Digests

Canada (Minister of Citizenship and Immigration) v. Sittampalam

IMM-3876-04, IMM-8256-04

2004 FC 1756, Blais J.

17/12/04

22 pp.

Judicial review of two Immigration and Refugee Board release orders for respondent's release from detention--Respondent, Convention refugee from Sri Lanka with criminal record in Canada, arrested based on allegation leader of violent street gang, detained pending admissibility hearing on grounds danger to public, unlikely to appear-- Following numerous unsuccessful detention reviews, respondent's release ordered--Admissibility hearing subsequently concluded, finding respondent inadmissible due to drug trafficking conviction, involvement in criminal organization--Whether Board members erred in law by considering time in detention, potential time of detention-- Immigration and Refugee Protection Regulations, s. 248(b) requiring length of time in detention be considered--S. 248(c) requiring speculation as to likely length of detention based on reliable information, informed opinion, when determining whether release order appropriate--Here, significant amount of delay in resolving case due to respondent's own actions-- Thus cannot claim length of detention unfair--Still, length of detention not completely irrelevant, properly considered with regard to dissipated danger to public, stale evidence-- Potential duration of other proceedings should only be considered to determine whether final determination so close as to render change of existing detention order impractical-- Here, Board members not wrong to rely on time in detention to conclude danger to public may have dissipated--Whether Board members erred by providing inadequate reasons for departing from earlier decisions--Clear and compelling reasons required when departure from prior decisions to detain, although implicit reasoning sufficient, as long as decision not cursory, failing to advert to prior reasons for detention--In present case, members made sufficiently clear statements re: reasons for departure from previous decisions--Whether Board members erred in law by relying on speculation as grounds to conclude respondent no longer danger to public, likely to appear--Once Minister has made out prima facie case for detention, onus on detainee to provide grounds for release--However, evidence forming prima facie case may become outdated--Still, Board not entitled to rely on speculation instead of evidence--Here, Board members' reasoning inadequate--Original detainment order made, confirmed on significant evidentiary record--Release order should thus relate specifically to new evidence, lack of current evidence--This was not done--Such error justifying Court's intervention--Whether Board members' finding sureties adequate to ensure respondent's compliance patently unreasonable--Board member previously rejected sureties--Now saying one of sureties having ability to ensure compliance--No evidence justifying Board member's departure from earlier position re: surety--Finding patently unreasonable--Application allowed--Immigration and Refugee Protection Regulations, SOR/2002-227, s. 248(b), (c).