Date: 20110302
Docket: IMM-4982-10
Citation: 2011 FC 252
Ottawa, Ontario, March 2,
2011
PRESENT: The Honourable Mr. Justice Phelan
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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RAJWANT SINGH DHALIWAL
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
The
matter under judicial review is a decision of a member of the Immigration
Division of the Immigration and Refugee Board (Tribunal) dated August 12, 2010
to order the Respondent released from detention upon terms principally of the
obligation to report to CBSA every two weeks.
II. BACKGROUND
[2]
The
Respondent is a citizen of India who over the last 15 years has had a
checkered immigration history of misrepresentation and deceit. He is currently
living in Canada with his
common-law spouse and two children.
[3]
His
immigration history included lying about his relationship with his common-law
wife and her first husband – his uncle; fraudulently obtaining a school
certificate and passport by using a false name; obtaining a work visa under his
false name and continuing to use his false passport and work permit.
[4]
Finally,
in March 2010, the CBSA, as a result of an anonymous “tip”, was informed of the
Respondent’s true identity.
[5]
Before
the CBSA investigation was completed, the Respondent’s common-law wife filed a
spousal sponsored permanent resident application under the Respondent’s false
name.
[6]
When
confronted by CBSA with the truth of his identity, the Respondent continued to
lie until he finally conceded his false identity. At that time the Respondent
informed CBSA that (a) he had no fear of returning to India (he had been
there a few months before); (b) he would defy Canadian law so as to remain in Canada; and (c) he
would resist removal. He was arrested on June 15, 2010.
[7]
A
s. 44 inadmissibility report was issued and at a hearing on June 17, 2010, the
admissibility issue was put over to August 9, 2010. The Respondent was released
upon terms. He was ordered to attend the August 9, 2010 hearing.
[8]
On
the Friday before the August 9 admissibility hearing, the Respondent filed a
refugee claim. The effect of a refugee claim is to render an admissibility
determination moot.
[9]
The
Respondent failed to attend the admissibility hearing.
[10]
The
next day, August 10, 2010, the Respondent was arrested at home. The grounds of
arrest were the obtaining and use of fraudulent documents. At the detention
hearing that day the Tribunal granted release and in so doing noted the
following key points:
·
obtaining
and using false documents;
·
strong
motivation to stay in Canada;
·
attendance
at a June 15 interview and absence of any removal order;
·
failure
to appear at the August 9 hearing was unimportant due to mootness.
[11]
As
a result, the Tribunal ordered the Respondent’s release from detention because
the risk of flight was minimal.
III. LEGAL
ANALYSIS
[12]
Section
58(1) of the Immigration and Refugee Protection Act governs the release
and detention of persons:
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58.
(1) The Immigration Division shall order the release of a
permanent resident or a foreign national unless it is satisfied, taking into
account prescribed factors, that
(a) they are a
danger to the public;
(b) they are
unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the
making of a removal order by the Minister under subsection 44(2);
(c) the Minister is
taking necessary steps to inquire into a reasonable suspicion that they are
inadmissible on grounds of security or for violating human or international
rights; or
(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.
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58.
(1) La section prononce la mise en liberté du résident
permanent ou de l’étranger, sauf sur preuve, compte tenu des critères réglementaires,
de tel des faits suivants :
a)
le résident permanent ou l’étranger constitue un danger pour la sécurité
publique;
b)
le résident permanent ou l’étranger se soustraira vraisemblablement au
contrôle, à l’enquête ou au renvoi, ou à la procédure pouvant mener à la
prise par le ministre d’une mesure de renvoi en vertu du paragraphe 44(2);
c)
le ministre prend les mesures voulues pour enquêter sur les motifs
raisonnables de soupçonner que le résident permanent ou l’étranger est
interdit de territoire pour raison de sécurité ou pour atteinte aux droits
humains ou internationaux;
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.
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[13]
Section
244(a) of the Immigration and Refugee Protection Regulations
establishes the factors referred to in s. 58(1) relevant to this matter:
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244. (a) is
unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a
proceeding that could lead to the making of a removal order by the Minister
under subsection 44(2) of the Act;
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244. a) du risque que l’intéressé
se soustraie vraisemblablement au contrôle, à l’enquête, au renvoi ou à une
procédure pouvant mener à la prise, par le ministre, d’une mesure de renvoi
en vertu du paragraphe 44(2) de la Loi;
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Section 245 lists the factors to be
considered:
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245.
For the purposes of paragraph 244(a), the factors are the following:
(a) being a fugitive
from justice in a foreign jurisdiction in relation to an offence that, if
committed in Canada, would constitute an
offence under an Act of Parliament;
(b) voluntary compliance
with any previous departure order;
(c) voluntary
compliance with any previously required appearance at an immigration or
criminal proceeding;
(d) previous
compliance with any conditions imposed in respect of entry, release or a stay
of removal;
(e) any previous
avoidance of examination or escape from custody, or any previous attempt to
do so;
(f) involvement with
a people smuggling or trafficking in persons operation that would likely lead
the person to not appear for a measure referred to in paragraph 244(a)
or to be vulnerable to being influenced or coerced by an organization
involved in such an operation to not appear for such a measure; and
(g) the existence of
strong ties to a community in Canada.
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245.
Pour l’application de l’alinéa 244a), les critères sont les
suivants :
a)
la qualité de fugitif à l’égard de la justice d’un pays étranger quant à une
infraction qui, si elle était commise au Canada, constituerait une infraction
à une loi fédérale;
b)
le fait de s’être conformé librement à une mesure d’interdiction de séjour;
c)
le fait de s’être conformé librement à l’obligation de comparaître lors d’une
instance en immigration ou d’une instance criminelle;
d)
le fait de s’être conformé aux conditions imposées à l’égard de son entrée,
de sa mise en liberté ou du sursis à son renvoi;
e)
le fait de s’être dérobé au contrôle ou de s’être évadé d’un lieu de
détention, ou toute tentative à cet égard;
f)
l’implication dans des opérations de passage de clandestins ou de trafic de
personnes qui mènerait vraisemblablement l’intéressé à se soustraire aux
mesures visées à l’alinéa 244a) ou le rendrait susceptible d’être
incité ou forcé de s’y soustraire par une organisation se livrant à de telles
opérations;
g)
l’appartenance réelle à une collectivité au Canada.
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[14]
The
standard of review for detention hearings was confirmed in Walker v Canada (Minister of
Citizenship and Immigration), 2010 FC 392, as reasonableness with deference
owed in so far as the decisions are fact-based.
25 The
Immigration Division's analysis is central to its role as a trier of fact. As
such, the Division's findings are to be given significant deference by the
reviewing Court. The Division's findings should stand unless its reasoning
process was flawed and the resulting decision falls outside the range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law: Dunsmuir, above, at para. 47.
26 In
a case such as this one, there might be more than one reasonable outcome.
However, as long as the process adopted by the Immigration Division and its
outcome fits comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome: Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] S.C.J. No. 12, at para. 59.
[15]
The
issue in this case is the reasonableness of the determination that the
Respondent does not present a flight risk – that he is not a person who will
not attend immigration proceedings or otherwise comply with immigration orders.
The Respondent’s long standing use of deceit is only relevant to the extent
that it touches upon his likelihood of such non-compliance. Also not relevant
to that risk analysis is his late filing of a refugee claim except to confirm
the obvious, and what he has stated, that he intends to stay in Canada by any means – fair or
foul.
[16]
However,
the strength of the intention to stay in Canada is not evidence of likelihood of compliance.
The desire to stay in Canada must be a given
(otherwise the Respondent would leave and render proceedings moot) but it also
provides a powerful motive to avoid any immigration proceeding which can lead
to or does result in removal. The Tribunal’s reliance on this factor as
assurance of attendance is misplaced.
[17]
There
are a number of problems with the Tribunal’s decision; however, the most
fundamental was the Tribunal’s failure to consider the Respondent’s admissions
that he would break the law to stay in Canada and that he would not report to removal to India if so ordered. There is
not one word about this evidence nor is there any evidence to suggest that
either he did not say what was reported or that it was taken out of context.
[18]
These
admissions are important here given the background of the Respondent’s past
efforts to avoid compliance with Canadian law from the use of false identities,
uttering misrepresentations and false documents, to non-attendance at
immigration proceedings. It is no answer to assume (because no evidence was
led) that the Respondent did not appear because the August 9 hearing would not
proceed.
[19]
The
greater the importance of the evidence, the greater the obligation of a
decision maker to address that evidence (Cepeda-Gutierrez v Canada (Minister
of Citizenship and Immigration) (1998), 157 FTR 35). Relevant to the issue
of whether the Respondent would appear at subsequent immigration proceedings is
not only his past behaviour but also his past words. Those words are consistent
with his past behaviour.
[20]
Therefore,
the Tribunal erred in failing to consider critical evidence and rendered an
unreasonable decision.
IV. CONCLUSION
[21]
Therefore,
this judicial review will be granted, and the decision to release is quashed.
There is no need to refer the matter back as the issues of his flight risk may
come again if the Respondent is arrested.
[22]
There
is no question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is granted, and the decision to release is quashed.
“Michael
L. Phelan”
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