Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (T.D.) [2003] 4 F.C. 491
Date: 20030326
Docket: IMM-1845-03
Neutral Citation: 2003 FCT 354
Toronto, Ontario, Wednesday, the 26th day of March, 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
KAILESHAN THANABALASINGHAM
Respondent
REASONS FOR ORDER AND ORDER
Background
[1] This is a motion for an order staying the decision of Anthony Iozzo, a Member of the Immigration and Refugee Board, Immigration Division, dated March 18, 2003, releasing the Respondent from detention. The motion requests a stay until the Respondent's next statutory detention review or until the Court is able to deal with the underlying application for leave and judicial review.
[2] It is the second such stay application made by the Applicant in relation to this Respondent. The first application requested a stay of the decision of Vladislav Tumir, also a Member of the Immigration and Refugee Board, Immigration Division, dated November 5, 2002, releasing the Respondent from detention.
[3] The application from the Tumir decision was heard by O'Keefe J. who, in an Order dated November 15, 2002, granted the stay until a decision was made in the Respondent's next statutory detention review. That statutory detention review has now occurred, so that the stay granted by O'Keefe J. expired when the Iozzo decision was made to release the Respondent. It is the Iozzo decision that forms the basis for the present stay application.
[4] In the stay motion on the Tumir decision O'Keefe J. was asked to consider granting the stay until the underlying judicial review application was heard, but he declined to do so because he did not know when that would occur. The date has now been fixed at May 7, 2003 to hear the judicial review application on the Tumir decision, but any such review will be moot because the Tumir decision has now been superseded by the Iozzo decision to release the Respondent.
[5] The Respondent was born on April 26, 1969 in Sri Lanka and is now thirty two years old. He is a citizen of Sri Lanka and a permanent resident of Canada, having been landed on August 31, 1992. He is a recognized Convention refugee. He is now subject to a deportation order issued on February 14, 2002, and as a permanent resident has filed an appeal with the Immigration Appeal Division.
[6] The Respondent has three criminal convictions:
1. 1996, possession of a weapon;
2. 1997, fail to comply with a recognizance; and
3. 1998, conspiracy to commit assault.
The latter conviction based on charges laid in 1997, was the basis for the deportation order issued against the Respondent on February 14, 2002.
[7] The Respondent was arrested by immigration authorities on October 18, 2001. He was arrested in Ottawa, where he lived, and brought to Toronto. He has been detained since that time and is presently at the Maplehurst Detention Centre in Milton, Ontario. He was made the subject of two reports under subsection 27(1) of the Immigration Act, R.S.C. 1985, c. I-2 (Act). The first report, dated July 8, 1998 alleged him to be removable from Canada because of the criminal conviction of conspiracy to commit assault on June 30, 1998. The direction for inquiry was signed on February 19, 1999. This is the report upon which his deportation order was based. There was another report under subsection 27(1) alleging the Respondent to be a member of a gang, i.e. an organization engaged in criminal activity. The Minister commenced the inquiry on the basis of both reports under subsection 27(1) of the Act, but withdrew the report on the gang allegation. The Respondent conceded the facts based on his conviction and was ordered deported solely on the basis of that conviction, not on the basis of the gang membership allegation.
[8] The Respondent has filed an appeal from the deportation order to the Immigration Appeal Division. At the appeal, which commenced in the summer of 2002, his counsel objected to the admission of evidence respecting allegations of misconduct on the Respondent's part which did not lead to charges being laid, or if laid were withdrawn or not otherwise proceeded upon. The appeal before the Immigration Appeal Division is still pending. There are several appeals, along with the Respondent's appeal, in which a number of complex jurisdictional and evidentiary issues have been raised. The jurisdictional issues have been raised by the Minister and the evidentiary issues have been raised by the Respondent. These appeals are pending a preliminary determination by the Appeal Division on the legal issues raised. As such, the Respondent's appeal is not yet scheduled for hearing.
[9] The Respondent moved to Ottawa to attend the University of Ottawa and commenced his course there in 1994. After his 1998 conviction, he returned to Ottawa and continued his studies. His mother moved to Ottawa with him at that time and remained there until he was married. He graduated in Applied Science, Electrical Engineering in March, 2000. He married in 1999 and obtained a job with Nortel in Ottawa. With the downturn in the technology sector, he and many others were laid off by Nortel. He obtained a job with Hyper-Chip in Montreal. He commuted from Ottawa to Montreal for this job, as he lived with his wife in Ottawa. Shortly before he was detained in October, 2001, he was laid off from his job at Hyper-Chip because of the downturn in the high tech sector of the economy. He was looking for another job at the time of his arrest. His wife had moved to Ottawa to be with him after their marriage.
Issues
[10] The issues before me are essentially those confronted by O'Keefe J. when he considered the stay application on the Tumir decision, but with two important differences:
a) The Tumir decision to release the Respondent on conditions has now been superseded by the decision of Anthony Iozzo to release the Respondent on conditions. Leave has not yet been granted to apply for judicial review of the Iozzo decision and, of course, no date has yet been set to hear the review itself; and
b) I was advised by counsel for the Respondent in her oral presentation to me, that the arguments she made and authorities cited before O'Keefe J. in the earlier Tumir application were significantly different from those which she made in the present application, at least as regards the legal tests to be satisfied for the granting of a stay in a case of this kind.
[11] A consideration of the relevant legal issues and applicable authorities is complicated by the fact that the Iozzo decision, from which this stay application is made, may well be superseded by a new decision by a Member of the Immigration and Refugee Board before it can be judicially reviewed, assuming that leave for such review is granted.
[12] Approaches to overcoming the problem by way of expedited leave and consolidation were suggested in the Applicant's materials, but no motion for such solutions was before me, and I am left to consider the stay application on the Iozzo decision bearing in mind that no leave for judicial review has yet been granted, no date has yet been set for judicial review, and the Iozzo decision itself may well be superseded if a further decision is made to either release the Respondent or keep him in detention.
Applicable Law
[13] Counsel for both parties identified the Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587 (C.A.) derived tests of serious question, irreparable harm, and balance of convenience as issues in this application, but they were at odds on the extent to which the principles of Toth, supra, should be modified to deal with the facts of this motion.
[14] Counsel for the Applicant asserted that the "serious issue" aspect of the Toth, supra, test on the present facts requires the Applicant to show more than that an issue raised is not frivolous or vexatious, but that the Applicant need not have to satisfy a balance of probabilities test. When pushed further on this, counsel for the Applicant indicated that the "serious issue" aspect of Toth, supra, could be satisfied on this motion if the Applicant could show a likelihood of being able to prove its arguments at the judicial review hearing.
[15] Counsel for the Respondent argued that, because the issuance of a stay in the present motion would effectively determine the judicial review application itself, the threshold for finding a serious issue is much higher than in the usual case.
[16] The reason why, in this case, the issuance of a stay will effectively determine the review application is because detention orders have to be reviewed frequently and are of a recurring nature. Hence, if the Applicant is granted a stay, the underlying judicial review application is likely to become moot before it can be heard. This means that the Respondent will continue in detention without having the opportunity to benefit from a judicial review decision of the Iozzo decision.
[17] In support of the Respondent's position on this point, Respondent's counsel referred me to the often-quoted modification of the American Cyanamid principle enunciated by Lord Diplock in N.W.L. Ltd. v. Woods, [1979] 1 W.L.R. 1294 at page 1307, as quoted by the Supreme Court of Canada R.J.R. MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; [1994] S.C.J. No. 17, at paragraphs 51-53.
[18] In addition, counsel for the Respondent referred me to the words of Pelletier J. in Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 295, at paragraph 11, where he considered the implications of R.J.R. MacDonald Inc., supra, for questions not considered in that case and concluded that, in those situations where the interlocutory application will effectively decide the underlying application:
It is not that the tri-partite test does not apply. It is that the test of serious issue becomes the likelihood of success on the underlying application since granting the relief sought in the interlocutory application will give the applicant the relief sought in the application for judicial review.
[19] Counsel for the Respondent referred me to several cases where Courts have gone so far as to deny interlocutory relief entirely in situations where the result will effectively determine the underlying application. In particular, she referred me to the decisions in Saskatchewan First Nations and Indian Bands v. Canada (Attorney General), [2002] F.C.J. No. 1517; 2002 FCT 1131, at paragraphs 69-71 and A.G.C. Canada v. Gould, [1984] 1 F.C. 1133 (C.A.). Counsel for the Respondent invited me to treat the present case as analogous and to hold a stay should not be available in the context of this motion.
[20] As an alternative to the draconian approach associated with the Gould, supra, case, counsel for the Respondent referred me to various authorities where, because of the determinative nature of the interlocutory relief sought, the Courts have required the Applicant to demonstrate a "clear case" a "prima facie case" or a "high degree of assurance." For instance, Respondent's counsel referred me to the recent decision of this Court in North of Smokey Fishermen's Association v. Canada (Attorney General), [2003] F.C.J. No. 40 (T.D.) where, at paragraph 18, Layden-Stevenson J. asserted that "If the relief amounts to a final determination of the main proceeding, a higher standard applies and an Applicant must make out a prima facie case."
[21] On the facts of the present case, I agree with counsel for the Respondent that the Applicant must show more than that the issues raised are not frivolous or vexatious. However, I reject the Gould, supra, approach on these facts because, under our immigration system Courts have clearly contemplated and allowed stay applications in appropriate cases. Because the relief sought by the Applicant in this case might well amount to the final determination of the main proceeding, the Applicant must make out a prima facie case to satisfy the serious issue test.
[22] On the issues of irreparable harm and balance of convenience, the parties were not conceptually at odds although, of course, they disagreed on the application of both tests to the present facts.
Application to facts of the present case
[23] As O'Keefe J. pointed out when he considered the stay application on the Tumir decision, all that is being decided on a motion such as this is whether or not a stay of the Iozzo decision should be granted. The full merits of a judicial review application of that decision are not before me.
[24] On the serious issue question, the Applicant raised a range of issues:
a) It was patently unreasonable for Member Iozzo to find as he did when previous Members have found the Respondent to be a danger and have continued his detention. There was no new evidence with respect to the issue of danger before Member Iozzo when he decided to release the Respondent on terms and conditions. He reached a conclusion diametrically opposed to previous decisions, not only on the ultimate outcome, but also on the reliability and probative value of the evidence considered by various other Members;
b) Member Iozzo erred in finding that detention reviews are de novo hearings. The Applicant's position is that detention reviews are not hearings de novo but are simply reviews to see if anything has changed that would justify altering a previous decision;
c) Member Iozzo erred in law in finding that previous criminal convictions in themselves cannot substantiate a finding that a person is a danger;
d) Member Iozzo erred in law by inappropriately importing legal principles from the criminal context into his decision. In particular, Member Iozzo quotes criminal cases for the proposition that evidence cannot be considered credible or trustworthy unless it is cross-examined on, and he also says that "previous rulings by my colleagues concerning the credibility and trustworthy of these [KGB] statements are not binding on me as the informants were never produced as witnesses." The Respondent asserts that this contradicts established jurisprudence and the practice of all divisions of the Immigration and Refugee Board;
e) Member Iozzo erred in law by not exercising his jurisdiction to determine whether, for the purposes of detention, the Respondent was a member of a criminal organization as he is required to do under section 246 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations). Member Iozzo incorrectly deferred to the fact that criminal charges were not brought against the Respondent for belonging to a criminal organization. Hence, the Member failed to bring his own independent mind to bear on the evidence and the issue that he had to decide;
f) Member Iozzo erred in law by conflating the issue of whether the Respondent would likely appear for an immigration proceeding with the issue of whether he should be detained or released. He did not, as he is required to do by law, first determine whether the Respondent would be likely to appear for an immigration proceeding. Rather, he allowed considerations in relation to the proposed bonds people and terms and conditions to colour his decision in this regard, and this was an error of law;
g) Member Iozzo failed to apply paragraph 47(2)(b) of the Regulations which requires that a person who posts a guarantee must "be able to insure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed." Member Iozzo did not seriously consider whether or not the proposed bonds people were even capable of insuring that the Respondent would comply with the terms and conditions of release;
h) Member Iozzo erred by deciding that he could not consider documented police occurrences of unproven charges that did not lead to a conviction. By finding that such evidence was inadmissible, Member Iozzo made an error of law.
[25] It is notable that, when he considered the stay application on the Tumir decision, O'Keefe J. was satisfied that the Applicant had shown there were serious issues and, in particular, he specifically referred to the issues raised by the Applicant on the use of previous convictions, the admissibility of evidence on unproven charges, and admissibility of evidence that has not been subject to cross-examination.
[26] The issue for me is whether the Applicant has made out a prima facie case on any of the above issues. Because of the concerns raised by the Respondent's counsel on the determinative nature of this kind of stay application, and the need to examine the issues raised by the Applicant carefully, I permitted both counsel the scope to review with me any important evidentiary features and relevant legal authorities on the issues raised by the Applicant. Both of them did so in thorough and spirited presentations.
[27] I do not consider that all of the issues raised by the Applicant are equally meritorious. I do feel, however, that even on the basis of a prima facie test the issues singled out by O'Keefe J. in his consideration of the Tumir decision also satisfy the serious issue portion of the tri-partite test in this motion.
[28] On the issues of irreparable harm and balance of convenience, I see no reason to differ from the conclusions reached by O'Keefe J. when he dealt with the Tumir decision. Consequently, I find for the Applicant on these issues.
[29] Leave for judicial review of the Member's decision has not yet been granted and there is no telling if the review itself will ever take place. Consequently, I will only grant the stay until a decision is made on the Respondent's next statutory detention review unless, for some unforseen reason, leave for judicial review is refused, or the judicial review itself is concluded, before that date, in which case the stay should only remain in place until the review application is disposed of.
[30] Although I have reached a decision in favour of the Applicant by a strict application of the tri-partite test, I do so with some reluctance. Unless the parties cooperate to insure that the review issues are dealt with before they become moot and before a new detention decision is made by a Member of the Immigration and Refugee Board, this kind of application, whether on the part of the Applicant or the Respondent, is likely to recur to the significant frustration of both parties.
ORDER
THE COURT HEREBY ORDERS THAT: the Applicant's motion for a stay is granted and the Order of Anthony Iozzo dated March 18, 2003, ordering the release of the Respondent from detention is stayed until a decision is made in the Respondent's next statutorily required detention review, leave for judicial review is denied, or judicial review of the decision is finally determined, whichever of the foregoing shall first occur.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-1845-03
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
KAILESHAN THANABALASINGHAM
Respondent
HEARD BY TELECONFERENCE BETWEEN OTTAWA AND TORONTO
DATE OF HEARING: FRIDAY, MARCH 21, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: RUSSELL J.
DATED: WEDNESDAY, MARCH 26, 2003
APPEARANCES BY: Mr. Greg George
For the Applicant
Ms. Barbara Jackman
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General of Canada
For the Applicant
Barbara Jackman
Toronto, Ontario
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030326
Docket: IMM-1845-03
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
KAILESHAN THANABALASINGHAM
Respondent
REASONS FOR ORDER
AND ORDER