Date: 20010625
Docket: A-830-00
Neutral citation 2001 FCA 222
CORAM: ROTHSTEIN J.A.
EVANS J.A.
SEXTON J.A.
BETWEEN:
CHEONG SING LAI and
MING NA TSANG
Appellants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
HEARD at Vancouver, British Columbia on Monday, June 25, 2001
DELIVERED from the Bench at Vancouver, British Columbia on Monday,
June 25, 2001
REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A.
Date: 20010625
Docket: A-830-00
Neutral citation 2001 FCA 222
CORAM: ROTHSTEIN J.A.
EVANS J.A.
SEXTON J.A.
BETWEEN:
CHEONG SING LAI and
MING NA TSANG
Appellants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Vancouver, British Columbia
on Monday, June 25, 2001)
ROTHSTEIN J.A.
[1] This is an appeal from a December 18, 2000 decision of Campbell J. dismissing the appellants' application for judicial review of a December 5, 2000 detention order made by Adjudicator Daphne Shaw Dyck under section 103 of the Immigration Act, R.S.C. 1985, c. I-2. Campbell J. certified the following question for appeal:
Can a person who is the subject of a conditional departure order or an effective
departure order be detained for reason of removal from Canada?
[2] The December 5, 2000 detention order has been superseded by subsequent orders.
Its validity is therefore moot. However, the parties are agreed that the Court should hear and decide the appeal.
[3] Under subsection 103(6), detention orders are to be reviewed frequently, i.e. at least every 30 days. Therefore, they are of a recurring nature but of brief duration. If the validity of a detention order when an individual is subject to a departure order is to be tested, it will, almost of necessity, have to be in a case that is moot. (See Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at 360.) Therefore, this is a case in which it would be appropriate for the Court to exercise its discretion to hear and decide the appeal.
[4] The premise of the appellants' argument is that the Minister cannot remove a person from Canada under a departure order, whether it is conditional or unconditional. The appellants rely on subsections 52(1) and (2) which provide for removal of persons subject to exclusion orders and deportation orders but do not apply to persons subject to departure orders. Subsections 52(1) and (2) provide:
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52. (1) Unless otherwise directed by the Minister, a person against whom an exclusion order or a deportation order is made may be allowed to leave Canada voluntarily and to select the country for which that person wishes to depart.
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52. (1) Sauf instruction contraire du ministre, quiconque est frappé d'une mesure d'exclusion ou d'une mesure d'expulsion peut être autorisé à quitter le Canada avant l'exécution forcée de celle-ci et à choisir son pays de destination.
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(2) Where a person is not allowed to leave Canada voluntarily and to select the country for which he wishes to depart pursuant to subsection (1), that person shall, subject to subsection (3), be removed from Canada to
(a) the country from which that person came to Canada;
(b) the country in which that person last permanently resided before he came to Canada;
(c) the country of which that person is a national or citizen; or
(d) the country of that person's birth.
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(2) Dans tous les autres cas, l'individu est, sous réserve du paragraphe (3), renvoyé_:
a) soit dans le pays d'où il est arrivé;
b) soit dans le pays où il avait sa résidence permanente avant de venir au Canada;
c) soit dans le pays dont il est le ressortissant;
d) soit dans son pays natal.
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[5] Therefore, the appellants say that persons under conditional departure orders, as
the appellants here, cannot be removed and because detention is linked to removal, there is no reason to detain them under section 103. In other words, a concern that the persons would not appear for removal is not a reason to detain them, because they cannot be removed by the Minister under a departure order.
[6] We have some doubt that persons cannot be removed by the Minister under departure orders. However, for purposes of these reasons only, we shall assume, but not decide, that the Minister cannot remove persons who are subject to departure orders.
[7] Nonetheless, the statutory scheme still permits detention of such persons under section 103. Subsection 103(1) provides:
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103. (1) The Deputy Minister or a senior immigration officer may issue a warrant for the arrest and detention of any person where
(a) an examination or inquiry is to be held, a decision is to be made pursuant to subsection 27(4) or a removal order or conditional removal order has been made with respect to the person; and
(b) in the opinion of the Deputy Minister or that officer, there are reasonable grounds to believe that the person poses a danger to the public or would not appear for the examination, inquiry or proceeding in relation to the decision or for removal from Canada.
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103. (1) Le sous-ministre ou l'agent principal peut lancer un mandat d'arrestation contre toute personne qui doit faire l'objet d'un interrogatoire, d'une enquête ou d'une décision de l'agent principal aux termes du paragraphe 27(4), ou qui est frappée par une mesure de renvoi ou de renvoi conditionnel, lorsqu'il croit, pour des motifs raisonnables, qu'elle constitue une menace pour la sécurité publique ou qu'elle ne comparaîtra pas, ou n'obtempérera pas à la mesure de renvoi.
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[8] A removal order is defined under section 2 as meaning "a departure order, an exclusion order or a deportation order." On its face, therefore, subsection 103(1) provides for the issuance of a warrant for the arrest and detention of any person subject to a departure order where, in the opinion of the Deputy Minister of Immigration or a senior immigration officer, there are reasonable grounds to believe the person would not appear for removal. Indeed, the appellants concede this point. However, they say that under subsection 103(6), on a review of their detention, there is no reason to continue to detain them because the Minister cannot remove persons under departure orders. Subsection 103(6) provides:
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(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
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(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_:
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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.
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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.
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[9] If the appellants are correct, a warrant can issue for their arrest and detention; they can be arrested and detained; but within 48 hours they must be released because there is no reason for their continued detention. This is a strained interpretation of section 103 and leads to an absurd result. There is no rational explanation as to why the Act would permit arrest and detention of a person under a departure order but not permit continued detention.
[10] There are a number of other reasons why the appellants' interpretation of subsection 103(6) is not acceptable. First, under subsection 32.02(1), a departure order is deemed to be a deportation order if a certificate of departure is not issued within the time prescribed by the Regulations (currently 30 days). Even accepting that the Minister cannot remove under the departure order, the deeming of the departure order a deportation order under which the Minister can remove a person under subsection 52(2), means that the departure order can lead to removal by the Minister.
[11] Second, under the appellants' approach, as long the Minister cannot remove, section 103 cannot operate to permit the detention of persons who, there are reasonable grounds for believing, pose a danger to the public or would not appear for removal. That would mean that any refugee claimant under a conditional departure order, or even a conditional deportation order, pending his or her refugee hearing, would not be subject to detention under section 103, even if there were reasonable grounds for believing that the refugee claimant would pose a danger to the public or would not appear for removal if the refugee claim failed. Such a result would undermine the effective operation of section 103.
[12] Third, the appellants say that the Minister's recourse is to issue deportation orders instead of departure orders if she wishes to invoke section 103. This argument still begs the question of how section 103 could be effective in the case of a conditional deportation order pending a refugee hearing when the Minister could not remove the refugee claimant while the deportation order remained conditional. Further, it would mean that, instead of permitting failed refugee claimants or others to depart voluntarily under departure certificates, they would have to be deported. Deportation orders carry serious consequences for the individual concerned. We do not read section 103 as requiring the issuance of the most serious removal order for it to be invoked by the Minister. The appellants' approach really amounts to a collapsing of the question of whether or not to issue a deportation order with the question of whether a person should be detained. These are two separate considerations and the Act does not provide that they be treated as if they were one.
[13] The appeal will be dismissed with costs.
"Marshall Rothstein"
J.A.
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