Date: 20000615
Docket: IMM-2669-00
Between:
VALERIY ROTAR,
Plaintiff,
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
Docket: IMM-2672-00
Between:
ANATOLY YURYNYUK,
Plaintiff,
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
NADON J.
[1] On Saturday, June 3, 2000 I dismissed the motions by the two plaintiffs for a stay of execution of the exclusion orders made against them on May 18, 2000. The reasons for those decisions are as follows.
[2] I dismissed the plaintiffs' motions because I was of the opinion that the applications for judicial review they had filed against the exclusion orders raised no serious question. I was further of the opinion that in any event the plaintiffs would not suffer irreparable harm if they had to return to their country, the Ukraine.
[3] First, the plaintiffs submitted that the senior immigration officer erred in making exclusion orders because they were visitors without a visa when they came to the port of entry. Section 9 of the Immigration Act ("the Act") requires that "every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry". However, the Immigration Regulations, 1978 ("the Regulations") make certain exceptions to this rule: for example, s. 13(1) provides that a "visitor who is a person referred to in Schedule II is not required to make an application for and obtain a visa before he appears at a port of entry". The plaintiffs submit that they are visitors contemplated by s. 6 of Schedule II, namely "persons who seek entry to become members of a crew of a vehicle that is in Canada and members of a crew who seek entry . . ."
[4] When the plaintiffs came to the port of entry, namely Dorval Airport, they had with them seamen's passports, a contract of employment with the owners of the ship Canmar Victory, namely Antares Chartering & Shipping Inc., and a letter from Atlantis International Ltd. indicating that the plaintiffs were Ukrainian seamen and were coming to Canada to join the crew of the Canmar Victory in St. John, Canada on May 19, 2000. The immigration officer concluded that the plaintiffs were not persons covered by the exemption to Schedule II - namely, members of the personnel of a vehicle in Canada - since, according to what he could discover, the ship was neither in the port of St. John, New Brunswick nor in the port of St. John's, Newfoundland and no ship of that name was expected at those ports. Consequently, he issued exclusion orders pursuant to s. 23(4)(a) of the Act:
Subject to section 28, a senior immigration officer shall allow a person to leave Canada forthwith or make an exclusion order against the person where the senior immigration officer receives a report made pursuant to paragraph 20(1)(a) in respect of the person and the senior immigration officer is satisfied that
(a) the person is a member of
. . . . .
(ii) the class of persons referred to in paragraph 19(2)(d) by reason of the fact that the person does not possess a . . . visa . . .
[5] Section 19(2)(d) makes any person inadmissible who does not comply with the Act, and in the case at bar s. 9 requires that a visitor must have obtained a visa before appearing at a port of entry.
[6] Since the officer found that the plaintiffs had to have a visa and since they were not members of the personnel of a vehicle in Canada, he issued the exclusion orders. Before recommending their exclusion the officer asked them whether they anticipated problems in their country, but they stated that they [TRANSLATION] "had no problems". The officer therefore made the exclusion orders and the plaintiffs were detained.
[7] Following the making of the exclusion orders, and despite their statement that they did not anticipate any problems in their country, the plaintiffs sought to claim refugee status. Under s. 44(1) of the Act, when a valid exclusion order exists it is impossible to claim refugee status:
Any person who is in Canada, other than a person against whom a removal order has been made but not executed, unless an appeal from that order has been allowed, and who claims to be a Convention refugee may seek a determination of the claim by notifying an immigration officer. [My emphasis.]
[8] In view of this provision in the Act, a person cannot claim refugee status in such circumstances without challenging the validity of the exclusion order and having it quashed. That is why in the case at bar the plaintiffs are challenging the exclusion orders made against them. Unfortunately for them, they did not persuade the Court that their applications for judicial review raised any serious question. They submitted that the officer erred by ignoring their seamen's passports, but as I indicated above the Act does not exempt seamen from the duty of obtaining a visa before coming to a port of entry. The Act actually provides that a seaman who comes to Canada to become a member of the crew of a ship that is in Canada is exempt from the duty of having a visa with him. Since the officer concluded that the plaintiffs were not persons covered by the exemption, they of necessity had to have a visa in order to enter Canada.
[9] I should note that the plaintiffs did not in any way indicate in their respective affidavits that they were in fact seamen. In any event, it seems clear from reading the record that the plaintiffs came to Canada not to join the crew of a ship but actually, it would seem, to claim refugee status. This seems clear from their affidavits.
[10] As indicated above, when the immigration officer asked them if they expected to encounter problems in the Ukraine, they answered this question in the negative. Their explanation is contained in paragraphs 24 and 25 of their affidavits:
[TRANSLATION]
24. It is true that I did not say at once that I was a refugee, but how could I do this when I feared I would not be admitted, since I was denied even the temporary right of admission that my seamen's passport granted me;
25. In the Ukraine I was badly informed, badly advised: I was told to submit a letter confirming my embarkation in a ship otherwise I would be sent back at once, and I was afraid this was true . . .
[11] I further consider that the plaintiffs did not show that they would suffer irreparable harm if the exclusion orders were executed and they thus had to return to the Ukraine. The plaintiffs alleged that if the stay was not granted, they would suffer irreparable harm. In particular, they maintained that [TRANSLATION] "the anticipated dangers in the Ukraine will occur and the life and safety of the plaintiff[s] will be at risk if he[they] return to the Ukraine". In their affidavits, the plaintiffs indicated the following: [TRANSLATION] "I was afraid that I would be put back on the next flight to my country, the Ukraine, which I fear and which I was fleeing to save my life because I am in danger there". However, nowhere in their affidavits did the plaintiffs supply any reason or explanation as to how they had been persecuted within the meaning of the Convention - namely because of their race, religion, nationality, membership in a particular social group or political opinions. In view of the absence of a minimum basis for their allegations, the Court is not persuaded that the plaintiffs will suffer irreparable harm.
[12] For these reasons, these motions have been dismissed.
Marc Nadon
Judge
O T T A W A, Ontario
June 15, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-2669-00
STYLE OF CAUSE: VALERIY ROTAR
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT No.: IMM-2672-00
STYLE OF CAUSE: ANATOLY YURYNYUK
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
TELECONFERENCING LOCATION: OTTAWA, ONTARIO AND MONTREAL, QUEBEC
DATE OF TELECONFERENCE: JUNE 3, 2000
REASONS FOR ORDER BY: NADON J.
DATED: JUNE 15, 2000
APPEARANCES:
JEANNINE LANDRY FOR THE APPLICANT
CHRISTINE BERNARD FOR THE RESPONDENT
SOLICITORS OF RECORD:
JEANNINE LANDRY FOR THE APPLICANT
MONTREAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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