Docket: IMM-36-12
IMM-1698-12
IMM-2813-12
Citation: 2012 FC 563
Ottawa, Ontario, May 10,
2012
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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B072
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
These
reasons are issued in connection with three applications for judicial review
brought by the Minister of Citizenship and Immigration (Minister) all
concerning the release of the Respondent from immigration detention by
decisions rendered by members of the Immigration Division. The three
applications were consolidated by Orders of the Court dated March 15, 2012 and
April 5, 2012, and heard at Vancouver, British
Columbia,
on an expedited basis on April 13, 2012. It bears repeating that these
proceedings are subject to a confidentiality order issued by the Court on March 8,
2012 protecting the identities of the Respondent and members of the
Respondent’s family. All of the impugned decisions have been stayed by orders
from the Court pending the disposition of the Minister’s applications.
Immigration
Background
[2]
The
Respondent and members of his family arrived in Canada aboard the
“MV Sun Sea” on August 13, 2010. The Respondent has been held in
immigration detention since his arrival albeit with the benefit of
numerous detention review hearings before the Immigration Division. Initially,
the Respondent was held because of concerns about his identity. When he
eventually acknowledged who he was, the Minister sought and obtained his
continued detention on security grounds. In a detention review hearing held on
March 6 and 13, 2011 (the 12th detention review hearing), the
Minister also asserted that the Respondent should be held as a flight risk. The
presiding member agreed with the Minister that the Respondent represented a
flight risk but not that he was a danger to the public. The presiding member
specifically noted a history of ongoing deception by the Respondent and found
him to be unreliable. This lack of credibility was said to have undermined the
ability of a proposed surety to influence the Respondent’s behaviour and his
detention was ordered continued.
[3]
Subsequent
detention review hearings resulted in similar dispositions and, on November 10,
2011, the Immigration Division found the Respondent to be inadmissible under
section 37(1)(b) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], on the basis of a finding of organized criminality for
engaging in people-smuggling. In the result, he was ordered deported. That
decision is presently the subject of an application for judicial review
for which leave has been granted.
[4]
On
December 1, 2011, the Immigration Division convened a 19th detention
review hearing. The presiding member ordered the Respondent’s continued
detention on the basis that there was no clear and compelling reason to depart
from the earlier findings that he represented a flight risk. The presiding member
also considered the finding that the Respondent was inadmissible and subject to
a deportation order to be a circumstance favouring his continued detention.
[5]
On
December 29 and 30, 2011, the Respondent appeared for his 20th detention
review hearing. In support of his release, the Respondent proposed a surety and
a cash bond of $20,000. It was also pointed out to the presiding member,
Member Mackie, that the Respondent had initiated a Pre-Removal Risk Assessment
(PRRA) that the Minister estimated would take three months to complete after
submissions were received. At the conclusion of the hearing, Member Mackie ordered
the Respondent’s release from detention on conditions. It is this decision that
is the subject of the within application bearing court file number IMM-36-12. The
conditions imposed by Member Mackie included the deposit of a $20,000 cash bond
by the surety, monthly reporting and continued good behaviour.
[6]
In
ordering the Respondent’s release, Member Mackie acknowledged that there were
grounds for continuing the Respondent’s detention as a flight risk, but
that the risk could be mitigated by appropriate conditions of release. The
central findings by Member Mackie include the following:
Having made the decision that ongoing
detention is appropriate, I have had to turn my attention to the factors
in Regulation 248. At this point in time, the only ground for detention is
a finding of flight risk. Regarding the length of time already in
detention, detention has continued for this young man for the last 16 months.
The length of future detention, if release does not occur, is likely at least a
further six months, based on the current information presented yesterday, based
only on the processes that are currently under way and without speculating
about all future avenues of redress that are open to [the Respondent].
There have been no unexplained delays and
the general length of this case is due, in part, because [the Respondent]
arrived as one of 492 migrants on a single vessel and also, to some degree, as
a result of his lack of truthfulness and candour in the early months of his
detention. At this point in time, any period of future detention cannot be
viewed as indefinite because the specific processes being undertaken will
likely conclude within a reasonable period of time.
The final issue that I’ve had to address
is whether or not the alternative to detention that has been proposed is
sufficient to offset the risk that [the Respondent] would not report for
removal if released. In considering the general principles of bail that
exist in this country and our strong belief in a person’s right to liberty
wherever possible, it is my finding that the $20,000 cash bond offered, if
deposited, with stringent terms and conditions of release, would be adequate to
offset the perceived risk. In other words, it is my finding that [the
Respondent] will report as required in the future if a large cash bond with
very stringent terms and conditions is posted.
The bondsperson, Ms. Vaithiyanathan,
testified at length at yesterday’s hearing by teleconference. It is clear that
she understands her responsibilities as a bondsperson and, although she is not
a relative or a friend of long standing, she has known [the Respondent] for at
least six months and she is in frequent telephone contact with him, speaking to
him as often as four times a week. Additionally, in November of 2011, she
travelled from Maple, Ontario, to Maple Ridge, B.C.,
specifically to meet him and meet with him at Fraser Regional Correctional
Centre where he is detained. Since that meeting, she has continued the frequent
telephone contact with him.
She seems to have a good grasp of his
current situation and the challenges he faces. She stated that she trusts him
and believes that he will abide by conditions of release and additionally,
that she will do everything reasonably possible to ensure that he does
abide by terms and conditions of release. She has even offered him the
opportunity to live in her home and if that proves too crowded, since she is a
married woman with three children and in-laws -- I should rephrase that, I’m
not sure they’re in-laws, they may be her parents -- so if it proves too
crowded, she will find him a residence nearby.
If his wife is allowed to move to Ontario
with him, she acknowledges it could be a bit crowded, but she is quite confident
that they will all cope and that she will do whatever is necessary to assist
him in complying with all CBSA requirements, even indicating that if she was
concerned that he was not complying with the terms and conditions of release
that she would immediately contact CBSA. It’s also important to note that she
is not a wealthy woman, has never posted a bond for a migrant before, has a
significant mortgage and all three children still living at home, but has still
agreed to post what for her is a large cash bond because of her faith in
[the Respondent]. I find that knowing that she is risking the stability of her
financial future to assist him and his wife will strongly influence [the
Respondent] to do what is required of him to ensure that her bond is not
forfeited.
Probably one of the very few areas in
which my rationale would deviate from that of one previous Member, it is my
view that, having brought his wife to Canada with him and now having a Canadian
born child, both of whom are here in the Vancouver area at large, and his
wife being in the process of a refugee determination hearing, is actually a
factor that weighs in his favour. I do not accept that he is likely to do
anything that will jeopardize his wife’s opportunities in Canada.
Other motivating factors that I believe
will also cause him to report as required are that his case is not over.
Although he will not be allowed to pursue a refugee claim at this point, he has
the right and has initiated an application for a pre-removal risk assessment.
As
well, the decision made at the admissibility hearing is being challenged in
Federal Court and there was talk by previous counsel of a possible
application for Ministerial consideration under subsection 37(2) of the
Act. So with all of this ahead of him, I believe that with the
alternative proposed put in place, that these things are adequate to mitigate
the risk of flight in his case.
This decision was stayed by the Order of
Justice François Lemieux on February 10, 2012. Justice Lemieux identified a
serious issue arising from Member Mackie’s arguable failure to fully assess the
ability of the surety to control the Respondent’s behaviour.
[7]
On
February 13, 2012, the Immigration Division convened its 21st
detention review hearing. Once again, the presiding Member, Member Tessler, ordered
the Respondent’s release from detention on conditions. Member Tessler found the
Respondent to be a moderate to low flight risk, but that the risk could be
appropriately mitigated by the posting of a $20,000 cash bond by the surety and
by weekly reporting. It is this decision that is the subject of the Minister’s
application bearing court file number IMM-1698-12. The key findings by Member Tessler
were as follows:
I find that I’m not in agreement with the
characterization of [the Respondent] as a high or substantial flight
risk. I reserve this characterization for persons for whom there is
evidence of an extraordinary reason for believing that they would not cooperate
with their removal, the best example being fugitives from justice
who have come to Canada to avoid prosecution in their home country -- to
avoid prosecution in their home country and who have the means and
sophistication to evade removal, and I note that even in those cases
release is not out of the question where the terms and conditions address
the risk.
All refugee claimants assert that they
cannot be returned to their home country because they face persecution. The
reality is that they are rarely detained as flight risks. I do not believe
that the Minister has established here that [the Respondent] is a flight risk
than anyone else who does not want to return to their home country. So while I
agree with my colleagues that [the Respondent] is a flight risk on the basis
that his reliability has been compromised by his untruthfulness with
immigration authorities, the characterization of [the Respondent] as a
serious or high -- or high flight risk is not, in my opinion, justified.
The Minister has not established that there is any greater motivation for
[the Respondent] to avoid removal than the ordinary person in flight from
unrest in their home country.
With a brother in Canada, a wife and
infant child in Canada, and a child that he’s never been able to spend time
with as he was born here while -- she was born here while he was in detention,
the likelihood of [the Respondent] choosing to go underground or fleeing Canada
on his own is significantly lessened.
He testified at this hearing that he does
not want to break up his family and will not do anything to jeopardize his
ability to keep the family together. He was very emotional describing his
displacement -- the displacement endured by his family during the Sri Lankan
Civil War. He is well aware that he may be returned to Sri Lanka by way of
deportation; meanwhile he is a person waiting a pre-removal risk
assessment, he has a wife and child in Canada, and wants to be reunited with them. He
has acknowledged that he will cooperate with his removal to Sri Lanka if that is necessary.
In summary, [the Respondent] is no more
than a moderate or low flight risk. His circumstances suggest that the
likelihood of flight has either been overstated in the past or diminished over
time.
In light of this finding, I will now turn
to the proposed bondsperson.
There was not a great of new information
presented at the detention review. There was the Reasons for the Stay, [the
Respondent] gave a bit of testimony, and the bondsperson – proposed
bondsperson was once again called to give testimony, Ms. Uthayakumari
Vaithiyanathan, U-t-h-a-y-a-k-u-m-a-r-i V-a-i-t-h-i-y-a-n-a-t-h-a-n.
In the stay Reasons the judge referred to
the comments of the Federal Court in Canada
v B157, and I quote:
First of all, the member nowhere assesses
the capacity of the proposed bondsperson to control the detainee’s actions;
yet, the whole rationale behind the appointment of a bondsperson is to ensure
that the person released will comply with conditions of his release and will
appear at the proceedings he may be called to attend. For such a surety to be meaningful
the bondsperson must have the capacity and the incentive to control the person
being released.
My understanding has always been that in
release orders a certain amount of risk has always been tolerable or
acceptable; that a decision to release on terms and conditions is on the
balance of probabilities. Terms and conditions of release, including the
posting of bonds or guarantees were never considered in the past to eliminate
all risk that a person will abscond. This is particularly true where the concern
is that the person would be unlikely to appear for their removal. If the person
fails to appear for their removal then the Minister is merely deprived of the
current ability to remove him but at least the public is not endangered,
and I note that is why in the Sahin decision the Federal Court
highlighted the reasons for detention as being a consideration in release.
In addition, there are no absolutes with
respect to bondspersons. It’s not an exact science and it’s not the role of the
bondsperson to be a substitute jailer. No bondsperson can provide an absolute
guarantee that his or her efforts plus the bond will eliminate all risk that a
person would be likely to appear for a future immigration proceeding and comply
with all terms and conditions of release. Often the bondsperson is a family
member and it can be said that the family relationship itself creates a kind of
moral obligation on the person being released to ensure that their family
member is not deprived of their monies. It is harder to find this kind of
moral suasion from third-party bondspersons where the bondsperson and the
person being released, the relationship is not close but that is not to say
that it cannot exist.
Where the flight risk is not significant
the need for an ideal bondsperson is also reduced. As [the Respondent] is only
a low or moderate flight risk, it’s unnecessary for the bondsperson to be able
to be a constant monitor of his comings and goings. He does not require a form
of house arrest and Ms. Vaithiyanathan is not required to be his substitute
jailer. $20,000 is a great deal of money and it is not amount that -- it is not
an amount that the bondsperson can afford to lose. Her role is to see that [the
Respondent] abides by terms and conditions of his release and appear for his
removal if required, such that the bond is not forfeited to the government.
Ms. Vaithiyanathan trusts [the
Respondent] and his wife through a relationship that she has developed
with them. She is prepared to receive [the Respondent] in her home and then
when his wife comes to Ontario, to find them accommodation
nearby together as she does not have room for [the Respondent], his wife, and
child.
Her incentive is to see that her bond is
not lost; it’s a strong incentive. She is prepared to advise CBSA if she feels
that [the Respondent] is in violation of his terms and conditions.
In light of my finding that [the
Respondent] is no more than a moderate or low flight risk, I’m satisfied that
he will not do anything to put Ms. Vaithiyanathan’s bond at risk. There is a
relationship between himself and his wife and the bondsperson and they share a
common community. He does not want to be separated from his family again and it
is only through his compliance that he can hope to keep his family together.
I would also note that of the 492 persons
aboard the Sun Sea only six persons remain in detention. Of those
released, I am unaware of a single person who has failed to comply
with the terms and conditions of their release. This includes [the Respondent’s]
brother, who was also found inadmissible for aiding and abetting the Sun Sea operation, and who is also
ineligible to apply for refugee status, and has only the pre-removal risk
assessment as his remaining process that may allow him to remain in Canada.
CBSA has already visited Ms.
Vaithiyanathan’s home, interviewed her, and seen where [the Respondent] will
initially stay.
I am aware of the Minister’s keen
concerns about [the Respondent’s] availability for removal. I do not share the
Minister’s deep suspicion about his future cooperation. It is always the
Minister’s prerogative, should the Minister perceive an increased risk, to
rearrest him and argue for continued detention.
I want to be sensitive to the Minister’s
concerns so I am prepared to impose terms and conditions that address these
concerns but, as well, taking into consideration my evaluation of the risk.
So I agree that [the Respondent] should
report to CBSA on a weekly basis and that way CBSA is regularly in contact with
him and aware of his continued presence -- presence in Canada, I will also
impose a term and condition that allows CBSA access to [the Respondent’s]
residence to confirm his compliance with terms and conditions, and, as well, to
impose a term and condition that prohibits his contact with anyone involved in
human smuggling.
So I am prepared to offer [the
Respondent] release on terms and conditions.
[8]
This
decision was stayed by the Order of Justice Simon Noël on March 8, 2012.
Justice Noël identified a number of serious issues concerning the
reasonableness of Member Tessler’s evidentiary analysis which he felt
would benefit from a full and expedited hearing.
[9]
On
March 14, 2012, the Immigration Division convened its 22nd detention
review hearing before Member McPhelan. In the course of submissions, counsel for
the Minister told Member McPhelan that the case was complex and high
profile. For those reasons, guidance from headquarters in Ottawa was being
sought and, in the result, “providing firm timelines for the resolution of [his
PRRA application] isn’t as easy as it would be with other standard cases”.
Nevertheless, the first stage of the PRRA was ostensibly being assessed on a
priority basis and was estimated by counsel to be completed by the end of
April. According to counsel for the Minister, the only other new development
was that the Respondent was likely to be criminally charged for participating
in a human smuggling operation.
[10]
Counsel
for the Respondent pointed out to Member McPhelan that, in a related case, the
Minster’s counsel had been unable to provide a reliable estimate for the
completion of the outstanding PRRA. According to counsel, this uncertainty was
such that the Respondent’s detention had no obvious end in sight.
[11]
Member
McPhelan rendered a decision on March 21, 2012 and, once again, ordered the
Respondent’s release from custody on conditions. The conditions included the
posting of a $20,000 cash bond by a family acquaintance, a curfew and daily
reporting.
[12]
Member
McPhelan’s lengthy decision reviews the Respondent’s detention history
including the reasons that had supported his ongoing detention for the previous
19 months. In deciding to release the Respondent, Member McPhelan cited in
detail the Respondent’s detention history and made several findings concerning
the risk that he would not abide by the terms of release. Those findings
included the following:
a.
The
Respondent had initially deceived immigration authorities about his true
identity and was held in detention until January 2011 on identity grounds;
b.
After
January 12, 2012, the Respondent was detained on security grounds because of
his suspected involvement with the LTTE;
c.
On
May 6, 2011, the Minister argued for the Respondent’s continued detention
because he represented a flight risk and the presiding member agreed. The
presiding member found that the Respondent was not a danger to the public. The
presiding member also found that the Respondent’s assurances were, in the face
of his lack of credibility, insufficient to justify a simple release on
conditions;
d.
On
November 16, 2011, the Immigration Division held the Respondent to be
inadmissible to Canada because he was one of the principal organizers
of the “MV Sun Sea” smuggling operation;
e.
At
the detention review hearing on December 1, 2011, the Respondent’s detention
was continued on the basis that he was extremely motivated to avoid removal to Sri Lanka and,
therefore, represented a significant flight risk. The presiding member also
expressed a concern that the Respondent had refused to sign a travel document
necessary to facilitate his eventual removal;
f.
At
the detention review of December 29, 2011, the Respondent was ordered released
on conditions [see reasons at paragraph 6, above]. At this point, the
Respondent had signed the necessary travel document. Member Mackie had
concerns that the Respondent continued to be a flight risk but that this
release could be justified on the strength of a surety, the posting of a
$20,000 cash bond and regular reporting;
g.
Member
McPhelan was not convinced that the surety’s $20,000 cash bond would influence
the Respondent’s behaviour, but that the presence of his family in Canada and their
pursuit of refugee status would motivate his good behaviour. With respect to
this influence, Member McPhelan observed:
…I accept counsel’s submissions that you
want to be reunited in Canada with your wife and child and
their attendance throughout the whole of the last hearing shows the strength of
that relationship. I agree with Member Mackie that the presence of your wife
and child in Canada tends to reduce your flight
risk.
h.
The
Respondent’s Federal Court challenge to the Immigration Division’s
inadmissibility ruling represented a “very strong inducement” to abide by the
terms of release;
i.
The
Respondent’s ongoing PRRA was a very viable option which made it unlikely that
he would go underground before its completion;
j.
The
Respondent’s regulatory charges in Thailand were not a significant
factor although they indicated a negative “tendency”;
k.
The
Respondent’s involvement in the “MV Sun Sea” smuggling operation and his broad
use of a fraudulent passport reflected a willingness to contravene Canadian immigration
laws and aggravated the risk of flight;
l.
The
Respondent continued to lack credibility and his assurances of good behaviour
could not be relied upon at face value; and
m.
It
was likely that the Respondent would continue to report until the completion of
his PRRA but, in the face of an imminent removal, it was unlikely that he would
report.
[13]
Member
McPhelan then concluded the analysis of the evidence and the law in the
following way:
You have been detained now for 19 months.
In Canada, detention is considered to
be an extraordinary measure and that alternatives are to be considered. You are
a young man with no criminal convictions facing comparatively minor charges in Thailand with no proven LTTE
connections. You are not currently frustrating removal by refusing to sign a travel
document application. You are not a danger to the public in Canada or a threat to the security of
Canada, yet you are still in
detention after so much time.
In Sahin the court said there is a
stronger case for continuing long detention when an individual is considered a
danger to the public as opposed to merely a flight risk. Regarding the future length
of detention, you cannot be removed until the outcome of PRRA is known and CBSA
obtains a Sri Lankan travel document. The Minister’s representative said the
local PRRA coordinator’s best estimate was that processing your PRRA
application could be concluded by the end of April. He said that the “Sun Sea” cases are complex and high-profile and
they are seeking guidance from their headquarters in Ottawa in making these decisions.
Later in the hearing, when I asked a
question in clarification, the Hearings Officer said the estimate of completing
processing by the end of April is a time estimate to determine whether or not
you are at risk. He declined to say how long PRRA would take if the case goes
for balancing in Ottawa. Counsel disagreed with the
Minister’s time estimate and submitted that in another “Sun Sea” PRRA case of
which he was aware, that at subsequent detention reviews the Minister’s
representative began giving longer and longer time estimates for the completion
of PRRA and finally admitted that they did not know how long the PRRA would
take because the matter was being dealt with in Ottawa. I’m also aware of that
case.
I consider that a time estimate of a
decision by the end of April if you are found not to be at risk is optimistic
and I have no idea how long processing your application will take if it has to
go for balancing. Accordingly, it is very difficult to estimate how long you
may remain in detention. There’s been no delay or lack of diligence on the part
of CBSA in this matter. There is some delay attributable to your lack of
cooperation with CBSA’s investigation and because you refused to sign a travel
document application at first, there was a one month delay before you were
invited to apply for PRRA.
I’m satisfied that there’s been a
realistic alternative to detention proposed which involves strict conditions,
including a curfew, which I intend to set at 8:00 p.m. until 6:00 ,a.m.; a $20,000
cash bond and I’m suggesting weekly reporting because I’ve looked at where the bondsperson
lives and where the person concerned would live in relation to GTEC’s offices.
It doesn’t really seem that daily reporting would be feasible. I believe it’s
half an hour each way by freeway. With frequent reporting and strict conditions,
CBSA can always re-arrest you if they believe there’s a significant change in
the flight risk.
Regarding the suitability of the
bondsperson, I’m not sure why Mr. Justice Noel referred to Regulation 47(2)(b).
Originally this person was going to sign a guarantee but after a discussion
with counsel that was changed to the paying of a cash deposit. The Regulations draw
a distinction between a guarantor and someone who pays a deposit. This person
is not a guarantor, she’s a bondsperson. Regulation 47(2) refers to the
requirements if a guarantee is posted. I do not see that Regulation 47(2)(b)
refers to bondspersons or is strictly applicable to a bondsperson.
Nevertheless, I have considered what
effect the posting of a cash bond by this person is likely to have on your
behaviour. This person is an acquaintance of yours of six months. Unlike
Members Mackie and Tessler, I find it hard to see how, for this particular bondsperson,
you will feel compelled not to put her money at risk. The bondsperson explained
before Member Mackie how she was raising the cash deposit and she has already posted
the money. CBSA has had the opportunity to visit her home. Her unchallenged evidence
before Member Tessler was that officers attended her home for two hours, asking
questions and taking pictures. In spite of this, and with the Minister’s
resources, the Minister has not demonstrated that she is an unsuitable
bondsperson.
She is aware that you are inadmissible
for human smuggling and may be required to leave Canada. You will be living in her home. She
understands her responsibilities as a bondsperson. She knows that her money is
at risk if you do not comply with terms and conditions and I believe she will
notify CBSA if you breach those conditions. The posting of a bond by this
person doesn’t create a situation where you will feel compelled not to put her
money at risk but the fact that she has posted her money and will be
supervising you provides an extra level of monitoring your compliance with
conditions in addition to what CBSA will be able to provide. Accordingly, I
find that Ms. Vaithiyanathan is an acceptable bondsperson and I find that the
alternative to detention that’s been proposed is a realistic one in all of the
circumstances.
Previously you were detained for
admissibility hearing. Now the Minister was asking me to keep you detained for
removal from Canada. The timelines for detention
are now different and, of course, you have spent more time in detention. I
consider that I have clear and compelling reasons for coming to a different conclusion
than those members who previously kept you detained.
It was only at the October and November
2011 hearings that there was a bondsperson offering to post $10,000 as an alternative
to detention for admissibility hearing. This was a different bondsperson than will
be posting the bond this time. When the Member rejected the first bondsperson
who offered to post $10,000 at the detention review in October, he was
detaining you for the conclusion of your admissibility hearing. He wasn’t
facing a decision as to whether to detain you for removal. He noted that the
decision in the admissibility hearing had been reserved for more than a week,
that the Member presiding over the admissibility hearing was giving the
decision priority because you were detained and he didn’t expect detention for
the admissibility hearing to be lengthy.
Among the reasons that he rejected that
bondsperson were that there was no indication that that bondsperson had ever
met you or even spoken to you. That first bondsperson knew your wife but didn’t
know much about you and your circumstances. He left open the possibility of
release if there was a suitable bondsperson. He said at page 6 of the transcript
on line 28;
Now, if in the future it appears that you
are facing lengthy further detention and if it could be established that Ms. Krishnamoorthy
was well aware of particular circumstances of your case and if she were still
willing to post a bond on your behalf and if she could provide some specific
indication of how she would be able to influence you and affect your behaviour,
then perhaps the outcome would be different But that’s a lot of ifs and, with
the information before me today, I’m not able to conclude that this is an adequate
alternative in the particular circumstances of your case.
When I detained you for your
admissibility hearing on November 3, 2011, the circumstances were similar. I
expected that there would be a decision in the admissibility hearing likely
within a month and that your detention situation could be re-evaluated after the
decision from the admissibility hearing was known.
At the December 1, 2011, detention
review, for the first time CBSA sought your detention for removal from Canada. You weren’t represented by
counsel on that day, you did not propose an alternative to detention and not
surprisingly, the Member kept you detained. The situation is different now.
This new bondsperson has met you in person. She talks to you on the phone
regularly. She knows quite a bit about your circumstances. She knows that you’ve
been found to be a people-smuggler.
You have been in detention another four
months since 1 last saw you in November. The timelines for future detention are
less clear now than they were then. If your PRRA requires balancing, the
Minister cannot give a time estimate for completion and it’s because of those
changes circumstances I’m offering you release now when I didn’t in November of
2011.
[14]
This
decision was stayed by my Order of April 5, 2012 issued on consent pending the
determination of these applications for judicial review.
Issues
[15]
What
is the appropriate standard of review?
[16]
Do
the detention review decisions that are the subject of these applications
contain reviewable errors?
Analysis
[17]
For
the reasons that follow, it is only necessary to deal with the Minister’s
application challenging the Immigration Division’s third order releasing the
Respondent from custody, that being the decision made by Member McPhelan on
March 21, 2012. Because I have found that decision to be reasonable, the Minister’s
challenge to the earlier release orders by Members Tessler and Mackie are dismissed
as moot.
[18]
The
Minister contends that Member McPhelan erred by making premature and
speculative findings concerning the anticipated future duration of the Respondent’s
custody and by making unreasonable and perverse findings concerning the
adequacy of the alternatives to detention. The Minister also argues that
Member McPhelan erred by paying insufficient attention to the findings made in
earlier detention reviews that the Respondent lacked credibility, that he
represented a significant flight risk and that he could not be controlled by a
bondsperson.
[19]
On
the record before me the above issues are ones of mixed fact and law for which
the deferential standard of reasonableness applies: see Canada (MCI) v B046,
2011 FC 877 at para 32, 394 FTR 217; Canada (MCI) v B157, 2010 FC 1314
at paras 23-25, 379 FTR 251;and Sittampalam v Canada (MCI), 2006 FC 1118
at para 7, 300 FTR 48.
[20]
Subsection
58(1) of the IRPA directs the Immigration Division to release a foreign
national unless it is satisfied, upon taking account of the prescribed factors
that the person is a danger to the public or is unlikely to appear for an
examination or for removal. Sections 245 and 248 of the Immigration Refugee
Protection Regulations, SOR 2002-227[IRP Regulations], set out the
factors that the Immigration Division must consider in the application of
subsection 58(1). In the case of section 248, if it is determined that
grounds for detention exist, the Immigration Division is nevertheless directed
to consider the following additional factors:
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.
[21]
Counsel
for the Minister argues that Member McPhelan made the same mistake identified
by the Federal Court of Appeal in Canada (MCI) v Li, see
footnote 1 above, by prematurely speculating about the time that was required
to complete the first stage of the Respondent’s PRRA. According to this
submission, Member McPhelan ought to have continued the Respondent’s detention
until the Minister’s time estimate had run its course. This impermissible
speculation is said to be evident in the following passages from the decision:
…Regarding the future length of
detention, you cannot be removed until the outcome of the PRRA is known and
CBSA obtains a Sri Lankan travel document. The Minister’s representative said
the local PRRA coordinator’s best estimate was that processing your PRRA
application could be concluded by the end of April. He said that the “Sun Sea” cases are complex and high-profile and
they are seeking guidance from their headquarters in Ottawa in making these decisions.
Later in the hearing, when I asked a
question in clarification, the hearings officer said the estimate of completing
processing by the end of April is a time estimate to determine whether or not
you are at risk. He declined to say how long PRRA would take if the case goes
for balancing in Ottawa. Counsel disagreed with the
Minister’s time estimate and submitted that another “Sun Sea” PRRA case of
which he was aware, that at subsequent detention reviews the Minister’s
representative began giving longer and longer time estimates for the completion
of PRRA and finally admitted that they did not know how long the PRRA would
take because the matter was being dealt with in Ottawa. I’m also aware of that
case.
I consider that a time estimate of a
decision by the end of April if you are found not be at risk is optimistic and
I have no idea how long processing your application will take if it has to go
for balancing. Accordingly it is very difficult to estimate how long you may
remain in detention. There’s been no delay or lack of diligence on the part of
CBSA in this matter. There is some delay attributable to your lack of
cooperation with CBSA’s investigation and because you refused to sign a travel document
application at first, there was a one month delay before you were invited to
apply for PRRA.
…
You have been in detention another four
months since I last saw you in November. The timelines for future detention are
less clear now than they were then. If your PRRA requires balancing, the
Minister cannot give a time estimate for completion and it’s because of those
changes in circumstances that I’m offering you release now when I didn’t in
November of 2011.
[22]
I
do not agree that this part of the decision amounts to speculation. Member
McPhelan noted the Minister’s position that the Respondent’s PRRA would likely
be completed within the following six weeks but found this to be “optimistic”.
This does not seem to me to be an unreasonable conclusion in the face of the
submission by the Minister’s counsel that, because of the involvement of “headquarters”,
firm timelines were not as easy to obtain as in “standard” cases. Indeed, it
is surprising to me that in a supposedly high priority case involving a person
held in custody since August 13, 2010, it would take more than three months to
complete a perfected PRRA. This Court has previously stated that the hardship
of continuing immigration detention is required to be mitigated by the expeditious
resolution of outstanding immigration processes: see Sahin v Canada (MCI), [1995] 1 FC
214 at paras 32-33, 85 FTR 99 (TD).
[23]
It
is not enough for the Minister to say to the Member that a PRRA is underway.
It was open to the Minister to provide clear details about the status of the
Respondent’s PRRA, the precise reasons why it required 3.5 months to complete
and why the involvement of headquarters would give rise to delays or
uncertainties. The Minister failed to provide that information to Member
McPhelan and, in the face of that failure, it is not open to the Minister to
complain about speculation. Member McPhelan’s concern had an evidentiary basis
and it was, therefore, not speculation to say that “it is very difficult to
estimate how long you may remain in detention”. This uncertainty was a factor
weighing in favour of the Respondent’s release: see Charkaoui v Canada (MCI), 2007 SCC 9 at
para 115, [2007] 1 S.C.R. 350.
[24]
It
also seems to me that the Minister has placed undue emphasis on the time
required to complete the Respondent’s PRRA. That issue was of no immediate
significance because, as Member McPhelan noted, the Respondent had also challenged
the inadmissibility finding by the Immigration Division – a process requiring
several months to complete and which was found to be “a very strong inducement”
to abide by the terms of release.
[25]
The
Minister also contends that the decision to release the Respondent was
unreasonable because Member McPhelan had found that in the face of imminent
deportation the Respondent was unlikely to report. According to the Minister,
this finding is inconsistent with the terms of section 244 of the IRP
Regulations, which requires the continued detention of such a person.
[26]
I
do not agree that the passage relied upon by the Minister can be read in
isolation from Member McPhelan’s remaining analysis. It is at least implicit
from the reasons that Member McPhelan’s concern about the risk of flight
was expressed before the application of the factors set out in section 248 of
the IRP Regulations including the length of this detention, the time
required to complete outstanding proceedings and the existence of alternatives
to detention. In other words, Member McPhelan found that the inherent risk of
flight was ultimately outweighed by the section 248 factors.
[27]
The
Minister also complains that Member McPhelan erred by relying on alternative
measures to detention that were insufficient to mitigate the Respondent’s
previously recognized risk of flight. In the face of the Respondent’s
established lack of credibility, his key role in organizing the “MV Sun Sea”
venture and his lack of concern for the interests of the surety, it was
perverse to find that anything short of continued detention would assure his
presence for removal. According to this argument, Member McPhelan unreasonably
departed from the previous findings of the Immigration Division in the absence
of clear and compelling reasons: see Canada (MCI) v Thanabalasingham,
2004 FCA 4 at paras 11-13, [2004] 3 FCR 572.
[28]
Member
McPhelan did, however, identify the changes of circumstance that supported the
Respondent’s release including the following:
a.
the
Respondent’s added time in detention;
b.
the
unreliability of the Minister’s estimates of the time required to complete the Respondent’s
PRRA;
c.
the
timeline for the Respondent’s future detention was “less clear” than earlier;
d.
the
doubling of the proposed cash bond;
e.
the
strength of the new surety as compared to the initial proposed surety; and
f.
the
fact that the Respondent had signed the required travel document.
[29]
The
fact that the Minster does not agree that these changes are sufficient to
justify the Respondent’s release does not mean that it was unreasonable for
Member McPhelan to act on them. This argument is no more than an invitation to
reweigh the evidence and that is not the role of the Court on judicial review.
[30]
I
also do not agree that there is an inconsistency in Member McPhelan’s finding
that the Respondent was unlikely to be concerned about the financial interests
of the surety and the finding that the surety was an “acceptable bondsperson”.
Member McPhelan clearly understood that the value of the surety did not lie
exclusively in the realm of moral suasion. In this situation, the surety was
well informed about the Respondent and his family and had a strong motivation
to supervise the Respondent’s behaviour including his compliance with a
curfew. It is apparent from Member McPhelan’s decision that the
Respondent was more likely to be motivated by the presence of his family in Canada and by his
desire to pursue his claim to protection to a final conclusion. This is not a
situation where the Board failed to carry out any analysis of the suitability
of the surety. Although Member McPhelan had concerns about the ability of the
surety to influence the Respondent, this did not mean that the surety could not
play a useful role in monitoring his compliance with the terms of release.
[31]
It
is of some significance that the three recent decisions that are now challenged
by the Minister were rendered by three different members of the Immigration
Division of which two had at earlier points in the process ordered the Respondent’s
continued detention. In the case of the most recent order of release, Member McPhelan
continued the Respondent’s detention on at least three occasions in 2011 before
coming to a different view on March 14 of this year. This is neither surprising
nor troubling. It indicates an open-minded approach to the serious issue of
lengthy immigration detentions of the sort that has occurred here and it is a
recognition of the point made by the Supreme Court of Canada in Charkaoui v
Canada (MCI), above, that the ongoing process of immigration detention
review must be meaningful and take into account the evolving context and
circumstances of each case.
[32]
Since
cases like this one do not remain static, the process requires vigorous
re-revaluation of detentions. This is particularly true where, as here, no
serious danger to public safety has been identified. To put it simply, as the
length of a person’s detention increases with no obvious end in sight, so too
does the concern for their loss of liberty and the need to consider alternatives.
This point was well-expressed by my colleague Justice Yves de Montigny in Canada (MCI) v B157 (Order, 6
December 2010), Ottawa IMM-6862-10 (FCTD), in the following passage:
First of all, it seems to me
that a person should not be deprived of his or her liberty lightly, especially
when that person has already been detained for more than three months. I am
mindful of the public interest in ensuring that smuggling operations are not
condoned and that people involved in such illegal schemes be treated
accordingly. But this concern should not obscure the fact that the freedom
from imprisonment or detention is certainly one of the most basic human rights
and a cornerstone of a constitutional state, and that a person should not be
denied the benefit of a release order without a careful examination of the
arguments advanced to challenge that order. In the absence of any evidence
that a person is a danger for the public, I would think that the longer a
person has been detained, the more probing should be the review by this Court
of the arguments advanced by the Minister to challenge the release order made
by the Immigration Division.
[33]
I
would add to this that immigration detention is not a form of punishment. It
can only be imposed if the statutory conditions for detention have been
satisfied. In this case, the relevant issue was whether the Respondent’s
detention should be continued because he is unlikely to appear for a hearing or
for removal. The Respondent’s apparent involvement in a sophisticated human
smuggling operation and his lack of credibility were relevant factors but so
were the presence of his family in Canada, their ongoing attempts to obtain
Canadian protection, the strength of the surety and the amount of the bond, the
Minister’s inability to accurately estimate the time required to complete the
Respondent’s PRRA, the time needed to resolve his judicial challenge to the
inadmissibility ruling and the fact that he had been in detention for 19
months. The Member weighed those factors appropriately and concluded that the
conditions for continuing the Respondent’s detention were no longer
compelling.
[34]
The
Immigration Division’s responsibility over detention reviews is onerous. At
its heart lies the difficult task of predicting future behaviour on the basis
of past events and conduct. The Immigration Division must also balance the
competing interests of a detainee not to be unduly deprived of freedom with the
public interest in upholding the law including the effective execution of
immigration removals. There is rarely one correct answer to cases like this
one. Every person facing removal from Canada to a place
that is less desirable represents, at some level, a flight risk. The Member
understood that fact, weighed the available evidence and concluded that the
risk was manageable with onerous conditions of release. It is not the role of
the Court on judicial review to substitute its judgment for that of the
responsible decision-maker and, even if I had that authority, this is not a
decision that I would have been inclined to set aside. The decision was amply
supported by the evidence and reasonable in the sense that it falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law: see Canada (MCI) v Khosa, 2009 SCC 12
at para 59, [2009] 1 S.C.R. 339 . The Minister’s application is accordingly
dismissed.
[35]
At
the conclusion of argument in this case, counsel for both parties expressed a
desire to propose a certified question. The Applicant will have two days from
the date of this Judgment to propose a certified question in writing and the
Respondent will have two days thereafter to reply.
JUDGMENT
THIS COURT’S JUDGMENT
is that
these applications are dismissed. Judgment with
respect to a certified question in Court file IMM-2813-12 is reserved pending
the receipt of further submissions from the parties, if any.
"R.L.
Barnes"
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