Docket: IMM-63-16
Citation:
2016 FC 60
Vancouver, British Columbia, January 20, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Applicant
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and
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JACOB DAMIANY
LUNYAMILA
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Respondent
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ORDER AND REASONS
[1]
The Applicant appears before the Court with an
application for a stay of the release order issued by a member of the
Immigration Division (ID) of the Immigration and Refugee Board.
[2]
The member ordered the release of the
Respondent.
[3]
The Respondent has been in detention since June
2013, as several members of the ID have determined that the Respondent is
considered to be a flight risk and represents a danger to the public.
[4]
In the Thanabalasingham judgment, the
Federal Court of Appeal (2004 FCA 4), [2004] 3 FCR 572, at paragraph
24, stated the need to ensure that previous decisions be considered in a
detention review, when previous decisions had been rendered. It was clearly
specified that the ID member must give “clear and
compelling reasons for departing from previous determinations”.
[5]
In this case, a disregard is manifestly noticed
in that the member departed from previous decisions without clear and
compelling reasons.
I.
Serious Issue
[6]
It must be recalled that between 1999 and 2013,
uncontradicted facts on record establish that the Respondent had fifty-four
criminal convictions, ten of which are for assaults between 2005 and 2013, with
four convictions as a result of uttering threats and thirteen convictions for
failing to appear in Court, in addition to the failure of compliance with
orders, probation or recognizance. The last conviction was for sexual assault.
It is primordial to recall in this case, the decision in Canada (Minister of
Citizenship and Immigration) v Li. 2009 FCA 85, in regard to tribunal
members who speculate instead of ensuring an analysis of the evidence submitted
(In that regard paragraphs 62, 63, 66, 67 and 68 are most significant).
II.
Irreparable Harm
[7]
The application would be moot if the Respondent
were to be released.
III.
Balance of Convenience
[8]
The Court considers that, should the stay of
release from detention be granted, a new detention review will take place
within thirty days and with the possibility that an expedited review will take
place.
[9]
If the stay of release from detention is not
granted, the incidents of the past could be repeated as per the previous
pattern of behaviour demonstrated to the Court.
[10]
As the tripartite conjunctive test in RJR –
MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 has been
satisfied, therefore, the Court orders a stay of the release order of the ID
dated January 5, 2016, until the Application for Leave and Judicial Review is
determined on the merits.
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