Date: 20101012
Docket: IMM-5742-10
Citation: 2010
FC 1009
Vancouver, British
Columbia,
October 12, 2010
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
XXXX
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
The
Minister of Citizenship and Immigration (the Minister) seeks from this Court an
order temporarily staying the respondent’s release from detention with
conditions pursuant to the October 1, 2010 decision of Member Shaw Dyck of the
Immigration Division (the Member).
[2]
The
respondent is one of the 492 persons who arrived in this country on August
13, 2010, aboard the MV “Sun Sea”; she has been detained since arrival on
grounds that her identity has not been established. She has had four
detention reviews as required by the Immigration and Refugee Protection Act
(IRPA) and has been interviewed four times by officials of Citizenship and
Immigration Canada (CIC) for the purpose of obtaining information which might
lead to her identity being satisfactorily established. Her detention was
continued after the first three reviews with the one previous to the decision under
review being dated September 14, 2010.
[3]
The
respondent is a 32-year-old married woman of Tamil ethnicity and a citizen of Sri Lanka. She arrived on the MV “Sun Sea” accompanied by a man and
two-year-old child who she claims are her husband and daughter. She is detained
with the child at the Burnaby Youth Detention Centre; her husband is separately
detained at a facility in Maple Ridge. He has recently been ordered released
from detention, a decision sought to be stayed by the Minister. The hearing of
the Minister’s stay motion in his case will be heard later this week.
[4]
This is
not a case where the respondent did not have any identification papers
whatsoever. However, she was without her passport which she claims was used to
travel by air from Colombo to Thailand and was left with her agent on his
orders. The record indicates there is no evidence of her entry in Thailand by plane. What she produced
by way of identification were:
(a) A
National Identity Card (NIC) which was analysed to have been altered but the
significance of the alteration is yet to be determined;
(b) Her
birth certificate;
(c) Her
marriage certificate; and
(d) She did
not produce a birth certificate for the child.
[5]
Two of my
colleagues have issued recent decisions on stay of release from detention
applications by the Minister of persons who arrived on the MV “Sun Sea”. Mr. Justice de Montigny rendered
two decisions in Court files IMM-5560-10 and IMM-5368-10, both decided on
September 17, 2010. He dismissed the Minister’s stay applications. Madam Justice
Bédard rendered her decision on September 23, 2010, in which she granted a stay
of a release order. She held that on the particular facts of the case before
her, there was a manifest lack of evidence on the respondent’s identity.
[6]
In all
three cases, both of my colleagues recognized that identity was the lynchpin of
Canada’s immigration regime.
[7]
The
conjunctive test which the Minister must satisfy the Court in order to obtain a
stay pending the determination of the Minister’s application for leave and
judicial review of Member Shaw Dyck’s decision is well known. The Minister must
establish: (1) one or more serious issues to be tried; (2) he would suffer
irreparable harm if the stay was not granted, i.e. if the respondent was
released on the conditions imposed by the Member; and (3) the balance of
convenience favours the Minister.
[8]
In my
view, before embarking upon the required tri-partite analysis, it is necessary
to understand the detention and release framework established by IRPA and
particularized in the Immigration and Refugee Protection Regulations (IRPR).
[9]
Moreover,
some appreciation of the rationale behind the Member’s decision is also needed.
II. The Detention and
Release Scheme
[10]
The
legislative and regulatory scheme on detention and release is contained in
Division 6 of IRPA and the prescribed factors are spelled out in sections
244 to 248 of the IRPR.
[11]
Section 58
of IRPA provides that the Immigration Division shall order the release
[from detention] of a foreign national unless it is satisfied, taking
into account prescribed factors, that such person is either (a) a danger to the
public or (b) a flight risk or (c) the Minister is taking
necessary steps to inquire into a reasonable suspicion that they are
inadmissible on grounds of security or violating human or international rights or
(d):
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(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.
[My emphasis]
|
d) dans le cas où le
ministre estime que l’identité de l’étranger n’a pas été prouvée mais peut
l’être, soit l’étranger n’a pas raisonnablement coopéré en fournissant au
ministre des renseignements utiles à cette fin, soit ce dernier fait des
efforts valables pour établir l’identité de l’étranger.
|
[12]
The prescribed
factors for the purpose of assessing whether the respondent is a person whose
identity has not been established are set out in the IRPR. Section 244 of the
IRPR has prescribed separate factors which shall be taken into
consideration when assessing whether a person is (a) a flight risk; (b) a
danger to the public; or (c) is a foreign national whose identity is not
established.
[13]
Section 247 is the
section setting out the prescribed factors for the purpose of assessing whether
a person’s identity has not been established. Such factors include whether (a)
the respondent’s cooperation in providing evidence of their identity or
assisting the Minister in obtaining that evidence; (b) if a refugee claim has
been made, the possibility of obtaining identity documents or information
without disclosure to government officials in Sri Lanka; (c) the destruction of
identity or travel documents and the circumstances under which the person
acted; and (d) the provision of contradictory information with respect to
identity at the time of an application.
[14]
Finally, section 248
of the IRPR provides that if it is determined that there are grounds for
detention, the following factors “shall be considered before a decision is made
on detention or release”:
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(a) the reason for
detention;
(b) the length of
time in detention;
(c) whether there
are any elements that can assist in determining the length of time that
detention is likely to continue and, if so, that length of time;
(d) any unexplained
delays or unexplained lack of diligence caused by the Department or the
person concerned; and
(e) the existence of alternatives to
detention.
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a)
le motif de la détention;
b)
la durée de la détention;
c)
l’existence d’éléments permettant l’évaluation de la durée probable de la
détention et, dans l’affirmative, cette période de temps;
d)
les retards inexpliqués ou le manque inexpliqué de diligence de la part du
ministère ou de l’intéressé;
e) l’existence de solutions
de rechange à la détention.
|
[15]
In conclusion, on
this point the statutory and regulatory scheme shows the importance Parliament
placed on the identity of a person for the purposes of immigration or entry
into Canada, including those persons seeking its
protection, expressing a particular abhorrence to human smuggling. Identity is
one of the four self-standing classes which Parliament identified in section 58
as warranting special attention for a person’s detention or release. Each class,
namely, danger to the public, flight risk, inadmissibility on grounds of
security or violating human or international rights or lack of identity are
independent from each other, each having particular conditions of operation and
different conditions of application.
[16]
In Canada
(Minister of Citizenship and Immigration) v. Gill, 2003 FC 1398 [Gill], this Court
at paragraph 22 described the statutory scheme in more particularity and in
paragraph 23 set out its views on why IRPA, a new statute enacted in 2002,
placed special emphasis on the factor of identification.
III. The Impugned Decision
[17]
The heart of Member
Shaw Dyck’s decision releasing the respondent is expressed in the following
terms:
So I am satisfied then that although the Minister is not
satisfied with your identity and that they have made reasonable efforts to
establish your identity thus far, and what remains to be done on the Minister’s
behalf can readily be accomplished with you outside of detention, I am
satisfied that release on terms and conditions can address the issue of your
ongoing co-operation with the Minister as well as any lingering concerns they
may have with respect to flight risk, danger and security that have been
addressed in terms and conditions in the past. [My emphasis]
So
I will invite the Minister to contribute to the terms and conditions of
release.
[18]
The transcript of
this detention review shows it essentially consisted of submissions, by both
counsel, of developments since the previous hearing which occurred on September
14, 2010, based on the filing of exhibits. Minister’s counsel filed a copy of
the Minister’s opinion he was not satisfied the respondent’s identity had been
established but may be established.
[19]
She filed another
exhibit which consisted of interview notes by a CIC interviewer with the
respondent dated September 15, 2010 and September 29, 2010.
Duty counsel for the respondent filed the affidavit of Kanthar Sivanthan, a
longtime senior official with the Ministry of Education (MOE) in Sri Lanka, dated September 25, 2010. The purpose of his affidavit was
to describe the steps to be taken by the Migration Integrity Officer (MIO) in Sri Lanka to whom the Canadian authorities had sent documents for
verification of persons who arrived on the MV “Sun Sea”
including those of the respondent. He expressed the view that the MIO could not
approach school officials without involving the MOE or checking birth
certificates without involving the State.
[20]
Counsel for the
Minister provided updates on developments concerning the Minister’s efforts to
firm up the respondent’s identity by: (1) sharing her biographical information
and fingerprints with four foreign governments with two of them reporting no
contact in their country by the respondent; (2) efforts to obtain documents from
the UNHCR in Thailand where the respondent and her husband filed refugee
claims; (3) recent efforts to obtain further documentation on her identity from
her husband’s family; (4) the fact the MIO had been sent the respondent’s identity
documents on September 19, 2010; (5) an argument based on her interviews that
the respondent had provided conflicting information on whether she knew anyone
in Canada and conflicting knowledge on the date of the issuance of her NIC; (6)
her confusion about who filed her passport application in Colombo; (7) the
limited amount of information she provided on who in Sri Lanka could assist in
confirming her identity; (8) confusion on whether the family had outstanding
debts related to their being smuggled into Canada; and (9) the circumstances
related to the alteration of her NIC.
[21]
Counsel for the
respondent countered these submissions in a number of ways focusing on the fact
the NIC’s alteration was minor and the respondent had nothing to do with that
alteration; the MIO’s four-week response time was wishful thinking with
the record indicating he had yet to meet that deadline in any investigation
which had been requested of him by Canadian officials; the UNHCR does not
authenticate documents nor does it share information; there is no substance to the
Minister’s argument she was not cooperating in the effort to confirm her
identity.
[22]
Counsel for the
respondent also pointed to the fact she had completed her Schedule 1
information form for the purpose of ascertaining her eligibility to her refugee
claim filed in Canada, which seems to have been accepted by
the Minister. She argued that in all of the circumstances it was not premature
to consider alternatives for her release as Member Rempel had decided on the
September 14, 2010 review. In her view, the respondent should be released in
the same way and for the same reasons as a number of women aboard the MV “Sun Sea”
had.
[23]
Member Shaw Dyck’s
decision shows she was concerned with whether the investigations embarked upon
by the Minister would lead to anything new. She said she was basically left
with the MIO’s inquiry which has yet to reveal anything. She agreed with
counsel for the respondent’s submission that her client had not tried to
mislead the authorities on the issue of her identity and accepted her excuse
for withholding information about whom she knew in Canada.
[24]
In sum, the Member
concluded the Minister’s officials had accomplished a great deal in their
endeavour to establish her identity and what remained did not require her on-going
detention particularly in the light of the alternative to detention.
IV. Analysis
A. Serious Issue
[25]
Counsel for the
Minister argued Justice de Montigny had erred in setting the standard for
serious issue at the level of showing quite a strong case rather than the lower
level of simply showing the serious issue was not frivolous or vexatious. I
need not decide the question because I am satisfied the Minister has met
the higher onus.
[26]
As argued by the
Minister, serious issues arise in this case on whether the Member properly
interpreted and/or respected the statutory scheme related to the detention and
release under IRPA and IRPR, and in particular whether she erred:
(1) In releasing the
respondent despite her finding the Minister is making reasonable efforts to
establish her identity, that her identity had not yet been satisfactorily
established and the Minister’s investigation was legitimately ongoing in good
faith;
(2) The Member took
into account and balanced all of the factors set out in paragraph 248 of the
IRPR and, in particular, balanced the reasons for detention (lack of
identity), the length of time for detention, any lack of diligence on the part
of CIC or CBSA with the alternatives for detention;
(3) The Member
considered or properly applied the factors set out in section 247 of the IRPR
and, in particular, whether there was conflicting evidence on the issue of
identity provided by the applicant; and
(4) Had the Member
failed to provide clear and compelling reasons to depart from the September 14,
2010 decision refusing to release the respondent?
B. Irreparable Harm
[27]
I am of the view the
Minister has met the irreparable harm test. The words of Justices Sopinka and
Cory in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at paragraph 71 are
apt:
[…]
In the case of a public authority, the onus of demonstrating irreparable harm
to the public interest is less than that of a private applicant. This is partly
a function of the nature of the public authority and partly a function of the
action sought to be enjoined. The test will nearly always be satisfied simply
upon proof that the authority is charged with the duty of promoting or
protecting the public interest and upon some indication that the impugned
legislation, regulation, or activity was undertaken pursuant to that
responsibility. Once these minimal requirements have been met, the court should
in most cases assume that irreparable harm to the public interest would result
from the restrain of that action.
[28]
The application of
this concept of irreparable harm in public interest matters is emphasized in
immigration cases where identity is an issue and where there are serious
questions about the person’s identity which is the case here.
C. Balance of Convenience
[29]
In my view, the balance
of convenience strongly favours the Minister. The respondent is a participant
in a massive smuggling effort for which she has paid a considerable amount of
money. I recognize she may fear persecution in her native country.
However, this form of seeking refugee status has no place in the proper
application of humanitarian law.
ORDER
THIS COURT ORDERS that the respondent’s release from
detention is stayed until the earlier of either the determination of the
Minister’s leave and judicial review application on the merits or the
respondent’s next statutorily required detention review hearing.
“François
Lemieux
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