Date: 19990615
Docket: IMM-2884-99
BETWEEN:
VINCENZO TRASMUNDI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.:
[1] The applicant came to Canada in 1959 at the age of 13 with his family and was granted landed immigrant status. In 1964 he was deported because of his criminal activity. He returned to Canada in 1985 without Ministerial consent, thus becoming a person described in paragraph 27(2)(h) of the Immigration Act.
[2] In February of 1999 a report was issued declaring him to be a person described in paragraph 27(2)(h).
[3] On March 4, 1999 he was arrested and detained on the basis of the paragraph 27(2)(h) report and a determination by an immigration officer that he is a danger to the public and poses a flight risk.1 Generally, the arrest and detention of a person are authorized by section 103 subject to certain conditions, one being that a decision is to be made pursuant to subsection 27(4) or that a removal order has been made against the person. The term "removal order" is defined in section 2 to mean a departure order, an exclusion order or a deportation order.
[4] On March 5, 1999, an immigration officer issued a departure order pursuant to paragraph 27(4)(b)(iii). The applicant was already in detention at that time. He remains in detention as of the date of this hearing. His detention has been reviewed periodically pursuant to subsection 103(6) and has always been continued.2
[5] The applicant has commenced an application for leave and judicial review on the basis that his detention is unlawful. He seeks as interim relief an order directing his release or alternatively directing the officials who have reviewed or will review his detention that his detention is unlawful.3
[6] The applicant's argument is based only on a legal argument as to the interpretation of the Immigration Act. There is no allegation that the detention order was made otherwise than in good faith and for a proper purpose.
[7] Counsel for the Minister argues that I do not have the authority to order the applicant's release: Naseem v. Canada (Solicitor General) [1993] 68 F.T.R. 230, and Kaneva v. Minister of Citizenship and Immigration (November 7, 1994), IMM-4388-94 (F.C.T.D.).
[8] I do not need to resolve that issue. If I have the authority I would not exercise it in this case because I am not persuaded that the applicant's detention is unlawful.
[9] The applicant's argument is that because of section 32.02 of the Immigration Act, the departure order and the detention are inconsistent as a matter of law, and the latter must therefore be unlawful.
[10] As I understand the argument, it may be summarized as follows. The departure order requires the applicant to leave Canada but his detention prevents him from complying. A departure order is a device by which the Minister gives a person the right to leave Canada voluntarily, subject only to reporting to the appropriate official under section 32.01 for issuance of a certificate of departure. A departure order is deemed by subsection 32.02(1) to be a deportation order if no certificate of departure is issued within the time limit in the Regulations.4 Pursuant to subsection 32.02(3), the deeming rule in subsection 32.01(1) does not apply to a person who is detained after a departure order is made against him and who is still in detention when the specified period expires. Therefore, in this case the departure order cannot become a deportation order as long as the applicant remains in detention. Not only does the applicant's detention prevent him from leaving voluntarily, the Minister is prevented from removing him involuntarily, which means that he could remain in detention in perpetuity. It must follow that the detention is unlawful.
[11] The error in this reasoning is that the Minister is not precluded from removing the applicant involuntarily (upon expiry of the stay). A departure order, like a deportation order, is a removal order and is enforceable in the same way. There is a difference between the two kinds of order, in that the subject of a departure order may have a superior right under section 55 to return to Canada after his departure. It is not clear how this might affect the applicant, because he is also a person who was once deported. However, the applicant's detention is not rendered unlawful merely because section 32.02 cannot operate while the detention continues.
[12] The application for interim relief is dismissed.
"Karen R. Sharlow"
Judge
TORONTO, ONTARIO
June 15, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2884-99
| STYLE OF CAUSE: VINCENZO TRASMUNDI |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MONDAY, JUNE 14, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: SHARLOW J.
DATED: TUESDAY, JUNE 15, 1999
APPEARANCES: Mr. Laurence Cohen
For the Applicant
Ms. Toby Hoffman
For the Respondent
SOLICITORS OF RECORD: Laurence M. Cohen
Barrister & Solicitor
902-347 Bay St.
Toronto, Ontario
M5H 2R7
For the Applicant
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990615
Docket: IMM-2884-99
Between:
VINCENZO TRASMUNDI
Applicant
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 Those determinations are not under review in this application.
2 The applicant has also commenced an appeal to the Immigration Appeal Division which, by virtue of an order of Gibson J., resulted in a statutory stay of the departure order pursuant to paragraph 49(1)(b). For purposes of considering the applicant's argument, I have ignored the existence of the stay.
3 A similar motion was made on May 17, 1999 and dismissed by McGillis J. because there was no affidavit by the applicant.
4 The time limit is a matter for the discretion of the person issuing it, but generally it cannot exceed 30 days from the date of issuance of the departure order. If the departure order is stayed, the time limit does not run while the stay is in effect (Regulation 27(1)).
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