Docket: IMM-2575-15
Citation:
2016 FC 405
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 12, 2016
PRESENT: The Honourable
Mr. Justice Shore
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BETWEEN:
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EVONNE MAY RIAHI
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of an
immigration officer’s decision dated May 18, 2015, whereby an exclusion
order was issued against the applicant under the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA].
II.
Facts
[2]
The applicant, Evonne May Riahi
(age 37), is a citizen of Bermuda. In 2002, the applicant married
Abdelhafid Riahi, a Canadian citizen, and they have a daughter together.
[3]
The applicant alleges that she has been going
back and forth between Canada and Bermuda on a tourist visa since 2001,
mainly for health reasons.
[4]
The parties do not agree on certain facts
important to this application for judicial review. It appears that the
applicant arrived in Canada on August 27, 2014, and obtained a visitor
visa with the condition that she leave Canada no later than February 27,
2015.
[5]
The appellant claims that she left Canada in
February 2015 to return the same day. In May 2015, the applicant and
her family went to the United States on vacation. Upon returning to Canada, on
May 17, 2015, they reported to the port of entry in Stanstead, Quebec, at
around 21:53. Unable to find any record of the applicant having left
Canada in February 2015 to return right away, the immigration officer made
an inadmissibility determination under subsection 44(1) of the IRPA since
the applicant breached the Act, specifically, subsection 20(1) of the
IRPA.
[6]
That alleged breach of subsection 20(1) of
the IRPA led to a one‑year exclusion order issued against the applicant
because she was unable to prove that she held a visa and other regulatory
documents required to enter Canada (see in particular subparagraph 228(1)(c)(iii)
and subsection 225(1) of the Immigration and Refugee Protection
Regulations, SOR/2002‑227 [IRPR]). The applicant left the Stanstead
Border Crossing Station at 02:43, on May 18, 2015. Less than an hour after
leaving the Stanstead Border Crossing Station, the applicant was arrested by
the Royal Canadian Mounted Police (RCMP) after she had crossed the Canada‑United
States border at a location other than a port of entry, by taking an unguarded
road. The applicant was brought to the Stanstead port of entry, handed over to
Canadian immigration authorities, and then transferred to the Immigration Holding
Centre [IHC] in Laval, Quebec.
[7]
According to the respondent, the applicant was
allegedly informed of her right to consult an attorney and her right to be
represented by counsel before the Immigration and Refugee Board with respect to
her being detained before she was transferred to the IHC, at around 20:20,
on May 18, 2015.
[8]
On May 20, 2015, following an
inadmissibility report issued against the applicant for her breach of her no
return without prescribed authorization, under subsection 52(1) of the
IRPA, a deportation order was issued against the applicant under
subparagraph 228(1)(c)(iii) of the IRPR.
[9]
Lastly, on June 25, 2015, the applicant
left Canada with her daughter, headed for Bermuda.
[10]
In her amended reply memoranda, the applicant
confirmed that she was only contesting the exclusion order and the
inadmissibility report that led to the exclusion order.
III.
Issues in dispute
[11]
The Court is of the opinion that this
application raises the following issues:
1)
Should the application for judicial review be
dismissed because the applicant does not have clean hands?
2)
Was the applicant’s fundamental right to
assistance from a counsel infringed?
3)
Are the inadmissibility report and the exclusion
order, both dated May 18, 2015, legal?
IV.
Analysis
A.
Applicant’s clean hands
[12]
The respondent argues that this Court should
dismiss the application for judicial review, without examining the application
on the merits, because the applicant does not have clean hands given the false
representations she made to a Canada Border Services Agency [CBSA] officer
about an important fact. For her part, the applicant argues that the clean
hands theory has been criticized in Quebec and that it is a dangerous theory.
[13]
The grant of an immigration judicial review is a
discretionary remedy which may be refused, without the Court having studied the
case on its merits, if the applicant’s hands are not clean (Sallam v. Canada
(Minister of Citizenship and Immigration), 2015 FC 427, at
paragraphs 16 and 17; Raslan v. Canada (Minister of Citizenship
and Immigration), 2010 FC 189, at paragraphs 14
and 18). The Federal Court of Appeal specified, however, that it is not
due to an applicant’s unclean hands that the Court must refuse to hear the
application on its merits (Canada (Minister of Citizenship and Immigration) v.
Thanabalasingham, 2006 FCA 14, at paragraph 9 [Thanabalasingham]).
When exercising its discretion, the Court is guided by the factors set out in
paragraph 10 of Thanabalasingham:
[10] In exercising its discretion, the
Court should attempt to strike a balance between, on the one hand, maintaining
the integrity of and preventing the abuse of judicial and administrative
processes, and, on the other, the public interest in ensuring the lawful
conduct of government and the protection of fundamental human rights. The
factors to be taken into account in this exercise include: the seriousness
of the applicant’s misconduct and the extent to which it undermines the
proceeding in question, the need to deter others from similar conduct, the
nature of the alleged administrative unlawfulness and the apparent strength of
the case, the importance of the individual rights affected and the likely
impact upon the applicant if the administrative action impugned is allowed to
stand. [My emphasis.]
[14]
In this case, at first glance the applicant’s
behaviour does not seem to reflect that of a person with clean hands, given the
inconsistencies identified by the respondent with respect to the applicant’s
allegations and behaviour. The applicant alleges that she left Canada in
February 2015 and returned the same day. For its part, the respondent
submits that the applicant knowingly lied to the Canadian authorities about her
departure in February 2015; in so doing, the applicant’s hands are not
clean. It is impossible for the Court to determine whether the applicant did in
fact leave Canada in February 2015 to return the same day, because no
evidence, not even a simple receipt or bank statement indicating purchases in
the United States, was submitted to the Court. Is the applicant trying to
voluntarily mislead the Court or is the applicant simply raising allegations
with no evidence to corroborate her statements? The Court does not know.
[15]
However, the fact that the applicant tried to
enter Canada illegally through a location other than a port of entry, by taking
an unguarded road less than one hour after having received an exclusion
order, shows contempt for the Canadian immigration system.
[16]
In her affidavit, the applicant states that she
has never been arrested, whereas the evidence unequivocally shows that after
she entered Canada illegally, the applicant was arrested and detained. It is
true that the applicant indicated in her amended reply memoranda that when she
mentioned that she had never been arrested, she was referring to her life in general,
not the incident of May 18, 2015. Nevertheless, this inconsistency raises
doubts about the truth of her entire story.
[17]
In short, although the Court is of the opinion
that prima facie sufficient reasons exist allowing the Court to exercise
its discretion to refuse to grant a judicial review, without reviewing the file
on the merits, the Court will nonetheless review the case given the applicant’s
alleged infringement of a fundamental right under the Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982,
comprising Schedule B of the Canada Act 1982 (UK), 1982, c. 11
[Charter].
B.
Right to counsel
[18]
The applicant argues that the fundamental right,
as set out in paragraph 10(b) of the Charter, the right to retain
and instruct counsel and to be informed of this right on arrest or detention,
was infringed. Given this alleged breach, the applicant is contesting the
validity of the exclusion order issued against her. The applicant acknowledges
that an interview with an immigration officer does not trigger a right to
counsel (Dehghani v. Canada (Minister of Employment and Immigration),
[1993] 1 S.C.R. 1053); however, she stated that her liberty had
been restrained, which thus invoked that right (Dragosin v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 81 [Dragosin];
Huang v. Canada (Minister of Citizenship and Immigration),
[2002] 3 F.C.R. 266, 2002 FCT 149; Chen v.
Canada (Minister of Citizenship and Immigration), 2006 FC 910).
The applicant said that she was detained when she was interrogated by the
officer on May 17, 2015, and therefore, her right to counsel and to be
informed of this right was infringed at that moment (Dragosin, above).
The applicant was allegedly not informed of this right until the exclusion
order was issued against her.
[19]
For its part, the respondent agrees with the
applicant that a person examined at a port of entry has not been “detained” within the meaning of paragraph 10(b)
of the Charter (Heredia v. Canada (Minister of Citizenship and
Immigration), 2010 FC 1215, at paragraphs 14‑15 [Heredia]).
The respondent therefore argues that the applicant was not in detention before
the exclusion order was issued, because between 21:53 on May 17, 2015, and
02:43 on May 18, 2015, the applicant was not arrested or detained.
[20]
Paragraph 10(b) of the Charter
states that everyone has the right on arrest or detention to retain and
instruct counsel and to be informed of that right. In this case, the applicant
argues that this right was infringed the moment she was examined by the
officer, given that her liberty had been restrained.
[21]
The Court has already acknowledged that a person
who is examined through the general screening process for persons seeking to
enter Canada is not in “detention” or under “arrest” within the meaning of paragraph 10(b)
of the Charter:
[14] The right to retain and instruct
counsel is protected under paragraph 10(b) of the Charter when a
person is under “arrest” or in “detention.”
[15] In Dehghani v. Canada (Minister
of Employment and Immigration), [1993] 1 S.C.R. 1053 (available
on CanLII), the Supreme Court held that a person seeking to enter Canada and
who is subject to an examination at the port of entry has not been “detained”
within the meaning of paragraph 10(b) of the Charter because the
examination is a routine part of the general screening process for persons
seeking to enter Canada and the element of state compulsion is not sufficient
to constitute a “detention” in the constitutional sense (see also Chen v.
Canada (Minister of Citizenship and Immigration), 2006 FC 910,
[2006] F.C.J. No. 1163). Moreover, at the hearing, counsel for the
applicant admitted that when the applicant was being examined by the CBSA
officer, he was not in “detention” within the meaning of paragraph 10(b)
of the Charter and did not benefit from the right to retain and instruct
counsel at that time.
(Heredia, above, at
paragraphs 14 and 15).
[22]
In this case, the applicant acknowledged that an
examination does not trigger the right set out in paragraph 10(b)
of the Charter, but she nevertheless argues that there was an infringement of
her right to retain and instruct counsel given that she had allegedly been “detained.” However, the applicant did not submit any
evidence to confirm her statements, namely, that she had apparently been
detained before the exclusion order had been issued against her. Moreover, no
evidence was submitted to the effect that the officers had allegedly deviated
from the procedures normally followed in this type of situation. Thus, the
applicant did not submit any evidence or argument as to why the Court should
not have applied the line of authority in which this type of examination does
not trigger the right to retain and instruct counsel.
[23]
For these reasons, the Court must dismiss the
applicant’s claims that her right to retain and instruct counsel, as set out in
paragraph 10(b) of the Charter, was breached.
C.
Legality of the inadmissibility report and the
exclusion order
[24]
Paragraph 20(1)(a) of the IRPA reads
as follows:
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Obligation on entry
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Obligation à l’entrée au Canada
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20. (1) Every foreign national, other
than a foreign national referred to in section 19, who seeks to enter or
remain in Canada must establish,
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20. (1)
L’étranger non visé à l’article 19 qui cherche à entrer au Canada ou à y
séjourner est tenu de prouver :
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(a) to become a permanent resident, that they hold the visa
or other document required under the regulations and have come to Canada in
order to establish permanent residence; and
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a) pour
devenir un résident permanent, qu’il détient les visa ou autres documents
réglementaires et vient s’y établir en permanence;
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(b) to become a temporary resident, that they hold the visa
or other document required under the regulations and will leave Canada by the
end of the period authorized for their stay.
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b) pour
devenir un résident temporaire, qu’il détient les visa ou autres documents
requis par règlement et aura quitté le Canada à la fin de la période de
séjour autorisée.
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[25]
The applicant argues that the immigration
officer’s decisions regarding the exclusion order and the inadmissibility
report are unreasonable because the immigration officer relied on erroneous
facts and a mischaracterization of the applicant’s situation when deciding that
the applicant had breached the IRPA. Thus, the applicant said that the officer
erred in his interpretation of subsection 20(1) of the IRPA because he
said that the applicant initiated procedures to obtain permanent or temporary
resident status. In her affidavit, the applicant stated that she had never
undertaken such steps.
[26]
For its part, the respondent argues that neither
the inadmissibility report nor the expulsion order was based on the fact that
the applicant had initiated procedures to obtain permanent or temporary
resident status, nor that the exclusion order was based on the fact that the
applicant had provided truthful answers to the questions she was asked during
her examination.
[27]
The immigration officer did not err in his
application of the IRPA. Subsection 20(1) of the IRPA is not ambiguous and
stipulates that a foreign national who seeks to enter or remain in Canada must
hold a visa or other required document:
Subsection 20(1) requires foreign
nationals who seek to enter or remain in Canada to possess a visa or other
document.
(B010 v. Canada (Minister of
Citizenship and Immigration), 2013 FCA 87, at paragraph 98).
[28]
With no evidence of the applicant having
actually left Canada in February 2015 to return the same day, the
immigration officer was correct in confirming that a breach had been committed
and that the applicant was inadmissible within the meaning of
subsection 44(1) of the IRPA. The applicant argues that the immigration
officer relied on erroneous facts by stating that she had made an application
for permanent residence in Canada. However, the applicant did not specify how
this alleged error had a material impact on the officer’s decision. It is
important to recall that the reasonableness of a decision must be examined from
the point of view of the outcome and the reasons; thus, this Court must examine
the immigration officer’s decision in its entirety and determine whether, with
regard to the facts and the law, the immigration officer’s decision falls
within a range of possible, acceptable outcomes:
[15] In assessing whether the
decision is reasonable in light of the outcome and the reasons, courts must
show “respect for the decisionmaking process of adjudicative bodies with
regard to both the facts and the law” (Dunsmuir, at paragraph 48).
This means that courts should not substitute their own reasons, but they may,
if they find it necessary, look to the record for the purpose of assessing the
reasonableness of the outcome. [My emphasis.]
(Newfoundland and Labrador Nurses’ Union
v. Newfoundland and Labrador (Treasury Board),
[2011] 3 S.C.R. 708, 2011 SCC 62, at
paragraph 15)
V.
Conclusion
[29]
The Court is of the opinion that the immigration
officer’s decision indeed falls within the possible outcomes with regard to the
law and the facts; consequently, the application for judicial review is
dismissed.
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