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BCCLA calls on federal government to stop abuse of process in immigration cases

The BCCLA notes with concern the Federal Court‟s recent ruling that the position taken by the government in a case involving a Tamil migrant from the MV Sun Sea would result in the abuse of judicial process, and calls on the government to observe due process and stop using endless appeals to keep migrants in detention.

The decision issued by the Federal Court last week concerned the government‟s appeal of the immigration division‟s orders to release a migrant known as B386. The migrant was first ordered released on November 19, 2010. The federal government appealed that decision to the Federal Court, which resulted in B386‟s continued detention while that appeal was pending. However, the law requires that individuals subject to immigration detention be granted review hearings every 30 days in order to ensure that their continuing detention is warranted and valid. Accordingly, B386‟s case was reviewed twice more – on December 23, 2010 and January 25, 2011. B386 was ordered released on both occasions, and the government appealed both those decisions.

The Federal Court upheld the immigration division‟s November 19 release order. The government maintained, however, that B386 could not be released until the appeals of the December 23 and January 25 decisions are completed. According to Justice Blanchard, accepting the government‟s argument would result in “nothing short of an abuse of the court process.”

Robert Holmes, BCCLA President: “The government‟s position is absurd. “B386‟ is a human being. So long as he remains in detention, he will continue to be subjected to review hearings – which could be appealed by the government ad infinitum. Justice Blanchard is correct to observe that this cycle could potentially be unending. The rule of law means that process cannot be subverted to such ends.”

Read the Court’s Decision

Carmen Cheung, Counsel, (604) 630-9758
Robert Holmes, President, (604) 681-1310