Date: 20010305
Docket: IMM-462-01
Neutral citation: 2001 FCT 143
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
WEI ZHENG
Respondent
REASONS FOR ORDER
[Delivered orally from the Bench at Vancouver, B.C.
on Friday, February 23, 2001, as edited]
LEMIEUX J.:
[1] These written reasons confirm those I gave orally on Friday, February 23, 2001, allowing this judicial review application by the Minister of Citizenship and Immigration (the "Minister") from the February 1, 2001 decision of Adjudicator O. Nupponen (the "Adjudicator") releasing Wei Zheng (the "respondent") from detention pursuant to subsection 103(6) of the Immigration Act (the "Act") following a detention review hearing held on January 30, 2001, his 25th such hearing. The respondent was self-represented and made no submissions.
[2] Mr. Zheng is a citizen of the People's Republic of China who arrived in Canada by boat on August 11, 1999 along with 130 other individuals. He has been in detention since then. In June 2000, he was found not to be a refugee by the Convention Refugee Determination Division and in September 2000, his application to be considered a member of the Post-Determination Refugee Claimants Class in Canada was rejected.
[3] On November 11, 2000, Mr. Zheng was served with a subpoena to appear at the trial of certain persons accused of organizing the voyage. The trial is to take place in Vancouver during the period May 21, 2001 to June 26, 2001.
[4] The reasons the Adjudicator released Mr. Zheng from detention was because he found that his rights under sections 7 and 12 of the Charter of Rights and Freedoms had been breached.
[5] In a previous detention hearing on December 4 and 5, 2000, Mr. Zheng was then represented by counsel who argued his continued detention was illegal. The Adjudicator, Lynda Mackie, after the December 2000 detention hearing, concluded Mr. Zheng's Charter rights had not been violated in the light of Justice Rothstein's decision in Sahin v. Canada (M.E.I.) (1994), 30 Imm.L.R. (2d) 33.
[6] Adjudicator Mackie, however, issued a warning in the following terms:
If the outstanding subpoena was the only bar to Mr. Zheng's removal or if immigration officials are not diligently following up on the request for a travel document because of the subpoena, continued detention under the Immigration Act would not be justified. It is therefore very important that both parties stay on top of this issue....
[7] A transcript of the January 30, 2001 hearing before the Adjudicator establishes the following context:
(a) the Minister's representative first addressed the Adjudicator saying the Ministry is requesting continued detention on the grounds that it believed Mr. Zheng has exhibited actions and statements that he will not report for removal, if released;
(b) the Minister's representative then made his submissions focussing on subsection 50(1) of the Act which he said prevents the Minister from removing him at this time. (Subsection 50(1) provides that "A removal order shall not be executed where (a) the execution of the order would directly result in a contravention of any other order made by any judicial body or officer in Canada");
(c) the Minister's representative said he wanted to clarify what he had said at the January 2, 2001 detention hearing about the department having applied for a travel document. He spoke of a December 1999 application to the Chinese authorities for a travel document for Mr. Zheng, a belief that the Chinese authorities were not acting on the application, and a new travel document application was on file but had not been submitted to the Chinese authorities because subsection 50(1) prevents his removal at this time;
(d) the Adjudicator questioning the Minister's representative about holding back on submitting the application for a travel document for Mr. Zheng.
[8] In his reasons for order releasing Mr. Zheng, the Adjudicator focussed on the subpoena matter and said "it is not a function of this tribunal to ensure the attendance of a detainee before other judicial or quasi-judicial tribunals". A warrant could be issued under the Criminal Code for this purpose.
[9] The Adjudicator then discussed subsection 50(1) of the Act and the Minister's diligence in pursuing the application to obtain travel documents for Mr. Zheng from the Chinese authorities. He discounted the application of subsection 50(1).
[10] The Adjudicator then conducted a Sahin analysis and concluded by finding a Charter breach even though he also found there was a risk Mr. Zheng would not appear for his removal, if released.
[11] Counsel for the Minister urged a number of grounds in support of the judicial review application including:
(a) breach of the principles of fairness by basing its decision on a section 7 Charter breach without giving the applicant an opportunity to be heard;
(b) error of law by applying the wrong test and taking into account irrelevant considerations.
[12] As I expressed when giving oral reasons for allowing the judicial review, I was satisfied in the circumstances of this case the Adjudicator's decision could not stand because, unlike the previous December 4, 2000 review hearing where both the Minister's and Mr. Zheng's counsel were present and argument made, at the hearing he presided, he gave no notice to the Minister a Charter issue would be considered; he did not invite Charter submissions from the Minister and none were made by the Minister's representative who had no opportunity to respond to the Adjudicator's concerns. Moreover, in the circumstances of the case, such Charter issues could not have been reasonably anticipated by the Minister's representative who had been led to believe the only issue related to Mr. Zheng's reporting for removal if released.
[13] It is fundamental, in my view, that Charter challenges be properly structured both from a factual point of view and from a legal point of view. Justification under section 1 may be an issue and the Minister has both the evidentiary and legal burden. This is the spirit of section 57 of the Federal Court Act requiring notice of constitutional questions. The parties said section 57 did not apply in the circumstances and I make no ruling. Nevertheless, the requirements of natural justice require no less when there is a Charter challenge outside the scope of section 57 of the Federal Court Act.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
MARCH 5, 2001
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