Ahmed v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. AU.026

• Judge: Fothergill, J.
• Court: Federal Court (Canada)
• Case Date: July 15, 2015
• Jurisdiction: Canada (Federal)
• Citations: [2015] F.T.R. TBEd. AU.026;2015 FC 876

Ahmed v. Can. (M.C.I.), [2015] F.T.R. TBEd. AU.026

MLB being edited

Currently being edited for F.T.R. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] F.T.R. TBEd. AU.026

Ahmed Ali Ahmed (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3022-15; 2015 FC 876; 2015 CF 876)

Indexed As: Ahmed v. Canada (Minister of Citizenship and Immigration)

Federal Court

Fothergill, J.

July 17, 2015.

Summary:

Ahmed was a citizen of Yemen, which he left in 1994. In 2004, Ahmed was granted permanent residence status in Canada. Ahmed was convicted of a number of offences. A deportation order and a danger opinion were issued. Efforts to remove Ahmed were unsuccessful because his safe passage could not be assured. He had been in immigration detention since October 2013. LeBlanc, J., allowed Ahmed's application for judicial review of the Immigration Division's (ID) May 2015 decision to continue Ahmed's detention, finding that the ID had failed to consider properly the length of Ahmed's detention (see [2015] F.T.R. TBEd. JL.018). LeBlanc, J., ordered that the next detention review hearing be determined "in accordance with the present Order and Reasons". At the June 2015 detention review hearing, the ID concluded that Ahmed's detention had become indefinite, but that his continued detention was necessary. Ahmed sought judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention (incl. review or release) (incl. IRPA, ss. 54-61) - Ahmed was a citizen of Yemen, which he left in 1994 - In 2004, Ahmed was granted permanent residence status in Canada - Ahmed was convicted of a number of offences - A deportation order and a danger opinion were issued - Efforts to remove Ahmed were unsuccessful because Ahmed's safe passage could not be assured - He had been in immigration detention since October 2013 - LeBlanc, J., allowed Ahmed's application for judicial review of the Immigration Division's (ID) May 2015 decision to continue Ahmed's detention, finding that the ID had failed to consider properly the length of Ahmed's detention - LeBlanc, J., ordered that the next detention review hearing be determined "in accordance with the present Order and Reasons" - At the June 2015 detention review hearing, the ID concluded that Ahmed's detention had become indefinite, but that his continued detention was necessary - Ahmed sought judicial review, asserting, inter alia, that the ID had not complied with LeBlanc, J.'s order - The Federal Court dismissed the application - LeBlanc, J.'s order was not a directed verdict requiring a particular result - The sole requirement was that the ID reconsider the nature of Ahmed's detention and re-balance the factors in s. 248 of the Immigration and Refugee Protection Regulations in accordance with the existing law - The ID complied with the order - Once the ID had reconsidered Ahmed's detention and found it to be indefinite, the remainder of its analysis was governed by the existing law - See paragraphs 21 to 24.

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention (incl. review or release) (incl. IRPA, ss. 54-61) - Ahmed was a citizen of Yemen, which he left in 1994 - In 2004, Ahmed was granted permanent residence status in Canada - Ahmed was convicted of a number of offences - A deportation order and a danger opinion were issued - Efforts to remove Ahmed were unsuccessful because Ahmed's safe passage could not be assured - He had been in immigration detention since October 2013 - LeBlanc, J., allowed Ahmed's application for judicial review of the Immigration Division's (ID) May 2015 decision to continue Ahmed's detention, finding that the ID had failed to consider properly the length of Ahmed's detention - LeBlanc, J., ordered that the next detention review hearing be determined "in accordance with the present Order and Reasons" - At the June 2015 detention review hearing, the ID concluded that Ahmed's detention had become indefinite, but that his continued detention was necessary - Ahmed sought judicial review - The Federal Court dismissed the application - The ID recognized that Ahmed's indefinite detention compromised his rights under s. 7 of the Charter, but found that his continued detention was justified - In doing so, the ID weighed Ahmed's indefinite detention against the risk that he would not appear for removal and the danger he presented to the public - In its consideration of alternatives to detention, the ID found that Ahmed's release plan was insufficient - The decision to continue Ahmed's detention was reasonable - See paragraphs 25 to 35.

Aliens - Topic 1842

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Standard of review - Ahmed was a citizen of Yemen, which he left in 1994 - In 2004, Ahmed was granted permanent residence status in Canada - Ahmed was convicted of a number of offences - A deportation order and a danger opinion were issued - Efforts to remove Ahmed were unsuccessful because Ahmed's safe passage could not be assured - He had been in immigration detention since October 2013 - LeBlanc, J., allowed Ahmed's application for judicial review of the Immigration Division's (ID) May 2015 decision to continue Ahmed's detention, finding that the ID had failed to consider properly the length of Ahmed's detention - LeBlanc, J., ordered that the next detention review hearing be determined "in accordance with the present Order and Reasons" - At the June 2015 detention review hearing, the ID concluded that Ahmed's detention had become indefinite, but that his continued detention was necessary - Ahmed sought judicial review, asserting, inter alia, that the standard of review was correctness because the ID was required to implement LeBlanc, J.'s order and because constitutional issues were involved - The Federal Court, in finding that the standard of review was reasonableness, stated, "Whether the Board properly reconsidered the nature of Mr. Ahmed's detention and gave due consideration to his liberty interests, as required by Justice LeBlanc, both concern questions of mixed law and fact.... The same is true of whether the Board's decision to continue Mr. Ahmed's detention was reasonable. The fact that Charter interests are implicated does not produce a different standard." - See paragraphs 16 to 20.

Civil Rights - Topic 1328

Security of the person - Immigration - Detention under immigration legislation - [See second Aliens - Topic 1795 ].

Cases Noticed:

Canada (Minister of Citizenship and Immigration) v. B147 (2012), 412 F.T.R. 203; 2012 FC 655, refd to. [para. 11].

Canada (Director of Investigation and Research) v. Southam Inc. - see Director of Investigation and Research, Competition Act v. Southam Inc. et al.

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 17].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 18].

Canada (Minister of Public Safety and Emergency Preparedness) v. Dehart (2013), 439 F.T.R. 60; 2013 FC 936, refd to. [para. 19].

Muhammad v. Canada (Minister of Citizenship and Immigration) (2014), 454 F.T.R. 161; 2014 FC 448, refd to. [para. 19].

Wang et al. v. Canada (Minister of Public Safety and Emergency Preparedness), [2015] F.T.R. TBEd. JN.036; 2015 FC 720, refd to. [para. 19].

Doré v. Barreau du Québec (2012), 428 N.R. 146; 2012 SCC 12, refd to. [para. 19].

Loyola High School v. Quebec (Attorney General) (2015), 468 N.R. 323; 2015 SCC 12, refd to. [para. 19].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 20].

Rafuse v. Pension Appeals Board (Can.) et al. (2002), 286 N.R. 385; 2002 FCA 31, refd to. [para. 21].

Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214; 85 F.T.R. 99 (T.D.), refd to. [para. 25].

Charkaoui, Re (2007), 358 N.R. 1; 2007 SCC 9, refd to. [para. 25].

Canada (Minister of Public Safety and Emergency Preparedness) v. Okwerom, [2015] F.T.R. Uned. 201; 2015 FC 433, refd to. [para. 25].

Canada (Minister of Citizenship and Immigration) v. Romans (2005), 272 F.T.R. 48; 2005 FC 435, refd to. [para. 34].

Counsel:

Arghavan Gerami, for the applicant;

Jyll Hansen, for the respondent.

Solicitors of Record:

Arghavan Gerami, Gerami Law PC, Ottawa, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Ottawa, Ontario, on July 15, 2015, by Fothergill, J., of the Federal Court, who delivered the following reasons for judgment on July 17, 2015.