Date: 20071128
Dockets: IMM-1822-07
IMM-1823-07
Citation:
2007 FC 1252
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
CHEONG SING LAI
Respondent
REASONS FOR ORDERS
HARRINGTON J.
[1]
Mr.
Lai is a person of considerable interest to the authorities both here and in China. In China, he is
wanted on charges of masterminding a massive smuggling and bribery operation.
He and his wife managed to leave there in dubious circumstances and came here
in 1999. His claim for refugee status was denied. It was held that the United
Nations Convention relating to the Status of Refugees had no application as
there were reasons to consider he had committed serious non-political crimes in
China. He has not
yet exhausted his recourses in Canada. Although the first decision on his
pre-removal risk assessment was negative, on judicial review Mr. Justice
de Montigny ordered a new PRRA (Lai v. Canada (Minister of
Citizenship and Immigration, 2007 FC 361, [2007] F.C.J. No. 476). As a
result, he has been given a reprieve of at least a year, if not more.
[2]
Immigration
officials have always considered him a flight risk, unlikely to appear if, as
and when he is finally ordered removed from Canada. In
accordance with the Immigration and Refugee Protection Act (IRPA) or its
predecessor the Immigration Act, he has always been either detained, or
released on conditions. One of the release conditions was a daily curfew, the
hours of which varied from time to time.
[3]
On
12 April 2007, one week after Mr. Justice de Montigny’s decision, Mr. Lai
applied to have the curfew lifted in its entirety, the other conditions, such
as weekly reporting and cash bail to remain in place. The Minister opposed.
[4]
The member of the Immigration Division of the Immigration
and Refugee Board charged with the matter, Mr. Ringham, lifted the curfew, and
left the other conditions in place. Briefly put, he considered the fact that
Mr. Lai had been granted a judicial review of his PRRA decision to be a
material change of circumstance in that it would be sometime before he could be
removed. Furthermore, although the curfew had been breached from time to time
in the past, the breaches were minor and did not suggest he was planning to
flee. He specifically pointed out: “There have been no incidents in the last
nine months since the curfew was extended to allow liberty from noon to 9:30
p.m.”
[5]
Mr. Ringham’s decision was issued and faxed to the parties
at about 2:30 p.m. on April 19. Little did he know, some three hours earlier,
at 11:30 a.m., during his hours of curfew, Mr. Lai was spotted by a plain
clothes policeman in a drugstore and was arrested.
[6]
Section 55 of IRPA provides that an officer may arrest a
foreign national who he or she has reasonable grounds to believe is
inadmissible and is a danger to the public or is unlikely to appear for
examination, an admissibility hearing or for removal from Canada. Section 57
provides that the reasons for the continued detention must be reviewed within
48 hours after the person is first taken into custody, and regularly
thereafter. Section 58 permits the Immigration Division to order the person’s
release with or without conditions imposed.
[7]
The next day, April 20, he was brought before another
member of the Immigration Division, Mr. Tessler, on detention review. The
authorities did not seek Mr. Lai’s continued detention. Rather they wanted the
old curfew reimposed, and the bail increased. Mr. Tessler refused. His decision
was oral, and has been interpreted by the Minister, upon review of the
transcript, as meaning that he, unlike Mr. Ringham, and those who decided about
fifteen earlier detention reviews, thought that Mr. Lai was no longer a flight
risk at all.
[8]
This is a judicial review of both decisions.
The
Law
[9]
Sections 55 and following of IRPA have been interpreted by the
Federal Court of Appeal in Canada (Minister of Citizenship and Immigration)
v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572, which maintained the
decision of Madam Justice Gauthier of this Court, 2003 FC 1225, [2004] 3 F.C.R.
523. Mr. Justice Rothstein answered her certified question as follows:
[24] The reasons of Gauthier J. are logical
and clear. I am fully satisfied that she correctly applied the proper standards
of review to Mr. Iozzo's findings and that she correctly interpreted the relevant
law. I would dismiss the appeal. I would answer the certified question as
follows:
At each detention review made pursuant to
sections 57 and 58 of the Immigration Refugee Protection Act, S.C. 2001,
c. 27, the Immigration Division must come to a fresh conclusion whether the
detained person should continue to be detained. Although an evidentiary burden
might shift to the detainee once the Minister has established a prima facie
case, the Minister always bears the ultimate burden of establishing that the
detained person is a danger to the Canadian public or is a flight risk at such
reviews. However, previous decisions to detain the individual must be
considered at subsequent reviews and the Immigration Division must give clear
and compelling reasons for departing from previous decisions.
[25] The Minister is at liberty, at any time, to re-arrest the respondent
and secure his detention and continued detention on the basis of adequate
evidence. If the Minister is of the opinion that the respondent is a danger to
the public, he should take the steps that are available to him under the new
Act to secure the respondent's detention.
The
Issues
[10]
As regards Mr. Ringham’s decision in IMM-1822-07, the
issues are:
a.
Did he err by failing to provide clear and compelling
reasons for departing from all previous decisions which released Mr. Lai from
detention, but subject to a curfew?; and
b.
Is the decision now moot?
[11]
As regards Mr. Tessler’s decision, IMM-1823-07, the issues
are:
a.
Did he find that Mr. Lai is likely to appear for removal?
b.
If so, did he err by failing to provide clear and
compelling reasons for departing from earlier decisions?; and
c.
Did he fail to conduct an independent assessment of the
Minister’s application to reimpose the curfew?
Standard
of Review
[12]
The functional and pragmatic approach to a judicial review
in the context of detention on the grounds of constituting a danger to the
public or a flight risk was very carefully analyzed by Madam Justice Gauthier in
Thanabalasingham, and upheld by the Federal Court of Appeal. Findings of
fact are reviewed on patently unreasonable standard and mixed issues of fact
and law on a reasonableness standard. Holdings in law are entitled to no
deference. The correctness standard applies. The requirements of IRPA are matters
of law.
Mootness
[13]
Although it could be said that Mr. Ringham’s decision,
IMM-1822-07, is moot because it has been overcome by Mr. Tessler’s decision,
and it would be meaningless to grant judicial review of that decision, unless
judicial review were also granted of Mr. Tessler’s decision, nevertheless, in
my discretion, I think it more appropriate to deal with it on the merits.
Obviously, if judicial review is granted, the order would be that both
decisions be sent back for a single redetermination by another officer.
Member
Ringham’s Decision, IMM-1822-07
[14]
In my opinion, there is no reason to disturb Mr. Ringham’s
decision. The detention and release provisions of IRPA, sections 54 through 61,
have been fleshed out by sections 244 to 250 of the IRPA Regulations. They set
out factors to be considered generally, and others depending if the detained
person is considered a flight risk, a danger to the public, or both. Mr. Thanabalasingham
was considered to be both. Mr. Lai has only been considered a flight risk.
[15]
Mr. Ringham took into account the fact that Mr. Lai is a
fugitive from justice in China in relation to a matter which if committed in Canada would constitute an offence here, his previous compliance or
lack of compliance with conditions of release, and the length of time before he
would be removal ready.
[16]
More particularly, he considered Mr. Justice de Montigny’s
decision to order a new PRRA to be a material change in circumstances. Although
Mr. Lai had been aware of the negative PRRA decision several days before being
officially informed thereof, he had taken no steps to either flee or go
underground. Although he had occasionally breached his curfew (for example he
attended a birthday party for his daughter at a restaurant when he should have
been at home), these were considered minor slips and did not indicate an
intention to evade the authorities. Mindful that a considerable length of time
would pass before Mr. Lai could be removed, a condition precedent of which
would be another negative PRRA decision, Member Ringham was of the view that
there was a continued level of risk, but it could be adequately dealt with by
alternatives to detention which did not include a curfew. These other
conditions included cash bail, weekly reporting, making telephone records
available, and avoiding certain people and places.
[17]
These were mixed findings of fact and law. The member is
entitled to deference on a reasonableness standard of review, and so the
decision should stand.
Member
Tessler’s Decision, IMM-1823-07
[18]
Mr. Tessler’s decision was given orally the following day,
immediately following the detention review. He received in evidence a written
statement from the Vancouver
police officer, and proof that Mr. Lai had purchased non-prescription eye
drops, and a few other items at a drugstore, approximately 30 minutes before
his curfew ended. He was accompanied by another Asian man. Although Mr. Lai is
excused from his curfew if medical grounds warrant, he did not raise his health
as a justification for breaching the curfew. In addition, and quite
understandably with some reluctance, Mr. Tessler received the oral testimony of
an immigration enforcement officer and an inland enforcement officer with the
Canadian Border Services Agency.
[19]
At the hearing before Mr. Ringham, which was by way of
written submissions, Mr. Lai’s position that he had not been in breach of
curfew since his daughter’s birthday party in August 2005 was not opposed.
However, the authorities knew perfectly well there had been subsequent breaches
but never lasting more than an hour or so. They knew because they had him under
surveillance in February and March 2007. They also put into question whether he
sought permission for changes of address in advance, which was one of the
conditions of his release. It appeared that he gave notification after the
fact, but was never called on it. They also considered some of his journeys
around town to be suspicious.
[20]
However, they never called these matters to his attention,
and never detained him either as a flight risk or as a danger to the public.
They did not want him to know that he had been under surveillance and so did
not come forward with this information before Mr. Ringham.
[21]
It is certainly arguable that it is an abuse of process to
bring up matters which could have been brought up earlier. In any case, the
transcript of the hearing clearly shows that Member Tessler took these matters
into account.
[22]
The Minister submits that Mr. Tessler, unlike all those who
conducted earlier detention reviews, including Mr. Tessler himself, found that
Mr. Lai was not a flight risk. As a matter of law, his decision should be set
aside because he did not set out clear and compelling reasons for this new
prediction. Counsel for Mr. Lai submits that a review of the entire transcript
clearly reveals that Mr. Tessler still considered Mr. Lai a flight risk, but
that it was not necessary to reimpose the curfew because the other conditions of
his release sufficed. Mr. Lai’s counsel is correct.
[23]
In giving his decision orally, the verbatim reporter took
down that he said: “Ultimately, my decision here is that Mr. Lai is not
unlikely to appear for his removal.” This double negative is found at page 42
of a 43-page transcript. At the outset, Member Tessler was informed that rather
than seek Mr. Lai’s continued detention, the Minister was asking for release on
terms and conditions which were the existing terms and conditions plus
re-imposition of the curfew and a $30,000 increase in bail. Member Tessler
informed the Minister’s counsel, at page 3 of the transcript: “…I think you
better make your arguments on unlikely to appear.”
[24]
In addition, even if one limits oneself to the reasons,
Member Tessler did not come to the view that Mr. Lai was no longer a flight
risk. He noted that Mr. Lai was not currently removable and that if he were detained
he would remain in custody for a considerable amount of time: “…the minimum a
couple of more years of litigation at the very least”.
[25]
He also noted there was a dispute about seeking permission
or giving notice of a change of address. That fact, if fact it is, was
discovered more than two months before the hearing, and no arrest was made.
[26]
After also recounting the other breaches of curfew, he
pointed out that the Minister had an opportunity to present that evidence
before Mr. Ringham, rather than by surprise before him and without prior
disclosure.
[27]
He said: “In my opinion, the Minister forgave Mr. Lai his
repeated breaches of his curfew as they made no attempt to arrest him nor did
they use that material in the opposition to lifting the curfew.” The arrest the
day before “…clearly was with respect to a trivial breach…” His view was that
the Minister was attempting to rehash Member Ringham’s decision, rather than to
seek a judicial review thereof in this Court.
[28]
He went on to review the terms and conditions which were
then in place, pointed out that there was no evidence in seven years that Mr.
Lai had made any attempt to flee, and that the Minister also has discretion, if,
at a later date, information comes to hand to suggest he is planning to flee, to
detain him once again.
[29]
The Minister complains that Mr. Tessler did not make a fresh
independent review, as required. On the contrary, he was very familiar with the
file. He did not simply rubber stamp Member Ringham’s decision, he agreed with
it, and stated why.
[30]
The Minister criticizes both decisions. The significance of
the curfew was that without it Mr. Lai would have taken steps to go
underground, or at least made his preparations. However both members weighed
the evidence and do not share that opinion. Their conclusions were not
unreasonable, and should not be disturbed.
[31]
Mr. Lai has now been on release for seven months, without a
curfew. No officer has arrested him in the belief he constitutes a flight risk.
[32]
For these reasons, the two applications for judicial review
are dismissed. The parties agree, as does the Court, that there is no question
of general importance to certify.
“Sean
Harrington”
Ottawa, Ontario
November 28, 2007
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