Date: 20101202
Docket: IMM-1980-10
[Unrevised certified
translation] Citation:
2010 FC 1216
Ottawa, Ontario, December 2,
2010
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
NELSON
WILKIN BATISTA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of an exclusion order
issued against the applicant on March 25, 2010.
[2]
This case
was heard at the same time as Docket No. IMM-1979-10, which involves the person
with whom the applicant arrived in Canada.
Given that the facts in each case are practically identical, the cases were
argued jointly; however, a separate judgment will be rendered for each.
Background
[3]
The
applicant, aged 30, is a citizen of the Dominican Republic. He arrived in Canada on March 25, 2010, as a
stowaway aboard a Canadian military vessel that landed at the port of Québec after having been deployed as
part of the Canadian Forces humanitarian mission in Haiti to provide assistance in the aftermath
of the earthquake on January 12, 2010. Upon his arrival he had no identity card
or authorization to enter Canada. The applicant stated that he
wanted to leave his country, but that he had no specific destination in mind
and had embarked on the vessel without knowing its destination.
[4]
The
applicant and his friend were discovered by the ship’s crew while they were
still at sea. The applicant arrived in Canada on March 25, 2010. He was immediately
examined by an officer of the Canada Border Services Agency (the CBSA officer) on
board the ship. The services of an interpreter were used because the applicant
speaks only Spanish.
[5]
After the
examination by the CBSA officer, the applicant was placed in detention in order
for his identity to be established. He was then advised by an immigration officer
of his right to legal representation. Shortly thereafter, the applicant
expressed the desire to speak with legal counsel and consult a doctor. He was
taken to hospital and, after his medical visit, was able to meet with a lawyer.
[6]
The CBSA
officer who examined the applicant upon his arrival stated that the applicant
said that he did not fear being returned to his country of origin and that he
had come to Canada in order to provide for his family, something he had not
been able to do in the Dominican
Republic. In
addition, the applicant allegedly did not claim refugee protection or mention
that he would face any danger if he were to return to the Dominican Republic. Moreover, at no time during
the day or evening of March 25, 2010, did the applicant claim refugee
protection. He also declined to be identified by means of the Bertillon System.
[7]
Pursuant
to subsection 44(1) of the IRPA, an inadmissibility report was prepared by
an immigration
officer on the ground that since the applicant had arrived in Canada without a
passport or visa, he was in violation of paragraphs 20(1)(a) and (b) of the IRPA and of section 6 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations). The officer accordingly
determined that the applicant was a person described in section 41 of the IRPA and that he was inadmissible on
the ground that he had failed to comply with these provisions of the Act. In
response to this report, the Minister’s representative issued an exclusion order
against the applicant on March 25, 2010. The applicant was informed of this
that same day at about 11:15 p.m.
Issue and positions of the parties
[8]
The
applicant complains that the Minister issued the exclusion order hastily and
without having given him the opportunity to explain the real reasons why he
came to Canada, and without having informed
him of the consequences of such an order. He emphasized the circumstances of
his examination by the CBSA officer. Among other things, he claims that he was
exhausted and under stress, and that he did not understand what was happening. He
also argues that, in spite of the services of the interpreter, the was a
communication problem between him and the CBSA officer. However, at the
hearing, counsel for the applicant withdrew that last claim but added a
complaint that the immigration officer had failed to inform the applicant that
an exclusion order could be issued against him and of the consequences of such
an order. The applicant also complains that he was unable to obtain the help of
a lawyer who could have kept him properly informed prior to the issuing of the exclusion
order.
[9]
The
respondent, for his part, submits that the examination of the applicant was
carried out in accordance with accepted practices. He further submits that the
examination of the applicant by the CBSA officer was of a routine nature, that the
applicant was not detained during the course of it and that the right to retain
and instruct counsel protected under paragraph 10(b) of the Canadian Charter of
Rights and Freedoms (the Charter) does not extend to that kind of procedure. He
further submits that after being placed in detention, the applicant was given
that right.
Analysis
Statutory framework
[10]
The
applicable sections of the IRPA read as follows:
|
20. (1) Every foreign national, other than a
foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,
(a) to
become a permanent resident, that they hold the visa or other document
required under the regulations and have come to Canada in order to establish
permanent residence; and
(b) to become a temporary resident, that
they hold the visa or other document required under the regulations and will
leave Canada by the end of the period
authorized for their stay.
|
20. (1) L’étranger non visé à l’article 19 qui
cherche à entrer au Canada ou à y séjourner est tenu de prouver :
a) pour devenir un résident permanent, qu’il
détient les visa ou autres documents règlementaires et vient s’y établir en
permanence;
b) pour devenir un résident temporaire, qu’il
détient les visa ou autres documents requis par règlement et aura quitté le
Canada à la fin de la période de séjour autorisée.
|
|
41. A person is inadmissible for failing to comply with this Act
(a) in the case of a foreign national,
through an act or omission which contravenes, directly or indirectly, a
provision of this Act; and
(b) in the case of a permanent
resident, through failing to comply with subsection 27(2) or section 28.
|
41. S’agissant de
l’étranger, emportent interdiction de territoire pour manquement à la
présente loi tout fait — acte ou omission — commis directement ou
indirectement en contravention avec la présente loi et, s’agissant du
résident permanent, le manquement à l’obligation de résidence et aux
conditions imposées.
|
|
44. (1) An
officer who is of the opinion that a permanent resident or a foreign national
who is in Canada is
inadmissible may prepare a report setting out the relevant facts, which
report shall be transmitted to the Minister.
Referral
or removal order
(2) If the Minister is of the opinion that
the report is well-founded, the Minister may refer the report to the
Immigration Division for an admissibility hearing, except in the case of a
permanent resident who is inadmissible solely on the grounds that they have
failed to comply with the residency obligation under section 28 and except,
in the circumstances prescribed by the regulations, in the case of a foreign
national. In those cases, the Minister may make a removal order.
|
44. (1)
S’il estime que le résident permanent ou l’étranger qui se trouve au Canada est interdit de territoire, l’agent peut
établir un rapport circonstancié, qu’il transmet au ministre.
Suivi
(2) S’il estime le rapport bien fondé, le
ministre peut déférer l’affaire à la Section de l’immigration pour enquête,
sauf s’il s’agit d’un résident permanent interdit de territoire pour le seul
motif qu’il n’a pas respecté l’obligation de résidence ou, dans les
circonstances visées par les règlements, d’un étranger; il peut alors prendre
une mesure de renvoi.
|
|
99. (1) A claim for
refugee protection may be made in or outside Canada.
. . .
(3) A claim for refugee protection made by a person inside Canada must be made to
an officer, may not be made by a person who is subject to a removal order,
and is governed by this Part.
|
99. (1) La demande
d’asile peut être faite à l’étranger ou au Canada.
[…]
(3) Celle de la personne se trouvant au Canada se fait à
l’agent et est régie par la présente partie; toutefois la personne visée par
une mesure de renvoi n’est pas admise à la faire.
|
The relevant sections of the Regulations read as follows:
|
6. A
foreign national may not enter Canada to remain on a
permanent basis without first obtaining a permanent resident visa.
|
6. L’étranger ne peut entrer
au Canada pour s’y
établir en permanence que s’il a préalablement obtenu un visa de résident
permanent.
|
|
223.
There are three types of removal orders, namely, departure orders, exclusion
orders and deportation orders.
|
223. Les mesures de renvoi sont
de trois types : interdiction de séjour, exclusion, expulsion.
|
|
228. (1) For
the purposes of subsection 44(2) of the Act, and subject to subsections (3)
and (4), if a report in respect of a foreign national does not include any
grounds of inadmissibility other than those set out in the following
circumstances, the report shall not be referred to the Immigration Division
and any removal order made shall be (…)
(c)
if the foreign national is inadmissible under section 41 of the Act on
grounds of
(…)
(iii)
failing to establish that they hold the visa or other document as required
under section 20 of the Act, an exclusion order
(…)
|
228. (1) Pour l’application du
paragraphe 44(2) de la Loi, mais sous réserve des paragraphes (3) et (4), dans le cas où
elle ne comporte pas de motif d’interdiction de territoire autre que ceux
prévus dans l’une des circonstances ci-après, l’affaire n’est pas déférée à
la Section de l’immigration et la mesure de renvoi à prendre est celle
indiquée en regard du motif en cause :
(…)
c) en cas d’interdiction de territoire de l’étranger au titre de
l’article 41 de la Loi pour manquement à :
(…)
(iii) l’obligation prévue à l’article 20 de la Loi de prouver
qu’il détient les visa et autres documents réglementaires,
l’exclusion
(…)
|
[11]
For the
following reasons, I am of the view that the Minister’s representative did not
commit an error that would result in the exclusion order issued against the
applicant being set aside. This order is consistent with the applicable
statutory parameters. I will, however, examine the specific arguments submitted
by the applicant.
The CBSA officer’s conduct
The applicant alleges that during his examination he did not
understand what was happening and that the officer who examined him should have
informed him of the possibility that an exclusion order could be issued and of
the consequences of such an order. Counsel for the applicant argued that the
fact that the applicant refused to be identified by means of the Bertillon
System and refused to sign documents demonstrates that he did not understand
the process.
[12]
With
respect, I do not share the applicant’s view. First of all, it should be noted
that the applicant never indicated to the CBSA officer that he did not
understand the questions he was being asked, or that he did not understand why
he was being examined, or even that he was indisposed. Moreover, the notes
taken by the CBSA officer clearly indicate that the questions that were asked
and the applicant’s answers to them do not reveal any misunderstanding on the
part of the applicant. The questions noted by the CBSA officer were simple and
the answers given by the applicant were clear and directly linked to the
questions posed. The CBSA officer’s notes do not reveal any ambiguity.
[13]
In
addition, this was a routine examination to identify the reasons why the
applicant sought to enter Canada and to determine whether he
met the requirements for admission. It is important to remember that the
applicant entered Canada as a stowaway and had no
identity documents in his possession. The examination was of an administrative
nature and the CBSA officer was under no legal obligation to inform the
applicant of the possibility that an exclusion order could be issued against
him or of the consequences of such an order.
The right to retain counsel
[14]
The right
to retain and instruct counsel is protected under paragraph 10(b) of the Charter when a person is under “arrest” or in “detention”.
[15]
In Dehghani
v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053 (available
on CanLII), the Supreme Court held that a person seeking to enter Canada and
who is subject to an examination at the port of entry has not been “detained”
within the meaning of paragraph 10(b) of the Charter because the
examination is a routine part of the general screening process for persons seeking to
enter Canada and that the element of state compulsion is not sufficient to
constitute a “detention” in the constitutional sense (see also Chen
v. Canada (Minister of Citizenship and Immigration), 2006 FC 910, [2006]
F.C.J. No 1163).
Moreover, at the hearing, counsel for the applicant admitted that when the
applicant was being examined by the CBSA officer, he was not
in “detention” within the meaning of paragraph 10(b) of the Charter and
did not benefit from the right to retain and instruct counsel at that time.
[16]
Therefore,
the applicant did not have the right to retain and instruct counsel during his
examination by the CBSA officer.
[17]
The
applicant was later placed in detention. He was then informed of his right to
retain and instruct counsel and was able to avail himself of the services of
legal counsel. The applicant argues that at that point his right to counsel had
become moot because the exclusion order had already been issued or was in the
process of being issued. Counsel for the applicant insisted on the fact that
the applicant was not asked any questions and that no other steps were taken
after he met with counsel. In fact, the decision to issue the exclusion order
had already been made. Counsel for the applicant submitted that, had her client
been informed of the impending exclusion order and its consequences, he would
have claimed refugee protection.
[18]
In this
case, the exclusion order was issued as a result of information given by the
applicant during his examination and during the course of which he confirmed
that he did not fear returning to his country and that he sought to enter Canada in order to provide for his
family. However, this information could not have served as the basis for a
refugee claim and therefore the exclusion order was warranted and was
consistent with the applicable statutory framework. Under the circumstances,
there was no need to begin an investigation or to re-examine the applicant.
[19]
The
applicant is claiming the right to consult with counsel with regard to the
consequences of an exclusion order before the issuing of this exclusion order.
There is no legal basis for this claim in either the Charter or the IRPA.
[20]
Moreover, the
applicant was informed of his right to retain and instruct counsel as soon as
that right became available to him, namely, at the time he was placed in
detention. From the evidence it is not possible to confirm with any certainty
whether the exclusion order was issued before or after the applicant had
retained counsel. However, what the evidence does show is that the applicant was
informed that an exclusion order had been issued against him on March 25, 2010,
at about 11:15 p.m. Therefore, it is clear that the exclusion order had not yet
been communicated to the applicant at the time he met with counsel. Moreover,
the issuing of the order should have come as no surprise. The evidence is silent
as to the substance of the conversation between the applicant and his counsel
and as to the information or advice his counsel provided to him. Nor does it
indicate whether his counsel spoke with the immigration officers after meeting
with the applicant to inquire about what would happen to him or to otherwise
intervene on his behalf.
[21]
Thus, the
evidence shows that the applicant was able to retain and instruct counsel in
conformity with the Charter,
and that he was able to do so before the exclusion order was communicated to
him. Therefore, I fail to see the basis on which he can complain of not having
been informed of the possibility that an exclusion order could be issued
against him or of the consequences of such an order since, at that point, he
had retained counsel.
[22]
Therefore,
the applicant’s rights were not violated and the application for judicial
review is without merit. The parties did not propose any question for
certification and none will be certified.
JUDGMENT
THE COURT ORDERS that
the application for judicial review be dismissed. No question is certified.
“Marie-Josée
Bédard”
Certified
true translation
Sebastian
Desbarats, Translator
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