Docket: IMM-889-16
Citation:
2016 FC 331
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, March 18, 2016
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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THE MINISTER OF
PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Applicant
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and
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ALAIN KALONDO
MUKENGE
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Respondent
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ORDER AND REASONS
[1]
This is an application for leave and for
judicial review under section 72 of the Immigration and Refugee
Protection Act (S.C 2001, chapter 27) (the Act) from a decision
rendered on February 29, 2016 by a member of the Immigration
Division of the Immigration and Refugee Board of Canada (the Member), ordering
the release of the respondent on certain conditions. He has been held for
immigration purposes since January 22, 2016 because of his inability to prove
his identity.
[2]
On the day when the Member rendered her
decision, the Minister of Public Safety and Emergency Preparedness (the
Minister) obtained from the Court a temporary stay of this decision until
judgment was rendered on the Minister’s stay motion. On March 6, 2016, my
colleague, Justice Denis Gascon, granted the stay motion and ordered a
stay of the respondent’s release [translation]
“until the next mandatory detention review for
Mr. Mukenge, set for March 30, 2016 or, if this decision is prior to
that date, until the Court renders its decision on the application for leave
and for judicial review from the Member’s decision made on February 29, 2016.”
[3]
On March 8, 2016, I ordered
expedited processing of this application for leave and for judicial review, and
set the hearing date for March 16, 2016 in Montréal. I also ordered that
the application be processed on the basis of the Motion Records filed by the
parties in addition to the stay motion, subject to the right of each party to
file and serve a complementary record. The applicant exercised this right, but
the respondent did not.
[4]
The context specific to this case was summarized
as follows by Gascon J. in his ruling on the stay motion.
1. Mr. Mukenge is a citizen of the
Democratic Republic of the Congo;
2. On January 22, 2016,
Mr. Mukenge filed a claim for refugee protection. Because Mr. Mukenge’s
passport revealed anomalies, the Canada Border Services Agency (CBSA) held him
for immigration purposes on the grounds that his identity had not been, but
might be, established;
3. Mr. Mukenge said that other than his
passport, he had no access to other identification documents because his house
was ransacked and he was detained in the Congo;
4. There were two detention reviews: one on
January 25, 2016; the other on February 1, 2016, following
which Mr. Mukenge’s detention was maintained. A detailed decision was
rendered by the Division following both of these reviews;
5. On January 25, 2016,
Mr. Mukenge’s passport was sent to the CBSA laboratory for analysis and
evaluation and, on February 22, 2016, the evaluation results revealed that
the document had been altered and that the biometric page in Mr. Mukenge’s
passport was counterfeit;
6. During an interview with the CBSA on
February 25, 2016, Mr. Mukenge said that he did not agree with this
evaluation and maintained that his document was authentic and issued by
Congolese authorities. According to the CBSA representative’s notes,
Mr. Mukenge said that he had not taken any further action and had no new
information to provide since the February 1 review. Again
according to the CBSA representative’s notes, Mr. Mukenge also said that
he could not provide other pieces of identification while he was detained and
that it was difficult to find people to help him regarding his identity;
7. A third detention review was held on
February 29, following which the Member ordered Mr. Mukenge’s
release. At this hearing, Mr. Mukenge told the Member that he had taken
steps to contact people to find him documents such as a birth certificate;
[5]
As noted by Gascon J., the Member drew the
following conclusions after this third detention review:
1. The Minister’s efforts were unreasonable
because from February 1 to February 25, 2016, [translation] “no effort was made”;
2. In the interviews, Mr. Mukenge had
said that he had made efforts with people from his country and that he was
awaiting [translation] “letters from people or from brothers and
sisters and possibly a birth certificate”;
3. Mr. Mukenge [translation] “cooperated from the start”;
4. Mr. Mukenge poses [translation] “a certain risk of flight” for the reasons indicated by the Minister because his identity has
not been established to the satisfaction of the CBSA, he is a refugee claimant
and his passport is a document considered counterfeit;
5. Risk of flight is nonetheless [translation] “not at this point so high that no
alternative is possible” and under certain
conditions, the risk of flight posed by Mr. Mukenge could be offset.
[6]
The Minister argues that the Member erred
irremediably (i) by finding, contrary to the evidence in the docket, that no
effort was made since the February 1, 2016 detention review to
prove the respondent’s identity and that conversely, the respondent [translation] “had
cooperated from the start”; (ii) by releasing the respondent on $2000
bail posted by [translation] “anyone,” and (iii) by failing to explain why she
chose to depart from the decisions rendered at the first two detention reviews
on January 25 and February 1, 2016.
[7]
For his part, the respondent argues that to the
extent possible, he fully cooperated in proving his identity and that he had no
reason to question the authenticity of his passport. He asked the Court to
review the Member’s decision in light of his particular situation—that of a
refugee claimant who came to Canada after months of captivity in his homeland
and, for all intents and purposes, does not know anyone in Canada and therefore
has few ways to come up with new documents to prove his identity. Lastly, he
argues that the Court should discourage taking detention for reasons of
identity [translation] “lightly” and that there is no reason to interfere
with the Member’s decision, as the Minister is asking, because it is perfectly
reasonable under the circumstances.
[8]
These arguments were carefully reviewed by
Gascon J. within the scope of the stay motion filed by the Minister.
Keeping in mind that the test of serious issue to be tried may be more
demanding when, as was the case here, granting the relief sought in the stay
motion will give the applicant the relief sought in the underlying application
for judicial review (Wang v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 148 at paragraph 11), Gascon J.
engaged in an analysis to determine whether the Minister had [translation] “realistic
chances of success” and would [translation]
“likely have succeeded.”. Proceeding with this
analysis in an appropriate manner subject to the reasonableness standard of
review (Canada (Citizenship and Immigration) v. X, 2010 FC 1095 at
paragraph 22), he found that this was the case, the Member’s decision
seeming likely unreasonable to him in several respects.
[9]
The respondent did not convince me that there is
reason to assess the merit of the Minister’s action in a way that differed from
how Gascon J. assessed it, or to question his findings of fact and law.
For the same reasons as those cited by Gascon J., I find that the Member’s
decision was unreasonable in more ways than one and that the Minister’s action
must therefore be successful. I agree, as did Gascon J. with the Minister’s
argument as follows:
- The Member’s claim to the effect that the Minister made no
effort between February 1 and February 25, 2016 is
not supported by evidence. During this period, the Minister completed his
evaluation of the respondent’s passport, the only piece of identification
provided by the respondent since he was detained—a piece of identification
that was proven to be altered and counterfeit;
2.
The Member could not claim that the respondent [translation] “had
cooperated from the start” without ignoring the fact that the onus of
proving his identity is, under section 58 of the Act, first and foremost
upon him, which imposes upon him, in this respect, an active obligation to
bring something to the Minister (i.e. to provide the Minister with useful
information to prove his identity). The evidence demonstrates that during the
month of February, which was taken into account by the Member in her decision,
no such information was provided by the respondent;
- Associating, as the Member did, the release of a person whose
identity has not been established with bail posted by an unidentified
individual appears indefensible; posting of bail by a person whose
identity has not been established cannot reasonably serve as a guarantee,
as stated by Gascon J., to ensure the presence of a person whose own
identity has not been established; and
- The Member should have (Canada (Minister of Citizenship and
Immigration) v. Thanabalasingham, 2004 FCA 4 at paragraphs 12, 13
and 24), but failed to, explain clearly and convincingly why she departed
from her colleagues’ contrary findings rendered during the detention
reviews on January 25 and February 1, 2016. That
obligation applied even more given the confirmation following the review
ordered by the Minister that the respondent’s passport was altered. As
noted by Gascon J., because of that alteration, even more discretion
and care should have been exercised with respect to releasing the
respondent.
[10]
In light of the preceding, I find that the
Member’s decision does not, in the circumstances of this case, fall “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v. New
Brunswick, 2008 SCC 9 at paragraph 47) and that it must consequently
be quashed. I reiterate that the respondent will be entitled to a review of
his detention on March 30 or even earlier if he provides the Minister with
information that will help prove his identity.
[11]
Although I am aware that detention is a measure
that calls significant personal interests into question and that consequently,
it must not be taken lightly, I reiterate that identity remains the cornerstone
of the Canadian immigration system (Canada (Citizenship and Immigration) v.
Singh, 2004 FC 1634 at paragraph 38; Canada (Citizenship and
Immigration) v. X, 2010 FC 1095 at paragraph 23) and that nonconfirmation
of identity under the Act is still a ground for detention (Canada
(Citizenship and Immigration) v. B046, 2011 FC 877 at paragraphs 36
and 37).
[12]
The parties agree that there is no need in this
case to certify a question to the Federal Court of Appeal. I agree with this
opinion.
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