Digests

Gayle v. Canada (Minister of Citizenship and Immigration)

IMM-1707-01

2002 FCT 335, Dawson J.

25/3/02

8 pp.

Judicial review of Operations Manager's decision cash, performance bonds should be forfeited, realized--In April 2000 applicant signed cash, performance bonds together totally $20,000 to secure release from custody of Hansel Lynch, Jamaican citizen living in Canada on condition that he surrender passport--In June Mr. Lynch taken into custody again--In September applicant posting another $10,000 cash bond, further $10,000 performance bond--In November Mr. Lynch left Canada voluntarily, although under deportation order--Applicant requested return of bonds--Counsel made submissions with respect to proposed forfeiture of bonds--In March 2001 Operations Manager decided first two bonds should be forfeited as passport not surrendered, thus violating term of release--Immigration Act, s. 104 permitting forfeiture of security deposit made as condition of release where failure to comply with any such condition--Application allowed-- Purpose of cash deposits, performance bonds to allow release of person in immigration detention on terms necessary to ensure compliance with Act, regulations--Forfeiture of any cash bond, enforcement of any performance bond not following automatically from failure to comply with term, condition--Minister having discretion as to whether any deposit should be forfeited, performance bond enforced-- Discretion delegated to officers such as Operations Manager --Act silent as to principles governing exercise of discretion, but ministerial guidelines advising purpose of discretionary authority to allow for situations where conditions of security deposit violated through no fault of individual or where extenuating circumstances exist--Requiring consideration of each case on merits--While failure to comply with term of release condition precedent to exercise of officer's discretion, decision not disclosing officer directed mind to exercise of discretion or to principles guiding exercise of that discretion --Decision letter silent as to any matter considered by officer other than fact passport not surrendered--Assuming standard of review patent unreasonableness, Operations Manager erred in principle by making decision without regard to principles contained in guidelines and without apparently considering asserted humanitarian considerations--While not necessary to deal with every factor asserted by applicant, neither stated reason nor tribunal record demonstrating proper exercise of discretion--Immigration Act, R.S.C., 1985, c. I-2, s. 104.