Docket:
IMM-7316-12
Citation: 2013 FC 960
Ottawa, Ontario, September 18, 2013
PRESENT: The Honourable Madam Justice McVeigh
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BETWEEN:
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ABDULAQADIR MAGAN
(SAIAD ABDI)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the IRPA) of the decision dated
July 5, 2012, of Chuck Desjarlais, Enforcement Officer (the Officer) at Canada
Border Services Agency (CBSA) to issue an exclusion order against Abdulaqadir
Magan (the Applicant) for inadmissibility to Canada pursuant to subsection
41(a) and paragraph 20(1)(a) of the IRPA.
I. Preliminary Issues
A. Which Decision?
[2]
Prior to
hearing the parties’ argument, it was necessary to sort out exactly which
decision was before the Court. In the Application for Leave and Judicial
Review, found at page 1 of the Application Record, it said to review a decision
dated July 15, 2012, and yet the decision found in the Application Record at
page 4 was dated June 12, 2012. At the hearing, I confirmed with both parties
that the actual decision to be reviewed is that found in the Application Record
at pages 45 and 46 and is dated July 5, 2012.
B. Hearing
Update
[3]
I asked if
the Applicant was still being detained and was told that he has since been
removed to the United States of America and was incarcerated there for criminal
convictions.
[4]
The
Respondent, in a letter dated April 29, 2013, quashed the June 12, 2012
decision (IMM-7378-12), having determined that the Applicant’s claim for
refugee protection in Canada became ineligible for referral to the Refugee
Protection Division of the Immigration and Refugee Board (the Board) upon the undertaking
that the Applicant discontinued the judicial review of IMM-7378-12.
C. Amendment
to the Style of Cause
[5]
The
Respondent brought to my attention that the style of cause incorrectly refers
to the Respondent as the Minister of Citizenship and Immigration, and that it
should be amended to replace the Respondent as the Minister of Public Safety
and Emergency Preparedness. In a letter subsequent to the hearing, the parties
agreed that the style of cause should be amended. The amendment is by the authority
of “Order Setting out the Respective Responsibilities of the Minister of
Citizenship and Immigration and the Minister of Public Safety and Emergency
Preparedness Under the Act”, SI/2005-120. The style of cause will be amended
naming the Respondent as “The Minister of Public Safety and Emergency
Preparedness”.
II. Background
[6]
The Applicant
was picked up by CBSA on June 11, 2012, while walking along a highway in
southern Manitoba. He appeared to speak little English and said only “Winnipeg” and “Help”, although the officers who first interacted with him noted that they
suspected his English was better than he was attempting to portray.
[7]
On June 11,
2012, the Applicant was interviewed by CBSA at Emerson, Manitoba, the
Applicant’s port of entry into Canada. Officer Desjarlais and Officer
Olivier-Job, were in attendance at the interview. At that time, the Applicant
stated that he was Abdulqadir Magan, born January 25, 1984, and that he wanted
to make a refugee claim against Somalia. He also stated that he had been in
the United States for the last two months, and prior to that had been working
in Kenya and Nairobi. Finally, he stated that he had no friends or family in Canada, and that he had never been convicted of a crime in any country. When advised of his
right to counsel, the Applicant refused, and said that he may seek counsel at a
later date.
[8]
Following the
interview, the Applicant was arrested based on CBSA’s determination that the
Applicant would be unlikely to appear for further examination. The two
officers then drove the Applicant to Winnipeg. While en route, Officer
Olivier-Job received information from the United States Customs and Border
Control, via another CBSA officer, indicating that a fingerprint match
identified the Applicant as Saiad Abdi (also referred to as Saaid Abdi), who
was a United States permanent resident with a lengthy criminal record. When
they arrived in Winnipeg, the officers escorted the Applicant to the Winnipeg
Remand Centre to be kept in immigration detention.
[9]
On June 12,
2012, following the receipt of further information, Officer Olivier-Job found
the Applicant to be ineligible for refugee protection in Canada. He wrote a report under subsection 44(1) of the IRPA alleging that the Applicant
was inadmissible to Canada pursuant to subsections 41(a) and 20(1)(a) of the
IRPA, for failure to hold the required visa or other document necessary under
the regulations in order to establish permanent residence in Canada.
[10]
The
Applicant’s file was subsequently assigned to Officer Desjarlais, in his
capacity as a delegate of the Minister, to make a determination under
subsection 44(2) of the IRPA as to whether the inadmissibility finding was
well-founded. Upon reviewing the contents of the Applicant’s file, the Officer
found that the Applicant’s fingerprints had been matched to a set obtained in
the United States from a Saiad Abdi, born December 30, 1981 in Somalia. Saiad Abdi made an asylum claim against Somalia in the United States on May 28,
2003, which was granted on May 4, 2004. He became a permanent resident of the United States at that time, and was issued a permanent resident card, valid until January
13, 2019. The file also contained information that Saiad Abdi’s known aliases
were Abdulqadir Magan, and Abdulqadir Osman.
[11]
The Officer
set up an appointment with the Headingley Correctional Centre (HCC), where the
Applicant was now being held, to conduct the Minister’s Delegate’s review on
June 19, 2012.
[12]
The Officer
informed Lesley Heinrichs, the lawyer who had represented the Applicant at his
48 hour detention review, of the appointment, who advised that she would not be
in attendance. She had explained that as Legal Aid does not pay for her time to
go out to HCC for such a hearing, if the hearing does not go ahead that she
typically does not attend them. She asked that after the review she be provided
with the relevant documents.
[13]
On June 19,
2012, the interpreter that the Officer had scheduled to attend the review
cancelled. The Officer decided to attend the review anyhow in case the
Applicant was willing to proceed without an interpreter. However, the
Applicant did not want to proceed without an interpreter. The Officer therefore
adjourned the review, but before leaving attempted to confirm the Applicant’s
identity. The Applicant insisted that his name was Abdulqadir Magan. The
Officer showed him photos of an individual from the state of Ohio with the name
Saiad Abdi, DOB December 20, 1981. The photos had been obtained by CBSA (which
had in turn been obtained through a fingerprint match), were provided by the
United States Customs and Border Control Agency. While the individual in the
photos looked identical to the Applicant, the Applicant insisted that Saiad
Abdi, the man in the photos, was not him.
[14]
Lesley
Heinrichs sent a letter to CBSA dated June 20, 2012, explaining she was
investigating the possibility of the Applicant’s relatives posting bonds, and
she was in the process of obtaining names.
[15]
The Officer
rescheduled the review for June 22, 2012; however, on June 21, 2012, he
received a call from HCC that the Applicant was under “respiratory caution” and
would have to remain in isolation, so the June 22, 2012 appointment was
cancelled.
[16]
On July 3,
2012, the Officer made an appointment at HCC for July 5, 2012. Lesley
Heinrichs (who had provided a “Use of Representative” form to the Officer on
June 20, 2012 in anticipation of the June 22, 2012 appointment) was advised of
the new date by telephone. She did not indicate that she was no longer
representing him. She did not attend the July 5th, 2013 hearing, but in light
of the explanation she gave earlier, the Officer did not consider this to be
out of the ordinary.
[17]
When the
Officer began the review, the Applicant advised him that he did not wish to
answer any questions, and wanted his lawyer to answer questions for him. The
Officer informed him that Lesley Heinrichs would not be attending the review,
at which time the Applicant advised him that David Matas was his lawyer. This
was the first time that the Officer had heard that David Matas was the
Applicant’s lawyer. The Officer believed that the Applicant was trying to
further delay the review, because:
i)
The Officer
had not previously been advised that David Matas was the Applicant’s lawyer;
ii) The Officer had received a “Use
of Representative” form from Lesley Heinrichs;
iii) Lesley Heinrichs had not advised
the Officer that she was no longer representing the Applicant; and
iv) The Applicant had been
uncooperative with CBSA according to various emails on file.
[18]
The Officer
therefore informed the Applicant that he was prepared to proceed with the
review without the Applicant’s cooperation.
[19]
The
allegation contained in Officer Olivier-Job’s subsection 44(1) report that
formed the basis for the Officer’s review, was that the Applicant was a foreign
national who was seeking to remain in Canada without the required documentation
to do so. According to Officer Olivier-Job, when the Applicant was interviewed
at Emerson, Manitoba on June 11, 2012 and asked why he was in Canada, he answered “Peace. Refugee claim against Somalia.” The Officer therefore
determined that the Applicant was seeking to remain in Canada.
[20]
The Officer
knew from his interaction with the Applicant at Emerson on June 11, 2012, that
the Applicant did not have any documentation, which was confirmed in an email
from CBSA Officer Darren Kreller, who had initially arrested the Applicant in Canada. The Officer also determined that the Applicant was indeed Saiad Abdi. The basis
for that finding was verbal confirmation of the fingerprint match that had been
obtained by Officer Olivier-Job, as well as the information and photographs
obtained from the Ohio Attorney General.
[21]
The Officer
told the Applicant that he found him to be described as in the subsection 44(1)
report and issued an exclusion order. The Applicant refused to sign the order
and the interpreter signed as a witness to that fact.
[22]
Upon return
to his office, the Officer called David Matas and informed him that the
Applicant had stated that David Matas was representing him. David Matas
advised that he was indeed representing the Applicant. The Officer explained
that he did not have a “Use of Representative” form from him regarding the
Applicant, but in good faith the Officer shared the details of his dealings with
the Applicant with David Matas verbally in exchange for a “Use of
Representative” form.
[23]
The following
day, July 6, 2012, the Officer received a fax from David Matas, including the
“Use of Representative” form. The Officer noted that the form had been faxed
to the Appeals office and not the CBSA Winnipeg’s Hearings Unit on June 26,
2012, which explains the delay in receipt of receiving it. However, there were
no notations regarding this in the Applicant’s CBSA paper file, nor in “FOSS”,
CBSA’s electronic database of information. The Officer then faxed and emailed
all relevant documents to David Matas, who confirmed receipt via email.
III. Issue
[24]
Whether the
duty of fairness was breached because the Applicant was denied the right to
counsel?
IV. Standard
of review
[25]
The
appropriate standard of review for issues of procedural fairness is correctness
(Khosa v Canada (Minister of Citizenship and Immigration), 2009 SCC 12
at para 43) and as such, no deference is owed to the Officer (Canada (Attorney General) v Sketchley, 2005 FCA 404 at para 53).
V. Applicant’s Position
[26]
The Applicant
submits that he was not advised of his right to counsel prior to the July 5,
2012, Minister’s Delegate’s review, and that his lawyer was not notified of the
review. The Applicant claims he did not know what was happening at the review
and asked for the interview to stop so he could contact his counsel but the
officer refused.
[27]
Immigration
Manual ENF6 “Review of Reports under A44(1)” (the Manual) provides that
“[p]ersons do not have a right to counsel at removal order determinations and
eligibility determinations, unless they are detained. In all cases, however,
persons must be given the opportunity to obtain counsel at their own cost.”
Thus the Manual obliges the Officer to inform persons of their right to counsel
prior to commencing the interview.
[28]
The Applicant
submits that though the Manual cannot impose substantive duties on the
Respondent contrary to the IRPA, that there is a legitimate expectation that
this procedure will be followed. The Manual is available to the public, so it
is reasonable to conclude that a directly affected person has an expectation
that the Manual procedures will be included in the duty of fairness afforded
each person. The Applicant argues that failure to follow this procedure
violates the duty of fairness: see Hernandez v Canada (Minister of
Citizenship and Immigration), 2005 FC 429; Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[29]
At the
hearing, the Applicant provided a number of cases where applicants had
requested adjournments when they had no counsel at Refugee Protection Hearings.
[30]
The Applicant
in oral argument submitted that the eligibility matter should be re-determined,
since, in his view, if this matter was sent back a different result may be
possible.
[31]
The Applicant
says that under the conditional removal order under subsection 49(2) of the
IRPA, he could obtain after a successful eligibility hearing, is different than
the unconditional removal order he received following the Minister’s Delegate’s
review. The argument is that it is not for me to determine the outcome of his
status with different sequencing or his status in the United States in the future.
VI. Respondent’s
Position
[32]
The
Respondent agrees that a person in detention has to be notified of the right to
counsel for a Minister’s Delegate’s admissibility review, and on these facts
submits the Applicant’s right was respected.
[33]
The
Respondent submits that as set out in the affidavit of the Minister’s Delegate
Officer Desjarlais, the Applicant had been represented by Lesley Heinrichs at
prior hearings and she had provided the Officer with the “Use of
Representative” document. The Officer had communicated with Lesley Heinrichs
several times regarding the Applicant and scheduling admissibility review. She
had indicated she was representing the Applicant, but that she would not be
attending. Before the hearing, the Officer was not told by either Lesley
Heinrichs, or David Matas that the Applicant had changed counsel.
[34]
A Somali
translator was provided even though the Applicant’s English appeared to be much
better than he claimed, as evidenced by the transcripts of prior hearings. The
Applicant had not indicated he did not understand the translator.
[35]
The Respondent
further submits that even if this Court finds that the Applicant’s right to
counsel was breached, that this matter should not be sent back as the result of
this particular hearing was inevitable.
[36]
The
inadmissibility allegation in this case was that the Applicant was a foreign
national in Canada without the required visa or other documentation. The
evidence relied on by the Officer in making his determination was that the
Applicant had no documentation in his possession upon entering Canada, and he stated at the port of entry that his reason for being in Canada was “[p]eace” and to
make a “[r]efugee claim against Somalia”. Further, despite the Applicant’s
statements that he was not Saiad Abdi, the Minister had solid evidence that he
was in fact that person. The Respondent submits that sending this matter back
for re-determination in front of a different officer would result in exactly
the same result, given the provisions in the IRPA.
[37]
The
Respondent disagrees with the Applicant’s argument that the new eligibility
hearing will change anything and submits the results are inevitable as a result
of the evidence on hand that establishes the Applicant’s inadmissibility to Canada. The Applicant has convictions in the United States for improper handling of a weapon
in a motor vehicle and a warrant for not attending a sentencing on a different
matter. He has traffic violations starting in 2007, and continued interactions
with the criminal justice system right through to his arrest in Minnesota in April 2012. The Respondent said if on re-determination the Applicant is
determined to be admissible to Canada, (which is unlikely given the evidence
above), then at best he would still be subject to a removal order. While the
particular type of removal order in those circumstances may differ, the end
result would be exactly what occurred in that the Applicant was removed to the United States of America.
VII. Analysis
[38]
I do not find
that there was a breach of procedural fairness on these very unique and
particular facts.
[39]
The Applicant
had been informed of his right to counsel when he was first arrested on June
11, 2012, and had retained counsel that had filed a representative form. The
Officer had been in touch with his counsel to inform her of every hearing date
but did not give him rights to counsel at every stage of the process. I find
that he was not obligated to do so (Rebmann v Canada (Solicitor General),
2005 FC 310 at para 13 and Canada (Minister of Public Safety and
Emergency Preparedness), 2006 FCA 126 at paras 54-55).
[40]
There is no
evidence that the Applicant did or did not inform David Matas of the hearing
date. The only evidence is that David Matas did not attend the hearing though
he had presumably been retained by the Applicant on or before June 26, 2012.
[41]
There is no
evidence from Lesley Heinrichs as to when she was no longer his counsel. We
have evidence that the Officer had been told by Lesley Heinrichs that she did
not attend these hearings. We have correspondence from her dated June 20, 2012,
where she is attempting to find the Applicant’s relatives for bail and she
indicated that she is continuing to look. We have evidence that she was
contacted on July 3, 2012 with notice of the hearing to take place on July 5,
2012. We have no evidence that she responded to that call indicating she was
not his counsel.
[42]
It is clear
from the material filed that the decision maker considered the factors in Siloch
v Canada (Minister of Employment and Immigration) (1993), 151 NR 76 (FCA)
before he proceeded with the hearing even though those factors were set out in
the context of a RPD hearing and now codified in subsection 48 of the IRPA and
are not applicable to this decision. It was a Minister’s Delegate, Inland
Enforcement Officer doing an IRPA s. 44 admissibility review and not an RPD
hearing.
[43]
With no
notice of any change in solicitors clearly there was no procedural unfairness.
Accepting the Applicant’s submission on these extraordinary facts would be to
put no responsibility on the Applicant, and place the burden entirely on the
Respondent for matters well outside his control or role. There must be some
responsibility on the Applicant to ensure if he wants counsel at his hearing to
retain them to do so.
[44]
The Officer
proceeded with the hearing without David Matas but he did so believing that the
Applicant was represented by Lesley Heinrichs as he had a valid representative
form and with confirmation that the Applicant’s counsel would not be appearing,
and David Matas not contacting them to tell them otherwise. This was done in
the context that the Applicant had been less than forthcoming in other dealings
and had previously attempted to delay matters.
[45]
Even if I had
found that there was a breach of fairness, this matter is the exceptional case
that would be dismissed as the outcome of the case was inevitable (Yassine v
Canada (Minister of Employment and Immigration) (1994), 27 ImmLR (2d) 135
(FCA) refers at para 9 to the SCC in Mobil Oil Canada Ltd et al v Canada
Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 at para 228; Nagulathas
v Canada (Minister of Citizenship and Immigration), 2012 FC 1159 at para
24).
[46]
I find there
was no procedural unfairness and dismiss this application.
[47]
Certified
Question submitted by Applicant’s counsel: “Should an application for judicial
review of a decision be dismissed despite the breach of a duty of fairness
where the conclusion, without the breach, would have been the same or only
where the conclusion, without the breach, would, in a re-determination, be the
same?”
[48]
I will not
certify this question as it is not a serious question of general importance.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. The style of cause is
amended to replace Minister of Citizenship and Immigration as the Respondent
with the Minister of Public Safety and Emergency Preparedness.
2. The Application is
dismissed;
3. No
questions are certified;
4. No
costs are awarded.
"Glennys L. McVeigh"
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