Date: 20080131
Docket: IMM-6477-06
Citation: 2008 FC 126
Montréal,
Quebec, January 31, 2008
Present:
The Honourable Mr. Justice Lemieux
BETWEEN:
BIENVENUE
KITSINGA
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
Several
minutes after his arrival at Pierre Elliott Trudeau Airport on
November 27, 2006, the applicant, Bienvenue Kitsinga, citizen of the
Democratic Republic of Congo (“Congo”), was the subject of a removal order
issued the same day by the Minister’s delegate following a report prepared
pursuant to subsection 44(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA), by immigration officer Josée
Cuerrier, who was of the opinion that the applicant was inadmissible to Canada
under section 41 of the IRPA because he had breached
paragraph 20(1)(b) of this same Act, as he was a foreign national
who had sought to enter Canada to obtain permanent residence without holding a
valid passport.
[2]
The
applicant is seeking to have this removal order set aside and seeking order
requiring Citizenship and Immigration Canada to refer his case to the
Immigration and Refugee Board.
FACTS
[3]
The
substance of the problem faced by the applicant is subsection 99(3) of the
IRPA, which provides that a claim for refuge protection may be made inside
Canada except by a person who is subject to a removal order [Emphasis
added.]
[4]
The
debate before me involved whether the removal order had been issued before the
applicant made his refugee claim. The applicant claimed that it was not; the
respondent submitted the contrary.
[5]
The
evidence pertaining to the relevant events at Pierre Elliott Trudeau Airport on
November 27, 2006, consists of:
(1)
the
affidavit of the applicant;
(2)
the
affidavit of Josée Cuerrier to which she attached her interview notes and the
notes of the customs inspector;
(3)
the
affidavit of Claude Beaudoin, immigration officer, who around 5 :30 p.m.
accompanied the applicant when he was transported by ambulance to the Centre
hospitalier de LaSalle where the applicant stayed for three days;
(4)
the
affidavit of enforcement officer Adriano Giannini referring to the computer
entries of the Minister’s delegate (the FOSS system);
(5)
the
certified tribunal record.
[6]
None
of the affiants were cross-examined. The evidence that is not contradicted by
the parties established the following facts:
(1)
The
applicant arrived in Montréal on November 27, 2006, on a Paris-Montréal Air
Transat flight;
(2)
At
approximately 2:34 p.m., he reported to customs inspector Martine Coderre.
He had a false passport issued to one Dadi Boduka. After the interview,
Martine Coderre referred the applicant to immigration because she had
serious doubts about the truthfulness of his statement regarding his country of
residence, Belgium, and also about the true purpose of his visit;
(3)
At
approximately 2:50 p.m., immigration officer Cuerrier began her interview with
the applicant. She also examined the applicant’s baggage and found many
documents, including curriculum vitae, all in the name of Bienvenue Kitsinga.
The applicant denied that he was Bienvenue Kitsinga, saying that he was his
brother. She confronted him, advising him that she did not believe his story;
he continued to say that his story was true;
(4)
Officer
Cuerrier went to consult the Minister’s delegate and recommended that she
remove the applicant because she believed that he had travelled with a document
that was not his and he did not have any other identification document;
(5)
The
applicant was interviewed by the Minister’s delegate at approximately
4:00 p.m. on November 27, 2006; officer Cuerrier was also there. The
Minister’s delegate verbally issued a removal order against the applicant after
he confirmed, once again, that he had travelled with his own passport.
ANALYSIS
(1)
The validity of the exclusion order
[7]
The
applicant is arguing that the removal order issued against him on November 27,
2006, is invalid. At the hearing, however, he abandoned his arguments to the
effect that subsection 99(3) is inconsistent with section 7 of the Canadian
Charter of Rights and Freedoms. He did not give the attorneys general the
notice required by section 57 of the Federal Courts Act,
R.S.C. 1985, c. F‑7.
[8]
In
his memorandum, the applicant argued that the Minister’s delegate
misinterpreted sections 41 and 21 of the IRPA and at the hearing
submitted only one piece of jurisprudence on the right to hearing. I must
dismiss all of his legal claims for which the standard of review is that of
correctness.
[9]
There
is no doubt that the exclusion order issued by the Minister’s delegate was
valid. As for the applicant’s proposed interpretation of the IRPA, this was
dismissed by Mr. Justice Pinard in Malongi v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1090, a matter remarkably similar to
the one before me, by Mr. Justice Blanchard in Elemuwa v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1026, and by
Mr. Justice Simon Noël in Li v. Canada (Minister of
Citizenship and Immigration), 2007 FC 941.
[10]
More
specifically, my two colleagues, in Malongi and Li, supra,
dismissed the applicant’s arguments regarding the invalidity of the verbal
removal order (see Malongi at paragraph 11, and Li at
paragraphs 40 to 52).
[11]
The
case law recognizes that the concept of procedural fairness is eminently variable
(Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817, at page 837).
[12]
In
fact, the applicant met with the Minister’s delegate and had the opportunity to
tell his entire story. In my opinion, the procedural fairness requirements were
respected in this case.
[13]
I
find that the exclusion order issued against the applicant was valid. In my
opinion, this exclusion in itself justifies the dismissal of this application
for judicial review, but as I stated, the arguments before me were in
particular about whether the applicant requested protection from Canada before
the exclusion order was issued.
(2)
Did the removal order precede the application for
protection?
[14]
As
stated, the applicant submitted that he claimed protection before the Minister’s
delegate had issued the exclusion order. The respondent argued that the balance
of probabilities established the opposite. Before me there is contradictory
evidence.
[15]
In
order to decide this issue, I must attentively examine the evidence before me.
[16]
It
is the applicant who has the burden of establishing the facts he alleges on a
balance of probabilities (Elemuwa, supra, at paragraph 16).
[17]
For
the reasons that follow, I find that the applicant did not advance clear and
credible evidence that he claimed refugee protection before the exclusion order
was issued against him.
[18]
He
states as follows on this point in his affidavit:
[translation]
13.
When I
arrived here, I had a Congolese passport in the name of Boduka Dadi, [sic].
I used this passport to travel, but it did not belong to me. A merchant friend
of my brother-in-law gave me the passport;
14.
After
crossing two borders, I arrived before an immigration officer whose name I do
not know. When I presented my travel document, she asked me to go sit down
while she verified my passport;
15.
After
awhile, I called an immigration officer to say that I had come to Canada to ask
for protection. It was an hour or an hour and a half after I had arrived in
Canada;
16.
The
immigration officer went to get the first woman who brought me to her office.
She asked me questions like: “Why didn’t you say so before? What is your
problem” I explained the problems that I had in the D.R.C.;
17.
She asked
me questions about my problems in the Congo. She asked me if I was married and
I said yes, the father of three children;
18.
I said
that I did not feel well, that I needed help. I was asked if I needed a nurse
and I said yes;
19.
After I
saw the nurses, they saw that I was not well and they called an ambulance to
bring me to the hospital. I spent three days at the hospital in Lasalle; That
is where I learned that I am now diabetic;
20.
I was
never told at the airport that there was an exclusion order against me. I was
given documents before leaving, but I did not read them. I thought that I was
being given protection because I had been brought to the hospital;
21.
I am still
very ill. My eyes hurt a great deal. I saw a doctor this morning because of my
problems;
22.
I believe
that I could not claim refugee protection at the airport because everything
happened so quickly. The lady who made the removal order never asked me if I
was in danger in my country. I fear for my life based on my political opinion
which is contrary to the current regime, I also fear ethnic cleansing in the
East of my country;
23.
I was informed
yesterday December 7 that I would be removed to Paris, and I think they
want to remove me to the Congo after. I do not understand why nobody will
listen to me.
24.
It is for
these reasons that I am asking for Canada’s protection because Canada is a
country that respects human rights and it is a democratic country where I can
express my ideas. The Congo is still in hell, and I fear for the worst if I
return to the country.
[19]
In
my opinion, the applicant’s affidavit is vague and ambiguous on the issue of when
he claimed refugee protection in Canada.
[20]
Second,
the respondent’s evidence is clear and precise on this issue. In particular,
the FOSS notes of the Minister’s delegate specifically state that it was only
after the exclusion order was issued that the applicant changed his story.
[21]
Specifically,
the affidavit of officer Cuerrier is more direct. After the interview by the
Minister’s delegate with the applicant, which the officer attended, it was she
who went to the waiting room where the applicant was in order to find out why
he felt ill. It was at that time that the applicant first requested Canada’s
protection.
[22]
On
its very face, as there was no cross-examination, I prefer the evidence
advanced by the respondent: it is of superior quality to the applicant’s;
it is also corroborated by other testimony and it is impartial; the applicant’s
evidence is vague.
[23]
The
applicant argued that during the interview he was tired and very ill, having
very recently escaped a prison in the Congo before beginning his long journey
to Canada.
[24]
The
applicant did not adduce any evidence regarding the state of his health except
for the fact that he was transported to the hospital after his interview. The
evidence appears to indicate that he suffers from diabetes but I have no evidence
of how this condition could have influenced his conduct during the interview.
Moreover, some doubt still lingers about when exactly the applicant escaped
from the Congo prison.
[25]
For
all of these reasons, I find that the removal order was issued before his
refugee claim was made.
JUDGMENT
THE COURT
ORDERS AND DIRECTS that this application for
judicial review is dismissed. No question of general importance was proposed.
“François
Lemieux”
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
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