Date: 20040205
Docket: IMM-10261-03 & IMM-10263-03
Citation: 2004 FC 199
Ottawa, Ontario, this 5th day of February, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
JACINTHA SIVALINGAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Jacintha Sivalingam, a citizen of Sri Lanka, has brought a second motion within a few days to stay the execution of an order requiring her to leave Canada for Germany. The exclusion order was issued following her arrival at Montreal from Germany on November 20, 2003.
[2] The first stay application was brought before my colleague Justice O'Reilly on January 30, 2004. Justice O'Reilly denied the motion on the same day on the ground that the material before him did not disclose any basis for her alleged fear of persecution if she were to be returned to Germany. Given the paucity of materials and evidence before him, an oral hearing was not conducted.
[3] The applicant's second motion was filed on February 3, 2004, ostensibly on the basis of further evidence. A more extensive affidavit was filed, than that before Justice O'Reilly, alleging that the applicant feared a return to Germany because it would lead in her view, to an immediate return to Sri Lanka, where she feared persecution on the grounds of her membership in the Tamil minority and as a young woman susceptible to recruitment by the Tamil Tigers or sexual abuse by the Singhalese military.
[4] The new affidavit also claimed that there had been a fundamental error made by the Minister's delegate in that she was declared ineligible to make a refugee claim pursuant to s. 101 (1)(b) of Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") by reason that her claim for refugee status had previously been considered and rejected by the Board. The applicant attested to the fact that she had never before been in Canada nor brought a refugee claim in this country.
[5] On reviewing the new motion and affidavit evidence, and having due regard to judicial comity and the principles of res judicata and issue estoppel, I was concerned that the applicant may have been denied procedural due fairness in the treatment she was accorded at the Port of Entry. Accordingly, I directed that a teleconference hearing take place and received oral
submissions from counsel for the applicant and respondent at 3 pm on Thursday, February 4, 2004. At the conclusion of the hearing, there remained several unresolved questions and I invited counsel to submit further written representations and affidavit evidence which they have done today.
[6] The applicant has been in custody since her arrival at Montreal and is, to a great extent as her counsel has acknowledged, the author of her own misfortune. On disembarking from the aircraft at Montreal, she chose to present a stolen Canadian passport with a crudely substituted photograph of herself in the name of one Radhanie Basmattie. When questioned repeatedly about her origins she persisted in claiming to be a Canadian Citizen born in Surinam.
[7] The applicant was asked several times by the interviewing Immigration Officer and subsequently by the Minister's delegate whether she feared persecution if returned to Germany or in another country and on each occasion replied in the negative. An exclusion order was therefore issued in the name of Radhanie Basmattie pursuant to paragraphs 41 (a) and 20 (1)(a) of IRPA and section 6 of the Immigration and Refugee Protection Regulations, SOR/2002-227. Further, a report was submitted to the Minister under IRPA subsection 44(1).
[8] At some point in the next few days after the issuance of the exclusion order and a detention order, the applicant chose to put aside the pretence that she was a Canadian citizen, disclosed her Sri Lankan origins and attempted to make a refugee claim. Her affidavit, filed on this motion, states that "she communicated her intention to make a refugee claim to the immigration officer" after she was apprehended at the airport. The officers' notes are clear that she refused to make such a claim while persisting in asserting the false identity until the exclusion order was made. Her assertion that it occurred prior to the making of the exclusion order is undermined by the fact the order is made under the false name.
[9] On November 23, 2004, the Minister's delegate at Dorval Airport issued an ineligibility determination on the ground that she had already presented a claim for refugee protection that had been rejected by the Board (paragraph 101 (1)(b) IRPA).
[10] The respondent has now confirmed that this determination was made erroneously but argues that it is irrelevant, as the applicant was no longer entitled to make a claim for protection following the issuance of the exclusion order, pursuant to subsection 99(3) of IRPA.
[11] An application for an extension of time and for leave and judicial review of the exclusion order was filed by the applicant on December 24, 2003 and remains outstanding. The grounds for that application are that the Immigration Officer erred in law and made capricious findings of fact. The extension of time is requested on the basis that the applicant was in detention in Montreal and had difficulty in retaining and instructing counsel in Toronto.
[12] A Pre-Removal Risk Assessment ("PRRA") application was rejected on February 4, 2004, on the ground that the applicant would not be subjected to a risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment if returned to her country of nationality.
[13] On this motion, to satisfy the serious issue arm of the tripartite test in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), the applicant argues that the Immigration Officer erred in law in finding her ineligible to make a refugee claim and in issuing an exclusion order against her. Irreparable harm would be caused because she would ultimately be deported from Germany to her native Sri Lanka where she has, allegedly, experienced persecution at the hands of the Sri Lankan armed forces as well as the LTTE. As noted above, the PRRA decision rejects the applicant's claims in that regard.
[14] Having carefully reviewed the applicant's evidence and submissions, I am not satisfied that she has established that there is a serious issue to be tried. While the ineligibility decision pursuant to subsection100 (1)(b) of IRPA was incorrectly issued, I have concluded that the applicant cannot rely on that error, as the exclusion order at the port of entry was correctly issued and she was not entitled thereafter to the eligibility determination.
[15] The respondent argues that there was no jurisdiction to conduct an examination of the eligibility to refer the applicant's claim for refugee protection to the Refugee Protection Division pursuant to section 100 of IRPA and I agree with that submission. A person inside Canada may not make a claim for refugee protection if they are subject to a removal order: subsection 99 (3) IRPA.
An exclusion order under subsection 41(1) is a "removal order" as per s. 223 of the Immigration and Refugee Protection Regulations, SOR/2002-227, see also the cases of Raman v. Canada (Minister of Citizenship and Immigration) (1996), 125 F.T.R. 50, aff'd [1999] 4 F.C. 140 (C.A.) and Daher v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 131, dealing with subsection 44(1) of the former Immigration Act, R.S.C. 1985, c. I-2 which similarly barred commencement of a refugee claim where a "removal order" had been made. In those cases, "exclusion" orders were found to constitute "removal orders" for the purposes of barring the commencement of a refugee claim. On the evidence before me in the present case, that order was properly issued, and the applicant has not raised a serious issue in challenging it.
[16] In the circumstances, having concluded that the applicant fails on the serious issue test, there is no need for me to examine the question of irreparable harm or balance of convenience. I should note, however, that counsel for both parties have endeavoured to clarify how the German refugee protection procedure would deal with the applicant should she be returned to that country. Requests were made to the German Embassy for information and the results have been submitted to me by affidavit evidence. Due to the short notice of the requests, the information is not extensive but it appears that the applicant would encounter some or considerable difficulty in making a claim in that country due to her lack of valid travel documents and recent travel history. There is no evidence before me, however, that she would be subject to persecution or other harm in Germany while awaiting a refugee protection determination.
[17] Therefore this motion is dismissed.
ORDER
THIS COURT ORDERS that this motion for a stay of removal is dismissed.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10261-03 & IMM-10263-03
STYLE OF CAUSE: JACINTHA SIVALINGAM
AND
THE MINISTER OF CITIZSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 4, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: February 5, 2004
APPEARANCES:
Max Berger FOR THE APPLICANT
John Loncar FOR THE RESPONDENT
SOLICITORS OF RECORD:
MAX BERGER FOR THE APPLICANT
Barrister & Solicitor
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario