Federal Court Decisions

     IMM-2847-96

B E T W E E N:

     DWIGHT BROWN TOMLINSON

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

LUTFY J.:

     This is an application for judicial review of the decision of March 12, 1996 made in the name of the Manager, Detentions and Removals of Citizenship and Immigration Canada. The decision was communicated by letter to Ms. Norma Brown, the applicant's mother and stated in part:

Further to our letter, this is to notify you that the Cash Bond of $2000.00 has been declared forfeited and the Performance Bond of $3000.00 has been declared estreated.

Mr. Dwight Tomlinson failed to report to Canada Immigration for removal arrangements on 05 Dec 1995 as directed as per the conditions of the bonds.

Please make your certified cheque, or money order payable to the "Receiver General for Canada" with the bond reference number, or Immigration file number quoted.

Ms. Brown is the person who provided the cash bond of $2,000 and the performance bond of $3,000 to secure her son's release from immigration detention on December 6, 1994.

     The relevant facts are summarized in the respondent's memorandum of argument:

8.      Upon being released in November of 1994 after serving most of his one year sentence for his conviction for assault causing bodily harm, the Applicant was taken into immigration detention. On November 16, 1994, an immigration adjudicator ordered that the Applicant be released if: (a) a suitable bondsperson posted a $3,000.00 performance bond and (b) the Applicant's mother made a cash security deposit in the amount of $2,000.00. The two conditions of the adjudicator's order for release were that: (a) the Applicant report as directed in writing for the making of removal arrangements and (b) that he report all changes of residential address in person to immigration officials before changing his address.

9.      In accordance with the adjudicator's release order, the Applicant's mother executed a $3,000.00 performance bond on December 6, 1994. The bond also contained the terms and conditions that: (a) the Applicant report as directed by an immigration officer for the making of removal arrangements and (b) that the Applicant "shall obtain written acknowledgement that each change of Canadian residential address has been registered with an Immigration Official ... before each change of Canadian residential address."

10.      Also in accordance with the adjudicator's release order, the Applicant's mother posted a cash deposit of $2,000.00 on December 6, 1994. The cash deposit contained the same terms and conditions as the performance bond respecting the necessity of reporting for the making of removal arrangements and obtaining written proof from an immigration official that a change of address has been duly registered with the Department of Citizenship and Immigration.

11.      On the strength of the cash deposit and performance bonds above-noted, the Applicant was released from immigration detention.

12.      The Applicant was advised in February of 1996 (sic) that the Minister was considering whether he constituted a "danger to the public" pursuant to s.70(5) of the Immigration Act. The Applicant with the assistance of a lawyer, responded by providing evidence and submissions in support of his position that he was not a "danger to the public". The Minister determined the Applicant to be a "danger to the public" on November 2, 1995. The Applicant sought leave to challenge that decision in this Honourable Court but leave was dismissed by order of Mr. Justice Rothstein dated March 6, 1996.

     ...

17.      On November 21, 1995, an immigration officer sent a "call-in" letter to the Applicant requiring that he attend at an interview at the Detention[s] and Removals Mississauga immigration office scheduled for December 5, 1995, to enable deportation arrangements to be finalized. This letter was sent to the most recent address for the Applicant which appeared on the Department's computer records, namely: 5995 Glen Erin Drive, Unit #74. The letter advised the Applicant that failure to attend the interview would result in issuance of a warrant for his arrest. The original of this letter was not returned to the Mississauga immigration office as "undeliverable" or "unknown address" or "return to sender".

18.      The Applicant failed to attend for his scheduled interview on December 5, 1995, to arrange the details of his deportation from Canada. A warrant for his arrest was issued the next day on December 6, 1995.

     The applicant alleges that he did not receive the call-in letter of November 21, 1995 referred to in paragraph 17 of the respondent's memorandum of argument. As a result, he failed to attend the interview scheduled for December 5, 1995 and a warrant for his arrest was issued on the next day. If it is true that the applicant failed to receive the call-in letter, this is the result of his change of residential address. The record discloses no evidence, however, that the applicant reported "... all changes of Canadian residential address, in person, to an immigration official ..." or that he obtained "... written acknowledgment that each change of Canadian residential address has been registered with an Immigration Official at the Detentions & Removals unit ..." within the meaning of the undertakings made to secure the order for his release.

     The policy rationale to require the person being released from immigration detention to obtain a written acknowledgment from the immigration official concerning that person's change of residence is obvious. Otherwise, the kind of confusion which has resulted in this case in attempting to determine whether the call-in letter was sent to the appropriate address would become the rule and not the exception. In the circumstances, I accept the representations of counsel for the respondent that the applicant's failure to ensure that communication of his new address to department officials was received through their written acknowledgment constitutes a breach of the bond undertaking.

     Accordingly, the application for judicial review of the decision of March 12, 1996 concerning the cash bond and the performance bond must fail. In the circumstances, I need not consider that Ms. Brown herself was not an applicant in this proceeding.

     Two issues concerning the applicant's deportation on February 28, 1996 invite consideration and comment.

     The applicant was arrested, apparently in early January 1996, by the Peel Regional Police. The arrest was with respect to criminal charges for assault causing bodily harm and uttering death threats. These charges were subsequent to issuance of the Minister's opinion that the applicant was a danger to the public. Later in January 1996, these charges were either withdrawn or dismissed, immediately subsequent to which the applicant was placed under immigration detention.

     Pursuant to subsection 103(6) of the Immigration Act, R.S.C. 1985, c. I-2, a detention review hearing was scheduled for the applicant on February 26, 1996. Because it was not possible for the authorities to arrange for the applicant's attendance on that day, the hearing was rescheduled for February 28, 1996. In the meantime, the applicant was delivered by the staff of Detentions and Removals for his deportation flight to Jamaica at 10:00 a.m. on February 28, 1996. It would appear that the applicant's removal prior to the detention review hearing was the result of lack of communications among officials concerning the re-scheduling of the detention review hearing.

     The record also discloses that an earlier appeal before the Immigration Appeal Division was not disposed of until March 13, 1996. According to the recent decision of Mr. Justice Gibson in Solis v. Minister of Citizenship and Immigration, IMM-9-97 and IMM-4898-96, March 19, 1997, the statutory stay of the execution of a removal order provided for in subsection 49(1) of the Act would still have been in effect at the time of the applicant's deportation on February 28, 1996. The decision in Solis had yet to be handed down when the applicant in this case was deported.

     These circumstances raise concerns which, because of the specific decision under review, are not relevant to the present application. In any event, the statement of Mr. Justice Rothstein in his recent decision in Cuskic v. Minister of Citizenship and Immigration, IMM-29-97, May 7, 1997, would be equally applicable to any suggestion that the applicant in this case be returned to Canada:

While this Court cannot condone the Minister acting in contravention of section 50 in this case, it would not be sensible to require the Minister to arrange for the return of the applicant to continue his probation to completion, only then to deport him again. Such a result would have the anomalous effect of placing offenders in a more advantageous position than deportees who had not committed offences and were not subject to court orders. Finally, there are no particularly compelling facts in this case to justify such a direction.

     For these reasons, this application for judicial review is dismissed. In these circumstances, the certification of a serious question is not in order.

                         "Allan Lutfy"

                         Judge

Ottawa, Ontario

May 27, 1997