Date: 20110426
Docket: IMM-1982-11
Citation: 2011
FC 493
Ottawa, Ontario, April 26, 2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Applicant
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and
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ADRIEN DAMBANA SUNGU
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
Applicant Minister sought an order staying the release of the Respondent Sungu
which release had been granted by the Immigration Division (ID) of the
Immigration and Refugee Board subject to certain terms. Release had been stayed
pending this Court’s hearing.
[2]
The Court
has issued a further interim order dealing with the then pending April 21, 2011
detention review so as to ensure no issue of mootness. That interim order will
be replaced by the order to follow.
[3]
Sungu has
had a checkered immigration history including leaving Canada in 2006 before an immigration
admissibility hearing could be held, possibly trying to re-enter Canada under a
false name in 2007/2008, and clearly trying to enter Canada in 2010 under a fraudulent passport.
[4]
Sungu was
detained and has had five detention reviews. In the four previous hearings, he
was ordered detained in order to ensure his appearance for removal. In the
latter hearings the ID expressed concern about the sureties proposed and was
prepared to accept those sureties or the amounts proposed.
[5]
On March
24, 2011, Sungu was found to be inadmissible under paragraphs 34(1)(f)
and 35(1)(a) of the Immigration and Refugee Protection Act.
Immediately thereafter a detention review hearing was conducted and release was
granted despite the same proposals for sureties and other terms as had been
previously rejected.
[6]
I am
satisfied that the Minister has established the “serious issue” threshold
whether on the usual standard or on an elevated standard as argued by the
Respondent. The Minister has argued that the reasons of the ID are inadequate
as to why release was acceptable now but not so previously under similar
circumstances.
[7]
The
Minister has also established irreparable harm in respect to the insufficiency
of the terms of release to prevent Sungu avoiding deportation either by going
underground or leaving the country again without advising CBSA. His history
gives some basis for anticipating the future.
[8]
In terms
of balance of convenience, there is a clear public interest at risk and
precious few equities in favour of the Respondent.
[9]
The Court
had expected that the leave application would at least have been ready for
determination before the April 21 detention review hearing, as had been
discussed at the stay hearing.
[10]
Detention
reviews serve several purposes not just that of determining whether a person
should be released. As there will be a delay in having the merits of the leave
decided and, assuming that it is granted, the ultimate determination of the
judicial review, this Court’s earlier order needs to be revised.
ORDER
THIS COURT ORDERS that the release of Adrien Dambana
Sungu is stayed until the review of the leave application and if leave is
granted, the determination of the judicial review.
THE COURT FURTHER ORDERS that Adrien Dambana Sungu is to
have his detention reviewed every 30 days hereafter but no release order may be
made except as ordered by this Court.
“Michael
L. Phelan”
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