Date: 19990105
Docket: IMM-5215-97
Ottawa, Ontario, this 5th day of January, 1999
Present : The Honourable Mr. Justice Pinard
Between :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
AVTAR SINGH BAINS
Respondent
ORDER
The application for judicial review is allowed. The decision of Adjudicator George Wojtowicz of the Adjudication Division of the Immigration and Refugee Board of Canada rendered November 27, 1997, whereby he ordered the respondent to be released from detention under the Immigration Act, subject to certain terms and conditions, is hereby quashed.
JUDGE
Date: 19990105
Docket: IMM-5215-97
Between :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
AVTAR SINGH BAINS
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of the decision and order of Adjudicator George Wojtowicz of the Adjudication Division of the Immigration and Refugee Board of Canada rendered November 27, 1997, whereby he ordered the respondent, Avtar Singh Bains, be released from detention under the Immigration Act (the Act), subject to certain terms and conditions.
[2] As was the case before my colleague Mr. Justice Campbell on July 17, 1998, when he ordered that the hearing of this application be adjourned to this day, December 8, 1998, it appears that the respondent's whereabouts are still unknown and, indeed, there is an immigration warrant outstanding for his arrest. A certified copy of Campbell J.'s Order was sent to Mr. John Volrich, who is still counsel on the record for the respondent. The respondent was not present and was not represented at the hearing before me.
[3] The relevant portion of the adjudicator's decision reads as follows:
. . . Canadian Immigration law provides that when a person seeks to come to Canada and his identity has not been established that person can be detained until such time that the Minister is satisfied of that person's identity. That person is brought before an Adjudicator every seven days where the Adjudicator has to determine whether reasonable efforts are being made by the Minister to investigate the identity. And if the efforts are reasonable, the Adjudicator must continue detention.
Your counsel has provided certain documents to the Immigration Department and to me purporting to prove your identity. I believe that it's more probable than not that these documents truly reflect your identity. I find it highly improbable that spurious documents would be produced at this stage in these circumstances.
On the face of it, I am satisfied that you are Avtar Singh Bains who you claim to be. And given that, the Minister's efforts to investigate you or investigate your identity are not reasonable vis-a-vis your detention, continued detention. The Immigration Department may, of course, continue to investigate you but insofar as your detention is concerned, I believe your identity has been satisfactorily established and to continue your detention in the circumstances would not be reasonable.
[4] In my view, the adjudicator exceeded his jurisdiction in releasing the respondent. Subsection 103.1(5) of the Act is clear and unambiguous. Where the Minister is making reasonable efforts to investigate a person's identity, the Adjudicator shall continue the person's detention. In the case at bar, the Adjudicator released the respondent on the basis of his own assessment of the authenticity of the identity documents rather than the reasonableness of the Minister's investigations.
[5] Consequently, the application for judicial review is allowed. The decision of Adjudicator George Wojtowicz of the Adjudication Division of the Immigration and Refugee Board, dated November 27, 1997, whereby it was ordered that the respondent be released from detention under the Act, is hereby quashed.
[6] This is no matter for certification.
JUDGE
OTTAWA, ONTARIO
January 5, 1999
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