Docket: IMM-5856-15
Citation:
2016 FC 832
[ENGLISH
TRANSLATION]
Ottawa, Ontario, July 20, 2016
PRESENT: The Honourable
Mr. Justice Annis
|
BETWEEN:
|
|
FARAH SULAIMAN
|
|
MONA ALSAYED
|
|
ADNAN ALSAIED
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review made
under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 [IRPA] of a decision made by a Canada Border Services
Agency officer [the officer], stating that the applicants were not eligible
under any of the exceptions set out by the Safe Third Country Agreement,
and excluding the applicants from Canada for a period of one year for
contravention of subsection 20(1) of the IRPA.
II.
The facts
[2]
The principal applicant, Ms. Farah Sulaiman,
is a stateless Palestinian who was born in Saudi Arabia. The applicants
Mona Alsayed and Adnan Alsaied are her children, who are minors and
citizens of Syria.
[3]
The applicant’s husband, Rami Elsayed, is a
Syrian citizen who is currently working in Saudi Arabia. He has a resident
permit in Saudi Arabia, which is tied to his job.
[4]
On November 16, 2015, the applicant
entered the United States along with her children, using a visitor’s visa. The
applicant’s husband was unable to accompany the applicants, as his employer
refused to let him leave Saudi Arabia.
[5]
On November 21, 2015, the applicant
arrived at the Lacolle border crossing station with her children, with the goal
of claiming refugee protection in Canada.
[6]
On November 22, 2015, the officer
issued the applicant an exclusion order for a period of one year.
III.
Issues in dispute
[7]
There are two (2) issues in dispute:
1) Did the officer violate the applicants’ right to an interpreter and
their right to counsel?
2) Did the officer err in determining that the applicants did not fall
under one of the exception categories pursuant to the Safe Third Country
Agreement?
IV.
Analysis
[8]
The standard of review for questions of the
right to counsel and the right to an interpreter is the standard of
correctness, since these rights are protected by
sections 10 and 14 of the Canadian Charter of Rights and
Freedoms (Dunsmuir v. New Brunswick, 2008 SCC 9, at
paragraph 58 [Dunsmuir]). The standard of review for questions of
fact and questions of mixed fact and law is the standard of reasonableness [Dunsmuir,
at paragraph 166].
A.
Did the officer violate the applicants’ right to
an interpreter and their right to counsel?
[9]
The principal applicant claims that she did not
fully understand what was said during the interview with the officer, which
took place in English. She also claims that she was not offered the services of
a lawyer or an interpreter. She maintains that she informed the officer that
her understanding of English was limited, even requiring the officer’s
assistance to complete the forms, and that she did not understand the nature or
consequences of the documents that she was required to sign.
[10]
For its part, the respondent maintains that the
officer’s notes clearly indicate that the principal applicant spoke fluent
English and that it is possible to master a language and not fully understand
certain questions from time to time.
[11]
I share the respondent’s point of view in this
regard. The attached notes from the officer’s affidavit, describing the
applicant’s answers to questions, show that the principal applicant understood
English. It is clear that she would not have been able to participate and
answer the questions posed by the officer during the interview in the same way
if she had not understood what was happening.
[12]
Furthermore, the principal applicant has not
provided evidence of any reason to doubt the veracity of the officer’s notes.
The officer is presumed to be a disinterested party within the context of
immigration proceedings. There is therefore no reason to doubt, in the
circumstances, that an interpreter was in fact offered to the applicant.
[13]
Regarding the issue of the right to counsel, I
am of the opinion that the applicant did not have such a right, given that she
was neither being detained nor arrested, and was free to return to the United
States. The facts show that the applicant underwent a routine interview to
identify the reasons why she wished to enter Canada and to determine whether
she met the admission criteria: Heredia v. Canada (Citizenship and
Immigration), 2010 FC 1215, at paragraph 13:
[13] In addition, this was a routine
examination to identify the reasons why the applicant sought to enter Canada
and to determine whether he met the requirements for admission. It is important
to remember that the applicant entered Canada as a stowaway and had no identity
documents in his possession. The examination was of an administrative nature
and the CBSA officer was under no legal obligation to inform the applicant of the
possibility that an exclusion order could be issued against him or of the
consequences of such an order.
[14]
The officer therefore did not violate the right
to an interpreter, nor the right to counsel in the circumstances.
B.
Did the officer err in determining that the
applicants did not fall under one of the exception categories pursuant to the
Safe Third Country Agreement?
[15]
The Safe Third Country Agreement allows
four types of exceptions, including one for refugee claimants who have family
members in Canada. The Agreement defines a family member as a:
•
spouse;
•
legal guardian;
•
child;
•
father or mother;
•
brother or sister;
•
grandfather or grandmother;
•
grandchild;
•
uncle or aunt;
•
nephew or niece;
•
common-law partner;
•
same-sex spouse.
[16]
The principal applicant declared to the officer
that her husband had uncles in Canada. She maintains that these individuals are
also her uncles through marriage and that the text of the Agreement does
not define the word “uncle.” Since ties by
marriage are not excluded, she argues that she and her children should have
been admitted under the family member exception.
[17]
Yet, the Court notes that the applicant’s
position does not correspond with the usual meaning of the word “uncle.” The Petit Robert defines this words as
follows:
Le frère du père ou de la mère, et par ext.
Le mari de la tante. [Translation:
The father’s brother or mother’s brother, and by extension, the aunt’s
husband.]
[18]
In English, the Canadian Oxford Dictionary
defines it in similar terms:
. . . the brother of one’s father or mother .
. . an aunt’s husband.
[19]
It is therefore quite clear that this word
refers to blood relations between the individuals and does not include the
uncles of the applicant’s husband, who are therefore not, with respect to her
or her children, family members within the meaning of the Agreement. It
was therefore reasonable for the officer not to admit the applicants to Canada
and to exclude them for a period of one year.
V.
Certified question
[20]
At the hearing, the applicant proposed a
certified question to define the word “uncle” within
the meaning of the Agreement. Since “uncle-in-law” and “aunt-in-law” are
not widely recognized relationship ties, I see no serious question of general
importance to certify.
VI.
Conclusion
[21]
The application for judicial review is dismissed
and no question is certified.
Email this Content