[2017] 4 F.C.R. D-5
Citizenship and Immigration
Exclusion and Removal
Inadmissible Persons
Detention and Release
Application for stay of Immigration and Refugee Board of Canada, Immigration Division (ID) decision granting respondent conditional release — Respondent, Chinese citizen, permanent resident, found guilty of several criminal charges — ID satisfied conditions imposed ensuring respondent not danger to public safety, not resisting removal order when enforceable — Whether applicant meeting three-prong test in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), i.e. whether: serious question to be tried in underlying application, irreparable harm ensuing if stay not granted, balance of inconvenience favouring applicant — Not enough that question not frivolous or vexatious in order to satisfy first element — Test considerably more stringent — Insufficient that question neither frivolous nor vexatious if stay granting applicant relief it seeks via judicial review — Applicant arguing, inter alia, ID not sufficiently explaining merit of sponsor proposed in order to gain conditional release for respondent — Referring to Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572 wherein ID obligated to explain reasons for departing from previous ID decisions — ID herein not deviating from Federal Court of Appeal case law — Applicant therefore having to demonstrate likelihood of success of underlying application in order for it to be a serious issue, that ID decision granting respondent release was most likely unreasonable — Court not convinced serious issue at hand in present case — Inappropriate for applicant to try to argue that serious issue is what really matters in the end — Existence of irreparable harm not demonstrated — Balance of inconvenience favouring respondent — Application dismissed.
Canada (Public Safety and Emergency Preparedness) v. Sun (IMM-4317-16, 2016 FC 1186, Roy J., order dated October 21, 2016, 13 pp.)