Judgments

[2001] 3 F.C. 326

IMM-486-01

2001 FCT 118

The Minister of Citizenship and Immigration (Applicant)

v.

Cheong Sing Lai and Ming Na Tsang (Respondents)

Indexed as: Canada (Minister of Citizenship and Immigration) v. Lai (T.D.)

Trial Division, Campbell J.—Vancouver, February 23 and 26, 2001.

Citizenship and Immigration — Exclusion and removal — Removal of visitors — Under Act, s. 103(6), (7) immigration detention as unlikely to appear for removal if refugee claims denied — Adjudicator ordering release on stringent terms offsetting non-appearance risk — Whether Adjudicator had jurisdiction to so order — M.C.I. arguing two-step process: no release if person unlikely to appear — Case law holding detainees to be released on terms considered adequate to ensure appearance — Not to be detained so long as to cause breach of Charter rights — Minister’s position creating absurdity to be avoided in application of s. 103(7) discretion — Nothing wrong with detainees consenting to form of house arrest.

This was an application for judicial review of a decision by an Adjudicator to release the respondents on certain terms and conditions under subsection 103(7) of the Immigration Act. The respondents, who arrived in Canada from China in 1999, and whose visitor’s visas had been extended, were arrested and detained under subsections 103(6) and (7) of the Act as persons unlikely to appear for removal should their claims for Convention refugee status be denied. They had compelling reasons for wishing not to be returned to China in that they are wanted by Chinese authorities in connection with a smuggling and corruption scandal and could face lengthy imprisonment or the death penalty. After making a number of critical findings with respect to his jurisdiction under subsection 103(7), the Adjudicator accepted the terms and conditions of the respondents’ detailed proposal for release which included the posting of substantial security deposits, reporting conditions, consent to remain “confined” to their condominium in Burnaby, British Columbia, surrendering passports and keys to their condominium. The Minister argued that subsection 103(7) must be applied in a two-step process. First, an adjudicator must decide whether the person detained is likely to appear for removal; and, only if so, the adjudicator must release the person from custody, with or without terms or conditions. The main issue herein was whether, in making his critical findings, the Adjudicator correctly interpreted his jurisdiction to order release under subsection 103(7).

Held, the application should be dismissed.

Subsection 103(7) is to be interpreted according to the words of the provision and the principles of statutory construction. Cases decided under subsection 103(7) have established certain important principles. One of them is that, in exercising discretion under subsection 103(7), an adjudicator must be vigilant in recognizing factors which call for release. Through implicit and explicit reference, those cases authorize, or even expect, an adjudicator to release on terms and conditions which satisfy him that a detained person is likely to appear for removal. The circumstances under which a person comes into detention, as well as what he says and does while in detention, are all evidence which can lead to the conclusion that he will not appear for removal. To use the two-step process of interpreting subsection 103(7) as suggested by the Minister would mean, for example, that a fearful and resentful young person of no means and without family or friends in Canada would be kept in detention and isolation with no hope of release. Adjudicators ought not await endorsing a release plan until the detainee has been confined for so long that his Charter rights have been breached. Considered in the fundamental justice and individual rights sensitive context of present day Canadian society, this two-step interpretation creates an absurdity and must be avoided in all cases involving the application of discretion under subsection 103(7). The Adjudicator reasonably found that the conclusions reached in the prior three detention reviews constituted a compelling factor weighing against the respondents’ release, but also correctly found it within his jurisdiction to accept their detailed release proposal as an effective counter-weighing factor allowing their release. The fact that the proposal put in place a high level of consensual confinement was an important consideration which worked in the respondents’ favour. There was nothing wrong in the respondents agreeing to such stringent limits upon their liberty, nor in their acceptance by the Adjudicator. In making his critical findings, the Adjudicator correctly interpreted his jurisdiction to order release under subsection 103(7).

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.

Criminal Code, R.S.C., 1985, c. C-46.

Immigration Act, R.S.C., 1985, c. I-2, ss. 82.1(1) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73); 103(6) (as am. by S.C. 1995, c. 15, s. 19), (7) (as. am. by S.C. 1992, c. 49, s. 94).

CASES JUDICIALLY CONSIDERED

APPLIED:

Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150 (1995), 31 Imm. L.R. (2d) 299 (T.D.); Canada (Minister of Citizenship and Immigration) v. Salinas-Mendoza, [1995] 1 F.C. 251 (1994), 29 Imm. L.R. (2d) 295 (T.D.); Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (1994), 85 F.T.R. 99 (T.D.).

REFERRED TO:

Thailand v. Saxena (1998), 115 B.C.A.C. 1; 129 C.C.C. (3d) 518 (C.A.); Flavell v. Deputy M.N.R., Customs and Excise, [1997] 1 F.C. 640 (1996), 137 D.L.R. (4th) 45; 117 F.T.R. 1 (T.D.); Bains v. Canada (Minister of Employment and Immigration) (1989), 47 Admin. L.R. 317; 109 N.R. 239 (F.C.A.).

AUTHORS CITED

Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Que. Yvon Blais, 1991.

APPLICATION for judicial review of an Adjudicator’s decision ordering the release of the respondents on certain terms and conditions under subsection 103(7) of the Immigration Act. Application dismissed.

APPEARANCES:

Esta Resnick for applicant.

Darryl W. Larson and Alistair A. Boulton for respondents.

SOLICITORS OF RECORD:

Deputy Attorney General of Canada for applicant.

Larson, Boulton, Sohn, Stockholder, Vancouver, for respondents.

The following are the reasons for order and order rendered in English by

[1]        Campbell J.: In three previous adjudications, the respondents have been detained pursuant to the provisions of subsections 103(6) [as am. by S.C. 1995, c. 15, s. 19] and (7) [as am. by S.C. 1992, c. 49, s. 94] of the Immigration Act[1] on the basis that they are persons who are not likely to appear for their removal should their claims for Convention refugee status not succeed. The decision in the fourth adjudication purports to release the respondents on detailed terms and conditions which are found to offset the risk that they will not so appear. The present application challenges the jurisdiction of the adjudicator to make such an order.[2]

A.        Factual background

[2]        In his thoughtful, detailed, and well-written decision, Adjudicator M. Tessler (the Adjudicator) concisely provides the background to the present case as follows:

Mr. and Mrs. Lai arrived in Canada in August 1999. They made no attempt to disguise their presence in Canada and in fact applied for and received extensions of the visitor’s visas, and advised the Department of their address change. Refugee claims were made following a meeting in May 2000 between Mr. Lai and investigators from China. Mr. and Mrs. Lai were issued with Conditional Departure Notices. Mr. Lai, who appears to have a taste for gambling, has been barred from casinos in British Columbia on a suspicion of being involved in loan sharking activities. The RCMP has produced a list of those in whose company Mr. Lai has been seen, primarily in casinos. It is alleged that many of these individuals are members of criminal gangs. While in Canada Mr. and Mrs. Lai have bought and sold a house and presently own a condominium in Burnaby. Immigration officials arrested Mr. and Mrs. Lai on 23 November 2000.

The detention of Mr. and Mrs. Lai have been considered by immigration adjudicators at three previous hearings. It has been the opinion of these adjudicators that Mr. and Mrs. Lai are unlikely to appear for their removals if released and their detentions have been continued. On this issue alone no new information was presented at this hearing. There remains credible and trustworthy evidence that Mr. and Mrs. Lai are wanted by authorities in China; that it is alleged by Chinese authorities that they are the primary players in a widespread smuggling and corruption scandal; that if returned to China they would face arrest and, if convicted, they would face long prison terms or possible death sentences; that when they learned of their imminent arrest they immediately fled Hong Kong for Canada; that they used false documents to obtain residency in Hong Kong; that they have considerable financial means at their disposal. I agree with the core reasoning of my fellow adjudicators, that from this information Mr. and Mrs. Lai have highly compelling reasons to not want to be returned to China.[3]

[3]        The respondents agree that they have highly compelling reasons to not want to be returned to China.

B.        The Adjudicator’s decision

[4]        With respect to his jurisdiction under subsection 103(7), the Adjudicator made the following critical findings:

The statutes that create, empower and govern immigration adjudicators (Immigration Act and Inquiries Act) undeniably limit an adjudicator’s authority to act. But where the Act gives an adjudicator a wide discretion, as in s. 103(7), the exercise of that discretion is limited only by creativity, reasonableness and the law. I am being asked by the Proposal to exercise my discretion to order the release of Mr. and Mrs. Lai on terms and conditions. These terms and conditions would be very stringent, confining them to their home. In my opinion while this is an unusual form of release it is not outside the proper exercise of an adjudicator’s discretion. There is precedent for this conclusion.[4]

…

Adjudicators use a practical approach in the application of s. 103(7) in detention reviews. Once the facts are established the adjudicator turns his attention to whether there are terms and conditions that on the balance of probabilities will offset the risk that the persons would not appear for removal. Fairness and common sense require that the likelihood to appear be considered in conjunction with appropriate terms and conditions.[5]

…

Mr. and Mrs. Lai have proposed an alternative to detention which once implemented will offer an appropriate and effective arrangement to reduce the risk of their not appearing for removal. The various cash bonds, the imposition of terms and conditions and the Security Contract, once finalized reduce the risk of flight such that I am satisfied that Mr. and Mrs. Lai are likely to appear for removal.[6]

[5]        As a result of these findings, the Adjudicator accepted the terms and conditions of the respondents’ detailed proposal for release which involves, among other terms and conditions, the following: the posting of a $5,000 security deposit by a private security firm hired by the respondents to enforce, at their request, the terms and conditions of their release order; a $40,000 security deposit by an anonymous friend of the respondents; a $40,000 security deposit by each of the respondents; reporting conditions; by consent, remaining “confined” to their condominium in Burnaby, except for approved reasons; by consent, agreeing to restraint by employees of the private security firm for breach of any of the terms or conditions of their release order; surrendering passports and keys to their condominium; prohibitions respecting use of a cell phone; the screening of visitors; limiting contact with other people; and the monitoring of all activities within the condominium.[7]

[6]        With respect to the operation of the proposal for release, the Adjudicator said this:

The Proposal relies on the consent of Mr. and Mrs. Lai. They would be consenting to the confinement arrangement and, if they breach the terms and conditions of their release, to restraint pending re-arrest. It would be an express term of their release to which they would agree to abide. And they would be doing so on the advice of legal counsel. If Mr. and Mrs. Lai fail to comply with any of the terms and conditions imposed on them they could be retaken into custody by a Peace Officer under s. 104. Providing Intercon with a list of contacts in case of a breach is an area where the cooperation of the Department would be helpful.[8]

[7]        With respect to the critical findings stated above, the Adjudicator referred to “precedent” for elaborate “house arrest” bail terms made under the Criminal Code [R.S.C., 1985, c. C-46][9] and the requirement to be vigilant for a Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] breach in deciding to continue the immigration detention of persons held for a long-term.[10] However, it is clear to me that, while the Adjudicator referred to these authorities in his decision as support for his conclusion on jurisdiction, the Adjudicator provided his own interpretation of subsection 103(7).

C.        The central question to be answered

[8]        I find the central question to be answered is: in making his critical findings, did the Adjudicator correctly interpret his jurisdiction to order release under subsection 103(7)?[11]

[9]        No evidence has been produced from which Parliament’s intention in enacting subsection 103(7) can be derived. Thus, it is agreed, that the decision respecting the correct interpretation is to be found in the words of the provision, considered according to statutory interpretation principles.

[10]      The applicant argues that subsection 103(7) must be applied in a two-step process. First, after considering the evidence, an adjudicator must first decide whether the person detained is likely to appear for removal; and, second, only if this finding is made, the adjudicator is required to release the person from custody, with or without terms or conditions. Respecting the purpose of the imposition of terms and conditions in such an interpretation, the applicant argued that, if ordered, they serve a coercive purpose to enhance the likelihood of appearance already found.

[11]      As found by the Adjudicator, the respondents argue that, if an adjudicator is required to make an assessment of the risk of appearance for removal without reference to terms and conditions, then the discretion to impose terms and conditions becomes meaningless. Therefore, the respondents argue for a contextual and logical interpretation because the literal interpretation advanced by the applicant leads to an illogical result which is to be avoided.[12]

D.        Analysis leading to the answer

[12]      Although it is agreed that there is no decision of this Court directly on the question to be answered, in my opinion, an evaluation of the arguments advanced can be achieved through consideration of the cases already decided with respect to subsection 103(7).

[13]      With respect to the issue of onus of proof under subsection 103(7), two cases consider the principles to be applied. In Salilar v. Canada (Minister of Citizenship and Immigration)[13] Justice MacKay said this:

It seems important also in my view, that each of those reviews must be a hearing de novo, that is in the sense that the concern, at the time of the review, is whether there are reasons to satisfy the adjudicator that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal. It is not sufficient, in my opinion, that the adjudicator proceed, as was essentially the case on June 2, by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision. Rather, the adjudicator should start with the premise that detention is an extraordinary restraint in our society and that, while subsection 103(7) would appear to put significant onus on the person in detention, there must also be an onus upon the Minister and his departmental officials to demonstrate each time that there are reasons which warrant detention of the person in question.

[14]      In Canada (Minister of Citizenship and Immigration) v. Salinas-Mendoza[14] Justice Noël decided as follows:

There is no doubt that the Adjudicator was not sitting in an appellate or judicial review capacity. But she was charged with the mandate to reassess the reasons for the detention ordered by Adjudicator Shaw Dyck, and determine whether or not the detention ought to be continued. As that last order stood before her as valid and binding, the burden was on the respondent to demonstrate that it ought not to be continued, and not on the Minister. The Adjudicator could not ignore the fact that a detention order had been issued on the basis of the same evidence as that which the Minister was now presenting before her.

[15]      I find that the decisions in Salilar and Salinas-Mendoza establish the following principles to be applied by adjudicators acting under subsection 103(7): an adjudicator must exercise the discretion provided unfettered by previous decisions rendered by whatever authority; the initial onus of proving continued detention is warranted rests with the proposer of such an order; in reaching a decision respecting continued detention, all existing factors relating to custody must be taken into consideration, including the reasons for previous detention orders being made; and if the previous reasons for continued detention are considered compelling, the onus shifts to the detained person to show, on a balance of probabilities, that release is warranted.

[16]      Sahin v. Canada (Minister of Citizenship and Immigration)[15] establishes that one factor to be taken into consideration in reaching a decision under subsection 103(7) is whether, due to the length of time already spent in detention, a detained person’s right to liberty under section 7 of the Canadian Charter of Rights and Freedoms has been breached.[16] However, as further described below, I find that this concern is but one example of the existence of a factor which can reasonably support an adjudicator’s decision to order release.

[17]      In my opinion, Sahin is an important decision respecting the question to be answered in the present case because it clearly states the requirement that, in exercising discretion under subsection 103(7), an adjudicator must be vigilant in recognizing factors which call for release. In Sahin, Justice Rothstein said this [at pages 230-231]:

In my opinion, when making a decision as to whether to release or detain an individual under subsection 103(7) of the Immigration Act, an adjudicator must have regard to whether continued detention accords with the principles of fundamental justice under section 7 of the Charter. As I have earlier observed, it is not the words of section 103 that vest adjudicators with such jurisdiction, but rather, the application of Charter principles to the exercise of discretion under section 103.

I acknowledge that the necessity to apply Charter principles in deciding whether or not to continue detention, increases and complicates the considerations to which adjudicators must have regard, and I am not unmindful of the burden of their duties and the limited time they have to make decisions. But once it is accepted that individuals to whom section 103 applies are entitled to Charter protection, it must follow that detention decisions must be made with section 7 Charter considerations in mind.

I expect that as precedents develop, guidelines will emerge which will assist adjudicators in these difficult decisions. To assist adjudicators I offer some observations on what should be taken into account by them. Both counsel for the applicant and respondent were helpful in suggesting a number of considerations. The following list, which, of course, is not exhaustive of all considerations, seems to me to at least address the more obvious ones. 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 numbers, detention in a form that could be less restrictive to the individual, etc.

[18]      I find that, through implicit and explicit reference, each of Salilar, Salinas-Mendoza, and Sahin authorize, and in some cases expect, an adjudicator to release on terms and conditions which satisfy him or her that a detained person is likely to appear for removal. Both counsel for the applicant and respondents admit that, indeed, this is a widely applied approach in the present day-by-day practice of adjudicators acting under subsection 103(7).

[19]      The circumstances under which a person comes into detention, as well as what they say and do while in detention, is all evidence which can lead to the conclusion that he or she will not appear for removal. For example, it might be usual in the case of a young person with no means, no family, and no friends in Canada, who expresses fear of detention and resentment towards Immigration authorities, that understandably a concern will arise that he or she will not appear for removal. However, in the same case, even though the fear and resentment might continue to exist, and, therefore, the risk of flight remains, if a community assistance organization with experience in dealing with such a person comes forward and gives assurances that it will provide food, shelter, and constant supervision, it is very easy to find that, under these terms and conditions, it is likely that the person will settle down, remain, and appear for removal.

[20]      To use the two-step process of interpreting subsection 103(7) in the hypothetical scenario just described would mean that the fearful and resentful young person would be kept in detention and isolation with no hope of release. In my opinion, under such circumstances, this interpretation creates an absurdity.

[21]      It is important to note that, while the fact situation of the respondents and their proposal for release is far more elaborate than the simple hypothetical scenario described, I find the considerations are the same.

[22]      In Sahin, Justice Rothstein fosters a contextual, practical, and pragmatic approach to immigration detention by saying to adjudicators: “do not wait to endorse a release plan until you have detained a person so long that his or her Charter rights have been breached; consider alternatives to detention to avoid this result”. According to the two-step interpretation applied in the usual case of a person considered unlikely to appear, and without an adjudicator having the power to release on terms and conditions making it likely he or she would appear, that person would simply remain in custody until released outright as a remedy granted for a breach of his or her Charter rights. Again, in my opinion, under such circumstances, considered in the fundamental justice and individual rights sensitive context of present day Canadian society, the two-step interpretation creates an absurdity.

E.        Answer to the question

[23]      I find that, as argued by the respondents, because it fails to recognize the fundamental importance of the power to impose terms and conditions of release provided in subsection 103(7), the two-step interpretation advanced by the applicant produces an illogical result. In addition, I find that, as such a mechanical interpretation has the potential to create an absurd result in usual cases, it must be avoided in all cases involving the application of discretion under subsection 103(7).

[24]      Therefore, I completely agree with the adjudicator’s critical findings with respect to the interpretation of subsection 103(7) as above quoted.

[25]      In my opinion, the Adjudicator reasonably found that the conclusions reached in the prior three detention reviews constituted a compelling factor weighing against the respondents’ release, but also correctly found it within his jurisdiction to accept their detailed release proposal as an effective counter-weighing factor allowing their release. No doubt the fact that the proposal puts in place a high level of consensual confinement was an important consideration which worked in the respondents’ favour. In my opinion, there is absolutely nothing wrong in the respondents agreeing to such stringent limits of their liberty, nor in their acceptance by the Adjudicator.

[26]      Thus I find the answer to the central question in the present case is: yes, in making his critical findings, the Adjudicator correctly interpreted his jurisdiction to order release under subsection 103(7).

F.         Ancillary matters

[27]      There are two ancillary matters which require comment. First, it is agreed by the respondents that the Adjudicator was correct in describing the proposal as presently “a work in progress” which requires finalization. Therefore, in my opinion, while the terms of the proposal have been accepted by the Adjudicator, the orders for release based on them cannot go into effect until the “work” is completed. On this basis, perhaps the Adjudicator was premature in signing the orders for release on the date of his decision, since the respondents were also found incapable of accepting the terms as specified in the orders until the final proposal arrangements were concluded. While more needs to be done before the Adjudicator will allow the orders to become effective, I do not find this impediment affects their validity.

[28]      Second, much has been made of the issue of whether the consensual confinement of the respondents to their condominium in Burnaby contravenes that municipality’s zoning restrictions. The Adjudicator found insufficient evidence to reach the conclusion that it does. I can see no reviewable error in the making of this finding.

ORDER

[29]      As required by subsection 82.1(1) [as enacted by R.S.C., 1985 (4th supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73] of the Immigration Act, an application for judicial review can only be commenced with leave of a judge of this Court. The test for granting leave is whether an applicant has an arguable case in which there is a possibility of success.[17] In the present case, by agreement, both the argument for leave and judicial review were heard together.

[30]      I find that the argument advanced by the applicant meets the test for leave. However, for the reasons provided, the present application for judicial review is dismissed. I also hereby terminate the stay order in effect.

[31]      With respect to whether a serious question of general importance should be certified for consideration by the Appeal Division, on the jurisdictional question central to the present application, upon being asked in oral argument, neither the applicant nor respondents argued there is one. Accordingly, I find there is none.

APPENDIX

Immigration Act,

R.S.C., 1985, c. I-2

103. …

(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 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.

(7) Where an adjudicator who conducts a review pursuant to subsection (6) is satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal, the adjudicator shall order that the person be released from detention subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond.

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