[2]
According
to the case law, an erroneous assessment of the ability and qualities of a
proposed guarantor results in a fatal error.
M.P.S.E.P. and Sankar, 2009 FC 934,
para 11,
M.P.S.E.P. and Al Achkar, 2010 FC 744,
para 43 et seq.
Legal procedure
[3]
Despite
the fact that the respondent has returned to her country of origin, the case
continued in Court for reasons of public interest and statutory interpretation
(Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342). This is an
application for leave and judicial review filed by the Minister of Public
Safety and Emergency Preparedness pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act (Act) of a decision by Board Member Otto
Nupponen of the Immigration Division of the Immigration and Refugee Board
(panel or Immigration Division) dated May 4, 2011, ordering the release of the
respondent.
Facts
[4]
On
March 6, 2007, the respondent tried to enter Canada as a
visitor, but withdrew her application in view of the officer’s doubts
concerning her good faith. The respondent left on March 7, 2007.
[5]
On
June 13, 2010, the respondent again sought visitor’s status, which was granted
to her until June 24, 2010, on which date she was to leave Canada, but she did
not do so.
[6]
On
April 19, 2011, the respondent was arrested by the Laval police in a massage parlour
and was handed over to the Canada Border Services Agency (CBSA), pursuant to
section 55 of the Immigration and Refugee Protection Act (Act), given
that she did not have a legal status in Canada.
[7]
On
April 20, 2011, the applicant claimed refugee protection in Canada.
[8]
On
April 21, 2011, and April 28, 2011, the respondent benefited from an initial
detention review and a further detention review, in accordance with subsections
57(1) and 57(2) of the Act, respectively.
Transcript of the hearing of April 21, 2011, Exhibit A of
the affidavit of Susan Bradley: Applicant’s Record,
Order of Justice Shore, 2011 FC 532, para 6: Applicant’s Record.
[9]
Following
the hearing, the Board member ordered the respondent’s release on certain
conditions.
[10]
Counsel
for the respondent advised the Immigration Division that Ms. Sin Fu would no
longer be able to fulfil the conditions necessary for Ms. Hong’s release.
[11]
In
his sworn testimony, Mr. Wong, a proposed guarantor, admitted that he had owned
a massage parlour and had been convicted, as owner of a place, of knowingly
permitting the place or any part thereof to be let or used for the purposes of
a common bawdy-house (paragraph 210(2)(c) of the Criminal Code).
[12]
Following
Mr. Wong’s testimony, the Minister’s representative wanted to file the police
report concerning the events that led to Mr. Wong’s conviction.
[13]
The
Board member refused to accept filing of the police report on the ground that
the report had not been translated into Mandarin, even though the requirement
is, to the extent possible, to file documents in the language of the hearing,
that is, in one of Canada’s two official languages.
[14]
The
Minister objected to the respondent’s release on the ground that Mr. Wong did
not have the qualities sought in a guarantor.
[15]
However,
the Board member accepted the guarantor.
[16]
Consequently,
the Board member ordered the respondent’s release, in return for payment by the
guarantor, Mr. Wong, of the sum of $1,500, payable in cash.
Issue
[17]
Did
the Board member err in fact and in law?
Analysis
[18]
The
Board member erred in fact and in law by refusing to accept filing of the
police report. Examining the report would have enabled him to verify that Mr.
Wong did not have the qualities required to be a guarantor and that he did not
constitute a reasonable alternative to detention.
[19]
Mandarin
is not one of the two official languages. The Board member could, however, have
required the interpreter present at the hearing to translate the document into
Mandarin.
[20]
In
this regard, the Immigration Division Rules read as follows:
|
Language
of documents
25.
(1) All documents used at a proceeding must be in English or French or, if in
another language, be provided with an English or French translation and a
translator’s declaration.
Language
of Minister’s documents
(2)
If the Minister provides a document that is not in the language of the
proceedings, the Minister must provide a translation and a translator’s
declaration.
|
Langue
des documents
25.
(1) Tout document utilisé dans une procédure doit être rédigé en français ou
en anglais ou, s’il est rédigé dans une autre langue, être accompagné d’une
traduction française ou anglaise et de la déclaration du traducteur.
Documents
transmis par le ministre
(2)
Si le ministre transmet un document qui n’est pas dans la langue des
procédures, il l’accompagne d’une traduction dans cette langue et de la
déclaration du traducteur.
|
[21]
The
Board member erred in law by refusing to admit into evidence a document drafted
in the language of the proceedings before him.
Conclusion
[22]
The
panel made unreasonable errors of fact (erroneous finding of fact made in a
perverse or capricious manner, paragraph 18.1(4)(d) of the Federal
Courts Act) by refusing to admit into evidence the police report and the
transcript of May 4, 2011, which showed that the guarantor had been convicted,
as owner of a place, of knowingly permitting the place or any part thereof to
be let or used for the purposes of a common bawdy-house (paragraph 210(2)(c)
of the Criminal Code).
[23]
Despite
clear and convincing evidence to the contrary of the Board member’s
observation, the Board member found the guarantor to be credible and made a
decision in breach of the requirements of paragraph 47(2)(b) of the Regulations.
[24]
According
to the case law, an erroneous assessment of the ability and qualities of a
proposed guarantor results in a fatal error.
[25]
In
view of the Board member’s reasoning, his decision is set aside and the
applicant’s application for judicial review is allowed.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for judicial review is allowed.
There is no question of general importance to be certified.
“Michel M.J. Shore”
Certified
true translation
Susan
Deichert, LLB
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