Date: 19991213 Docket: IMM-5714-99
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
-and -
YING CHEN
Respondent
REASONS FOR ORDER
BLAIS J.
[11 The Minister of Citizenship and Immigration seeks an order staying the order of R. Leach, an Adjudicator, dated November 23, 1999.
[2] The respondent came to Canada from the Fujian Province, in the People's Republic of China, by boat, together with 145 other persons. They arrived off the coast of Vancouver Island on September 10, 1999. It was the fourth such boat to come to Canada since July 20, 1999.
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[3] The respondent has made a claim for Convention refugee status. On September 14, a conditional deportation order was issued against the respondent and she was detained pursuant to section 103.1 of the Immigration Act as she was unable to satisfy an immigration officer as to her identity.
[4] On September 14, 1999, the respondent was interviewed by an immigration officer, with the assistance of a Mandarin interpreter. She indicated that she had no relatives in Canada and that she had never applied for either an immigrant visa or a visitor's visa. On the same day, she was interviewed by a senior immigration officer, again with the assistance of a Mandarin interpreter. The respondent again indicated that she had no relatives in Canada and that she had never applied far either an immigrant visa or a visitor's visa.
[5] According to the Field Operations Support System ("FOSS"), a computerized database maintained by the Canada Immigration Commission, the respondent and her family made an application on July 30, 1997 to immigrate to Canada as entrepreneurs. The respondent applied for a Canadian visitor's visa on November 27, 1998 for the purpose of visiting her brother in Canada. The application was refused.
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[6] When confronted with this information at an interview on October 1 , 1999, the applicant acknowledged that it was correct.
[7] As a consequence of this, the Canada Immigration Commission is satisfied as to the respondent's identity. However, the applicant seeks the continued detention of the respondent pursuant to subsection 103(1) on the grounds that she is unlikely to appear for removal.
[8] The applicant takes the position that, in light of the nature of the respondent's entry into Canada, and her failure to be truthful when examined by Canadian Immigration authorities, there are reasonable grounds to believe that she would not appear for removal.
[9] On October 15, 1999 an Adjudicator, George Wajtowicz, conducted a detention review hearing concerning the respondent.
[10] The Adjudicator concluded that the respondent would not report for removal.
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[111 Notwithstanding this finding, the Adjudicator then asked for submissions as to the terms and conditions for the respondent's release.
[121 After hearing the submissions, the Adjudicator concluded that he would offer release upon the posting of a $10,000 cash bond and upon other terms to be determined later.
[131 On October 18, 1999, the Adjudicator made an order for the respondent's release.
[ 141 The respondent remained in detention until November 23, 1999. On that day, a further detention review was conducted and the Adjudicator offered the respondent's release on a $15,000 cash bond to be paid by her brother, Mr. Tian Ren Chen and on a $5,000 performance bond to be granted by Mr. Chen.
[15] On November 24, 1999, subsequent to the respondent's detention review of November 23, 1999, new information was provided by Canada Immigration Intelligence in Toronto and Vancouver regarding the respondent's bondsperson Mr. Chen.
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[ 16] The applicant immediately requested an immediate rescission of the Adjudicator's order for the release of Chen made in Prince George on November 23, 1999.
[171 On November 25, 1999, R.V. Leach, the Adjudicator, responded to
the applicant:
Your suspicions regarding Mr. Chen's employer, who was not a participant at the detention review of 23 November, do not persuade me that Mr. Chen is an inappropriate bondsperson or that Chen Ying is unlikely to appear for removal from Canada.
[18] On November 25, 1999, the applicant filed and served an application for leave and judicial review of the decision of Adjudicator Leach rendered the 25th day of November whereby the Adjudicator refused to consider additional evidence regarding the respondent's detention under the Immigration Act.
[19] On November 25, 1999, the applicant also filed and served a motion to stay the order of R. Leach, the Adjudicator, dated November 23, 1999.
[20] To succeed in obtaining a stay of the order of the Adjudicator, the Minister must satisfy the three elements of the test: a serious issue to be tried, an irreparable harm and a balance of convenience in her favour.
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[211 The applicant suggests that pursuant to subsections 103(6) and (8), of the Immigration Act, the Adjudicator had to consider the new evidence brought by the applicant.
[22] The applicant submits that not considering the new evidence constitutes firstly an error of law by the Adjudicator and secondly a serious issue to be tried.
[23] The applicant submits that the Adjudicator Leach should have reviewed the new evidence prior to concluding that the new evidence did not pertain to his offer of release of the respondent and her continued detention or release by the applicant.
[24] The applicant suggests that the applicant will suffer irreparable harm if the respondent is released from detention prior to her removal from Canada.
[25] The applicant suggests that if the respondent is released from detention, she will not be available for removal from Canada, given that she did everything she could to enter Canada, legally or illegally, and she does not want to go back to China, and will try to do whatever she can to avoid removal.
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[26] The applicant also submits that if the respondent is released, this application for leave and judicial review will become moot, thereby depriving the applicant of the opportunity to determine the legality of the Adjudicator's order. The applicant submits that this too, will constitute irreparable harm.
[27] The applicant suggests that giving effect to the Adjudicator's order will defeat the purposes of the Immigration Act. It is submitted that the public interest in giving effect to the provisions of the Immigration Act, outweighs the respondent's interests in this case.
[28] The respondent suggests that the applicant has not demonstrated that there is a serious issue.
[29] Pursuant to the jurisprudence, serious issue should not be only a mere possibility or a speculative risk.
[30] The respondent considers that all those new information identified as letters, ID cards and passports ceased by the applicant at the border do not prove Mr. Chen's involvement in criminal activities. Further, it does not constitute a serious question to be tried.
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[311 The respondent also suggests that sections 26 and 19 of the Adjudication Division Rules do not in any way authorize the Adjudicator to reconsider his decision.
[321 The respondent suggests that as soon as the Adjudicator has rendered his decision, he is functus.
[331 The respondent suggests that the only way for the applicant to ask for a reassessment would have been under a new request pursuant to subsection 103(8).
[341 On the issue of irreparable harm, the respondent suggests that she suffers irreparable harm every day she is detained. The Adjudicator has made a decision and she must be released.
[351 Finally, the respondent suggests that the balance of convenience is in her favour because she is in custody and if she is released, pursuant to the Adjudicator's decision, she will live with her brother and remains available at the tribunal's request.
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ANALYSIS
Serious Issue
[36] I am convinced that the refusal by the Adjudicator to consider the new
evidence at the request of the applicant constitutes a serious issue.
Section 103(8) provides:
Retaking into custody
Nouvelle mise sous garde
(8) Where an adjudicator has ordered that a person be released from detention pursuant to paragraph (3)(a) or subsection (7), that adjudicator or any other adjudicator may at any time thereafter order that the person be retaken into custody and held in detention if the adjudicator becomes satisfied that the person is likely to pose a danger to the public or is not likely to appear for an examination, inquiry or removal.
(8) Après la mise en liberté prévue à l'alinéa (3)a) ou au paragraphe (7), l'arbitre qui l'a ordonnée ou un autre arbitre peut à tout moment ordonner à nouveau la mise sous garde de l'intéressé, s'il estime que celui-ci constitue vraisemblablement une menace pour la sécurité publique ou qu'il se dérobera vraisemblablement à l'interrogatoire, à l'enquête ou au renvoi.
IRREPARABLE HARM
[37] The evidence demonstrates that the respondent lied to the immigration officer and it is only when she was confronted with the truth that she admitted her actions.
[38] The evidence also demonstrates that she did everything she could to enter Canadalegally or illegally.
[391 It is clear that if the respondent is released from detention, the judicial review proceedings will become moot, and the respondent may well not be
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available for removal from Canada if she is not successful in her refugee claim.
BALANCE OF CONVENIENCE
[401 I am also of the opinion that the public interest outweighs the respondent interests so the balance of convenience favours the Minister.
[41 ] 1 consider it appropriate for the Adjudicator, who will review the matter in due course to assess the new evidence brought by the applicant.
[42] For all those reasons, the order of R. Leach, Adjudicator, dated November 23, 1999, is stayed and as a result, the respondent shall remain under detention until the judicial review application is disposed of or until the next statutorily required detention review of the respondent is conducted, or until the respondent is removed from Canada.
Pierre Blais
Judge
OTTAWA, ONTARIO December 13, 1999
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5714-99
STYLE OF CAUSE: MCI v. YING CHEN
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: November 26, 1999
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE BLAIS DATED: December 13, 1999
APPEARANCES:
Mr. Garth Smith FOR THE APPLICANT
Mr. Bill A. Coller FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Morris Rosenberg FOR THE APPLICANT Deputy Attorney General of Canada
Mr. Bill A. Coller FOR THE RESPONDENT Prince George, B.C.