Summary of February 2011 Cases Part 4: B386, Leal Alvarez, Demiraj

Canada (Citizenship and Immigration) v. B386, 2011 FC 140

(http://www.canlii.org/en/ca/fct/doc/2011/2011fc140/2011fc140.html)

Judge: Chief Justice Lutfy; Date heard: January 19, 2011; Date decided: February 8, 2011; Counsel for B386: Gabriel Chand; Counsel for Minister: Hilla Aharon; Place of Hearing: Vancouver, British Columbia

This was a decision of the Federal Court upholding the decision of the Immigration Division releasing one of the persons who arrived on the MV Sun Sea. The  ID Member had allegedly erred by deciding that the person could be released with a bod and terms and conditions. She then offered Minister’s counsel a chance to cross-examine the bondsperson, and Minister's counsel declined. It is not clear from the decision what the Minister-Applicant's objection was to this, but it may have been the appearance that the decision had been made before the Minister's counsel was able to cross-examine the proposed bondsperson. In any event, the Court stated that detention reviews are often “rough-and-ready” proceedings and that both sides had made submissions, so this was not an error sufficient to overturn the decision.

The Minister-Applicant also argued that the Member had ignored the detained person’s possible vulnerability to smugglers or traffickers, having arrived by Canada on a boat, or the person’s ties to the community. On the contrary, the Court found that the Member had considered both these points.

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Leal Alvarez v. Canada (Citizenship and Immigration), 2011 FC 154

(http://www.canlii.org/en/ca/fct/doc/2011/2011fc154/2011fc154.html)

Judge: Justice Rennie; Date heard: January 19, 2011; Date decided: February 9, 2011; Counsel for Leal Alvarez: Michael Crane; Counsel for Minister: Deborah Drukarsh; Place of Hearing: Toronto, Ontario

The Applicants were citizens of Colombia, and the principal Applicant was the only one alleging persecution, on the basis violence and threats from the guerilla group FARC. The RPD found against the Applicant on credibility: the Applicant was a secretary or assistant in a program run by the municipal government, and the RPD found that she was too low-placed to be targeted by FARC. Justice Rennie found the the RPD had erred in focusing on the Applicant’s job title and not the uncontested evidence that she worked with villages and displaced persons, specifically against FARC.

Justice Rennie also found that the RPD made two legal errors. the Applicant alleged she had been beaten and kidnapped by FARC, and the RPD stated that it needed “conclusive proof” of this event. The RPD also stated that it was not satisfied that the Applicant was targeted “on a balance of probabilities”. The Court noted that both of these tests are too high; the correct test is whether there is a “serious possibility of persecution or harm”.

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Demiraj v. Canada (Citizenship and Immigration), 2011 FC 161

(http://www.canlii.org/en/ca/fct/doc/2011/2011fc161/2011fc161.html)

Judge: Justice Heneghan; Date heard: February 8, 2011; Date decided: February 10, 2011; Counsel for Demiraj: Jonathan Fedder; Counsel for Minister: David Cranton; Place of Hearing: Toronto, Ontario

The Applicants were Albanian citizens who claimed protection in Canada on the basis of a blood-feud. They submitted a PRRA and an H&C, both of which were denied. Justice Henghan upheld the negative PRRA, but on the H&C, found that the officer had applied the wrong test: “The Officer reasons that because there is state protection available in Albania, the Applicants face no risk to life, and therefore, that there will be no undue, undeserved or disproportionate hardship.” This conflation of the tests, and the underlying assumption that the existence of state protection means that there is no hardship is an error of law.

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).

MINISTER’S REQUEST FOR JUDICIAL REVIEW REFUSED

MPSEP v. Nosa—detention review, JR moot

Canada (Public Safety and Emergency Preparedness) v. Nosa, 2011 FC 76 (CanLII)

Judge: Justice Martineau

Date heard: October 6, 2010

Date decided: January 21, 2011

Counsel for Nosa: Idorenyin E. Amana, Esq.

Counsel for Minister: Helen Gray

Place of Hearing: Ottawa, Ontario

The Minister applied for a judicial review of a Member of the Immigration Division’s (ID) decision to release Nosa from detention (para. 1). The Court declined to decide the decision on its merits, finding it was moot (para. 23).

Nosa arrived in Canada with another person’s passport (Mavis Idemudia), but when asked gave the name of Noah Sho-Silva, although he had no documents to confirm this identity (para. 2). He stated that he had used his genuine documents to enter the US, and had purchased false documents and entered Canada on those (para. 3). Evidence on his person did not match the refugee claim he made (para. 4).

Since Nosa’s identity was not confirmed, he was detained. This detention was upheld at a 48-hour review, and again at a 7-day review (paras. 5-7). His detention continued to be upheld on the basis that the CBSA was making reasonable efforts to confirm his identity while he was not being fully cooperative (paras. 8-10). Then in an April decision, the ID found that Nosa had recently been cooperative, whereas the CBSA had not continued making reasonable efforts. Therefore, the ID released Nosa on the basis of reporting conditions and a $3000 bond (para. 11-12).

The procedural issues raised by the Respondent were rejected by the Court (paras. 15-21).

The Court found the issue moot (para. 23). The Court noted that Nosa had been released 9 months previously, and that the Minister had not sought to stay the release (para. 26).

The evidence submitted by the Minister was about the alleged errors in the ID decision. However, the Court notes that given the language of IRPA, the issue is one of present concern with the detained person’s identity. The Minister submitted only evidence which was 9 months old (paras. 28-29). The Court further notes that there was no evidence of a continuing adversarial context, nor that judicial economy militated in favor of hearing the application (para. 33). 

MINISTER’S JUDICIAL REVIEW DISMISSED