Date: 19991213
Docket: IMM-5712-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
-and -
CHENG YIN LIN
Respondent
REASONS FOR ORDER
BLAIS J.
[11 The Minister of Citizenship and Immigration seeks an order to stay the order of Adjudicator Mark Tessier, dated November 25, 1999.
[2] Pursuant to this order, the respondent was released from detention subject to certain terms and conditions including the payment of a $20,000 cash bond.
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[3] The respondent came to Canada from the Fujian Province, in the People's Republic of China, by boat, together with about 190 other persons. The boat arrived off the coast of Vancouver Island on August 31, 1999. It was the third such boat to come to Canada since July 20, 1999.
[4] On September 5, 1999, the respondent was interviewed by a senior immigration officer and was ordered detained pursuant to paragraph
103.1 (1)(a) of the Immigration Act.
[5] Subsequent detention reviews were conducted for the respondent in accordance with the Immigration Act. At each of these detention review hearings, the respondent was ordered to remain in detention pursuant to paragraph 103.1(1)(a) of the Immigration Act as he was unable to satisfy the immigration officer as to his identity.
[6] At the November 24, 1999 detention review hearing, the basis for the respondent's continued detention was changed from paragraph 103.1 (1)(a) to subsection 103(6) of the Immigration Act despite unresolved identity issues.
[7] At the detention review hearing on November 24, 1999, the
Adjudicator mentioned:
You came to Canada by an extraordinary method. You arrived by way of boat in a vessel that was barely seaworthy. You arrived with 189 others. You lacked documentation. You came on a ship that was unmarked. The entire nature of the entry into Canada was designed to evade Immigration requirements.'
[8] Later on, the Adjudicator said:
Although there are a great many reasons to consider that Mr. Lin, the Person Concerned, is unlikely to appear for removal, that is in the circumstances of his coming to Canada, I also have to consider whether there is an incentive to induce him to abide by conditions of release that would compel him to report as required for removal, should removal become necessary.
In the recent Chen case, there is some comments by the Federal Court Justice Nadon, who suggests that, as the Justice reads the legislation:
If the Adjudicator decides that the person is not likely to appear for removal, they cannot consider release, they cannot consider bonds.
However, in a practical way, the only way the adjudicator can consider a bond to be a viable inducement is to look at the circumstances of the case and ask whether the person is not likely to appear for removal, but could they be induced or compelled to appear for removal by terms and conditions and posting of cash guarantees. 2
[9] Paragraph 103(3)(b) and subsection 103(7) provide:
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Detention and release from detention by adjudicator
(3) Where an inquiry is to be held or is to be continued with respect to a person or a removal order or conditional removal order has been made against a person, an adjudicator may make an order for
(b) the detention of the person where, in the opinion of the adjudicator, the person is likely to pose a danger to the public or is not likely to appear for the inquiry or its continuation or for removal from Canada; or
Détention et mise en liberté par un arbitre (3) Dans le cas d'une personne devant faire l'objet d'une enquête ou d'une enquête complémentaire ou frappée par une mesure de renvoi ou de renvoi conditionnel, l'arbitre peut ordonner
b) soit de la faire garder, s'il croit qu'elle constitue vraisemblablement une menace pour la sécurité publique ou qu'à défaut de cette mesure, elle se dérobera vraisemblablement à l'enquête ou à sa reprise ou n'obtempérera pas à la mesure de renvoi;
Release from detention by adjudicator
(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.
Mise en liberté par l'arbitre
(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.
(10] In The Minister of Citizenship and Immigration v. Ri Wo Chen,
November 15, 1999, (IMM-5446-99), Justice Nadon said:
As I read subsections 103(3) (b) and 103(7), an adjudicator must order the release of a person 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" once he is satisfied that the person in detention is likely to appear for removal. In other words, if the adjudicator is satisfied, on the evidence before him, that the person in detention will not abscond, he must then order the release of that person subject to terms and conditions which may include the payment of a security deposit. The posting of a bond and the amount thereof are not part of the evidence rèlevant to the determination which the adjudicator must make as to the likelihood of the person appearing for removal. Thus, on my understanding of the subsections, the adjudicator must make up his
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mind with regard to the likelihood of the person absconding or appearing for removal on the basis of the evidence without regard to the bond which he might impose if satisfied that the person in detention will likely appear for removal.
(My emphasis)
[111 The applicant submits that, in ordering the release of the respondent, solely on the basis that the posting of a substantial bond would compel the respondent to appear for removal, the Adjudicator committed an error of law. I am convinced that this point constitutes a serious issue to be tried.
[12] Concerning the irreparable harm, the Minister suggests that irreparable harm will occur if the respondent is released from detention because he will not be available for removal from Canada and this application for leave and judicial review will become moot. I am also convinced that if the respondent is released, the applicant will suffer irreparable harm.
[13] I also agree with the Minister that the public interest in this case, outweighs the respondent's interest.
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[141 For those reasons, the order of Adjudicator Mark Tessler, dated November 25, 1999, is stayed until the application for leave and judicial review is determined or until the next statutorily required detention review is conducted.
Pierre Biais
Judge
OTTAWA, ONTARIO December 13, 1999
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5712-99
STYLE OF CAUSE: MCI v. CHENG YING LIN
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: November 26, 1999
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE BLAIS DATED: December 13, 1999
APPEARANCES:
Ms. Emilia Pech FOR THE APPLICANT
Mr. George Wong FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Morris Rosenberg FOR THE APPLICANT Deputy Attorney General of Canada
Mr. George Wong FOR THE RESPONDENT Vancouver, B. C.