Date: 19981113
Docket: IMM-5833-98
IMM-5834-98
IMM-5836-98
IMM-5839-98
IMM-5833-98
BETWEEN:
AI JUAN YANG,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent,
IMM-5834-98
AND BETWEEN:
CUI WAN SU,
also known as SHUN HAR LEE,
Applicant,
- and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent,
IMM-5836-98
AND BETWEEN:
CAN XING YANG,
also known as KA HO KARL SO,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent,
IMM-5839-98
AND BETWEEN:
YIN BIN YANG,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
EVANS, J.
[1] These are motions brought by Ai Juan Yang, Cui Wan Su, and Can Xing Yang, citizens of the People's Republic of China, for a stay of execution of their removal to Hong Kong tomorrow pursuant to exclusion orders issued on March 9, 1998 following their arrival at Vancouver International Airport earlier that day.
[2] A similar motion was filed in respect of Yin Bin Yang, also a citizen of the People's Republic of China, but on discovering that he is a minor, the respondent or her officials referred his refugee claim to the Convention Refugee Determination Division of the Immigration and Refugee Board and his removal has been cancelled pending the Refugee Division's decision. No stay is therefore requested for him.
[3] Exclusion orders were issued against the applicants on the ground that they were inadmissible under subsection 19(2)(d) of the Immigration Act [R.S.C. 1985, c. I-2] [as amended] in that they were not in possession of valid passports or other travel documents as required by subsection 14(3) of the Immigration Regulations, 1978 [SOR/78-172] [as amended]. The immigration officers who examined them were of the view that their Hong Kong travel documents were false; indeed, Ai Juan Yang admitted that she had been born in China, and had purchased her passport in Hong Kong.
[4] By virtue of subsection 44(1) of the Immigration Act, a person against whom a removal order has been made may not subsequently make a refugee claim: a "removal order" is defined by subsection 2(1) to include an exclusion order.
[5] Ms. Tammy Sigurdson was the SIO who, together with her colleague, Mr. Jan Tsang, interviewed the applicants and issued the exclusion orders. In her affidavit, she stated that, prior to the issue of the exclusion orders, the applicants said that they were coming to Canada for a visit of two or three weeks, that they had had no problems in China or Hong Kong and did not fear being returned there. She also stated that they were told the contents of the exclusion orders, and were advised of the significance of the issuing of the orders and of their right of appeal. The applicants were also asked whether they understood these explanations and had any questions; they replied that they understood and had no questions.
[6] Following the issue of the exclusion orders, the applicants were advised of their constitutional right to counsel and were given a telephone number where they could contact a lawyer. Ms. Sigurdson also said that another officer, Mr. Kooner, made arrangements for their transportation to detention and, since it was standard practice, she believed that Mr. Kooner would have facilitated any communication that the applicants wished to make with a lawyer.
[7] In their affidavits, the applicants stated that while they were detained their requests to contact a lawyer and to make a refugee claim were refused. They also said that they were threatened with hand-cuffing if they spoke and were given only one meal a day. Counsel for the respondent said that the Minister took these allegations very seriously, but denied that they were true.
[8] Counsel for the applicants sought a stay of their removal on the grounds that they had been denied their right to counsel in breach of sections 7 and 10(b) of the Canadian Charter of Rights and Freedoms, and of their right to have their refugee claims determined in accordance with section 7 of the Charter.
[9] I am very doubtful whether I have jurisdiction to grant a stay on the basis of the evidence and submissions before me. The applicants' affidavits do not contradict the affidavit of the SIO who said that, when asked, the applicants denied that they had had any problems in Hong Kong or China or that they were afraid to return. Consequently, I have difficulty in seeing how their removal would violate any constitutional right.
[10] If, as the applicants allege, they were subsequently denied access to counsel and their requests to make refugee claims, this would not, in my view, invalidate either the exclusion orders or their removal. Having had an opportunity to make refugee claims, prior to the issue of the exclusion orders, and having failed to avail themselves of it, the applicants have no further constitutional right to make refugee claims prior to their removal. Moreover, no application for leave to commence an application for judicial review has been filed.
[11] Even if I had jurisdiction to grant a stay, which I doubt, I am not persuaded that I should exercise it because the applicants have not satisfied all three prongs of the test for issuing stays established in Toth v. Minister of Employment and Immigration (1988), 86 N.R. 302 (F.C.A.).
[12] As to the existence of a serious issue to be decided respecting the legality of the removal of the applicants, Ms. Sigurdson swore that they were given a reasonable opportunity to make a refugee claim, and that one applicant used the public pay telephone at the airport prior to the issue of the exclusion orders to make several telephone calls. Counsel for the respondent submitted that the applicants had no constitutional right to have counsel present at an immigration interview prior to the issue of an exclusion order: Nayci v. Canada (Minister of Citizenship and Immigration) (1995), 105 F.T.R. 122.
[13] In reaching this decision, Muldoon J. relied on Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, where it was held that section 7 of the Charter did not apply to the conduct of a secondary immigration examination because it was merely an information-gathering process, and did not determine the rights of individuals: this would occur at the inquiry into the applicant's removal, where he would be heard with counsel.
[14] However, under the current legislation, an SIO's examination may lead to the issue of an exclusion order, as it did here, without the benefit of a hearing; a right to counsel can therefore no longer be said to create a "mini-inquiry" prior to an inquiry. Since the issue of an exclusion order has a significant impact on individual rights by barring any subsequent right to a determination by the Refugee Division of a claim to be recognized as a refugee, it is a serious issue whether section 7 of the Charter requires an SIO to advise individuals of their right to counsel before an exclusion order is issued.
[15] As to the second element of the Toth test, there is no evidence before me that the applicants would suffer irreparable harm if they were returned to Hong Kong, and even eventually to China. A bare assertion that they had a fear of persecution, without more, is not sufficient evidence of irreparable harm: Atakora v. Minister of Employment and Immigration (1993), 68 F.T.R. 122 (F.C.T.D.). In view of these findings, I am satisfied that the balance of convenience favours the prompt removal of the applicants by the Minister pursuant to her statutory obligation.
[16] Accordingly, I dismiss these motions for a stay.
(Sgd.) "John M. Evans"
Judge
Vancouver, British Columbia
November 13, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NOs: IMM-5833-98
IMM-5834-98
IMM-5836-98
IMM-5839-98
| STYLE OF CAUSE: IMM-5833-98: AI JUAN YANG v. MCI |
| IMM-5834-98: CUI WAN SU v. MCI |
| IMM-5836-98: CAN XING YANG v. MCI |
| IMM-5839-98: YIN BIN YANG v. MCI |
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
REASONS FOR ORDER BY: EVANS, J.
DATED: NOVEMBER 13, 1998
APPEARANCES:
Mr. Milan Uzelac
For the Applicant
Ms. Brenda Carbonell
For the Respondent
SOLICITORS OF RECORD:
| Mr. Milan Uzelac |
Barrister and Solicitor
202 - 938 Howe Street
Vancouver, BC
V6Z 1N9
For the Applicant
Mr. Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent