Date: 20000412
Docket: IMM-1425-00
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
YI LE KE
Respondent
REASONS FOR ORDER
REED J.
[1] The respondent came to Canada from the Fujian province, Peoples Republic of China, by boat, together with 189 other persons on August 31, 1999. The respondent made a claim for Convention refugee status. On September 5, 1999, an exclusion order was issued against the respondent and he was detained pursuant to section 103.1 of the Immigration Act.
[2] The respondent has remained in detention and attended statutorily mandated detention review hearings, with the most recent being on March 16, 2000. On that date, the adjudicator granted the respondent a release - subject to the terms and conditions and the posting of a bond..
[3] The applicant Minister filed a motion on March 21, 2000, seeking an order staying the adjudicator"s order. On March 21, 2000, Mr. Justice Lemieux ordered, on consent, an interim stay of the decision of the adjudicator until such time as the respondent could retain legal counsel and the court could hear whether a stay should be granted.
[4] Mr. Justice Lemieux also ordered that the hearing of the applicant"s leave application and if leave was granted, the applicant"s judicial review application would be heard on April 11, 2000 at 9:30 (via telephone conference, if required). The order set out a time frame for the filing of material. Pursuant to that order, the applicant"s reply with respect to the leave application was to be filed by April 7, 2000. After reading the submissions filed by both parties, I gave an oral order on April 10, 2000, that leave was granted. This was communicated to counsel for both parties on that day.
[5] The Minister challenges the adjudicator"s decision on the ground that a breach of the rules of fairness occurred when counsel for the Minister was not allowed to cross-examine the bondsperson and, in any event, the adjudicator based his decision on speculation without sufficient evidence to support the decision.
[6] As I understand the Minister"s argument, it is that a breach of natural justice occurred in failing to allow for cross-examination of the bondsperson because a decision-maker is required to base his or her decision on the best evidence available, and because a party to an adjudication is entitled to test the evidence, central to the decision, presented by the opposing party.
[7] I am not prepared to accept the proposition that in all cases an adjudicator is required to allow for cross-examination of a bondsperson. I am prepared, however, to accept that in this particular case, the failure to do so did constitute a breach of the rules of fairness and natural justice.
[8] The transcript of the hearing reveals that the respondent knew very little about the bondsperson. He was a cousin of the respondent"s mother whom the respondent had met once in China many years ago. The respondent did not know, for example, how long the bonds-person had lived in Canada, or whether he was married. The respondent was repeatedly asked about the relationship of the bondsperson to the respondent"s family, and the respondent repeatedly answered "it"s a close relative with my mother ... a cousin." When the immigration consultant, who was acting as agent for the bondsperson, as well as representing the respondent, was asked for the telephone number of the bondsperson he said he did not know it because he had been "working through a relative of his in Toronto."
[9] The transcript of the hearing before the adjudicator reveals that the following exchange took place. Counsel for the Minister asked "And I was wondering if there was any way possible that Mr. Yang [the proposed bonds-person] might be able to become part of this review or future review". To which the immigration consultant for the respondent responded "We could certainly arrange for him to be available for a detention review or a continuation of this in the near future." The Minister"s counsel then stated "That being the case, we would request that the proposed bondsperson be available in the future to answer questions."
[10] Following the above exchange, counsel for the Minister asked the respondent questions relating to why it took so long for the relative to come forward, and the nature of the relationship between the respondent and the bondsperson. The adjudicator noted that the point had been made that the bondsperson was a distant relative. Towards the end of the hearing, counsel for the Minister asked:
| Mr. Adjudicator once again we would ask that Mr. Yang be available to be questioned as to the relationship, because notwithstanding [the respondent"s] efforts this morning, I think more information is required. And we would request Mr. Yang make himself available before any offer of any surety be recommended. Based on the proceedings this morning, we are of the view that [the respondent"s] detention should continue. |
[11] The adjudicator responded:
| I"m going to take a recess. I"ll be back in five minutes with my decision. |
On return, the adjudicator stated:
| ...in the absence of any other submissions, I"m going to make my decision. |
| All right, Mr. Ke, the Minister"s representative directs me to the general submission regarding Fujian migrants that has been acknowledged by your counsel also. These general submissions purport to establish a profile regarding the migration phenomenon, and a list a number of factors that give rise to a motivation to come to North America and to avoid returning to China. |
| I believe that absent a strong bond you are not releaseable as you are a high risk to avoid return to China. I believe at your last hearing "it would be better for me to stay here, because if I"m sent back to China I will be fined... I will be sentenced and put into goal, it will be very difficult for me." I"m quoting from the 17th February 2000 detention review, page 2. |
| Now, a bondsperson has been proposed, and unfortunately he has not been made available for questioning. So we do not know very much about this person. [underlining added] |
[12] After referring to the fact that the bondsperson was a Canadian citizen, lived in Toronto, was employed and appeared to have the $20,000 to post a bond, the adjudicator continued:
| It is uncontradicted that Mr. Ke and Mr. Yang, the proposed bondsperson, are cousins. They have no other relationship, in the sense of being friends or mentors or close in an emotional sort of way as we might know it. They seem to have met briefly ten years ago. |
| The relationship therefore seems very tenuous. However, the bondsperson is a blood relative. We must be sensitive to cultural differences. Emotional factors that suggest what might be a close and binding relationship to Canadian sensibilities may be irrelevant to the Chinese culture. |
| Because this is a blood relationship, it"s possible that to dishonour Mr. Yang could create pain and disharmony to Mr. Ke"s mother. Perhaps this is speculative. |
| Perhaps that is speculation on my part, but I am obliged by the Sahin decision to look at all available reasonable alternatives to detention. And this arrangement doesn"t strike me as inherently unreasonable. |
| Therefore, I am going to accept the bond offer, subject to terms and conditions. |
[13] Given the paucity of evidence available about the bondsperson, given counsel"s request that the bondsperson be made available for cross-examination, and the immigration consultant"s offer to make him available, it was an error for the adjudicator to make a decision on the basis that the bondsperson was not available for questioning. The failure to allow the cross-examination effectively denied the applicant the right to test the evidence presented by the bondsperson"s agent, which was central to the decision being made.
[14] The second ground on which the applicant Minister seeks to set aside the adjudicator"s decision is also supported by the record. As noted, there was a paucity of information concerning the relationship of the proposed bondsperson to the respondent and his family. The adjudicator himself recognized that the decision he was making was based on speculation.
[15] It appears as though too much attention was given by the adjudicator to one comment in the Sahin v. Canada (Minister of Citizenship and Immigration) (1994), 85 F.T.R. 99, decision, taken out of context. The adjudicator was cognizant that the respondent had been held in detention since August 31, 1999. He was informed by counsel for the respondent that counsel was not sure exactly when the respondent"s appeal to the Federal Court would be dealt with - it was "in limbo". The adjudicator noted that the Sahin decision required him to consider alternatives to detention, particularly, when the person"s detention had been lengthy. This comment in Sahin was made in the context of a decision stating that section 7 of the Charter had to be taken into consideration by the adjudicator when making a decision on a detention review. That section states that a person cannot be deprived of their liberty "except in accordance with the principles of fundamental justice."
[16] Mr. Justice Rothstein stated, in the Sahin decision, that among the factors to be considered when assessing whether fundamental justice had been accorded to a person on a detention review, were: the reason for the detention; the length of time (in the Sahin case it was 14 months) the person had been held in detention; whether the individual in question had caused any of the delay; the availability, effectiveness and appropriateness of alternatives to detention.
[17] I do not understand the Sahin decision to undercut the legislative requirements imposed on an adjudicator by subsection 103(3)(b) of the Immigration Act. That subsection requires an assessment as to whether, if released, the person in question is "likely to appear for the inquiry... or for removal from Canada". Part of that assessment must include an evaluation of the impact the imposition of a bond will have on the person"s anticipated conduct. Thus, if the bondsperson is someone who has influence over the detainee, or who the detainee would not wish to see financially or socially disadvantaged as a result of default on the bond, it will be easier to conclude that the detainee would be "likely to appear". The decision in Sahin did not intend to supplant such analysis.
[18] Alternatives to detention are always under consideration when an adjudicator considers whether or not to release a detainee. Also, the list of factors that Mr. Justice Rothstein identified in Sahin, that might be relevant to a section 7 consideration, were examples only of what might be relevant in any given case. When the length of time a person has been detained is a consideration, it is important for the adjudicator to have more precise information than that available to the adjudicator in the present case. It is important to ascertain, for example, the reasons for the delay and whether the individual himself, or his representative, contributed to it in any way.
[19] I conclude that there was a breach of natural justice in not allowing the applicant"s counsel an opportunity to cross-examine the bondsperson, and that the adjudicator relied on speculation in making his decision. The adjudicator did not address the central issue: whether it was likely that the respondent would appear for removal if he was released on the bond that was proffered.
[20] Accordingly, the decision under review will be set aside.
(Sgd.) "B. Reed"
Judge
April 12, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| COURT FILE NO.: IMM-1425-00 |
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP |
v.
YI LE KE
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: April 11, 2000
REASONS FOR ORDER OF REED J.
APPEARANCES:
| Ms. Mandana Namazi for the Applicant |
| Mr. Marvin Moses for the Respondent |
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General
| of Canada for the Applicant |
Marvin Moses
Barrister & Solicitor
| Toronto, ON for the Respondent |
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