Court upholds immigration detention rules
Advocates hail decision a victory for protecting rights of detainees
NICHOLAS KEUNG IMMIGRATION REPORTER
A court ruling sparked by the case of a man who spent five years behind bars awaiting deportation from Canada is being welcomed as a victory by advocates, who say it lays out new guidance for making sure immigration detainees’ rights are not violated.
The decision by the Federal Court of Canada stops short of setting time limits on how long immigration detention can last.
However, those involved in the case say it should lead to “significant” changes in the way Canadian officials conduct detention reviews and potentially more releases in instances when the government’s obligations are not met.
“The court is essentially telling Canada Border Services Agency and the Immigration Division (tribunal), here’s how the detention regime needs to be interpreted and, if this is done, then it’s constitutionally compliant,” said Ben Liston, lawyer for the Canadian Association of Refugee Lawyers and Canadian Centre for International Justice.
“That’s significant. In different ways, the detention review process had not been playing out in consistent (ways) with how the court said it should be playing out. The court’s guidance must be followed and is now binding on absolutely every CBSA officer and every tribunal member going forward.”
The two organizations that Liston represented were intervenors in the case of former immigration detainee Alvin Brown, who spent five years in a maximum-security jail before the federal government was able to deport him to Jamaica in 2016. Brown and the End Immigration Detention Network launched a constitutional challenge against the federal government, arguing indefinite detention infringed upon a detainee’s liberty. The Federal Court dismissed the case in 2017.
This week, the Federal Court of Appeal also sided with the government, but with caveats.
“Although the appellants’ challenge to the validity of the (charter) sections fails, many of their arguments are vindicated by what is said in these reasons concerning what judges conducting detention reviews must consider,” said the three-judge panel in its ruling.
“In order for continued detention to be legal … there must be a nexus between detention and an immigration purpose. If that is missing, detention under (Immigration and Refugee Protection Act) is no longer possible.”
Migrants are held in immigration holding centres and maximum security prisons if their identities cannot be confirmed, they are considered flight risks or pose danger to the public.
Detainees include failed refugees, non-status people and those who have been stripped of their permanent residence due to criminal convictions, while awaiting deportation.
They are afforded detention review hearings by the Immigration Division tribunal after being held for 48 hours, seven days and every 30 days afterwards to determine if they should be released. Critics have called it a “rubber-stamping” process.
Brown’s removal dragged on for almost five years because Jamaican officials refused to issue him travel documents.
In its ruling, the appeal court said the current immigration detention regime has “all of the protections mandated” to ensure extended periods of detention don’t contravene the charter.
However, it said the public safety minister must bear the legal burden of establishing the grounds for detention and his representatives must give detainees advance disclosure of all evidence, even if the information is in favour of release.
It said adjudicators presiding over detention hearings are obligated to undertake their own independent assessment of the case for and the case against detention.
“At a minimum, the duty of fairness requires that the affected person know the case they have to meet and have an adequate opportunity to respond. The need for detainees to know the case against them creates a disclosure obligation,” the appeal court said.
“Disclosure of evidence concerning the likelihood of removal is also central to the legality of a detention order. This in turn requires the (tribunal) to assess the minister’s efforts respecting removal and the reasons for delay at each and every hearing.”
Maureen Silcoff, co-chair of Canadian Association of Refugee Lawyers litigation committee, expressed disappointment that the court dismissed the case but said the decision sheds light on vital issues affecting immigration detainees who deserve fairness.
“That’s a real game-changer for people who are detained, because it makes clear what Canada Border Services Agency’s obligations are, and that would assure, hopefully, people will have a fair hearing,” she said. Liston agreed. “It is unambiguous now the CBSA needs not only to justify detention at every turn, at every review, but also needs to provide evidence of that justification,” said Liston.
“We anticipate that could lead to significantly more release orders where the (public safety) minister is unable to meet their onus of justification.”