Thanabalasingham v.Canada

Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3 FCR 572, 2004 FCA 4 (CanLII)

• This case is related to detention reviews at the Immigration Division. It is frequently cited for its holding that Immigration Division Members must give good reasons for departing from the reasoning of previous Immigration Division Members.
• The ID had released Thanabalasingham from detention
• Minister appealed to FC and questions were certified on this appeal to the FCA
• The Minister argued that, (1) under IRPA, detention reviews are not de novo; and that (2) the detainee bears the burden of proving previous decisions to detain should be set aside. It was submitted that the member had committed errors of law as well as patently unreasonable errors of fact in releasing Thanabalasingham.
• The certified questions from the FC were as follows: Are the detention reviews made pursuant to subsection 57(2) and section 58 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, hearings de novo and does the detained person bear the burden of establishing that he/she is not a danger to the Canadian public or not a flight risk at such reviews?
• In answer to the certified question, at each detention review, the Immigration Division must come to a fresh conclusion as to continued detention and the Minister bears the ultimate burden of establishing that the detainee is a danger to the public or a flight risk. Still, prior detention decisions must be considered and clear, compelling reasons given for departing therefrom.
• Rothstein JA holds that detention reviews are not strictly de novo hearings, as that would involve entirely fresh and independent records to be established. That’s not what happens at detention review hearings. However, it’s not true that you need to present new evidence in order for the current member to depart from the reasoning of the previous member:

o [7]On the other hand, I also can not accept the submission made by the Minister in his factum that the findings of previous members should not be interfered with in the absence of new evidence. In considering detention reviews held under the former Act, MacKay J. of the Trial Division (as it then was) held that (Salilar v. Canada (Minister of Citizenship and Immigration), 1995 CanLII 3610 (FC), [1995] 3 F.C. 150, at page 159):

. . . the concern, at the time of the review, is whether there are reasons to satisfy the adjudicator that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal. It is not sufficient, in my opinion, that the adjudicator proceed… by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision.
[8] Nothing in the new sections 57 and 58 indicates that MacKay J.’s reasoning should not continue to apply to detention review hearings held under the new Act. As adjudicators did under the former Act, the Immigration Division reviews “the reasons for the continued detention” (emphasis added). Nor does the new Act draw any distinction between the first and subsequent detention reviews or impose any requirement for new evidence to be presented. Rather, at each hearing, the member must decide afresh whether continued detention is warranted.
• The Court goes on to say that clear and compelling reasons for departing from prior decisions to detain are required. However, his or her reasons may be implicit in the decision itself:

[10] Detention review decisions are the kind of essentially fact-based decision to which deference is usually shown. While, as discussed above, prior decisions are not binding on a member, I agree with the Minister that if a member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out. There are good reasons for requiring such clear and compelling reasons.

[13] However, even if the member does not explicitly state why he or she has come to a different conclusion than the previous member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way.