Date: 20110208
Docket: IMM-6839-10
Citation: 2011 FC 140
Ottawa, Ontario,
February 8, 2011
PRESENT: THE CHIEF JUSTICE
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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B386
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
respondent, B386, is one of the 492 individuals who arrived in Canada on August 13, 2010, on board
the MV Sun Sea vessel. The respondent and the other migrants were
detained by the Canada Border Services Agency to determine their identity and
admissibility to Canada.
[2]
This
is a judicial review of the November 19, 2010 decision of the Immigration
Division (the member) to release the respondent from detention. The
respondent’s December 2010 and January 2011 detention reviews have already
taken place, and are the subject of further judicial review proceedings in this
Court. In response to a question from the Court, counsel for both parties were
of the view that this judicial review of the respondent’s November 2010
detention review was not rendered moot by the subsequent Immigration Division
decisions in December, 2010 and January, 2011. The issue was not fully argued.
I continue to have doubts on the matter, but have chosen to issue this decision
in any event.
[3]
The
respondent, a Sri Lankan citizen who is 30-years-old and single, contracted to
pay $30,000 to a smuggler for his trip to Canada by sea. He made a down payment of $5000
and signed a letter which stated that if his sister failed to pay the $25,000 balance
he would submit to any action taken by the smuggler.
[4]
On
November 19, 2010, the member ordered the respondent’s release from detention
on the posting of a cash bond of $2000 to be paid by “any person”. It is my
understanding that the bond has now been paid by a specific person whose
identity is known to both parties. Accordingly, the applicant’s contestation of
the release order on the ground that it should have been directed to an identifiable
individual has become moot.
[5]
The
applicant suggests that the member erred in providing an opportunity to
cross-examine the proposed bondsperson after the release order had been
rendered: Canada (Minister of Citizenship and
Immigration) v. Zhang,
2001 FCT 521 at paragraph 17. However, the application of Zhang in this
proceeding is academic.
[6]
After
allowing counsel to file the relevant documents, the member immediately
received fairly straightforward and succinct submissions from both counsel. She
then concluded that the flight risk presented by the respondent could be
mitigated through a bond with terms and conditions. While she did then afford
the Minister’s counsel with the opportunity of cross-examining the bondsperson,
this was refused. The hearing took place in Vancouver and the bondsperson resided in Toronto. After a short recess, the
parties appeared to have agreed to terms for the cash bond which were then
endorsed by the member. The issue was resolved with no cross-examination. Any
suggested error is not one which would attract the Court’s intervention in this
case.
[7]
The
Minister’s principal submission in this application for judicial review is that
the member “entirely ignored” and did not mention either s. 245(f) or (g) of
the Immigration Refugee and Protection Regulations or the respondent’s
vulnerability to coercion or influence from the smugglers. This argument does
not withstand the test of scrutiny.
[8]
First,
the member was acting pursuant to her appointment to the Immigration Division.
A member of the Immigration Division regularly deals with flight risk and
detention reviews. The detention review underlying this proceeding is only one
of some 490 other cases of persons on the same vessel whose detentions were
being contemporaneously reviewed.
[9]
As my
colleague Justice Michael Phelan aptly noted, detention hearings are often
“rough and ready” proceedings: Canada (Minister of Citizenship and Immigration) v. XXXX, 2010 FC 1095 at paragraph 18.
In response to the applicant’s submission that the member did not consider the
facts surrounding the respondent’s contact with smugglers, the simple answer is
that the respondent arrived in Canada on a boat with about 490 other
individuals, many of whom had some contact with smugglers. It is not realistic,
absent other evidence, to conclude that the member ignored s. 245(f) because of
her failure to specifically mention it, particularly in the context of the
significant number of persons on the MV Sun Sea whose detentions were
being reviewed.
[10]
Furthermore,
the Minister’s representative did not raise s. 245(f) as a ground for detention
in his submissions at the detention review hearing, nor did he make any
reference to the facts concerning the respondent’s vulnerability to coercion
from smugglers.
[11]
Second,
with respect to s. 245(g), even taking into account the applicant’s most
unlikely assumption that the member was not aware of the applicability of the provision,
the respondent’s counsel specifically referred to s. 245(g) of the Regulations in
his submissions.
[12]
Similarly,
the phrase “unlikely to appear” or “likely to appear” or words to the same
effect are referred to more than once in the short transcript and in the
member’s brief decision. The Minister has fallen far short of his burden to
establish that the member was unaware of the relevant statutory provision, flight
risk and the respondent’s involvement with the LTTE.
[13]
If
there was any doubt on the issue, one need only refer to the following extract
from the member’s decision:
The issue before me is the
likelihood of you appearing for your admissibility hearing and looking forward
to possible removal from Canada …
[…] It is alleged in your
particular case that your refugee claim is now endangered […], and this would
presumably motivate you not to appear for the hearing […]. As a result then,
the Minister is of the view that you are a flight risk and seeks your continued
detention.
Your counsel has indicated
that the allegation is basically that you worked for the LTTE, which controlled
the area in which you were living. He also asserts that even if you can’t make a
refugee claim, if you are found described in the allegation, there is still
other processes available to you, such as making a pre-removal risk assessment
application and applying for an exemption from the Minister to the effect that
your presence in Canada would not be detrimental to
the national interest. So in your counsel’s mind, there is plenty of reason for
you to appear for immigration processes, including removal from Canada or your admissibility
hearing.
[14]
For
these reasons, this application for judicial review will be dismissed. Counsel
sought an opportunity to suggest the certification of a serious question,
although none was presented at the hearing. Any suggested question for
certification should be filed within three days of the date of this order.
ORDER
THIS COURT
ORDERS that this
application for judicial review be dismissed. Counsel sought an opportunity to
suggest the certification of a serious question, although none was presented at
the hearing. Any suggested question for certification should be filed within
three days of the date of this order.
“Allan Lutfy”
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