Digests

Lai v. Canada (Minister of Citizenship and Immigration)

A-830-00

2001 FCA 222, Rothstein J.A.

25/6/01

7 pp.

Appeal from dismissal of application for judicial review ((2001) 11 Imm. L.R. (3d) 79 (F.C.T.D.)) of detention order under Immigration Act, s. 103--Question certified for appeal: whether person who is subject of conditional departure order or effective departure order can be detained for reason of removal from Canada--Appellants submitting Minister cannot remove person from Canada under departure order--Arguing s. 52, which provides for removal of persons subject to exclusion, deportation orders, not applicable to person subject to departure order--Thus person under conditional departure order cannot be removed, and because detention linked to removal, no reason to detain him--Appeal dismissed--Assuming Minister cannot remove persons who are subject to departure orders, statutory scheme still permitting detention of such persons under s. 103--"Removal order" defined in s. 2 as departure, exclusion, or deportation order--On its face, s. 103 providing for issuance of warrant for arrest, detention of any person subject to departure order where reasonable grounds to believe person would not appear for removal--Appellants submitting under s. 103(6), on review of detention no reason to continue to detain them because Minister cannot remove persons under departure orders--Under s. 103(6) detention orders to be reviewed at least every 30 days--Appellants' interpretation leading to absurd result: warrant can issue for arrest, detention; can be arrested, detained, but within 48 hours must be released because no reason for continued detention--No rational explanation as to why Act would permit arrest, detention, but not continued detention--Appellants' interpretation also not acceptable for following reasons--(1) Under s. 32.02(1), departure order deemed to be deportation order if certificate of departure not issued within prescribed time--Even accepting Minister cannot remove under departure order, deeming departure order to be deportation order under which Minister can remove person under s. 52(2) meaning departure order can lead to removal by Minister--(2) Under appellants' approach, as long as Minister cannot remove, s. 103 cannot operate to permit detention of persons who, there are reasonable grounds for believing, pose danger to public or would not appear for removal--Thus any refugee claimant under conditional departure or deportation order, pending refugee hearing would not be subject to detention under s. 103, even if reasonable grounds for believing refugee claimant would pose danger to public or would not appear for removal--Such result would undermine effective operation of s. 103--(3) Deportation orders carry serious consequences for individual concerned--S. 103 not requiring issuance of most serious removal order for it to be invoked by Minister--Appellants' approach amounts to collapsing of question of whether to issue deportation order with question of whether person should be detained--These are two separate considerations and Act not providing should be treated as if one--Immigration Act, R.S.C., 1985, c. I-2, ss. 2 "removal order" (as am. by S.C. 1992, c. 49, s. 1), 32.02 (as enacted idem, s. 22), 52 (as am. idem, s. 42), 103 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 27; S.C. 1992, c. 49, s. 94; 1995, c. 15, s. 19).