable suspicion.
[36]
In MCI
v XXXX, 2010 FC 112, Justice Barnes considered the legal test and the scope
of the jurisdiction of the Immigration Division Members with respect to s.
58(1)(c) of IRPA in a case involving another group of marine arrivals aboard
the vessel named the Ocean Lady. The correct test in assessing “necessary
steps” is determining whether the Minister is conducting an ongoing
investigation in good faith which has the potential to uncover relevant
evidence bearing on the Minister’s suspicion:
It
is not the role of the Board to dictate the steps that are necessary for
the conduct of the Minister’s ongoing investigation. … The Board’s
supervisory jurisdiction on this issue is limited to examining whether the
proposed steps have the potential to uncover relevant evidence bearing on the
Minister’s suspicion and to ensuring that the Minister is conducting an ongoing
investigation in good faith. (MCI v XXXX, 2010 FC 112 at para 20; MCI v X, 2010 FC 1095 at paras 28-29) [Emphasis
in original]
[37]
In
the case at bar, Member Rempel acknowledged the test set out by Justice Barnes
with respect to “necessary steps” but noted that the Member would welcome
further guidance from the court as to exactly how to define whether steps are
necessary or not and what sort of potential in reality these steps need to have
that they might uncover relevant evidence.
[38]
In
his Reasons, Member Rempel was satisfied that the Minister’s suspicion of
inadmissibility on security ground is reasonable based on several factors: an
informant alleged that the Respondent was an LTTE member and talked about
the LTTE on board the ship; the Respondent’s admission about participating in
various activities at the behest of the LTTE; and information from the IOM
confirming that the Respondent was involved in the a program aimed at former
LTTE combatants; however, Member Rempel found that the Minister is not taking
necessary steps to inquire into the suspicion of security inadmissibility:
(a) The
further verification of the Respondent’s national identity card through the Migration
Integrity Office is not a necessary step since the Minister could not provide
an explanation for the delay or a timeframe as to when the investigation will
be completed;
(b) The
examination of the alleged wounds by a medical expert is not a necessary steps
since there appear to be legal barriers to a medical examination, and it is not
clear that a medical examination would have the potential to uncover evidence
relevant to the security suspicion;
(c) With
respect to follow-up investigation of the information provided by an informant,
no specific information was provided of the investigation or timeframe to
accomplish this step;
(d) The
second inquiry to the UNHCR in Thailand initiated on February 11, 2011 is not a
necessary step since no information was provided why this step is necessary or
what relevant information it might produce with respect to security;
(e) CBSA
interview of the Respondent on February 11, 2011 did not indicate that the
Respondent was questioned about his LTTE involvement, but rather the waiver to
the UNCHR to release information, assistance from friend to pay for the trip
and alleged risk of return to Sri Lanka;
(f) Investigation
into the Respondent’s account of being hospitalized in Kilinocchi in 2009
is not a necessary next step because no timeline was provided and no evidence
was presented linking the hospital to the LTTE;
(g) No
progress in the investigations were made since the last detention review and
the Minister presented little if any evidence of any activities with respect to
next steps;
(h) Six
months in detention is not justified to continue detention given the lack of
action taken on the steps that were deemed necessary and the vagueness and lack
of timeframe associated with future steps (Decision and Reasons of Immigration
Division dated February 17, 2011 – Exhibit “A” to the Affidavit of Elly Huang,
Applicant’s Motion Record).
[39]
Member
Rempel erred by requiring that the Minister take all of the steps that the
Member thinks will be appropriate and will lead to conclusive, positive results
into the Minister’s suspicion that the Respondent is inadmissible to Canada.
[40]
Subsection
58(1)(c) of IRPA does not require nor state that the Minister is
required to take all possible steps deemed appropriate by the Member.
[41]
The
Member also erred in requiring the Minister to provide a strict timeline for
anticipated results in the steps taken. As stated by Justice Barnes:
[21] The Board appears to have held a
rather simplistic view of the complexity of an investigation involving the
unexpected arrival of 76 migrants from a war zone. While the importance of not unduly
detaining such persons cannot be forgotten, the protection of Canadians and Canada’s pressing interest in securing its
borders are also worthy considerations. The government cannot use ss. 58(1)(c)
as the basis for indefinitely detaining foreign nationals, but it is
entitled to a reasonable time to complete its admissibility investigation.
In cases of mass arrivals from some parts of the world it may well take several
months for the Minister to complete an investigation, particularly where the
identity of the individuals is in issue. In this case, the Minister’s
investigation was clearly incomplete and it was wrong for the Board to decide
for itself that, in the case of the Respondent, enough had been done or
that more should have been done. (MCI
v XXXX, 2010 FC 112 at para 21) [Emphasis in original]
B. Consideration of Factors Contributing
to Flight Risk
[42]
Member
Rempel erred in adopting the findings of Member McPhalen that any flight risk
concerns are mitigated by the “quite strict terms and conditions” imposed at
the previous detention review.
[43]
Like
Member McPhalen, Member Rempel erred by failing to assess all of the factors
that contribute to the likelihood that the Respondent would not appear.
Consideration was only given to the Respondent’s lack of ties to the
community under s. 245(g) of the IRPR, but not that the Respondent
may be inadmissible on security grounds. A strong incentive exists for him to
avoid further examination and to avoid a future admissibility hearing. The
Respondent has been uncooperative.
[44]
The
Member’s ability to consider factors beyond those enumerated in s. 245, so long
as they are otherwise relevant, has been recognized by this Court. By dealing
with each ground for continued detention in isolation, the Member failed to
appreciate the cumulative effect that those various grounds may have on the
Respondent’s likelihood to appear for future hearings (Canada (Citizenship and
Immigration) v B157, 2010 FC 1314).
C. Misapplied Test for “Danger to the
Public”
[45]
The
Member refused to continue the Respondent’s detention on the ground that he is
a danger to the public, finding that “with respect to the detention ground
of danger to the public, the arguments are very weak based on the alleged
association to the LTTE” (Transcript of Detention Review Hearing dated February
17, 2011, at p. 29 of Transcript, Exhibit “A” – Affidavit of Elly Huang,
Applicant’s Motion Record).
[46]
The
relevant factor the Member was required to consider, pursuant to s. 246(b), was
the Respondent’s association with a criminal organization. The LTTE falls
within the definition of a “criminal organization” under the Act. The
Respondent has repeatedly confirmed that he performed work for the LTTE. This
alone is sufficient to establish his association with the LTTE, and, according
to the scheme of the legislation, that he is a danger to the public.
[47]
There
was also extensive evidence before the Member confirming his association with
the LTTE: he participated in a rehabilitation program for former LTTE members;
he was personally identified by an informant from onboard the ship as being a
member and discussing his activities with the LTTE during the voyage; the IOM
holds information about the Respondent that he is reluctant to have disclosed.
[48]
Thus,
for the Member to conclude that past association with the LTTE is not
sufficient to demonstrate a danger to the public is a dismissal of the
danger ground without regard to the seriousness of such an association.
[49]
Moreover,
the Member’s analysis of “danger to the public” appears to turn entirely on
whether there is evidence that the Respondent has done anything in the past
that is dangerous. In applying such an analysis, however, the Member
misconstrued the meaning of “danger to the public”, which has been given a wide
interpretation by the Federal Court of Appeal. The inquiry involves a
“consideration of whether, given what [the Minister] knows about the individual
and what that individual has had to say on his own behalf, [he] can form an
opinion in good faith that he is a possible re-offender whose presence in
Canada creates an "unacceptable" risk to the public.” (Williams v Canada
(Minister of Citizenship and Immigration), [1997] 2 FC 646 (FCA)).
[50]
Due
to the Respondent’s admission, the Minister’s counsel submitted extensive
evidence in respect of Canada’s position as a fund-raising centre for the LTTE,
former LTTE members find employment as enforcers on behalf of the LTTE, as well
as the direct violence in the LTTE community worldwide and the atmosphere
thereby created in the Tamil Diaspora in Canada. Given the nature of the Respondent’s
involvement with the LTTE, these concerns are particularly salient (Transcript
of Proceedings, Detention Review Hearing dated January 18, 2011, Exhibit “D” to
the Affidavit of Elly Huang, Applicant’s Motion Record).
[51]
The
Member failed to address any of this evidence and thus failed to appreciate the manner
in which the Respondent may pose a danger to the public. Again, while the
Respondent may take a different view of this evidence, the Member erred in
ignoring the evidence.
[52]
The
relevant factor to be considered is association with a criminal
organization, as this Court clearly held in Canada (Minister of
Citizenship and Immigration) v Nagalingam, 2004 FC 1757. According to the scheme of
the legislation, to be associated with a criminal organization is considered
inherently dangerous, and is a sufficient ground for a finding of danger to the
public. The Member erred in requiring more (Nagalingam, above).
D. B232 Released on Unreasonable Terms
and Conditions
[53]
The
Member released the Respondent on a $500 deposit to be posted by the Respondent
himself. Aside from typical reporting, non-association conditions and a curfew,
the Member imposed no further substantial conditions on his release. No surety
was specified nor was any particular place of residence, aside from the province of B.C.
[54]
The
Member released the Respondent on these terms despite the security grounds
invoked in regard to the public, with significant incentives not to appear for
further examination at an admissibility hearing.
[55]
This
Court has recognized the importance of crafting appropriate terms and
conditions of release. In particular, this Court has held (Canada (Minister of
Citizenship and Immigration) v Zhang, 2001 FCT 521 at para 19) that:
It
appears that the theory behind the requirement for a security deposit or a
performance bond is that the person posting the bond or deposit will be
sufficiently at risk to take an interest in seeing that the release complies
with the conditions of release including appearing for removal.
…
A security deposit or a performance bond is intended to act
as a motivator for compliance. As noted above, the theory of a security deposit
is that it provides an incentive for compliance with conditions of release. If
the posting of a security deposit made no difference, there would be no reason
to require one. If it makes a difference, then the question of the likelihood
of compliance with conditions of release must be considered in light of the
effect of the security deposit. If one were to adopt the reasoning in Ri Wo
Chen, then only those who could satisfy the adjudicator that they would
appear for removal without the necessity of a security deposit would eligible
for release. But by definition, none of these would require the imposition of a
security deposit to ensure their compliance with the conditions of release. The
provisions as to the posting of security would only apply to those who do not
require it.
[56]
The
Member has failed to asses meaningfully whether the Respondent, in the absence
of a bondsperson, is likely to comply with his conditions. With no opportunity
for CBSA to monitor him and no person imbued with the responsibility for
ensuring his compliance, a significant security challenge to the Minister and
to the public exists as a result of the Member’s decision.
[57]
Terms
and conditions need careful crafting to create incentives for appearance at
future proceedings. Reasons to doubt that the terms and conditions will be
respected do exist. This raises a serious issue.
E. Irreparable Harm
[58]
The
irreparable harm in this case engages the security of Canada and the
integrity of the immigration system.
[59]
There
is compelling evidence substantiating a connection between the Respondent and
the LTTE:
§
he
has admitted working for the LTTE and has substantial knowledge of the LTTE’s
recruitment practices;
§
he
was a participant in the IOM’s ICRS program, whose objective is the
rehabilitation of former LTTE members;
§
he
has been uncooperative in CBSA’s on-going investigation;
§
he
has been personally identified by other migrants aboard the MV Sun Sea as
having self-identified as a member of the LTTE, and having talked about his
work for the LTTE.
[60]
The
release of the Respondent before the extent of his association with the LTTE
has been fully investigated compromises the ability of the Minister to continue
his investigation, and to protect the public.
[61]
Accordingly,
subsection 58(1)(c) provides for continued detention while CBSA takes necessary
steps to investigate a reasonable suspicion that the detainee is inadmissible
to Canada on security
grounds. Subsection
58(1)(c) is important to the Canadian legislative scheme with respect to
security. Release of individuals with respect to whom there is an ongoing
reasonable suspicion that they are active members of well-organized terrorist
organizations undermines the objectives of the IRPA, as well as Canada’s international
obligations with respect to terrorism. It defeats the purpose of the provision
and, as such, places the security of Canadians at risk. This Court has found
this to constitute irreparable harm (Canada (Minister of Citizenship and Immigration)
v Confidential,
IMM-6436-09, January 8, 2011, Near J. (FC)).
[62]
As
the Supreme Court of Canada stated in Suresh v Canada (MCI), 2002 SCC 1, at
paras 87-88:
87 We
believe courts may now conclude that the support of terrorism abroad raises a
possibility of adverse repercussions on Canada’s security: see Rehman, supra,
per Lord Slynn of Hadley, at paras. 16-17. International
conventions must be interpreted in the light of current conditions. It may once
have made sense to suggest that terrorism in one country did not necessarily
implicate other countries. But after the year 2001, that approach is no longer
valid.
88 First,
the global transport and money networks that feed terrorism abroad have the
potential to touch all countries, including Canada,
and to thus implicate them in the terrorist activity. Second, terrorism itself
is a worldwide phenomenon. The terrorist cause may focus on a distant locale,
but the violent acts that support it may be close at hand. Third, preventive or
precautionary state action may be justified; not only an immediate threat but
also possible future risks must be considered. Fourth, Canada’s national
security may be promoted by reciprocal cooperation between Canada and other states in combating international terrorism.
[63]
Given
that the Respondent remains a security risk whom the Minister has not had
sufficient opportunity to investigate to determine the extent of his
involvement with the LTTE, his release into the community will cause real and
non-speculative irreparable harm. Moreover, the Respondent is a danger to
the public if released on minimal terms and conditions including a patent lack
of supervision in the community by a surety. Releasing the Respondent directly
prevents the Minister’s efforts to ensure his availability for future
proceedings – including a possible admissibility hearing; furthermore, it
prevents him from carrying out his mandate of protecting the public and
undermines the safety and security of the Canadian public (Canada (MCI) v
B188, 12 November 2010 (IMM-6390-10); Canada (MCI) v B017, 22
November 2010 (IMM-6541-10); Canada (Solicitor General) v Oraki, 2005 FC
555; Canada (MCI) v Chen, [1999] FCJ No 1815 at para 17; Canada (MCI)
v Patwal, 2001 FCT 152 at para 8; Canada (MSPEP) v Iamkhong, above,
at para 27; Canada (MCI) v Ambrose, 2003 FCT 203, at paras 10 and 12).
XI. Balance of Convenience
[64]
It
is in the public interest to continue detention until the disposition of the
underlying application for leave and for judicial review of the Member’s
decision.
[65]
As
this Court stated in Sahin v Canada (MCI), [1995] 1 FC 214 at
para 31:
There
is also public interest, although perhaps somewhat less than in a 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. In many cases,
the most satisfactory course of action will be to detain the individual but
expedite the immigration proceedings.
[66]
The
public interest, and thus the balance of convenience, favours maintenance of
the status quo until these issues can be determined on their
merits.
ORDER
THIS COURT ORDERS:
1. A stay of the Order of
the Immigration Division, dated February 17, 2011, until the application
for leave and for judicial review is determined on its merits
2. Pursuant to Rule 55 of
the Federal Courts Rules, dispensation of the need to perfect the
application for leave and for judicial review, granting of the application for
leave and thereafter abridging the time limits for the parties to file and
serve their materials and to expedite the hearing of the judicial review
application to be scheduled forthwith by the Court Administrator;
3. Pursuant
to Rule 105 that these proceedings be consolidated and heard together with
IMM-341-11; and
4. That
all documents filed or delivered to the Court in the Applicant’s application
for leave and for judicial review of the Division Member’s decision be
treated as confidential.
“Michel
M.J. Shore”
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