Date: 19991115
Docket: IMM-5446-99
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Applicant,
- and -
RI WO CHEN,
Respondent.
REASONS FOR ORDER
NADON, J.
[1] The Minister of Citizenship and Immigration ("The Minister") seeks an Order staying the Order of adjudicator Paul Tetreault, dated November 8, 1999 pursuant to which the Respondent was released from detention subject to the payment of a $15,000 cash bond and other terms and conditions.
[2] The Respondent is a Citizen of China. He came to Canada by boat with approximately 140 other persons from the Fujian Province in China. The boat arrived off the Coast of Vancouver Island on September 10, 1999. Since July 20, 1999 four boats, including that on which the Respondent travelled to Canada, have brought Chinese nationals to Canada.
[3] On September 13, 1999 the Respondent claimed refugee status. As a result, a Conditional Departure Order was issued against him and he was detained under section 103.1 of the Immigration Act by reason of his inability to satisfy an immigration officer as to his identity.
[4] On September 19, 1999 the Respondent"s detention was reviewed by an adjudicator who ordered that his detention be continued pending the investigation of his identity by immigration officers.
[5] The Respondent remained in detention until November 8, 1999. On that day, a further detention review was conducted and the Respondent"s continued detention was changed from section 103.1(1)(a) to section 103(3) of the Immigration Act . At the commencement of the hearing on November 8, 1999 before adjudicator Tetreault, the case presenting officer, Ms. D. Clement, advised the adjudicator as follows:
| CASE PRESENTING OFFICER: Thank you, Mr. Adjudicator. I would first like to qualify why I have found myself in a position of withdrawing the certificate under 103.1 today. |
| I -- the Department have found ourselves operationally in a position where, since the 21st of October, we can no longer make reasonable efforts to ascertain the identity of Mr. Chen. |
| INTERPRETER: October 31st? |
| CASE PRESENTING OFFICER: 21st. Mr. Chen left China -- or entered Canada without any identity documents. It is his sister who actually brought from China his original I.D. document, and we have returned the original to the Embassy in Beijing. So, I find myself in a position where I do not know when I will be able to authenticate his documents. It was important for me that this was on record because, as I say, the identity will still be a question. |
[6] At the hearing, the Minister asked that the adjudicator order the continued detention of the Respondent under subsection 103(3) of the Immigration Act on the ground that the Respondent was not likely to appear for removal from Canada if and when the Conditional Departure Order became effective.
[7] At the end of the hearing the adjudicator ordered that the Respondent be released from detention subject to the posting of a bond of $15,000 in cash and to a number of other terms and conditions. This is the Order which the Minister seeks to stay.
[8] For the reasons that follow, I am of the opinion that the Minister"s motion ought to be allowed and hence that the adjudicator"s Order of November 8, 1999 ought to be stayed.
[9] For the Minister to obtain a stay of the impugned Order, she must meet the test set out by the Federal Court of Appeal in Toth v. MEI (1988) 86 NR 302. Thus, the Minister must satisfy me that there is a serious issue to be tried, that irreparable harm will ensue if I do not grant the Order sought and finally that the balance of convenience is in her favour.
[10] Subsections 103(3)(b) and 103(7) of the Immigration Act are relevant and provide as follows:
| (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; |
| (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. |
[11] It is necessary to reproduce part of the transcript of the November 8, 1999 hearing in order to properly understand the issue raised by the Minister. After having heard the submissions and representations of the case presenting officer and those of counsel for the respondent, the adjudicator stated:
| I"ve considered this, submissions and evidence provided. What I must decide, sir, is whether or not, in my opinion, whether or not you can be trusted to appear for removal. Note that I"ve stated that detained for removal because that is the expectation. Being found a convention refugee, that is the exception to the rule. |
| There has been some debate as to how much it cost you to come to Canada, but I am satisfied that you incurred substantial cost or indebtedness to a criminal element. In addition, you"ve embarked on a perilous journey to Canada while using the services of this criminal element, these smugglers. |
| I also note that you"ve left behind your wife -- your wife and child. If I recall from this, you have one child and your wife is pregnant with the second; is that right? |
| I note that he noted yes. |
| What this indicates to me is that you were extremely motivated to come to Canada, and that this must have been an act of desperation. I do not believe on balance that you would willingly return to China if your refugee claim is unsuccessful, given the steps that you"ve taken to come to Canada. |
| As I have stated, an analysis of your situation would lead me to believe that your intentions are to remain in Canada or North America, and not return to China. |
| With regards to whether there are other assurances that could be made to ensure compliance, I would agree with Mr. Larsen that detention is always meant to be a last measure and never the first. |
| I note in the case of Ou Lin, which was recently decided on the 22nd of October, the decision of the adjudicator was not overturned, but the flavour of the decision, if I can use that turn, is that the -- Justice (indiscernible) definitely questions the judgment of the adjudicator. |
| It is unfortunate that in his last paragraph that the judge did not confine his remarks to the case at hand, but generalized to all adjudicators, and it has been my assessment of Federal Court in the past that the Federal Court in general looks at detention as a very serious matter, and the longer the detention occurs, the more alternatives should be explored. |
| In your particular situation, with Exhibit D2, I am satisfied that you do have ties in Canada. Where this assists you is that you do have a support system, and your sister and brother are in a position to post a bond. I believe that a bond is appropriate in this case in that, first of all, I believe that you may have -- you may be more reluctant to violate the bond if it"s your own family that"s posting the money. |
| In addition, I believe that the size of the bond may indicate compliance, although not guarantee it. |
| The only to guarantee that you will be available for removal, and also all the other people -- all the other 420 in detention, is to forget about releasing you and just say, everybody stay in gaol. I believe that if I did that, that would be a dereliction of my obligation. As Mr. Larsen has appropriately stated, and I believe it"s important not to lose focus, it"s the method and the number of people that arrived in your situation that has drawn the attention of Canadian society. |
| People cross the border by foot, by air, illegally everyday, and I am assessing your situation same as I would any of them, and looking at the same type of assurances. |
| The reason why I am making these comments is because the submissions were quite extensive from both parties, and I believe that both parties are entitled to know basically where I come from. So, I believe that a bond is appropriate in summary, the fact of the family ties, combined with a very substantive bond, are indicative on the balance of probabilities that you will comply. Again, there is no guarantee. |
| Now, for the size of the bond. The amount of 5 to $10,000 suggested by counsel would be inappropriate in my assessment, and the minimum acceptable under this situation would be $15,000 cash. Is there any expectation, counsel, that this money could be raised? |
[12] As appears from the transcript of the hearing, the adjudicator found, as a fact, that the Respondent had disbursed a considerable sum of money to come to Canada and that, in doing so, he had engaged criminal elements. The adjudicator then concluded that it was unlikely that the Respondent would "willingly return to China" if his refugee claim was unsuccessful. In view of the conclusion reached by the adjudicator, the Minister submits that, it was not open to him to release the Respondent upon the posting of a cash bond and other terms and conditions. At paragraph 9 of her Memorandum, the Minister makes the following submissions:
| "It is submitted that, in ordering the release of the Respondent, not withstanding the Adjudicator"s conclusion that the Respondent would not appear removal, the Adjudicator committed an error of law". |
[13] I agree with Counsel for the Minister that there is a serious issue to be tried. There can be no doubt that the adjudicator was of the view, on the evidence before him, that it was unlikely that the Respondent would present himself for removal should his refugee claim be unsuccessful. The adjudicator"s decision to release the Respondent appears to be predicated on his belief that the cash bond would be posted by the Respondent"s sister and brother and that, consequently, the Respondent would not abscond because, in doing so, he would cause his sister and brother to lose $15,000. In that regard, I note the adjudicator"s comments which appear at the bottom of page 13 of the transcript:
| It"s been my experience that usually cash is a greater deterrent. It is my experience that cash is a greater deterrent than a performance bond usually. Counsel didn"t make any mention at all of any equity that these individuals may or may not have, and I believe under these circumstances $15,000 cash is the minimal acceptable. |
Not only was there no evidence with respect to the Respondent"s brother and sister having any equity, there was absolutely no evidence before the adjudicator as to whether the brother and sister had the means to put up $15,000. The only evidence was the Respondent"s sister"s statement which appears at paragraph 7 of her Affidavit dated November 5, 1999 where she states:
| "My brother and I are not wealthy but we do have some resources and friends who are willing to help us out financially to raise the money necessary to secure Chen Ri Wo"s release". |
[14] The possibility that the $15,000 cash bond might be put up by the smugglers who brought the Respondent to Canada does not appear to have crossed the adjudicator"s mind. In view of the evidence, and considering that there is no evidence that the Respondent"s brother and sister have the means to put up $15,000, the possibility that the smugglers might put up the money is more than speculation. After all, if they have indeed financed, at great cost, the Respondent"s adventure to Canada, the smugglers have a vested interest in making sure that he remains in Canada or in the United States to work so as to enable him to repay the "loan".
[15] 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 relevant 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 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.
[16] I am obviously not deciding the issue raised by the Minister. I have simply set out my thoughts regarding this issue so as to demonstrate that the judicial review application filed by the Minister indeed raises a serious issue.
[17] With respect to irreparable harm, I agree with the Minister"s submission that irreparable harm will occur if the adjudicator"s decision is not stayed. Firstly, if the Respondent is released from detention, the Minister"s judicial review proceedings will be moot and secondly, the Respondent may well not be available for removal from Canada if he is unsuccessful in his refugee claim.
[18] With respect to the balance of convenience, I also agree with the Minister. The public interest, in the circumstances of this case, outweighs the Respondent"s interest.
[19] For these reasons, the order of adjudicator Paul Tetreault dated November 8, 1999 is stayed and, as a result, the Respondent shall remain under detention until the Minister"s judicial review application is disposed of or until the Respondent is removed from Canada.
(Sgd.) "M. Nadon"
Judge
November 15, 1999
Vancouver, British Columbia
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5446-99
STYLE OF CAUSE: MCI
v.
Rio Wo Chen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 10, 1999
| REASONS FOR ORDER OF Nadon, J. |
DATED: November 15, 1999
APPEARANCES:
| Ms. Emilia Pech For the Applicant |
| Mr. Darryl Larson For the Respondent |
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney
| General of Canada For the Applicant |
Larson, Boulton,
Sohn, Stockholder
| Vancouver, BC For the Respondent |