Date: 20080728
Docket: IMM-5319-07
Citation: 2008 FC 918
Ottawa, Ontario, July 28,
2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
MARLIN MITCHELL
and MAKIDA MITCHELL
(by her litigation guardian Marlin
Mitchell)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Mitchell is a citizen of Grenada. She came to Canada as a visitor
in September 2000. When her visa expired six months later she did not leave. In
November 2007, she met with Mr. MacDonald Scott, an immigration consultant, who
advised her that she might have a claim for refugee status when she told him
that she left Grenada due to the
domestic violence she had experienced there. Another appointment with the
consultant was to be arranged in order to assess the strength of her claim and
for the consultant to explain the process to her. Prior to that meeting taking
place, she and her young daughter were detained when a store employee believed
she had been shoplifting. The Toronto police were called but
no charges were ever laid. However, the Toronto police did contact
the immigration authorities concerning Ms. Mitchell while she was in their
custody, as it appeared she had no status in Canada.
[2]
The
immigration authorities arrested and detained Ms. Mitchell under section 55 of
the Immigration and Refugee Protection Act, S.C. 2001, on December 4, 2007.
A report was prepared by the Immigration Officer who detained Ms. Mitchell (the
“Section 44 Report”). The Officer concluded that Ms. Mitchell was inadmissible
to Canada as she had
overstayed her visitor’s visa. Following procedure, the Minister's Delegate
reviewed the Section 44 Report and interviewed Ms. Mitchell. Following that
review and interview, the Delegate issued a removal order.
[3]
Ms.
Mitchell asserts that the Delegate issued the removal order in breach and in
denial of her stated desire to make a refugee claim. Alternatively, she
asserts that section 99(3) of the Act, which prohibits the making of a refugee
claim after a removal order has issued, offends section 7 of the Canadian
Charter of Rights and Freedoms and is unconstitutional.
[4]
There
is a significant difference between the parties as to what occurred and what
was said during Ms. Mitchell’s detention by the immigration authorities.
Affidavits from Ms. Mitchell, Mr. Scott, the Officer and the Delegate were
filed and each affiant was vigorously cross-examined by counsel. Portions of
the cross-examination were referenced by both parties during the hearing of
this application and, as agreed, I have read the entire transcripts. Because
of the dispute between these parties, it is necessary to set out the material
facts alleged by each.
APPLICANTS’ EVIDENCE
[5]
Ms.
Mitchell states that she was referred to Mr. Scott by Access Alliance, an
agency that was assisting her. She met with him in November 2007. She told
him that her reason for leaving Grenada was domestic violence
and he told her that she may have a refugee claim. She states that she was to
have another appointment with Mr. Scott to assess the strength of her claim and
so he could explain the process to her. However, before she could meet with
him the second time, she was detained by the police and the immigration
authorities.
[6]
In
her affidavit she raises no claims with respect to her dealings with the
Officer. On cross-examination she recalls that the Officer told her that she
had a right to contact the Grenada government: apparently
a reference to her Vienna Convention rights. She states that he did not tell
her that she had a right to speak to a lawyer or a representative nor did she
say that she wanted to speak to counsel. She testified: “At the present time,
I didn’t think I need a lawyer”.
[7]
She
attests that on Friday, December 7, 2007, she met with the Delegate. Ms.
Mitchell states that the first question the Delegate asked was whether she had
a lawyer. She said that she did, gave her Mr. Scott’s name, and said that she
wished to speak to him. She states that the Delegate told her that she was
only going to ask basic questions and that “she didn’t really need a lawyer”.
In cross-examination, Ms. Mitchell expanded on this, saying that when she told the
Delegate that it would be 15 minutes before Mr. Scott could arrive, the
Delegate said that would be too late and she wanted only to ask basic
questions. She further says that she told the Delegate “I have a right to talk
to him” and that she informed her that while she did not know his phone number
she could contact Access Alliance and they could reach him. Again, she says
that the Delegate said that she did not need a lawyer.
[8]
Once
the formal meeting with the Delegate started, Ms. Mitchell recalled being asked
her name and date of birth “and then I tell her I want to file refugee [claim]”
and that she was afraid for her life because she had been in a controlling
relationship with her boyfriend. She asserts that the Delegate replied “It’s
too late for that” as she had started the paperwork.
[9]
After
20 minutes of questioning she was given the Section 44 Report and the removal
order which, when asked, she signed. She was then given a document that informed
her of her right to file a judicial review application.
[10]
In
her affidavit she states that she immediately went to see Mr. Scott after her
release although in her cross-examination she testified that after her release
she contacted Access Alliance and was told that she should book an appointment
with Mr. Scott, and that she called him and set an appointment.
[11]
Mr.
Scott’s affidavit and evidence in cross-examination confirms that the two met first
in November and that she had been referred to his office for a free consultation
by Access Alliance. He recalls informing her of the possibility that she might
file a refugee claim. He asked her to bring her documents when she returned
for her next appointment. He attests that he gave her his business card and
told her that she should call him if she was picked up by Citizenship and Immigration
Canada. The next he heard from her was after her release by immigration
authorities. She came to his office the day after her release, with no
appointment, and informed him of what had happened. He states that he asked
her whether she had told the officer who interviewed her that she was afraid to
return to Grenada and attests that “the Applicant made it clear to me that she
told the Officer at the first opportunity that she was at risk in Grenada, and could
not return there”.
RESPONDENT’S EVIDENCE
[12]
The
Officer attests that when he met Ms. Mitchell at the police station he informed
her of her rights under the Vienna Convention and her right to counsel. The
form he signed indicating that this advice had been given to Ms. Mitchell was
not signed by her, although it has a line for the detainee’s signature. His
explanation on cross-examination was that it was probably an oversight on his
part not to get her signature. On cross-examination he testified that he asked
her, as he routinely does, whether she wanted to call anyone – whether she had
anyone representing her whom she wished to call. He states that she provided
no information with regards to any representative.
[13]
The
Delegate states in her affidavit that the first question she asked Ms. Mitchell
was whether she required an interpreter. Her questions followed those in the Minister’s
Delegate Review form and she wrote the material responses from Ms. Mitchell on
that form. The next question on the form is “Is counsel present?”. The
Delegate stated that she advised Ms. Mitchell that she had a right to have counsel
at the interview, that she was going to be asking questions about the Section
44 Report to determine its validity “and that it was not necessary to have
counsel present”. She testified that Ms. Mitchell said that she wished to
proceed without counsel.
[14]
After
confirming the accuracy of the details in the Section 44 Report, the Delegate asked
Ms. Mitchell why she didn’t leave Canada when she was supposed to
leave. Her note on the form and her evidence is that Ms. Mitchell said that
she had gotten to like it so she decided to stay. She asked Ms. Mitchell if
she had any questions and Ms. Mitchell said that she had none.
[15]
Then
she asked the last question on the form – “Do you fear returning to Grenada for any
reason?”. The Delegate testified that Ms. Mitchell said that she had no fear of
returning to Grenada and the
Delegate wrote down that response on the form. On cross-examination she denied
that Ms. Mitchell ever stated that she had any fear of returning to Grenada. She
further denied that Ms. Mitchell ever said that she wished to make a refugee
claim. The Delegate prepared the removal order and had Ms. Mitchell sign it.
[16]
The
Delegate testified on cross-examination that as Ms. Mitchell was leaving the
interview room “she mumbled something about a refugee claim” to which the
Delegate responded “it’s too late for that; you cannot make a refugee claim
now”.
ISSUES
[17]
The
Applicants raised a number of issues which I have restated as follows:
a. Whether the Delegate
erred in issuing the removal order and in rejecting the Applicant's claim for
refugee status;
and
b. Whether subsection
99(3) of the Act violates section 7 of the Charter and is therefore of no force
or effect?
Whether
the Delegate erred in issuing the removal order and in rejecting the Applicants’
claim for refugee status?
[18]
Section
99(3) of the Act provides that a person who is subject to a removal order
cannot make a claim for refugee protection:
|
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.
|
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.
|
[19]
The
Respondent’s position is that Ms. Mitchell made no reference to wishing to make
a refugee claim until after the removal order had been issued by the Delegate.
When she did, it was too late because section 99(3) of the Act prohibits the
making of a refugee claim after the removal order has issued. The Respondent
further submits that Ms. Mitchell gave no indication in her meeting and
interview with the Delegate that she had any fear of returning to Grenada and thus
there was no need to further explore whether a refugee claim might be made.
[20]
Ms.
Mitchell’s evidence is that she told both the Officer and the Delegate that she
wished to have counsel present. She claims that she was denied that right by the
Delegate, in particular. The Delegate states that Ms. Mitchell was informed of
her right to counsel and was told that it was not necessary and that Ms.
Mitchell agreed to continue without counsel. Ms. Mitchell’s evidence is that
she told the Delegate that she wished to seek refugee protection prior to the
removal order issuing but was denied that right. She was told that it was too
late to advance that claim.
[21]
The
burden is on Ms. Mitchell to establish on the balance of probabilities her contention
that the Delegate issued the order despite the fact that a claim for refugee protection
had been made. In essence, she claims that by failing to receive a claim for refugee
protection, an immigration officer acted contrary to the Act and to Canada's international
obligations. She questions both the Delegate’s integrity in claiming that she
refused the claim for protection and the Officer’s integrity in claiming that
he denied her the right to counsel. In order to prove such allegations, the
facts upon which they are based must be established by Ms. Mitchell. In my
view she has failed to discharge her burden of proof.
[22]
The
only evidence supporting Ms. Mitchell’s allegations is her own evidence. She
claimed for the first time in her cross-examination that the Officer failed to
inform her of her right to counsel. She made no such allegation in her
affidavit filed in support of this application. Given the significance of such
an allegation and the failure to assert it earlier when she was represented by
counsel, suggests that it is a recent fabrication by her to lend support to her
claim that her rights were infringed.
[23]
Further,
while the Officer failed to have the Section 44 Report signed by Ms. Mitchell,
it was prepared within hours of their meeting and in advance of any claim by
her that he had acted improperly. The Section 44 Report he prepared supports
his evidence that he advised Ms. Mitchell of her Vienna Convention rights and
her right to counsel. Ms. Mitchell’s evidence on cross-examination supported
his evidence that she was advised of her Vienna Convention rights. It is
surprising that Ms. Mitchell would testify that she did not think she needed a
lawyer when detained by the immigration authorities when her consultant had
just recently advised her to do just that if detained.
[24]
No
evidence has been offered nor any submission made however speculative, as to
why the Officer might provide false evidence or fabricate the facts.
[25]
Similarly,
the Delegate prepared notes contemporaneous with her interview of Ms.
Mitchell. These notes support her assertion that Ms. Mitchell said that she
had no fear in returning to Grenada and, inferentially,
that no refugee claim was made until after the removal order issued. As with
the Officer’s evidence, no evidence has been offered nor any submission made
however speculative, as to why the Delegate might provide false evidence or
fabricate the facts.
[26]
At
the hearing, both counsel engaged in an examination of the evidence of the
witnesses from their affidavits and the transcripts of the cross-examinations,
pointing out alleged inconsistencies, with a view to supporting their own
client’s position. While there were some minor variances in evidence, I am of
the view that they offer little to support the position of one party or the
other. In my
opinion, the fact that the Section 44 Report and the Minister’s Delegate Report,
which corroborate the testimony of the Officer and the Delegate, were contemporaneous
is a sufficient reason to prefer their testimony to that of the Ms. Mitchell.
[27]
Accordingly,
Ms. Mitchell has failed to establish, on the balance of probabilities that she
made any request for counsel or that she made a refugee claim prior to the
removal order issuing. In fact, in saying that she had no fear in returning to
Grenada, Ms. Mitchell made
it clear that she had no basis for a refugee claim.
Does subsection 99(3) of
the Act violate section 7 of the Charter?
[28]
The
Applicants submit that the Charter has two applications to the facts at hand. Firstly,
it is submitted that section 99(3) of the Act violates the Charter in denying a
person the right to make a refugee claim after a removal order has been filed.
Secondly, it is submitted that the application of section 7 requires that an
officer expressly inform a person of the right to make a refugee claim, the
consequences of making or not making the claim, and obtain the waiver in
writing.
[29]
The
Applicants rely on the decision of the Supreme Court of Canada in Singh v. Canada (Minister of
Employment and Immigration), [1985] 1 S.C.R. 177, as authority for the
proposition that a request to make a refugee claim triggers the Charter. That
decision dealt with persons who had made a claim for refugee protection under
the former Act. The Supreme Court held that the procedure under the former Act
for determining refugee claims was inconsistent with the requirements of
fundamental justice described in section 7 of the Charter in that they failed
to provide the applicant an adequate opportunity to state his case and to know
the Minister’s case.
[30]
In
Singh the applicants made an application for refugee status and it was
processed in accordance with the procedures that the former Act provided.
Here, the Applicants never made a claim for refugee protection under the Act
because section 99(3) intervened when that claim was advanced. Thus, it was
never processed.
[31]
More
importantly, as counsel for the Respondent submitted, the Charter is not
engaged at the eligibility determination stage: Soe v. Canada (Minister of
Citizenship and Immigration) et al., 2007 FC 671, and the
authorities cited therein. There is no denial of the right to life, liberty
and security of the person or the deprivation of those rights in denying a
person the right to make a refugee protection application. That person’s
Charter rights under section 7 are brought into play when there is to be a
removal to the country of origin. At that point there will be a Pre-Removal
Risk Assessment made to determine if the removal to the home country poses any
risk to the person.
[32]
Accordingly,
I find that section 99(3) does not offend section 7 of the Charter.
[33]
The
Applicants further submit that since a refugee protection claim triggers
section 7 of the Charter a claimant must be accorded fundamental justice which includes
the notion of procedural fairness. It is submitted that procedural fairness
dictates that an officer considering issuing a removal order must expressly
inform a person of the right to make a refugee claim, what such a claim means
and if the right to such a claim is waived, obtain that waiver in writing.
[34]
The
waiver of right to counsel occurred during the removal order process. This
Court has held that section 7 rights are not engaged during this process: Mursal
v. Canada (Minister of
Immigration and Citizenship), 2003 FC 995. Accordingly, I find that
there has been no Charter violation in the facts of this case.
CONCLUSION
[35]
This
application is dismissed.
CERTIFIED QUESTIONS
[36]
The
Applicants ask that the following questions be certified:
1. Is
the prohibition to make a claim for Convention refugee status under s. 99(3) of
the Immigration and Refugee Protection Act, S.C. 2001, unconstitutional
owing to a violation of s. 7 of the Charter?
2. Does
an immigration officer conducting an inadmissibility interview (or a Minister’s
delegate review officer) have the authority to make a section 52 of the Charter
determination applicable only to the party (parties) before it, the effect of
which, as recognized in, inter alia, Kaur and Grewal, would
be to exempt the party (parties) from the application of s. 99(3) of the Immigration
and Refugee Protection Act, S.C. 2001, on constitutional grounds?
3. Does an
immigration officer under s. 99(3) of the Immigration and Refugee Protection
Act, S.C. 2001 have a duty pursuant to s. 7 of the Charter to obtain an
informed, explicit and expressed waiver namely a written waiver for the right
to make a refugee claim?
[37]
The
Respondent was permitted an opportunity to respond in writing to the
Applicants’ proposed certified questions. The response filed was detailed and
lengthy. Much of the response constituted a repetition of the oral argument
made at the hearing on the merits. I focused my consideration of the response
to that part dealing with the issue of whether the questions proposed transcend the
interests of the parties to the litigation, contemplate issues of broad
significance or general application and, would be determinative of the appeal.
[38]
Proposed
questions #1 and #3 essentially raise the issue of the application of section 7
of the Charter to removal orders under the Act. It has previously been established
that the making of a removal order does not engage section 7 of the Charter: Rodrigues
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1055; Berrahma v. Canada
(Minister of Citizenship and Immigration), [1991] F.C.J. 180, 132 N.R. 202,
and thus these proposed questions do not address an issue of broad
significance or general application that would be determinative of the appeal.
[39]
The
Federal Court of Appeal in Gwala v. Canada (Minister of Citizenship and
Immigration),
[1999] 3 F.C. 404, has determined that an officer has no jurisdiction to make a
determination of law as would be required if the officer were to exempt a party
from the application of subsection 99(3) of the Immigration and Refugee
Protection Act pursuant to section 52 of the Charter. Accordingly, proposed
question #2 does not meet the criteria to be certified question.
[40]
In
any event, on the facts of this case none of these questions would be
determinative of an appeal as Ms. Mitchell had already stated that she had no
fear in returning to Grenada prior to uttering the
word “refugee”. As her counsel correctly accepted, section 99(3) of the Act is
intended to prevent abuses. The situation of Ms. Mitchell would be such an
abuse, having already indicated that she had no basis for any legitimate
refugee claim.
[41]
Accordingly,
no question is certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for
judicial review is dismissed and no question is certified.
“Russel W. Zinn”
Email this Content