Date: 19990520 Docket: DES-1-98
BETWEEN:
IQBAL SINGH,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE SOLICITOR GENERAL OF CANADA,
Respondents.
REASONS FOR ORDER
UNDER SUBSECTION 40.1(9) OF THE IMMIGRATION ACT
ROTHSTEIN, J.
[1] The issue in these proceedings under subsections 40.1(8) and (9) of the Immigration
Act' (the "Act") is whether the applicant should be released from detention. Subsections
40.1(8) and (9) provide:
(8) Right to Apply - Where a Demande person is detained under subsection
(7) and is not removed from Canada (8) La personne retenue en vertu du
within 120 days after the making of paragraphe (7) peut, si elle n'est pas
the removal order relating to that renvoyée du Canada dans les cent
person, the person may apply to the vingt jours suivant la prise de la
t R.S.C. 1995, c. 1-2, as amended.
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Chief Justice of the Federal Court or to a judge of the Federal Court designated by the Chief Justice for the purposes of this section for an order under subsection (9).
mesure de renvoi, demander au juge en chef de la Cour fédérale ou au juge de cette cour qu'il délègue pour l'application du présent article de rendre l'ordonnance visée
au paragraphe (9).
(9) Order for Release - On an application referred to in subsection (8) the Chief Justice or the designated judge may, subject to such terms and conditions as the Chief Justice or designated judge deems appropriate, order that the person be released from detention if the Chief Justice or designated judge is satisfied that
(a) the person will not be removed from Canada within a reasonable time; and
(b) the person's release would not be injurious to national security or to the safety of persons.
Ordonnance
(9) Sur présentation de la demande visée au paragraphe (8), le juge en chef ou son délégué ordonne, aux conditions qu'il estime indiquées, que l'intéressé soit mis en liberté s'il estime que
a) d'une part, il ne sera pas renvoyé du Canada dans un délai raisonnable;
b) d'autre part, sa mise en liberté ne porterait pas atteinte à la sécurité nationale ou à celle de personnes.
[2] It is apparent that to order release, the designated judge must be satisfied both that the applicant will not be removed from Canada within a reasonable time and that his release
would not be injurious to the safety of persons. (The respondents have stipulated that national security is not an issue in this application).
[3] The chronology of relevant events is as follows:
a) December 23, 1993:
Applicant is determined to be a Convention refugee;
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| b) January 25 and |
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| March 16, 1998: |
Solicitor General of Canada and Minister of |
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Citizenship and Immigration issue a Certificate |
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under subsection 40.1(1) of the Act that they are |
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of the opinion that the applicant is a person |
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described in paras. 19(1)(e)(2), 19(1)(e)(4)(b), |
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19(1)(e)(4)(c), 19(1)(/)(2) and 19(1)(/)(3)(b) of the |
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Act; |
| c) April 2, 1998: |
Applicant is detained pursuant to para. 40.1(2)(b) |
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of the Act; |
| d) July 10, 1998: |
This Court determines that the Ministers' |
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Certificate was reasonable pursuant to para. |
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40.1(4)(4) of the Act; |
| e) August 4, 1998: |
Adjudicator W.K. Wiloughby, holds an inquiry |
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and finds that the applicant is a person described |
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in paras. 27(2)(a), 19(1)(e)(2), 19(1)(e)(4)(b), |
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19(1)(e)(4)(c), 19(1)(/)(2) and 19(1)(/)(3)(b) of the |
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Act. |
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Wiloughby orders that the applicant be deported |
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pursuant to subsection 32(6) of the Act. |
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The deportation order is served on the applicant; |
| f) December 9, 1998: |
Minister of Citizenship and Immigration renders |
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her opinion pursuant to para. 51(1)(b) of the Act |
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that the applicant constitutes a danger to the |
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security of Canada; |
| g) December 11, 1998: |
Applicant applies to the Federal Court in action |
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IMM-4825-98 for an order for an interim |
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injunction enjoining his removal to India until |
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such time as the action is determined; |
| h) December 14, 1998: |
Applicant is served with a notice advising of his |
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removal arrangements from Canada to India |
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scheduled for December 21, 1998. |
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Evans J. grants an interim injunction restraining |
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the removal of the applicant pending |
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determination of a claim for an interlocutory |
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injunction to restrain his removal from Canada;
i) March 24, 1999: Applicant files motion for release from detention pursuant to subsection 40.1(8) of the Act;
k) March 25, 31
and April 19, 1999: Hearings on applicant's s. 40.1(8) application for release;
[4] At the April 19, 1999 hearing in this matter, the Court was advised that Mr. Justice Evans had dismissed the applicant's interlocutory injunction application in Court file IMM4825-98, with leave to make an application for a stay of removal in concurrent judicial review proceedings brought by the applicant. Counsel for the applicant advised that such stay application would be made and that I should defer any decision on the issue of release pending a decision on the stay application. Counsel for the Minister undertook that the applicant would not be removed pending determination of the intended stay application. On Monday, May 3, 1999 the stay application was granted by Rouleau J. By letter dated May 10, 1999, applicant's counsel advised the Court of these developments.
[5] In Ahani v. Minister of Citizenship and Immigration and Solicitor General of Canada', Denault J. determined that the onus was on the applicant for release to satisfy the Court of the requirements of subsection 40.1(9). 1 agree. The first question then is whether the applicant has established that he will not be removed from Canada within a reasonable time.
Court file DES-4-93, March 15, 1999.
Page: 5 [6] The Minister of Citizenship and Immigration is ready and willing to remove the
applicant to India, but for the Court imposed stay of his removal granted upon his application. Therefore, the reason for the delay in the applicant's removal is not due to any inability or negligence on the part of the Minister. It is solely due to steps the applicant has taken to prevent the Minister from removing him. I have considerable difficulty with the proposition that an individual, by his own actions or decisions, may delay his removal and then rely on the delay he caused to argue that he will not be removed from Canada within a reasonable time.
Paragraph 38.1(c) of the Act provides that one of the purposes of section 40.1 is:
(c) to provide a process for the expeditious removal of persons found to be members of an inadmissible class referred to in section 39 or 40.1.
In this context, subsection 40.1(9) is a relieving provision for individuals who, through no fault or action of their own, are not being removed by the Minister expeditiously. That is not the case here. An individual is free to take those steps available to him at law to remain in Canada. If he does so, however, he may not claim that on the basis of his own actions, that he will not be removed from Canada within a reasonable time for purposes of paragraph 40.1(9)(a).
[8] I think this conclusion is consistent with the reasons of McGillis J. in Ahani v. Canada
(1995), 3 F.C. 669 at 695,
Furthermore, a review of the provisions of section 40.1 of the Immigration Act and its legislative purpose as expressed in section 38.1 confirms that the proceedings are to be conducted expeditiously, with a concomitant expectation
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that the detention of the person will not be lengthy. As I indicated earlier, the fact that a person fails to avail himself of his opportunity to be heard and choses [sic] to remain in custody in Canada, rather than seeking to depart from the country, cannot be used as a basis for legitimizing his assertion that his detention violated the principles of fundamental justice.
[9] In view of my conclusion respecting unreasonable delay, it is not strictly necessary that the issue of whether the applicant's release would be injurious to the safety of persons be decided. However, I would add that I have considered the evidence that I examined incamera and in the absence of the applicant and applicant's counsel, as presented by the respondents in relation to the safety of persons. The applicant has failed to satisfy me that his release would not be injurious to the safety of persons.
[10] The application for release is dismissed.
"Marshall Rothstein"
Judge
TORONTO, ONTARIO May 20, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: STYLE OF CAUSE:
DES-1-98
IQBAL SINGH
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE SOLICITOR GENERAL OF CANADA
DATES OF HEARING: PLACE OF HEARING: REASONS FOR ORDER BY: DATED:
APPEARANCES:
MARCH 25, 31, AND APRIL 19, 1999
TORONTO, ONTARIO
ROTHSTEIN J.
TUESDAY, MAY 20, 1999
Mr. Lome Waldman
For the Applicant
Mr. Robert Batt
Ms. Marthe Beaulieu
For the Respondents
SOLICITORS OF RECORD:
Jackman, Waldman & Associates Barristers & Solicitors
281 Eglinton Ave. E. Toronto, Ontario M4P 1 L3
For the Applicant
Morris Rosenberg Deputy Attorney General of Canada
For the Respondents