Date: 20010827
Docket: IMM-3937-01
Neutral citation: 2001 FCT 954
OTTAWA, ONTARIO, THIS 27TH DAY OF AUGUST, 2001
Present: THE HONOURABLE MR. JUSTICE W. P. McKEOWN
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
HARJIT SINGH
Respondent
UPON MOTION on behalf of the applicant for a stay of the order of adjudicator Dianne Tordorf dated August 14, 2001;
AND UPON reading the material before the Court;
AND UPON hearing counsel for the parties by telephone conference;
REASONS FOR ORDER AND ORDER
(Rendered from the Bench at Ottawa, Ontario, as edited)
The applicant seeks a stay of the order of adjudicator Tordorf dated August 14, 2001, until the application for leave and for judicial review is determined.
In my view there is a serious issue. The key findings by the adjudicator are at page 6:
When considering whether to release somebody from detention, we must consider alternatives to detention. In your particular case, I determine that, on the balance of probabilities, that you are someone who is likely to pose a danger to Canadian society, and you're likely not to appear for your removal.
I have considered the length of your detention. You've been detained now for almost a year. It looks like you'll be here in Canada still for a few more months, as a travel document is issued to you. Your lawyer is initiating a judicial review regarding the Minister's opinion and regarding the risk assessment that was made against you. I feel that the immigration officials have been diligent in your case, and they haven't been just sitting by and letting months and months go by. They've been working on your file. ...
In my view the decisions of Sahin v. MCI, [1995] 1 F.C. 214 (T.D.), MCI v. Chen, [1999] F.C.J. No. 1815 (T.D.), MCI v. Lin, [1999] F.C.J. No. 1997 (T.D.) and MCI v. Zheng, IMM-462-01, February 23, 2001 (F.C.T.D.) are applicable. I do not agree with paragraph 23 of M.C.I. v. Lai, 2001 F.C.T. 118. It is contrary to all the other case law in this area. There were no Charter arguments made before the adjudicator. I also note that the adjudicator found that the applicant was not at fault for the delay. She stated at page 4:
So it was confirmed to Maitre Rosenfeld, on the 7th of August 2001, that the Minister had issued an opinion against you, and therefore you couldn't make a claim. And Maitre Rosenfeld doesn't remember exactly what was said in the conversation, but apparently he would have told the immigration officer to wait and let him find out what was going on, and get more information about it. And that's his explanation for you not signing the travel document.
He says that later on you called him but, since you don't speak much English, he couldn't understand what you were saying. And that at no time were you uncooperative on your own. It was Maitre Rosenfeld who was trying to find out the situation and was trying to advise you. He says that definitely you'll cooperate for a travel documents, [sic] but it's going to take some time for you to obtain a travel document from India because India takes a long time.
However it is also clear that she found that Citizenship and Immigration had been diligent.
The adjudicator exercised her discretion in reviewing the Minister's decision on danger and found the respondent was likely to pose a danger to Canadian society.
She made the findings required under section 103(7) and then failed to apply the proper test. There was no real alternative to detention. The facts are similar to those in Kidane v. MCI, [1997] F.C.J. No. 990 (T.D.). I note in particular paragraphs 7 and 8. The length of time in detention and length of time detention will likely continue favours the respondent but it cannot overcome the findings that the respondent is likely to pose a danger to Canadian society and he is likely not to appear for his removal. There are no Charter arguments. Thus there is a serious issue.
There is irreparable harm to the applicant and the balance of convenience favours the applicant.
The order of adjudicator Tordorf dated August 14, 2001 is stayed until the earlier of either the disposition of the application for leave and for judicial review or in the alternative, until the respondent's next statutorily mandated detention review hearing. The application for leave and judicial review is expedited. The parties shall provide a proposed schedule to the Court on or before August 31, 2001.
"W.P. McKeown"
JUDGE