Date: 20051130
Docket: IMM-6871-05
Citation: 2005 FC 1631
Ottawa, Ontario, this 30th day of November, 2005
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
MOHAMMAD TAGHIE AZADVALA
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondents
REASONS FOR ORDER AND ORDER
[1] The Applicant seeks an Order to stay the decision of Enforcement Officer D.M. Gauthier ("Officer Gauthier") dated November 10, 2005, wherein the Enforcement Officer refused to accept the Applicant's $150,000 deposit pursuant to subsection 47(3) of the Immigration and Refugee Protection Regulations, SOR/2002-207 ("The Regulations"). The Officer determined that there was reasonable grounds to believe that the deposit money was not legally obtained. The Applicant also seeks to be released from detention pending the final disposition of his Application for Judicial Review.
[2] On November 8, 2005, Member Louis Dubé ("Member Dubé") of the Immigration Division of the Immigration and Refugee Board imposed, as a condition for release, that the Applicant deposit $150,000 as a guarantee to the Receiver General of Canada, pursuant to section 45 of the Regulations. In support of his Application, the Applicant proposes to keep the $150 000 in his Attorney's trust account or elsewhere if ordered by the Court, pending the outcome of the Judicial Review.
[3] The Application for Leave and for Judicial Review of the decision of Officer Gauthier dated November 10, 2005, as well as the present Motion to stay the said decision are part of the same file.
[4] The following facts are of some importance in understanding the present situation:
- The Applicant, Mohammad Taghie Azadvala, is also known as Mohammad Taghie Kakwand;
- The Applicant is a citizen of Iran and the United States. He is also a resident of the United Arab Emirates;
- The Applicant entered Canada on a visitor's visa on October 20, 2005;
- On October 29, 2005, the Applicant was travelling from Toronto to Montreal when he was pulled over by the Ontario Provincial Police for speeding;
- Upon verification of the Applicant's driver's license, the OPP determined that the Applicant was wanted by the Federal Bureau of Investigation in the United States for wire fraud, bank fraud and mortgage fraud of $27 million;
- The Applicant was detained on October 29, 2005, for the purpose of appearing at his admissibility hearing;
- The Applicant's detention was continued at his 48-hour detention review on November 1, 2005;
- The Applicant's 7-day detention review was heard on November 8, 2005. Member Dubé ordered the release of the Applicant provided that the Applicant pay a deposit of $150,000 among other conditions;
- The Applicant's counsel presented a money order for $150,000 on November 10, 2005, to Officer Gauthier. Officer Gauthier refused to accept the deposit of $150,000 pursuant to section 47(3) of the Regulations, as there was reasonable grounds to believe that the money offered as a deposit was not legally obtained;
- The Applicant brought a motion on November 17, 2005 for relief similar to that which he seeks in this application for leave and for judicial review. The Federal Court refused to hear the Applicant's motion by a direction;
- The Applicant brought the motion for a stay on November 24, 2005;
- The next detention review and admissibility hearing of the Applicant is scheduled for December 5, 2005. Review of the detention must be held every 30 days pursuant to subsection 57(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("I.R.P.A.");
[5] A stay of proceedings and an interlocutory injunction are remedies of the same nature which give the Trial Judge a discretionary power to make a proper determination (see Manitoba (Attorney General) v. Metropolitan Stores Ltd. [1987] 1 S.C.R. 110, at page 126). However, it is not the proper remedy for reviewing Officer Gauthier's decision. A Motion for a stay exists in relation to proceedings that are scheduled to take place or to prevent an action to occur as a result of a decision made by a decision maker. A typical example is a Motion to stay a proceeding of a tribunal or the removal of a foreign national once a removal date has been set by an Immigration Officer and communicated.
[6] In the present case, the Applicant is asking this Court to stay the decision of an Enforcement Officer to refuse the deposit money because there are serious grounds that such money was not legally obtained. Such a decision is not a proceeding that is scheduled to take place nor a decision that requires an action on the part of the Applicant. Therefore, it can not be subject to a Motion to stay a proceeding. The factual situation of this case does not in any way support the granting of a stay of proceedings. Officer Gauthier's decision is already the subject of a Leave Application for Judicial Review. The result of granting the Motion to stay that the Applicant is seeking would be to release him from detention whereas one of the key conditions imposed is not met. To keep the 150 000$ of garantee in the applicant's attorney account would not satisfy the condition as imposed by Member Dubé.
[7] In any event, to succeed in being granted a stay, the Applicant must establish in a conjunctive way that there is a serious issue to be tried, that he would suffer irreparable harm, and that the balance of convenience is in his favour (see Toth v. Canada (Minister of Citizenship and Immigration),[1998] F.C.J. No. 587).
[8] In my view, even if a serious issue can be identified, which has to be assessed with the underlying application for leave and judicial review, there is no evidence of irreparable harm. The loss of money and the preclusion of the Applicant from operating his business as submitted is not sufficient to find irreparable harm (see Akyol v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1182).
[9] The balance of convenience favours the Respondents. Three main elements coincide with this conclusion. First, there is the existence of an an outstanding warrant for the arrest of the Applicant in the United States on a charge of fraud totalling $27 million dollars. Second, the applicant failed to comply with an order to appear on October 28, 2004. Finally, another detention review and admissibility hearing is scheduled for December 5, 2005, where the Applicant will have the opportunity to make, pursuant to Section 57 of IRPA, further submissions. All these element favours the Minister in such a way that the balance of convenience is in his favour.
[10] This Court has suggested that the Leave Application for Judicial Review of the decision of Officer Gauthier be processed in an expedited way. The parties have accepted the Court's suggestion. The parties have agreed to the following:
- Applicant's Record to be served and filed by December 12, 2005;
- Respondent's Record to be served and filed by January 20, 2006;
- Applicant's Reply to be served and filed by January 25, 2006;
[11] This Court will be referring the present file to the Judicial Administrator so that the matter can be referred to a Judge of this Court to make determination on the leave Application. If leave is granted, it is in the interest of justice that the hearing of the Judicial Review be heard as quickly as possible. The Judicial Administrator should therefore select a date for the hearing as soon as possible.
[12] Costs were sought by the Respondent but the awarding of costs is not appropriate in the present circumstances.
ORDER
THIS COURT ORDERS THAT :
- The Motion to stay the decision of the Enforcement Officer dated November 10, 2005 is dismissed;
- The following schedule is adopted, in accordance with the parties agreement:
- Applicant's Record to be served and filed by December 12, 2005
- Respondent's Record to be served and filed by January 20, 2006
- Applicant's Reply to be served and filed by January 25, 2006
- This file is referred to the Judicial Administrator so that it can be referred to a Judge for a determination of the Leave Application and if leave is granted that a hearing of the Judicial Review be scheduled promptly;
- No costs are awarded.
"Simon Noël"
Judge
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-6871-05
STYLE OF CAUSE: MOHAMMAD TAGHIE AZADVALA
v.
MPSEP & MCI
PLACE OF HEARING: Ottawa (Ontario)
DATE OF HEARING: November 29, 2005
REASONS FOR ORDER AND ORDER: the Honourable Mr. Justice Simon Noël
DATED: November 30, 2005
APPEARANCES:
Mr. Zarko Tatomirovic-Manula FOR THE APPLICANT
Ms. Elizabeth Kikuchi FOR THE RESPONDENTS
SOLICITORS ON THE RECORD:
Mr. Zarko Tatomirovic-Manula FOR THE APPLICANT
Ottawa, Ontario
Mr. John H Simms, Q.C. FOR THE RESPONDENTS
Deputy Attorney General of Canada
Ottawa, Ontario