Date: 20020408
Docket: IMM-6474-00
Neutral citation: 2002 FCT 381
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
NARIMAN ZANGENEH KAMAIL
(a.k.a. NARIMAN ZANGENEH KAMALI)
Respondent
[1] This is an application for judicial review under section 82.1 of the Immigration Act R.S.C. 1985 c. I-2 of the decision of the adjudicator from the Immigration and Refugee Board Adjudication Division, dated December 8, 2000, wherein the adjudicator, sitting in review of the respondent's detention under subsection 103(6) of the Immigration Act, supra, ordered that the respondent be released from Immigration detention.
[2] The applicant seeks an order setting aside the decision of the adjudicator and referring the matter back for redetermination by a differently constituted panel of the Adjudication Division in a manner consistent with any reasons for decision or directions given by this Honourable Court.
Background
[3] The respondent is a citizen of Iran.
[4] On January 20, 1994, an immigration adjudicator issued a conditional departure order to the respondent.
[5] The Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board determined on August 28, 1995 that the respondent was not a Convention refugee.
[6] On October 27, 1995, the Federal Court, Trial Division, dismissed the respondent's application for leave challenging the determination of the CRDD.
[7] On August 6, 2000, immigration authorities placed the respondent in immigration detention.
[8] Detention review hearings occurred on August 9, 2000, August 16, 2000, September 15, 2000, October 13, 2000, and November 10, 2000. At each detention review hearing, the presiding adjudicator ordered that the respondent's detention be continued. The adjudicators were not satisfied that the respondent would likely appear for removal.
[9] On December 8, 2000, a detention review hearing occurred before the adjudicator. A representative of the applicant was present.
[10] The purpose of the hearing was for the adjudicator to review the reasons for the respondent's detention and decide whether the respondent should remain detained or be released. The applicant and respondent both provided submissions and the adjudicator asked questions of both parties. Following a recess, the adjudicator ordered the respondent's release from detention on a bond which contained terms and conditions. The adjudicator provided reasons for the decision.
[11] On December 9, 2000, the respondent posted the required bond and was released from immigration custody pursuant to the adjudicator's order of December 8, 2000.
[12] The respondent has not been deported to Iran as a travel document from the Iranian government is required for entry to Iran and the Iranian government will not issue a travel document unless the application for the document is signed by the applicant (the respondent in this proceeding). The respondent refuses to sign the application for the travel document.
Applicant's Submissions
[13] The applicant, the Minister of Citizenship and Immigration, submits that the adjudicator noted that the likelihood of the respondent appearing for removal to Iran was "nil" and that the adjudicator was not convinced that the respondent was willing to report "under any circumstance" for deportation to Iran if released on bond.
[14] The applicant submits that subsection 103(7) of the Immigration Act, supra readily provides that an adjudicator must detain unless he is satisfied that the person in detention is not likely to pose a danger to the public in Canada and is likely to appear for removal. The applicant submits that upon making a finding of "not likely to appear", an adjudicator must detain.
[15] The adjudicator decided the case in favour of the respondent based on finding that the detention was indefinite.
[16] The applicant submits that the adjudicator based his decision on an egregious misappreciation of the evidence before him. The applicant submits that the adjudicator perversely ignored or discounted the evidence that it was the respondent, and not the Minister, who was the author of his own continued detention by intentionally creating and maintaining the sole impediment to his removal from Canada.
[17] The applicant submits that the adjudicator erred in law by misapprehending and misapplying this Court's judgment in Sahin v. Canada (Minister of Citizenship and Immigration) [1995] 1 F.C. 214 (T.D.).
[18] The applicant submits that the respondent's lack of cooperation with Immigration officials should count against him, and not against the Minister, with respect to whether the detention is indefinite.
[19] The applicant submits that the adjudicator's decision leads to an absurd and perverse result that cannot have been intended by Parliament in that it defeats the purpose of section 103 and the overall purpose of the Immigration Act, supra, and compromises the efficacy of the Act as a whole.
Respondent's Submissions
[20] The respondent submits that the copies of documents appended to the affidavit of Rob Stratigopoulos were not submitted in evidence before the adjudicator. The respondent submits that it is trite that an applicant on judicial review cannot rely on evidence that was not before the tribunal.
[21] The respondent submits that in Salilar v. Canada (Minister of Citizenship and Immigration) [1995] 3 F.C. 150 (T.D.), this Court stated that each detention review must be a hearing de novo, and that the applicant cannot rely on what happened at previous detention reviews.
[22] The respondent submits that while section 103(7) appears to put a significant onus on the person in detention, there must also be an onus upon the Minister and her officials to demonstrate at each review that there are reasons which warrant detention of the person.
[23] The respondent cites the Sahin, supra decision of Rothstein J. (as he then was) for the proposition that immigration detention is an extraordinary restraint and detention may not be indefinite. The respondent submits that Sahin, supra mandates adjudicators to look into the future and consider whether any immigration detainee is being detained indefinitely. The respondent submits that the adjudicator acted appropriately following Sahin, supra.
[24] The respondent submits that the adjudicator made a key finding that although the respondent had not cooperated in his removal to Iran, the applicant "has not until now pursued any alternatives whatsoever for removal". The respondent submits that it was within the adjudicator's discretion to consider this factor against the applicant. The respondent submits that the adjudicator viewed this factor as highly relevant and that the applicant was remiss in not presenting evidence of having pursued any alternatives to removal to Iran.
[25] The respondent submits that this Court can only interfere with the adjudicator's decision if it contains an error of law or a perverse or capricious or patently unreasonable error of fact. The respondent submits that the applicant has not demonstrated such an overriding error of this nature.
Issue
[26] Did the adjudicator commit a reviewable error?
Relevant Statutory Provisions and Regulations
[27] Subsection 53(1) of the Immigration Act, supra, states:
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53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless |
53. (1) Par dérogation aux paragraphes 52(2) et (3), la personne à qui le statut de réfugié au sens de la Convention a été reconnu aux termes de la présente loi ou des règlements, ou dont la revendication a été jugée irrecevable en application de l'alinéa 46.01(1)a), ne peut être renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, sauf si, selon le cas_: |
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(a) the person is a member of an inadmissible class described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; (b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada; or (c) the person is a person described in subparagraph 27(1)(a.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada; or (d) the person is a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada. |
a) elle appartient à l'une des catégories non admissibles visées à l'alinéa 19(1)c) ou au sous-alinéa 19(1)c.1)(i) et que, selon le ministre, elle constitue un danger pour le public au Canada; b) elle appartient à l'une des catégories non admissibles visées aux alinéas 19(1)e), f), g), j), k) ou l) et que, selon le ministre, elle constitue un danger pour la sécurité du Canada; c) elle relève du cas visé au sous-alinéa 27(1)a.1)(i) et que, selon le ministre, elle constitue un danger pour le public au Canada; d) elle relève, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d) et que, selon le ministre, elle constitue un danger pour le public au Canada. |
[28] The relevant subsections of section 103 of the Immigration Act, supra state:
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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 |
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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(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. . . . (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. |
. . . (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_: 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. (7) S'il est convaincu qu'il ne constitue vraisemblablement pas une menace pour la sécurité publique et qu'il ne se dérobera vraisemblablement pas à l'interrogatoire, à l'enquête ou au renvoi, l'arbitre chargé de l'examen prévu au paragraphe (6) ordonne la mise en liberté de l'intéressé, aux conditions qu'il juge indiquées en l'espèce, notamment la fourniture d'un cautionnement ou d'une garantie de bonne exécution. |
Analysis and Decision
[29] At the hearing, the adjudicator provided the decision and reasons orally. The reasons of the adjudicator included the following:
So what I must consider in my decision today is the likelihood of your appearance for deportation from Canada to the one and only destination the Department has available to it that being to your country of nationality or citizenship being Iran.
I am not convinced that you would be willing to report under any circumstances for deportation to Iran if released on a bond.
With respect to the second issue, specially charter implications, I have concerns about the position advanced by the Minister's representative this afternoon. I am told that the Immigration Department has not until now pursued any alternatives whatsoever for removal. I am further told that the Person Concerned can be removed only to Iran and Iranian officials will only accept applications, which have been completed by the Person Concerned.
. . .
At this very moment there is no greater an understanding as to when removal will be executed or even maybe executed then existed at the 48 hour review of the 9th of August 2000. Given Mr. Stratigopoulos' comment that the subject can only be removed to Iran that Iranian officials will only accept applications completed by the Person Concerned, and in consideration of the Person Concerned's position it is apparent to me that two years from now the consideration of removal will be no further advanced than it is now.
Finally given Mr. Stratigopoulos' comment that the Department has not pursued any alternatives for removal, when considered in conjunction with the other statements by MR. Stratigopoulos about removal to Iran, suggest that the Department has no other means of removing the Person Concerned available to them then that which is understood from Mr. Stratigopoulos, being removal to Iran if and only when the Person Concerned signs an application for a travel document which he refuses to do.
If I had been told by Mr. Stratigopoulos that the Department will be pursuing other avenues available to them which may or not be in existence I would probably be in a position to conclude that removal from Canada remains a possibility. However given the facts as they presently exist I don't see how I can arrive at that conclusion.
My decision to issue a release order is that I am satisfied at this time that detention is indefinite. This decision is made in the face of an understanding that the subject has been detained only four months. It is made in consideration of the fact that time in detention until now is the least significant of all factors. This ruling is made primarily because given the present situation it is clear that removal can not be executed.
[30] The adjudicator considered the respondent's actions and recognized that the lack of cooperation is contributing to the indefinite nature of the detention. The respondent's lack of cooperation with respect to deportation appears to have circumvented the administrative proceedings described above that have determined that the respondent should be deported.
[31] The question is whether it is unreasonable to count the indefinite delay caused by the respondent against the applicant in such a way that the respondent be removed from detention and be allowed to remain in Canada.
[32] In the Sahin, supra decision, Mr. Justice Rothstein states a list of four factors that may be relevant to a determination of when a detention may become indefinite in the context of section 103 detention review hearings. At paragraph 30, Rothstein J. (as he then was) states:
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.
[33] When the factors enunciated by Rothstein J. (as he then was) in Sahin, supra are applied to the facts of the present case, factors one and three would favour keeping the respondent in custody. Under factor one, the respondent is not likely to appear. With respect to factor three, the respondent was the cause of the delay in executing the removal order and therefore, it should count against him. In relation to factor three, I cannot accept that the delay caused by the respondent's refusal to sign travel documents can be used to support a finding that his detention time cannot be ascertained or to support a finding that a further lengthy detention is anticipated. The respondent himself is causing the delay. In the circumstances, the respondent's stay in detention of approximately four months was not an unreasonable length of time. Finally, since the respondent is unlikely to report for removal, it is unlikely that other options such as outright release, bail bond, periodic reporting or reporting changes of address would be available so as to favour release.
[34] Applying Mr. Justice Rothstein's four factors, in my view the factors when applied to this case, clearly favour keeping the respondent in detention.
[35] In this case, the adjudicator apparently attributed the applicant's statements (that the Department has no other means available to them of removing the respondent) as counting against the Minister. This fails to appreciate the overall scheme of the Immigration Act, supra and leads to an illogical conclusion. Given that Immigration officials were required by law to deport the respondent, that the Immigration officials could only deport the respondent (an Iranian citizen) to Iran, and that the detention could end as soon as the respondent decided to sign the Iranian documents required to deport him to Iran, the respondent was the sole cause of the indefinite nature of the detention.
[36] The adjudicator considered the Sahin, supra decision of Rothstein J. (as he then was) and made the following comments:
Furthermore I have an obligation under Immigration law to decide charter related issues, in fact this concern was expressed by the judge in the Federal Court decision of Becktus Sehine [sic]. I also agree that according to Sehine [sic] the subject's lack of co-operation counts against him, not the Minister of Immigration when we are considering or when an adjudicator is considering the issue of what constitutes indefinite detention.
Sehine [sic] involves a particular set of circumstances, which are unique to that case. Sehine [sic] was found to be a convention refugee which decision was appealed to the Federal Court by the Minister of Immigration. The facts of Sehine [sic] are not similar to this case in any way. And while I appreciate that the judge's guidelines were to be viewed and practised by all adjudicators in cases such as this in my view the one comment understood from Sehine [sic] is of minimal relevance or meaningfulness to my decision.
[37] The adjudicator recognized following Sahin, supra that the respondent's lack of cooperation must count against him and not the Minister. The adjudicator proceeded to decide the case in the respondent's favour on the basis that detention is indefinite. This is an error of law.
[38] It is my view that the decision of the adjudicator was unreasonable. To hold otherwise would be to encourage deportees to be as uncooperative as possible as a means to circumvent Canada's refugee and immigration system. The decision of the adjudicator cannot be allowed to stand.
[39] The application for judicial review is allowed and the matter is referred back to a differently constituted panel of the Adjudication Division.
[40] The parties shall have one week from the date of these Reasons to submit any proposed serious question of general importance for my consideration.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
April 8, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-6474-00
STYLE OF CAUSE: M.C.I. v. Nariman Zangeneh Kamail
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 20, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE O'KEEFE
DATED: April 8, 2002
APPEARANCES:
Mr. Stephen H. Gold FOR THE APPLICANT
Mr. Douglas Lehrer FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Morris Rosenberg FOR THE APPLICANT Deputy Attorney General of Canada
VanderVennen, Lehrer FOR THE RESPONDENT Toronto, Ontario