Date: 20101105
Docket: IMM-5427-10
Citation: 2010 FC 1095
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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XXXX
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Respondent
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REASONS FOR JUDGMENT
PHELAN
J.
I. INTRODUCTION
[1]
This
is an application for judicial review by the Minister of Citizenship and
Immigration (Minister) challenging a decision of the member of the Immigration
and Refugee Board (Member) made September 16, 2010 in which he ordered the
release of the Respondent from detention upon terms.
[2]
The
Member found that the Minister had not made “reasonable efforts” to determine
the Respondent’s identity. This is, apparently, the Court’s first consideration
of s. 58(1)(d) of the Immigration and Refugee Protection Act (IRPA).
Justice Barnes’ decision in Canada (Minister of
Citizenship and Immigration) v. XXXX, 2010 FC 112 (a
different respondent) dealt with s. 58(1)(c).
[3]
The
Respondent’s identity has been protected by Court Order.
II. FACTUAL
BACKGROUND
[4]
The
Respondent arrived in Canada on August 13, 2010 aboard the MV Sun
Sea along with 491 others, all of whom were initially detained for purposes
of identification and admissibility. She was accompanied by three children whom
she claims are hers.
[5]
The
Respondent had no identification documents for either herself or the
children. She claimed that her passport was taken away by the “agent” who had
organized the voyage and that her other identification documents had been left
in Sri
Lanka.
[6]
The
Respondent has had three detention hearings. The 48-hour review was held August
18, 2010; the 7-day review on August 25, 2010; and the 30-day review on
September 16, 2010.
[7]
The
first two detention reviews resulted in continued detention because the
Respondent’s identity had not been established. At the conclusion of the
September 16th hearing, the Member concluded that the Minister had
not made “reasonable efforts” to establish the Respondent’s identity and
released her on terms which included reporting to Canada Border Services Agency
(CBSA) once a month.
[8]
The
decision under review was made by a Board member whose name is strikingly
similar to this judge but is not in any way connected – Member Michael
McPhalen.
[9]
The
Member made a number of comments critical of the Minister’s efforts. These
include:
(a) that
the Respondent had reasonably cooperated with the Minister/CBSA.
(b) that
despite filling out a form giving the mother’s address and being interviewed
twice, CBSA only learned of the address on September 8 and as of the hearing
date (September 16) had not written a letter to the mother. The mother is
alleged to have the Respondent’s identity documents.
(c) that
CBSA did try to contact the Respondent’s brother in Sri Lanka (the one with the
telephone) without success, possibly because he was moving to France.
(d) that,
while the Respondent had no contact information for another brother in Toronto, CBSA had
made no effort to contact that brother.
(e) that
the Minister’s counsel could not inform the Member when UNHCR had been contacted
(presumably to confirm that the Respondent had been in a refugee camp as she
claimed).
[10]
The
Member, having concluded that the Minister had not taken reasonable steps to
determine the Respondent’s identity, then ordered her release on the following
terms:
(a) to
report to CBSA on the second Monday of each month;
(b) to
report changes of address in person; and
(c) to
cooperate with CBSA in obtaining identity documents.
[11]
The
Member did acknowledge the strained circumstances under which the Minister was
operating dealing with a sudden and large influx of unknown immigrants. He also
recognized the particular challenge posed by the Respondent’s complete absence
of identity documents.
[12]
Despite
the Member’s decision, the Respondent has not been released. Justice Bedard
stayed the release until this judicial review was determined.
III. ISSUES
[13]
The
Member’s decision was made pursuant to s. 58 of IRPA which reads:
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58.
(1) The Immigration Division shall order the release of a
permanent resident or a foreign national unless it is satisfied, taking into
account prescribed factors, that
(a) they are a
danger to the public;
(b) they are
unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the
making of a removal order by the Minister under subsection 44(2);
(c) the Minister is
taking necessary steps to inquire into a reasonable suspicion that they are
inadmissible on grounds of security or for violating human or international
rights; or
(d)
the Minister is of the opinion that the identity of the foreign national has
not been, but may be, established and they have not reasonably cooperated
with the Minister by providing relevant information for the purpose of
establishing their identity or the Minister is making reasonable efforts to
establish their identity.
(2) The
Immigration Division may order the detention of a permanent resident or a
foreign national if it is satisfied that the permanent resident or the
foreign national is the subject of an examination or an admissibility hearing
or is subject to a removal order and that the permanent resident or the
foreign national is a danger to the public or is unlikely to appear for
examination, an admissibility hearing or removal from Canada.
(3) If the
Immigration Division orders the release of a permanent resident or a foreign
national, it may impose any conditions that it considers necessary, including
the payment of a deposit or the posting of a guarantee for compliance with
the conditions.
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58.
(1) La section prononce la mise en liberté du résident
permanent ou de l’étranger, sauf sur preuve, compte tenu des critères
réglementaires, de tel des faits suivants :
a)
le résident permanent ou l’étranger constitue un danger pour la sécurité
publique;
b)
le résident permanent ou l’étranger se soustraira vraisemblablement au
contrôle, à l’enquête ou au renvoi, ou à la procédure pouvant mener à la
prise par le ministre d’une mesure de renvoi en vertu du paragraphe 44(2);
c)
le ministre prend les mesures voulues pour enquêter sur les motifs
raisonnables de soupçonner que le résident permanent ou l’étranger est
interdit de territoire pour raison de sécurité ou pour atteinte aux droits
humains ou internationaux;
d)
dans le cas où le ministre estime que l’identité de l’étranger n’a pas été
prouvée mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en
fournissant au ministre des renseignements utiles à cette fin, soit ce
dernier fait des efforts valables pour établir l’identité de l’étranger.
(2) La
section peut ordonner la mise en détention du résident permanent ou de
l’étranger sur preuve qu’il fait l’objet d’un contrôle, d’une enquête ou
d’une mesure de renvoi et soit qu’il constitue un danger pour la sécurité
publique, soit qu’il se soustraira vraisemblablement au contrôle, à l’enquête
ou au renvoi.
(3)
Lorsqu’elle ordonne la mise en liberté d’un résident permanent ou d’un
étranger, la section peut imposer les conditions qu’elle estime nécessaires,
notamment la remise d’une garantie d’exécution.
[Emphasis added]
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[14]
In
considering whether to order release, the Board is required to consider s. 247
of the Immigration and Refugee Protection Regulations:
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247.
(1) For the purposes of paragraph 244(c), the factors are the
following:
(a) the foreign
national's cooperation in providing evidence of their identity, or assisting
the Department in obtaining evidence of their identity, in providing the date
and place of their birth as well as the names of their mother and father or
providing detailed information on the itinerary they followed in travelling
to Canada or in completing an application for a travel document;
(b) in the case of a
foreign national who makes a claim for refugee protection, the possibility of
obtaining identity documents or information without divulging personal
information to government officials of their country of nationality or, if
there is no country of nationality, their country of former habitual
residence;
(c) the destruction
of identity or travel documents, or the use of fraudulent documents in order
to mislead the Department, and the circumstances under which the foreign
national acted;
(d) the provision of
contradictory information with respect to identity at the time of an
application to the Department; and
(e) the existence of
documents that contradict information provided by the foreign national with
respect to their identity.
(2) Consideration of the
factors set out in paragraph (1)(a) shall not have an adverse impact
with respect to minor children referred to in section 249.
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247.
(1) Pour l’application de l’alinéa 244c), les critères sont les
suivants :
a)
la collaboration de l’intéressé, à savoir s’il a justifié de son identité,
s’il a aidé le ministère à obtenir cette justification, s’il a communiqué des
renseignements détaillés sur son itinéraire, sur ses date et lieu de
naissance et sur le nom de ses parents ou s’il a rempli une demande de titres
de voyage;
b)
dans le cas du demandeur d’asile, la possibilité d’obtenir des renseignements
sur son identité sans avoir à divulguer de renseignements personnels aux
représentants du gouvernement du pays dont il a la nationalité ou, s’il n’a
pas de nationalité, du pays de sa résidence habituelle;
c)
la destruction, par l’étranger, de ses pièces d’identité ou de ses titres de
voyage, ou l’utilisation de documents frauduleux afin de tromper le
ministère, et les circonstances dans lesquelles il s’est livré à ces
agissements;
d)
la communication, par l’étranger, de renseignements contradictoires quant à
son identité pendant le traitement d’une demande le concernant par le
ministère;
e)
l’existence de documents contredisant les renseignements fournis par
l’étranger quant à son identité.
(2) La prise en
considération du critère prévu à l’alinéa (1)a) ne peut avoir
d’incidence défavorable à l’égard des mineurs visés à l’article 249.
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[15]
There
are three issues raised in this judicial review:
(1) Did
the Member err in assessing whether the Minister was “making reasonable
efforts” pursuant to s. 58(1)(d) to establish identity?
(2) Did the
Member err in failing to consider other grounds for detention?
(3) Did the
Member err in imposing the terms and conditions of release?
IV. ANALYSIS
A. Preliminary
Matters
[16]
There
was some issue raised by the Respondent that the Applicant’s Memorandum was
interspersed with references to evidence that was not before the Member. There
has been no clear identification of all of this so-called evidence but two
matters stand out.
[17]
The
first is that the Minister had in fact written to the Respondent’s mother at
least a day before the hearing and seven days after becoming aware of her
address. The Minister’s counsel was not aware of this circumstance at the time
of the September 16th hearing.
[18]
It
is obviously something the Member cannot be criticized for not considering.
However, it goes directly to a critical factor that the Member considered
showed that the Minister had not made “reasonable efforts”. It also shows the
“rough and ready” nature of the detention hearings and the real-time atmosphere
in which all are working. It speaks to the need for caution in criticizing the
Minister’s officials and in concluding that reasonable efforts have not been
made.
[19]
The
second is that the Minister had in fact contacted UNHCR to determine if the
Respondent had been at a camp which would assist in establishing her identity.
That apparently is the usual protocol except that the Respondent was not in a
UNHCR camp – a matter which was not known to the Minister.
[20]
This
evidence is important to the rationale underlying the Member’s decision and
ought, given the unique circumstances of these detention reviews, be admitted
for the reasons discussed in paragraph 18.
B. Standard
of Review
[21]
The
Applicant has described the issues in this matter as questions of law and
jurisdiction. To the extent that the issues relate to the legal test and the
constituent elements thereof, the Applicant is correct in arguing that the
standard of review is correctness (Canada (Minister of Citizenship and Immigration)
v. XXXX,
2010 FC 112 (Ocean Lady); Canada (Minister of Citizenship and
Immigration) v. Singh, 2004 FC 1634).
[22]
However,
there are elements of this matter of interpretation and application of s. 58(1)(d)
which involved mixed law and fact. That analysis is subject to the reasonableness
standard of review (Dunsmuir v. New Brunswick, 2008 SCC 9).
C. Issue 1:
Error in Interpretation and Application of S. 58(1)(d)
[23]
Identity
is a virtual sine qua non of immigration law. Identity is the
springboard for such issues as admissibility, eligibility for refugee status
and determination of the need for protection. It is also critical to an
assessment of potential danger to the public, threat to security and flight
risk, to name but a few of the issues for which identity is an essential component.
[24]
The
Member erred in not recognizing that the obligation to establish one’s identity
rests first and always with the claimant. The Minister’s obligation is to make
reasonable efforts. Neither has the complete onus of proof, neither can sit
back and do nothing.
[25]
The
Court is advised that even though the Respondent was in detention, she had
available to her the capacity to use the mail, to make long distance telephone
calls and to engage the assistance of the Tamil-Canadian community in
contacting relatives and friends. She had counsel available as well.
[26]
In
assessing the Minister’s efforts, the Member paid scant, if any, attention to
efforts of the Respondent other than to note that she was cooperating with the
CBSA by listing her mother and brothers as people to contact.
[27]
The
determination of “reasonable efforts” is conditioned to some extent by the
efforts of a claimant. This is over and above the obligation to not obstruct
and to cooperate. It requires the Member to make a qualitative evaluation of the
efforts on the part of both parties.
[28]
In Ocean
Lady, above, Justice Barnes determined that in considering “necessary
steps” under s. 58(1)(c), one examines whether there is a rational
connection between the steps being taken and the purposes of the inquiry as to
admissibility (the potential to uncover relevant evidence) and whether the
Minister is acting in good faith.
[29]
Those
two criteria are an appropriate starting point for s. 58(1)(d) as well.
The term “reasonable steps” in s. 58(1)(d) connotes a broader range of
actions than “necessary steps” but the analytical framework is essentially the
same.
[30]
In
the present case the Member did not address whether what the Minister had done,
was doing and intended to do was rationally connected to the purpose of the
provision – that the steps had the potential to uncover evidence.
[31]
More
appropriate than the Applicant’s submission that the Member transferred the
onus of proving identity on to the Minister, the Member in reality failed to
consider relevant issues and evidence. Under s. 58 both parties have
obligations and the fulfillment of one party’s obligations, in this case the
Minister’s, is influenced by the other party’s conduct. The Member failed to
consider this reciprocal and reciprocating legal obligation.
[32]
In
addition to not considering relevant issues in the “reasonable efforts”
analysis, the Member focused on what he thought should have been done rather
than on the “reasonableness” of what had been done and was intended to be done
in the future. Courts of Appeal remind trial courts that in determining whether
a decision under review is reasonable, courts are not to substitute its view of
what the Court would do for a consideration of whether what was done was
reasonable. The Member made that type of error.
[33]
The
Member also made unreasonable and plainly incorrect findings. The finding
regarding the failure to contact the Respondent’s mother, through no fault of
the Respondent, was factually wrong.
[34]
In
examining the Minister’s efforts, the Member, while acknowledging the absence
of any identification documents, did not consider the Respondent’s actions and
their impact on the Applicant’s efforts.
[35]
The
Respondent, knowing she was coming to Canada where she had a brother, provided no contact
information or location other than saying that he was in Toronto. She had nothing but an
area address for her mother. Further, she suggested to CBSA that the most
useful contact was her brother in Sri Lanka who had a telephone. After repeated attempts by
CBSA to contact him, she suggested that he might have finally completed his
move to France; an eventuality of
which she was aware but had not disclosed.
[36]
It
was not reasonable in these circumstances where the Respondent directs CBSA as
to the likely source of her identity documents to fail to consider the impact
that her direction had on the Minister’s officials and the focus of their
efforts.
D. Issue 2: Failure
to Consider Other Grounds
[37]
The
Applicant has argued that the Member failed to consider other grounds for
detention. These include the potential flight risk, the potential of coercion
imposed by the smugglers, and the potential of the Respondent to go
“underground” and disappear.
[38]
These
were not argued before the Member and therefore the Member’s reasons cannot be
criticized for failure to consider these other factors.
[39]
They
are, however, factors which might more properly be considered in the terms and
conditions of release.
E. Issue 3: Terms
and Conditions of Release
[40]
The
issue of terms and conditions of release, assuming release itself is
sustainable in law (which it is not) must be assessed on a reasonableness
standard with deference owed to the Member who has a broad discretion in this
area.
[41]
The
evidence in this case is that identity is still properly in doubt; that the
ship and its human cargo were part of human smuggling/organized crime activity;
that the Respondent’s brother in Sri Lanka/France had the resources to pay for
the Respondent’s voyage; that the Respondent had no documents for either
herself or the accompanying children claimed to be hers.
[42]
The
Member accepted that the Respondent’s release was a close call, done with
considerable reluctance; however, the Member permitted the release on the most
minimal of terms and conditions.
[43]
In
assessing the reasonableness of a decision, it is appropriate to consider
whether the decision is balanced in view of all of the facts and whether the
terms and conditions were a disproportionate response to the frailties of the
Respondent’s position and the risks inherent in releasing an unidentified
individual.
[44]
The
Member erred in not considering these competing factors and therefore reached
an unreasonable conclusion. The release of an unidentified individual and three
children with no more than a once a month reporting requirement is not within
the range of acceptable outcomes in these circumstances.
V. CONCLUSION
[45]
In
granting this judicial review, the Court is mindful of the hot house
environment in which all parties including Board members operate, the strained
resources and the strains on people and their patience.
[46]
However,
for all of the above reasons, this judicial review will be granted.
[47]
Prior
to issuing a formal Order, the parties shall have seven (7) days to make their
submissions on whether there is a question(s) which ought to be certified.
“Michael
L. Phelan”
Ottawa,
Ontario
November
5, 2010
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