20000201
IMM-212-00
Between:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Applicant,
- and -
YING CHEN,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] The applicant - the Minister of Citizenship and Immigration applies for an order to stay, on two days" notice, the operation of Adjudicator R. Leach"s order dated January 14, 2000, whereby the adjudicator, of the Immigration and Refugee Board of Canada, Adjudication Division (the tribunal), is alleged to have made an offer to release the respondent without providing to the applicant"s representative an opportunity to cross-examine the respondent"s proposed bonds person. The tribunal"s file number is 99-0159(D208).
[2] The moving party also seeks an order for special management and expedited hearing of the within application for leave and judicial review, pursuant to rule 384. The respondent came to Canada from Fujian Province in the People"s Republic of China by ship, arriving off the coast of Vancouver Island on September 10, 1999, with about 140 other would-be, surreptitious, unarmed invaders of Canada, all discovered by the vigilance of the Canadian Forces patrols.
[3] So little did the respondent respect this country and its public servants, who were obliged to make respectful inquiries about her pushing her way into Canada, that the adjudicator G. Wojtowicz, at an early detention review is recorded as stating this (applicant"s motion record, p. 000032):
| My instinctive reaction to the case before me today is that I am dealing with a basic situation of dishonesty, and in assessing your case more closely, I deal with you as an individual, and I deal with you as a part of a group. The written submission deals with a group. I cannot decide in your case on the basis of a group alone, nor can I deal with you in isolation from the group, because you are part of that group and must be looked upon in that situation. |
| There are some things that I have great difficulty in accepting from you, and quite truthfully I don"t accept. Counsel pursued something about a refugee claim with respect to building a church, an unauthorized church in China in March of 1999. You were trying to come to Canada since 1997, and then two years after trying to first come to Canada, you now claim you are fleeing China in order to come to Canada. You argue that you"re fleeing China because will go to gaol forever because of this church thing. This I believe to be a bit of self-serving hyperbole, and as an aside, if you tried to build an unauthorized church in Prince George you wouldn"t get very far either. |
| You concealed your two applications from the Immigration authorities, you concealed the existence of your brother until the Immigration authorities confronted you with this information, and then you came clean. That"s a very empty gesture. If the Immigration authorities didn"t otherwise find out what was going on, more probably than not you would never have confessed to the truth. |
| A point that jumps out at me, you"re essentially claiming to be a refugee on religious grounds. You wrap yourself in this cloak of religious self-righteousness, and then everything you say is essentially a lie. There"s an inconsistency there I have a problem with. |
| Ms. Chen, I am satisfied that you would appear for your refugee claim, it"s to your advantage to do so. But it"s not my job to ensure your availability for the refugee claim, the issue before me is would you be available to the Immigration authorities for removal from Canada should your refugee claim fail, and based on your track record to date, I would conclude that you would not. |
| Ms. Chen, you claim you paid 5,000 yuan to come to Canada. This is a small fraction of what everybody else appears to have paid. I have a problem with this figure. Your friends, your fellow travellers, paid in the neighbourhood of a quarter of a million yuan to come to Canada. You claim you only paid 5,000. That"s less than a thousand dollars Canadian. Your explanation as to why this figure is so low doesn"t persuade me. You say this was paid by a friend who knew of your plight, but there"s another tier between you, your friend and the North American shore, this is the organized crime element, the Snake Heads who traffic in human beings. |
| Snake Heads, it"s not worth their while to move a person from China to North America for less than a thousand dollars Canadian. Your friend may have been willing to part with 5,000 yuan on your behalf, but the rest of that story is incomplete, and as it stands it is unbelievable. |
| There are other inconsistencies. You have a brother in Toronto, but you are sailing to the United States. On the face of it, this makes you an illegal migrant, to whichever country, be it the United States or Canada. |
| You argued that you had to flee China because you"d go to gaol forever because of this church, but then when your lawyer asked you if it came to removal or deportation would you be available to be sent back, and you said yes. Which story do I believe, the first, the second or neither? |
| Ms. Chen, in conclusion, I will revert to the words I used at the beginning. The situation before me is one of basic dishonesty. You lied to the Canadian Immigration authorities, even after you were apprehended. You beat around the issues during this hearing. What part of your story, if any, should I believe? |
| I would be prepared to consider a guarantee other than detention for the purpose of this, availability for removal. I would be prepared to consider a cash deposit in the four figure range. Something of that size I believe would be necessary to balance off your actions in the past, your illegal entry, your deception, a figure that would force you to comply with the obligations you have undertaken. |
[4] The adjudicator was quite correct: it is not his job to ensure the claimant"s availability for her refugee claim, but rather would the claimant be available to the immigration authorities for removal from Canada if her refugee claim failed? He thought she would not be available. Nor does this judge, because, from the outset the whole adventure has been based on sneakiness and stealth. Given the probabilities of a much greater - although wholly illegal-indebtedness to the "snakehead(s)" as noted in parallel and contemporaneous invasions of this country, all manifesting attempted secrecy and the withholding of personal identifications, what good reason can be stated for believing an undertaking expressed by this claimant to be present at removal proceedings? Not even the amount of bail offers any good reason since the sums so far pledged on her behalf evince nothing "easy-come, easy-go" from ship fares to fraternal bail posting. Why should the claimant care, if she succeeds in achieving her ultimate goals?
[5] At the end of the hearing which occurred on January 14, 2000, Adjudicator Leach ordered that the respondent could be released from detention on the following terms and conditions:
| A) That Chen, Tian Ren, post in favour of the Receiver General for Canada a performance bond in the penal sum of $5,000.00; and |
| B) That Chen, Tian Ren, make a security deposit in the name of the Receiver General for Canada in the amount of $15,000.00; and |
| E) Abides by six certain relatively standard terms and conditions, including a fixed residence not to be changed without first obtaining written permission verified by an immigration officer |
This is the order which the Minister seeks to stay.
[6] Here are some extracts from the September 9th , detention hearing; (pp. 000028-29)
| MR. COLLER: Now if your are released from custody, where would you go? |
| PERSON CONCERNED: I will go to Toronto. |
| MR. COLLER: And live with who [sic] or live where? |
| PERSON CONCERNED: I will live with my brother in Toronto. |
| MR. COLLER: And your brother"s name is? |
| PERSON CONCERNED: Chen Tian Ren. |
| * * * |
| MR. COLLER: No, the question was, how much money do you fell you can get from China to Canada? |
| PERSON CONCERNED: Two to three thousand -- 20 to 30,000 Chinese yuan. |
| MR. COLLER: Can you tell me -- tell us how much that is in Canadian funds? |
| PERSON CONCERNED: 5,000 Canadian dollars. |
| MR. COLLER: Okay. How much did you pay to come to Canada on the boat? [sic - ship] |
| (Tape changed) |
| MR. COLLER: How much did you -- how much did you pay to come to Canada? |
| PERSON CONCERNED: 5,000 Chinese yuan. |
[7] The respondent"s manner of coming to Canada, her initial reluctance to reveal her brother"s presence, the matter of improbable finance commitment and the mysterious financial help of her altruistic "friend", all evince a risk of her declining to attend for removal proceedings. The financial consequences seem to be of little magnitude in her life.
[8] The decision rendered earlier by Mr. Justice Blais in this matter carries much validity up to the present. There is little solid basis on which to be sanguine about the respondent"s prospects of, and willingness to be present for, removal proceedings.
[9] This case should be expedited. Cross-examinations on affidavits shall be completed by close of business on Friday, February 4, 2000, or as soon as respective counsel can arrange to conduct them. Counsel are required now to seek the earliest possible date to bring on the rest of the outstanding proceedings herein.
(Sgd.) F.C. Muldoon
Judge
February 1, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-212-00
STYLE OF CAUSE: MCI
v.
Ying Chen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 28, 2000
| REASONS FOR ORDER OF Muldoon, J. |
DATED: February 1, 2000
APPEARANCES:
| Mr. Mark Sheardown For the Applicant |
| Mr. Bill Coller For the Respondent |
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney
| General of Canada For the Applicant |
Bill A. Coller
Barrister & Solicitor
| Prince George, BC For the Respondent |