Federal Court Decisions

Date: 20020503

Docket: IMM-1832-02

Neutral citation: 2002 FCT 510

BETWEEN :

                                                                     IVAN MARICIC

                                                                                                                                                    Applicant

AND:

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                              REASONS FOR ORDER

ROULEAU, J.

[1]                 This is an application to stay the execution of a removal order issued against the applicant and ordering him to be removed from Canada without delay.

[2]                 The applicant, a 22 years old citizen of Yugoslavia, arrived at Pearson International Airport on April 8, 2002, at 16:00 hours. He had flown British Airways from Belgrade. Upon arrival, after inspecting the applicant's documents, the senior immigration officer ("SIO") determined that he should be subject to an interview.

[3]                 The applicant arrived with a valid passport and a Yugoslavia seaman's book. Before conducting the interview he assured himself that he was accompanied by a duly certified Serbo-Croatian interpreter. According to his notes, the applicant was in the company of the senior immigration officer from 17:00 to 18:00 hours. He attached to his affidavit the notes he drafted as a result of the interview.

[4]                 A second senior immigration officer interviewed the applicant from 18:30 to 20:30 hours and he as well attached his drafted notes to his affidavit.

[5]                 The applicant presented a seaman's passport that was issued in his name as proof of identity. Upon being questioned, he purported to Immigration officials that he was in Canada to report to a Ship to fulfil an employment obligation. Immigration officials attempted to corroborate the applicant's assertions but were unable to do so. In fact, after the officers made their inquiries, it was determined that the Ship the applicant referred to did not exist or was not in, approaching, or expected to be in Canadian waters during the relevant period of time. The applicant did not dispute any of these facts as presented to him by immigration officials, nevertheless he continued to maintain his story.

[6]                 Immigration officials finally determined that the applicant was attempting to enter Canada as an immigrant without possessing an immigrant visa and therefore had no right to stay in Canada. Consequently, an exclusion order was issued against the applicant. He was then advised that he would be detained until arrangements could be made to have him returned to Yugoslavia, his country of nationality, as soon as possible. He was read his rights following which the applicant asserted that he was afraid to return to Yugoslavia and he was in Canada to seek refuge.

[7]                 In his affidavit, Mr. Maricic indicates that he was carrying a seaman's passport which had been issued in his name but which had been improperly obtained since he was not a sailor. He asserts that the document was prepared by a smuggler to enable him to leave Yugoslavia and travel to Canada. He alleges that coming to Canada was to escape fear of persecution in his native Yugoslavia and seek refuge in Canada.

[8]                 He then goes on to say that the smuggler advised him that upon arriving in Canada to tell the officials that he was in transit to meet a Vessel for which he had been employed and that once he would have cleared immigration and arrived in Toronto he would then make a claim for refugee status. He goes on to state that the smuggler told him that if he advised the immigration officials at the airport that the documents were falsely obtained he would be immediately detained and sent back to Yugoslavia without an opportunity to make a refugee claim. When being confronted by the immigration officials at Pearson airport, he told them he was a seaman and was on his way to report to a Ship as he was instructed. Even after immigration officials confronted him that the Ship did not exist he continued to follow the smuggler's instructions and to insist that he was a sailor reporting to a Vessel. It was not until after the exclusion order issued that he advised the immigration officials for the first time that he could not go back to Yugoslavia because of fear of persecution and that he had come to Canada to seek refuge.

[9]                 The immigration officer advised that he could no longer make a claim to convention refugee status since he had been served with an exclusion order. It is obvious even from the affidavit of the applicant that the immigration officer did not believe this applicant no matter how strongly he protested.

[10]            The basis for the convention refugee claim is a well-founded fear of persecution by reason of his perceived political opinion as well as ethnicity and religion since he comes from a mixed family of ethnic Serb and Muslim. This application seeks an injunction preventing the removal of the applicant from Canada until such time as his claim to convention refugee status in Canada can be heard and an order quashing the exclusion order made against the applicant. It is submitted that should he be removed from Canada before a determination on his application for convention refugee status gives rise to a serious issue; that the exclusion order has denied him eligibility to make a claim is a further issue subject to debate.

[11]            It has been submitted that no risk assessment has been conducted and the Minister is willingly and knowingly unaware of whether there is a likelihood that the claimant would indeed suffer a risk to his life or inhumane treatment were he to be returned to Yugoslavia.

[12]            It is further submitted the removal would cause the applicant to face irreparable harm which could not be easily compensable in damages and it is alleged that the evidence discloses he would suffer irreparable harm if he is removed from Canada at this time.

[13]            As to the balance of convenience, it is argued that it favours the applicant since he only has one opportunity to exercise his claim to establish him as eligible as a refugee claimant.

[14]            The respondent submits that it is not disputed that the applicant had no employment and no Vessel could be identified to the satisfaction of the immigration officials and that even after he was advised there was no Vessel in Canadian waters during the relevant period, he did not dispute these facts but continued to maintain his story. Following this an exclusion order issued against the applicant. It was not until after he was advised of his rights and was told that he was to be detained and returned to Yugoslavia that he suggested that he was afraid to return to Yugoslavia and that he was in Canada to seek refuge.

[15]       The tests to be met in order to justify the granting of a stay are : the existence of a serious question to be tried; irreparable harm if the stay is not granted; the balance of convenience lies in favour of granting a stay.

[16]      Counsel for the applicant argues that it is a bizarre result to refuse to allow an applicant to make a refugee claim in the circumstances that exist in this case, when, if the applicant had either destroyed the fraudulent travel documents in transit, or admitted their falsity on arrival, and made a refugee claim as soon as he reached Canada, never pretending to be someone other than who he really was, he would have been allowed to make such a claim. The applicant had been advised by the smuggler who made the arrangements to get him into Canada that he should leave the airport and then make a refugee claim. Counsel therefore argues that the approach of the Supreme Court of Canada decision in Singh v. Canada (Minister of Employment and Immigration), [1985] 17 D.L.R. (4^th) 422 indicates that the duty of fairness owed to the applicant at the interview stage is more extensive than was previously thought.

[17]      Though it has been submitted by the applicant that he should not be removed until there is a determination of his convention refugee status in Canada, it is submitted by the respondent that the Immigration Act, R.S.C., 1985, c. I-2 is quite clear. Pursuant to section 44 of the Act if a person is subject to a non executed removal order that person is ineligible to have a claim for refugee status determined and section 44 precludes a senior immigration officer from re-opening a decision to exclude. I agree.

[18]      Subsection 44(1) of the Act reads as follows :

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.		Toute personne se trouvant au Canada peut revendiquer le statut de réfugié au sens de la Convention en avisant en ce sens un agent d'immigration, à condition de ne pas être frappée d'une mesure de renvoi qui n'a pas été exécutée, à moins que la mesure n'ait été annulée en appel.

[19]      In the case of Raman v. Canada, [1994] 4 F.C. 140, the Federal Court of Appeal writing on a decision rendered by the Trial Division referred to the Trial Judge as follows in paragraph 9 :

In my view, s. 44(1) of the Act clearly precludes the SIO from reopening a decision to exclude. Once that decision is made a refugee may not seek a determination of a refugee claim unless an appeal from the order has been allowed. The decisions relied upon by the applicant are distinguishable in the sense that they were not made in the context of a SIO acting under s. 44(1) of the Act.

[20]      The Court of Appeal went on to state :

¶ 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 subsection 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 subsection would be rendered marcescent.   

¶ 10       I am also of the view that Parliament, in enacting subsection 44(1), contemplated judicial review of removal orders. It is noteworthy that subsection 44(1) of the Act contemplates an "appeal" from a removal order, when in fact no "appeal" is actually [page147] available. In my view, Parliament intended the word "appeal" used in subsection 44(1) to encompass judicial review. It follows from this that the appropriate process by which to contest a removal order is not to seek a reopening but to seek judicial review in the Trial Division of this Court.

[21]      In Sahi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 523 (QL) (F.C.T.D.), Madam Justice Reed also stated the following at paras. 6-8 :

I have no doubt that the senior immigration officer signed the exclusion order before the applicant disclosed his real identity, and before he disclosed that he wanted to make a refugee claim. [...] As noted, the order was signed before the applicant disclosed that he wished to make a refugee claim. There is no serious issue to be tried with respect to that factual assertion.

[22]      Though it has been suggested that the duty of fairness did require the interviewing immigration officers to canvass the possibility of a refugee claim during the inquiry and give the applicant an opportunity to make a refugee claim before they issued the Removal Order, the jurisprudence makes it very plain that such a duty does not exist in the immigration context. Of great relevance is the decision of the Immigration Appeal Division ("IAD") in Nguyen v. Canada (Minister of Citizenship and Immigration), [1996] I.A.D.D. No. 474 (QL) where the IAD stated the following :

¶ 10       In the immigration context, as in others, the rule mandating adequate opportunity to be heard, (the audi alteram partem rule), has a number of components. These include: the right to notice of a proceeding, the right to know the case to be met, the right to interpretation and counsel, the right to full participation, and the right to be heard by the person(s) making a decision.

¶ 11       The appellant does not submit that he was denied his right to full participation in the inquiry. He does not submit that he was denied his right to be heard by the adjudicator who issued the deportation order. He does not submit that he was denied his right to an interpreter. He does, however, submit that his right to counsel was affected by his financial situation and that, as a result, information about the nature and consequences of his inquiry was not made available to him in a timely manner. Thus, he submits, he was also effectively denied his right to proper notice of a proceeding, and his right to know the case to be met.

¶ 13       The panel also accepts that an adjudicator, like any other decision-maker, must be punctilious in carrying out all of his or her duties. The panel accepts that an adjudicator should be particularly vigilant in protecting the rights of an unrepresented person. However, in the opinion of the panel, an adjudicator need not exceed the duties mandated by the Act or the common law pertaining to the principles of natural justice.

¶ 14       A review of the Record of this appeal reveals that the appellant received copies of documents leading to the inquiry prior to its commencement. These were translated for him, and included a REPORT UNDER SECTION 27 OF THE IMMIGRATION ACT, and a DIRECTION FOR INQUIRY UNDER SUBSECTION 27 (3) OF THE IMMIGRATION ACT, 1976. The adjudicator explained the general purpose the inquiry, and then detailed the implications of a deportation order, insofar as these relate to removal from Canada, to subsequent re-entry, and to a right of appeal to the Appeal Division. The appellant does not submit that he was denied proper notice of a proceeding, or adequate information about the case to be met in this regard. However, he does submit that he was denied proper notice and adequate information in another regard. He submits that a person without counsel at an inquiry cannot be presumed aware of the Convention refugee determination process in Canada. Such a person, he submits, cannot be presumed aware that issue of a removal order effectively forecloses any future claim for Convention refugee status. While he acknowledges that the Act does not require an adjudicator to canvass the possibility of a refugee claim during an inquiry, he submits, because of the consequences of a removal order, that the principles of natural justice do.

¶ 15       It is common ground between the appellant and the respondent that, effective 01 February, 1993, the Act was amended to change the specified duties of an adjudicator at an inquiry. Prior to that date, an adjudicator was directed to canvass the possibility of a claim for Convention refugee status at each inquiry. Where such a claim was properly made, it was referred procedurally for consideration by the Convention Refugee Determination Division, and an inquiry was adjourned pending this consideration. Now, an adjudicator is no longer directed to canvass the possibility of a claim for Convention refugee status at each inquiry. However, where such a claim is made, it is referred procedurally to a senior immigration officer for consideration, while an inquiry nonetheless continues to its conclusion. Where a deportation order would normally issue, a conditional deportation order is issued instead, pending consideration of a refugee claim. As before the amendments came into force, no claim for Convention refugee status can now be made once a removal order, including a conditional deportation order, has been issued.

¶ 16       Do these amendments to the Act fundamentally change the duties of an adjudicator at an inquiry? In Dao, Ngoc Quy v. M.E.I., a colleague on the Appeal Division, dealing with submissions similar to those made by the appellant, concluded that they do, simply by virtue of their existence. In addition, analysis of the legislative scheme now provided in the Act, can lead to a similar conclusion, although following a slightly different line of reasoning. The previous statutory obligation upon an adjudicator to canvass a possible claim to Convention refugee status may well have been included in the Act simply because an inquiry had to be adjourned pending consideration of such a claim. This, of course, is no longer the case. As an adjudicator can now conclude an inquiry while simultaneous or subsequent consideration is given to a claim for Convention refugee status, and need only decide whether a removal order is to be conditional or unconditional, there may no longer be any need to canvass a possible refugee claim. The Act has clearly been amended to eliminate an adjudicator's obligation to do so, and this can be seen as conclusive of the matter.

¶ 17       It is trite to say that the panel cannot second guess the intentions of Parliament respecting legislative amendments, and we cannot assume that these are made capriciously or inadvertently. That being said, however, the principles of natural justice may provide for obligations upon decision-makers where statute law does not. Was the former statutory obligation an articulation of those principles? If so, then its deletion from the Act does not necessarily affect the duties of an adjudicator during an inquiry.

¶ 18       Although the principles of natural justice are flexible, depending upon the nature of the case in which they are being assessed, the right to notice of a proceeding, and to know the case to be met, are generally construed to mean that a person subject to the exercise of quasi-judicial powers must be advised about the nature of an impending decision, its timing, its consequences, and the evidence upon which it will be based. Thus, these rights are typically concerned with ensuring a genuine opportunity to fully conduct a case before a decision maker. The panel is not aware of any instance where they have be held to require that information be provided about matters not directly at issue in a proceeding. That is, we are not aware of any instance where they have been held to require a decision maker to detail the indirect implications of the manner in which a case is conducted. For example, a judge is not expected to address the impact of a conviction upon immigration status before receiving a plea, hearing submissions, making a finding or imposing a sentence in a criminal trial. Similarly, a member of an administrative tribunal is not expected to address the impact of impending changes in legislation before receiving, considering and disposing of an adjournment request which might, by its timing, affect substantive rights. Do the principles of natural justice nonetheless require that an adjudicator advert to a possible Convention refugee claim before concluding an inquiry? If so, in our opinion, it must be because of the nature of a refugee claim, and the ultimate foreclosure of such a claim by the inquiry process.

¶ 19       The panel accepts that individuals fearing persecution in other countries have a significant interest in access to the Convention refugee determination process in this country. It accepts that the right to a life free of such fear is a fundamental one, which should be broadly nurtured and protected. That being said, the panel is satisfied, as was our colleague, noted above, that the onus in calling upon the operation of our refugee determination system appears to lie squarely with a person who wishes to claim its protection.

¶ 20       The appellant was in Canada for almost seven years before his inquiry was convened. He could have made a claim to Convention refugee status at any point during that time period. He received notice of his inquiry, the purpose and effect of which was described to him. He was advised about the consequences of a deportation order, insofar as it would effect removal from, and place restrictions upon re-entry into Canada. He was advised about the evidence sustaining the deportation order, and was afforded an opportunity to refute it. The inquiry was not convened to address a claim for Convention refugee status in any way. The refugee determination process is quite separate from the inquiry process, save for the indirect consequence that a person is free to make a refugee claim only until a removal order is actually made. A removal order, whether it is conditional or unconditional, can be brought before the Appeal Division for similar kinds of scrutiny. While it might be prudent, or simply humane to do so, the panel is satisfied that the principles of natural justice, in particular those associated with the audi alteram partem rule, do not oblige an adjudicator to inquire about fear of persecution, or to indicate that a deportation order forecloses access to the Convention refugee determination process in Canada. [Emphasis added and references omitted]

[23]      Mr. Justice Pinard also dealt with the issue of a secondary stage interview in Chen v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 129. He wrote at para. 7 :

[...] 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. (See also Umba c. Canada (Ministre de la Citoyenneté et de l'Immigration), [2001] A.C.F. no. 870 (QL) at paras. 16-17).

[24]      Finally, the Federal Court of Appeal in Raman, supra, dealt with a case very similar to the present, in that, the failure to claim refugee status immediately upon arrival was the result of misinformation given to the applicant. The Court stated the following at para. 14 of its decision :

While it has been argued that the appellant was misinformed regarding the best time to make a refugee claim, I do not see how this can relieve him of his obligation to be truthful when presenting himself at our border for entry. A senior immigration officer is under no obligation to second-guess the representations of people who decline the opportunity to make a refugee claim.

[25]      Counsel for the respondent refers me to the notes taken by the first senior immigration officer when interviewing this applicant at the airport. Although the applicant was not asked whether he wished to make a claim for Convention refugee status, he was specifically asked the question : "Do you have any problem returning to Yugoslavia?" to which he answered : "No, I don't". And even after the second interviewing officer went through the trouble of trying to locate a Vessel or make further inquiries, and after confronting the applicant with the facts, he still maintained and persisted in his story.

[26]      The applicant also suggested the lack of a risk assessment breaches the principles of fundamental justice.

[27]      ln reply, the respondent submits that the fundamental issue here is credibility. As I just pointed out in the quotation from the first interviewing officer's notes, the applicant did not, at any time during his inquiry, express any fear of persecution, should he return to Yugoslavia. Had he done so prior to the issue of the removal order, the adjudicators' duty as immigration officers would have been quite different. Clearly, neither section 44 of the Act nor the jurisprudence of this Court would have prevented people from claiming convention refugee status in Canada or exclude them from entering Canada without giving them the opportunity to seek such status in such circumstances. They are perfectly at liberty to do so when they are changing their story. However, as I noted, during neither interview prior to the removal order being issued did this claimant express any fear to return to Yugoslavia. Furthermore, and in any event, there is no objective evidence before the Court to suggest that the applicant had reasonable grounds to fear that his life would be at risk or that he might be subjected to inhumane treatment if he were to be returned.

[28]      In light of the existing jurisprudence which clearly applies to the circumstances of this case, I cannot accept the argument that the Singh decision, which predated all the decisions referred to above, changes anything with respect to the duty owed by a senior immigration officer to a person in the position of the applicant in this case. I do not find reasoning in that decision that supports a conclusion that a duty to canvass a possible claim to Convention refugee status during the inquiry before issuing an removal order existed in the circumstances of this case. In my view, the applicant failed to convince the Court that there is a serious issue.

[29]      With respect to irreparable harm, as the counsel for the respondent points out, it would be merely speculative at this stage considering the facts and circumstances of this case. There is no evidence supporting the speculation as to his eventual persecution in Yugoslavia.

[30]      Finally, the balance of convenience clearly favours the Minister. The public interest and the Act require that the Minister execute deportation orders expeditiously and as soon as reasonably practical.

[31]      Therefore, the application for judicial review of the removal order is denied and the stay of the removal order is dismissed.

     JUDGE

OTTAWA, Ontario

May 3, 2002