Date: 19980127
Docket: IMM-2615-97
BETWEEN:
ROBERTO SAN VICENTE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review of, and for an order setting aside, the decision dated June 9, 1997, by an adjudicator, acting pursuant to s. 103 of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act"), whereby it was determined that the applicant should remain in detention awaiting removal from Canada or other disposition of his case. By that decision it was determined that the applicant, who had been held in detention under the Act since May 1996, in the opinion of the adjudicator, is not likely to pose a danger to the public, but she was not satisfied that he is likely to appear for removal from Canada.
[2] Section 103 of the Act provides in part:
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103.(1) The Deputy Minister or a senior immigration officer may issue a warrant for the arrest and detention of any person where |
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(b) in the opinion of the Deputy Minister or that officer, there are reasonable grounds to believe that the person poses a danger to the public or would not appear for the examination, inquiry or proceeding in relation to the decision or for removal from Canada. |
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(3) Where an inquiry is to be held or is to be continued with respect to a person or a removal order or conditional removal order has been made against a person, an adjudicator may make an order for |
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(a) the release from detention of the person subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, ... |
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(b) the detention of the person where, in the opinion of the adjudicator, the person is likely to pose a danger to the public or is not likely to appear for the inquiry or its continuation or for removal from Canada; or |
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(c) imposing on the person such terms and conditions... |
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(6) Where any person is detained pursuant to this Act for an examination, inquiry or removal and the examination, inquiry or removal does not take place within forty-eight hours after that person is first placed in detention, or where a decision has not been made pursuant to subsection 27(4) within that period, that person shall be brought before an adjudicator forthwith and the reasons for the continued detention shall be reviewed, and thereafter that person shall be brought before an adjudicator at least once during the seven days immediately following the expiration of the forty-eight hour period and thereafter at least once during each thirty day period following each previous review, at which times the reasons for continued detention shall be reviewed. |
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(7) Where an adjudicator who conducts a review pursuant to subsection (6) is satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal, the adjudicator shall order that the person be released from detention subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond. |
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[3] The decision here questioned was rendered following earlier proceedings in this Court in which a previous decision of an adjudicator, to continue detention of the applicant, was the subject of judicial review, in Court file IMM-4088-96. The decision impugned in that application was set aside on consent, by Order of Mr. Justice Dubé dated May 12, 1997 and the matter was referred back for reconsideration. The decision resulting from that reconsideration, made by an adjudicator on June 9, 1997, is that now before this Court in this application.
Background
[4] The applicant is a citizen of Venezuela and of Trinidad. In May 1969 he became a permanent resident of Canada and he remained here and was married and had two children. He was divorced and in 1981 he returned to Venezuela, originally for a visit, but thereafter he remained for a number of years, to assist in caring for an ailing sister, to work and to develop business contacts for an export/import business. From time to time thereafter he travelled outside Venezuela, including several brief visits to Canada. By 1986 he had opened a business in Venezuela and had there entered a common law marital relationship in which he and his wife subsequently had two children.
[5] In 1989 the applicant returned to Canada as a visitor, using a false name and travelling on a false Venezuelan passport. In subsequent months he apparently used a number of aliases while in Canada and once, on return from a brief visit to the United States, he made misrepresentations to customs and immigration officials. In September 1989 he was arrested in Edmundston, New Brunswick, when he was found in possession of false passports in which the photographs of two drug traffickers, then incarcerated at Fredericton, had been superimposed, and he was also in possession of considerable equipment that a trial judge later concluded could be used to break into a secure building. At about the same time other persons, ultimately determined by the trial judge to be co-conspirators, were also apprehended in other vehicles which contained a collection of weapons that the trial judge subsequently characterized as a small arsenal with substantial fire power.
[6] The applicant was charged with his co-conspirators with conspiracy to effect a prison break and despite his not guilty plea he was convicted and sentenced to a term of nine years in prison. He appealed the conviction and sentence to the Court of Appeal of New Brunswick unsuccessfully, and that court's decision was affirmed by the Supreme Court of Canada on appeal. Throughout his trial and subsequent incarceration the applicant apparently maintained his innocence and claims to have had no real knowledge of the purpose of the operations in Canada of those convicted with him as co-conspirators.
[7] While he was incarcerated the applicant applied in 1991 for refugee status claiming that his life would be in danger should he be returned to Venezuela. Two of those convicted with him in New Brunswick were released and deported to Venezuela where in 1993 they are said to have been killed by the police in irregular circumstances. He served his sentence first at the Atlantic institution, then at Milhaven and Collins Bay before continuing on community parole at the W. P. Archibald Centre in Toronto where he lived for more than three years. During that time he worked and helped to support his wife and two children who had come to Toronto and had been found to be Convention refugees.
[8] In October 1994 an adjudicator, following an immigration inquiry, found the applicant to be a person described in paragraphs 27(2)(a) and 19(1)(c) of the Immigration Act. In the result the applicant lost his permanent residency status in Canada and the adjudicator issued a conditional deportation order. That decision was appealed but the appeal has apparently not yet been heard. On July 23, 1997 the Immigration and Refugee Board apparently determined that the applicant was excluded from having his refugee claim determined and that decision is the subject of an application for judicial review in Court file IMM-3402-97, for which his application for leave has not yet been determined.
[9] Following his detention under the Act in May 1996 that detention was the subject of reviews pursuant to s. 103, within a few days of his detention and thereafter on a regular 30-day basis, in accord with the Act. No argument is raised about the timeliness of this application dealing with the decision made in June 1997 even though under the Act his continuing detention would ordinarily require monthly reviews. Counsel for the respondent Minister indicated that the Court's decision in relation to this application would be accepted.
The adjudicator's decision
[10] By her decision the adjudicator ordered the continued detention of the applicant on the ground that she was not satisfied he would appear for removal from Canada. She did find that he is not likely to pose a danger to the public, a finding not earlier made by adjudicators who had conducted previous reviews of the applicant's detention and appear to have found that he did pose such a danger.
[11] In her decision the adjudicator refers to arguments of counsel for the applicant and of a senior immigration officer appearing for the Minister. In reviewing arguments for the applicant she notes that counsel referred to a number of matters, including jurisprudence, including the case of Sahin v. Minister of Citizenship and Immigration1 "in relation to an argument based on indefinite detention and a potential breach of Mr. San Vicente's Charter rights as a result noting in particular the list of factors set out by Justice Rothstein...that should be considered by an adjudicator in determining detention issues".
[12] The decision records that counsel also referred to the refugee hearing on the applicant's claim, which at that time was about to conclude with written submissions following nine days of hearings, and he referred as well to the outstanding appeal of the order issued earlier by an adjudicator, which appeal had not advanced. Counsel made reference to evidence about the applicant's good behaviour since his conviction, including evidence of his behaviour in and out of correctional institutions, which in counsel's view indicated that the applicant would not likely pose any threat to anyone. The adjudicator referred to evidence adduced from the Director of the half-way house where the applicant had lived for more than three years, to the evidence from a long time acquaintance of the applicant who was proposed as a potential surety if a release order were to be issued and to evidence called from the applicant's son about his father's participation in family life while he had been on day parole before his detention.
[13] In addition, as earlier noted the adjudicator summarized submissions of the Minister's representative at the detention review.
Issues
[14] When this matter was heard counsel for the applicant argued two issues. Those were:
| 1) the extent to which the guidelines set out by my colleague, Mr. Justice Rothstein in Sahin v. Canada (Minister of Citizenship and Immigration)2 were met in this case, and |
| 2) whether the decision to continue the applicant's detention was made with regard to the proper standard of evidence. |
In addition, in written argument it is urged that the length of the applicant's detention, to date and its potential for extension indefinitely contravenes ss. 7 and 12 of the Canadian Charter of Rights and Freedoms (the "Charter").
The guidelines suggested by jurisprudence
[15] In Salilar v. Canada (Minister of Citizenship and Immigration)3 I emphasized that an adjudicator concerned with a review of detention under s. 103 should consider only relevant factors in a hearing that is essentially de novo, reaching a decision on the evidence presented at that hearing and not simply by reference to findings of others in previous immigration hearings. In Sahin Rothstein J. suggested the following guidelines.4
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...To assist adjudicators I offer some observations on what should be taken into account by them. Both counsel for the applicant and respondent were helpful in suggesting a number of considerations. The following list, which, of course, is not exhaustive of all considerations, seems to me to at least address the more obvious ones. Needless to say, the considerations relevant to a specific case, and the weight to be placed upon them, will depend upon the circumstances of the case. |
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(1) Reasons for the detention, i.e. is the applicant considered a danger to the public or is there a concern that he would not appear for removal. I would think that there is a stronger case for continuing a long detention when an individual is considered a danger to the public. |
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(2) Length of time in detention and length of time detention will likely continue. If an individual has been held in detention for some time as in the case at bar, and a further lengthy detention is anticipated, or if future detention time cannot be ascertained, I would think that these facts would tend to favour release. |
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(3) Has the applicant or the respondent caused any delay or has either not been as diligent as reasonably possible. Unexplained delay and even unexplained lack of diligence should count against the offending party. |
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(4) The availability, effectiveness and appropriateness of alternatives to detention such as outright release, bail bond, periodic reporting, confinement to a particular location or geographic area, the requirement to report changes of address or telephone numbers, detention in a form that could be less restrictive to the individual, etc. |
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A consideration that I think deserves significant weight is the amount of time that is anticipated until a final decision, determining, one way or the other, whether the applicant may remain in Canada or must leave. This raises squarely the question of whether immigration proceedings should be expedited when persons are detained in custody under section 103. ... |
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[16] In my view, the guidelines suggested in Sahin are simply guidelines, intended by Rothstein J. to assist adjudicators, as his own introductory words make clear. I note that in Kidane v. Minister of Citizenship and Immigration5 Jerome A.C.J. distinguished the circumstances before him from those in Sahin in the following terms:
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...Unfortunately I cannot agree with the applicant's submissions. Moreover, these submissions are based on a case that is easily distinguishable from the instant matter. Mr. Sahin arrived in Canada without proper documentation and was immediately put into s. 103 detention after a conditional removal order was made against him. He was not a criminal nor was he found to be a danger to the public. Mr. Kidane, on the other hand, is a convicted drug trafficker guilty of at least 15 offenses. The Minister has formed the opinion that Mr. Kidane is a "danger to the public". The removal order issued against the applicant is final and effective. Once immigration officials are able to find a country that will take the applicant, he will leave Canada. ... |
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[17] For the applicant, it is urged that the guidelines set out in Sahin were not properly applied by the adjudicator in this case. Thus, it is urged that the first of the guidelines suggested in Sahin that if, as was found in this case, the applicant is found not to be a danger to the public that tends to lessen the necessity for continuing long detention simply to ensure availability for removal of the person detained. The length of time in detention and the indefinite time required for termination of proceedings to deal with all issues raised about the person's immigration status, factors arising in relation to the second of the guidelines, are here suggested to favour ending the detention of the applicant. He has now been held in detention since May 1996 and has an outstanding appeal of his deportation order as well as an application for leave and for judicial review of the determination that he be excluded from consideration. Those proceedings it is said may take an indefinite time. I note that the adjudicator did comment that "It may well take a long period of time before all proceedings in this case are concluded... The time it may take until all issues are dealt with however is but one of the issues I must look at though. ..." Counsel urges that when one considers the time likely to be required to deal with proceedings concerning the applicant's situation, and the testimony of the applicant's son at the hearing, referred to by the adjudicator, about the importance of having the applicant at home, as he had been able to be while living at the halfway house before his detention, the conclusion can only be that the adjudicator did not properly consider these factors.
[18] In regard to the fourth guideline from Sahin, counsel urged at the hearing of this application that possible alternatives to continuing detention were not here considered. In particular the adjudicator's decision makes no reference to possible oversight of the applicant by his former parole supervisor, if he were released, and no reference was made either to the prospect, offered by a third party, of employment in Canada for the applicant. Nevertheless, I note that the adjudicator expressly states in her decision:
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...The availability of alternatives has been considered and in this case I do not consider the guarantees of Mr. [X] [a friend of the applicant who was heard and prepared to post a bond] to be sufficient, his good intentions notwithstanding. I simply do not believe that Mr. San Vicente would appear for removal from Canada - especially if removal were planned to Venezuela. |
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In my view failure of the adjudicator to refer expressly in the decision to every factor that might be supportive of the applicant's position, or of the respondent Minister's concerns, does not mean those factors were ignored.
[19] In my view, reading her decision as a whole, the adjudicator in this case did pay sufficient attention to the guidelines suggested in Sahin, even though, as a matter of law, that was not required. In the decision a section headed "The Arguments" includes reference as noted, to a summary of submissions by counsel for the applicant, including specifically counsel's reference to Sahin and to the list of factors suggested by Rothstein J. for consideration, counsel's review of the indefinite time expected for determination of immigration proceedings, counsel's reference to evidence of the applicant's good behaviour, and the evidence adduced in support of the applicant from his intended surety if he were released, and from the applicant's son, as well as counsel's submissions that if ordered to return to Venezuela the applicant would go. In my view, the essence of the applicant's argument, about the assessment by the adjudicator of the factors set out in the guidelines of Sahin, is that these were not weighed properly in reaching the decision.
[20] That is not a basis on which this Court would intervene. The weight to be given to matters in evidence is for the adjudicator to determine. It is a matter of discretion, and in the absence of an error of law or a capricious finding of fact the Court will not intervene.6 The only other circumstance that could warrant action by the Court is where the decision is patently unreasonable in light of the evidence before the adjudicator.
The evidence relied upon by the adjudicator
[21] It is urged that the adjudicator should not have relied upon a number of factors that are referred to in the portion of her reasons headed "Decision". There she makes reference to the applicant's record of engaging in deception in Venezuela and on his return to Canada in 1989, to findings that he was not a credible witness, made by the trial judge in 1990 when he was convicted and again four years later by an adjudicator conducting the immigration inquiry leading to cancellation of his permanent resident status and the issuing of a removal order. The decision refers as well to his repeatedly saying he cannot return to Venezuela in view of consequences that would befall him there, to the lack of evidence of any interest on his part in returning to Trinidad where he was born, to his family now resident in Canada and his relatives in this country, and after referring to other factors including the time he might be in detention until all issues are resolved, and to the availability of alternatives to detention, the adjudicator concludes she is not satisfied the applicant would be available for removal if his detention were ended. She did conclude, on the evidence proffered that it was not likely he posed a danger to the public.
[22] I agree that certain factors referred to by the adjudicator are not relevant to the issues before her. In particular, the reference to the adjudicator's inference that the applicant's common law spouse may have misrepresented her intentions on arrival in Canada, a matter that was no bar to her gaining of refugee status thereafter, was irrelevant, for that had no bearing on the likelihood of her husband's appearing for removal if he were released. His wife's right, or lack of it, to travel with him to Trinidad, should he be deported there, was also irrelevant. I agree as well that substantial weight appears to be put on findings of the lack of credibility of the applicant in previous proceedings, rather than on the adjudicator's own findings, if any, from the evidence before her. Nevertheless, despite this criticism, her decision does refer to, and assess, much of the evidence that was presented, and the adjudicator is entitled to consider the applicant's past record where that is in evidence before her for consideration. There is no submission that her decision was reached in bad faith, or without regard to the totality of evidence, at least some of which was supportive of the decision reached. I note that the conclusion that the applicant did not pose a danger to the public was reached despite determinations made at previous reviews. In that regard the applicant was successful and that aspect of the adjudicator's decision is not here questioned.
[23] The burden was on the applicant to satisfy the adjudicator both that he is not now likely to pose a danger to the public and that he is likely to appear for removal. On the second matter, that he is likely to appear for removal, the adjudicator was not satisfied. While on the evidence I might have reached a different conclusion, that is not the test. The Court is not persuaded that in reaching her decision there was any error of law, or that it was a capricious finding, or that it was reached in bad faith, or that it was patently unreasonable in light of the evidence before the adjudicator.
The Charter arguments
[24] Charter arguments are referred to in written argument, incorporating the same arguments as were earlier advanced in respect of proceedings in file IMM-4088-96, which were dealt with on consent by Order of Dubé J. The arguments were not made when this application was heard. The principle submission is that the length of time the applicant has been detained and the time likely to be required to deal with his status through immigration proceedings is not in accord with the principle of fundamental justice, and constitutes infringement of his rights, under s. 7 of the Charter. I note that while reference is made also to s. 12 in written submissions in this application, no argument is advanced in regard to s. 12.
[25] I am not persuaded the length of detention served, and possibly to be anticipated, does constitute, at this stage, an infringement of the applicant's Charter rights under s. 7.
Conclusion
[26] In the result, the application is dismissed.
Judge
OTTAWA, Ontario
January 27, 1998.
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1. Referred to in the Adjudicator's decision, June 9, 1997, at p. 5, cited below, note 2.
2. [1995] 1 F.C. 214, (1994), 85 F.T.R. 99, 30 Imm. L.R. (2d) 33, affirmed (1995), 184 N.R. 354, 97 F.T.R. 80 (note), 31 C.R.R. (2d) 374 (C.A.).
3. [1995] 3 F.C. 150, 97 F.T.R. 110, 31 Imm. L.R. (2d) 299 (T.D.).
4. Supra, note 1, [1995] 1 F.C. at 23.
5. Unreported, July 11, 1997, Court file no. IMM-2044-96 (F.C.T.D.).
6. Arruda v. Canada (Minister of Citizenship and Immigration) (1994), 27 Imm. L.R. (2d) 154 (F.C.T.D.).
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