Date: 20090130
Docket: IMM-2081-08
Citation:
2009 FC 100
Vancouver, British-Columbia, January 30, 2009
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
SIMARDEEP
SINGH KAINTH
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The applicant,
Mr. Kainth, seeks judicial review of the decision of the Immigration Appeal
Division (IAD) confirming the order for his removal to India, pursuant to a
breach of his residency obligation set out at section 28 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[2]
For the
reasons that follow, the Court finds that the IAD did not commit any reviewable
error in its determination of Mr. Kainth’s rights under subsection 10(b) of the
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
(the Charter), or in finding that the port of entry (POE) officer who
interviewed him had not breached her duty of fairness.
Background
[3]
The applicant
is a citizen of India. He immigrated to Canada with his parents as permanent
residents in June 2000 after being sponsored by his sister. He remained in
Canada for about a year after which he eloped with an Indian woman he met over
the internet, who lived in the United
States. He
married her in India in August 2001. The family of
his bride objected to the marriage on the basis of caste difference and the applicant
alleges that the couple feared reprisal from her brothers in India and that they lived in hiding with his
own relatives for a few months while there. The couple returned to the United States towards the end of 2001,
where his wife was studying under a student visa and her parents had refugee
status. Shortly thereafter, the applicant made a refugee claim under a false
name,
pretending to be an Indian activist who had been tortured in his country. He
was granted asylum in the United
States in 2002.
[4]
In January
2003, Mr. Kainth was arrested for aggravated battery on his six month old
daughter and in May 2003 was convicted after pleading guilty. He was sentenced
to a little over three and a half years of incarceration but was released on
the basis of good conduct on December 15, 2005. By that time, he was divorced
from his first wife. During the police investigation of the assault charges, his
true name and some Canadian identity documentation came to light. Thus, his
refugee status was cancelled after a hearing where he was represented by a
lawyer appointed by his family in Canada.
He was then offered the choice of appealing this decision or being expulsed to India or Canada. He chose to return to Canada. He remained in detention
with the U.S. immigration authorities until
such time as his expulsion could be executed.
[5]
As it
appears from the Appointment of counsel dated October 25, 2005, faxed to the
POE officer, a Canadian immigration lawyer was retained by his family to
represent him in respect of his immigration matters in Canada.
[6]
On January
31, 2006, he was escorted by two U.S. immigration officers to the Vancouver International Airport, where after a brief
examination at the counter, he underwent what the parties referred to before
the IAD as a secondary examination by Immigration Canada to determine his
identity and status.
[7]
The POE
officer, having been advised by the applicant that he had immediate family in
the Vancouver area and while the applicant
was undergoing a secondary examination by Customs, contacted his sister and his
brother-in-law to confirm his identity and that they were indeed waiting for
him.
[8]
Shortly
after this conversation, Mr. Kainth’s counsel contacted the POE officer
directly. Upon being advised that Mr. Kainth was not with the Immigration
Officer at the time of his call and that his appointment would need to be
confirmed, said counsel indicated that he had an Appointment of counsel duly
signed by the applicant, which he offered to fax to the POE officer. Here we
should note that although the evidence of the applicant and the officer are not
exactly the same, both say that the applicant advised the POE officer of the
fact that a lawyer had been appointed to represent him early in the process.
[9]
According
to the POE officer, shortly after receiving this document, she called counsel
back to advise him that she had concerns about his client meeting his residency
obligation (he had been outside of Canada
for more than 730 days within the 5 year period immediately preceding his
arrival in Canada). In addition, she also
indicated that the applicant might be inadmissible because of his criminal
conviction in the United
States, but this
aspect of the file will not be discussed in any detail given that it is not the
subject of the decision of the IAD presently before the Court. It appears that
said counsel did not seek an adjournment of this interview, nor did he ask to
be present. He did not ask to speak to Mr. Kainth. In fact, according to the
POE officer’s affidavit dated May 29, 2006 (para. 17), which was not
contradicted, counsel indicated that he had anticipated that this might be the
case and had advised the applicant’s
family that they might be required to post a bond.
[10]
The
examination of Mr. Kainth in respect of his residency obligation was not very
long given that the calculation of his absences in this case was rather
straightforward on account of his incarceration and the fact that the POE
officer had received a red folder from the U.S. authorities containing relevant
documentation in relation thereto. However, in accordance with subs. 28(2) of
IRPA, she reviewed with him various issues in respect of his history in the
United States, his former wife and his child, as well as his family in India and in Canada. She also asked about his refugee claim
in the United
States. His
answer (this evidence is not contested) was that he did not know the basis of
such claim, as his former wife and her family had taken care of it.
[11]
There is
conflicting evidence (between the testimony of the applicant and that of the POE
officer) as to whether early in his interview Mr. Kainth told said officer
about having experienced problems with his former wife’s brothers in India. However,
it is acknowledged by the applicant that he did not mention that as of January
2006, he feared returning to India. Rather, his position is that
the POE officer should have inquired about it. There is also conflicting
evidence as to whether or not the applicant requested to speak to his lawyer.
Mr. Kainth alleges that he requested this on three separate occasions during
the entire process, while this is specifically denied by the POE officer.
[12]
As
mentioned, the POE officer denies that Mr. Kainth advised her of any problem
having occurred in India in 2001. Her evidence is that
she specifically recalls that, after explaining her concerns to him concerning
his criminality, she told him that a breach of his residency obligation
might well result in his removal to India.
She says that she also explained to him that she was not convinced that he had
raised sufficient humanitarian considerations to warrant the exercise of her
discretion not to report him. She testified that she specifically asked if he
had anything else to add for her consideration, in answer to which he only
referred to his desire to stay in Canada.
[13]
While the
POE officer reviewed the relevant documents in her possession, finalized her
assessment, typed her report and prepared other documentation, Mr. Kainth was
left in a waiting room with sliding doors inside the secure area where the
immigration officers have their offices and cubicles for private interviews.
That room had sliding doors that could not be opened from the inside. He
remained there for several hours while the following events were taking place.
[14]
The POE
officer gave evidence that before reporting to the Minister’s delegate, she
spoke with Mr. Kainth’s lawyer to advise him that she would be issuing a report
under subs. 44(1) of IRPA recommending the issuance of a removal order as she
had found Mr. Kainth to be inadmissible (subss. 41(b) and 44(1) of IRPA). The
uncontradicted evidence is that said counsel simply asked her to fax him a copy
of her report after its issuance. He made no submissions whatsoever.
[15]
It also
appears that at that stage, the POE officer discussed with the applicant’s
counsel the conditions that she would have to consider pursuant to subs. 44(3)
of IRPA. He reiterated that the possibility of having to file a $10,000
security bond had already been envisaged and that the family was able and
willing to do so. Thus, after the Minister’s representative issued the removal
order on the basis of a breach of Mr. Kainth’s residency obligation and ordered
that an admissibility hearing be scheduled at a later stage to address the second
report of the POE officer dealing with his criminality, the POE
officer called Mr. Maghera, the applicant’s brother-in-law, to confirm
the need for a $10,000 security bond. She indicated that whenever he was ready,
he could come to pick Mr. Kainth up at the airport. Mr. Maghera simply answered
that he would shortly be on his way to the airport to file the bond.
[16]
According
to the POE officer, it is only at this point in time that she was
advised that Mr. Kainth wanted to talk to her. She proceeded to the “waiting
room” and he advised her that he wanted to call his family and his lawyer. However,
it is not disputed that upon being advised that Mr. Maghera was on his way to
file his bond and pick him up and that she had spoken with his lawyer, Mr.
Kainth did not pursue his request to call and appeared content to wait for his
brother-in-law. It is also not contested that Mr. Kainth was then advised of
the issuance of the removal order, given a copy of the POE officer’s report and
other relevant documentation and informed of his right of appeal. Mr. Maghera
arrived at the airport a few hours later. The POE officer, having completed her
shift, had already left. After the filing of the bond and fingerprinting, the applicant
left the airport.
[17]
In
addition to his notice of appeal, the applicant also filed, on February 15,
2006, an Application for leave and judicial review of the removal order,
alleging a breach of his rights under subs. 10(b) of the Charter and of the
duty of procedural fairness of the POE officer for having: i) failed to advise
him that unless he made a refugee claim before the removal order was issued, he
would lose his right to do so; and, ii) failed to respect his right to counsel
during his interview in respect of his residency obligation.
[18]
Upon a
motion by the Minister, the Federal Court found on September 13, 2006 that the
application was premature as Mr. Kainth had not exhausted his right to appeal
to the IAD. At this stage, it is worth noting that pursuant to subs. 67(2) of
IRPA, the IAD has jurisdiction to hear such a matter “de novo”,
and to consider humanitarian considerations arising from circumstances up to
the date of the hearing before it.
Thus, at the hearing in March 2008, the applicant relied on his own testimony,
on the testimony of his Canadian wife whom he had married in January 2008, a psychologist’s
report, as well as other documentary evidence. This included all the material
filed in respect to his earlier application before the Federal Court,
particularly his memorandum of fact and law to which the IAD was expressly
asked to refer in order to supplement the oral submissions made before it.
[19]
During
that hearing, it was acknowledged by both sides that even if the original removal
order was found to be void, because of an alleged breach of procedural fairness
and of subs. 10(b) of the Charter, the IAD could decide the original issues in
finality without returning the matter before the original decision-maker and
confirm the removal of Mr. Kainth. However, the applicant’s counsel submitted
to the IAD that it should exercise its discretion to return the matter to the
Minister’s representative to allow the applicant to file a refugee claim.
[20]
In effect,
it was clear that by then, the issue was not so much that additional
information could have been provided to the POE officer in respect of the
residency obligation or the humanitarian considerations but rather that the
prejudice relied upon by the applicant was that the issuance of the removal
order immediately after the issuance of the subs. 44(1) report prevented him
from filing a refugee claim based on an alleged fear of reprisal from the
brothers of his first wife in India (subs. 99(3) of IRPA).
[21]
It is also
evident from the memorandum of fact and law before the IAD that although the applicant
expected to be interviewed on his residency obligation (see para. 92 of the memorandum
of fact and law), he (or his counsel) did not expect that a removal order would
be issued by the Minister’s representative immediately at the POE, upon receipt
of the subs. 44(1) report from the POE officer.
The IAD Decision
[22]
In its 18
page decision, The IAD held that:
1)
Mr. Kainth
had breached his obligation of residency, this much having been admitted to the
beginning of the hearing.
2)
There were
insufficient humanitarian and compassionate circumstances to warrant the
granting of special discretionary relief. Before coming to this conclusion the
IAD reviewed in some detail the evidence and made various findings in respect
of Mr. Kainth’s credibility, or lack thereof, such as:
·
That the applicant
had a history of lying whenever it suits him. For example, apart from making a
refugee claim under a false name, when his true identity documents were found
by the police investigator, he denied that they were his and said that they
were for his cousin. When this was not accepted, he indicated that they were
prepared for him but only to have papers enabling him to look older.
·
In
addition to falsely stating to the POE officer that he knew nothing about his
refugee claim, he also testified before the IAD that he did not know what
happened with his American refugee status. This was not found credible, in
light of the evidence that he attended a hearing on that very issue by
videoconference and had signed documents related thereto, all while duly
represented by a lawyer.
·
To explain
his guilty plea to the charges of aggravated battery on his infant daughter, he
testified that in fact, it was not battery as the injury occurred by accident.
The IAD rejected that explanation based on the investigation report on file
which referred to the doctor’s report showing that the baby had suffered
several types of injuries which were at different stages of healing and
concluding that there was evidence of repeated abuse. Mr. Kainth then proposed
as an explanation that his parents-in-law could have been the perpetrators.
Once again, the IAD reviews the evidence in that respect and finds that this
explanation was not credible because of contradictory statements and assertions
on issues related thereto.
·
That his testimony
in respect of his alleged fear that he would be under threat from his former
wife’s brothers if returned to India was not credible.
·
Because of
Hong Yan Zhang’s testimony (his second wife), which was found to be “strikingly
divergent” on key issues and demonstrated a lack of knowledge of each other
that one would expect in a marital relationship, the IAD even concluded that
this relationship was not genuine.
3)
In the
present context, the POE officer had no duty to inquire into his refugee
status. In that respect, the IAD notes among other things that the applicant
had the duty to assert his refugee status at the first opportunity, that is at
the POE. He spoke English, was familiar with the refugee process from his
experience in the United States, had indicated at the hearing that he fully
understood the reason for the inquiry at the airport, particularly that he
understood the possibility of being removed to India. There was also uncontradicted evidence
that he disavowed any knowledge of the basis of his refugee claim in the U.S. The IAD adds that even if Mr. Kainth’s
testimony was preferred over that of the POE officer (which it clearly was not
on my reading of the decision), he only mentioned his fear of his former wife’s
brothers while they lived in India in 2001 and there was enough circumstantial
evidence for the POE officer to reasonably infer that he had no fear of danger
or that he faced no danger in India in the eventuality of a removal, as of
January 2006.
4)
In
respect of subs. 10(b) of the Charter, “there [was] insufficient evidence to
conclude that his examination was anything other than routine” (para. 42 of the
decision) and it did not constitute “detention” within the meaning of that subsection.
Before coming to this conclusion, the IAD expressly refers to the most
pertinent authorities cited by the applicant, such as Dehghani v. Canada (Minister of Employment and
Immigration.),
[1993] 1 S.C.R. 1053 (Dehghani), R. v. Simmons, [1988] 2
S.C.R. 495 and R. v. Jacoy, [1988] 2 S.C.R. 548. It also expressly
refers to the fact that Mr. Kainth had gone through a basic search (as opposed
to a more intrusive search such as a strip search) before the secondary
examination started, that is upon entering the area for his interview (private
cubicle). It also deals with the fact that he had been locked in a waiting room
for several hours. It discusses the applicant’s as well as the POE officer’s
state of mind throughout the events.
5)
The POE
officer had not breached her duty of fairness. Under that heading, the IAD
refers to the various criteria set out in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker)
(which were fully discussed in the oral and written arguments before it),
reviews what it considers the most relevant case law presented by the applicant
and how the factual matrix before it compares with those in such cases. For
example, it notes that contrary to what happened in the matter before the
Federal Court of Appeal in Ha v. Canada (Minister of Citizenship and
Immigration.), 2004 FCA 49, [2004] 3 F.C.R. 195 (Ha), here the applicant’s
counsel did not request to speak with him or to make submissions to the POE
officer and there was no evidence suggesting that counsel asked to attend at
any stage of the process. It also considered that the nature of the decision
itself was different than in Hernandez v. Canada (Minister of
Citizenship and Immigration.), 2005 FC 429, [2006] 1 F.C.R. 3 (Hernandez)
in that it was not final in any respect. The applicant could not lose his
permanent resident status until he had exhausted his right of appeal, which was
quite different in respect of the subs. 44(1) report issued on the basis of
breach of residential obligation.
6)
It is
also worth noting that the IAD specifically mentioned at para. 34 that it had
full authority to decide all the issues on the appeal and that it had not been
persuaded to decline to exercise that jurisdiction and return the matter to the
Minister’s representative even if it had found a breach of procedural fairness
or Charter rights.
[23]
The IAD’s
findings in respect to credibility, breach of subs. 28(1) of IRPA and its
determination in respect of subs. 28(2) of IRPA are not in dispute.
Analysis
[24]
At the
hearing, the applicant was represented by a new counsel (because of illness)
who had, about 3 days before the hearing, served a motion seeking permission to
file a further memorandum and some additional evidence. The motion was heard the
morning of the hearing of this application.
[25]
The respondent
opposed the motion on the basis that it raised arguments that were not
presented to the IAD, as well as new evidence not in the Certified Record.
Also, the Minister noted that it would be prejudiced as it was not in a
position to present any new evidence that would be relevant to respond to this
new theory of the case.
[26]
It is
trite law that new evidence is not admissible on judicial review and none of
the few exceptions to this general principle apply here. As for the additional
submissions, had it just been a question of extending the deadline for the
filing of the further memorandum, given the special circumstances and the
little time available for new counsel to review the file, the Court would have
been inclined to grant an adjournment especially to enable the Minister to file
additional submissions in response. However, the issue raised by this motion is
of another nature. In effect, it is well established that on a judicial review,
a decision cannot be impugned on the basis of arguments not raised before the
decision-maker unless the new issue is jurisdictional (which it is not here) (34156
Alberta Limited v. M.N.R., 2006 FC 1133, [2007] 1 C.T.C. 110 at
para. 16, confirmed on appeal, 2008 FCA 228, [2009] 1 C.T.C. 8 particularly at
para. 6)
[27]
In this
case, not only is the argument new, it is in fact in direct contradiction with
what was argued before the IAD. In effect, before the IAD, the applicant said
that he expected to be interviewed by the POE officer on his residency obligation
(para. 92 of the memorandum of fact and law) at the POE. It is also clear from
the Certified Record that the parties generally used expressions such as
“secondary examination” or “POE examination” to include in this particular case
the examination in respect of the residency obligation and humanitarian
considerations relevant only to the subs. 44(1) report based on subs. 41(b) and
s. 28 of IRPA. The Court also understands that the new argument could impact on
the Baker factors analysis, particularly in respect of the legitimate expectation
of the parties’.
[28]
For these
reasons, the motion was dismissed. However, it should be clear that nothing in
the present reasons should be understood to mean that had this argument been
raised before the IAD, it would have had a real impact on the ultimate decision
of the IAD or the determination of this application.
Breach of the applicant’s rights under
subs. 10(b) of the Charter
[29]
Turning
now to the first issue raised by the applicant – did the IAD err in finding
that there was no breach in respect of subs. 10(b) of the Charter – there is
some dispute between the parties at the hearing as to the applicable standard of
review. Because it involves the Charter, the respondent simply referred the
Court to paras. 50, 51, 55 and 58 in Dunsmuir v. New
Brunswick, 2008 SCC 9, (2008), 329
N.B.R. (2d) 1 (Dunsmuir), which appear to call for correctness, whatever
the issue raised by the applicant. The applicant’s position was more nuanced
and involved looking at the nature of the question before the Court.
[30]
In his
memorandum, the applicant does not per se challenge the legal test applied by
the IAD. Rather, he challenges how the IAD applied the legal test set out in
the various decisions of the Supreme Court of Canada to the particular
circumstances of his case, including how it failed to properly weigh the
evidence that established, in his view, that the secondary examination that
took place was not “routine” because it went much further than the questioning
in Dehghani, given that: i) it lasted for several hours; ii) it
included the placement of Mr. Kainth in a locked cell (the waiting room); and,
iii) his release was subject to a security bond. Reference was also made to allegations
such as denial of access to a phone, etc.
[31]
In his
oral reply, the applicant added that the IAD had failed to appreciate that in Dehghani,
the Supreme Court of Canada was dealing with a foreign national as opposed to a
permanent resident and that part of the examination in the present case was not
an examination to determine his right to enter into Canada. Again, here, this is not really an
attack on the legal test or construction of the words “detention” and “arrest”
found in subs. 10(b), but on how the test should apply here in light of the
differences with the factual matrixes of the precedents.
[32]
There is
no doubt that the interpretation of subs. 10(b) per se (the legal test) is to
be reviewed on the standard of correctness. However, the threshold question
here of whether there was “detention” in this particular case is essentially a
question of mixed fact and law that is highly fact based and contextual. It
should, in my view, be reviewed on the standard of reasonableness (Lake v.
Canada 2008 SCC 23, [2008] 1 S.C.R. 761 at paras. 34 to 41 and Suresh v.
Canada (Minister of Citizenship and
Immigration),
2002 SCC 1, [2002] 1 S.C.R. 3 at paras. 26-41). That said, this issue is not a
determinative here for the Court is satisfied that the decision of the IAD was
not only reasonable, it was also correct.
[33]
First, a
simple review of the decision indicates that the IAD clearly understood the
legal test it had to apply. Second, the IAD did rely heavily on the decision of
the Supreme Court of Canada in Dehghani but not because its facts were
on all-fours with those in the present case, but because as was argued by both
parties before it, it offers a review of the relevant case law, clarifies the
applicable principles and sets out the contextual analysis that must be carried
out to determine whether or not a particular situation falls within the ambit
of subs. 10(b) of the Charter.
[34]
It is
worth noting that in Dehghani, the Supreme Court of Canada itself
reached its decision by looking at cases with a fact pattern that could clearly
be distinguished; for example it said at para. 40: “while the present case does
not concern a search, but rather questioning, an analogy can be drawn.” It is
on that basis that both sides were shaping an analogy with Dehghani and
their arguments focused on whether the questioning that actually took place was
“routine” or not.
[35]
Even if a
permanent resident can choose to be interviewed at a later stage, there is no evidence
that it is not in fact usual to conduct the subs. 44(1) examination of
permanent residents at the POE. As mentioned, this was never raised as an issue
by the applicant. If the process followed is routine, it may be revealing that
this is the first time that a breach of the rights afforded by subs. 10(b) of
the Charter is alleged. The Court cannot conclude that applying the Dehghani
reasoning of looking at whether or not the questioning at issue was routine
in nature constitutes an error of the IAD in the present circumstances.
[36]
Once Mr.
Kainth had established his identity and status as a permanent resident he had
the right to enter Canada (subs. 27(1) and s. 49 of
IRPA). However, the officer was still entitled to voice her concerns about his
failure to meet, among other things, his residency obligation and the applicant
had to be questioned in that respect either at the airport or at a later stage.
The evidence in this case is that she clearly signalled her desire to proceed
with the examination at the airport to Mr. Kainth’s counsel prior to doing so.
No request for adjournment was made, nor was any indication given that counsel
needed to consult with Mr. Kainth in this respect or at all. What the officer
knew was that counsel had been appointed several months prior to Mr. Kainth’s
seeking entry into Canada. The calculation of the
extent of his absence was quite straightforward and it was reasonable to infer
that Mr. Kainth’s counsel could not but appreciate that the humanitarian
considerations set out in subs. 28(2) of IRPA would necessarily have to be
discussed.
[37]
There is
also uncontradicted evidence that it is the practice of immigration officers to
entertain submissions by counsel who have already been appointed and are
available during the process – such was the case for applicant’s counsel.
[38]
One cannot
lose sight of the fact that no evidence was filed on behalf of the applicant to
contradict the POE officer’s evidence as to the content of her conversations
with the applicant’s counsel. This, even though she had signed an affidavit
containing the details of such exchanges and their timing more than a year
prior to the hearing before the IAD. This is all part of the context that must be
considered for, as noted by the Supreme Court of Canada in R. v. Therens,
[1985] 1 S.C.R. 613 and in Dehghani at para. 21:
[t]he
purpose of s. 10 of the Charter is to ensure that in certain situations a
person is made aware of the right to counsel and is permitted to retain and
instruct counsel without delay. The situations specified by section 10 – arrest
and detention – are obviously not the only ones in which a person may
reasonably require the assistance of counsel, but they are situations in which
the restraint of liberty might otherwise effectively prevent access to counsel
or induce a person to assume that he or she is unable to retain and instruct
counsel.
[39]
That said,
like the IAD, the Court must take a contextual approach to determine if Mr.
Kainth was in such a situation. In doing so, again, like the IAD, the Court must
weigh various factors and be guided by the existing case law from which analogies and
distinctions can be drawn. In doing so, one should avoid focusing on a single
factor (R. v. Pomeroy, 2008 ONCA 521, (2008), 173 C.R.R. (2d) 269
at paras. 22, 31 and 38).
[40]
Many
of the relevant issues have already been discussed while describing the IAD’s
decision and the questions put forward by the applicant in this application
(see for example, para. 30, above). The difficulty with many of the applicant’s
arguments is that the evidence does not support several of his factual
assertions.
[41]
As
noted, for the most part it is clear that the IAD preferred the evidence of the
POE officer, which was closely cross-examined by the applicant’s counsel, to
that of the applicant. After a complete review of the Certified Record, the
Court concludes that such a position was reasonable. In fact, in order to
review this question on the basis of correctness, the Court independently found,
on matters where there were contradictions between the evidence of the POE
officer and the applicant’s testimony, that the former was to be preferred as this
evidence was more credible and plausible, taking into consideration all of the
facts and documents on file.
[42]
To
give an example of an assertion where the applicant has not met his persuasive
burden, the Court will discuss his allegation that the absence of telephones in
the waiting room supports his view that this was a detention cell and that he
was denied his requests to call his lawyer.
[43]
The
evidence is that there are no public phones available to anybody until one
reaches the baggage claim area after completing the immigration formalities at
the Vancouver
Airport. However, the
public, including Mr. Kainth, can use cellular phones, should they have one. There
is no policy
that would prevent any person sitting in the waiting room in the secondary
examination area from using their own phone. The POE officer also testified
that in general, during interviews, officers will also provide access to staff
phones in order to facilitate the obtention of information relevant to their
inquiry.
[44]
The
POE officer also categorically denied that Mr. Kainth was refused access to a
phone or denied a request to call his family or lawyer. In that respect, quite
apart from the severe lack of credibility arising from Mr. Kainth’s propensity
to lie throughout the process and in other contexts, it is not plausible that
Mr. Kainth would not have been told during the interview in respect of his
residency obligation that the officer had already spoken to his lawyer, if he
had indeed asked her to contact said lawyer during that part of the
examination. The Court finds that the applicant has simply not met his
persuasive burden in that respect.
[45]
The
applicant relies heavily on the fact that he was put in a locked waiting room
to say that his situation was not routine and amounted to something akin to
detention. However, the Court understands from the POE officer’s evidence
during her cross-examination before the IAD that had Mr. Kainth expressed his
discomfort of having to wait in such a waiting room, she would have had no
objection to have him wait in the larger public area, given that he spoke
English and there would have been no difficulty locating him once the
administrative process resumed. In my view, it is also clear that the POE
officer did not put him in the waiting room to prevent him from leaving the
airport, as she made it clear that no one can get through Customs without duly
completed immigration papers. This is a fact so well known that the Court could
almost have taken judicial notice of it.
[46]
The
Court is simply not satisfied that, based on the evidence on the record, which
includes a floor plan of the premises where the actual detention cells and
their configuration are represented, that as alleged Mr. Kainth was put in a
“cell”.
[47]
It
is easy to understand why the applicant’s counsel took the position before the
IAD that all that happened at the airport should be generally referred to as a
“secondary examination at the port of entry” for this enabled him to argue that
s. 8.4 of the Operation Manual (ENF 4) applied throughout. This also enabled
him to bundle together facts such as the initial search he went through when
entering the area where the immigration offices and private cubicles are
located (prior to his secondary examination in respect of his identity and
status) with his waiting in a locked room and the issuance of a security bond, events
which took place well after the questioning of Mr. Kainth in respect of subss.
28(1) and (2) was completed, that is the period during which the applicant says
he should have had the opportunity to have access to counsel.
[48]
But
however argued, the Court must consider all these events in their proper
context including the fact that it is only after the subs. 44(1) report was actually
issued that the POE officer became empowered to set conditions pursuant to subs.
44(3). This was well after the completion of Mr. Kainth’s interview and after
his lawyer had confirmed that he expected that bail would be necessary and had
advised Mr. Kainth’s family accordingly.
[49]
One
should not trivialize constitutional rights, which are intended as shields for
those in need of protection, and not as swords to be used as part of legal
strategy. On the facts of this case, the applicant has simply not met his
persuasive burden and the Court is not satisfied that a breach of his rights
under subs. 10(b) of the Charter has been established.
Breach of the POE
officer’s duty of fairness
[50]
The
applicant argues that: i) the POE officer had the duty to actually tell the
applicant or his counsel that counsel could attend the interview in person
and/or make submissions orally or in writing before the issuance of her subs.
44(1) report; and, ii) that she also had to inquire about his fear of returning
to his country of nationality before completing the said report.
[51]
The
extent of the duty of fairness, even if based on a particular circumstance of a
given case, is indeed a question of law that must be reviewed on a standard of
correctness (Cha v. Canada (Minister of Citizenship and Immigration),
2006 FCA 126, [2007] 1 F.C.R. 409 (Cha) at para. 16, Dunsmuir, at paras. 50, 51, 55
and 58).
[52]
The
Court is satisfied that the IAD’s decision and analysis was correct and contains
no reviewable error. In effect, the decision-maker properly came to its
decision after considering the five factors set out in Baker, at paras.
21 to 28, and applying them to the facts, which included the interactions that
actually took place between the POE officer and Mr. Kainth’s counsel prior to
the issuance of the subs. 44(1) report and of the removal order.
[53]
It
is worth noting that the applicant relied heavily on the analysis carried out
by Justice Judith Snider in Hernandez, but did not contest her findings
at para. 72 of said decision that there is no duty on the Minister’s
representative charged with making a determination pursuant to subs. 44(2) of
IRPA to refer a matter to an admissibility hearing (or issue a removal order
when a breach of residency obligation is involved) to put the subs. 44(1)
report to the applicant for a further opportunity to respond prior to making the
decision. On that particular issue, the applicant has not presented any
arguments that would justify coming to a different conclusion.
[54]
The
parties referred to a number of precedents, none of which are on all-fours with
the present case. The Court will thus proceed with its own analysis of the Baker
factors for, among other things, as mentioned by Justice Robert Décary in Cha
(paras. 21 and 22), the duty of an officer under subs. 44(1) may well vary
depending on the status of the person involved, the grounds being reviewed (for
example, criminality vs. residency obligation) and the different recourse
contemplated in the Act (different right of appeal).
A. The nature of
the decision being made and the procedures followed in making it
[55]
As
mentioned in Cha at para. 43:
[a]s was said by the Supreme Court in Baker
at paragraph 23, the more the process provided for, the function of the
decision-maker, the nature of the decision made and the determination that must
be made to reach a decision resemble judicial decision making, the more likely
it is that the procedural protection will be extensive.
Despite the fact that, pursuant to subs.
28(2) of IRPA, the POE officer had to consider humanitarian and compassionate
grounds, her decision is a purely administrative decision that has no final
effect and the interview is not a hearing. As noted earlier, the applicant can
appeal the removal order that is issued by the Minister’s representative who reviewed
the POE officer’s report before the IAD (subs. 63(3) of IRPA) and he will be
entitled to argue his whole case “de novo” (subss. 67(1) and (2) of
IRPA) with the assistance of counsel and the possibility of presenting new oral
and documentary evidence.
[56]
This
points towards a minimal duty of fairness.
B. The nature of
the statutory scheme and the importance of the decision
[57]
The
POE officer’s decision to issue a report has little impact on the applicant
unless it is acted upon by the Minister’s delegate, pursuant to subs. 44(2). In
this particular case, the evidence is that in respect of reports based on a
breach of the residency obligations, the reports of this particular officer
were acted upon in about 60% of the cases. And again, even when acted upon, the
decision of the Minister’s delegate to issue a removal order itself has no
impact on Mr. Kainth’s permanent resident status until his right of appeal has
been exhausted (ss. 46-49 of IRPA). This points to a low duty of fairness.
[58]
The
applicant says that because, pursuant to s. 101 of IRPA [sic] (in fact
subs. 99(3) of IRPA), he is precluded from making a refugee claim by the very
issuance of the removal order, the duty of fairness here should be greater. I
disagree. When one considers the statutory scheme as a whole, the effect of the
removal order is not to preclude proper consideration of any danger Mr. Kainth
may face in India. Not only
can the IAD consider that danger and send the matter back to the Minister’s
representative, if it so wishes, but also and more importantly, Mr. Kainth will
be entitled to have a pre-removal risk assessment pursuant to subs. 112(1) of
IRPA prior to his removal.
C. Legitimate
Expectation
[59]
In
his memorandum before the IAD at paras. 92-93, as well as his memorandum before
this Court at paras. 96-97, the applicant states that:
[u]pon being brought into Canada, the Applicant had the
expectation of being subject to a permanent resident examination, with the
possible consequence of loss of permanent residence.
However, under the current scheme of
IRPA, the Applicant was issued a removal order which has the added effect of
barring the Applicant from a right to make a refugee claim in Canada. This latter result is an unexpected
one for the Applicant in the case at bar (and one which his legal counsel could
have explained him). Given this highly unexpected result and the interest of
the Applicant in being able to seek Canada’s
protection, the duty of procedural fairness must be higher at examination
hearings.
[60]
Thus,
the point here, although it is presented in a somewhat ambiguous fashion, is
not so much expectations in respect of the issuance of the subs. 44(1) report
but rather that the applicant did not expect that the removal order would be
issued before he had the time to file his refugee claim.
[61]
There
is no evidence on file, nor was any argument presented, to explain on what
basis the applicant or his counsel could expect a delay between the issuance of
the subs. 44(1) report and the issuance of the removal order by the Minister’s
delegate. The POE officer was not cross-examined at all on this subject. Subs.
99(3) of IRPA is very clear and there is no minimum delay, set out in IRPA or
in the Immigration and Refugee Protection Regulations, SOR/2002-227
issued thereunder, between the reception of a subs. 44(1) report and a decision
by the Minister’s delegate under subs. 44(2) of IRPA. For expectations to be
legitimate, they must emanate in some way from Citizenship and Immigration
Canada’ conduct, representations, or the law itself. This factor is neutral in
the present case.
D. Choice of
procedure by Citizenship and Immigration Canada
[62]
While
this is not in itself determinative, the Court must take into account and respect
the choice of procedures made by the agency itself. The only portion of the
Operational Manual in the Certified Record is “ENF 4 – Port of Entry
Examination”. The right to counsel at the POE examination is only discussed in
its s. 8.4. This section should normally be read in such a matter in
conjunction with the section entitled “ENF 5 – Writing 44(1) Reports” which was
not per se before the IAD except for some extracts which are quoted in Hernandez
at paras. 64 and 65.
[63]
According
to this s. 8.4, generally, the policy is not to permit counsel at POE
examinations if detention has not occurred. However, this is nuanced by the
statement that the right to counsel depends on what transpires after the
foreign national is first subject to examination and discusses a series of
potential situations. The applicant argued that the following paragraph
directly applied to his situation:
1)
if
restraining devices are used or the foreign national is placed in a holding
cell, even temporarily, then an officer should inform the foreign national of
the reason for the detention and of their right to counsel;
As explained in these reasons, the Court is
not satisfied that the applicant has established that this paragraph of the
policy applies directly to his situation. In fact, none of the scenarios
described fit directly here, except perhaps a contrario, the first note
which states:
·
if a
foreign national is being examined and the examination does not go beyond what
is required to establish admissibility, the foreign national is not entitled to
legal counsel;
[64]
Obviously,
this in and of itself is not sufficient to conclude that the agency’s practice
or policy in cases such as the one under review is to allow the right to
counsel.
[65]
In
respect of the procedure followed before issuing a subs. 44(1) report, the section
found in Hernandez at paras. 64 and 65 does not specifically refer to
the right to counsel. As mentioned by Justice Snider, the policy appears to
include two main elements: i) the right of all persons who are or may be
subject to a report to make submissions, either orally during an interview or
in writing; and, ii) the right to receive a copy of the report.
[66]
The
IAD clearly found that as a matter of fact, the POE officer in this case had
properly explained the purpose of her inquiry, the concerns she had and the
possible effects of her report, which included removal to India. The IAD
also found that she gave Mr. Kainth an opportunity to make any representations
he wished to make and gave him a copy of her subs. 44(1) report.
[67]
Obviously,
here again, the Court must consider the fact that Mr. Kainth’s counsel had the
opportunity to speak with the POE officer before she issued her report.
Clearly, he understood what was at stake, made no representations whatsoever,
nor did he ask for an adjournment or to speak to his client. From his comments with
respect to the issuance of a security bond, one can reasonably infer that he
had no representations to make against the imposition of such a condition or as
to the amount of the bond.
[68]
Balancing
all the factors, the Court finds that: i) there are minimal participatory
rights included in the duty of fairness of the POE officer in this case; ii)
those rights were respected on the facts of this case; and, iii) the Court is
simply not willing to say that here, the duty of fairness incumbent on the
officer included expressly confirming with counsel that he had no submissions
to make and felt no need for an adjournment or to speak with his client prior
to the issuance of the report.
[69]
Keeping
in mind the undisputed findings of the IAD that Mr. Kainth properly understood
the reasons for the interview, the possibility of removal to India and his
answers to the POE officer’s questions in respect of his refugee claim in the
United States (see above, paras. 10 and 22(3)), the Court also agrees with the
IAD that the POE officer could, in this matter, reasonably infer that Mr.
Kainth was not facing nor fearing any particular danger in India (see paras.
35, 36 and 37 of the decision). She simply had no duty to expressly ask him if
he intended to make a refugee claim in Canada.
[70]
In
view of the foregoing, the Court is satisfied that the application must be
dismissed.
[71]
The
parties have not submitted any questions for certification and the Court agrees
that this decision turns on its own unique facts (Ha, at para. 40).
Thus, no question will be certified.
ORDER
THIS COURT ORDERS that the
application is dismissed.
“Johanne
Gauthier”
ANNEX
|
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
10. Everyone has the right on arrest or detention
b) to retain and instruct counsel
without delay and to be informed of that right
Immigration and Refugee Protection Act, S.C. 2001, c. 27
27. (1) A permanent
resident of Canada has the right to enter and remain in Canada, subject to the provisions of this
Act.
(2) A permanent resident must comply with any conditions
imposed under the regulations.
28. (1) A permanent
resident must comply with a residency obligation with respect to every
five-year period.
(2) The following provisions govern the residency obligation under
subsection (1):
(a) a
permanent resident complies with the residency obligation with respect to a
five-year period if, on each of a total of at least 730 days in that
five-year period, they are
(i) physically present in Canada,
(ii) outside Canada accompanying a Canadian citizen who is their
spouse or common-law partner or, in the case of a
child, their parent,
(iii) outside Canada employed on a full-time basis by a Canadian business or
in the federal public administration or the public service of a province,
(iv) outside Canada accompanying a permanent resident who
is their spouse or common-law partner or, in the case of a child, their
parent and who is employed on a full-time basis by a Canadian business or in
the federal public administration or the public service of a province, or
(v) referred to in regulations providing for other means
of compliance;
(b) it is
sufficient for a permanent resident to demonstrate at examination
(i) if they have been a permanent resident for less than
five years, that they will be able to meet the residency obligation in respect
of the five-year period immediately after they became a permanent resident;
(ii) if they have been a permanent resident for five
years or more, that they have met the residency obligation in respect of the
five-year period immediately before the examination; and
(c) a
determination by an officer that humanitarian and compassionate
considerations relating to a permanent resident, taking into account the best
interests of a child directly affected by the determination, justify the
retention of permanent resident status overcomes any breach of the residency
obligation prior to the determination.
41. A person is inadmissible for
failing to comply with this Act
(b) in the case of a permanent
resident, through failing to comply with subsection 27(2) or section 28.
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.
(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.
67. (1) To allow an
appeal, the Immigration Appeal Division must be satisfied that, at the time
that the appeal is disposed of,
(a) the
decision appealed is wrong in law or fact or mixed law and fact;
(b) a
principle of natural justice has not been observed; or
(c) other
than in the case of an appeal by the Minister, taking into account the best
interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
(2) If the Immigration Appeal Division allows the appeal, it shall set
aside the original decision and substitute a determination that, in its
opinion, should have been made, including the making of a removal order, or
refer the matter to the appropriate decision-maker for reconsideration.
99. (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.
|
Charte
canadienne des droits et libertés, partie I de la Loi
constitutionnelle de 1982,
constituant
l’annexe B de la Loi de 1982 sur le Canada (R.-U.), 1982, c. 11.
10. Chacun a le droit, en cas
d'arrestation ou de détention :
b) d'avoir
recours sans délai à l'assistance d'un avocat et d'être informé de ce droit
Loi
sur l’immigration et la protection des réfugiés, L.C. 2001, c. 27
27. (1) Le
résident permanent a, sous réserve des autres dispositions de la présente
loi, le droit d’entrer au Canada et d’y séjourner.
(2) Le résident
permanent est assujetti aux conditions imposées par règlement.
28. (1)
L’obligation de résidence est applicable à chaque période quinquennale.
(2) Les dispositions suivantes régissent l’obligation de
résidence :
a) le
résident permanent se conforme à l’obligation dès lors que, pour au moins 730
jours pendant une période quinquennale, selon le cas :
(i) il est effectivement présent au Canada,
(ii) il accompagne, hors du Canada, un citoyen canadien
qui est son époux ou conjoint de fait ou, dans le cas d’un enfant, l’un de
ses parents,
(iii) il travaille, hors du Canada, à temps plein pour
une entreprise canadienne ou pour l’administration publique fédérale ou
provinciale,
(iv) il accompagne, hors du Canada, un résident permanent
qui est son époux ou conjoint de fait ou, dans le cas d’un enfant, l’un de
ses parents, et qui travaille à temps plein pour une entreprise canadienne ou
pour l’administration publique fédérale ou provinciale,
(v) il se conforme au mode d’exécution prévu par
règlement;
b) il
suffit au résident permanent de prouver, lors du contrôle, qu’il se
conformera à l’obligation pour la période quinquennale suivant l’acquisition
de son statut, s’il est résident permanent depuis moins de cinq ans, et, dans
le cas contraire, qu’il s’y est conformé pour la période quinquennale
précédant le contrôle;
c) le
constat par l’agent que des circonstances d’ordre humanitaire relatives au
résident permanent — compte tenu de l’intérêt supérieur de l’enfant
directement touché — justifient le maintien du statut rend inopposable
l’inobservation de l’obligation précédant le contrôle.
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) 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.
(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.
67. (1) Il est fait
droit à l’appel sur preuve qu’au moment où il en est disposé :
a) la
décision attaquée est erronée en droit, en fait ou en droit et en fait;
b) il y a
eu manquement à un principe de justice naturelle;
c) sauf
dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de l’affaire, la prise de mesures
spéciales.
(2) La décision attaquée est cassée; y est substituée
celle, accompagnée, le cas échéant, d’une mesure de renvoi, qui aurait dû
être rendue, ou l’affaire est renvoyée devant l’instance compétente.
99.
(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.
|
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2081-08
STYLE OF CAUSE: SIMARDEEP
SINGH KAINTH V. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: Vancouver, British Columbia
DATE OF
HEARING: January
13, 2009
REASONS FOR ORDER
AND ORDER: GAUTHIER J.
DATED: January
30, 2009
APPEARANCES:
|
Mr. Gordon H.
Maynard
|
FOR THE
APPLICANT
Maynard
Kischer Stojicevic
|
|
Ms. Cheryl D.
Mitchell
|
FOR THE
RESPONDENT
Minister of
Citizenship and Immigration
|
SOLICITORS
OF RECORD:
|
Mr. Gordon H.
Maynard
500-1168
Hamilton Street
Vancouver, British Columbia
V6B 2S2
Fax: (604)
632-0182
|
FOR THE
APPLICANT
Maynard
Kischer Stojicevic
|
|
Department of
Justice
900-840 Howe
Street
Vancouver,
British Columbia
V6Z 2S9
Fax: (604) 666
-2639
|
FOR THE
RESPONDENT
Minister of
Citizenship and Immigration
|
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