Date: 20071018
Docket: IMM-6292-06
Citation: 2007 FC 1064
Ottawa, Ontario, October 18,
2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
NAJWA
FERZLY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
Votre amie
de coeur, madame Ferzli, devra déposer une garantie de 10 000 $ comptants et
vous devrez vous présenter au bureau d’Immigration Canada premier jour après
votre libération et ensuite une fois par semaine. Vous devez les aviser de tout
changement d’adresse. Vous comprenez? Donc, il faut absolument qu’il y ait 10
000 $ de déposés comptants, aussi c’est un montant qui est important, mais pas
tant que ça, je pense que je vous fais confiance, vous Madame.
Vous j’ai certains doutes, mais
je pense que Madame a quand même un certain contrôle et il faut que vous
réalisiez que si vous voulez avoir un avenir ici, vous êtes mieux de faire les
choses selon les règles. Maître Moussa va vous expliquer qu’après ça il y a un
gros X sur le dossier, si vous ne faites pas ça dans les règles.
Donc, un billet d’avion,
preuve d’achat de billet d’avion pour un départ avant le 7 juillet ou au plus
tard le 1er juillet 2006, 10 000 $ comptants, vous devrez vous
présenter au bureau d’Immigration Canada le premier jour ouvrable après votre
libération et ensuite une fois par semaine, puis aviser de tout changement
d’adresse.
Naturellement, vérification de
départ, ça je n’aurai pas besoin de vous expliquer, maître Moussa va sûrement
vous expliquer que si vous quittez le Canada par vous-même à quelque moment
que ce soit, pour où que ce soit, pour quelque durée que ce soit dans le
monde, même aux États-Unis pour aller magasiner une journée, si vous
ne faites pas vérifier votre départ, votre amie va perdre le 10 000 $, ça va
être considéré comme vous n’avez jamais quitté le Canada. (Emphasis added.)
[TRANSLATION NOT AVAILABLE]
(Immigration and Refugee Board Decision (IRB
Decision), p. 4.)
INTRODUCTION
[2]
The
Applicant, Ms. Najwa Ferzly, paid a cash deposit of $10,000 to secure the
release of Mr. Basson Blaise Bassolé from immigration detention. One of the
conditions of release imposed by the Canadian Border Services Agency (CBSA)
Enforcement Officer, Mr. Manuel Pereira, was for Mr. Bassolé to report to
the Pierre Elliott Trudeau Airport in Montreal,
on June 28, 2006, to board a flight, at 22:05, bound for Burkina Faso. This
condition was imposed on him as a result of the airline ticket which Mr.
Bassolé had purchased and presented in order to secure his release from
detention. Instead, Mr. Bassolé unilaterally chose to attempt to leave Canada, on June 28,
2006, via Ottawa, on a flight for Boston, United States (U.S.), thereby
breaching a term of his release. As a result of this breach, Mr. René D’Aoust,
Director of the Investigations and Removal Section of the CBSA, declared the
$10,000 deposit forfeited. Ms. Ferzly seeks judicial review of that decision.
[3]
Ms.
Ferzly contends that Mr. D’Aoust erred in finding that there had been a breach
of any of the conditions secured by the deposit. Ms. Ferzly alleges that there
was never a condition imposed on Mr. Bassolé to report to the Montreal Airport. In any
event, she argues that, since Mr. Bassolé ultimately left out of the Montreal Airport,
that the conditions were respected and that she should receive her deposit
back.
[4]
The
Respondent submits that Mr. D’Aoust did not err in his decision to forfeit the
security deposit as Mr. Bassolé breached a condition of his release that he
present himself at the Montreal Airport to board the
flight to Burkina
Faso.
Mr. D’Aoust’s findings were entirely reasonable based on the evidence before
him. Finally, Mr. D’Aoust properly exercised his discretion when he caused the
deposit to be forfeited. As such, this Court should not interfere with his
decision.
FACTS
[5]
On
April 3, 2006, Mr. Bassolé was detained because he posed a risk that he would
not leave the country voluntarily following a negative determination of his
Convention Refugee Application and Pre-Removal Risk Assessment (PRRA).
[6]
On
April 5, 2006, Mr. Louis Dubé, a member of the Immigration and Refugee Board,
Immigration Division (Board), ordered the release of Mr. Bassolé from
detention; however, Mr. Bassolé was not going to be released from
detention until he presented an airline ticket by which he would depart from Canada
according to strict conditions imposed upon him as to where, when and how. In
its reasons, the Board indicated that if Mr. Bassolé did not receive
authorization to go to France, he would have to leave for Burkina Faso
and there was a strong possibility that he would not depart Canada voluntarily
to Burkina
Faso.
This was also the reason for imposing a monetary deposit. (The IRB decision,
pp. 3 and 4.)
Votre amie de coeur, madame
Ferzli, devra déposer une garantie de 10 000 $ comptants et vous devrez vous
présenter au bureau d’Immigration Canada premier jour après votre libération et
ensuite une fois par semaine. Vous devez les aviser de tout changement d’adresse.
Vous comprenez? Donc, il faut absolument qu’il y ait 10 000 $ de déposés
comptants, aussi c’est un montant qui est important, mais pas tant que ça, je
pense que je vous fais confiance, vous Madame.
Vous j’ai certains doutes,
mais je pense que Madame a quand même un certain contrôle et il faut que vous
réalisiez que si vous voulez avoir un avenir ici, vous êtes mieux de faire les
choses selon les règles. Maître Moussa va vous expliquer qu’après ça il y a un
gros X sur le dossier, si vous ne faites pas ça dans les règles.
Donc, un billet d’avion,
preuve d’achat de billet d’avion pour un départ avant le 7 juillet ou au plus
tard le 1er juillet 2006, 10 000 $ comptants, vous devrez vous
présenter au bureau d’Immigration Canada le premier jour ouvrable après votre
libération et ensuite une fois par semaine, puis aviser de tout changement
d’adresse.
Naturellement, vérification de
départ, ça je n’aurai pas besoin de vous expliquer, maître Moussa va sûrement
vous expliquer que si vous quittez le Canada par vous-même à quelque moment
que ce soit, pour où que ce soit, pour quelque durée que ce soit dans le
monde, même aux États-Unis pour aller magasiner une journée, si vous
ne faites pas vérifier votre départ, votre amie va perdre le 10 000 $, ça va
être considéré comme vous n’avez jamais quitté le Canada. (Emphasis added.)
[TRANSLATION NOT AVAILABLE]
(IRB
Decision, p. 4.)
[7]
The
“Order for Release or Order for Imposition of Conditions”, dated April 5, 2006,
sets out the conditions imposed on Mr. Bassolé for his release, including the
payment of a security deposit of $10,000 on his behalf by Ms. Ferzly and that
Mr. Bassolé must: (1) present himself at the time and place that an Officer requires
him to appear to comply with any obligation imposed on him under the Act;
(2) provide the (Immigration) Department with his address and to advise them of
any changes in that address; (3) report to an Officer at the Canadian
Immigration Centre nearest his residence the first working day following his
release and once per week thereafter; (4) provide proof of purchase of an
airline ticket leaving Canada by no later than July 1, 2006, before he will be
released; and (5) obtain verification of his departure. (IRB Decision, pp.
3-4.)
[8]
On
April 5, 2006, Ms. Ferzly signed a security deposit in the amount of $10,000.
The Security Deposit Form indicated that the conditions of release pertaining
to the deposit were those contained in the Order for Release or Order for
Imposition of Conditions as described above. By signing the deposit agreement, Ms.
Ferzly acknowledged that she understood and agreed that in the event of default
or breach of any of the above conditions imposed, the money deposited was
liable to be forfeited to the Crown. (Security Deposit, Certified Tribunal
Record, p. 22.)
[9]
In
order to comply with the conditions for and obtain his release from detention,
on April 6, 2006, Mr. Bassolé met with the CBSA enforcement officer, Mr. Pereira,
and presented an airplane ticket to depart Canada on a flight leaving from
Pierre-Elliott Trudeau Airport in Montreal, on June 28, 2006, at 22:05, to
Casablanca, with a final destination of Ouagadougou, Burkina Faso. Mr. Bassolé
was released as a result of this airline ticket and all of the subsequent
preparation of documents and instructions to Mr. Bassolé were based on Mr.
Bassolé leaving Canada on that flight. (Copy
of airline ticket, Certified Tribunal Record, p. 19; Manuel Pereira’s Notes to
File, dated April 6, 2006, Certified Tribunal Record, p. 20; Affidavit of
Manuel Pereira, sworn August 8, 2007.)
[10]
On
June 16, 2006, Mr. Pereira met with Mr. Bassolé to confirm the details of his
scheduled departure from Montreal to Burkina Faso, on June 28, 2006. Mr. Pereira advised Mr.
Bassolé that all of the departure documentation required for his trip back to Burkina Faso, including his airline
ticket, would be sent to the CBSA office at the Montreal Airport. Mr. Pereira told Mr.
Bassolé that he was to present himself to a CBSA officer at the Montreal Airport in order to obtain his
departure documentation and to verify his departure as scheduled. (Affidavit of
Manuel Pereira, sworn August 8, 2007, para. 10; Manuel Pereira’s Notes to File,
dated June 16, 2006, Certified Tribunal Record, p. 18.)
[11]
On
June 28, 2006, instead of presenting himself to the Montreal Airport, as Mr. Pereira had
instructed him to do, Mr. Bassolé attempted to leave Canada for the U.S. from the Ottawa Airport, in violation of the
condition of his release. He was placed under arrest and physically escorted to
the Montreal
Airport by two removals
officers. (Michel Renaud’s Notes to File, dated June 29, 2006, Certified
Tribunal Record, p. 14.)
[12]
Ms.
Ferzly was present with Mr. Bassolé at the Ottawa Airport when he was arrested and asked for
her $10,000 deposit back at that time, which was refused. She also asked if she
could bring him to the Montreal
Airport herself, which was
refused. (Affidavit of Najwa Ferzly, sworn January 15, 2007, paras. 57-60.)
[13]
In
response to Ms. Ferzly’s requests for the return of her deposit, Mr. Pereira
telephoned her to advise her that, as Mr. Bassolé had not complied with the
condition imposed on him, to present himself at the Montreal Airport, he would probably be
recommending that the deposit be forfeited. (Affidavit of Manuel Pereira, sworn
August 8, 2007.)
[14]
On
September 18, 2006, a letter was sent to Ms. Ferzly indicating that, as Mr.
Bassolé had not presented himself at the time and place to which the
immigration officer requested, it was CBSA’s intention to seize her $10,000
cash deposit. The letter gave her an opportunity to provide submissions as to
why the deposit should not be forfeited. (Letter dated September 18, 2006,
Certified Tribunal Record, p. 9.)
[15]
Ms.
Ferzly provided her submissions in a letter, dated October 13, 2006, in which
she argued that Mr. Bassolé did not breach any of his release conditions
“including this condition that you state was not met were indeed met with in
full.” (Letter dated October 13, 2006, Certified Tribunal Record, pp. 7 and 8.)
[16]
After
considering her submissions and all of the evidence, Mr. D’Aoust made the
decision to forfeit the $10,000 security deposit due to Mr. Bassolé’s breach of
the release condition that he “…present himself at the time and place that
an Officer or the Immigration Division requires him to appear to comply with
any obligation imposed on him under the act”. (Decision to forfeit, dated
November 6, 2006, Certified Tribunal Record, pp. 2 and 3.)
ISSUES
[17]
(1) Did
Mr. D’Aoust err in finding that Mr. Bassolé breached a condition of his
release?
(2) Was Mr.
D’Aoust’s decision as to the forfeit of the Applicant’s $10,000 cash deposit
properly made?
ANALYSIS
Determination that Mr.
Bassolé breached a release condition not patently unreasonable
[18]
The
finding that there has been a breach of a condition of release is a finding of
fact, and, therefore, is to be accorded significant deference. The applicable
standard is that defined in paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C., 1985, c. F-7. The Court can only intervene if it
considers that the decision has been based on an erroneous finding of fact that
was made in a perverse or capricious manner or without regard for the evidence.
This is the patent unreasonableness standard. (Kang v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 652, [2006] F.C.J. No. 826 (QL), para.
13; Uanseru v. Canada (Solicitor General), 2005 FC 428, [2005]
F.C.J. No. 532 (QL), para. 16.)
[19]
The
decision-maker is entitled to weigh the evidence and has done so in this case
to arrive at a finding of fact and should not lightly be set aside. Contrary to
Ms. Ferzly’s assertions, all evidence on record before Mr. D’Aoust clearly
demonstrates that, (a) a condition was imposed on Mr. Bassolé by
immigration officer, Mr. Pereira, that he “present himself at the time and
place that an immigration officer requires him to,” namely that he report to
the Pierre Elliott Trudeau Airport in Montreal, on June 28, 2006, to board a
flight at 22:05, bound to Burkina Faso, based on the airline ticket he
purchased and presented to secure his release from detention; and (b) that he breached
said condition by trying to leave the country via Ottawa Airport bound for
Boston. (Copy of airline ticket, Certified Tribunal Record at p. 19; Manuel
Pereira’s Notes to File, dated April 6, 2006 and his Notes to File, dated June
16, 2006, Certified Tribunal Record, pp. 18 and 20.)
[20]
The
conditions verbally communicated by the Board during the hearing are not the
only conditions imposed on Mr. Bassolé. The Order for Release or Imposition of
Conditions by the Immigration Division unequivocally sets out the condition
that Mr. Bassolé “present himself …at the time and place that an
officer…requires him to appear to comply with any obligation imposed on him
under the Act” as the first condition of Mr. Bassolé’s release. By signing the
Order for Release or Imposition of Conditions, Mr. Bassolé acknowledged this
was a condition of his release. (Order for Release or Order for Imposition of
Conditions, Certified Tribunal Record, p. 23.)
[21]
Furthermore,
Mr. Bassolé was ordered by the Board to present an airline ticket to secure his
release from detention. He presented a ticket for departure from Montreal to Burkina Faso, on June 28, 2006; but,
for this airplane ticket, Mr. Bassolé would not have been released. This ticket
was documented in Mr. Bassolé’s file. All subsequent instruction to Mr. Bassolé
was based on this very ticket. It was not open to him to unilaterally change
his departure plans. (The Board’s Decision at p. 3, Applicant’s Record, Exhibit
D; Copy of airline ticket, Certified Tribunal Record at p. 19; Manuel Pereira’s
Notes to File, dated April 6, 2006, Certified Tribunal Record, p. 20.)
[22]
Mr.
Pereira met with Mr. Bassolé on June 16, 2006 and confirmed that he was to
present himself at the Montreal Airport on June 28,
2006 in order to verify his scheduled departure from Montreal to Burkina Faso. (Manuel Pereira’s
Notes to File, dated June 16, 2006, Certified Tribunal Record, p. 18.)
[23]
Mr.
Ferzly admits that a condition of Mr. Bassolé’s release was to present himself
at a date and time required by an immigration officer in order to comply with the
obligation imposed on him under the Act. She stated that this condition
“worried her”. (Applicant’s Affidavit, sworn January 15, 2007, paras. 18
and 22, Applicant’s Record.)
[24]
Ms.
Ferzly also admits that Mr. Pereira met with Mr. Bassolé on June 16, 2006.
Furthermore, the officer’s notes to file clearly demonstrate that the
requirement to report to the Montreal Airport was communicated to Mr. Bassolé at that time.
(Applicant’s Affidavit, sworn January 15, 2007, para. 33, Applicant’s Record;
Manuel Pereira’s Notes to File, dated June 16, 2006, Certified Tribunal Record,
p. 18.)
[25]
Mr.
D’Aoust’s decision that Mr. Bassolé had breached a condition of release was not
based on any erroneous findings of fact, nor was it made in a perverse or
capricious manner without regard for the material before him. Based on the
evidence, Mr. D’Aoust’s finding that Mr. Bassolé breached a condition of his
release was not patently unreasonable and as such this Court should not
intervene.
Determination to forfeit
Applicant’s security deposit was properly made
[26]
The
standard of review for whether Mr. D’Aoust’s ensuing decision to forfeit Ms.
Ferzly’s security deposit was properly made is reasonableness. This decision is
a question of mixed law and fact that attracts considerable deference by the
Court. The Court should only intervene if Mr. D’Aoust’s decision is not
supported by any reasons that can stand up to a somewhat probing examination. (Khalife
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 221, [2006] F.C.J. No. 293 (QL) at
paras. 19-20 (T.D.); Kang, above at para. 17.)
[27]
On
its face, Mr. D’Aoust’s ensuing decision to forfeit the deposit was entirely
reasonable based on the evidence before him. There is no evidence on the record
in regard to extraneous considerations. It must be presumed that he considered
the totality of the evidence before him. (Chowdhury v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 363, [2002] F.C.J. No. 477 (QL).)
[28]
The
reason for requiring the payment of a deposit is to allow for the release of
individuals in immigration detention on terms that will ensure compliance with
immigration legislation and the conditions imposed on them. (Uanseru,
above at para. 18; Immigration and Refugee Protection Act, S.C. 2001, c.
27, subsection 58(3).)
[29]
By
signing the security deposit, Ms. Ferzly was aware that the consequence of Mr.
Bassolé’s breach of any of the conditions of his release was forfeiture of her
security deposit. (Security Deposit, Certified Tribunal Record, p. 22.)
[30]
Ms.
Ferzly was well aware that Mr. Bassolé breached a condition of his release by
not reporting to the Montreal Airport. She escorted Mr.
Bassolé to the Ottawa Airport and was present when
immigration officer, Mr. Renaud, informed Mr. Bassolé that he was to have
presented himself in Montreal. She asked for her
deposit back at that time. (Michel Renaud’s Notes to File, dated June 29,
2006, Certified Tribunal Record at p. 14; Affidavit of Najwa Ferzly, sworn
January 15, 2007, paras. 57-60.)
[31]
There
was no denial of procedural fairness. Ms. Ferzly was given the opportunity to
make submissions in regard to the impending forfeiture. She did so by providing
written representations in a letter, dated October 13, 2006, which Mr. D’Aoust
acknowledges in his decision. (Letter, dated September 18, 2006, Certified
Tribunal Record at p. 9; Letter, dated October 13, 2006, Certified Tribunal
Record at pp. 7 and 8; Decision to forfeit, dated November 6, 2006, Certified
Tribunal Record, pp. 2 and 3.)
[32]
Mr.
D’Aoust’s decision to forfeit the said security deposit was made in good faith.
There is no evidence of any malice on Mr. D’Aoust’s part in making the decision
to forfeit Ms. Ferzly’s security deposit. (Decision to forfeit, above.)
[33]
In
reaching his decision to forfeit the security deposit, Mr. D’Aoust considered
several factors which are referenced in his decision including:
(a) Mr.
Pereira communicated to Mr. Bassolé that he was to present himself at the
Montreal Airport in order to verify his
scheduled departure from Montreal to Burkina Faso;
(b) Mr.
Bassolé ignored these instructions and instead attempted to leave Canada from the Ottawa Airport to the U.S. but was refused entry;
(c) Mr.
Bassolé lied to the U.S. Immigration officials when he declared to them that he
never claimed refugee status in Canada;
(d) Mr.
Bassolé had to be placed under arrest at the Ottawa Airport in order to execute his
scheduled removal from Montreal on June 28, 2006.
(Decision to forfeit, dated November 6, 2006,
Certified Tribunal Record, pp. 2 and 3; Michel Renaud’s Notes to File, dated
June 29, 2006, Certified Tribunal Record, p. 14; Manuel Pereira’s
Recommendation of August 15, 2006, Certified Tribunal Record, pp. 10 and 11.)
[34]
Taking
all of these factors into consideration, Mr. D’Aoust decided that Ms. Ferzly’s
security deposit would have to be forfeited due to conditions imposed which had
been duly accepted. Under the circumstances, the decision was logical and reasonably
sound as it was based on all of the evidence on the record before him.
[35]
Furthermore,
Mr. D’Aoust’s decision was exercised in good faith, in accordance with the
principles of natural justice; none of the considerations were irrelevant nor
extraneous to the statutory purpose; therefore, this Court should not intervene.
CONCLUSION
[36]
For
all the above reasons, this application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application
for judicial review be dismissed;
2. No serious
question of general importance be certified.
“Michel M.J. Shore”
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