Tuesday, September 20, 2011

B188–release from detention reasonable in all the circumstances, onus on Minister

Canada (Citizenship and Immigration) v. B188, 2011 FC 94 (CanLII)

Judge: Justice Heneghan

Date heard: December 16, 2010

Date decided: January 26, 2011

Counsel for B188: Gabriel Chand

Counsel for Minister: Banafsheh Sokhansanj

Place of Hearing: Vancouver, British Columbia

The Minister applied for judicial review of the decision of Member Marc Tessler releasing the Respondent (B188) from detention (para. 1).

Justice Mosley stayed the release at in November 2010 (para. 2).

The respondent C188 was a Sri Lankan man who had worked for a newspaper in an LTTE-controlled area of north Sri Lanka, and about whom Canada Border Services Agency had alleged he was an LTTE member (paras. 3-8). He had arrived in Canada on the MV Sun Sea, and made a refugee claim. Upon arrival he had a debt of several thousand dollars for the passage, and he stated that his brother, a resident of France, could assist him in paying the debt (para. 9).

At about his fifth detention review, Member Tessler rejected the Minister’s argument that B188 was a flight risk and that the debt increased the risk that he would be “vulnerable for coercion from the smuggler”, and that the allegations of LTTE membership was not straightforward (para. 13). The Member found that terms and condition could be opposed which would mitigate the risk (para. 14).

The Applicant Minister submitted that the Member focused on whether the Applicant could defend the charge of LTTE membership, and not on whether he would appear for removal (paras. 27-28).

Following Justice de Montigny’s decision in Canada (Minister of Citizenship and Immigration) v. B157, 2010 FC 1314, Justice Heneghan cited the following:

“[45]           There were good reasons for the Member to focus on the next immigration proceeding rather than the removal.  An officer may always, with or without a warrant, re-arrest the Respondent if he has reasonable grounds to believe he is inadmissible (an easily-met condition if the Respondent were found inadmissible by the Immigration Division) and is unlikely to appear for his removal: s. 54 of IRPA.

[47]           In light of these further proceedings that are set to occur before removal and of the possibility of re-arresting the Respondent, the Member’s failure to conduct a premature analysis of the likelihood to appear for removal, as compared to the probability of appearing for the inadmissibility hearing, does not represent a fatal flaw in his decision.” (para. 32)

Justice Heneghan further found that the Member did make a proper assessment of flight risk (paras. 34-36).

Furthermore, Justice Heneghan found that the Board properly assessed the factor of the debt, given that the onus is on the Minister to show that the Respondent is a flight risk and given the evidence on the record (paras. 37-43).

Finally, Justice Heneghan found that the terms and conditions were reasonable, noting in particular that the Member imposed all the terms and conditions requested by the Minister at the Detention Review, “except for two, which the Board determined to be either irrelevant or redundant, but refused to impose a cash bond.” (paras. 46-50).


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