Date: 20020315
Docket: IMM-1035-02
Neutral citation: 2002 FCT 289
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
HARJIT SINGH
Respondent
REASONS FOR ORDER
BEAUDRY, J.
UPON reading the material before the Court;
AND UPON hearing Counsel for the parties by telephone conference and analysis of subsequent written submissions from Counsels, the applicant's motion for an order staying a decision rendered by Adjudicator Michel Beauchamp on February 28, 2002 should be allowed for the following reasons:
SERIOUS ISSUE:
[1] On December 6, 2001, Michel Beauchamp, Adjudicator in the present case, stated on page 3:
All of this to explain why I conclude today that you are likely to pose a danger to the public in Canada, that it is obvious that you would never appear voluntarily for a removal back to India and that we are not today at the point where these two criteria have to be superseded by the factor of link of detention and possibility of removal. Today's hearing is terminated.
The same Adjudicator on February 28, 2002, stated on page 3:
The criteria applicable during detention review is is he likely to pose a danger to the public? And mostly based on the fact that, yes, while you were at large outside of India, there's absolutely no report of you being involved in any kind of activities on behalf of Khalistan, I'm prepared to take away that label for the purpose of a detention review.
[2] There has been no material changes between December 6, 2001 and February 28, 2002.
[3] Upon a motion on behalf of the Applicant for a stay of the Order of Adjudicator Dianne Tordorf dated August 14, 2001 (IMM-3937-01), Justice McKeown said on page 3:
[...] 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 favour the applicant 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.
[4] It should also be noted that on March 4, 2002, the Court granted leave to file an Application for Judicial Review against Dianne Tordorf's decision dated August 14, 2001. The hearing in this case is scheduled for May 29, 2002.
[5] I was also told that the applicant is in no way at fault for the delay to obtain the necessary removal papers.
[6] In my view the decisions of M.C.I. v. Chen, [1999] F.C.J. No. 1815 (T.D.) and M.C.I. v. Lin [1999] F.C.J. No. 1997 (T.D.) are applicable. I am satisfied that there is irreparable harm to the applicant and the balance of convenience favours the applicant.
[7] For these reasons, the order of Adjudicator Michel Beauchamp of the Adjudication Division of the Immigration and Refugee Board (IRB), February 28, 2002 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.
"Michel Beaudry"
Judge
Ottawa, Ontario
March 15, 2002