Date: 19980525
Docket: IMM-2891-97
Between :
Xian Zhen CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of the exclusion order made against her on June 19, 1997 by a senior immigration officer at the Canada Immigration Centre, Vancouver International Airport.
[2] The applicant came to Canada from China on June 19, 1997, and says that she wished to claim refugee status due to the fines, imprisonment, and forced sterilization she would face in China for breaching the "one child" policy.
[3] She was detained by Immigration Canada officials for secondary examination at the Vancouver International Airport, given that she lacked the necessary travel documents. She was interviewed by immigration officers through an interpreter fluent in Mandarin and English. At that time, she responded that she had no problems in China and did not fear returning there. She admits that she did not notify the immigration officer that she wanted to make a refugee claim, and also signed a Statutory Declaration and a handwritten statement attesting that she did not wish to make such a claim.
[4] The applicant insists that she was not accorded procedural fairness during the secondary examination, because she was not advised of the nature and effect of the secondary examination, or of her right to counsel arising from section 7 of the Canadian Charter of Rights and Freedoms (the Charter).
[5] The procedural protections afforded to an individual in the course of a secondary examination must be examined in light of Justice Iacobucci's statement in Dehghani v. Canada (M.E.I.), [1993] 1 S.C.R. 1053 that "It is important to recall that there is no right for non-citizens to enter or remain in Canada" and the concomitant assumption that individuals cannot be admitted into Canada without meeting the statutory requirements.
[6] In discussing the content of procedural fairness in Dehghani, Justice Iacobucci reiterated the following concept at pages 1076 and 1077:
| It is clear that the concept of fundamental justice includes at a minimum the notion of procedural fairness: Re B.C. Motor Vehicle Act, supra; R. v. Jones, [1986] 2 S.C.R. 284, at p. 322; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361. According to Singh at p. 213, the procedures set out in the Immigration Act must "provide an adequate opportunity for a refugee claimant to state his case and know the case he has to meet". Wilson J. noted, however, that procedural fairness may require different procedures depending on the context. This point was also made by LaForest J. in Lyons at p. 361: |
| It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another. |
[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.
[8] With respect to the applicant's alleged right to counsel arising from section 7 of the Charter, the Supreme Court also held in Dehghani that, assuming without deciding that section 7 was engaged in the circumstances of that case, that the principles of fundamental justice did not include a right to counsel in those circumstances. Justice Iacobucci explains at pages 1077 and 1078:
| [. . .] In my view, the principles of fundamental justice do not require that the appellant be provided with counsel at the pre-inquiry or pre-hearing stage of the refugee claim determination process. While the right to counsel under s. 7 may apply in other cases besides those which are encompassed by s. 10(b), for example in cases involving the right to counsel at a hearing, it is clear from my earlier comments that the secondary examination of the appellant at the port of entry is not analogous to a hearing. Certainly, factual situations which are closer or analogous to criminal proceedings will merit greater vigilance by the courts. However, in an immigration examination for routine information-gathering purposes, the right to counsel does not extend beyond those circumstances of arrest or detention described in s. 10(b). |
| The requirement of a hearing for the adjudication of Convention refugee claims was discussed in Singh at pp. 213-14. Wilson J. held that where the question of whether the appellant's claim to Convention refugee status involves an issue of credibility, the appellant is entitled to an oral hearing: "where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing". An inquiry to determine whether the appellant's claim to Convention refugee status had a credible basis was held, and the appellant was informed of his right to obtain the services of and be represented by counsel at the inquiry pursuant to s. 30(1) of the Immigration Act. The appellant was in fact represented by counsel during the credible basis inquiry. The concern raised by Wilson J. in Singh related to the adequacy of "the opportunity the [procedural] scheme provides for a refugee claimant to state his case and know the case he has to meet" (p. 214). This concern is met in the present case by the requirement of a subsequent oral hearing. |
[9] In the case at bar, the applicant contends that the reasoning in Dehghani, supra is no longer applicable as a result of amendments to the Act, given that the immigration officer can now make an exclusion order against an individual without the procedural protection afforded by a subsequent Inquiry. I cannot accept that argument. As noted above, the immigration officer in Dehghani had questioned the applicant with respect to his refugee claim prior to furthering his claim to an Inquiry panel and clearly, the credibility of the applicant's refugee claim needed to be assessed in that instance. Surely, fundamental justice requires greater procedural protection for a refugee claimant whose credibility is at issue than for an individual who attempts to enter into Canada without the requisite documentation and who insists that she does not wish to claim refugee status. I am of the opinion, therefore, that Dehghani continues to be authoritative for the proposition that fundamental justice does not import the right to counsel at a secondary examination interview such as the one conducted by the immigration officer in this instance.
[10] For all the above reasons, the application for judicial review is dismissed.
[11] Given the factual context, including the admission by the applicant that she did not notify the immigration officer that she wanted to make a refugee claim, I agree with counsel for the respondent that this matter raises no question of general importance for the purpose of certification.
JUDGE
OTTAWA, ONTARIO
May 25, 1998