Date: 20040126
Docket: IMM-5341-02
Citation: 2004 FC 115
Ottawa, Ontario, the 26th day of January, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
OLUKOREDE SHOTE
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of the decision of the Immigration and Refugee Board, Immigration Division (Tribunal), dated October 17, 2002. In its decision, the Tribunal ordered that subject to certain conditions, the respondent be released from detention pending his removal from Canada.
ISSUES
[2] The issues are as follows:
1. Did the Tribunal act beyond its jurisdiction because it relied on an irrelevant factor or criterion to order the release of the respondent, namely the superior interest of a child?
2. Did the Tribunal refuse to exercise its jurisdiction or act beyond its jurisdiction because having found that the respondent would not present himself for removal from Canada if requested, it ordered his release notwithstanding?
3. Did the Tribunal refuse to exercise its jurisdiction or act beyond its jurisdiction because it failed to consider the factor mentioned in paragraph 245(a) of the Immigration and Refugee Protection Regulations, i.e. being a fugitive from justice in the United States in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament?
4. Did the Tribunal make an error in law in finding that the respondent had strong ties to a community in Canada solely because he has a young child in Canada?
5. Did the Tribunal base its decision on an erroneous finding of fact made in a perverse or capricious manner in concluding that the $5,000 bond deposited by the respondent's wife would ensure his respect of any other conditions the Tribunal might impose and his availability for removal from Canada?
[3] For the following reasons, I answer yes to all questions, except question number 2, which I will not answer. Therefore, I will allow the application for judicial review.
FACTS
[4] The respondent is a citizen of Sudan and Nigeria. He entered Canada on January 27, 2000. He claimed refugee status on February 1, 2000 and was granted that status on March 26, 2001.
[5] On July 23, 2001, the respondent's application for permanent residence was approved in principle subject to satisfying medical, criminal and security requirements.
[6] On April 10, 2002, a report under subsection 27(2) of the Immigration Act, R.S.C. 1985, c. I-2 (former Act) was written concerning the respondent. In that report, it was alleged that the respondent had been convicted in the United States of drug possession, theft, four counts of possession of property obtained through the commission of a crime, forgery and uttering a forged instrument. The respondent did not disclose these previous criminal convictions in his application for permanent residence. The information concerning these convictions in the United States was provided to Citizenship and Immigration Canada officials (CIC) by the Federal Bureau of Investigation (FBI). Still on April 10, 2002, the respondent was arrested and detained in the Centre de prévention de l'immigration in Montreal.
[7] On April 19, 2002, a second report under subsection 27(2) of the former Act was written concerning the respondent alleging that the respondent was inadmissible in Canada under paragraph 19(1)(c.1) and clause 19(2)(a.1)(i) of the former Act as he claimed refugee status under a false name and failed to disclose his criminal convictions in the United States.
[8] On May 2, 2002, at the end of the inquiry concerning the subsection 27(2) report, an adjudicator concluded that the respondent was a person described in paragraph 27(2)(g) of the former Act and was thus inadmissible in Canada. On September 19, 2002, following a motion made by the Minister of Citizenship and Immigration, the IRB vacated its decision granting refugee status to the respondent.
[9] Following his arrest and detention by CIC on April 10, 2002, the respondent was subject to a number of detention reviews before he was finally released by Tribunal member Dianne Tordorf on October 17, 2002.
[10] It was revealed during the detention hearings that the respondent has used at least 13 aliases in the United States and Canada, including the one of Olukerede Olate Shote, born on July 14, 1961 in Nigeria.
[11] The respondent would have entered the United States in 1995 and would have resided there up until January 27, 2000, when he came to Canada. During those five years, the respondent was convicted of numerous crimes in the United States, including theft, forgery, credit card fraud and was sentenced to 15 years of imprisonment in relation to one of those convictions, a credit card fraud of $100,000. The sentence was reduced to nine years and the respondent served four or five years.
[12] The respondent is still the subject of three arrest warrants in the United States for aggravated assaults.
[13] The respondent was charged in Canada with assault causing bodily harm against his Canadian wife, Marie-Noëlle Poirier in September 2001. One of the detention hearings revealed that the respondent married his wife under a false name, i.e. Peter Kori Loguti. Mrs. Poirier is the mother of the respondent's three children in Canada. The respondent is also the father of two other children, who are residing in the United States.
[14] On October 17, 2002, Tribunal member Dianne Tordorf conducted a review of the respondent's detention and ordered that he be released subject to certain conditions, including a $5,000 bond.
CONTESTED DECISION
[15] Tribunal member Dianne Tordorf held that because of the enactment of the new Act, she had to take into account the superior interests of the child in her detention review decision, i.e. the respondent's child born in June 2002 from his Canadian wife. In consequence, despite her conclusion that the respondent would very unlikely present himself for removal if requested, she decided that he would be released because of the superior interest of his newborn child at the time. She concluded that by imposing a bond of $5,000, the respondent would be "inclined" to respect any other conditions and would be available for removal. Here are the relevant excerpts from the Tribunal's decision.
I am obliged by the law and by the jurisprudence to take into account all the circumstances of your case, what is new is that since June 2002, a new Immigration Act has been enacted and there are very specific criteria regarding children, the superior interests of the child, the best interests of the child and also regarding risk of flight, whether or not the person has any connection to a community. I do not recall the exact wording of the Regulations right now, but it is something to take into account, whether or not the person has significant ties to a community in Canada.
[...]
You were very close to being removed from Canada, what is left to do is your pre-removal risk assessment and that is going to be done without delay. So, there are many many doubts in my mind that you would present yourself for removal, on the one hand.
[...]
I am taking into consideration that you have a family and that you have a new-born baby, born in June 2002 and I am not taking into account any humanitarian considerations at all, but I am taking into account what the Regulations do specify and that is that I take into account that you have a strong tie to a community in Canada and the superior interests of the child.
[...]
I find that by imposing a bond of 5 000 $ on you, a cash bond, that you will be inclined to respect any other conditions that I am going to set down and that you will be available for your removal. (my emphasis)
APPLICANT'S SUBMISSIONS
[16] Firstly, the Tribunal acted beyond its jurisdiction because it relied on an irrelevant factor or criterion (Maple Lodge Farms Ltd. v. Canada, _1982] 2 S.C.R. 2, at pages 7 and 8; Glaxo Wellcome PLC v. M.N.R., _1998] 4 F.C. 439 (C.A.)), to order the release of the respondent, namely the superior interest of the respondent's young child in Canada. The factors to be taken into consideration in deciding whether a person constitutes a "flight risk" are set out in section 245 of the Regulations, and that list does not include the superior interest of the child . And while the "existence of strong ties to a community in Canada" factor in paragraph 245(g) can include the presence of children, that factor cannot supersede the other factors listed in section 245.
[17] Secondly, the Tribunal refused to exercise its jurisdiction or acted beyond its jurisdiction because having found that the respondent would not present himself for removal from Canada if requested, it ordered his release notwithstanding.
[18] Thirdly, the Tribunal refused to exercise its jurisdiction or acted beyond its jurisdiction because it failed to consider the factor mentioned in paragraph 245(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), the respondent being a fugitive from justice in the United States in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament. All the factors listed in section 245 need to be considered and the failure to do so is as erroneous as the improper importation of an irrelevant factor (Oakwood Development Ltd. v. St. François Xavier (Rural Municipality), _1985] 2 S.C.R. 164, at pages 174 and 175, quoting Baldwin and Francis Ltd. v. Patents Appeal Tribunal, [1959] A.C. 663, at page 693).
[19] Fourthly, the Tribunal made an error in law in finding that the respondent had strong ties to a community in Canada solely because he had a young child in Canada at the time.
[20] Fifthly, the Tribunal based its decision on an erroneous finding of fact made in a perverse or capricious manner in concluding that the $5,000 bond deposited by the respondent's wife would ensure his respect of any other conditions the Tribunal might impose and his availability for removal from Canada. This finding of fact is perverse and capricious given the evidence that the respondent's family in the United States did not prevent him from being a fugitive in that country and that the respondent was accused of assault against his wife in Canada.
RESPONDENT'S SUBMISSIONS
[21] In essence, the respondent argues that the decision is well-founded in law because the best interest of the children confirms the respondent's existence of strong ties to a community in Canada. The respondent also urges that the Tribunal weighed all the relevant elements in the case at bar and the decision should stand. His wife also gave birth to his third child.
RELEVANT LEGISLATION
[22] Subsections 55(1), (2) and 58(1) of the Act provide the following:
| 55. (1) An officer may issue a warrant for the arrest and detention of a permanent resident or a foreign national who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.
(2) An officer may, without a warrant, arrest and detain a foreign national, other than a protected person,
(a) who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); or
(b) if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act.
[...]
58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that
[...]
(b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); (my emphasis)
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55. (1) L'agent peut lancer un mandat pour l'arrestation et la détention du résident permanent ou de l'étranger dont il a des motifs raisonnables de croire qu'il est interdit de territoire et qu'il constitue un danger pour la sécurité publique ou se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi.
(2) L'agent peut, sans mandat, arrêter et détenir l'étranger qui n'est pas une personne protégée dans les cas suivants :
a) il a des motifs raisonnables de croire que celui-ci est interdit de territoire et constitue un danger pour la sécurité publique ou se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2);
b) l'identité de celui-ci ne lui a pas été prouvée dans le cadre d'une procédure prévue par la présente loi.
[...]
58. (1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants :
[...]
b) le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2); (je souligne)
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[23] Sections 244 and 245 of the Regulations provide the following:
| 244. For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person (a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act;
[...]
245. For the purposes of paragraph 244(a), the factors are the following:
(a) being a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament;
(b) voluntary compliance with any previous departure order;
(c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding;
(d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal;
(e) any previous avoidance of examination or escape from custody, or any previous attempt to do so;
(f) involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure; and
(g) the existence of strong ties to a community in Canada. (my emphasis)
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244. Pour l'application de la section 6 de la partie 1 de la Loi, les critères prévus à la présente partie doivent être pris en compte lors de l'appréciation :
a) du risque que l'intéressé se soustraie vraisemblablement au contrôle, à l'enquête, au renvoi ou à une procédure pouvant mener à la prise, par le ministre, d'une mesure de renvoi en vertu du paragraphe 44(2) de la Loi;
[...]
245. Pour l'application de l'alinéa 244a), les critères sont les suivants :
a) la qualité de fugitif à l'égard de la justice d'un pays étranger quant à une infraction qui, si elle était commise au Canada, constituerait une infraction à une loi fédérale;
b) le fait de s'être conformé librement à une mesure d'interdiction de séjour;
c) le fait de s'être conformé librement à l'obligation de comparaître lors d'une instance en immigration ou d'une instance criminelle;
d) le fait de s'être conformé aux conditions imposées à l'égard de son entrée, de sa mise en liberté ou du sursis à son renvoi;
e) le fait de s'être dérobé au contrôle ou de s'être évadé d'un lieu de détention, ou toute tentative à cet égard;
f) l'implication dans des opérations de passage de clandestins ou de trafic de personnes qui mènerait vraisemblablement l'intéressé à se soustraire aux mesures visées à l'alinéa 244a) ou le rendrait susceptible d'être incité ou forcé de s'y soustraire par une organisation se livrant à de telles opérations;
g) l'appartenance réelle à une collectivité au Canada. (je souligne) |
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ANALYSIS
[24] I am endorsing the applicant's reasoning and will only add a few comments where appropriate. As demonstrated by the evidence, the respondent is still the subject of three arrest warrants in the United States for aggravated assaults. The transcriptions of the Tribunal's hearing, at pages 7 and 8, indicate that the existence of outstanding charges was discussed at the hearing and that Tribunal member Tordorf became aware of that fact.
BY MEMBER (addressing Claimant)
Q. I have a question. In the United States, are there still charges that are pending, Sir, against you?
A. No.
Q. No. Okay. Because I wasn't sure if you were a fugitive from justice or not. You're not in violation of any probation?
BY COUNSEL
- No, he was deported from United States to Nigeria...
BY MEMBER
- In '99? Okay.
BY COUNSEL
- Because once you have a file there, it's over. They send you back home.
BY MEMBER
- Okay, okay.
BY MEMBER (addressing Claimant)
Q. You didn't return after '99?
A. No, there was a question to in April (inaudible) when I was there arrested which was the same that I had...
Q. Outstanding charges?
A. ... outstanding warrant, which... excuse me, can I explain?
Q. Yes.
A. Which Mr. (inaudible) had to check the American government that they really need the warrant to be sent over here, and I explained to (inaudible), I don't remember the woman is if you're in prison over there, you are (inaudible), but before they can let you go anywhere.
Q. Okay.
A. So they're not going to let me go back until I take up all my warrant.
Q. Okay.
A. They're not active.
Q. Okay. Yes, I know it was mentioned in the detention review but I don't think anything was ever proven that there's outstanding charges...
BY MINISTER'S COUNSEL
- Well, there are three listed here, three copy of... from the trial court of Massachusetts.
BY COUNSEL
- So, to that point, I think that what Mister said, if there was something left outstanding, they will not deport him, they will solve the matters. [...]
(my emphasis)
[25] An allegation that outstanding warrants still exist can also be found in the decision dated September 19, 2002, at page 2 :
There are still several outstanding warrants for criminal offences committed in the United States (exhibit -8) [...]
[26] In short, the evidence before the Tribunal was to the effect that the respondent was a fugitive from justice in another country and yet, the Tribunal did not consider this factor, which is specifically listed for consideration in paragraph 245(a) of the Regulations.
[27] The Court must also take into the account the fact that the Canadian wife of the respondent laid charges against him for assault causing bodily harm, as the transcripts of the Tribunal's hearing show at pages 13 and 14 :
BY MEMBER (addressing Claimant's wife)
Q. I do recall seeing that there was some assault charges regarding you. You want to tell me a little bit about that?
A. Sure. We had an argument and it was just, I was overwhelmed and I... I guess that I called the police because I was really overwhelmed, and the same thing as I wanted to take the charges.
Q. But did he hit you, did he assault you?
A. We fought, both of us fought basically.
Q. And did it result in a conviction for your husband?
A. No, because I did not... well, he was detained...
[...]
Q. You didn't drop the charges?
A. No, I did not have the chance to go. I did not where to go...
[...]
BY CLAIMANT
A. What happened was I went to court, the judge told me to go to anger counseling, which, after that, I go back to court and they're going to drop the charges (inaudible) conditional.
[...]
BY MEMBER (addressing Claimant)
Q. Okay. So then you saw the judge again and he dropped the charges?
A. No, no, no.
[...]
A. ... I'm supposed to go and come to court with her and they take it off.
The mere fact that the wife laid charges against the respondent tends to show that the ties to a community in Canada are not that "strong".
[28] The Tribunal member herself stated in her decision that "there are many many doubts in my mind that you would present yourself for removal".
[29] As far as the best interest of the children is concerned, this factor is not mentioned in section 245, paragraphs a) to g). The mere mention in the decision is not sufficient :
I am taking into consideration that you have a family and that you have a new-born baby, born in June 2002 and I am not taking into account any humanitarian considerations at all, but I am taking into account what the Regulations do specify and that is that I take into account that you have a strong tie to a community in Canada and the superior interests of the child.
In the case at bar, we are not dealing with a stay application after a deportation order or a humanitarian and compassionate request but a detention pending removal. Paragraph 245(g) stipulates "the existence of strong ties to a community in Canada" may include the presence of children but I agree with the Applicant that it does not supersede the other factors listed in section 245. It must be examined and weighed with the other factors. This has not been done. Therefore, the Tribunal acted beyond its jurisdiction by relying on an irrelevant factor and by failing to take into account a relevant one, and it made unreasonable findings of facts : Oakwood Development Ltd., supra, at page 174 :
[...] the failure of an administrative decision-maker to take into account a highly relevant consideration is just as erroneous as the improper importation of an extraneous consideration. [...]
[30] Therefore, the judicial review is allowed. The decision of the Tribunal is quashed and the matter is referred to a differently constituted tribunal for rehearing and redetermination.
[31] The parties had the opportunity to raise a serious question of general importance according to paragraph 74(d) of the Act and has not done so. No question will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed. The decision of the Tribunal is quashed and the matter is referred to a differently constituted tribunal for rehearing and redetermination. No question is certified.
"Michel Beaudry"
Judge