Federal Court Decisions

Date: 20020325

Docket: IMM-1707-01

Neutral citation: 2002 FCT 335

BETWEEN:

                                          MICHEL GAYLE

                                                                                                     Applicant

                                                    - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

                                  REASONS FOR ORDER

DAWSON J.

[1]    Michel Gayle brings this application for judicial review from the decision dated March 20, 2001 of the Operations Manager of Unit 13 at Greater Toronto Enforcement Center ("GTEC"), Canada Immigration, that a cash bond in the amount of $10,000 and a performance bond in the further amount of $10,000, both made by Ms. Gayle on April 18, 2000, be forfeited and realized.

THE FACTS

[2]    Ms. Gayle acted as a bondsperson on two occasions for Hansel Lynch, also known as Nathan Lynch, a Jamaican citizen living in Canada.

[3]    In April 2000, Mr. Lynch was arrested, charged, released from jail on bail and placed on immigration hold. On April 18, 2000, Ms. Gayle signed a cash bond and a performance bond together totalling $20,000, securing Mr. Lynch's release from immigration hold. For the purpose of this application, the relevant condition imposed upon Mr. Lynch was that Nathan Lynch would surrender his passport to an immigration officer on or before May 19, 2000.

[4]    On June 8, 2000, Mr. Lynch was taken into custody again because it had been discovered that he had provided immigration officials with a false name, Nathan Lynch, whereas his birth name was Hansel Lynch. On August 22, 2000, Ms. Gayle attended a detention review hearing to offer a further bond, but Mr. Lynch was not released. Ms. Gayle then attended a further detention review hearing on September 27, 2000. At that time Mr. Lynch's release was secured and Ms. Gayle posted another $10,000 cash bond and a further $10,000 performance bond.

[5]                 On November 15, 2000, Mr. Lynch left Canada voluntarily, although under a deportation order. Counsel for Ms. Gayle then wrote to immigration officials requesting return of the bonds.

[6]                 By letter dated November 23, 2000, Ms. Gayle was advised that Canada Immigration was going to forfeit and realize the bonds she had posted on April 18, 2000. Ms. Gayle's counsel made several submissions by mail and by telephone with respect to this decision.

[7]                 By letter dated March 20, 2001, the Operations Manager reiterated the decision that the bonds would be forfeited and realized.

THE OPERATIONS MANAGER'S DECISION

[8]                 In her letter to Ms. Gayle's counsel dated March 20, 2001 the Operations Manager wrote as follows:

This refers to your recent correspondence regarding the refund of bond monies posted by Michel Gayle for the release of Mr. Lynch from detention.

As you are aware, there were two occasions in this case wherein Ms. Gayle posted bonds for the release of Mr. Lynch from detention. The second bond for $10,000 (B95243) was taken for Mr. Lynch's release from detention on 27 September 2000 and I am satisfied that Mr. Lynch complied with the terms of this release.

However, Mr. Lynch was also released from detention on 18 April 2000 under the alias of Nathan Lynch, (date of birth 11 June 1971) on bonds signed by Michel Gayle - a Cash bond in the amount of $10,000 (B95153) and a Performance bond also in the amount of $10,000. The terms of his release specified that Nathan Lynch was to surrender his passport to an Immigration officer on or before 19 May 2000. The passport was not provided to us by that date resulting in a violation of the terms of Mr. Lynch's release.

For this reason, I have determined that the Cash bond (B95193) [sic] and the Performance Bond taken on 18 April 2000 should be forfeited for this violation. The refund for the Cash Bond taken on 27 September will be applied against the outstanding Performance bond of 18 April to satisfy this obligation to the Receiver General.

[9]                 It was not disputed that Nathan Lynch did not surrender any passport.

THE ISSUE

[10]            While Ms. Gayle raised a number of issues with respect to the decision, I have only found it necessary to consider one issue: whether the Operations Manager failed to act fairly in the exercise of her discretion when she caused the bonds to be forfeited and realized?

ANALYSIS

[11]            Once detained, subsection 103(3) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") authorized an adjudicator under the Act to release Mr. Lynch from detention subject to terms and conditions, including the payment of a security deposit or the posting of a performance bond.

[12]            Section 104 of the Act then provided:

104. Where a person fails to comply with any of the terms or conditions imposed under paragraph 103(3)(c) or with any of the terms or conditions subject to which he is released from detention under any provision of this Act (a) any security deposit that may have been made either pursuant to paragraph 103(3)(c) or as a condition of the person's release may be declared forfeited by the Minister, or (b) the terms of any performance bond that may have been posted may be enforced and, where the person has been released from detention, he may be retaken into custody forthwith and held in detention.		104. L'inobservation des conditions fixées en application de l'alinéa 103(3)c) ou des conditions de la mise en liberté accordée aux termes de la présente loi peut entraîner, dans ce dernier cas, une nouvelle mise sous garde et, dans les deux cas_: a) soit la confiscation par le ministre du cautionnement fourni; b) soit la réalisation en justice de la garantie de bonne exécution.

[13]            The purpose of using cash deposits and performance bonds is to allow the release of a person in immigration detention on terms necessary to ensure compliance with the Act and associated regulations.

[14]            Forfeiture of any cash bond and enforcement of any performance bond do not follow automatically from the failure to comply with a term or condition. Rather, the Minister has discretion as to whether any deposit should be forfeited and any performance bond enforced.

[15]            This discretion has been delegated by instrument to officers such as the Operations Manager of Unit 13 at GTEC.

[16]            The Act is silent as to the principles which govern the exercise of discretion, but Chapter EC8 of the Citizenship and Immigration Canada Enforcement and Control Manual provides ministerial guidelines to officers as to the values and principles which are to inform their decisions.

[17]            Section 6 of Chapter EC8 of the Manual advises officers that the discretionary authority was included in the Act to allow for those situations where, in the judgment of the officer, the conditions of the security deposit were violated through no fault of the individual or where extenuating humanitarian considerations exist.

[18]            Section 6.3 advises officers that they should consider each case on its merits, and advise in writing of the reason that action is being taken to forfeit the cash deposit or realize the performance bond.

[19]            In the present case, the Operations Manager set forth in her decision letter one reason, and one reason only, for the decision to require forfeiture and enforcement. That reason was that Mr. Lynch had failed to comply with a term of his release. While that was a condition precedent for the exercise of the discretion reposed in the officer, such reason does not evidence that the officer directed her mind to the exercise of discretion or to the principles which should guide the exercise of that discretion.

[20]            Aside from acknowledging in the opening sentence of the decision letter the existence of correspondence, the decision letter is silent as to any matter considered by the officer other than the fact that Mr. Lynch's passport was not surrendered to an immigration officer in the required time frame.

[21]            In addition to reviewing the officer's letter to Ms. Gayle's lawyer, I have reviewed carefully the tribunal record in its entirety in order to determine the factors considered by the Operations Manager. No affidavit was provided by the officer, and counsel for the Minister was unable to point to any writing or record prepared by the Operations Manager that evidenced that the Operations Manager considered all of the circumstances of the case and particularly directed her attention to the matters advanced on Ms. Gayle's behalf as being extenuating humanitarian considerations.

[22]            Assuming, without deciding, that the applicable standard of review is patent unreasonableness, I find that the Operations Manager erred in principle by making her decision without regard to the principles contained in the guidelines and without apparently considering the asserted humanitarian considerations.

[23]            Counsel for the Minister argued that the Operations Manager's reasons need not deal with every issue, but rather must explain the officer's conclusions on the issues that were of central importance. Reliance was placed upon the decision of the Federal Court of Appeal in Stelco Inc. v. British Steel Canada Inc., [2000] 3 F.C. 282 at paragraph 24.

[24]            At the risk of repetition, the conclusion arrived at was explained by the Operations Manager as being based entirely on the fact that the passport was not provided to immigration officials by the appropriate date in violation of a term of Mr. Lynch's release. Of central importance to the proper exercise of discretion was recognition of the existence of that discretion, and its exercise pursuant to proper principles. While every factor asserted by Ms. Gayle did not have to be dealt with in the Operations Manager's decision, neither her stated reason nor the tribunal record as a whole demonstrates the proper exercise of that discretion.

[25]            For these reasons, the application for judicial review will be allowed.

[26]            Counsel for the parties are each given seven days from the date of receipt of these reasons to serve and file submissions to the Court on the issue of certification of a question pursuant to subsection 83(1) of the Act. Additionally, counsel are given a further period of three days in which to serve and file any reply submissions. Once all submissions are received and considered an order will issue allowing the application for judicial review.

     

"Eleanor R. Dawson"

                                                                                                                              Judge                        

  

Ottawa, Ontario

March 25, 2002