Date: 20081120
Docket: IMM-3745-08
Citation: 2008 FC 1297
Montréal,
Quebec, November 20,
2008
PRESENT: THE CHIEF JUSTICE
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
XIAOQUAN LIU
Respondent
REASONS FOR JUDGMENT
[1] The respondent is
suspected of having committed fraud in the People’s Republic of China, his country of citizenship, and in the United States.
[2] In March 2007, the
respondent sought refugee protection in Canada. He has been in immigration detention since his arrival here. His
detention has been reviewed on some twenty occasions under the provisions of
Division 6 of the Immigration and Refugee Protection Act (IRPA). On each
occasion, a member of the Immigration Division found that the respondent was a
flight risk and his detention was continued.
[3] During the detention
review of August 22, 2008, the member of the Immigration Division (the member) was
advised that the respondent’s pre-removal risk assessment (PRRA) would be
completed in the latter part of December 2008, by which time he will have been
detained for some twenty months. On the basis of this information and with the
prospect of further judicial proceedings subsequent to the PRRA, the member
concluded that the ongoing detention infringed the respondent’s rights under s.
7 of the Canadian Charter of Rights and Freedoms. Accordingly, she
ordered his release on the condition that he report regularly to the
applicant’s officials and advise them of his whereabouts.
[4] The applicant
immediately filed this proceeding for judicial review and obtained a stay of
the execution of the member’s order. The hearing of this judicial review was expedited.
[5] In Sahin v. Canada
(Minister of Citizenship and Immigration), [1995] 1 F.C. 214, a decision of
the Trial Division of the Federal Court of Canada, Justice Marshall Rothstein referred
back for reconsideration the refusal to grant the release of a person who had
been in detention for fourteen months. He concluded that the decision-maker
erred in law by failing to consider the relevant factors.
[6] Justice Rothstein
reiterated the principle that a fair balance be struck between the state’s
right to control who remains in Canada and the liberty interests of the
individual: Cunningham v. Canada, [1993] 2 S.C.R. 143 at 151-2.
He then enumerated a number of considerations which should be included in
determining whether detention should be continued (Sahin, ¶ 30):
…
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.
(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.
(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.
(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,
(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 number, detention in a form that could be less restrictive
to the individual, etc.
[7] The guidelines in Sahin are now codified in
s. 248 of the Immigration and Refugee Protection Regulations,
SOR/2002-227.
[8] In Charkaoui v. Canada (Citizenship and
Immigration), 2007 SCC 9, the Supreme Court of Canada endorsed the
principles in Sahin in considering extended periods of detention in
national security cases. The Court noted that a decision-maker should take into
consideration the reasons for detention, the length of detention, the reasons
for the delay in deportation, the anticipated future length of detention and
the availability of alternatives to detention: ¶¶ 108-17.
[9] The member estimated
that, in her experience, removal proceedings require approximately eighteen
months for conclusion. She added: “That is the context to which I refer to
long-term detention and, when balancing it against a risk of flight, decide that
it’s justified, in spite of s. 7 of the Charter.”
[10] The following extracts
from the transcript of the member’s oral reasons further explain her conclusion
to order the respondent’s release from detention:
… I am obligated, when considering the application of section 7, to try to
estimate the length of time your detention might continue until your removal
from Canada, not until the conclusion of
the risk assessment application.
…
… I have to conclude, based on the best information I have and my knowledge
of judicial proceedings, in the context of immigration law, that it will be an
additional long period of time before a final decision determining one way or
the other whether you may remain in Canada or must leave is made.
Having made those findings, I conclude to order your continued detention
today on this ground, considering the periods of time involved, would be a
breach of section 7 of the Charter.
[11] Detention under Division 6 cannot be indefinite: Sahin,
¶ 23. Lengthy detention, however, does not necessarily mean indefinite
detention. Each of the Sahin factors must be considered with the
appropriate weight placed upon each of them.
[12] Here, the member’s reasons do not disclose sufficient
consideration of any explanation for the past delay in deportation. The
respondent’s claim for refugee status was withdrawn nine months after it was
made. During this period, the respondent was represented at various times by
one of five different counsel. His three requests for hearing postponements were
granted. The member’s analysis does not indicate whether this “lack of
diligence should count against the offending party.” (Charkaoui, ¶ 114)
[13] The member’s opinion concerning the anticipated
future length of detention was premature and speculative. From the outset of
the detention review process, members of the Immigration Division understood that
the respondent would, as is his right, exhaust the remedies available to him
under the IRPA.
[14] It was made known to the respondent on June 26, 2008
that he was found to be a person under Article 1F(b) of the United Nations
Convention Relating to the Status of Refugees as a person who has committed
a serious non-political crime prior to his entry into Canada. In the view of
the respondent’s officials, this finding brought him within the scope of s.
112(3) of the IRPA. On July 30, 2008, the Immigration Division was advised that
the respondent’s officials had made a positive risk assessment under s. 97 of
the IRPA. The PRRA determination was expected to be completed in the second
half of December 2008.
[15] It may be that a negative PRRA will precipitate
further litigation in the Federal Court. Any such proceeding can be immediately
case managed. Expedited time periods for subsequent steps can be sought. If
leave is granted, on consent or otherwise, an early hearing date can be
requested. With the cooperation of counsel, future applications for judicial
review concerning the respondent can and should be heard in at least as timely
a fashion as this one.
[16] In many cases, the most satisfactory course of action
will be to detain the individual but expedite the immigration proceedings, even
where the person who is a flight risk may not pose a public danger: Sahin,
¶ 31.
[17] The member’s failure to
consider properly the Sahin factors, particularly the unexplained lack
of diligence and the speculative nature of her assessment of further litigation
in this Court, constitutes an error of law: Sahin, ¶ 33.
Here, the member’s task was to review the period of detention against the
criteria in Sahin and s. 248 of the Regulations. Her decision does not
fall “within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” and is therefore unreasonable: Dunsmuir v. New
Brunswick, 2008 SCC 9, ¶ 47.
[18] In
view of this conclusion, the applicant’s submissions concerning clear and
compelling reasons need not be considered.
[19] Accordingly, this application for judicial review
will be granted. Counsel may file submissions within five days of the date of
these Reasons concerning the certification of a serious question.
“Allan
Lutfy”
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