Canada (Minister of Citizenship and Immigration) v. Zhang, 2001 FCT 521

Date: 20010523

Docket: IMM-2499-01

Neutral Citation: 2001 FCT 521

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

and

ZU FA ZHANG

Respondent

                                                    REASONS FOR ORDER

PELLETIER J.

[1]              On May 18, 2001 an adjudicator ordered that Ai-Ming Zhang and Zu Fa Zhang could be released from detention upon posting of a security deposit by "anyone" in the amount of $5,000 in the case of Zu Fa Zhang and $10,000 in the case of Ai-Ming Zhang. The Minister gave notice same day of an intention to apply for a stay of the adjudicator's order noting that the situation was urgent because the next detention review was scheduled for May 23, 2001 but nothing occurred until May 22, 2001. On May 22, counsel for the Minister and counsel for the respondents appeared. Counsel for the Minister advised the court that since the next detention review was scheduled to take place the next day, the Court should hear the stay application, the leave application and the judicial review application since there was no other possibility of concluding the proceedings before the next day's detention review made them moot. Counsel for the respondents agreed to proceed in that fashion.

[2]              It is apparent that where the Minister seeks a stay of an adjudicator's decision to release an individual from detention at the 48 hour detention review provided in subsection 103(6) of the Immigration Act ("the Act"), the stay and the judicial review application itself will have to be heard within a 7 day period. This is so because another detention review must be held within 7 days of the first review. Once that review occurs, the order made after the 48 hour review is without effect and a judicial review of that order is moot. In those circumstances it would be helpful to the Court if counsel filing the Notice of Application would advise the Court that a hearing date for the judicial review will be required within the 7-day period.

[3]              The facts very briefly stated are that the two respondents were among a group of 36 stowaways who were discovered in a shipping container aboard the M.V. Pretty River at Vancouver on April 10, 2001. The container in which they were concealed was consigned to Long Beach California which was the final destination of the voyage. Upon discovery, the stowaways were taken into custody by immigration officials and were detained pursuant to subsection 103.1(1) of the Immigration Act ("the Act") which permits the detention of persons in order to verify their identity. While in detention they were interviewed on several occasions by immigration officers who attempted to confirm the individuals' identity as well as the circumstances surrounding their departure from China and their intended destination. In these two cases, the notes of the interviews contained all or substantially all of the following elements, which are taken in this case from the record relating to Ai Ming Zhang:

-          The container in which he was found was consigned to Long Beach California.

-          He was only discovered in this container before arriving in Canada because a crew member on the vessel had heard human voices coming from the container.

-          He has endured horrendous conditions locked in a shipping container for two weeks in order to reach the U.S.A.

-          He has no funds available to support himself. He arrived with only ___ (currency)...

-          He attempted to enter Canada illegally.

-          He did not make an application for nor has be obtained a Visa of Canada as required by the Act.

-          He is not in possession of a passport or travel document issued by his country of origin

-          He has place himself in the hands of a criminal smuggling organization in order to effect his journey.

[4] In the case of Ai Ming Zhang, the notations which are peculiar to his situation are the following:

-          He stated he was planning to go to the U.S.A.

-          He has a younger brother and a sister in the U.S.A.            

-          His wife told me that his younger brother owns a restaurant in the U.S. and wants him to come to work for him.

-          He is unemployed in China.

-          He has stated that his reason for coming is to get a job and make money because he has a lot of debts.

-          His wife told me that he has no debts.

-          He has indebted himself to the criminal smuggling organization for $42,000 U.S.

-          He was previously deported back to China from Japan where he also illegally travelled.

[5]    In the case of Zu Fa Zhang, the information which relates to his situation is as follows:

-    He has given his resident i.d. card to an agent of this criminal smuggling organization.

-    He has a brother in the U.S.A. in New York and tried to conceal this fact in his preliminary interviews.

-    His father told me that Mr. Zhang was going to join his brother in New York where there is a job waiting for him.

-    His father has told me that Mr. Zhang has several other relatives in the U.S. besides his brother but only some remote relatives in Canada.

-          He has indebted himself to the criminal smuggling organization for $30,000 U.S., this organization has already contacted Mr. Zhang's family for repayment.

-          He has stated that the knows he does not qualify as a refugee but has made a claim anyway.

[6] After detention reviews on April 18, April 25, and May 2, pursuant to subsection 103.1(4) of the Act, notice was given on May 15 that continued detention would now be sought under section 103 of the Act. Detention under section 103 is authorized under certain conditions:

(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

(a) the release from detention of the person, 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;

(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

(c) the imposition of 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.

(3) Dans le cas d'une personne devant faire l'objet d'une enquête ou d'une enquête complémentaire ou frappée par une mesure de renvoi ou de renvoi conditionnel, l'arbitre peut ordonner_:

a) soit de la mettre en liberté, aux conditions qu'il juge indiquées en l'espèce, notamment la fourniture d'un cautionnement ou d'une garantie de bonne exécution;

b) soit de la faire garder, s'il croit qu'elle constitue vraisemblablement une menace pour la sécurité publique ou qu'à défaut de cette mesure, elle se dérobera vraisemblablement à l'enquête ou à sa reprise ou n'obtempérera pas à la mesure de renvoi;

c) soit de fixer les conditions qu'il juge indiquées en l'espèce, notamment la fourniture d'un cautionnement ou d'une garantie de bonne exécution.

[7]              The conditions governing release from detention are found at subsection 103(7):

(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.

(7) S'il est convaincu qu'il ne constitue vraisemblablement pas une menace pour la sécurité publique et qu'il ne se dérobera vraisemblablement pas à l'interrogatoire, à l'enquête ou au renvoi, l'arbitre chargé de l'examen prévu au paragraphe (6) ordonne la mise en liberté de l'intéressé, aux conditions qu'il juge indiquées en l'espèce, notamment la fourniture d'un cautionnement ou d'une garantie de bonne exécution.

[8]              The timing of the detention reviews is set out at subsection 103(6)

(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.

(6) Si l'interrogatoire, l'enquête ou le renvoi aux fins desquels il est gardé n'ont pas lieu dans les quarante-huit heures, ou si la décision n'est pas prise aux termes du paragraphe 27(4) dans ce délai, l'intéressé est amené, dès l'expiration de ce délai, devant un arbitre pour examen des motifs qui pourraient justifier une prolongation de sa garde; par la suite, il comparaît devant un arbitre aux mêmes fins au moins une fois_:

a) dans la période de sept jours qui suit l'expiration de ce délai;

b) tous les trente jours après l'examen effectué pendant cette période.

[9]              Accordingly, upon notice that detention was now sought under section 103, a hearing was held on May 16 and May 18 at the conclusion of which the Adjudicator made an order authorizing the release of the respondents. The court has no evidence before it of the proceedings before the Adjudicator as no transcript was produced. The court has a transcription of a recording of the adjudicator's reasons which are some 19 pages in length.

[10]            The conclusions which the Adjudicator reached and which are material to these proceedings are the following:

-          He concluded that both Ai Ming Zhang and Zu Fa Zhang were likely to report [for removal] and he would therefore be ordering release on that basis.

-          The test is the balance of probabilities.

-          He assessed the credibility of the two individuals and found that there was no evidence that they were untruthful or misleading.

-          He rejected evidence tendered by the Minister tending to show that persons from a particular region of China are a greater risk of not appearing than perhaps other refugee claimants from around the world. He rejected evidence that in the five incidents involving groups of immigrants arriving in Canada by sea since 1999, 167 of 267 persons released have disappeared on the ground that the meaning of "disappeared" was unclear and that the evidence consisted of a simple tabulation rather than statistics.

-          He questioned the notion that everyone who belongs to a particular group will approach things in a certain way.

-          He concluded that the travellers overall goal was to escape China not to reach the U.S.A. If they landed in Canada, so be it. If they landed in the U.S.A., so be it.

-            The fact that the individuals have a concern about returning to China simply confirms that they are refugees and does not mean they will not report for removal.

-          He found that Zu Fa Zhang has a good impression of Canada and believed him when he said he did not have a job waiting for him in the United States.

-          He found that Zu Fa Zhang had several friends in Toronto to stay with and a cousin of his mother in Toronto to provide him with support.

-          He found that Ai Ming Zhang was a trustworthy individual because he had voluntarily departed Japan, to which he had travelled, when his refugee claim was refused.

-          He found that it was contrary to the respondent's interests to go underground to be indentured to the snake heads because that would mean that they would make little money, (which is the connotation of being indentured), whereas if they had work permits in Canada they could work legally and make more money so as to pay down their debt faster. In addition they would qualify for social benefits.

[11]      The following passages are important enough to be quoted verbatim:

"It is in fact not the only thing you can do [going underground in the U.S.] and my view is that because both of you are likely to report as required I will give you that opportunity. In both cases I have been convinced that neither of you fit into a general profile into which it was invited that you did belong. In both cases you have places to go and people to support you. In both cases homes have been offered. And in my view acceptance of the bonds is acceptable to provide further incentive that the terms and conditions are complied with. It is therefore the combination of all of the terms and conditions which lead me to the conclusion that I do today."

[12]            Following this conclusion, the Minister's representative made representations as to the amounts of the security deposits, suggesting that they should be in some proportion to the amount of the debt to the snakeheads and said that he wished to cross-examine the persons posting the security deposit (" the sureties"). Counsel for the respondents made submissions to the effect that each respondent had a brother in the U.S. who would provide the funds to post the security deposit. It was noted that Zu Fa Zhang did not in fact know the name of his mother's cousin and didn't have her phone number in Toronto but he had the number of a friend. The adjudicator then dealt with these issues:

"Minister's counsel suggested that he wished an opportunity to cross-examine the bondspersons. Pursuant to the Immigration Act, I have the authority to determine procedures in here. Of course in accordance with the rules of natural justice, etc. Mr. Starr was given the opportunity in his reply to address such matters. That is the core to making my decision. He chose not to do that. His suggestion to cross-examine was after my decision had been rendered. That is clearly not the correct place conduct cross-examination. In any case, I was satisfied without delving into the inushi [minutiae?] of the backgrounds of the bondspersons etc. that these two individuals are likely to report. Apart from establishing very close links to bondspersons etc.,in my view these are credible individuals. Who are more likely than not are going to live up to their obligations. Today I do not hinge on the relationship to bondspeople. There would be no point in examining the bondspersons. It has been pointed out to me that the funds will be coming from relatives and I accept that. ... Any person may post the bond in favour of these individuals."

[13]            The grounds of review which were urged upon me were that the form of order which was completed by adjudicator contained an error of law because at the place in the form which called for the name of the person posting the security deposit "anyone" was entered. Secondly, the decision amounted to a denial of natural justice because the Minister's representative had not been allowed to cross examine the persons posting the bonds. And finally, it was suggested that the decision was unreasonable because it ignored the evidence of the respondents' links to the United States in favour of very tenuous links to Canada, it ignored evidence suggesting a significant likelihood of failure to appear for removal and it ignored evidence of attempts at deception which had been noted by the Immigration Officer who interviewed them.

[14]            In the absence of reference to a statutory authority which would make the contents of a form determinative of the substantive law on a point, I am unwilling to decide this matter on the basis of the manner in which the form containing the order was completed. Counsel was not able to provide me with such authority.

[15]            The standard of review of the adjudicator's decision is no less than reasonableness. I find that the adjudicator took a remarkably generous view of the evidence before him. I think it unlikely that he has been or will ever be employed as a credit manager.    But I am reluctant to say that his conclusions were unreasonable. My reluctance springs from the fact that it is difficult to think about persons in the situation of these respondents as individuals. The position taken by the Minister, if accepted, would ensure than none of these waterborne visitors would ever be seriously considered for release from detention. The fact that these individuals arrived as part of a group conditions us to think that they had a common purpose, which is to be determined by considering which factors are common to the group. But the decisions affecting these individuals must be made on the basis of their individual positions. So I am reluctant to say that the adjudicator who saw them and heard them was unreasonable when he gave effect to evidence in a way which reflected an individualized view of the respondents. In these cases, it is too easy to conclude that a decision is unreasonable simply because it found for the respondents. That said, there comes a point at which generosity of spirit becomes wishful thinking. This adjudicator was in the general vicinity of that point.

[16]            In my view, the ground on which the Minister succeeds is the issue of the security deposit. There are two related issues here, one of which was pleaded by the Minister and one which emerged in argument. The one pleaded by the Minister is that it was a denial of natural justice to fail to allow the Minister's representative to cross examine the sureties when he requested leave to do so. As the argument developed, the fact of allowing anyone to post the security deposit became an issue. Counsel for the Minister took the position that the adjudicator had an obligation to consider the suitability of the surety if a security deposit were to be required.

[17]            In my view the adjudicator was correct in rejecting a request for cross-examination made after his decision as to release was announced. If the Minister's representative were given leave to cross-examine at that point, there is the possibility of the decision being reversed if the cross-examination proved unfavourable. But the adjudicator cannot reverse his own decision. Any review of a surety must take place within the evidentiary portion of a detention review, not after a release decision has been made.

[18]            It seems to me that the issue resolves itself into two questions. Is the adjudicator required to take the suitability of the surety into account when deciding whether to release the detainee? If so, what is the procedure by which this is done?

[19]            It appears that the theory behind the requirement for a security deposit or a performance bond is that the person posting the bond or deposit will be sufficiently at risk to take an interest in seeing that the releasee complies with the conditions of release including appearing for removal. From the point of view of the person who is to be released, the element of personal obligation to the surety is thought to act as an incentive to compliance. While this may be true generally, it may not be true in the case of an organized smuggling operation where significant sums of money are involved. One can infer from the fact that persons pay large sums of money to be smuggled into North America that the earnings prospects are better here than in the place from which they came. The smugglers do not get paid until their customers access this greater earning power.     So they have an interest in seeing that their client remains in North America. In those circumstances, it makes sense for a smuggler to put up the money for the security deposit with a view to either helping or coercing the client to go underground and begin repayment of the debt. The risk of financial loss, in such a case, is not in forfeiture of the security deposit but in the possibility of the smuggler's client being returned to his home. The client's sense of obligation to the smuggler does not act as an inducement to compliance with the conditions of release. In fact the opposite is true.

[20]            In Canada v. Ri Wo Chen [1999] F.C.J. No. 1815, Nadon J. held that the decision as to whether the individual is likely to appear for removal is to be made before any consideration is to be given to the question of the security deposit or the surety.

As I read subsections 103(3)(b) and 103(7), an adjudicator must order the release of a person 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" once he is satisfied that the person in detention is likely to appear for removal. In other words, if the adjudicator is satisfied, on the evidence before him, that the person in detention will not abscond, he must then order the release of that person subject to terms and conditions which may include the payment of a security deposit. The posting of a bond and the amount thereof are not part of the evidence relevant to the determination which the adjudicator must make as to the likelihood of the person appearing for removal. Thus, on my understanding of the subsections, the adjudicator must make up his mind with regard to the likelihood of the person absconding or appearing for removal on the basis of the evidence without regard to the bond which he might impose if satisfied that the person in detention will likely appear for removal.

[21]            With the greatest of respect for my learned colleague, I take a different view. A security deposit or a performance bond is intended to act as a motivator for compliance. As noted above, the theory of a security deposit is that it provides an incentive for compliance with conditions of release. If the posting of a security deposit made no difference, there would be no reason to require one. If it makes a difference, then the question of the likelihood of compliance with conditions of release must be considered in light of the effect of the security deposit. If one were to adopt the reasoning in Ri Wo Chen, then only those who could satisfy the adjudicator that they would appear for removal without the necessity of a security deposit would eligible for release. But by definition, none of these would require the imposition of a security deposit to ensure their compliance with the conditions of release. The provisions as to the posting of security would only apply to those who do not require it.

[22]            In my view, the effect of a security deposit must be considered as part of the consideration of the question as to whether the detainee is likely to appear for removal. This in turn requires consideration of the character of the person posting the security since it is possible that the posting of security by certain elements will reduce the likelihood of the detainee appearing for removal. Consequently it was unreasonable for the adjudicator to order that the security deposit in this case could be posted by anyone. If he thought that security was required to ensure the appearance of the respondents for removal, he was required to direct his mind to the issue of the circumstances of the person putting up the deposit and their relationship to the respondent. If the Minister's representative had previously satisfied himself that the proposed surety was legitimate, the Adjudicator would be entitled to rely upon the Minister's representative's assurances. But if the Minister's representative put the matter in issue, then the Adjudicator was bound to deal with it.

[23]            This leads to the question as to how this is to be done to avoid the situation which developed in the course of this hearing. It is for the Adjudication Division to devise its own procedures. This court can only comment on onus. In a detention review, the onus of justifying detention is on the Minister. See Sahin v. Canada [1995] 1 F.C. 214. However, as a practical matter, the Minister is not in the position to carry the onus as to the acceptability of the surety since that person can only be proposed by the detainee. The onus is therefore on the detainee to satisfy the adjudicator that the proposed surety is acceptable. If counsel for the detainees gives the Minister's representative sufficient notice of the name of the proposed surety and their relationship to the detainees, then much of the work can be done informally. If the Minister's representative objects to the proposed bondsperson, then counsel for the detainees can choose to lead evidence as to their suitability at which time the Minister's representative will have the opportunity to lead the Minister's evidence. It is at this point that the question of the cross-examination of the proposed surety should arise.

[24]            For the respondent it could be said that it was known to all concerned that the money was coming from each respondent's brother in the United States so that the reference to anyone was really a reference to the brothers. A reading of the adjudicator's decision shows that he dismissed the issue of the relationship of the surety with the respondent and seemed to rely only on the risk of forfeiture. In the circumstances of a criminal smuggling operation, this is an unreasonable error.

[25]            For these reasons, the decision of the adjudicator to allow the security deposit to be paid by anyone was unreasonable and the decision must be set aside.

(Sgd.) "J.D. Denis Pelletier"

                                                                                          Judge

Vancouver, British Columbia

23 May 2001

                                                FEDERAL COURT OF CANADA

                                                              TRIAL DIVISION

                          NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                             IMM-2499-01

STYLE OF CAUSE:                                                          The Minister of Citizenship and Immigration

v.

Zu Fa Zhang

PLACE OF HEARING:                                                   Vancouver, British Columbia

DATE OF HEARING:                                                     22 May 2001

REASONS FOR ORDER OF                           PELLETIER J.

DATED:                                                                             23 May 2001

APPEARANCES:

Mandana Namazi                                                     For the Applicant

Antya Schrack                                                            For the Respondent

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada                          For the Applicant

Antya Schrack

Barrister & Solicitor                                                     For the Respondent