Jacob Lunyamila, a refugee who has been kept in immigration detention for almost five years will remain there as the Federal Court of Appeal dismissed his appeal for release. He asserts that he’s from Rwanda. However, his identity has not been confirmed as he has no Rwandan identification. By Amanda Jerome

The court ruled that it didn't have the jurisdiction to decide the appeal due to an insufficient certified question, required under s. 74(d) of the Immigration and Refugee Protection Act.
In Lunyamila v. Canada (Public Safety and Emergency Preparedness) 2018 FCA 22, the court heard that the appellant was given refugee status in 1996. He asserts that his name is Jacob Lunyamila and he’s from Rwanda. However, his identity has not been confirmed as he has no Rwandan identification.
According to court documents, Lunyamila was charged with 94 criminal offences and convicted of 54 between 1999 and 2013. He was found inadmissible in 2012 and an order was issued for deportation.
Lunyamila was arrested and detained in 2013 as he was considered a flight risk and a danger to the public. After his second 30-day review in detention, he was released on conditions that he would live in an addiction rehab facility and complete a three-month program. According to court documents, he left the facility after two days, was rearrested, and sent back to detention where he has remained ever since.
Thirty-day reviews of Lunyamila’s detention kept him detained up until January 2016 when Immigration Division members issued a series of release orders. Each of the orders was stayed and two of them were set aside by the Federal Court for judicial review.

According to court documents, the Canadian Border Service Agency (CBSA) has been trying to deport Lunyamila to Rwanda since 2014. Since he didn’t have a Rwandan passport, CBSA agents contacted the Rwandan High Commission to obtain one for him. The CBSA was told that in order to obtain a passport they need certified copies of his Rwandan ID and “a statutory declaration affirming a willingness to return to Rwanda.”
Lunyamila did not have the ID required and refused to sign a statutory declaration.
In 2016, the Immigration Division made an order to release Lunyamila from detention, subject to conditions that would mitigate his risk to the public. The Immigration Division observed that Lunyamila had figured out that he could avoid deportation to Rwanda by refusing to sign the declaration and that his lengthy detention favoured his release.
This order was determined to be unreasonable on judicial review by Federal Court Chief Justice Paul Crampton who ruled for continued detention.
“The application judge [Justice Crampton] reasoned that if it were otherwise, a detainee who was a danger or a flight risk could by the refusal to co-operate produce or contribute to producing a ‘stalemate,’ resulting in release and the infliction on the public of the associated risk. This would allow detainees to ‘take the law into [their] own hands,’ in a manner that Parliament could not have intended,” wrote Federal Court of Appeal Justice John Laskin.
Justice Crampton remitted the matter of release back to the Immigration Division for reconsideration.
“Neither party proposed a question for certification under paragraph 74(d) of the IRPA [Immigration and Refugee Protection Act]. Both were of the view that the case was grounded in its particular facts and therefore presented no question of general importance. However, the application judge saw the differences of view in the Federal Court’s case law as giving rise to a question of general importance warranting this Court’s consideration. He therefore sought the parties’ comments on a question that he proposed,” noted Justice Laskin.
Section 74(d) of the Immigration and Refugee Protection Act notes that an “appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the Federal Court certifies that a serious question of general importance is involved and states the question.”
Justice Crampton’s question was: “Can a person who has been detained for removal from Canada pursuant to a valid removal order and who has been found either to be a danger to the public or unlikely to appear for his removal from Canada, avoid continued detention by (i) refusing to take steps that may realistically contribute in a meaningful way to effecting such removal, and then (ii) relying on the length of his detention to argue that his release from detention is warranted, assuming there has been no significant change in other factors to be considered in the assessment contemplated by s. 248 of the Immigration and Refugee Protection Regulations?”
According to court documents, the Court of Appeal raised concerns about the framing of the certified question. One concern was that the question might be a “straw person,” in that it would allow only one reasonable answer.
The court also recognized that circumstances, such as the ones in this case, might give rise to a serious legal issue of general importance and proposed alternative formulations for comment. The hearing continued on the merits, leaving the possible reformulation of the certified question to be considered by the court.
“With the benefit of further consideration, I find myself unable to conclude that the question as certified meets the criteria for certification, or that the question can be reformulated so as to address its deficiencies. The fundamental problem as I see it is that the question does not arise from the facts of this case as it developed. The question asks, in essence, whether an immigration detainee can avoid continued detention by failing to co-operate with removal. But [the Immigration Division’s] order did not permit Mr. Lunyamila to do so. Rather, [the] order expressly imposed as a pre-release condition the requirement that Mr. Lunyamila do what he has so far refused to do — sign the declaration requested by Rwanda,” wrote Justice Laskin.
The appeal was dismissed, with Justices David Stratas and Judith Woods in agreement, in a decision released Jan. 19.
Anthony Navaneelan, Legal Aid Ontario

Anthony Navaneelan of Legal Aid Ontario and counsel for Lunyamila, said the decision is disappointing because the court declined to answer the certified question.
“I know most members of the bar, and myself in particular, are becoming increasingly frustrated to have these questions being sent up by the Federal Court to the Federal Court of Appeal to acknowledge that there’s a jurisprudence issue that needs to be resolved,” he said, adding that there should be a better way to vet certified questions earlier on in the appeal process.
Navaneelan said Lunyamila has had several release orders from the Immigration Division that have either been quashed or stayed by the Federal Court.
“There’s a real divide here between the decision-makers who are meeting Jacob face-to-face and looking him in the eye every month and seeing the circumstances of the case on the ground, and the judges who are hearing these cases only on paper on review. Seven immigration members have said he has to come out. And you have seven judgments of the Federal Court saying he has to stay in,” he explained.
Navaneelan said immigrants in Canada have limited access to justice in the court system compared to other Canadians.
“[For] an immigration case to go to the Federal Court requires leave, permission of the court to bring the case, and the Federal Court denies leave in about 80 per cent of cases. Which is a shockingly high number. There are no reasons provided for why a leave order is refused,” he said, adding that another barrier is the Federal Court of Appeal’s choice to not consider certified questions.
“They [the court] do so on the basis that they have read into the law a much more rigorous and robust test for when a question is properly certified that doesn’t appear on the face of the Immigration Act,” he explained. “Originally the court’s refusal to hear a question was somewhat rare and increasingly now we’re seeing three to four cases a year where the Court of Appeal, after the hearing on the merits happens, says ‘oh we’ve actually decided this question is not certified.’ So those three gatekeepers, the leave requirement, the need for certified question, and the need to convince the Court of Appeal the question is properly certified, those are enormous barriers for any non-Canadian to get through to get to meaningful justice.”
John Provart, with the Department of Justice and counsel for the respondent, said the court’s decision shows that Justice Crampton’s decision remains “good law.”
“In that case, the Federal Court found the Immigration Division decision to be internally inconsistent. And the imposed release conditions were inadequate to address Mr. Lunyamila’s history of noncompliance and danger to the public,” he said.
“The court also found it unreasonable for the Immigration Division to view his detention as indefinite such that release should be ordered. So his repeated refusal to co-operate with CBSA and their removal efforts contributed significantly to the uncertainty that existed with respect to the timing of his future removal. That’s the substantive issue in this case. I would also say that decision is consistent with Supreme Court jurisprudence,” he added.
Navaneelan said Lunyamila will remain in detention and that another judicial review of his release orders will happen in February.