2003 FCT 354, 2003 FCT 354

IMM-1845-03 2003 FCT 354 The Minister of Citizenship and Immigration ( Applicant ) v. Kaileshan Thanabalasingham ( Respondent ) Indexed as: Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (T.D.) Trial Division, Russell J.--Toronto, March 21 and 26, 2003.

Citizenship and Immigration -- Exclusion and Removal -- Immigration Inquiry Process -- Respondent, citizen of Sri Lanka, is Convention refugee, permanent resident of Canada -- Deportation ordered following latest criminal conviction -- Being held in immigration detention -- Deportation order under appeal -- IRB member ordering respondent's release -- Minister seeking stay of release order until next statutory review or judicial review leave application dealt with -- Whether principles enunciated by F.C.A. in Toth v.

Canada (Minister of Employment and Immigration) should be modified to deal with facts herein -- What required to satisfy "serious issue" requirement -- Higher standard where stay effectively determining review application as will be moot before heard -- Prima facie case satisfying serious issue test -- Minister submitting lengthy list of errors of law committed by Board member -- Serious issues including: use of previous convictions, admissibility of evidence on unproven charges, evidence not cross-examined upon -- Motion granted.

This was a motion by the Minister for a stay of the decision of an Immigration and Refugee Board member releasing respondent from immigration detention. This is the second such application herein. O'Keefe J. had granted such an order, effective until respondent's next statutory detention review, which has now taken place. Respondent, a permanent resident of Canada, is a citizen of Sri Lanka. He has been recognized as a Convention refugee. His deportation has been ordered, based upon his most recent criminal conviction, which was for conspiracy to commit assault.

He was the subject of two Immigration Act , subsection 27(1) reports, the first alleging that he was removable on account of the conspiracy conviction, the second alleging that he belonged to a criminal gang. An inquiry, based on both reports, was commenced but that regarding gang membership has been dropped. Respondent has appealed the deportation order to the Immigration Appeal Division but that is still pending. Respondent's appeal is but one of several in which complex jurisdictional issues have been raised by the Minister and evidentiary issues raised by respondent.

A date remains to be set for the hearing of respondent's appeal. Respondent is married, is a University of Ottawa Engineering graduate and had employment at Ottawa and Montréal until let go following the downturn in the high- tech sector. The decision which is the subject of the current stay application may be superseded by a new Board decision before it can be judicially reviewed--assuming leave for review is granted. Counsel disagreed as to the extent to which the principles laid down by the Federal Court of Appeal in Toth v.

Canada (Minister of Employment and Immigration) ought to be modified in dealing with the case at bar. The Minister's submission was that the "serious issue" requirement could here be met by demonstrating a likelihood that applicant's arguments could be proven at the judicial review hearing. It was urged for respondent that, as the issuance of a stay would effectively determine the judicial review application, the threshold for finding a serious issue should be much higher than in the usual case.

The point is, that because detention orders have to be frequently reviewed, if a stay is granted, it is likely that the judicial review application will have become moot before it can be heard. The bottom line is that respondent will remain incarcerated. Respondent's counsel cited numerous cases in which courts have denied interlocutory relief if granting it would effectively determine the underlying application. It was argued that, at the least, courts have insisted that an applicant demonstrate a " prima facie case" or a "high degree of assurance". Held , the motion should be granted.

While the Court could accept that the Minister must go beyond establishing that the issues are not frivolous or vexatious, he had only to make out a prima facie case to satisfy the serious issue test. Under our immigration system, courts have allowed stay applications in appropriate cases. The Minister says that it was patently unreasonable for the Board member to have released respondent when other members have found that his detention should be continued since respondent constitutes a danger. It was further argued that the member erred in his view that detention reviews are de novo hearings.

Again, it was suggested that the member was mistaken in his view that criminal convictions could not, in themselves, support a finding that a person is a danger. Another argument was that the member had inappropriately imported criminal law principles into his decision. The member was said to have erred as well in failing to determine whether respondent belonged to a criminal organization, a requirement of Immigration and Refugee Protection Regulations ,

section 246 . The member allegedly failed to seriously consider whether the proposed bonds people were capable of insuring respondent's compliance with the conditions of release. Finally, he should have considered charges that failed to result in convictions. In granting the previous stay application, O'Keefe J. accepted applicant's arguments regarding the use of previous convictions, the admissibility of evidence on unproven charges and of evidence not subjected to cross-examination.

The matters singled out by O'Keefe J. satisfied the serious issue portion of the tri-partite test in the motion now before the Court. A stay should be granted to have effect until respondent's next statutory detention review or until the judicial review application is disposed of. This decision, in the Minister's favour, was not made without some reluctance. Should the parties fail to cooperate to insure that the review issues are dealt with before they become moot, applications of this sort will recur to the frustration of both sides. statutes and regulations judicially

considered Immigration Act, R.S.C., 1985, c. I-2, s. 27(1) (as am. by S.C. 1992, c. 49, s. 16). Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 47(2)(b), 246. United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6. cases judicially considered applied: Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2002 FCT 1196; [2002] F.C.J. No. 1619 (T.D.) (QL); Toth v.Canada (Minister of Employment and Immigration) (1988), (FCA), 6 Imm. L.R. (2d) 123; 86 N.R. 302 (F.C.A.);North of Smokey Fishermen's Assn. v.

Canada (Attorney General), 2003 FCT 33; [2003] F.C.J. No. 40 (T.D.) (QL). considered: Saskatchewan First Nations and Indian Bands v. Canada (Attorney General) (2002), 2002 FCT 1131 , 223 F.T.R. 64(F.C.T.D.); Attorney General of Canada v. Gould, (FCA), [1984] 1 F.C. 1133; (1984), 13 D.L.R. (4th) 485; 42 C.R.(3d) 88; 54 N.R. 232 (C.A.). referred to: American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.); N.W.L. Ltd. v. Woods, [1979] 1 W.L.R. 1294 (H.L.); RJR--MacDonaldInc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; (1994), 111 D.L.R. (4th) 385; 164 N.R. 1; Wang v.Canada (Minister of Citizenship and Immigration), 2001 FCT 148 , [2001] 3 F.C. 682; (2001), 204 F.T.R. 5; 13 Imm. L.R. (3d)289 (T.D.). MOTION for an order staying the decision of an Immigration and Refugee Board member, releasing respondent from immigrationdetention. Motion granted. appearances: Gregory G. George for applicant. Barbara L. Jackman for respondent. solicitors of record: Deputy Attorney General of Canada for applicant. Barbara L. Jackman, Toronto, for respondent.

The following are the reasons for order and order rendered in English by Russell J.: BACKGROUND [1]This is a motion for an order staying the decision of Anthony Iozzo, a member of the Immigration and Refugee Board, ImmigrationDivision, dated March 18, 2003, releasing the respondent from detention. The motion requests a stay until the respondent's next statutorydetention 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 thedecision 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 [2002 FCT 1196; 2002FCT 1196 , [2002] F.C.J. No. 1619 (T.D.) (QL)], granted the stay until a decision was made in the respondent's next statutorydetention review.

That statutory detention review has now occurred, so that the stay granted by O'Keefe J. expired when the Iozzodecision 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 reviewapplication 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 hasnow 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 32 years old. He is a citizen of Sri Lanka and a permanentresident of Canada, having been landed on August 31, 1992. He is a recognized Convention refugee [United Nations ConventionRelating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6].

He is now subject to a deportation order issued on February14, 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 broughtto Toronto. He has been detained since that time and is presently at the Maplehurst Detention Centre in Milton, Ontario. He was madethe subject of two reports under subsection 27(1) of the Immigration Act, R.S.C., 1985, c.

I-2 [as am. by S.C. 1992, c. 49, s. 16] (Act).The first report, dated July 8, 1998 alleged him to be removable from Canada because of the criminal conviction of conspiracy to commitassault on June 30, 1998. The direction for inquiry was signed on February 19, 1999. This is the report upon which his deportation orderwas based. There was another report under subsection 27(1) alleging the respondent to be a member of a gang, i.e. an organizationengaged in criminal activity.

The Minister commenced the inquiry on the basis of both reports under subsection 27(1) of the Act, butwithdrew the report on the gang allegation. The respondent conceded the facts based on his conviction and was ordered deported solelyon 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 commencedin the summer of 2002, his counsel objected to the admission of evidence respecting allegations of misconduct on the respondent's partwhich did not lead to charges being laid, or if laid were withdrawn or not otherwise proceeded upon. The appeal before the ImmigrationAppeal Division is still pending. There are several appeals, along with the respondent's appeal, in which a number of complexjurisdictional and evidentiary issues have been raised. The jurisdictional issues have been raised by the Minister and the evidentiaryissues have been raised by the respondent.

These appeals are pending a preliminary determination by the Appeal Division on the legalissues 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 1998conviction, he returned to Ottawa and continued his studies. His mother moved to Ottawa with him at that time and remained there untilhe was married. He graduated in Applied Science, Electrical Engineering in March 2000. He married in 1999 and obtained a job withNortel 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 Montréal. He commuted from Ottawa to Montréal for this job, as he lived with his wife in Ottawa. Shortly before he wasdetained 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 therespondent on conditions. Leave has not yet been granted to apply for judicial review of the Iozzo decision and, of course, no date hasyet 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 beforeO'Keefe J. in the earlier Tumir application were significantly different from those which she made in the present application, at least asregards 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 whichthis stay application is made, may well be superseded by a new decision by a member of the Immigration and Refugee Board before itcan 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, butno motion for such solutions was before me, and I am left to consider the stay application on the Iozzo decision bearing in mind that noleave for judicial review has yet been granted, no date has yet been set for judicial review, and the Iozzo decision itself may well besuperseded 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), (FCA),6 Imm.

L.R. (2d) 123 (F.C.A.) derived tests of serious question, irreparable harm, and balance of convenience as issues in thisapplication, but they were at odds on the extent to which the principles of Toth, supra, should be modified to deal with the facts of thismotion. [14]Counsel for the applicant asserted that the "serious issue" aspect of the Toth, supra, test on the present facts requires the applicant toshow more than that an issue raised is not frivolous or vexatious, but that the applicant need not have to satisfy a balance of probabilitiestest.

When pushed further on this, counsel for the applicant indicated that the "serious issue" aspect of Toth, supra, could be satisfied onthis 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 judicialreview 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 haveto 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 theopportunity 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 theAmerican Cyanamid [American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.)] principle enunciated by Lord Diplock in N.W.L.Ltd. v. Woods, [1979] 1 W.L.R. 1294 (H.L.), at page 1307, as quoted by the Supreme Court of Canada RJR--MacDonald Inc. v.

Canada(Attorney General), (SCC), [1994] 1 S.C.R. 311, at pages 338-339. [18]In addition, counsel for the respondent referred me to the words of Pelletier J. in Wang v. Canada (Minister of Citizenship andImmigration), 2001 FCT 148 , [2001] 3 F.C. 682 (T.D.), at paragraph 11, where he considered the implications of RJR--MacDonald Inc., supra, for questions not considered in that case and concluded that, in those situations where the interlocutoryapplication 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 underlyingapplication since granting the relief sought in the interlocutory application will give the applicant the relief sought in the application forjudicial review. [19]Counsel for the respondent referred me to several cases where courts have gone so far as to deny interlocutory relief entirely insituations where the result will effectively determine the underlying application. In particular, she referred me to the decisions inSaskatchewan First Nations and Indian Bands v.

Canada (Attorney General) (2002), 2002 FCT 1131 , 223 F.T.R. 64(F.C.T.D.), at paragraphs 69-71 and Attorney General of Canada v.

Gould, (FCA), [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 ofthis motion. [20]As an alternative to the draconian approach associated with the Gould, supra, case, counsel for the respondent referred me to variousauthorities where, because of the determinative nature of the interlocutory relief sought, the courts have required the applicant todemonstrate a "clear case" a "prima facie case" or a "high degree of assurance." For instance, respondent's counsel referred me to therecent decision of this Court in North of Smokey Fishermen's Assn. v.

Canada (Attorney General), 2003 FCT 33; [2003] F.C.J. No. 40(T.D.) (QL) where, at paragraph 18, Layden-Stevenson J. asserted that "If the relief amounts to a final determination of the mainproceeding, 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 raisedare not frivolous or vexatious.

However, I reject the Gould, supra, approach on these facts because, under our immigration system courtshave clearly contemplated and allowed stay applications in appropriate cases. Because the relief sought by the applicant in this casemight well amount to the final determination of the main proceeding, the applicant must make out a prima facie case to satisfy theserious issue test. [22]On the issues of irreparable harm and balance of convenience, the parties were not conceptually at odds although, of course, theydisagreed 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 suchas this is whether or not a stay of the Iozzo decision should be granted. The full merits of a judicial review application of that decisionare 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 dangerand have continued his detention.

There was no new evidence with respect to the issue of danger before member Iozzo when he decidedto release the respondent on terms and conditions. He reached a conclusion diametrically opposed to previous decisions, not only on theultimate 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 nothearings 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 adanger; (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 contradictsestablished 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 wasa 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 therespondent for belonging to a criminal organization. Hence, the member failed to bring his own independent mind to bear on theevidence 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 withthe issue of whether he should be detained or released.

He did not, as he is required to do by law, first determine whether the respondentwould 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 ensure 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 co-operate 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.