Docket: IMM-4024-17
Citation:
2017 FC 918
Ottawa, Ontario, October 17, 2017
PRESENT: The
Honourable Mr. Justice Lafrenière
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BETWEEN:
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MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Applicant
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and
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SERGIO
RIGOBERTO SORIA TORRES
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review on
behalf of the Applicant, the Minister of Public Safety and Emergency
Preparedness [the Minister], of a decision of a member [the Member] of the
Immigration Division [ID] of the Immigration and Refugee Board [IRB] dated
September 19, 2017 wherein the Member ordered the release of the Respondent,
Sergio Rigoberto Soria Torres, from immigration detention. The Member ordered
that the Respondent be released on certain conditions, including that a
CDN$1600 cash bond be posted by his cousin who resides in the United States of
America [US] and that the Respondent report bi-weekly in person to the Canada
Border Services Agency [CBSA].
[2]
For the reasons that follow, I find that the
Member’s decision to release the Respondent from detention must be set aside as
no clear or compelling reasons were provided by the Member for departing from
his own earlier decision rejecting a similar cash bond as inadequate. The
Member also failed to reasonably consider whether there were any elements that
could assist in determining the length of time that the Respondent’s detention
was likely to continue, as required by section 248 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [IRP Regulations]. Moreover,
the Member failed to explain how the fact that the Respondent had appealed his
negative refugee claim to the Refugee Appeal Division [RAD] of the IRB was a
mitigating factor that somehow lowered the Respondent’s flight risk. The application
is accordingly granted.
II.
Facts
[3]
The Respondent is a citizen of Mexico. In 1995,
at the age of 18, he entered the US by avoiding examination and remained in
California as an undocumented alien until he was arrested on June 3, 2010, by
agents of the US Drug Enforcement Agency. The Respondent stated that he had
agreed to a friend’s offer to water and harvest marijuana plants in a
large-scale outdoor grow operation for $10,000 a month. The CBSA received
information that this was a grow operation with upwards of 4600 plants. In
accordance with a plea agreement, the Respondent was convicted of the offence
of using a communications facility in the commission of drug trafficking. He
was sentenced to 48 months in a US federal prison, with credit for time served,
and served 42 months before being deported to Mexico in December 2014.
[4]
On April 28, 2017, the Respondent arrived at the
Vancouver International Airport from Mexico and immediately sought protection
in Canada. In several subsequent interviews, the Respondent answered all
questions without evasion, providing information involving his undocumented
status in the US, his criminal conviction there, and his subsequent deportation
to Mexico.
[5]
The Respondent was detained upon his entry to
Canada. His first detention review was on May 2, 2017, at which time an ID
member made an order for his release with terms and conditions. The Minister
sought a stay of the release order pending disposition of the application for
leave and for judicial review of the detention release decision in Court File
No. IMM-1988-17. Madam Justice Catherine Kane granted an interim stay on May 2,
2017 and the stay was continued on May 5, 2017 pending a final determination of
the application for judicial review.
[6]
Justice Kane concluded that the Minister has
established that he would suffer irreparable harm between now and the time that
the application for judicial review was finally determined in that the
integrity of the immigration system would be jeopardized given the Respondent’s
immigration history in the US, that the Respondent had no ties to Canada, no
family or other contacts in Canada, and that the Respondent may have access to
modest resources, which could result in his leaving the area.
[7]
The leave application was not determined as the
Respondent’s detention was continued by a subsequent decision of an ID member
on May 9, 2017 on the ground that the Respondent was unlikely to appear for his
admissibility hearing.
[8]
The Respondent became the subject of a report
under section 44 of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], stating he was inadmissible to Canada under paragraph 36(1)(b)
of IRPA due to his conviction in the US. The report was referred to the ID for
determination. On May 15, 2017, an ID member found that the Minister had not
established that the Respondent was inadmissible for the reason given in the
Section 44 report and that he was therefore not inadmissible to Canada for
serious criminality. The Respondent was thus eligible to make a protection
claim to the Refugee Protection Division [RPD] of the IRB. This ID decision has
been appealed by the Minister to the IAD, which has set a timeline for written
submissions, with a final reply from the Minister due by November 1, 2017.
[9]
On May 30, 2017, an ID member ordered the
Respondent’s detention to continue on the ground that he was unlikely to appear
for removal.
[10]
The next detention review was held on June 27,
2017 by the same member who made the decision that is the subject of the
present application for judicial review. The Member heard oral evidence from
the Respondent, as well as from his cousin living in the US, who offered to put
up a cash bond of US$1400 or CDN$1800 to secure the Respondent’s release. The
Respondent was again ordered detained on the ground that he remained a flight
risk. The Member expressed concern that while the cash bond offered was a
reasonable amount of money from the perspective of the Respondent’s cousin, it
was not a significant amount that would make the Respondent “think twice about walking away from conditions and not
showing up for [his] removal.”
[11]
Thirty-day detention reviews were conducted on
July 25 and August 22, 2017, and the Respondent was ordered detained on the
same grounds as before.
[12]
In a decision communicated to the Respondent on
or about August 18, 2017, the RPD refused his protection claim. The Respondent
subsequently appealed the decision to the RAD and the appeal is still
outstanding. The departure order made against the Respondent is not enforceable
unless and until the RAD dismisses his appeal.
[13]
The Respondent appeared again before the ID at
the next detention review on September 19, 2017, which resulted in the decision
that is the subject of the present application. The Respondent was not
represented by counsel at the hearing. At the hearing, when asked by the Member
if Minister’s counsel knew the timelines for the RAD, counsel replied that he
did not know what length of time it would be for the RAD to render a decision.
[14]
The Member stated that it was known at the last detention
review that the Respondent’s refugee claim had failed, however it was not known
at the time whether or not the Respondent would apply to the RAD. The Member
observed that the Respondent had since applied to appeal the negative decision
and that submissions were due within a week. He added that he too was not
familiar with the RAD timelines.
[15]
The Member noted that the Minister was also
appealing the favourable ID decision concerning the paragraph 36(1)(b)
of IRPA allegation and that the appeal to the IAD was ongoing. The
Member added that it was not clear when the IAD would issue a decision.
[16]
In light of these “new
circumstances”, and in particular because it was unknown when the
refugee appeal process would be completed, the Member indicated that he would
look more favourably on the US$1400 bond that was previously proposed to be
paid by the Respondent’s cousin, which he converted to a CDN$1600 bond. The
Member stated that he believed the amount would be a financial difficulty for
the Respondent’s cousin and that it would increase the responsibility on the
Respondent to ensure that the bond is not forfeited. The Member also ordered
that the twice-weekly reporting requirements to CBSA would reduce the
likelihood that the Respondent would not appear for removal.
[17]
The Member explained that the Respondent has an
interest in seeing the refugee appeal go forward as it has the potential to
either have the matter sent back for re-determination and the possibility of a
positive claim, “[b]ut more importantly, it’s simply
unknown when the refugee appeal will be completed, it’s better for all parties
that you [the Respondent] live outside of detention and that you remain in
regular contact with the Canada Border Services Agency.”
[18]
On September 27, 2017, Madam Justice Cecily
Strickland issued an interim order staying the Respondent’s release pending the
determination of this application for judicial review. Justice Strickland
concluded that a serious issue existed as “while the
Member might reasonably consider the increased length of the detention, the
length of detention has no apparent bearing on whether the Respondent would
respect the bond which the Member, as well as another member, had previously
found to be insufficient and the amount of which had not changed.” She
further added that the Member did not provide clear and compelling reasons to
support this reversal in position regarding the sufficiency of the bond.
III.
Analysis
[19]
The applicable law and legal principles are not
in dispute in this case. It is well established that detention review decisions
of the ID attract deference and are reviewed on the standard of reasonableness
(see Yan v Canada (Citizenship and Immigration), 2015 FC 1125 (CanLII)
at para 15).
[20]
Although prior decisions to detain an individual
are not binding, clear and compelling reasons must be set out if an ID member
departs from prior decisions to detain (see Canada (Minister of Citizenship
and Immigration) v Thanabalasingham, 2004 FCA 4 (CanLII) at paras 9-10 [Thanabalasingham]).
[21]
Section 248 of the IRP Regulations lists
the factors that the ID must consider before making an order for detention or
release if it is determined that there are grounds for detention:
(a)
the reason for detention;
(b)
the length of time in detention;
(c)
whether there are any elements that can assist
in determining the length of time that detention is likely to continue and, if
so, that length of time;
(d)
any unexplained delays or unexplained lack of
diligence caused by the Department or the person concerned; and
(e)
the existence of alternatives to detention.
[22]
In addition to the mandatory factors found in
section 248 of the IRP Regulations, the ID may consider other relevant factors
in balancing the competing liberty interests of a detainee and the public
interest in upholding the law.
[23]
I preface my analysis by noting that the
Member’s decision is not laid out in the same order as his prior decision or
those of the other ID members who conducted detention reviews. The usual
pattern is to lay out reasons why, in cases where flight risk is alleged, that
a flight risk is found. The member then proceeds to deal with the factors set
out in section 248 of the IRP Regulations.
[24]
The Member did not expressly deal with the
grounds for determining that there was a flight risk or the length of the
existing detention in his reasons. The Respondent submits that it is implicit
that the Member made a determination that a flight risk exists. He further
submits that the Member implicitly dealt with the length of time that the
Respondent had been in detention and that his focus was on the uncertainty of
when the RAD might render a decision on the Respondent’s appeal. While that may
be, these types of gaps in the reasons are indicative of other gaps in the
analysis by the Member in this case.
A.
The bondsperson and bond
[25]
At the June 27, 2017 hearing, the Member found
the proposed bondsperson, the Respondent’s cousin, to be credible after having
heard him in order to assess the influence that the cousin and his putting up a
bond may have on the Respondent. Although he considered the cousin to be
appropriate and his relationship to the Respondent to be “not insignificant”, the Member concluded that the
proposed cash bond was insufficient. He now concludes, three months later, that
the cousin and the proposed bond should be looked at in a more favourable light
based on “new circumstances”.
[26]
The Member failed, however, to provide clear and
compelling reasons for departing from his earlier finding. In his decision
dated June 27, 2017, the Member found that although the proposed amount of bond
money (US$1400 which he equated to CDN$1800), was a reasonable amount of money
from the Respondent’s cousin, it was not a significant amount. The Member
concluded that if forfeit, the proposed bond was not such a great amount that
the Respondent would not eventually be able to pay it back and not enough to
cause the Respondent “to think twice about walking away
from conditions and not showing up for [his] removal.” The Member voiced
concerns about the time spent by the Respondent without status in the US and
the fears he expressed of returning to Mexico.
[27]
Notwithstanding, the Member ordered the
Respondent’s release at the September 19, 2017 hearing with an even smaller
bond from the same bondsperson. The Member gave no analysis of any change in
circumstances regarding the amount of money or eligibility of the bondsperson.
His change of heart regarding the suitability of the bondsperson and the amount
of the bond is unexplained and the reasons lack the necessary justification,
transparency, and intelligibility required for the Court to understand why the
Member so concluded.
[28]
At the hearing of this application, I questioned
whether the Respondent’s cousin, a non-Canadian citizen who is not a permanent
resident or residing in this country, was eligible to post a cash bond pursuant
to paragraph 47(2)(a) of the IRP Regulations. Counsel for the Respondent
submitted that this provision applies only to performance bonds, or guarantees.
However, in Canada (Citizenship and Immigration) v B147, 2012 FC 655 (CanLII)
at para 50, Mr. Justice Donald Rennie found that paragraph 47(2)(a)
would preclude a bondsperson from posting a bond as they were neither a
Canadian citizen nor a permanent resident physically residing in Canada.
However, as the Minister did not raise the issue before the Member, I express
no view on this matter.
[29]
In a judicial review, there is often a question
of how far a reviewing court can look into the record for reasons that were not
stated by a decision maker. Reasons may not include all of the arguments,
statutory provisions, jurisprudence, or other details a judge may have
preferred, but that does not impugn the validity of the reasons or the result
under a reasonableness review (see Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII) at para
16).
[30]
According to Dunsmuir v New Brunswick,
2008 SCC 9 (CanLII) at paras 46-51 [Dunsmuir], a decision will fail to
meet the requirements of the reasonableness standard of review where it lacks
the “existence of justification, transparency and
intelligibility within the decision-making process” and does not fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law.
[31]
The reasons must allow a reviewing court to
understand why a tribunal made the decision and permit a court to determine
whether the conclusion is within a range of acceptable outcomes. As the
Member’s reasons do not permit the Court to understand how the Member made
material findings of fact and law in assessing the suitability and eligibility
of the bondsperson, the decision must accordingly be quashed and set aside.
[32]
The Member committed two other significant
errors that render his decision unreasonable.
B.
Level of flight risk arising from the Respondent’s
appeal to the RAD
[33]
First, the Member concluded that the fact that
the Respondent had appealed the negative RPD decision to the RAD and that
submissions were due shortly constituted new circumstances which justified
revisiting alternatives to detention. The Member failed to explain, however,
how the Respondent’s appeal of a negative decision could be interpreted as
reducing his flight risk. The level of risk was at least the same as when the
Respondent was awaiting determination of his protection claim before the RPD.
[34]
The Member noted that the Respondent would not
be removable until the RAD process was completed. However, the removal order
was also not in force while the Respondent’s refugee claim was pending at the
RPD. If his RAD appeal is denied, the Respondent will be the subject of an
enforceable removal order. Given that the Respondent was found to be a flight
risk at his detention reviews on May 30, June 27, and July 25, 2017, despite
not being removable due to his refugee claim pending before the RPD, it is
difficult to understand how the Member concluded that the subsequent appeal to
the RAD somehow militated in favour of the Respondent.
C.
Refugee Appeal Division timelines
[35]
Second, the Member stated that he was not
familiar with the RAD timelines in justifying his decision to release the
Respondent from detention. The absence of information regarding the timelines
for completion of the RAD process appears to have been a determinative factor
for the Member.
[36]
Unlike in previous detention reviews, the
Minister’s counsel was unable to provide a specific timeframe within which the
next step in the protection claim would be completed. However, as noted by
Madam Justice Strickland in her September 27 Order, the Respondent’s appeal to
the RAD was perfected on September 23, 2017. Subsection 159.92(1) of the IRP
Regulations clearly states that “the time limit for the
RAD to make a decision on an appeal is 90 days after the day on which the
appeal is perfected.” It follows that the RAD had a statutory obligation
to render a decision by December 23, 2017, subject to the exception set out in
subsection 159.92(2).
[37]
In my view, the Member unreasonably found that
the RAD timelines were unknown. If the law assumes, as it does, that the
ordinary citizen is deemed to know the law, it can be fairly assumed that ID
members charged with the administration of IRPA and its regulations should be
deemed to know the law which they are directly and specifically charged with
administering.
[38]
In the end, the Member failed to properly
consider the factor in section 248(c) of the IRP Regulations. By
ignoring a substantive provision of his home statute, the IRP Regulations, in
making a determinative finding as to the length of time that detention is
likely to continue, the Member made an error with respect to the facts and the
law that cannot stand.
IV.
Conclusion
[39]
For the above
reasons, the application for judicial review is granted. As the next detention
review is imminent, no purpose would be served by remitting the decision back
to the Member for re-consideration. No question for certification has been
proposed.
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