Date: 19991022
Docket: IMM-5073-99
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Applicant,
- and -
YAO LIN,
Respondent.
REASONS FOR ORDER
ROULEAU, J
[1] This matter concerning detention pursuant to section 103(7) of the Immigration Act, first came before me on Friday, October 15, 1999, at Vancouver. An ex parte application was entertained by the Court at the request of the Minister of Citizenship and Immigration seeking to stay the release from detention of this Respondent. The detention having been reviewed on October 13, 1999, before an adjudicator who had determined that the Respondent was likely to appear for removal and imposed certain conditions with respect to his release including that a bond in the amount of fifteen thousand dollars be posted. And the following conditions to his release were also imposed:
| 1. You are required to report a residential address to immigration officials prior to release of detention. |
| 2. Thereafter, you are required to report any change of address in person to immigration officials by the first business day after you make the address change. |
| 3. In the event that Mr. Lin travelled to Toronto to reside with his relative, that residence in the home of Mr. Chen Yun at the address supplied and that he attend at any place directed by the CRDD with respect to completion of his refugee claim. (CRDD hearing scheduled for November 3, 1999, in Vancouver) |
| 4. I am going to require as well that Mr. Lin report whenever and wherever he is directed to do so for any lawful purpose in the Immigration Act. |
| 5. That he not leave Canada without the written consent and in a matter that can be verified by Immigration Officials. |
[2] On Friday, October 15, after hearing counsel for the Minister I was satisfied to stay the release of this Respondent pending further submissions on the merits by both parties including counsel for the Respondent who is a solicitor practising in the city of Toronto. I ordered an interim stay of release pending full argument to be entertained on Wednesday of the following week.
[3] The matter continued at Vancouver on October 20, in the presence of counsel for the Minister and counsel for the Respondent by way of teleconference. The Minister"s Motion Record had been served on the Respondent"s counsel as well as a transcript of the proceeding before the adjudicator on October 13, 1999 which was now available to the court.
[4] The Respondent arrived on the West Coast of Canada onboard a ship carrying approximately one hundred and forty illegal Chinees immigrants. He arrived without identity papers and was interviewed by Citizenship and Immigration on September 29, 1999. During the interview he indicated that he had no family or friends in either Canada or the United States; he was ordered detained pursuant to section 103.1(1)(a) of the Immigration Act. On that same day an adjudicator determined that it was unlikely that the Respondent would appear for removal from Canada. A review of the detention was held on October 6, 1999 at which time the adjudicator determined: "I am satisfied that, if released, you would not appear for removal".
[5] A further review was conducted on October 13, 1999, counsel for the Respondent being present by way of teleconference; release was granted. The Respondent had now produced proper identification documents. Noted during the course of the hearing was that upon landing the Respondent had failed to advise that he had two brothers living in San Francisco and that a cousin of his mother resided in Toronto. An address was given for this distant cousin residing in Toronto, Mr. Chen Yun who undertook to post a cash bond of fifteen thousand dollars. He indicated through counsel that he was satisfied that the Respondent could reside with him in Toronto until such time as his application for refugee status was determined.
[6] Counsel for the Applicant Minister suggest that the adjudicator failed to apply the proper test with respect to the likelihood of the Respondent appearing for removal; that he must satisfy himself that Mr. Chen Yun will appear for any inquiry.
| Section 103(2) Arrest Without Warrant |
| ... any immigration officer may, without the issue of a warrant, and order or a direction for a arrest or detention, arrest and detain or arrest and make an order to detain... |
| (b) for removal from Canada, any person against whom a removal order has been made that is to be executed, |
| where, in the opinion of the officer, there are reasonable grounds to believe that the person poses a danger to the public or would not appear for the inquiry or the determination or for removal from Canada. |
| 103(3) Detention and Release from Detention by Adjudicator --- 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 |
| (a) the release from detention of the person, 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; |
| (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 |
| (c) the imposition of 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. |
[7] A selected review of the transcript reveals the following:
| ADJUDICATOR: To detain you, Mr. Lin, I have to be satisfied that it"s unlikely that you would report for your removal from Canada if you were released. I have considered very carefully the recommendations and the submissions that have been made today concerning you and I"ve also got for consideration the information that"s come forward during the series of detention reviews that have brought us here today. |
| Now, the facts that I consider to be significant that aren"t in question are the first of all, your method of travel to Canada. You have paid a substantial sum of cash to individuals whose identities are unknown and you have -- in addition to the money paid, you have indebted yourself to these people in the event that you were successful in arriving in Canada undetected. You have undertaken a perilous sea voyage to get here and there can be little doubt that you don"t want to return to China. |
| There"s been some questions raised about your -- the honesty of the information that you"ve conveyed to Immigration by at -- on first arrival denying the existence of family in Canada or the United States and then later it became apparent that you have two brothers resident in the United States. You"ve never apparently informed Immigration officials that you have a distant relative resident in Toronto. |
| You"ve been detained thus far because adjudicators have concluded that it"s unlikely you would report for removal if you were released and in the absence of anything that would counterbalance that belief, I think there are good reasons for having drawn that conclusion. |
| Today, however, the cousin of your mother, a Mr. Chen Yun, a resident of Toronto, Ontario and a landed immigrant in Canada has participated in this detention review hearing in an effort to secure your release from detention. He has described a close family relationship, not necessarily with you because he hasn"t seen you since you were a young child, but with your mother. He has expressed his complete confidence that you will abide by any conditions attached to your release from detention and that you will indeed, if it ultimately becomes necessary, report for removal from Canada. |
| Now, with respect to your ultimate destination, I can"t conclude from the information I have what your ultimate destination was. It certainly isn"t unreasonable to think that on travelling to North America you"d like to be reunited with your brothers but on the other hand, it"s not unreasonable to believe that you"ve come to Canada to seek refugee in this country, which you are doing through refugee claim. Your identity has apparently been established to the satisfaction of Immigration officials. |
| In the absence of -- as I said a moment ago, in the absence of a significant connection to the community in Canada, there has been reason to doubt whether you would report for removal, but I believe now that, given the confidence that Mr. Chen Yun has expressed in you and his willingness to post a significant cash bond as a guarantee, that you"ll live up to your commitments and abide by conditions, I"ve decided that with the posting of a cash bond in the amount of $15,000 and your agreement to abide by a number of conditions which I"ll establish in just a moment, that you would report for removal. So I"ll make an order for your release this afternoon. |
Conclusion
[8] I have carefully considered the decision rendered by the adjudicator and because of the limited powers on judicial review I am satisfied that I cannot rescind his determination to release the Respondent. His decision based on the materials that was before him cannot be disturbed unless there is a breach of fundamental justice, an error of law or an erroneous finding of fact; I am not at liberty to substitute my version even if I may have reached a different conclusion. I have grave doubts that the evidence before the adjudicator supported a conclusion that the Respondent was likely to appear for removal, if released.
[9] The transcript reveals that the adjudicator had some doubt as to the credibility of the Respondent in light of the fact that he did not disclose the two brothers residing in the United States as well as the distant cousin in Toronto; he had some doubts as to the ultimate destination, be it Canada or the United States; he was satisfied that this individual indebted himself to individual whose identities are unknown, provided he was successful arriving in Canada undetected; he has not further looked into the surety who is living in Toronto and who suddenly appears on the scene following previous detention hearings. He alludes to the fact that the Respondent has no significant connections to the community in Canada but the appearance of his mother"s distant cousin seems to allay this concern; in the conditions imposed he relies on the authenticity of the bonds person and that individual"s ability to guarantee the appearance of this Respondent with respect to any further hearings before immigration authorities; he has no assurances this Respondent will be able to travel to Toronto. Nevertheless I cannot say that the decision was reached in bad faith, that it was patently unreasonable or that there is an error of law.
[10] It has been my experience in detention cases under section 103, that the adjudicators, grant a release as soon as someone is prepared to post a bond; it appears that they immediately conclude that they are under an obligation to release without further concerns. They do have discretion; they may deny release in the event that they are satisfied that a Refugee Claimant is not likely to appear for removal from Canada. This discretion is seemingly completely ignored. Perhaps the legislation should be made clearer on this aspect.
[11] The motion to stay the detention is hereby denied.
(Sgd.) "P. Rouleau"
Judge
October 22, 1999
Vancouver, British Columbia
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5073-99
STYLE OF CAUSE: MCI.
v.
Yao Lin
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 20, 1999
| REASONS FOR ORDER OF Rouleau, J. |
DATED: October 22,1999
APPEARANCES:
| Ms. Brenda Carbonell For the Applicant |
| Mr. Leonard Susman For the Respondent |
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney
| General of Canada For the Applicant |
Mr. Leonard Susman
| Toronto, Ontario For the Respondent |