Date: 20000412
Docket: IMM-1711-00
BETWEEN:
SHOUKAT MAHMOOD SAHI
a.k.a. AJMAL KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.
[1] These reasons relate to an order issued 6 April 2000, refusing to stay an exclusion order.
[2] The applicant sought a stay of the exclusion order that was issued against him on April 1, 2000, pending resolution of his application for leave to commence a judicial review proceeding with respect to the decision to issue the exclusion order. It is alleged that the exclusion order is invalid because: (1) the senior immigration officer signed the exclusion order after the applicant had indicated his intention to make a refugee claim; (2) there was a breach of natural justice because and the applicant was not given an opportunity to have counsel present at the interview; the nature of the potential results of the interview by the senior immigration officer (exclusion from Canada) was not explained to the applicant before the interview.
[3] The applicant arrived at the Vancouver International Airport on April 1, 2000. He carried with him a passport in the name of Ajmal Khan, and purported to be that person, a citizen of Malaysia. After being asked questions by a customs and immigration officer, at what is called the primary examination stage, the applicant was interviewed by an immigration officer, Mathew Barrington, at what is called the secondary examination stage. The passport the applicant was carrying appeared to be fraudulent. The applicant asserted throughout the interview that he was Ajmal Khan, that he was coming to Canada as a visitor, and had no fear of returning to Malaysia.
[4] The applicant was then interviewed by a senior immigration officer, Ralph Brosinki who sought verification from the applicant of the information he had given to Mr. Barrington, at what is referred to by counsel for the applicant as the tertiary examination stage. The applicant continued to assert that he was Ajmal Khan, a citizen of Malaysia, and was coming to Canada as a visitor for a short period of time. The senior immigration officer concluded, on the basis of a report from the R.C.M.P., that the applicant"s passport was fraudulent. The senior immigration officer, then, signed the exclusion order and asked the applicant to also sign. The applicant refused. The officer wrote on the signature line that the applicant"refused to sign". The officer contemporaneously told the applicant that he was being excluded from Canada.
[5] The applicant then told the officer that he was not Malaysian but Pakistani and he did not want to leave Canada. He subsequently disclosed his identity and that he intended to make a refugee claim on the ground that he was a member of the Muslim League, supporters of the fallen Sharif regime in Pakistan. He alleged that he would be persecuted there for his political (opinions) affiliations.
[6] 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. The officer was cross-examined on his affidavit, and there is no reason to doubt his description of events. The officer corrected a typographical error in his "Section 20 Highlights Report" to add a negative to a sentence. I have no doubt that this was not an attempt at dissimulation, but the bona fide correction of a typo. The syntax of the uncorrected sentence supports such a conclusion.
[7] 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.
[8] 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. Also, I do not think there is a serious issue concerning a right to counsel. The jurisprudence to which I was referred by counsel for the respondent makes it very plain that such does not exist. Counsel for the applicant sought to distinguish that jurisprudence on the ground that the interview by the senior immigration officer was a "tertiary" stage interview, not a secondary stage interview (discussed further below). The aspect of counsel for the applicant"s argument that gave me most pause is that there is an obligation on senior immigration officers to inform interviewees, ahead of an interview, that the consequences, arising therefrom, can be the issuance of an exclusion order. The applicant, in this case, disclosed his true identity and intentions after the exclusion order was signed, when he was told that the consequence of that act was his exclusion from Canada.
[9] 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 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 a refugee 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 argues that the approach of the recent Supreme Court of Canada decision in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, indicates that the duty of fairness owed to the applicant at the "tertiary" interview stage is more extensive than was previously thought.
[10] Mr. Justice Pinard 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:
| ... 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. |
[11] The Federal Court of Appeal in Raman v. Canada (Minister of Citizenship and Immigration) (A-30-97, 4 June, 1999) dealt with a case 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 wrote:
| While it has been argued that the appellant was mis-informed 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. |
. . . .
| In the case at bar, the appellant was asked if he wished to make a claim for Convention refugee status, which opportunity he declined. ... the conscious, voluntary refusal to make a Convention refugee claim must be sufficient to relieve a Senior Immigration Officer of further constitutional duties. It is trite law that the principles of fundamental justice mandate different procedures in different circumstances. ... Any person, who is not a citizen of Canada however, does have a right to make a claim for Convention refugee status. If a person properly makes such a claim at the appropriate time, the Charter offers significant procedural protections, but such a claim has not been made in this case. |
[12] In Dehghani v. Canada (The Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, Mr. Justice Iacobucci, writing for the Court, dealt with a different issue from that arising in this case, but he made some very pertinent comments about the nature of the questioning that occurs at ports of entry:
| "Individuals expect to undergo questioning with respect to their entry into Canada whether that be in the immigration or customs context. These interests and expectations dictate that examination of a person for purpose of entry must be analyzed differently from the questioning of a person within Canada. |
. . . .
| As Mahoney J.A. noted for the majority of the Federal Court of Appeal, it would be unreasonable to expect the screening process for all persons seeking entry into Canada to take place in the primary examination line. For those persons who cannot immediately produce documentation indicating their right of entry, the screening process will require more time, and a referral to a secondary examination is therefore required. There is, however, no change in the character of the examination simply because it is necessary for reasons of time and space to continue it at a later time in a different section of the processing area. The examination remains a routine part of the general screening process for persons seeking entry to Canada. |
[13] I have not been persuaded that there is any difference in the nature or character of the questioning that occurs at what counsel calls the "tertiary" stage interview, than that which occurs at the secondary stage. It is merely a continuation of the screening process for persons seeking entry to Canada. I do not think there is any serious question that the rules of fairness impart the right to counsel at the tertiary interview stage. The existing jurisprudence applies to the circumstances of this case. Also, I cannot accept the argument that the Baker decision changes the existing jurisprudence with respect to the duty owed by a senior immigration officer to a person in the position of this applicant. That decision dealt with the standard of review applicable to an humanitarian and compassionate decision, the ignoring of evidence by the decision maker, and what constituted reasons for the decision. I do not find reasoning in the decision that supports a conclusion that a right to counsel exists in the circumstances of this case.
[14] With respect to the argument that the senior immigration officer had a duty to inform the applicant of the potential consequences of the interview before embarking on it, I have decided, on reflection, that that argument is simply not open to the applicant in this case. I note that Mr. Justice Iacobucci in the Dehghani case refers to the fact that "[i]ndividuals expect to undergo questioning with respect to their entry into Canada whether that be in the immigration or customs context". Mr. Justice Pinard in Chen stated that: "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". A review of the affidavit filed by the applicant, in support of the present motion, does not contain any assertion that he was not aware of the potential consequences of the interview, that is, that it could lead to a refusal to allow him to enter Canada.
[15] For the reasons set out above, I cannot conclude that there is a serious issue raised by the applicant.
[16] I turn then to the evidence concerning irreparable harm. I understand that the applicant will be returned to New Zealand, and it will be the responsibility of the airline who brought him here to return him. Counsel for the applicant questions, however, whether the applicant will be able to regain entry to New Zealand, since he is a Pakistan citizen, not a New Zealander. The applicant stayed in New Zealand for two months before coming to Canada; before that he was in Indonesia for a short period of time. Counsel for the applicant argues that as a matter of international law, the only country that will be required to accept the applicant is Pakistan, and both New Zealand and Malaysia are likely to refuse him entry. Therefore, it is argued that the applicant will end up in limbo, or be returned to Pakistan where he alleges he will be persecuted.
[17] Counsel refers to the Court of Appeal decision in Suresh v. Minister of Citizenship and Immigration (A-415-99, July 23, 1999). He states that that decision indicates that irreparable harm will exist not only when an applicant would be in physical danger as a result of being removed from Canada, but also when the applicant"s judicial review application would be rendered moot by removal. I read that decision more narrowly. I understand the second type of irreparable harm to exist when an applicant would not be able to benefit from whatever rights might arise as a result of a positive decision on the judicial review. In Suresh the Court considered that it was unlikely, if the applicant were returned to Sri Lanka, that he would be able to return to Canada even if his appeal to the Federal Court of Appeal were successful:
| "Mr. Suresh"s successful constitutional challenge would be a hollow victory, since the Sri Lankan authorities would be unlikely to release him and, maybe, he would be unable to avail himself of the fruits of his victory, most likely his right to remain in Canada". |
[18] The only evidence concerning the country to which the applicant will be returned that is before me, however, is the applicant"s statement that he would be put on the return flight to Honolulu (he had come from New Zealand, via Honolulu). There is no evidence supporting the speculation as to his eventual destination.
[19] The applicant has failed to establish a serious issue to be tried, and any allegations of irreparable harm are, at best, speculative. Accordingly, I refused to stay the exclusion order.
(Sgd.) "B. Reed"
Judge
April 12, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1711-00
STYLE OF CAUSE: Shoukat Mahmood Sahi
v.
MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: April 6, 2000
| REASONS FOR ORDER OF Reed, J. |
DATED: April 12, 2000
APPEARANCES:
| Mr. William Macintosh For the Applicant |
| Ms. Pauline Anthoine For the Respondent |
SOLICITORS OF RECORD:
William Macintosh Associates
Barristers and Solicitors
| Surrey, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |