Date: 20010727
Neutral citation: 2001 FCT 838
Vancouver, British Columbia, Friday, the 27th day of July, 2001
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
RUI JIAO LIN
Respondent
REASONS FOR ORDER and ORDER
INTRODUCTION
[1] The Minister of Citizenship and Immigration (the "Applicant") seeks judicial review of the decision of Otto Nupponen (the "Adjudicator") dated March 1, 2000. In his decision, the Adjudicator ordered the release of Rui Jiao Lin (the "Respondent") from the detention of Canada Immigration.
FACTS
[2] The Respondent entered Canada in August 1999 as a passenger upon a ship carrying passengers from the Fujian region of China. She had no authority to enter Canada and was detained by Canada Immigration authorities upon her arrival in Canada. She was initially detained for the purpose of identification. Following a review of detention conducted by a senior immigration officer on September 3, 1999, an exclusion order was issued against her. She was held in detention after the hearing on September 3, 1999 and that detention has been periodically reviewed pursuant to the provisions of the Immigration Act, 1985, R.S.C. c. I-2, as amended (the "Act").
[3] The Adjudicator conducted a review on February 29, 2000. He reviewed the transcripts of prior review hearings conducted on November 24, 1999 and February 8, 2000. He concluded that the Respondent's Charter rights to a full and fair hearing had been compromised as a result of inadequate interpretation. The Adjudicator also concluded that the previous adjudicators had applied the wrong test in deciding whether to release the Respondent from detention. The former adjudicator had stated the test in terms of being satisfied that the Respondent would not report for removal. According to the Adjudicator, the correct test was whether an applicant is "likely" to appear for removal.
[4] The Adjudicator ordered that the Respondent be released from detention, upon conditions.
ISSUES
[5] The Applicant raises two issues in this application. First, she says that the Adjudicator acted in excess of his jurisdiction when he purported to review decision made by earlier adjudicators. Second, she says that the Adjudicator lacked sufficient evidence to support his conclusion that the Respondent would likely appear for removal.
Applicant's Submissions
[6] The Applicant argues that the Adjudicator erred in law when he purported to review prior decisions of the adjudicators and to use those decisions as a basis for finding that the Respondent's Charter rights had been infringed.
[7] The Applicant says that each detention is a hearing de novo where the adjudicator must reach a decision on the basis of the evidence adduced at that hearing. In consequence, it was an error for the Adjudicator to base his decision on previous hearings. The Applicant here relies on Armadale Communications Ltd. v. Adjudicator (Immigration Act), [1991] 3 F.C. 242.
[8] The Applicant also argues that the Adjudicator lacked sufficient evidence to support his conclusion that the Respondent would likely appear for removal, if required. The Applicant says that the only evidence before the Adjudicator in this regard was the Respondent's testimony that she would appear for removal.
Respondent's Submissions
[9] The Respondent did not appear and participate in this application, although notice of the date of hearing was sent to her last known address.
ANALYSIS
[10] The jurisdiction of an adjudicator is governed by section 80.1(1) of the Act which provides as follows:
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Sole and exclusive jurisdiction 80.1 (1) Subject to section 40.2, an adjudicator has sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in the course of proceedings that are required by this Act to be held before an adjudicator. |
Compétence exclusive 80.1 (1) Sous réserve de l'article 40.2, l'arbitre a compétence exclusive pour connaître et décider des questions de droit et de fait, y compris les questions de compétence, dans le cadre des procédures instruites devant lui sous le régime de la présente loi. |
[11] The Applicant's first submission is that the Adjudicator erred in proceeding as if the hearing were an appeal of the first adjudicator's decision, rather than as a hearing de novo. However, in Canada (Minister of Citizenship and Immigration) v. Salinas-Mendoza [1994] F.C.J. No. 1485, this Court recognized the propriety of acknowledging prior decisions, as follows:
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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. |
Il ne fait aucun doute que l'arbitre n'avait pas les pouvoirs d'un tribunal d'appel ou de contrôle judiciaire. Elle avait cependant le mandat d'examiner les motifs de la détention ordonnée par l'arbitre Dyck, et de déterminer si cette détention devait être prolongée. Comme cette ordonnance était valide et exécutoire, il incombait à l'intimé, non au ministre, de démontrer que la détention ne devait pas être prolongé. L'arbitre ne pouvait pas ne pas tenir compte du fait qu'une ordonnance de détention avait été rendue à partir de la même preuve que celle que le Ministre lui présentait. |
[12] In Canada (Minister of Citizenship and Immigration) v. Lai [2001] F.C.J. No. 441, Justice Campbell found that the discretion of an adjudicator must not be fettered by earlier decisions, and that the onus of proving continued detention resides with the Minister. As he wrote at paragraph 15:
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[15] I find that the decisions in Salilar and Salinas-Mendoza establish the following principles to be applied by adjudicators acting under s.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. |
[15] Je conclus que les décisions Salilar et Salinas-Mendoza établissent les principes suivants que les arbitres doivent mettre en oeuvre lorsqu'ils agissent en vertu du paragraphe 103(7) : un arbitre doit exercer sa compétence sans être entravé par des décisions antérieures, quelle que soit leur provenance; le fardeau de prouver qu'il y a lieu de maintenir une personne en détention est imposé, à l'origine, à la personne qui propose une telle ordonnance; tous les facteurs liés à la détention doivent être examinés, y compris les motifs de toute ordonnance antérieure de dotation, lorsqu'il s'agit de décider s'il y a lieu de prolonger la détention; si les motifs de prolonger la détention sont jugés très solides, le fardeau de prouver, au vu de la prépondérance des probabilités, que la libération est indiqué, se déplace pour incomber au détenu. |
[13] In my opinion, the Applicant's submission relating to the Adjudicator's finding of a breach of Charter rights is meritorious. The Adjudicator found that the Respondent had been denied a fair hearing. His conclusion, based upon a review of the transcripts from the hearings was as follows:
Having considered and set out Lin Rui Jiao's sad plight respecting her lack of sophistication and her preferred language issues in quite some detail, it is clear she did not have the benefit of a fair hearing with the opportunity of fairly and squarely addressing issues on which her continued detention depended. She has every right to conclude that the very justice system which was in place to protect her, did no such thing. She has been in detention in excess of three (3) months longer than is reasonably justifiable.
[14] In my opinion, the Adjudicator relied on his finding of a breach of Charter rights to a fair hearing as a basis for finding that the continued detention of the Respondent was unjustified. This conclusion could only be reached by a review of the process followed in previous hearings and infers that the Adjudicator assumed an appellate role. That was beyond his jurisdiction and was an error. However, this error does not dispose of the matter.
[15] The Adjudicator went on to find, on the basis of the Respondent's evidence before him, that she was indeed likely to report for removal if required. It appears that he took into account all the evidence before him, including transcripts of all previous detention review hearings and exhibits submitted before the adjudicators. He accepted the evidence of the Respondent on face value. In my opinion, he was entitled to do so. A contrary finding would mean that this Court has assumed the role of assessing the evidence before the Adjudicator and that role has been assigned to the Adjudicator by section 80.1(1) of the Act.
[16] The application for judicial review is dismissed. There is no question for certification arising from this application.
ORDER
[17] The application for judicial review is dismissed.
(Sgd.) "Elizabeth Heneghan"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1098-00
STYLE OF CAUSE: The Minister of Citizenship and Immigration v. Rui Jiao Lin
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 25, 2001
REASONS FOR ORDER OF THE COURT BY: Heneghan, J.
DATED: July 27, 2001
APPEARANCES:
Mark Sheardown FOR APPLICANT
FOR RESPONDENT
SOLICITORS OF RECORD:
Deputy Attorney General of Canada FOR APPLICANT
Vancouver, British Columbia
- FOR RESPONDENT