Canada (Minister of Citizenship and Immigration) v. B232, 2011 FC 257

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: March 02, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 257;(2011), 385 F.T.R. 264 (FC)

Can. (M.C.I.) v. B232 (2011), 385 F.T.R. 264 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. MR.004

The Minister of Citizenship and Immigration (applicant) v. B232 (respondent)

(IMM-1111-11; 2011 FC 257)

Indexed As: Canada (Minister of Citizenship and Immigration) v. B232

Federal Court

Shore, J.

March 7, 2011.

Summary:

B232 arrived in Canada with 491 other persons aboard the MV Sun Sea. B232 was 40 years old, single and a Sri Lankan citizen who admitted having worked for the Liberation Tigers of Tamil Eelam. He was held in immigration detention on the basis that he was being investigated for inadmissibility. A member of the Immigration Division of the Immigration and Refugee Board ordered B232's release. The Minister of Citizenship and Immigration sought judicial review and applied for a stay of the release order pending the review.

The Federal Court allowed the application for a stay.

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - [See third Aliens - Topic 1795 ].

Aliens - Topic 1747.2

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons who are a danger to the security of Canada - [See third Aliens - Topic 1795 ].

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention (incl. review or release) (incl. IRPA, ss. 54-61) - B232 arrived in Canada with 491 other persons aboard the MV Sun Sea - B232 was 40 years old, single and a Sri Lankan citizen who admitted having worked for the Liberation Tigers of Tamil Eelam - He was held in immigration detention on the basis that he was being investigated for inadmissibility - A member of the Immigration Division of the Immigration and Refugee Board ordered B232's release - The Minister of Citizenship and Immigration sought judicial review and applied for a stay of the release order pending the review - The Federal Court allowed the application for a stay - The member erred in applying the threshold for the "necessary steps" in assessing the Minister's investigatory steps - The correct test was whether the Minister was conducting an ongoing investigation in good faith which had the potential to uncover relevant evidence bearing on the Minister's suspicion of inadmissibility - The member erred by requiring that the Minister take all of the steps that the member thought would be appropriate and would lead to conclusive, positive results - Section 58(1)(c) of the Immigration and Refugee Protection Act did not require the Minister to take all possible steps deemed appropriate by the member - The member also erred by requiring the Minister to provide a strict timeline for anticipated results - See paragraphs 35 to 41.

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention (incl. review or release) (incl. IRPA, ss. 54-61) - B232 arrived in Canada with 491 other persons aboard the MV Sun Sea - B232 was 40 years old, single and a Sri Lankan citizen who admitted having worked for the Liberation Tigers of Tamil Eelam - He was held in immigration detention on the basis that he was being investigated for inadmissibility - A member of the Immigration Division of the Immigration and Refugee Board ordered B232's release - The Minister of Citizenship and Immigration sought judicial review and applied for a stay of the release order pending the review - The Federal Court allowed the application for a stay - The member erred in the consideration of factors contributing to flight risk - Consideration was only given to B232's lack of ties to the community, but not to the fact that B232 might be inadmissible on security grounds - A strong incentive existed for him to avoid further examination and a future admissibility hearing - B232 had been uncooperative - Further, by dealing with each ground for continued detention in isolation, the member failed to appreciate the cumulative effect that those grounds might have on B232's likelihood to appear for future hearings - See paragraphs 42 to 44.

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention (incl. review or release) (incl. IRPA, ss. 54-61) - B232 arrived in Canada with 491 other persons aboard the MV Sun Sea - B232 was 40 years old, single and a Sri Lankan citizen who admitted having worked for the Liberation Tigers of Tamil Eelam (LTTE) - He was held in immigration detention on the basis that he was being investigated for inadmissibility - A member of the Immigration Division of the Immigration and Refugee Board ordered B232's release - The Minister of Citizenship and Immigration sought judicial review and applied for a stay of the release order pending the review - The Federal Court allowed the application for a stay - The member misapplied the test for determining whether B232 was a "danger to the public" under s. 245 of the Immigration and Refugee Protection Act - The member indicated that the arguments on this ground were "very weak based on the alleged association to the LTTE" - The LTTE fell within the definition of a "criminal organization" under the Act - B232 had repeatedly confirmed that he worked for the LTTE - This alone was sufficient to establish that he was a danger to the public - The member erred in requiring more - Further, the member's analysis appeared to turn entirely on whether there was any evidence that B232 had done anything in the past that was dangerous - This misconstrued the meaning of "danger to the public" which required a consideration of whether B232's presence in Canada created an unacceptable risk to the public - See paragraphs 45 to 52.

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention (incl. review or release) (incl. IRPA, ss. 54-61) - B232 arrived in Canada with 491 other persons aboard the MV Sun Sea - B232 was 40 years old, single and a Sri Lankan citizen who admitted having worked for the Liberation Tigers of Tamil Eelam - He was held in immigration detention on the basis that he was being investigated for inadmissibility - A member of the Immigration Division of the Immigration and Refugee Board ordered B232's release - The Minister of Citizenship and Immigration sought judicial review and applied for a stay of the release order pending the review - The Federal Court allowed the application for a stay - B232 was ordered to be released on unreasonable terms and conditions, including a $500 deposit posted by B232 himself - Aside from typical reporting, non-association conditions and a curfew, the member imposed no further conditions - No surety was specified nor any particular place of residence - The member failed to assess whether, in the absence of a bondsperson, B232 was likely to comply with his conditions - A significant security challenge to the Minister and to the public existed due to the member's decision - Terms and conditions needed careful crafting to create incentives for appearance at future proceedings - Reasons to doubt that the terms and conditions would be respected existed here - This raised a serious issue - See paragraphs 53 to 57.

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention (incl. review or release) (incl. IRPA, ss. 54-61) - B232 arrived in Canada with 491 other persons aboard the MV Sun Sea - B232 was 40 years old, single and a Sri Lankan citizen who admitted having worked for the Liberation Tigers of Tamil Eelam (LTTE) - He was held in immigration detention on the basis that he was being investigated for inadmissibility - A member of the Immigration Division of the Immigration and Refugee Board ordered B232's release - The Minister of Citizenship and Immigration sought judicial review and applied for a stay of the release order pending the review - The Federal Court allowed the application for a stay - There was compelling evidence substantiating a connection between B232 and the LTTE - His release before the extent of this association had been fully investigated compromised the Minister's ability to continue the investigation and to protect the public - Given that B232 remained a security risk, his release into the community would cause real and non-speculative irreparable harm - Further, the public interest and the balance of convenience favoured the maintenance of the status quo until the issues could be determined on their merits - See paragraphs 58 to 66.

Cases Noticed:

Toth v. Minister of Employment and Immigration (1988), 86 N.R. 302 (F.C.A.), refd to. [para. 31].

Canada (Minister of Public Safety and Emergency Preparedness) et al. v. Iamkhong (2009), 339 F.T.R. 267; 2009 FC 52, refd to. [para. 32].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 33].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 33].

Canada (Minister of Citizenship and Immigration) v. XXXX (2010), 362 F.T.R. 178; 2010 FC 112, refd to. [para. 36].

Canada (Minister of Citizenship and Immigration) v. XXXX (2010), 375 F.T.R. 204; 2010 FC 1095, refd to. [para. 36].

Canada (Minister of Citizenship and Immigration) v. B157 (2011), 384 F.T.R. 137; 2010 FC 1314, refd to. [para. 44].

Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646; 212 N.R. 63 (F.C.A.), refd to. [para. 49].

Canada (Minister of Citizenship and Immigration) v. Nagalingam, [2004] F.T.R. Uned. B20; 2004 FC 1757, refd to. [para. 52].

Canada (Minister of Citizenship and Immigration) v. Zhang, [2001] F.T.R. Uned. 324; 2001 FCT 521, refd to. [para. 55].

Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 281 N.R. 1; 2002 SCC 1, refd to. [para. 62].

Canada (Solicitor General) v. Oraki, [2005] F.T.R. Uned. 331; 2005 FC 555, refd to. [para. 63].

Canada (Minister of Citizenship and Immigration) v. Chen (R.W.), [1999] F.T.R. Uned. 726 (T.D.), refd to. [para. 63].

Canada (Minister of Citizenship and Immigration) v. Patwal, [2001] F.T.R. Uned. 153; 2001 FCT 152, refd to. [para. 63].

Canada (Minister of Citizenship and Immigration) v. Ambrose (2003), 228 F.T.R. 123; 2003 FCT 203, refd to. [para. 63].

Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214; 85 F.T.R. 99 (T.D.), refd to. [para. 65].

Counsel:

Caroline Christiaens, for the applicant;

Shepherd Moss, for the respondent.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Vancouver, British Columbia, for the applicant;

Shepherd Moss, Vancouver, British Columbia, for the respondent.

This application was heard at Vancouver, B.C., on March 2, 2011, by Shore, J., of the Federal Court, who delivered the following reasons for order on March 7, 2011.