THE MINISTER OF CITIZENSHIP v. IMMIGRATION, 2011 FC 94
Opinion
Federal Court Cour fédérale Date: 20110126 Docket: IMM-6390-10 Citation: 2011 FC 94 Toronto , Ontario, January 26, 2011 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Applicant and B188 Respondent REASONS FOR ORDER AND ORDER INTRODUCTION [ 1 ] The Minister of Citizenship and Immigration (the Applicant) seeks judicial review of a decision of Mr. Marc Tessler (the Member) of the Immigration and Refugee Board, Immigration Division (the Board), dated November 1, 2010. In that decision, the Member ordered the release from detention of B188 (the Respondent) following a detention review pursuant to
section 58 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the Act). [ 2 ] Operation of the release Order was stayed by Order of Justice Mosley issued on November 2, 2010 pending result of the Applicants motion to stay the Respondents release pending the outcome of the Applicants application for judicial review.
Leave to commence this application for judicial review was granted by Justice Mosley by Order dated November 12, 2010 and the Respondents release was further stayed pending the final disposition of this application for judicial review or until the Respondents next statutorily required detention review hearing. FACTS [ 3 ] The Respondent is a citizen of Sri Lanka .
He was born in 1980 and lived in northern Sri Lanka , that he described as the Vanni region, an area controlled by the Liberation Tigers of Tamil Eelam (the LTTE). [ 4 ] In 2002, the Respondent began working as a reporter for a newspaper in the town of Kilinochchi called the Eelanatham which translates as Peoples Daily. The Respondent was primarily a reporter at Eelanatham, collecting information and writing articles on peoples daily lives. The Eelanatham was widely circulated during times of peace but during hostilities, the LTTE would only permit the
newspaper to be distributed locally. [ 5 ] In several interviews by agents of the Canada Border Services Agency (the CBSA), the Respondent indicated that the Eelanatham is not an LTTE newspaper. He said that the LTTE had two newspapers, that is the Viduthalai Pulikal and the Suthanthara Paravaikal as well as a radio station and a television station.
The Respondent said that the Eelanatham was not permitted to write anti- LTTE stories and he himself was not permitted to write about the LTTE, that task was left to his editors. [ 6 ] The Respondent said that he has never been a member of the LTTE but that his brother joined for 4 or 5 years in 1990. He had two other brothers but they were killed during fighting between the Sri Lankan Army and the LTTE, one in 1990 and the other in 1999. [ 7 ] The Respondent insists that he is not a member of the LTTE.
During interviews with CBSA agents, he indicated that the LTTE attempts to gain freedom for the people of his region, but that they are violent, greedy and worthy of condemnation. [ 8 ] The Respondent recognized that the Sri Lankan Army was targeting and murdering journalists, and he believes that he was a target. On April 25, 2009, he was injured during a shell attack. He had attended the scene of a previous shelling in the same area to take pictures when the strike occurred. [ 9 ] The Respondent fled Sri Lanka on November 25, 2009, by flying to Thailand . On May 1, 2010, he boarded the M.V. Sun Sea .
He was one of 492 persons smuggled to Canada on board that ship. The M.V. Sun Sea arrived in Canada on August 13, 2010. The cost of his passage was $8,000 and the Respondent owes an additional $5,000 that remains unpaid. The Respondent has a brother in France who was able to help pay his initial debt. During interviews with the CBSA, and in submissions before the Board through his Counsel, the Respondent stated that his brother could pay the $5,000 he owes, but as of the date of the detention review hearing, he had been unable to contact that brother since arriving in Canada .
The Respondent has no family or friends in Canada . [ 10 ] Upon arrival in Canada , the Respondent was detained for identification purposes. His first detention review pursuant to the Act was held on August 17, 2010. The Board continued his detention, at that time, pursuant to paragraph 58(1) (
d) of the Act, on the basis that his identity had not been established. His detention was continued on the same basis following detention review hearings on August 20, September 9 and October 4, 2010. [ 11 ] On October 15, 2010, the Applicant reported the Respondent, pursuant to
section 44 of the Act , alleging that he is inadmissible by virtue of paragraph 34(1) (
f) that is, that the Respondent is a member of a terrorist organization. More specifically, the Applicant alleges that the Respondent is a member of the LTTE. [ 12 ] The next detention review hearing, as required under the Act , was held on November 1, 2010 relative to the Respondent. At that time, the Applicant argued that the Respondents detention should continue because he is a flight risk, as described in paragraph 58(1) (
b) of the Act. [ 13 ] In his decision, the Member rejected these arguments and decided that it was not unlikely that the Respondent would appear for future hearings, such as a hearing pursuant to subsection 44(2). The Member also found that the debt owed by the Respondent was not so large as to make him vulnerable for coercion from the smugglers and that the Applicants allegations that the Respondent is inadmissible under paragraph 34(1)(
f) is not a straightforward matter. [ 14 ] The Board found that since many persons come to Canada without friends or relatives who are already established here, the fact that the Respondent had no such contacts did not present a flight risk. The Board noted that there is a general flight risk for those arriving in Canada in the circumstances of the Respondent. This, and the potential for an eventual removal order, could be mitigated by strong terms and conditions.
The Board imposed terms and conditions, including weekly reporting requirements and a stipulation that he not associate with criminal organizations, but refused to impose a cash bond. ISSUES [ 15 ] The Applicant raises three issues in this application for judicial review. First, he argues that the Board erred in law and misapplied paragraph 58(1) (
b) of the Act by discounting the factors set out in subsections 245 (
f) and (
g) of the Immigration and Refugee Protection Regulations , SOR/2002-227 (the Regulations). The Applicant argues that the Board made its decision on the basis of the Members personal belief and speculation and in the absence of countervailing evidence.
[16] Second, the Applicant submits that the Board erred in law and misapplied paragraph 58(1)(
b) of the Act by failing to considerthe likelihood that the Respondent will not appear for his ultimate removal from Canada, rather than speculating that the Respondentwill successfully defend the admissibility hearing or seek relief from any inadmissibility pursuant to subsection 34(2) of the Act. [17] Third, the Applicant argues that on the facts of this case, the minimal terms and conditions of release ordered by the Boardwere unreasonable. DISCUSSION AND DISPOSITION (
i) Standard of Review [18] The first matter to be addressed is the appropriate standard of review. Having regard to the decision of the Supreme Court ofCanada in Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, there are now only two standards of review, that iscorrectness and reasonableness. Questions of law and issues of procedural fairness will be reviewed on the standard of correctness.Questions of fact and questions of mixed fact and law are subject to review on the standard of reasonableness. [19] The issue of whether the Board erred by failing to apply the factors set out in subsections 245(
f) and (
g) is a question of lawand reviewable on the standard of correctness. The alleged failure of the Board to consider whether the Respondent will appear for aremoval order is an issue of mixed law and fact; see Canada (Citizenship and Immigration) v. X, 2010 FC 109. The Boards choice ofrelease conditions is a matter of mixed fact and law, reviewable on the standard of reasonableness. The manner in which the Boardweighs the evidence before it, in reaching its conclusions, is also reviewable on the standard of reasonableness. (ii) Correct Legal Test [20]
Section 58 of the Act governs relief and detention, and provides as follows: 58.
(1) The ImmigrationDivision shall order the releaseof a permanent resident or aforeign national unless it issatisfied, taking into accountprescribed factors, that (
a) they are a danger to thepublic; (
b) they are unlikely to appearfor examination, anadmissibility hearing, removalfrom Canada, or at a proceedingthat could lead to the making ofa removal order by the Ministerunder subsection 44(2); (
c) the Minister is takingnecessary steps to inquire into areasonable suspicion that theyare inadmissible on grounds ofsecurity or for violating humanor international rights; or 58.
(1) La
section prononce lamise en liberté du résidentpermanent ou de létranger, sauf surpreuve, compte tenu des critèresréglementaires, de tel des faitssuivants :
a) le résident permanent oulétranger constitue un danger pourla sécurité publique;
b) le résident permanent oulétranger se soustrairavraisemblablement au contrôle, àlenquête ou au renvoi, ou à laprocédure pouvant mener à la prisepar le ministre dune mesure derenvoi en vertu du paragraphe44(2);
c) le ministre prend les mesuresvoulues pour enquêter sur lesmotifs raisonnables de soupçonnerque le résident permanent oulétranger est interdit de territoirepour raison de sécurité ou pouratteinte aux droits humains ouinternationaux;
d) dans le cas où le ministre estimeque lidentité de létranger na pas été
(
d) the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity. Detention Immigration Division
(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada. Conditions
(3) If the Immigration Division orders the release of a permanent resident or a foreign national, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions. prouvée mais peut lêtre, soit létranger na pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir lidentité de létranger. Mise en détention par la
Section de limmigration
(2) La
section peut ordonner la mise en détention du résident permanent ou de létranger sur preuve quil fait lobjet dun contrôle, dune enquête ou dune mesure de renvoi et soit quil constitue un danger pour la sécurité publique, soit quil se soustraira vraisemblablement au contrôle, à lenquête ou au renvoi. Conditions
(3) Lorsquelle ordonne la mise en liberté dun résident permanent ou dun étranger, la
section peut imposer les conditions quelle estime nécessaires, notamment la remise dune garantie dexécution. [ 21 ] The thrust of subsection 58(1) is that a person in detention will be released unless the Board is satisfied, taking into account prescribed factors that the person should not be released. The prescribed factors are set out in
part 14 of the Regulations which includes sections 244 to 250 . Sections 244 , 245 and 247 of the Regulations are relevant to the within application. [ 22 ]
Section 244 provides as follows:
244. For the purposes of Division 6 of
Part 1 of the Act , the factors set out in this Part shall be taken into consideration when assessing whether a person (
a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act ; (
b) is a danger to the public; or (
c) is a foreign national whose identity has not been established. 244. Pour lapplication de la
section 6 de la
partie 1 de la Loi, les critères prévus à la présente
partie doivent être pris en compte lors de lappréciation:
a) du risque que lintéressé se soustraie vraisemblablement au contrôle, à lenquête, au renvoi ou à une procédure pouvant mener à la prise, par le ministre, dune mesure de renvoi en vertu du paragraphe 44(2) de la Loi;
b) du danger que constitue lintéressé pour la sécurité publique;
c) de la question de savoir si lintéressé est un étranger dont lidentité na pas été prouvée. [ 23 ] Subsection 244(
a) is relevant to the present matter since the Applicant is basing his case upon the alleged unlikeliness that the Respondent will appear for an admissibility hearing. The Applicant submitted before the Board that the Respondent is likely to be found inadmissible. On that basis, he argued that the Respondent has an interest in not attending an admissibility hearing. The Applicant also argued to the Board that the Respondent is unlikely to present himself for removal, once ordered to do so. [ 24 ]
Section 245 of the Regulations is a list of factors that relate specifically to the issue of flight risk, pursuant to subsection 244 (a), quoted above. As noted earlier, the only two provisions of
section 245 that are relevant in the within matter are subsections (
f) and (g). Since flight risk is the consideration, the Board must ask whether involvement in a people smuggling or trafficking operation would lead a person in the circumstances of the Respondent to not appear. As well, subsection (
g) requires the Board to consider the existence of strong community ties in Canada as a factor in assessing the existence of a flight risk. [ 25 ] The Applicant argues that the Board based its decision on speculation and not on the factors set out in
section 245 of the Regulations . In particular, he submits that the Board ignored subsections 245 (
f) and (
g) which provide as follows: 245. For the purposes of paragraph 244 (a), the factors are the following: (
f) involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(
a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure; and (
g) the existence of strong ties to a community in Canada . 245. Pour lapplication de l alinéa 244a) , les critères sont les suivants :
f) limplication dans des opérations de passage de clandestins ou de trafic de personnes qui mènerait vraisemblablement lintéressé à se soustraire aux mesures visées à lalinéa 244a) ou le rendrait susceptible dêtre incité ou forcé de sy soustraire par une organisation se livrant à de telles opérations;
g) lappartenance réelle à une collectivité au Canada.
[26] As noted by the Respondent, only two subsections of
section 245 of the Regulations apply in this case. In the detentionreview hearing of November 1, 2010, the Applicant only relied on the factors set out in subsections 245(
f) and (g). [27] The Applicant argues that instead of considering whether the Respondent is likely to appear for his removal, the Boardfocused on whether the Respondent could successfully defend the allegation of inadmissibility. In other words, he submits that the Boardconcentrated on whether the Respondent will likely be removed from Canada, not whether he is likely to appear for removal if soordered. Relying on the decision in Sahin v.
Canada (Minister of Citizenship and Immigration), (FC), [1995] 1 F.C.214 (T.D.), the Applicant argues that persons may be detained if the Minister is of the opinion that they will not appear for a removalorder if one is issued. [28] The Applicant submits that the Board did not consider whether the Respondent would appear for removal if so ordered andthereby committed an error of law. [29] The Respondent takes the position that this argument is without merit and submits that the Board, according to its reasons,clearly considered the possibility that the Respondent poses a flight risk, including whether he would appear for removal if so ordered.
Indoing so, the Board did more than required. [30] The Respondent submits that paragraph 58(1)(
b) is disjunctive, meaning that the Board need only consider whether theRespondent was unlikely to appear for any one of the processes identified in that provision. In this case, the Respondent argues that theBoard was only required to consider whether the Respondent was unlikely to appear for an admissibility hearing. [31] Further, the Respondent argues that if he is deemed to be inadmissible, the Applicant may re-arrest him, without warrant,pursuant to subsection 55(2) of the Act.
As well, if the Board were required to determine if the Respondent would present himself forremoval, the Board would have been required to consider how long it will take for that removal to be completed in accordance with thelaw, having regard to subsection 248(
c) of the Regulations. [32] A recent decision of this Court favours the statutory
interpretation urged by the Respondent. In Canada (Minister ofCitizenship and Immigration) v. B157, 2010 FC 1314, Justice de Montigny held at para. 45, in very similar circumstances, that: [45] There were good reasons for the Member to focus on the next immigration proceeding rather than the removal.
An officermay always, with or without a warrant, re-arrest the Respondent if he has reasonable grounds to believe he is inadmissible (an easily-metcondition if the Respondent were found inadmissible by the Immigration Division) and is unlikely to appear for his removal: s. 54 ofIRPA. [47] In light of these further proceedings that are set to occur before removal and of the possibility of re-arresting the Respondent,the Members failure to conduct a premature analysis of the likelihood to appear for removal, as compared to the probability of appearingfor the inadmissibility hearing, does not represent a fatal flaw in his decision. [33] The B157 decision was rendered after this application for judicial review was heard.
The parties were given a chance toaddress the applicability of Justice de Montignys decision to the case at bar. Their further submissions have been considered. [34] I agree with Justice de Montignys analysis. In any event, and contrary to the Applicants argument, the Board in fact didconsider whether the Respondent was unlikely to appear if ordered to be removed. [35] The Boards reasons make it clear that it did consider whether the Respondent would appear for an admissibility hearing andthat, at the same time, it was aware of the potential for the Respondent to eventually face a removal order.
The Board found that theApplicants allegation of the Respondents membership in the LTTE is not straightforward, thereby giving the Respondent an incentive topresent himself for the admissibility hearing. The Board found that the flight risk that could arise from the potential of an eventualremoval order could be mitigated by strong terms and conditions. [36] I am not persuaded by the Applicants submissions that the Board failed to consider or apply the correct legal test. It is clear
from its decision that the Board specifically referred to the factors identified in
section 245 of the Regulations and applied those factorsto the facts presented. The Board committed no error of law. (iii) Erred in Finding No Flight Risk [37] The Applicant further submits that the Members decision that the Applicant is not a flight risk was based on speculation andnot on the evidence that was presented.
In particular, the Applicant argues that the Board failed to focus on the evidence supporting theconclusion that the Respondent was a member of the LTTE. [38] The Respondent argues that the Applicant bears the burden, on the balance of probabilities, of showing that it was unlikelythat he would appear for an admissibility hearing. The Respondent submits that the Applicant was required to establish a link betweenthe debt owed to the smugglers and his lack of family connection in Canada to the likelihood that he would not appear for anadmissibility hearing.
The Respondent submits that the Applicant has failed to submit this evidence. [39] With respect to subsection 245(f), the Respondent argues that contrary to the Applicants submissions, there is evidence on theRecord concerning the Respondents brother in France and that he would pay the outstanding $5,000 debt due to the smugglers. [40] The Respondent notes that at the hearing, the Applicant presented no evidence showing a link between that debt and theRespondents alleged vulnerability to the smugglers.
The Respondent argues that the Applicant himself is relying on speculation inmaking the argument that the outstanding debt means that the Respondent is vulnerable to the smugglers. [41] The Minister bears the burden of showing that the Respondent is a flight risk. The Federal Court of Appeal held, in Canada(Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4 , [2004] 3 F.C.R. 572 at para. 24, as follows: The reasons of Gauthier J. are logical and clear.
I am fully satisfied that she correctly applied the proper standards of review to Mr.Iozzo's findings and that she correctly interpreted the relevant law. I would dismiss the appeal. I would answer the certified question asfollows: At each detention review made pursuant to sections 57 and 58 of the Immigration Refugee Protection Act, S.C. 2001, c. 27, theImmigration Division must come to a fresh conclusion whether the detained person should continue to be detained.
Although anevidentiary burden might shift to the detainee once the Minister has established a prima facie case, the Minister always bears the ultimateburden of establishing that the detained person is a danger to the Canadian public or is a flight risk at such reviews. However, previousdecisions to detain the individual must be considered at subsequent reviews and the Immigration Division must give clear andcompelling reasons for departing from previous decisions. [42] Having considered the materials filed and the submissions of the parties, I am satisfied that the Boards decision with respect tosubsections 245(
f) and (
g) of the Regulations is reasonable. The Boards finding that the amount owed by the Respondent to thesmugglers is not so great as to give rise to undue influence of the smugglers over the Respondent, is justifiable and defensible. Theevidence on the Record is that the Respondents brother may be able to pay the $5,000. The Board took this evidence into account. [43] There is nothing unreasonable in the Boards analysis of the Respondents lack of ties to Canada. The wording of subsection245(
g) simply asks the Board to consider the existence of strong ties to a community in Canada. This language gives no direction that theexistence of such ties is a positive or negative factor to be considered in assessing whether someone is a flight risk. While this is a factormilitating towards continued detention, the Member did not find that it overrode other considerations. [44] Overall, it was reasonable, in my opinion, for the Board to consider the strength of the Applicants allegations that theRespondent is a member of a terrorist organization in determining whether or not the Respondent poses a flight risk.
It was reasonablefor the Board to note that it is not clear that the Applicant will succeed in an admissibility hearing. There is nothing speculative in thisregard. [45] This case is distinguishable from the facts in B157. The key factual difference is the strength of the allegation that B157 is amember of the LTTE in that case. Further, it is my opinion that the Board in this case meaningfully addressed the submissions of theApplicant with regard to the debt the Respondent owes to the smugglers and the allegation that the Respondent is a member of the LTTEin considering subsection 245(
f) of the Regulations.
(iv) Terms and Conditions [ 46 ] The next issue is whether the Board erred in its choice of terms and conditions. As noted above, this issue is reviewable on the standard of reasonableness. [ 47 ] The Applicant argues that since the Respondent has no connections in Canada , the Boards decision to release him on minimal terms, is unreasonable.
He submits that all of the conditions are unreasonable, including the failure to impose a cash bond, because the Respondent has no residence and no money. [ 48 ] The Respondent, in reply, argues that the Board accepted and imposed nearly all of the conditions that had been requested by the Applicant at the detention review hearing.
In particular, the Respondent is required to report to a specific CBSA officer once a week and is prohibited from associating with members of criminal organizations, including members of the LTTE and the World Tamil Movement. [ 49 ] The Respondent also submits that the Board made a reasonable decision in refusing to require a cash bond, as the imposition of a cash bond would effectively amount to continued detention, since the Respondent had no means to post such a bond. [ 50 ] I agree with the submissions of the Respondent concerning the reasonableness of the terms and conditions imposed by the Board.
The Board accepted all the written terms and conditions proposed by the Applicant except for two, which the Board determined to be either irrelevant or redundant, but refused to impose a cash bond. [ 51 ] Since the Board found that there was some risk of flight, something that is generally shared by refugee claimants who gain unlawful entry into Canada , the weekly reporting requirement was reasonable.
The Boards refusal to impose a cash bond was also reasonable due to the Respondents limited resources, his lack of ties in Canada , and the ability of the Applicant to re-arrest the Respondent if he is found to be inadmissible. CONCLUSION [ 52 ] In the result, I am satisfied that the Board applied the correct legal test and reached a reasonable decision with respect to the release of the Respondent from detention, including the imposition of reasonable terms and conditions.
The application for judicial review is dismissed. [ 53 ] The parties were given the opportunity to submit a proposed question for certification. By correspondence to the Registry of the Court on December 23, 2010 the Applicant advised that no question would be proposed. No question was suggested by the Respondent. ORDER THIS COURT ORDERS that the application for judicial review is dismissed, no question for certification arising. E. Heneghan Judge
FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6390-10 STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. B188 PLACE OF HEARING: Vancouver, BC DATE OF HEARING: December 16, 2010 REASONS FOR ORDER AND ORDER: HENEGHAN J. DATED: January 26, 2011 APPEARANCES : Banafsheh Sokhansanj FOR THE APPLICANT Gabriel Chand FOR THE RESPONDENT SOLICITORS OF RECORD : Myles J. Kirvan Deputy Attorney General of Canada Vancouver , BC FOR THE APPLICANT Chand & Company Law Corporation Vancouver, BC FOR THE RESPONDENT
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