Date: 20000317
Docket: IMM-212-00
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
YING CHEN
Respondent
REASONS FOR ORDER
BLAIS, J.
[1] This is a judicial review of the decision of Adjudicator R. Leach, dated January 14, 2000, ordering the release of the respondent from detention.
FACTS
[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.
[3] On October 15, 1999, Adjudicator Wojtowicz ordered her release subject to certain terms and conditions, despite his conclusion that she would not show up for her hearing. The respondent remained in custody until her next hearing.
[4] On November 23, 1999, Adjudicator Leach ordered her release upon the payment of a $15,000 cash bond and the posting of a $5,000 performance bond as well as other terms and conditions. The applicant filed a stay application as well as a judicial review application of this decision. I ordered the stay of the November 23, 1999 decision and the judicial review was subsequently discontinued on February 10, 2000.
[5] On December 16, 1999, Adjudicator Barliszen ordered the continued detention of the respondent.
[6] On January 14, 2000, Adjudicator Leach ordered her release on the same terms and conditions as those set in the November 23, 1999 order. Justice Muldoon granted the stay of the order on February 1, 2000.
[7] On February 11, 2000, Adjudicator Yamauchi ordered the continued detention of the respondent.
[8] The next statutory required detention review is set for March 10, 2000.
THE ADJUDICATOR"S DECISION
[9] The transcription reveals the Adjudicator"s reasons:
| Adjudicator : ...Now , as I"m sure you"re well aware the Federal Court, in dealing with an application for an interim stay of the execution of that order for release [November 23, 1999], ordered it based on their conclusion that I had failed to consider the information or evidence that was before me relative to the allegations or the suspicious of the nefarious document handler. Well there was no information available at the time, other than this memorandum. |
| Subsequent to that, and in a statutory declaration dated the 14th of December, an adjudicator received evidence the statutory declaration of Rick Andreas, and Immigration officer at the Greater Toronto Enforcement Centre, who solemnly declared as follows: |
| Concerning the courier package intercepted at Vancouver, destined to KuShon Toronto Trading Company Limited, of Toronto, to the attention of Tian Ren Chen.... which contains various documents which have been identified as containing names, which are part of the PRC migrants which arrived in Canada by boat in British Columbia. The investigation regarding the documents and KuShon Trading Company is continuing. |
| My question to you, sir, is what"s happening with the investigation? |
| CPO: I have nothing on file that I can tell you today that will assist both of us with answering the question. |
[...]
| Adjudicator: Now on the face of the statutory declaration, I see nothing nefarious about a package of documents arriving in Canada. Nor do I find in Mr. Morris"s memo of the 24th of November any information which would have caused me then to rescind my order for release. |
| Now, an adjudicator who reviewed Ms. Chen"s detention subsequent to my making that order was persuaded to infer that there was a nefarious connection between the bondsperson and his employer and this couriered package of documents. An inference that I wasn"t prepared to draw on the 24th of November, and which I am not prepared to draw today on the basis of this statutory declaration. |
| As a consequence of that, and in the absence of any significant changes in Ms. Chen"s circumstances, revealed during subsequent detention reviews or today, I continue to be of the opinion that Ms. Chen will report for removal if released with the imposition of those same terms and conditions that I articulated on the 23rd of November. |
[10] The Adjudicator ordered the respondent"s release upon the payment of a $15, 000 cash bond and the posting of a $5000 performance bond.
THE APPLICANT"S POSITION
[11] The applicant concedes that the disposition of the present matter is academic and the application is moot. Nevertheless, it is submitted that the Court ought to exercise its discretion to hear this application, notwithstanding the fact that it is moot.
[12] The applicant examined the criteria set in Borowski v. Canada, [1989] 1 R.C.S. 342.
[13] It notes that the necessary adversarial context exists. With respect to judicial economy, it is submitted that the special circumstances of this case make it worthwhile to apply scarce judicial resources to resolve it.
[14] The applicant submits that it will often be difficult to arrange for the hearing of a judicial review application of a detention review decision within a required time period, such that by the time the matter is heard it is rendered moot by the making of a new order by an adjudicator relating to detention. As such, if the questions that are raised in this application are ever to be tested, they will almost have to be tested in a case that is moot.
[15] As to the Court"s adjudicative role, it is submitted that there is no danger of the Court intruding into the role of Parliament in the case at bar.
[16] The applicant submits that Adjudicator Leach"s finding that the respondent is likely to appear for removal was perverse or capricious. It is submitted that while a detention hearing is a hearing de novo, an adjudicator is permitted to consider evidence that was presented at previous detention review hearings, provided that the adjudicator does not simply adopt the findings of the previous decision.
[17] It is submitted that the facts that underline the findings of Adjudicator Wojtowicz, as to the numerous inconsistencies in her story among them, her lies regarding earlier applications for a visa, her brother"s presence in Canada, make it clear that the respondent is not a credible witness.
[18] It is submitted that Adjudicator Leach breached the principles of natural justice by failing to require that Mr. Chen be made available for cross-examination. Furthermore, the fact that the case presiding officer may not have obtained any further information on the cross-examination of Mr. Chen had he been provided with an opportunity to do so is irrelevant for the purposes of this application.
[19] It is lastly submitted that there was no evidence before the Adjudicator to allow him to conclude that Mr. Chen was an appropriate bondsperson as of the date of the January 14, 2000 detention review hearing.
THE RESPONDENT"S POSITION
[20] It is submitted that the Court should act conservatively in relation to the discretion given to adjudicators in detention review hearings, as they are the tribunal of first instance, the trier of fact. The danger in rendering a decision when the matter is moot is limiting the discretion given to the adjudicators in future detention review hearings involving Ying Chen, without having had the benefits of observing the witnesses that appeared at detention review hearings.
[21] The respondent submits that the document seized by the Immigration authorities, and continue to be in their hands, undisclosed, were simply identification documents and documents to be used at the refugee determination hearings of Ying Chen and her husband"s niece. It was these documents that led to the application for judicial review arising from, and the eventual Federal Court stay of the November 23rd order. Presumably, if it were not for these documents, which it is submitted, are perfectly legal, the Minister would already be released on conditions.
[22] The respondent notes that the case presiding officer did not cross-examine Tian Ren Chen at the October 15, 1999 hearing. He did not ask to cross-examine him on the January 14, 2000 hearing. The case presiding officer had every opportunity to cross-examine Mr. Chen on December 16, 1999.
[23] The respondent submits that the test for quashing an adjudicator"s order is a high one and that the reviewing court cannot substitute its views of the facts and law for those of the tribunal.
ISSUES
| 1-Should this Court exercise its discretion and render a decision despite the fact that the matter is moot? |
| 2 -What is the standard of review applicable in a judicial review application of the decision of an adjudicator on a detention review? |
| 3 -Did the Adjudicator base his decision on a perverse or capricious finding of facts? |
| 4 -Did the Adjudicator breach the principles of natural justice by failing to provide the case presiding officer with an opportunity to cross-examine the bondsperson? |
| 5 -Was the bondsperson suitable based on the evidence presented? |
ANALYSIS
1. Should this Court exercise its discretion and render a decision despite the fact that the matter is moot?
[24] In Borowski,supra, Justice Sopinka writing for the Court explains :
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision.
[25] The Court points out to a two-stage process: the first stage being the absence of a live controversy and the second stage listing the criteria for exercising the Court"s discretion.
[26] The Court lists three criteria in order to determine if the discretion ought to be exercised:
[1] a court's competence to resolve legal disputes is rooted in the adversary system. [...]
It is apparent that this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. For example, although the litigant bringing the proceeding may no longer have a direct interest in the outcome, there may be collateral consequences of the outcome that will provide the necessary adversarial context.
[2] the concern for judicial economy [...]
The concern for conserving judicial resources is partially answered in cases that have become moot if the court's decision will have some practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy which gave rise to the action. [...] Similarly an expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but brief duration. In order to ensure that an important question which might independently evade review be heard by the court, the mootness doctrine is not applied strictly.
[3] the need for the Court to demonstrate a measure of awareness of its proper law-making function.
The Court must be sensitive to its role as the adjudicative branch in our political framework. Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch.
[27] This judicial review is moot since every 30 days, another detention hearing takes place. In the present case, on February 11, 2000, Adjudicator Yamauchi ordered the continued detention of the respondent. Seeing that the present matter is moot, we must now turn our mind to applying the above criteria to the facts in this case.
[28] There is no doubt that there is a adversarial context. Both parties are represented by counsel and have submitted arguments to the Court.
[29] As to the judicial economy criteria, considering the fact that every 30 days another detention review takes place and taking into account the fact that a judicial review application of such a detention review require almost always more than 30 days, matters of such kind, will inevitably be moot by the time the judicial review application is heard. However I am not convinced we should apply scarce judicial resources for a matter that is reheardde novo every 30 days. The resolution of this case does not resolve the matter since another detention review took place and the decision under review has been modified and replaced.
[30] Regarding the third criteria, an awareness of the Court"s proper law-making function, I don"t see how deciding this case could be viewed as intruding on the legislative sphere.
[31] In McIntosh v. Canada (M.C.I.) (1995), 30 Imm.L.R. (2d) 314, the Adjudicator refused to allow the applicant"s father to testify on June 29, 1995. A subsequent detention hearing took place in August 1995, and the Adjudicator ordered the continued detention of the applicant. The applicant filed a judicial review of the June decision, Justice Rothstein concluded that the matter is moot and the evidence can be presented at the next detention hearing.
[32] This Court should refuse to exercise its discretion to hear the matter.
[33] This judicial review should be dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
March 17, 2000