Date: 20050725
Docket: IMM-7899-04
Citation: 2005 FC 1026
Ottawa, Ontario, the 25th day of July 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
EMEKA ELEMUWA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Applicant, Emeka Elemuwa, is seeking judicial review of the September 13, 2004, decision of the Minister's Delegate (the Delegate) that the Applicant was inadmissible to Canada and his request for refugee protection could not be entertained because he was the subject of an exclusion order.
[2] The Applicant is asking this Court to set aside the Delegate's decision and to allow him to make his refugee claim.
BACKGROUND FACTS
[3] The Applicant, a citizen of Nigeria, came to Canada in September 2004. His luggage was searched at the point of entry and inside were a number of items that would have enabled the Applicant to make counterfeit documents along with two passports bearing the Applicant's name but showing different dates of birth.
[4] Two immigration officers met with the Applicant at the point of entry. The Applicant stated to the first officer that he came to Canada as a tourist, that he worked for an aviation company in Ethiopia and that he would have no particular problem if he had to return to Nigeria. To the second officer, the Applicant stated that he wanted to live and work in Canada. Both officers found that the Applicant was inadmissible to Canada under paragraph 41(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) because he did not have proper documentation to work and reside legally in Canada as required by law. The officers' findings were reported to the Delegate and led to the Applicant's exclusion and inability to seek protection under the Convention.
[5] Leave to commence this application for judicial review was granted on January 20, 2005.
IMPUGNED DECISION
[6] On September 13, 2004, the Delegate received the report of the two immigration officers who had interviewed the Applicant at the port of entry and he found their recommendation sound. Consequently, the Delegate issued an exclusion order against the Applicant.
[7] The Applicant was declared inadmissible to Canada under paragraph 41(a) of the IRPA since he failed to comply with the Act, specifically paragraph 20(1)(b) of the IRPA and section 8 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), which require that every foreign national hold a visa or other document required by the Regulations.
[8] In his notes, the Delegate indicated that he met with the Applicant to explain the exclusion order issued against him, and this caused the Applicant to panic and state that his life was in danger in Nigeria. The Delegate noted that the Applicant's attempt to claim refugee status only after the exclusion order was issued against him showed that he was claiming refugee status in order to remain in Canada. The Delegate highlighted the inconsistencies in the declarations of the Applicant, who stated that while working in Ethiopia, he claimed protection from Nigeria. Yet, the Applicant stated that he repeatedly asked to contact the Nigerian embassy in Ethiopia all the while claiming protection against Nigeria. The Delegate further noted that the Applicant first said that he came to Canada as a tourist and then stated that he came to possibly live here.
[9] The Delegate considered that the Applicant's claim for refugee protection could not be entertained under subsection 99(3) of the IRPA because he was subject to an exclusion order.
ISSUES
[10] The following two issues are raised in this application:
1) Whether the Delegate erred in issuing the exclusion order and in rejecting the Applicant's claim for refugee status?
2) Whether this application for judicial review should be dismissed because the application for leave was not personally served on the Respondent?
ANALYSIS
1) Whether the Delegate erred in issuing the exclusion order and in rejecting the Applicant's claim for refugee status?
[11] Section 41 of the IRPA provides that a foreign national may be declared to be inadmissible for non-compliance with the Act.
| 41. Non-compliance with Act A person is inadmissible for failing to comply with this Act
(a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act; and
(b) in the case of a permanent resident, through failing to comply with subsection 27(2) or section 28. |
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41. Manquement à la loi S'agissant de l'étranger, emportent interdiction de territoire pour manquement à la présente loi tout fait -- acte ou omission -- commis directement ou indirectement en contravention avec la présente loi et, s'agissant du résident permanent, le manquement à l'obligation de résidence et aux conditions imposées. |
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[12] The Applicant was declared inadmissible for failing to comply with paragraph 20(1)(b) of the Act and section 8 of the Regulations, which provide:
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20. Obligation on entry (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,
(a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and
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20. Obligation à l'entrée au Canada (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver :
a) pour devenir un résident permanent, qu'il détient les visa ou autres documents réglementaires et vient s'y établir en permanence; |
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| 8. Work permit (1) A foreign national may not enter Canada to work without first obtaining a work permit. |
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8. Permis de travail (1) L'étranger ne peut entrer au Canada pour y travailler que s'il a préalablement obtenu un permis de travail. |
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[13] The Applicant advances a number of arguments in support of his contention that the exclusion order was improperly issued and that the Delegate erred in failing to accept the Applicant's refugee claim. The Applicant claims that he came to Canada legally, was legally admitted and claimed refugee protection before the exclusion order was issued against him. The Applicant argues that the Respondent's accounts regarding the Applicant's entry to Canada were inconsistent. During the September 14, 2004, hearing of a motion for a stay of a removal order, the Applicant states that, on the one hand, the Respondent submitted that the Applicant attempted to enter Canada illegally. On the other hand, in the Respondent's written representation in his motion record of September 17, 2004, the Respondent admits that the Applicant was admitted to Canada and that his admission was subsequently cancelled after certain documents in his luggage were found. The Applicant submits that the onus was on the Respondent to present an accurate sequence of events without inconsistencies in order that the Court makes a proper decision.
[14] The Applicant further argues that the Delegate misinterpreted the Regulations by failing to recognize "that a foreign national can enter Canada without a working visa and yet still work or change his visa to a working visa". Finally, the Applicant argues that the Respondent did not come to the Court with clean hands. The Applicant contends that the Respondent tried to mislead the Court by stating that the Applicant came to Canada illegally and did not "amplify" to the Court that the first answer that when asked about his purpose to Canada, the Applicant's initial answer was to visit, not to reside and work in Canada. Further, the Respondent failed to disclose to the Court and to counsel all items, information and documents that were in his possession.
[15] I am of the view that the above arguments put forward by the Applicant are all without merit. In the context of this application, it serves no useful purpose to debate the issues of fact and law that were before the Court on the hearing of a "last minute" stay application where a responding party has very little time to prepare. It is undisputed that, at the port of entry, the Applicant stated he came to Canada as a visitor and, after being questioned, said he intended to live and work in Canada. The Applicant did not hold a work permit. In my view, unlike what the Applicant alleged, an immigration officer's discretion is not so broad as to grant admission to Canada to a foreign national who would like to work in Canada. I agree with the Respondent's position that section 8 of the Regulations makes it clear that all foreign nations must obtain a work permit before entering Canada and the only exception to this obligation is set out in section 186 of the Regulations. It is apparent that the Applicant does not meet any of the criteria for the exceptions in section 186 to apply and therefore could not be issued a work permit. It follows that the Applicant was not in possession of a work permit and therefore was attempting to enter Canada contrary to subsection 20(1)(b) of the IRPA, which requires that any temporary resident hold a visa and the documents required by the Regulations. In my view, the immigration officers correctly determined that the Applicant was inadmissible to Canada under paragraph 41(a) of the Act. I am further of the view that it was open to the Delegate, upon receipt of the report prepared by the immigration officers, to issue an exclusion order in accordance with subparagraph 228(1)(c)(iii) of the Regulations, which provides as follows:
| 228.(1) For the purposes of subsection 44(2) of the Act, and subject to subsection (3), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order shall be
[...]
(c) if the foreign national is inadmissible under section 41 of the Act on grounds of
[...]
(iii) failing to establish that they hold the visa or other document as required under section 20 of the Act, an exclusion order, [...] (My emphasis)
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228. (1) Pour l'application du paragraphe 44(2) de la Loi, mais sous réserve des paragraphes (3) et (4), dans le cas où elle ne comporte pas de motif d'interdiction de territoire autre que ceux prévus dans l'une des circonstances ci-après, l'affaire n'est pas déférée à la Section de l'immigration et la mesure de renvoi à prendre est celle indiquée en regard du motif en cause :
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c) en cas d'interdiction de territoire de l'étranger au titre de l'article 41 de la Loi pour manquement à :
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(iii) l'obligation prévue à l'article 20 de la Loi de prouver qu'il détient les visa et autres documents réglementaires, l'exclusion, [...] (Je souligne)
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[16] With respect to the Applicant's contention that the Delegate issued the order despite the fact that a claim for protection had been made, the burden is on the Applicant to establish on the balance of probabilities that the events occurred as alleged in the Applicant's memorandum. In essence, the Applicant alleges that, by failing to receive a claim for protection, an immigration officer acted contrary to the IRPA and to Canada's international obligations. The Applicant questions the officer's integrity and in order to prove such allegations, the facts upon which they are based must be stated. The Applicant's evidence fails to support his allegations and, consequently, the Applicant has failed to discharge his burden of proof.
[17] Further, it would appear from the Applicant's own affidavit that his intention was first to gain admission to Canada and then to make an inland claim for protection. Paragraphs 7 and 13 of the Applicant's affidavit are particularly revealing on this point:
7. On the 13th of September 2003, I came to Canada for the second time this year, and at the port of entry I presented my valid passport and visa (P-1 and P-2) to the Immigration officer at the airport, expecting to be admitted as usual without question, so that I could proceed to an inland office at 1010 St-Antoine to ask for protection [...].
13. Since I already had a valid visa, I was sure that I could always be admitted to Canada. I have visited Canada before and I know the City of Montreal fairly well. I know the location of the Immigration Office at 1010 St-Antoine where I intended to proceed to make my claim for protection.
[18] With respect to the Applicant's argument that the Respondent did not come to the Court with clean hands, I am of the view that even if the clean hands doctrine were found to be applicable in the instant case, which I do not, the Applicant has failed to establish any of the elements he alleged in support of his argument.
[19] I therefore find that, on the evidence, it was open to the Delegate to accept the report from the immigration officers as sound and to issue the exclusion order.
2. Whether this application for judicial review should be dismissed because the application for leave was not personally served on the Respondent?
[20] Given that my findings regarding the first issue are determinative of this application for judicial review, there is no need to consider the second issue.
CONCLUSION
[21] For the above reasons, I find that the Delegate was correct in accepting as sound the report from the immigration officers and was also correct in subsequently issuing the exclusion order. In the result, this application for judicial review will be dismissed.
[22] The parties have had the opportunity to raise a serious question of general importance as contemplated by paragraph 74(d) of the IRPA and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is dismissed.
2. No question is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7899-04
STYLE OF CAUSE: Emeka Elemuwa v. MCI
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: April 20, 2005
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: July 25, 2005
APPEARANCES BY:
Idorenyin E. Amana For the Applicant
Ian Demers For the Respondent
SOLICITORS OF RECORD:
Idorenyin E. Amana For the Applicant
Montréal, Quebec
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada