Date: 20050425
Docket: IMM-2187-05
Citation: 2005 FC 555
Montréal, Quebec, April 25, 2005
Present: The Honourable Mr. Justice Blanchard
BETWEEN:
THE SOLICITOR GENERAL OF CANADA
Applicant
and
ALI REZA ORAKI
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] The applicant requests an order staying the order of Ms. Dianne Tordorf, member of the Immigration Division of the Immigration and Refugee Board (the Board), rendered on April 5, 2005, which ordered that the respondent be released from detention subject to certain conditions until this Court has had an opportunity to deal with the applicant's judicial review application.
Factual background
[2] The respondent, Ali Reza Oraki, is a citizen of Iran who arrived in Canada on December 12, 1986 and sought refugee status on December 14, 1986. On November 24, 1988, he was convicted on six charges of trafficking in heroin.
[3] On August 2, 1991, the respondent was ordered removed from Canada. On August 16, 1993, the respondent was excluded pursuant to paragraph 1F(c) of the Convention. The application for judicial review of that decision was dismissed by this Court on December 22, 1993. On March 23, 1994, the expulsion measure against the respondent became effective.
[4] The respondent failed to attend the offices of Immigration Canada on November 16, 1994 as required in order to arrange for his departure. He apparently left the country, to return illegally in 1995. He remained in Canada illegally until an arrest warrant was issued on September 13, 2004. He was arrested the next day and has remained in detention since that time.
[5] The record reveals that a total of nine detention reviews were conducted before various Board members, at which the respondent's release was considered. For the first eight detentions refused conducted between September 16, 2004 and March 7, 2005, the respondent was considered to be a serious flight risk and his detention was therefore maintained.
[6] On April 5, 2005, Board member Tordorf released the respondent upon the following conditions: 1) that he post a cash bond, or other form of security, in the amount of $20,000; 2) that he report to an immigration agent within 72 hours following his release and, subsequently, once a week; 3) that he cooperate with the authorities to obtain his travel documents; and 4) once the travel documents are obtained, that he continue to report on a weekly basis to an immigration agent until his removal.
[7] On April 6, 2005, Mr. Dastjerdi, a friend of the respondent, reported to Immigration Canada offices in Montreal with a cheque in the amount of $20,000. It is alleged that Mr. Dastjerdi indicated to the agents that $18,000 of that sum came from Iran as a result of the respondent contacting his brother in Iran. Since the immigration officers had previously been informed by the respondent that he had no contact with his family in Iran, the officer concluded that the respondent had, as a result of this information, breached the condition that he cooperate with the authorities in obtaining his travel documents. As a result, they informed Mr. Dastjerdi that they would have to consult with their superiors before accepting the bond money.
[8] On April 7, 2005, the applicant sought to obtain an early review of the respondent's detention on an urgent basis. The application was refused by Board member Michel Meunier of the Immigration Division.
[9] The applicant seeks judicial review of the April 5th decision of Dianne Tordof as well as the April 7th decision of Michel Meunier. The within motion for a stay is filed in respect to the April 5th decision of Dianne Tordof.
Issues
Whether the tri-partite test for granting a stay has been met in the present circumstances.
Analysis
[10] The applicable test for a stay was established in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 and applied in immigration matters in Toth v. Canada (Minister of Employment and Immigration) (1998), 86 N.R. 302. The tri-partite test requires the applicant establish that: 1) there is a serious issue to be tried in the underlying application; 2) the applicant will suffer irreparable harm if the stay is not granted; and 3) that the balance of convenience favours the applicant.
Serious issue
[11] Given the low threshold set by the Supreme Court for establishing a serious issue for the purpose of stay applications, I am satisfied that the applicant has established a serious issue in the underlying judicial review application.
[12] A comprehensive review of the record reveals the following factors that I have considered important in determining that a serious issue has been established, namely:
- the respondent arrived in Canada and subsequently travelled with false passports;
- the respondent was able to obtain four other false passports before his arrival in Canada;
- the respondent lived and worked in Canada illegally for 10 years;
- the respondent was found to be not credible in previous detention reviews;
- the Board previously rejected an offer of a $20,000 cash bond due to the "very severe flight risk" represented by the respondent;
- the respondent has not cooperated with the authorities.
[13] It is useful to reproduce the following extracts taken from the decisions of various Board members having conducted the detention reviews of the respondent:
1. September 16, 2004 - detention review conducted by Board member Dianne Tordorf:
So, Sir, my decision is to maintain your detention for the ground that you are a flight risk. So, you are somebody who has been in Canada for quite a long period of time and although excluded from the Convention definition of a refugee, you remained in Canada.
2. September 23, 2004 - detention review conducted by Board member Michel Beauchamp:
Now, I don't want to maintain an artificial suspense, so you might have guessed from my statement that today I'm ordering that detention be maintained because of flight risk. That is not to say that I cannot see a situation where some kind of release could be looked at. But in order for that to take place, there would have to be much more concrete positive sign of cooperation, of real willingness to abide by conditions imposed. Very sketchily, cooperation obtaining ID documents, completing application necessary to obtain a travel document. And then if it turns out that, through no fault of our own, that immigration has difficulty obtaining the said travel document, or a confirmation that one would be issued from the Iranian authority, then, yes, alternative to detention should be looked at.
3. October 18, 2004 - detention review conducted by Louis Dubé:
Sir, one thing is certain in my mind, you do represent a flight risk, it is pretty obvious. Your life is here, you have a son here, you have been here for years, you have friends here, a family here and it looks to me that you do not have much interest in going back to Iran. Looking at my colleagues' decisions and your past behaviour in Canada and your past relations with the Immigration Department, I do not think that you can be trusted on your own word. Now, it is also part of my duty to look at alternative to detention and considering your aunt and her son, which would be your cousin, I heard that she was here before, she is ready to post a bond and also looking at the fact that it may take time, as Mr. Ferdoussi said, before you are leaving Canada, it may be a few weeks, but it may be a few months. I will make an offer of release, but the conditions will be pretty strict and the amount of money will be pretty high because I do not trust you much. So, you will have to report every day, every opening day to CIC in Toronto because I will ask you to be living in Toronto with your aunt. You will have to provide the Immigration Department with any further steps that you or Mr. Ferdoussi will be taking upon receiving ID documents, ID documents and travel documents. Your aunt will have to post a cash bond of 20, 000 $ plus a signature, a conditional bond for 150 000 $.
4. December 15, 2004 - detention review conducted by Pierre Turmel:
There is no other bond's person here, there is no other type of guarantees available and the facts of your case are such, that you cannot be released under your own word. I feel that there are aggravating circumstances in your case. I am even convinced that but for detention, you will never show up. You will again take things into your own hands and manage to go undetected for another ten or more years and not had been of this anonymous tip, you would not have turned yourself in.
5. February 11, 2005 - detention review conducted by Marie-Louise Côté:
Obviously the delays will become, as time goes by, more and more important in the assessment of the possibility of releasing you with conditions. As time goes by, we will see if the delays at some point can become either unreasonable or undetermined. For the purposes of today's decision, it is my opinion that the delay is not yet unreasonable, in light of the degree of the flight risk involved. But this situation will have to be looked at as time goes by.
6. March 7, 2005 - detention review conducted by Michel Beauchamp:
You are counting on the fact that without your cooperation, it will be almost impossible for Immigration to obtain a proof of citizenship to obtain a travel document and might lead to your release. I have to say that as far as I am concerned, until such time as delays are not of your own making, and they are for the time being with your refusal to try to obtain a proof of citizen, so as I was saying, until such time as delays are not of your own making, I see no possibility of release. If such a document, a proof of citizenship, is submitted to the authorities and then they refuse or create a long delay to issue a travel document, then we could talk about undue delays. As I said initially, you are the one who created this whole situation and as I said, your actions or in this case probably your inactions speak much louder than your words.
[14] What appears clearly from the above excerpts is that the respondent is not to be trusted to appear for removal should he be released from detention and that he continues to be a flight risk.
[15] Mention is made of Immigration Department's lack of diligence by Board member Côté at the February 11, 2005 detention review. Yet, the Board member also stated at that time that a $20,000 cash bond was insufficient given the degree of risk involved.
[16] One month before the impugned decision releasing the respondent, Board member Beauchamp put the blame for the delay in obtaining travel documents squarely on the respondent's refusal to try to obtain a proof of citizenship.
[17] In her reasons, releasing the respondent with conditions, Board member Tordorf focuses on the lack of progress in obtaining travel or identity documents and attributes this to a lack of diligence on the part of "Immigration". The Board member, however, failed to deal with the strongly worded reasons of Board member Beauchamp who had, less than one month earlier, expressed the opposite view that the delay was due to the respondent's refusal to cooperate. The Board member dealt only summarily with the issue of the respondent's flight risk, identified by most of her colleagues who heard the respondent as the determinative issue in their reasons to maintain his detention. In approving certain conditions for release, she also failed to explain why she chose to depart from the very strict conditions for release imposed by Board member Louis Dubé set at the October 18, 2004 detention review.
[18] Board member Tordorf had an obligation to give clear and compelling reasons why she chose to depart from previous rulings on detention review: Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 572.
[19] I am of the view, in the circumstances, that Board member Tordorf has failed to give clear and compelling reasons for departing from previous rulings on detention review and that this constitutes a serious issue in the underlying application, which is neither vexatious nor frivolous.
Irreparable harm
[20] At this stage of the test, the issue I must decide is whether a refusal to grant the relief sought could so adversely affect the moving party's own interest, that the harm could not be remedied if the eventual decision on the merits is not in keeping with the result of the interlocutory proceeding : RJR-Macdonald, supra, at page 341. Given the respondent's record of past convictions, use of false passports, total lack of credibility, and severe flight risk, there is no question in my mind that should the respondent be released at this time, there is a very good chance that he will fail to comply with the conditions of release set by Board member Tordorf and fail to report to authorities as required. The evidence establishes that the respondent has failed to attend scheduled meetings in the past and has not cooperated with the authorities. There is no reason to believe that he will do so in the future. In the result, the likelihood of the respondent's flight in the event of his release, and the consequence that could flow from his being at large illegally in Canada, constitutes irreparable harm for the purposes of this stay application.
Balance of convenience
[21] The principal purpose of an interlocutory injunction is to preserve or restore the status quo until trial, not to give the plaintiff his remedy. Numerous Board members have concluded on previous detention reviews that the respondent poses an important flight risk. In the circumstances, considering the respondent's past record, involvement with the criminal element, and his risk of flight, I am of the view that it is in the public interest that his detention be maintained pending disposition of the underlying application. In the circumstances, the balance of convenience favours the applicant.
Conclusion
[22] For the above reasons, the motion will be granted. The April 5, 2005 order of Board member Dianne Tordorf releasing the respondent with conditions is stayed pending file determination of the underlying application for judicial review.
ORDER
THIS COURT ORDERS that:
1. The motion is granted.
2. The order of Ms. Dianne Tordorf, member of the Immigration Division of the Immigration and Refugee Board, rendered on April 5, 2005, which ordered that the respondent be released from detention on conditions, is stayed pending final disposition of the underlying application for judicial review.
3. Upon consent of the parties, the style of cause is amended by striking the Solicitor General of Canada and adding the Minister of Public Safety and Emergency Preparedness.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2187-05
STYLE OF CAUSE:
THE SOLICITOR GENERAL OF CANADA
Applicant
and
ALI REZA ORAKI
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 18, 2005
REASONS FOR ORDER AND ORDER: BLANCHARD, J.
DATED: April 25, 2005
APPEARANCES:
Lucie St-Pierre FOR APPLICANT
Viken G. Artinian FOR RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR APPLICANT
Deputy Attorney General of Canada
Montréal, Quebec
Viken G. Artinian FOR RESPONDENT
Montréal, Quebec