Federal Appeal


Immigration and Citizenship

Enforcement

Arrest and detention

Court having no jurisdiction to determine whether immigration detainee could avoid continued detention

L, who claimed to be citizen of Rwanda, was granted refugee status in 1996. Since his arrival in Canada, L had apparently had 389 police encounters resulting in 95 criminal charges and 54 convictions. In August 2012, member of Immigration Division (ID) issued order for L’s removal after determining that he was inadmissible on grounds of criminality pursuant to s. 36(2)(a) of Immigration and Refugee Protection Act. L was placed in detention in June 2013, was briefly released in September 2013 but rearrested within few days and convicted of sexual assault. L’s detention was maintained in each of his regular 30 day detention reviews, on basis that he was danger to public and flight risk, and in each or most of those decisions significant weight appeared to have been given to fact that L was not cooperating with requirement of Rwandan authorities that he sign declaration related to acquisition of travel documents. In January and February, ID member released L from detention on certain conditions, after realizing that he had not had any Rwandan identity documents since his arrival in Canada. Minister’s applications for judicial review of those two decisions were granted. In March, July, August and September, five decisions were made to release L from detention. Minister successfully brought application for judicial review of decisions, which were consolidated in one proceeding. L appealed. Appeal dismissed. There was no jurisdiction to decide appeal. Question as certified by application judge did not meet criteria for certification as question asked whether immigration detainee could avoid continued detention by failing to cooperate with removal. Question did not arise from facts as it developed as neither party took issue with pre-release condition of cooperation and member’s order expressly imposed as pre-release condition requirement that L do what he refused to do, which was sign declaration requested by Rwanda.

Lunyamila v. Canada (Public Safety and Emergency Preparedness) (2018), 2018 CarswellNat 71, 2018 FCA 22, David Stratas J.A., J. Woods J.A., and J.B. Laskin J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 10983, 2016 CarswellNat 9006, 2016 FC 1199, 2016 CF 1199, Paul S. Crampton C.J. (F.C.).


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