Digests

Ahani v. Canada (Minister of Citizenship and Immigration)

A-160-99

Linden J.A.

11/7/00

12 pp.

Appellant detained pending removal--Appeal from Trial Judge's decision refusing appellant's request for release under Immigration Act, s. 40.1(8), (9)--Appellant invoking Charter, s. 7 and apprehension of bias--Appeal dismissed--No merit to apprehension of bias argument--Merely because Trial Judge involved in earlier decision involving appellant did not impair ability to be impartial: Arthur v. Canada, [1993] 1 F.C. 94 (C.A.)--Furthermore, issues before Trial Judge mainly legal, along with factual ones not depending on findings of credibility of appellant in earlier case--No evidence whereby informed, reasonable and right-minded person could conclude there might be bias on part of Trial Judge--Trial Judge correctly interpreted language of provision as placing onus on appellant to show removal will not occur within reasonable time and that release would not be injurious to national security or to safety of persons: Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 970 (T.D.) (QL)--Placing onus on appellant not violating Charter, s. 7--Release under Act, s. 40.1(9) not meant to be automatic or easy thing to achieve--Meant to be available only in very limited circumstances outlined in legislation--Individual would have to show some significant change in circumstances or new evidence not previously available to obtain release--To hold otherwise would be to accord appellant hearing de novo, something not envisioned by legislation--Standard of proof that in civil cases, balance of probabilities, which does not violate Charter, s. 7--On examination of Trial Judge's reasons, Court not persuaded Trial Judge misunderstood standard of proof, or utilized wrong standard of proof--One incorrect and unnecessary sentence in context of obiter dictum not sufficient to overturn entire decision--Trial Judge did not consider irrelevant considerations in decision concerning whether appellant would be removed within reasonable time--No one can deny appellant right to exhaust every legal avenue open to him--But neither can one say that removal not taking place within reasonable time when time necessary to hear all of applications and appeals stretches into months and years--Immigration Act, R.S.C., 1985, c. I-2, s. 40.1 (as enacted by R.S.C., (1985) (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].