Docket: IMM-3375-11
Citation: 2012 FC 199
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, February 10, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
|
|
ORNELLA MARIE-FRANCE NDUNDU
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
|
|
|
Respondent
|
|
|
|
|
REASONS
FOR JUDGMENT AND JUDGMENT
I Introduction
[9] Parliament
has determined that refugee claims must be initiated before a removal order is
made against a person. Parliament has specifically set out that refugee claims
may not be heard in one circumstance, i.e., where a refugee claim is
made after a removal order. Parliament’s purpose in enacting this section was
clearly to prevent people, after being excluded from Canada on the basis of an
initial story, from changing their story to claim refugee status. If this Court
were to allow removal orders to be reopened in order to permit consideration of
these claims, then the section would be rendered marcescent. [Emphasis in
original.]
As stated by the
Federal Court of Appeal in Raman v Canada (Minister of Citizenship and
Immigration), 4 FCA 140.
II Judicial procedure
1.
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], of an exclusion order issued by the Minister’s delegate against
the applicant on May 8, 2011.
III Facts
2.
The applicant, Ornella Marie-France Ndundu, was
allegedly born on January 30, 1987, in the Democratic Republic of the
Congo [DRC], her country of nationality.
3.
The applicant allegedly fled her country of
origin on November 11, 2011.
4.
After passing through Congo-Brazzaville and
France, Ornella Marie-France Ndundu arrived in Canada on May 8, 2011, on a
passport issued by Belgium in the name of Pamela Wawa Mompa.
5.
The applicant told an immigration officer that
she wished to enter Canada for 10 days to visit a friend.
6.
Since the passport photograph did not match the
applicant, the immigration officer questioned her. During this interview, the
immigration officer concluded that the applicant was not travelling under her
true identity and therefore produced a report, under subsection 44(1) of
the IRPA, recommending that the applicant be excluded.
7.
The applicant alleges that she lied about her identity
in order to comply with the directions of the smuggler, namely, to [translation] “defend her Belgian
passport” and not to claim Canada’s protection until after the first
immigration check in Canada.
8.
The applicant then met with the Minister’s delegate.
The interview was held in French. During the interview, the applicant
reiterated that her stay was temporary.
9.
The Minister’s delegate then questioned the
applicant to find out whether she had any problems in Belgium.
10.
The applicant claims that she did not understand
the question. Believing that the Minister’s delegate was referring to legal
problems, she allegedly replied no. The applicant alleges that she was never
asked whether she had problems in the DRC or whether she feared persecution in
another country around the world. She also alleges that the Minister’s delegate
did not ask her whether she was seeking Canada’s protection.
11.
The applicant claimed Canada’s protection
immediately after the exclusion order was issued, at which time she revealed her
true nationality.
12.
The Minister’s delegate then informed here that
she could no longer claim refugee protection in Canada since she had been excluded.
13.
The application was placed in detention until
her removal to France.
14.
The applicant was removed to France on
May 10, 2011. When she arrived, French authorities denied her entry, and
the applicant was sent back to Canada.
15.
The applicant was again detained. The applicant’s
departure was postponed to May 20, 2011.
16.
The applicant fell ill twice in Canada. She was
taken to hospital on the day of her return, on May 10, 2011, and on the
day before being removed to France, on May 20, 2011.
17.
On May 17, 2011, the applicant was given
the opportunity to apply for a pre-removal risk assessment (PRRA).
18.
On May 20, 2011, the applicant filed a
motion for a stay of her removal. On the same day, she withdrew the motion
since the Minister had agreed to an administrative postponement of her removal
until her PRRA application had been disposed of.
IV Decision under
review
19.
The Minister’s delegate issued an exclusion
order against the applicant making her inadmissible to claim refugee protection
under subsection 99(3) of the IRPA. This decision was made following the
recommendation contained in a report prepared under subsection 44(1) of
the IRPA [report].
V Relevant
legislative provisions
20.
The following provisions of the IRPA are relevant
to the case:
|
Obligation on entry
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,
(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
(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.
Non-compliance with Act
41. A person is inadmissible
for failing to comply with this Act
(a) in the case of a foreign
national, through an act or omission which contravenes, directly or
indirectly, a provision of this Act; and
(b) in the case of a permanent
resident, through failing to comply with subsection 27(2) or section 28.
Preparation of report
44. (1) An officer who is
of the opinion that a permanent resident or a foreign national who is in
Canada is inadmissible may prepare a report setting out the relevant facts,
which report shall be transmitted to the Minister.
|
Obligation à l’entrée au Canada
20. (1) L’étranger non
visé à l’article 19 qui cherche à entrer au Canada ou à y séjourner est tenu
de prouver :
a) pour
devenir un résident permanent, qu’il détient les visa ou autres documents
réglementaires et vient s’y établir en permanence;
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.
Manquement à la loi
41. S’agissant de l’étranger,
emportent interdiction de territoire pour manquement à la présente loi tout
fait — acte ou omission — commis directement ou indirectement en
contravention avec la présente loi et, s’agissant du résident permanent, le
manquement à l’obligation de résidence et aux conditions imposées.
Rapport d’interdiction de territoire
44. (1) S’il estime que
le résident permanent ou l’étranger qui se trouve au Canada est interdit de
territoire, l’agent peut établir un rapport circonstancié, qu’il transmet au
ministre.
|
21.
The relevant provisions of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations], are as
follows:
|
Documents — temporary residents
52. (1) In addition to
the other requirements of these Regulations, a foreign national seeking to
become a temporary resident must hold one of the following documents that is
valid for the period authorized for their stay:
(a) a passport that was issued
by the country of which the foreign national is a citizen or national, that
does not prohibit travel to Canada and that the foreign national may use to
enter the country of issue;
Subsection 44(2) of the Act — foreign nationals
228. (1) For the purposes
of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a
report in respect of a foreign national does not include any grounds of inadmissibility
other than those set out in the following circumstances, the report shall not
be referred to the Immigration Division and any removal order made shall be
(a) if the foreign national is
inadmissible under paragraph 36(1)(a) or (2)(a) of the Act
on grounds of serious criminality or criminality, a deportation order;
(b) if the foreign national is
inadmissible under paragraph 40(1)(c) of the Act on grounds of
misrepresentation, a deportation order;
(c) if the foreign national is
inadmissible under section 41 of the Act on grounds of
(i) failing to appear for further
examination or an admissibility hearing under Part 1 of the Act, an exclusion
order,
(ii) failing to obtain the authorization
of an officer required by subsection 52(1) of the Act, a deportation order,
(iii) failing to establish that they hold
the visa or other document as required under section 20 of the Act, an
exclusion order,
(iv) failing to leave Canada by the end
of the period authorized for their stay as required by subsection 29(2) of
the Act, an exclusion order, or
(v) failing to comply with subsection
29(2) of the Act to comply with any condition set out in section 184, an
exclusion order; and
(d) if the foreign national is
inadmissible under section 42 of the Act on grounds of an inadmissible family
member, the same removal order as was made in respect of the inadmissible
family member.
|
Documents : résidents temporaires
52. (1) En plus de
remplir les autres exigences réglementaires, l’étranger qui cherche à devenir
résident temporaire doit détenir l’un des documents suivants, valide pour la
période de séjour autorisée :
a) un
passeport qui lui a été délivré par le pays dont il est citoyen ou
ressortissant, qui ne lui interdit pas de voyager au Canada et grâce auquel
il peut entrer dans le pays de délivrance;
Application du paragraphe 44(2) de la Loi : étrangers
228. (1) Pour l’application
du paragraphe 44(2) de la Loi, mais sous réserve des paragraphes (3) et (4),
dans le cas où elle ne comporte pas de motif d’interdiction de territoire
autre que ceux prévus dans l’une des circonstances ci-après, l’affaire n’est
pas déférée à la Section de l’immigration et la mesure de renvoi à prendre
est celle indiquée en regard du motif en cause :
a) en
cas d’interdiction de territoire de l’étranger pour grande criminalité ou
criminalité au titre des alinéas 36(1)a) ou (2)a) de la
Loi, l’expulsion;
b) en
cas d’interdiction de territoire de l’étranger pour fausses déclarations au
titre de l’alinéa 40(1)c) de la Loi, l’expulsion;
c) en
cas d’interdiction de territoire de l’étranger au titre de l’article 41 de la
Loi pour manquement à :
(i) l’obligation prévue à la partie 1 de
la Loi de se présenter au contrôle complémentaire ou à l’enquête, l’exclusion,
(ii) l’obligation d’obtenir l’autorisation
de l’agent aux termes du paragraphe 52(1) de la Loi, l’expulsion,
(iii) l’obligation prévue à l’article 20
de la Loi de prouver qu’il détient les visa et autres documents
réglementaires, l’exclusion,
(iv) l’obligation prévue au paragraphe
29(2) de la Loi de quitter le Canada à la fin de la période de séjour
autorisée, l’exclusion,
(v) l’obligation prévue au paragraphe
29(2) de la Loi de se conformer aux conditions imposées à l’article 184, l’exclusion;
d) en
cas d’interdiction de territoire de l’étranger pour inadmissibilité familiale
aux termes de l’article 42 de la Loi, la même mesure de renvoi que celle
prise à l’égard du membre de la famille interdit de territoire.
|
VI Issues
22.
Was the decision of the Minister’s delegate to
issue an exclusion order against the applicant reasonable?
23.
Were the principles of procedural fairness
breached?
VII
Positions of the parties
24.
The applicant submits that the removal order and
the report are invalid because of a breach of procedural fairness in that the
applicant was never asked whether she was seeking Canada’s protection. It was
only after the exclusion order was issued that the applicant disclosed her true
nationality to the immigration officer and the Minister’s delegate and claimed
Canada’s protection. In support of her argument, the applicant filed as
evidence the handwritten notes of the Minister’s delegate and of the applicant,
obtained under the Access to Information Act, RSC 1985, c A-1.
25.
In addition, the immigration officer and the
Minister’s delegate should have considered the applicant’s vulnerable state
when determining whether she was in a condition to claim protection.
26.
To demonstrate the applicant’s vulnerability, resulting
from her psychological state, the applicant wishes to introduce into evidence a
psychological report written after the exclusion order was issued, her submissions
supporting the PRRA application, the form regarding her escorted overseas
removal dated May 19, 2011, the applicant’s medical record and emails from
the enforcement officers in charge of the applicant’s removal on May 20,
2011. She submits that this evidence is admissible since it supports her
arguments alleging breaches of procedural fairness.
27.
Alternatively, the applicant submits that there
was a breach of natural justice, regardless of the conduct of the immigration
officer or the Minister’s delegate during the interview, given that the
applicant was psychologically vulnerable during the interview.
28.
The applicant also submits that her right to
life, liberty and security of the person, provided at section 7 of the Canadian
Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], was
violated by the conduct of the first officer and the Minister’s delegate, who,
after the exclusion order was issued, allegedly completed the gaps in their
notes with information provided by the applicant.
29.
In turn, the respondent submits that the
applicant is to blame for the consequences of her lies to Canadian authorities,
which prevent her from seeking refugee protection from Canada.
30.
The respondent submits that these
contemporaneous, disinterested notes are clear and demonstrate that the
applicant did not wish to seek Canada’s protection upon her arrival, since she
stated that she wished to stay there as a visitor. In fact, the electronic
notes and the affidavit of the Minister’s delegate demonstrate that the Minister’s
delegate made sure to find out whether the applicant wished to seek refugee
protection in Canada.
31.
No principle of natural justice or procedural
fairness was breached since the applicant understood the interview process and
the questions she was asked. Not once did she request the presence of an
interpreter.
32.
The respondent submits, moreover, that the
evidence relied on by the applicant to establish her psychological profile is
not admissible since it was never brought to the Minister’s delegate’s
attention and relates to events postdating the exclusion order. In the present
case, since procedural fairness was not breached, the case law in favour of
admitting such evidence does not apply.
33.
Relying on the affidavit of the Minister’s
delegate, the respondent submits that the applicant’s psychological state did
not affect the conduct of the interview.
VIII Analysis
(1)
Was the decision of the Minister’s delegate
to issue an exclusion order against the applicant reasonable?
34.
It is trite law that a high degree of deference
is owed to discretionary decisions (Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Canada Minister of Citizenship and
Immigration) v Deol, 2009 FC 990 at paragraph 15).
35.
The reasoning of Justice Yvon Pinard in Malongi
v Canada (Minister of Citizenship and Immigration), 2005 FC 1090, clearly
summarizes the circumstances that can lead to an exclusion order:
[4] The
Minister’s delegate relied on section 41 and paragraph 20(1)(b) of the
Act and on section 7 and paragraph 52(1)(a) of the Regulations to
declare that the applicant was inadmissible.
[5] According
to section 41 of the Act, a foreign national is inadmissible for failing to
comply with the Act. According to paragraph 20(1)(b) of the Act, a
foreign national, who seeks to enter or remain in Canada, must establish
that they hold the visa or other documents required under the Regulations in
order to become a permanent resident. Section 7 and paragraph 52(1)(a)
of the Regulations require that the foreign national must obtain a temporary
resident visa and that the foreign national have a passport that was issued by
their country of citizenship.
[6] The
applicant points out that subsection 20(1) contemplates the case of foreign
nationals wishing to enter or remain in Canada as temporary residents. He
submits that his intention when he entered Canada was to claim refugee status. However,
according to the notes of the Minister’s delegate, the applicant declared that
he came to Canada to visit friends and that he had no problems in his native
country. It is my opinion that paragraph 20(1)(b) applies to him.
Further, the officer stated in his affidavit that it was only after the
exclusion order was given verbally against the applicant that he actually
stated that he had wanted to claim refugee status.
[7] The
applicant had not obtained a temporary resident visa before coming to Canada,
therefore there is a breach of section 7 of the Regulations. With respect to
his passport, he had initially denied the fact that it was false, but in his
affidavit, at paragraph 13, he admitted that it does not belong to him. The
fact that the applicant admits that a passport was not issued to him places him
in the category of a foreign national in breach of paragraph 52(1)(a) of
the Regulations.
[8] Given that
the applicant did not have a temporary resident visa before entering Canada
and given his admission to the effect that the passport in his possession did
not belong to him, it is my opinion that the Minister’s delegate was entirely
justified in finding that the applicant did not hold the documents required
under the Regulations and that, accordingly, he was inadmissible under section
41 of the Act. [Emphasis added.]
36.
These paragraphs establish that foreign
nationals who choose to lie to the authorities about their intention to be
admitted into Canada as visitors, through their attitude, expose themselves to
an exclusion order.
37.
In the present matter, the two parties provide
different versions of what occurred during the interview of May 8, 2011. The
reasoning of Justice Edmond P. Blanchard in Elemuwa v Canada (Minister of
Citizenship and Immigration), 2005 FC 1026, applies here:
[16] With
respect to the Applicant’s contention that the Delegate issued the order
despite the fact that a claim for protection had been made, the burden is on
the Applicant to establish on the balance of probabilities that the events
occurred as alleged in the Applicant’s memorandum. In essence, the Applicant
alleges that, by failing to receive a claim for protection, an immigration
officer acted contrary to the IRPA and to Canada’s international obligations. The
Applicant questions the officer’s integrity and in order to prove such
allegations, the facts upon which they are based must be stated. The
Applicant’s evidence fails to support his allegations and, consequently, the
Applicant has failed to discharge his burden of proof.
[17] Further, it
would appear from the Applicant’s own affidavit that his intention was first
to gain admission to Canada and then to make an inland claim for protection.
. . . [Emphasis added.]
38.
The Operational Manual – Enforcement ENF 6
entitled Review of Reports under A44(1) (ENF 6 Manual) contains the directives
to be followed by officers:
8. Procedure:
Handling possible claims for refugee protection
Although there is no
requirement in IRPA for the Minister’s delegate to ask whether the
subject of a determination wishes to make a claim for refugee protection, he should
be aware of Canada’s obligation under the United Nations Convention relating
to the Status of Refugees, and the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment.
A99(3) excludes
persons under removal order from making a claim for refugee protection.
Therefore, the Minister’s delegate should satisfy himself that removal would
not be contrary to the spirit of Canada’s obligations before issuing an order,
even when the subject does not explicitly request access to the refugee
determination process.
It must also be
recognized that some people who may have a legitimate need of Canada’s
protection are unaware of the provision for claiming refugee status.
There is a set of
procedures for handling a possible claim for refugee protection:
• Where
the subjects of a determination for an administrative removal order have not
made a claim, the Minister’s delegate should ask them how long they intend
to remain in Canada.
• If
the persons indicate that their intention is or was to remain temporarily, the
Minister’s delegate should proceed with the removal order decision and issue
the removal order, if appropriate.
• If
the persons indicate that their intention is or was to remain in Canada
indefinitely, the Minister’s delegate is to inquire about their motives for
leaving their country of nationality and the consequences of returning there
before making a decision on issuing a removal order.
• Where
the responses indicate a fear of returning to the country of nationality that
may relate to refugee protection, the Minister’s delegate is to inform the
subjects of the definition of a “Convention refugee” or “person in need of protection”
as found in A96 and A97, and ask whether they wish to make a claim.
• Where
the subjects indicate an intention not to make a claim, the Minister’s delegate
should proceed with the decision and issue a removal order, if appropriate.
• Where
the subjects are uncertain, the Minister’s delegate informs them that they will
not be able to make a claim for refugee protection after a removal order has
been issued [A99(3)], and provide them with an opportunity to make the claim
before proceeding with a removal order decision.
• If
the persons do not express an intent to make a claim, despite the explanation
that this is their last opportunity, the Minister’s delegate should proceed
with the decision and issue the removal order, if appropriate.
• Whenever
the persons indicate a fear of returning to their country of nationality, the
Minister’s delegate is to refrain from evaluating whether the fear is
well-founded. As well, the Minister’s delegate must not speculate on their
eligibility before they have made a refugee claim, nor speculate on the
processing time or eventual outcome of a claim. [Emphasis added.]
39.
The applicant admits that she explained to the
first immigration officer and the Minister’s delegate that she wished to enter
Canada temporarily, as a visitor (Applicant’s Affidavit at paragraphs 5
and 9, Applicant’s Record [AR] at page 15).
40.
The Minister’s delegate was therefore, according
to the ENF 6 Manual, not even obliged to ask her whether she wished to avail
herself of Canada’s protection. The Minister’s delegate nonetheless took care
to comply with Canada’s international refugee protection obligations.
41.
The exchange, which took place in French during
the interview of May 8, 2011, was recorded in English, as follows:
Observations:
*SUBJECT WAS SEEKING
ADMISSION AS A TOURIST FOR A PERIOD OF 10 DAYS TO VISIT HER FRIEND
. . .
*SHE SAID SHE HAD JUST
FINISHED HER NURSING DEGREE AND WANTED A LITTLE BREAK
*Q: HOW DID YOU
GET BELGIAN CITIZENSHIP?
*A: I WAS ADOPTED
*Q: BY BELGIAN
PARENTS?
*A: NO, A LADY AT
CHURCH
*Q: WHAT’S HER
NAME?
*A: I DON’T
REMEMBER IT’S BEEN MORE THAN 20 YEARS
*Q: WHY DID YOU TELL
THE OFFICER YOU ARE 23 YRS OLD WHEN IN FACT YOU ARE ONLY 22?
*Q: WELL, IN BELGIUM
WHEN YOU ARE IN THE COURSE OF THE YEAR, YOU SAY YOU’RE A YEAR OLDER, IT’S
COMMON PRACTICE THERE
*Q: IT IS OBVIOUS TO
ME AND THE OFFICER THAT YOU ARE NOT THE PERSON ON THE PPT PICTURE, DO YOU HAVE
PROBLEMS IN ANY COUNTRY?
*A: NO, CHECK IN
BELGIUM MY RECORD, I’M CLEAN
*Q: DO YOUR FEAR
PERSECUTION IN ANY COUNTRIES IN THE WORLD?
*A: NO, I DON’T
*Q: DO YOUR KNOW
WHAT ASYLUM IS?
*A: YES
*Q: ARE YOU ASKING
FOR CANADA’S PROTECTION?
*A: NO, I JUST
WANT TO COME AS A TOURIST
. . .
(Tribunal Record
(TR) at pages 5-9).
42.
The Court notes, however, that the electronic and
handwritten notes of the Minister’s delegate do not, in contrast to the report
and the notes of the first immigration officer, assist in following the logic
behind the decision-making process. After reviewing all of these notes, it is
not clear to me at what point in the decision-making process the applicant’s
true national identity became known. The appearance of transparency in the
exclusion order decision-making process is of the utmost importance. As
mentioned in the ENF 6 Manual:
8. Procedure:
Handling possible claims for refugee protection
. . .
In order to address
concerns that may arise subsequent to the issuing of a removal order, it is
important that the notes accurately reflect—in detail—the questions asked
and the information provided by the subject during an exchange such as the
aforementioned. [Emphasis added.]
43.
Nonetheless, given the particular circumstances
of the case, an in-depth analysis of the record as a whole and the evidence it
comprises supports the conclusion that the Minister’s delegate acted, in accordance
with the ENF 6 Manual, within the bounds of her discretion and that the
applicant had several opportunities to speak up and to claim refugee
protection. Instead, she concealed her true identity and lied about the reason
for her stay in Canada. It is only after the exclusion order was issued that
she claimed refugee protection.
44.
Even if one accepts that the applicant was ill
advised in her country of origin, which is the reason provided to explain why
she had to defend her false Belgian identity during the interview at the port
of entry, this fails to explain her failure to reveal her need for protection. To
hold otherwise would amount to distorting subsection 44(1) of the IRPA.
As explained by the Federal Court of Appeal in Raman v Canada (Minister
of Citizenship and Immigration), [1999] 4 FC 140:
[9] . . .
Parliament has
determined that refugee claims must be initiated before a removal order is made
against a person. Parliament has specifically set out that refugee claims may
not be heard in one circumstance, i.e., where a refugee claim is made
after a removal order. Parliament’s purpose in enacting this section was
clearly to prevent people, after being excluded from Canada on the basis of an
initial story, from changing their story to claim refugee status. If this Court
were to allow removal orders to be reopened in order to permit consideration of
these claims, then the section would be rendered marcescent. [Emphasis in the
original.]
(2)
Were the principles of procedural fairness
breached?
45.
In Chen v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 719, 151 FTR 8 (QL/Lexis), the Court considered
the degree of procedural fairness required during the interview conducted at
the port of entry and concluded that the requirements are minimal as long as
the foreign national does not intend to exercise his or her right to
protection. This principle is explained as follows:
[7] In my
view, the requirements of procedural fairness in this particular scenario were
minimal. Firstly, I would point out that the applicant’s situation was
altogether different than the scenario envisaged in Dehghani. In that instance,
the applicant had expressed his wish to claim refugee status, which had led the
senior immigration officer to interview him with the view to determining the
next procedure to be invoked in order to process his application for refugee
status. Conversely, the applicant in the case at bar insisted that she did
not wish to claim refugee status and that she had nothing to fear upon her
return to China. In the course of her secondary examination, the applicant
was asked simple and straightforward questions with respect to the requisite
documentation for her entry into Canada (namely a valid and subsisting passport
and a visitor’s visa), and with respect to the possibility of making a refugee
claim. She had the obligation to answer these questions truthfully in
accordance with subsection 12(4) of the Immigration Act (the Act). Clearly,
once an applicant has expressed the wish to claim refugee status, the
procedural protections accorded should become more extensive. Consequently, it
cannot be presumed that the same procedural protections applicable in Dehghani
will necessarily be fitting in this instance where, in reality, it is the
applicant’s failure to be forthright which resulted in the loss of the right to
make a refugee claim (see, for instance, Mbulu v. Canada (M.C.I.)
(1995), 94 F.T.R. 81; and Nayci v. Canada (M.C.I.) (1995), 105 F.T.R.
122). Under the circumstances of the present case, therefore, I am of the view
that fairness did not require that the applicant be advised of the nature and
effect of the secondary examination. In reality, it should have been clear
to the applicant that one possible repercussion might be that she would not be
permitted to enter into Canada. [Emphasis added.]
(See also Raman, above at paragraph
16.)
46.
The Court agrees with this reasoning. The
applicant’s conduct was unambiguous: she claimed to a visitor who did not need
protection. The Minister’s delegate acted within the bounds of her discretion. The
procedural safeguards for the need for protection come into play only when
refugee protection is actually claimed, which was not the case here.
47.
The applicant argues that there was a breach of
procedural fairness, regardless of the conduct of the officers, simply because
the applicant was vulnerable because of her psychological state. Judicial
review is not a trial de novo; the Court must therefore be cautious when
ruling on the admissibility of evidence that was not submitted to the first decision-maker.
Such evidence can be admitted only to establish a breach of procedural fairness
(McFadyen v Canada (Attorney General), 2005 FCA 360; Vennat v Canada
(Attorney General), 2006 FC 1008 at paragraphs 44 and 45).
48.
The Minister’s delegate acted in accordance with
the principles of procedural fairness in the context. The applicant’s state, at
the time of the interview, does not appear to have been an obstacle to her
making a claim for refugee protection. The crux of the issue is primarily
whether the Minister’s delegate acted within her duties by giving the applicant
the opportunity to claim refugee protection.
49.
The psychological report, the hospital record
and the exchanges that took place between the various enforcement officers certainly
establish the applicant’s psychological state after the interview with the
Minister’s delegate, during other incidents, such as her removal to France and
her detention. They are, however, of now assistance in supporting the applicant’s
argument regarding her psychological state during the interview (Kitsinga v
Canada (Minister of Citizenship and Immigration), 2008 FC 126 at
paragraph 24).
50.
As to the submission supporting the PRRA
application, they relate the applicant’s story from a subjective, unconvincing
perspective, to establish the applicant’s psychological state. One would have
to assess the applicant’s credibility, but that is not the Court’s role.
51.
Indeed, is there any need to draw further
attention to the fact that the applicant was able to claim protection as soon
as the exclusion order was issued (Applicant’s Affidavit, at paragraph 11,
[AR] at page 17)?
52.
The principles of procedural fairness were not
breached.
53.
For all of the above-mentioned reasons, the
application for judicial review is dismissed.
Email this Content