Ottawa, Ontario, February 27, 2006
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review of a decision of the Immigration and Refugee Board, Immigration Division (the Board), wherein the Board ordered the continued detention of the applicant.
[2] The challenged decision was the fifth detention review decision that resulted in the applicant's continued detention. In all but the second last decision, the applicant was detained because the Board was satisfied that he was a danger to the public and that he was unlikely to appear for removal from Canada. In the fourth detention review decision, the applicant's continued decision was ordered once again, but only on the ground that he was unlikely to appear for removal. The Board was not satisfied that the applicant was a danger to the public. In the fifth decision, the applicant was detained on both grounds.
[3] Section 58 of IRPA provides that the Board must order the individual's release unless it is satisfied that the individual concerned is a danger to the public or is unlikely to appear for removal:
| 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
(a) they are a danger to the public;
(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); |
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 :
a) le résident permanent ou l'étranger constitue un danger pour la sécurité publique;
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); |
[4] The applicant is a citizen of Albania. In 1996, while living and working in Greece, the applicant was convicted of "homicide by intention in the heat of passion, unlawful possession of arms, and use of arms." As a result, he was sentenced to a term of imprisonment of 11 years 6 months, and a fine of 50,000 Drachmas. The conviction was upheld through several levels of appeal.
[5] The applicant remained incarcerated in Greece for almost 7 years. While incarcerated, the applicant was involved in an attempt to escape. On June 11, 2003, he was released. Shortly thereafter he was deported to Albania.
[6] Upon his return, the applicant obtained a false passport and, on September 14, 2003, he traveled to Germany but was returned to Albania by German police.
[7] The applicant then attempted to obtain a temporary resident visa (visitor visa) to allow for travel to Canada. He made this application in person to Canadian officials at the Mission in Rome, Italy. The applicant made multiple misrepresentations in this application, including the purposes of his travel to Canada, the location of his family, and the concealment of his criminal conviction. This application for a visitor visa was refused on September 24, 2004.
[8] After being refused a visitor visa, the applicant obtained another false passport. He then traveled through Italy, France, and the United States before arriving in Canada on December 21, 2004. Upon arriving in Canada, he claimed refugee protection.
[9] The applicant has been detained since his arrival in Canada. His first detention review commenced on December 29, 2004, before the Board. Numerous documents were submitted and extensive arguments were made over the course of four hearings. Ultimately, on January 27, 2005, Board member De Carlo ordered the applicant's continued detention on both grounds (danger to the public and unlikely to appear). The applicant's second detention review took place on February 3, 2005, at which time, Board member Willoughby ordered the applicant's continued detention on both grounds. The applicant's third detention review took place on March 1, 2005, at which time, Board member Funston ordered the applicant's continued detention on both grounds.
[10] The applicant's fourth detention review took place on March 29, 2005, at which time, Board member Martens ordered the applicant's continued detention on the ground that he was unlikely to appear for removal. However, the Board member disagreed with the decisions of her colleagues on the ground of danger to the public and found that the evidence was insufficient.
[11] The applicant's fifth detention review commenced on April 25, 2005. This review concluded on May 24, 2005, at which time, Board member De Carlo (who also heard the first detention review) ordered the applicant's continued detention, once again on both grounds. This decision is the subject of the present application for judicial review.
[12] The first issue raised by the applicant concerns issue estoppel. The second issue is whether the Board erred in placing the onus on the applicant. These are questions of law and thus the standard of correctness applies. The third issue relates to the determination of whether the applicant is unlikely to appear for removal. This determination is factually driven and thus the appropriate standard of review is patent unreasonableness.
[13] The applicant first submits that the fourth detention review decision that the applicant is not a danger to the public is res judicata as a Board member does not have the authority to reverse a previous decision that the applicant is not a danger to the public. I disagree with this submission.
[14] The Federal Court of Appeal has recently confirmed that, for a detention review decision, prior decisions are not binding on subsequent Board members. One Board member may depart from a prior decision provided clear and compelling reasons are given for doing so. IRPA does not draw any distinction between the first and subsequent detention reviews or impose any requirement that new evidence be presented. Rather, at each hearing, the member must decide afresh whether continued detention is warranted: Canada(Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572 (C.A.).
[15] I am satisfied that, in its fifth detention review decision, the Board provided clear and compelling reasons for detaining the applicant on the grounds of danger to the public. The Board member noted that the factor set out in subparagraph 246(f)(ii) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), could not be ignored, namely a conviction outside Canada for an offence involving violence or weapons. The Board member noted the applicant's conviction and the length of the sentence he received. The Board member stated that, despite the applicant's claim that he acted in self-defence, the conviction was upheld on appeal. The Board member noted that there was no evidence of rehabilitation since the murder and expressed concern about his conduct if he were at large. The Board member also described the nature of the injuries, as a result of which the death occurred, caused by the applicant. Therefore, I do not see any reason to disturb the Board's decision that the applicant was a danger to the public.
[16] The applicant also submits that the Board erred in placing the onus on him rather than on the Minister.
[17] The exact nature of onus on the Minister during detention review hearings was described by the Federal Court of Appeal in Thanabalasingham, above, at paragraph 16:
16 The onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention. However, once the Minister has made out a prima facie case for continued detention, the individual must lead some evidence or risk continued detention. The Minister may establish a prima facie case in a variety of ways, including reliance on reasons for prior detentions. As Gauthier J. put it in [page585] her reasons at paragraph 75:
(...) at the beginning of the hearing, the burden was always on the shoulder of the proponent of the detention order, the Minister, but then this burden could quickly shift to the respondent if previous decisions to continue the detention were found compelling or persuasive by the adjudicator presiding over the review.
[18] I am not convinced that the Board member imposed the onus on the applicant rather than on the Minister. The applicant relies on the Board member's use of the phrases "I am not so persuaded"; "I have not been persuaded"; "I am not satisfied"; "more (...) would be required before one could be reasonably satisfied"; and "there needs to be objective evidence" as indications that the Board member ignored the onus. As stated by the Court of Appeal, while the Minister bears the ultimate burden to establish a prima facie case, "the individual must lead some evidence" or risk continued detention. The Board member's reference to the absence of any evidence of rehabilitation is entirely consistent with the Federal Court of Appeal's description of the manner in which the burden of proof is to be applied.
[19] The applicant finally submits that the Board placed an inappropriate amount of weight on the applicant's illegal entry into this country. In support of this contention, he relies primarily on the following passage from Justice John Evans in the case of Takhar v. Canada(Minister of Citizenship and Immigration), [1999] F.C.J. No. 240 (T.D.)(QL):
13 In my view, the Refugee Division made something of a false start in the instant case in determining the applicant's credibility: it attached considerable weight to the fact that the applicant had lied on the Personal Information Form, which he had mailed in after arriving in Canada, by stating that he had had a passport in his own name, which he had given to the agent, and another in someone else's name, which he had destroyed on the agent's instructions. In his evidence before the Refugee Division, the applicant admitted that he had never had his own passport and had simply filled in the form as directed by the agent, even though the agent did not travel to Canadawith him.
14 The fact that this lie seems to have weighed heavily with the Refugee Division when assessing the applicant's credibility is troubling for two reasons. First, it is not uncommon for those who are fleeing from persecution not to have regular travel documents and, as a result of their fears and vulnerability, simply to act in accordance with the instructions of the agent who organized their escape. Second, whether a person has told the truth about her or his travel documents has little direct bearing on whether the person is indeed a refugee.
[20] The applicant seeks to apply that same reasoning to detention reviews, arguing that the Board member placed too much reliance on the applicant's dishonesty to Canadian officials at the Mission in Rome, the false passport he used to travel to Canada, the fact that he did not disclose his criminal record at the time he applied for a temporary resident visa and the fact that the applicant changed his name.
[21] I do not believe that the jurisprudence relied on by the applicant is applicable to the case before me. The issue before the Refugee Protection Division in determining a claim for refugee protection is substantially different than the issue before the Board in determining whether a person is unlikely to appear for removal. The task of the Refugee Protection Division is to determine whether a claimant is truly a refugee. That is not the task of the Board member in a detention review. In the case before me, for example, the task of the Board member was to determine whether the applicant was a danger to the public and whether he was unlikely to appear for removal from Canada. The two inquiries are fundamentally different and each requires its own distinct considerations.
[22] In the present case, the Board member examined the totality of the evidence before him, which demonstrated that the applicant resorted to whatever means were necessary to seek refugee protection, including obtaining a false passport and not disclosing his criminal record when he applied for a temporary resident visa, to achieve his goal of getting to Canada. The Board member also noted that the applicant had misrepresented his identity and his intentions to authorities in the past, particularly since being released from jail in Greece in 2003. The Board member also specifically relied on the detailed reasons provided in her first review decision of January 27, 2005. A review of those reasons shows that, in addition to the fact that the applicant lied to Canadian officials abroad and obtained a fraudulent passport to come to Canada, the Board member also took into account the applicant's past attempt to escape prison in Greece, his lack of co-operation upon arriving in Canada to disclose certain information or details regarding his facilitator and any escort, and his change of identity in Greece. The Board's determination cannot be said to be patently unreasonable. I cannot see any basis on which to interfere with the Board's decision on the issue of whether the applicant is unlikely to appear for removal.
[23] For all these reasons, the application for judicial review is dismissed.
[24] Counsel for the applicant has asked that the following questions be certified:
1. Does the statement in M.C.I. v. Thanabalasingham, 2004 FCA 4 that at each detention review the Immigration Division of the Immigration and Refugee Board must come to a fresh conclusion whether the detained person should continue to be detained apply to a prior decision that, on one of the grounds for detention, the detained person should be released, or does the statement apply only to a prior decision that, on one of the grounds for detention, the detained person should be detained?
2. Does the Immigration Division of the Immigration and Refugee Board under subsection 58(1) of the Immigration and Refugee Protection Act have a duty to impose the onus on the Minister explicitly in a detention review, or can it be done implicitly?
3. In light of the Immigration and Refugee Protection Act Regulation 245, are efforts made by a refugee protection claimant to escape persecution relevant factors in a detention review by the Immigration Division of the Immigration and Refugee Board when assessing likelihood of appearance for removal?
[25] I am of the view that the first and second questions have already been addressed by the Federal Court of Appeal in Thanabalasingham, above.
[26] I am similarly satisfied that the answer to the third question rests within the section 245 of the Regulations as well as policy guidelines requiring the Board member to consider "all other circumstances". Accordingly, I see no serious question of general importance, which would require the Federal Court of Appeal's consideration.
[27] Therefore, no questions will be certified.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3508-05
STYLE OF CAUSE: Erik Feimi
and
The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 15, 2006
REASONS FOR JUDGMENT: TREMBLAY-LAMER J.
APPEARANCES:
| Mr. David Matas
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| Ms. Camille N. Audain
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SOLICITORS OF RECORD:
| David Matas 602-225 Vaughan Street Winnipeg, Manitoba R3C 1T7
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| John H. Sims, Q.C. Deputy Attorney General of Canada Winnipeg, Manitoba
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