[2016] 3 F.C.R. D-9
Citizenship and Immigration
Exclusion and Removal
Inadmissible Persons
Detention and Release
Judicial review of Immigration and Refugee Board, Immigration Division (I.R.B.) decisions (January, February 2016) ordering respondent’s release from detention notwithstanding that, in previous reviews for more than two years, respondent held in custody as being danger to public, flight risk — Judicial review granted in favour of applicant in earlier decision (2016 FC 288); present judgment constituting reasons thereof — Applicant persistent criminal, Rwandan refugee, inadmissible to Canada, considered danger to people of Canada — Canada Border Services Agency legally obliged to return respondent to Rwanda as soon as possible but serious roadblocks existing — Rwandan authorities requiring that applicant: sign certain documents which respondent refusing to do; possess certified identity documents which respondent not having — Respondent held in detention for over two years with detentions being subject to 30-day reviews in accordance with Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 57 — With one earlier exception, detentions always maintained until January 2016 when respondent ordered released on conditions — Applicant immediately seeking stay of release order; both interim stay, stay of release granted pending outcome of applicant’s application for leave, judicial review — Whether I.R.B. decisions reasonable; whether open to I.R.B. in February to order respondent’s release given that Court staying respondent’s January order pending outcome of applicant’s application for leave, judicial review if granted — Regarding I.R.B.’s January 2016 decision, I.R.B. concluding that respondent could be subject to indefinite detention given respondent’s particular circumstances; also holding that respondent changing since overcoming alcohol addiction, taking anger management courses — Therefore, I.R.B. concluding respondent should be released — I.R.B.’s decision unreasonable: record not supporting I.R.B.’s conclusions, particularly regarding respondent’s alcohol problem or that respondent would comply with terms of release given respondent’s previous failures to abide therewith — I.R.B.’s decision not within range of reasonable outcomes, made without regard to material in record, contrary to Federal Courts Act, R.S.C., 1985, c. F-7, s. 18.1 — Analysis of January 2016 decision also applying to I.R.B.’s February 2016 decision — When respondent served in person with Federal Court’s interim order, respondent acting wildly, aggressively but I.R.B. not concerned with respondent’s display; justifying behaviour by respondent’s complete astonishment that initial release order now being stayed — I.R.B.’s analysis astonishing; respondent not having anger issues under control; behaviour exhibited consistent with previous random attacks on strangers on street — Completely unreasonable for I.R.B. to hold that respondent not constituting danger to public — Disconcerting that individual held in detention for more than two years as being danger to public can be ordered released with immediate effect — Not much guidance existing in cases whereby I.R.B. ordering release of individual whereas Court ordering stay of release — Federal Court of Appeal decision in Sungu v. Canada (Public Safety and Emergency Preparedness), 2012 FCA 5 examined since having similar facts — In Sungu, question raised regarding I.R.B.’s jurisdiction to trump Federal Court order relating to detention reviews but question not clearly addressed therein — Would be far better if one were to order release in subsequent detention review that this release be subject to outcome of judicial review in which Federal Court having already granted stay of release — Would then fall upon detainee, not applicant, to move Court to have earlier stay set aside in accordance with Federal Courts Act, s. 50 — Application allowed.
Canada (Minister of Public Safety and Emergency Preparedness) v. Lunyamila (IMM-63-16, IMM-502-16, 2016 FC 289, Harrington J., judgment dated March 7, 2016, 12 pp.)