Digests

Canada (Minister of Citizenship and Immigration) v. Ke

IMM-1425-00

Reed J.

12/4/00

8 pp.

Judicial review of adjudicator's March 2000 decision granting respondent release from detention subject to terms, conditions, posting of bond--Exclusion order issued, respondent detained pursuant to Immigration Act, s. 103.1 since September 1999--Respondent knew very little about bondsperson, cousin of his mother whom he had met once in China long ago--Adjudicator acknowledging relationship tenuous, but because blood relationship, possible that to dishonour bondsperson could create pain, disharmony to respondent's mother--Holding although perhaps speculation on his part, obliged by Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.) to look at all available reasonable alternatives to detention--Minister alleging (1) breach of rules of fairness when counsel for Minister not allowed to cross-examine bondsperson; and (2) adjudicator based decision on speculation without sufficient evidence supporting decision--Application allowed--Given: paucity of evidence available about bondsperson, counsel's request bondsperson be made available for cross-examination, immigration consultant's offer to make him available, adjudicator erred in making decision on basis bondsperson not available for questioning--Failure to allow cross-examination effectively denied applicant right to test evidence presented by bondsperson's agent, which was central to decision being made--Adjudicator paying too much attention to comment in Sahin to consider alternatives to detention--Comment made in context of decision stating Charter, s. 7 had to be taken into consideration by adjudicator when making decision on detention review--S. 7 stating person cannot be deprived of liberty, except in accordance with principles of fundamental justice--Rothstein J. stated in Sahin that reason for detention, length of time held in detention, whether individual responsible for delay, availability, effectiveness, appropriateness of alternatives to detention among factors to be considered when assessing whether fundamental justice accorded to person on detention review--Sahin not undercutting s. 103(3)(b), requiring assessment as to whether, if released, person "likely to appear for the inquiry . . . or for removal from Canada--Part of that assessment must include evaluation of impact imposition of bond will have on person's anticipated conduct--Thus, if bondsperson having influence over detainee, or person who detainee would not wish to see financially or socially disadvantaged as result of default on bond, will be easier to conclude detainee would be "likely to appear"--Decision in Sahin not supplanting such analysis--When length of time person detained consideration, important to ascertain reasons for delay, whether individual or representative contributing to it in any way--Breach of natural justice in not allowing applicant's counsel opportunity to cross-examine bondsperson--Adjudicator relied on speculation in making decision--Not addressing central issue: whether likely respondent would appear for removal if released on bond--Immigration Act, R.S.C., 1985, c. I-2, ss. 103(3)(b) (as am. by S.C. 1992, c. 49, s. 94), 103.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 12; S.C. 1992, c. 1, ss. 77, 144; c. 49, s. 95).