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IMMIGRATION AND REFUGEE BOARD

- IMMIGRATION DIVISION -

Record of Decision of a Detention Review held under the

Immigration and Refugee Protection Act, concerning

XXXX XXXX XXXX XXXX

HEARING: PRIVATE

HELD AT: Teleconference

DATE: March 30, 2020

BEFORE: Julia Huys - Member

APPEARANCES:

XXXX XXXX XXXX XXXX - Person Concerned

Mr. Brower - Counsel
Mr. Novais - Minister’s Counsel
Mr. Eduardo Palomino - Interpreter
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DECISION

MEMBER: This is the decision in the detention review of Ms. XXXX XXXX XXXX XXXX
XXXX

Ma’am, you are not a Canadian citizen, you are not a permanent resident of Canada; you are a
citizen of Chile.

You have been --- you have been detained since March 17, 2020.

And this is the seven-day review for your reasons of detention.

This is a private hearing as you have made a refugee claim.

Up to this point, you have been detained on the basis you are unlikely to appear.

So Ms. XXXX, I have considered the submissions made by your counsel, the submissions made
by Minister’s counsel including their joint proposal.

I have also considered all the evidence on record including in DRs 1 through 2, 3, and I am
prepared to render my decision.

Ma’am, I wish to tell you that today I am prepared to order your release as I find on a balance of
probabilities you are unlikely to appear.

However, there has been a viable alternative to detention presented to me today.

By way of update, I heard from your last detention review that a referral to the community liaison
officer was made on March 25, 2020.

However, they have not been able to provide a response to Minister’s counsel as of today.

On March 27, 2020, a Minister’s delegate review was conducted with respect to your refugee
claim and you were issued a conditional departure order and that refugee claim will --- will resume or will
start to go ahead once the pandemic is addressed and the Immigration and Refugee Board begins to hear
and process claims again.

I also heard that you found out I believe only yesterday that you --- XXXX XXXX XXXX.

And I also heard from you ma’am that you are feeling apologetic for the --- the events that
occurred on the plane but that you will abide by all terms and conditions as --- that were presented by
your counsel and Minister’s counsel.
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So the joint recommendation presented by both counsels is that you be released on your own
recognizance with reporting conditions of once a month, that you once obtain a place of the shelter and
address you provide the address to Canada Border Services Agency and you update that address
whenever you move, and that you once mental health services become available again after the pandemic
you seek out mental health support as well as other standard terms and conditions which I will outline for
you.

So Minister’s counsel had noted that in his final submissions that the Minister understands the
seriousness of the pandemic and they are making efforts to ensure safety of those who are in detention.

So --- and Minister’s counsel acknowledged that the conditions of detention during the pandemic
are a factor for me to consider but only one factor and does not necessarily outweigh all the others.

Your counsel reference to submissions in --- in DR-3 and namely that the pandemic is a concern
and is a factor that weighs in favour of detention --- I am sorry --- weighs in favour of release.

Okay, so having said all that I am --- I am now prepared to give me --- my --- my reasons.

Okay. I do find on a balance of probabilities you are unlikely to appear.

I rely on and adopt the reasons of the panel before me.

I see no clear and compelling reasons to depart from those reasons.

I note counsel’s submissions is that Ms. XXXX only overstayed in XXXX for XXXX days and
she bought a ticket when she learned she had overstayed.

That fact was also considered by my colleague at the last detention review and my understanding
from --- from my colleague’s reasons that she did not draw an overly negative inference against Ms.
XXXX for that overstay in XXXX.

But I nevertheless note that it is still Ms. XXXX responsibility to keep track of the rules that she
must follow.

So I do find that that factor goes to a finding of unlikely to appear but only very slightly.

Okay, so having found on a balance of probabilities you are unlikely to appear, I must consider
factors found in section 248 of the regulations.

Your reason for detention is you are unlikely to appear that generally favours release.

Now your length…

I am sorry.

I am sorry Mr. Interpreter.

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The length of detention has not been long; seven days, this is a neutral factor.

With respect to future time in detention you are now waiting for your refugee --- refugee hearing
which under normal circumstances can be a long process and everything is delayed now due to the
pandemic.

As such future time in detention would be very lengthy and I find that this is a factor that strongly
favours release.

With respect to delay, there have been no delays; that is a neutral factor.

Best interests of the child, that remains a neutral factor.

And now with respect to conditions of detention, I have taken into account the Refugee Law
submissions in DR-3 as well as the letter from DR-2 that was already on the record.

I respectfully disagree with my colleague’s finding that condition of detention is not a factor to
consider.

While the Immigration Division does not have control over the conditions of detention, they are
still a factor we --- we are able to consider under section 248 and in particular the (inaudible) jurisdiction
of --- in considering the decision in Sahin (ph).

Mr. Interpreter?

INTERPRETER: Yes.

MEMBER: Yes.

You are able to hear?

INTERPRETER: Yeah.

MEMBER: Okay.

Okay, so having said that I have considered the conditions, I am also considering the decision of
Justice Copeland (ph) of the Ontario Superior Court with respect to elevated risk of --- of exposure posed
to detained inmates.

Now --- now I am taking note that the conditions in the Immigration Holding Centre may be
better than provincial jail but I find only slightly.

While Ms. XXXX has been held in isolation for the past two weeks as she arrived from overseas,
those two weeks have now passed so she would be either in --- in --- in --- in contact with others with ---
with general inmates.
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I did not hear submissions on that but she is --- she (inaudible) in the Immigration Holding
Centre.

Okay, so detained people will come into contact with many others including detainees, other
detainees, guards, staff, and movement in and out of people --- in and out of people from the Immigration
Holding Centre.

And I am also taking very seriously the fact that there has now been a case of COVID-19 at the
Immigration Holding Centre with one of the staff.

DR-3 contains information that the City of Toronto is taking steps to allow individuals in shelters
to practice social distancing.

I accept this evidence and I give it some weight.

I am also noting that Ms. XXXX XXXX XXXX and I --- and I understand she is therefore at
particular risk to illness.

As such I find that these exceptional circumstances and the condition of detention are relevant
factors for me to consider and they weigh in favour of release.

Now I was presented with the alternatives to detention and as I said I do find that suitable.

Ms. XXXX is now a refugee claimant.

There are standard terms and conditions typical for someone in her position.

I do believe that the reporting conditions and that she update her address with Canada Border
Services Agency does offset some of the Minister’s unlikely to appear concerns.

More --- moreover the requirement that she engage in mental health services when they become
available again further offsets concerns regarding her --- her --- her --- her predictability and --- and
stability in maintaining contact with Canada Border Services Agency.

So I do find that is a factor that --- that offsets the concerns and so ma’am I am ordering your ---
your release and I am going to read out the terms and conditions right now. Okay.

Okay, so I ask that you pay close attention.

Can you hear me Ms. XXXX?

PERSON CONCERNED: Yes.

MEMBER: Okay.
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You present yourself at the date, time and place that the Canada Border Services Agency or the
Immigration Division requires you to appear and that includes for removal…

PERSON CONCERNED: Yes.

MEMBER: …if necessary.

So ma’am that means whenever you get a call-in notice or letter or you are told you have to
appear for a meeting you must go.

So you are to provide Canada Border Services Agency before your release with a residential
address and advise them in writing of the change of address prior to moving. Okay.

This is very important you will not be released until you get the shelter address where you are
going to be staying.

And you have to keep updating the address, so every time you move shelters you have to let
Canada Border Services Agency know. Okay.

And this contition --- this condition is going to continue for some time even throughout your
refugee hearing.

So I want you to remember it. Okay.

Okay, so you are to --- you are to report to a Canada Border Services Agency officer at 6900
Airport Road once a month.

Okay, right now --- okay, right now reporting is happening over the phone because of the
pandemic and then that is going to switch to in-person reporting.

So when you are released a Canada Border Services Agency officer is going to speak to you and
is going to give you all of those instructions. All right.

You are to confirm your departure with Canada Border Services Agency prior to leaving Canada
if you do so.

You are to fully cooperate with Canada Border Services Agency with respect to obtaining travel
documents.

You are to not engage in any activity subsequent --- I am sorry --- you are not --- to not engage in
any activity that could result in a conviction under any Act of Parliament.

So you must follow all the rules, that is what that means. Okay.

You are to not work or study without authorization. Okay.

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So you can get advice from your counsel in applying for a work permit but keep in mind you
need a work permit in order to work. Okay.

And then the final condition is that you make best efforts to seek out and obtain mental health
support when it is available after the pandemic has ended and then provide proof to Canada Border
Services Agency that you have obtained such support. Okay.

So that could be in a form of a letter confirming that you have --- you have gotten a doctor or you
have --- you have joined a mental health group that you have gotten some support, you need to get some
--- some --- some proof of that. Okay. Okay.

For whatever reason if you are not released, I am going to schedule your next detention review
for April 27, 2020. Okay.

However, you could ask for an early detention review if something goes wrong with this release
order. Okay.

Do you understand everything Ms. XXXX?

PERSON CONCERNED: Yes.

MEMBER: Okay. All right.

Any questions from the parties?

COUNSEL: Not from me.

Thank you.

MINISTER’S COUNSEL: Madam Member (inaudible).

MEMBER: Yes Mr. Novais.

MINISTER’S COUNSEL: What was the next detention review date?

MEMBER: April 27.

I am sorry.

MINISTER’S COUNSEL: Thank you Madam Member.

MEMBER: Thank you.

Okay, so --- thank you.

So I am going off the record.

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----------REVIEW CONCLUDED----------

I HEREBY DECLARE THAT THIS IS A TRUE

TRANSCRIPT OF THE RECORDING AND THAT I HAVE
SWORN THE OATH OF SECRECY

_____________________________________
Valerie Pienne – Transcriptionist
For DigitScribe Inc.
Security # XXXX XXXX XXXX

April 07, 2020