Date: 20081002
Docket: IMM-4312-08
Citation: 2008
FC 1114
Toronto, Ontario, October 2, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Applicant
and
TEE MENG
LIEW
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
matter was heard on short notice and on an urgent basis.
[2]
The
Minister applies under section 18.2 of the Federal Courts Act for an
order staying the order of Immigration Division Member H. Shepherd dated October
1, 2008, releasing the Respondent from detention, on terms and conditions as
set out in that order. The Minister asks that the order be stayed until a final determination has
been made in its application for leave and judicial review of that order.
[3]
Mr.
Liew is a citizen of Malaysia. He attempted to enter Canada in 1993 but
was denied permission. It appears that he was able to enter Canada later that
year in an unknown manner. He then remained in hiding until 2004 when he was
arrested and came to the attention of the authorities. Mr. Liew then made a
refugee claim on February 3, 2004. His claim was rejected. A fair reading of
the decision of the RPD indicates that they did not find Mr. Liew at all
credible.
[4]
Mr.
Liew failed to appear for a removal interview in January 2007 and a warrant was
issued for his arrest. He was arrested and detained February 19, 2007. At the
time of his arrest he was asked if he would go back to Malaysia and he said
that he would not as he wanted to stay in Canada. He further
stated that even if ordered by the Canadian officials to return to Malaysia, he would
not.
[5]
After
his arrest, Mr. Liew disclosed for the first time that he was on Malaysia’s
most wanted list as he was charged with murder in Malaysia and faced
the death penalty if convicted. His PRRA application was rejected, however the
Minister agreed to re-determine that application and seek assurances from Malaysia that Mr.
Liew would not face the death penalty if convicted of the charges. The
Government of Canada continues to actively seek that assurance.
[6]
The
Immigration Division has refused Mr. Liew’s release on a number of occasions
because he seen to be a flight risk and because of the seriousness of the
outstanding murder charge.
[7]
On
October 1, 2008, Member H. Shepherd ordered the release of the Applicant on a
performance bond of $3000 from Mr. Chiu and a further $10,000 cash bond from
Mr. Wong.
[8]
The
detention review commenced on September 25, 2008 but was adjourned to October 1st
in order that Mr. Wang, who counsel for Mr. Liew indicated would post a $10,000
bond, could be interviewed. Mr. Wong did not attend the hearing on October 1st
as he did not wish to discuss his finances. Counsel presented, in his place,
Mr. Chiu who was prepared to provide a $10,000 performance bond. The Member
found that Mr. Chiu did not have the financial wherewithal to meet that
obligation and the Member was only prepared to accept a $3000 bond from him.
The Member then indicated that he would accept a $10,000 cash bond from Mr.
Wong, despite having no evidence of his financial resources and whether the
cash would, in fact be coming from him, or another source. The Member seemed to
be of the view that because Mr. Liew would be staying with Mr. Wong this
sufficed.
[9]
The
Minister has applied for leave and judicial review of that decision, and in the
interim, seeks a stay of the Respondent’s release.
[10]
In
order to obtain a stay an applicant must demonstrate: (1) that there is a
serious issue to be tried; (2) that the applicant would suffer irreparable harm
if no order were granted; and (3) that the balance of convenience favours the
granting of the order: Toth v. Canada (Minister of
Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.).
[11]
Upon
hearing counsel for the parties and reading the material filed, I am satisfied
that the first part of the tripartite test has been met. There is a serious
issue as to whether the Member erred in accepting Mr. Wong as a guarantee of
Mr. Liew’s future compliance with the Act and the terms of release. The Member
heard no evidence from Mr. Wong and Canada Border Services Agency had no
opportunity to examine Mr. Wong as he refused to attend the hearing. Arguably
the Minister was denied procedural fairness.
[12]
There
is also a serious question as to the reasonableness of the decision made by H.
Shepherd in light of the many previous detention orders made by Members of the
Immigration Division. While the Court does not have the advantage of a
transcript of the reasons for release, the Court notes that the evidence that
is available shows that Mr. Liew has previously, and many times, lied to
immigration authorities, stated that he would not comply with a removal order
or deportation order, has lived successfully underground in Canada for more
than 10 years, and is facing a very serious criminal charge in Malaysia. Given
these facts, it cannot be said that the Minister’s assertion that the decision
was unreasonable is frivolous or vexatious.
[13]
I
am also satisfied that the Minister has established irreparable harm. In this
regard, I adopt paragraph 30 of the Applicant’s written memorandum. The
objective of the Act is compliance. To date, Mr. Liew has failed to comply
many times with the Act. His disappearance underground is a real risk and
given his past success, if he does go underground again, it may well be a long
time before he is detained. That risk is irreparable.
[14]
The
balance of convenience lies with the Minister and the public interest in
enforcing the provisions of the Act and in protecting the public.
[15]
Consequently,
Member H. Shepherd’s order dated October 1, 2008, releasing the Respondent from
detention on terms will be stayed.
ORDER
THIS COURT ORDERS THAT the decision of H. Shepherd, dated October 1, 2008, is
stayed until the earlier of:
(a) the application for leave and for
judicial review is determined on its merits; or
(b) the Respondent’s next
statutorily required detention review hearing.
"Russel
W. Zinn"
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