Docket: IMM-1222-17
Citation: 2018 FC 356
[ENGLISH TRANSLATION]
Ottawa, Ontario, March 29, 2018
PRESENT: The Honourable Mr. Justice LeBlanc
| BETWEEN:
|
| FATIMA ANTAKLI AND MARYA ABOU AND
ADEL ABOU
|
| Applicants
|
| and
|
| THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
| Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
Pursuant to paragraph 101(1)(e) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (the Act), a refugee claim is ineligible if the claimant comes directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence. The United States is a “country designated by the regulations”
through the combined effect of the Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries, entered into by the two countries on December 5, 2012 (commonly called the Safe Third Country Agreement (the Agreement)) and section 159.3 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
[2]
Under the terms of the Agreement, refugee claimants are required to submit their refugee claim in the first safe country in which they arrive. Here, this is the United States. There are exceptions, however. Thus, pursuant to paragraph 159.4(1)(a) of the Regulations, the Agreement does not apply to a refugee claimant who seeks to enter Canada at a “location that is not a port of entry”
. If the refugee claimant does not fall within this exception because they arrive in Canada at a “port of entry”
, other exceptions to the Agreement—set out in section 159.5 of the Regulations—can apply. Thus, the Agreement, and consequently paragraph 101(1)(e) of the Act, will not apply if, for example, a member of the refugee claimant’s family is already in Canada and has the status of a Canadian citizen, a permanent resident or a protected person, or makes a refugee claim there.
[3]
It is common ground in this case that the applicants do not fall within any of the exceptions set out in section 159.5 of the Regulations. Thus, this matter only involves the exception set out at paragraph 159.4(1)(a) of the Regulations.
II.
Background
[4]
The applicants, Syrian citizens Fatima Antakli and her two minor children, Marya and Adel, maintain that they entered Canada on March 2, 2017, from the United States, at a “location that is not a port of entry”
precisely in order to avoid the application of the Agreement. They are making a refugee claim because they say they fear the Syrian security forces, a fear that forced them to leave Syria in 2007 for Saudi Arabia, where Ms. Antakli’s husband was able to find work. Indeed, it was apparently the loss of this job that forced them to leave Saudi Arabia for the United States in mid-February of 2017. They said they did not wish to make a refugee claim with the American authorities, as required by the Agreement, because of the current American president and the violence in that country.
[5]
In her sworn affidavit supporting this application for judicial review, Ms. Antakli says it was always her intention to settle in Canada since, she says, refugees are treated fairly and with dignity there. Thus, after she and her husband explored various ways to enter Canada to claim refugee status here, she says she chose to cross the border at a location other than a port of entry. To do this, and even though her husband had already made his way to Canada and she was still in Chicago with her two children, she says she flew, with the children, to Plattsburgh, in New York State. She says that a taxi driver at the Plattsburgh airport agreed to take her and her children very close to the Canada-US border, in the vicinity of the village of Matthias. From there, she says she crossed the border “on foot following the route”
. Ms. Antakli explained that once she was in Canada, she was intercepted by “Canadian police officers”
and taken, together with her children, to the St-Armand port of entry after having waited 30 to 45 minutes for “a car”
to come and get them. She says she told the police when she was stopped that she wanted to make a refugee claim, which she says she did once she reached the St-Armand port of entry.
[6]
On March 3, 2017, a delegate of the Minister of Public Safety and Emergency Preparedness posted to the St-Armand port of entry, in Quebec, Marianne Tremblay (Officer Tremblay), determined that the applicants’ refugee claim was ineligible on the basis that they were not entitled to the exception set out at paragraph 159.4(1)(a) of the Regulations, nor to those set out at section 159.5 of the Regulations. Satisfied that they did not hold the visas or immigration documents required for entry and residence in Canada, she also issued a removal order against them.
[7]
As concerns her decision regarding the exception set out at paragraph 159.4(1)(a) of the Regulations, Officer Tremblay’s file at that time contained a note recorded in the Global Case Management System (GCMS), as well as a handwritten note from Hakim Hellal (Officer Hellal), the officer who processed the applicants’ refugee claim on their arrival at the St-Armand port of entry, saying that the applicants first presented themselves at the Noyan port of entry, on the Canada-Vermont border, before being escorted to the St-Armand port of entry. The note recorded in the GCMS reads as follows:
[translation]
The subject arrived at Noyan PE and made a refugee claim. She was taken to St-Armand PE for processing of her claim. She stated that she had a family member in Canada, a husband with visitor status. She has no other family members in Canada and does not meet any other exceptions under the Safe Third Country Agreement. Local file number: 2557-Rxclusion-707 MXT042.
(Certified Tribunal Record (CTR), at p. 10)
[8]
In an affidavit she filed in the context of this application for judicial review, Officer Tremblay says that the conclusion she reached as to where the applicants crossed the Canada-US border was also based on entries recorded in the Integrated Customs System, which indicated that the applicants’ passports had been “read”
at the Noyan port of entry, thus corroborating the GCMS note and Officer Hellal’s handwritten notes.
[9]
The affidavits of Officer Hellal and Dominic Picard (Officer Picard), who was one of the two officers on duty at the Noyan port of entry when the applicants appeared there on March 2, 2017, were also filed by the respondent in the course of this judicial review. In his affidavit, Officer Picard said, in essence, that he had seen the applicants arrive on foot, with their luggage, at the Noyan port of entry guardhouse.
[10]
The applicants invite the Court to prefer their version of the facts surrounding their arrival in Canada to that of the respondent. They argue that the respondent’s evidence is problematic in a number of respects. As for Officer Tremblay’s affidavit, they maintain that it is based on hearsay and that it thereby contravenes section 12 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22) which requires that affidavits filed in connection with an application for leave shall be confined to such evidence as the deponent could give if testifying as a witness before the Court. They also maintain that this affidavit adds to the reasons for Officer Tremblay’s decision, which is not permitted. They also criticize Officer Tremblay for not having kept Officer Hallal’s notes and the other officers involved in their file for not having recorded the notes, contrary to the respondent’s operational manual for enforcing the law.
[11]
Furthermore, the applicants contend that the cross-examinations of Officer Tremblay and Officers Picard and Hellal show that Officer Tremblay’s decision [translation] “was made without actual knowledge of the facts and without real consideration of the applicants’ situation”
. They maintain in this regard that it is [translation] “the duty of the officers, when making decisions of such vital importance, is to ensure that they have sufficient information with which to make them, but in addition, they have the duty to be able to prove that information”
(Applicant’s memorandum of argument, at para 23).
[12]
Finally, the applicants are of the view that if the Court were to prefer the respondent’s evidence, the exception at paragraph 159.4(1)(a) of the Regulations would still apply to them since for it to be applicable, they claim it is enough to show an intention to make a refugee claim at a location other than a port of entry, even if that intention does not materialize.
III.
Issue and standard of review
[13]
This dispute raises only one issue, that of determining whether Officer Tremblay, in determining that the exception set out at paragraph 159.4(1)(a) of the Regulations did not apply to the applicants’ case, erred in a manner that justifies the intervention of the Court.
[14]
It is settled law that the eligibility determination of a refugee claim raises mixed questions of fact and law and that the resulting decision is reviewable on a reasonableness standard (Biosa v Canada (Public Safety and Emergency Preparedness), 2014 FC 431 at para 16; Jeudi Alfred v Canada (Public Safety and Emergency Preparedness), 2017 FC 984 at para 12). This means that the Court will only intervene if the impugned decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
IV.
Analysis
[15]
As I mentioned, the applicants criticize Officer Tremblay, in essence, for having rejected the exception set out at paragraph 159.4(1)(a) of the Regulations [translation] “without actual knowledge of the facts and without real consideration of the applicants’ situation”
.
[16]
It is settled law that in principle, only the evidence that was before Officer Tremblay can be considered by the Court in determining whether there are grounds for intervention (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 19 [Access Copyright]). The assertion regarding the applicants’ entry into Canada is supported in the Ms. Antakli’s affidavit. However, was this evidence before Officer Tremblay?
[17]
It is important to recall that under subsection 100(1.1) of the Act, it is up to the refugee claimant to prove the eligibility of his refugee claim, just as it is up to him, when challenging a determination of ineligibility before the Court, to show that the decision-maker committed an error that justifies the intervention of the Court.
[18]
Thus, did Ms. Antakli state her assertion when she found herself before the Canadian authorities on March 2 and 3, 2017? Nothing is less certain. As the respondent emphasizes in its supplementary memorandum, if, as she claims in her affidavit, Ms. Antakli and her two children were apprehended by Canadian authorities on Canadian soil before being taken to the St-Armand port of entry, she should have raised it at the first opportunity during the interviews she had with the officers on duty at the St-Armand port of entry or at the Noyan port of entry, if one accepts that she went there before being escorted to St-Armand.
[19]
In fact, there is no trace in the CTR of this crucial component of the applicants’ assertion. In her affidavit, Officer Tremblay relates that Ms. Antakli [translation] “reported having paid $300 USD for a taxi to take her from the airport to the Canadian border”
and that the taxi deposited them, her and her children, [TRANSLATION] “near the Canadian border on a road where there was no Canadian customs office at the border”
(affidavit of Officer Tremblay, at paras 7–8). In cross-examination, Officer Tremblay said this was what Ms. Antakli told her during the interview. Asked whether it was possible that Ms. Antakli could have gone through Canada prior to going to the Noyan port of entry and making her refugee claim there, Officer Tremblay said that Ms. Antakli reported on the various forms she was asked to fill out that she had never been to Canada. Counsel for the applicants also asked Officer Tremblay whether, in her view, Ms. Antakli wanted to enter Canada in a regular or irregular manner. Counsel for the respondent objected to the question because it Officer Tremblay was being asked for her opinion. Still, she would have allowed Officer Tremblay to relate what Ms. Antakli might have told her on the subject. The question never came.
[20]
Nor does Ms. Antakli’s affidavit specify what she might have told the officers she encountered in St-Armand or in Noyan. It only relates the circumstances of the arrival of the applicants at the Canada-US border and of their arrival at the St-Armand port of entry.
[21]
If, as the record seems to indicate, Ms. Antakli failed to raise with the respondent’s officers that she and her two children were apprehended by the Canadian authorities on Canadian soil, her affidavit, as regards this, I repeat, crucial component of the circumstances surrounding the applicants’ entry into Canada, constitutes new evidence within the meaning of Access Copyright, and therefore cannot be considered in order to establish whether Officer Tremblay’s conclusion, regarding the inapplicability of the exception set out at paragraph 159.4(1)(a) of the Regulations to the applicants’ case, is reasonable or not. I can understand, in a context where this component of the story of the applicants’ entry into Canada was, to all appearances, brought to the attention of the respondent for the first time at the judicial review stage, that the respondent would engage in the rather unusual conduct of filing such detailed evidence for the purpose, presumably, of responding to these new allegations.
[22]
In any event, based on the information before her, specifically the note recorded in the GCMS (CTR, at p. 10) and the entry in the Integrated Customs System indicating that the applicants’ passports had been “read”
at the Noyan port of entry, Officer Tremblay could reasonably conclude as she did, even if the handwritten notes left by Officer Hellal are excluded. If the notes are included, the finding of reasonableness is even more clear-cut.
[23]
My conclusion would be the same if it were assumed that this component of the story of the applicants’ entry into Canada was brought to the attention of the respondent’s officers. In such a scenario, Officer Tremblay would have been called upon to choose between two versions: that of the applicants, that they had crossed the border on foot before being stopped by the Canadian police and immediately escorted to the St-Armand port of entry, and that which flowed from the information she had in the file, in the form of the note recorded in the GCMS, the entry in the Integrated Customs System and Officer Hellal’s handwritten notes, that the applicants were stopped, on American territory, by officers of the “US Border Patrol”
, and then escorted to the American border crossing of Alburg, the American counterpart to the Noyan port of entry, and that from the Alburg crossing, they proceeded on foot to the Noyan point of entry in order to make a refugee claim there before being taken to the St-Armand point of entry for their claim to be processed.
[24]
By choosing the version that flowed from the information Officer Tremblay had on file, it would have been difficult to conclude that her choice was made in an abusive or arbitrary manner without regard for the evidence she had and therefore, that it is unreasonable. The question of whether the applicants were stopped on American or Canadian territory and whether or not they transited through the Noyan port of entry is a pure question of fact, which is entitled to a certain deference on the part of the Court in respect of the conclusions reached by Officer Tremblay.
[25]
The argument that Officer Tremblay’s decision was fatally flawed because it was based on facts that she herself did not verify, cannot be accepted. It is clear that Ms. Tremblay could not have had personal knowledge of the arrival of the applicants in Canada. As a decision-making authority, she could still reasonably rely on the notes recorded in the GCMS and in the Integrated Customs System, as well as Mr. Hellal’s notes, even if the latter got his information from his superintendent. The applicants’ position, if accepted, would be tantamount to imposing on Officer Tremblay and on all the other officials in her position, a duty to verify the veracity and reliability of internal sources of information.
[26]
I agree with the respondent that this would impose an excessive and unrealistic burden on all delegates of the Minister of Public Safety and Emergency Preparedness tasked with making decisions at ports of entry on the eligibility of refugee claims. Such delegates must be able to rely on information that the Minister’s officers on duty at ports of entry gather in the performance of their duties. In fact, in carrying out a task as demanding and complex as border control, information gathered by those in authority should be able to circulate and be exchanged for the benefit of those who are called, at the port of entry, to make decisions on the admissibility of foreigners or the eligibility of refugee claims, without having to question the reliability and the veracity of the information at each step. Once again, if it were otherwise, it would place an excessive burden on the border control system.
[27]
Clearly it would have been preferable if Officer Hellal’s notes had been kept or if notes had been gathered and kept at each stage of the processing of the applicants’ file. Still, the fact that this was not done is not fatal to the decision under review in this case.
[28]
I say this specifically because I cannot ignore the evidence of Officer Picard, which confirms to some extent what Officer Hellal noted. In his affidavit, Officer Picard in fact says that he had:
- been alerted, on March 2, 2017, by an officer from the Alburg border crossing, that
“US Border Patrol”
officers had intercepted three travellers walking along a route parallel to the Canada-US border and that they had taken them to the Alburg border crossing;
- subsequently been advised, by an officer from the same border crossing, that the three travellers would be directed to the Noyan port of entry;
- observed the three applicants arriving on food at the Noyan port of entry at 17:30 the same day and being received by Guillaume Trudel (Officer Trudel), the other officer on duty that day at the Noyan port of entry;
- contacted the officers from the St-Armand port of entry after Mr. Trudel had advised him that the applicants wished to make a refugee claim; and
- noted, after his phone call, that two officers from the St-Armand port of entry, one of whom was Arturo Ventura, appeared at the Noyan port of entry to pick up the applicants and take them to the St-Armand port of entry.
[29]
Counsel for the applicants, who did not object to the filing of this affidavit, did attempt to undermine the credibility of Officer Picard’s testimony during cross-examination but did not succeed. It is true that Officer Picard was unable to name the officer from the Alburg border crossing with whom he had been in contact, nor the officer from the St-Armand port of entry with whom he spoke on the telephone, but that does not suffice, in my view, to undermine his credibility. Once again, it would have been desirable for Officer Picard to have noted his observations and actions in the file but that does not affect the precision of his testimony with respect to the essential elements of his account.
[30]
Interestingly, the debate at the hearing, as reflected by the cross-examinations conducted by counsel for the applicants, was not so much about whether the applicants had actually first presented themselves at the Noyan port of entry but whether it was possible that they could have done so by having first transited through Canada. Yet, in this regard, the question is not whether it is possible that the applicants first transited through Canada, but rather whether it is probably that this was the case. I note that we are here on a civil matter and that the burden of proof that applies is that of the balance of probabilities. (Singh v Canada (Citizenship and Immigration), 2016 FC 169 at para 6; Li v Canada (Minister of Citizenship and Immigration), 2005 FCA 1 at para 9).
[31]
Added to this is the vagueness of Ms. Antakli’s affidavit on the circumstances of her entry onto Canadian territory and of her arrival at the St-Armand port of entry: the Canadian police force that allegedly stopped the applicants was not named in it and nothing is known about those who transported them to St-Armand. Was it the same police force? Was it another police force? Was it officers of the Minister instead? This evidence is vague at best and is contradicted by the information Officer Tremblay had before her.
[32]
In light of all the evidence that I have before me, here is what, in my view, falls within the domain of probability:
[33]
the applicants were intercepted by officers of the “U.S. Border Patrol” while they were still on American territory
, the assertion that said officers could have gone to patrol on the Canadian side of the border being, at best, highly improbably unless they were there illegally in contravention of the most elementary rules regarding the sovereignty of States;
- after having been stopped by officers of the
“U.S. Border Patrol”
, as evidenced by the affidavit and the cross-examination of Mr. Picard, the applicants were taken to the American border crossing of Alburg and since they had valid American visas, they were able to leave this border crossing and proceed, on foot, to the neighboring post of Noyan to make a refugee claim there; and
- then, since the Noyan port of entry did not have the resources to process the applicants’ refugee claim, they were transported to the St-Armand port of entry by officers from that port of entry who came to Noyan to collect them following Officer Picard’s call.
[34]
Therefore, in light of the information she had before her, Officer Tremblay reasonably concluded that the applicants were not covered under the exception at paragraph 159.4(1)(a) of the Regulations. This conclusion is even more compelling when the whole of the evidence submitted to the Court in this application for judicial review, even if it was not strictly necessary, is taken in to account.
[35]
No one could say that the applicants were victims of a stroke of bad luck in having been stopped by the American authorities before crossing the Canadian border “at a location other than a port of entry”
since they would have had the right to have their refugee claim considered if they had been able to get to Canadian territory surreptitiously. Still, on a balance of probabilities, they failed to do so and, even if one accepted that they did so reluctantly, they made a refugee claim at a port of entry. The Court is required to apply the law as written and must refrain from questioning its wisdom (Canada Employment and Immigration Commission v Dallialian, [1980] 2 S.C.R. 582 at p 587). Respect for and observance of Canadian laws concerning border control is an objective whose legitimacy and importance cannot be doubted, as evidence by subsection 18(1) of the Act that obligates “every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada or may become authorized to enter and remain in Canada.”
Yielding to an examination is the normal way to cross the Canadian border. The applicants needed more solid evidence than that which they submitted in order for an exception to be made to this rule in their case.
[36]
According to the Agreement, the applicants must submit their refugee claim to the Americans. The spectre of returning to Syria makes them fear the worst, with good reason. Still, I note that, as subsection 102(2) of the Act stipulates, and as is reflected in the preamble to the Agreement, for the purpose of designating a county under paragraph 101(1)(e) of the Act, Canada must take the following factors into account:
- The country is a party to the United Nations Refugee Convention on the status of refugees and to the Convention Against Torture and other cruel and unusual, inhumane or degrading treatment or punishment;
- The policies and practices of the country with respect to claims under the Refugee Convention and with respect to its obligations under the Convention Against Torture; and
- The country’s human rights record.
[37]
Pursuant to subsection 102(3) of the Act, the government must ensure a continual review of these factors with respect each designated country and section 159.7 of the Regulations allows it to suspend the Agreement, in whole or in part. Yet, the Agreement is still in force and I have not been asked to declare that Canada should suspend its application, nor have I been provided with evidence to that effect. I must therefore assume that the United States continues to comply with the Agreement and the principles that guide it.
[38]
Finally, I cannot allow the argument that the mere intention to enter Canada “at a location other than a point of entry”
is sufficient to trigger the application of the exception at paragraph 159.4(1)(a) of the Regulations. The applicants here were content with a simple statement. They did not develop the argument. In my view, the words “seeks to enter Canada”
in subsection 159.4(1) of the Regulations, which are furthermore found throughout the Act, refer not to a simple expression of intent but to the action itself of seeking to be authorized to enter and to remain in Canada.
[39]
In any event, as discussed earlier, nothing is less certain than that Ms. Antakli expressed this intention when she encountered the officers from the St-Armand port of entry. Moreover, Officer Hellal said during his cross-examination that Ms. Antakli sought to avail herself of one of the exceptions set out in section 159.5 of the Regulations, the one that relates to the presence in Canada of a family member, in this case her husband. The note recorded in the GCMS, reproduced at paragraph 7 of these reasons, tends moreover to confirm it. Verifications ensued, with Officer Tremblay stating that she had even, [translation] “several times, and right up until the last minute, verified the status of Ms. Antakli’s husband in the GCMS in case he made a refugee claim (…), being aware of the impact that his decision had on the entire family, and knowing that a refugee claim by the husband could change the eligibility of Ms. Antakli in her favour (…)”
.
[40]
The applicants’ application for judicial review will therefore be dismissed.
[41]
The parties agree that there are no grounds, in this case, for certifying a question for the Federal Court of Appeal. I am of the same view since the outcome of this case is largely dependent on its particular facts.
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