Date: 20010604
Docket: IMM-2945-00
Neutral reference: 2001 FCT 582
Ottawa, Ontario, June 4, 2001
BEFORE: EDMOND P. BLANCHARD J.
BETWEEN:
PHOBA UMBA (alias JACOB DLAMINI) and
MPEMBE BELLINA UMBA (alias JUDITH TSHABALALA)
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
[1] In this case the Court has to rule, pursuant to an application for judicial review as stipulated in s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, on two exclusion orders dated May 9, 2000 made by senior immigration officer R. Hildebrandt against the plaintiffs, Phoba Umba (Alias Jacob Dlamini) and Mpembe Bellina Umba (alias Judith Tshabalala) pursuant to subsection 23(4) of the Immigration Act.[1]
[2] According to the said exclusion orders, the senior immigration officer came to the conclusion that the plaintiffs were members of an inadmissible class pursuant to paragraph 19(2)(d) of the Immigration Act because they did not hold a valid passport as required by subsection 14(3) of the Regulations.
STATEMENT OF FACTS
[3] The plaintiffs arrived on Canadian soil on May 9, 2000. They appeared at the Toronto International Airport in possession of Swaziland passports and sought to enter Canada as visitors.
[4] The plaintiffs answered in English questions put to them in English by the immigration officer and the senior immigration officer. In their written statements the immigration officer and the senior immigration officer stated that in their respective interviews the plaintiffs appeared to understand the questions asked and replied without hesitation.
[5] The senior officer questioned the plaintiffs about the validity of the Swaziland passports and the plaintiffs persisted in saying the passports were valid.
[6] As the plaintiffs continued to protest that their passports were valid, the senior immigration officer [sic] referred the plaintiffs to the second level of questioning, to a senior immigration officer [sic].* The latter, after considering the reports made by the senior officer, concluded that the passports were not valid. He offered the plaintiffs an opportunity to contact counsel and had them complete the necessary documents waiving the right to counsel. Then, in accordance with the aforesaid legislation, he prepared exclusion orders and the plaintiffs signed them after indicating that they understood the consequences of doing so.
[7] Additionally, the immigration officers submitted that the policy of their office is to allow the person questioned to speak in his language of choice, and if necessary, use the services of an interpreter or of a bilingual officer if the person concerned is unable to communicate in English or does not appear to understand what is happening.
[8] The evidence was that the plaintiffs did not request the services of an interpreter; they persisted in saying that they were from Swaziland; and finally, that the senior [sic] immigration officer asked the plaintiffs respectively if they feared persecution in Swaziland. They said that they did not.
PLAINTIFFS' ARGUMENTS
[9] The plaintiffs submitted that they were citizens of the Democratic Republic of the Congo (D.R.C.); that Phoba Umba (alias Jacob Dlamini) was born in Brussels, Belgium on February 16, 1976 and that Mpembe Bellina Umba (alias Judith Tshabalala) was born in Kinshasa on September 19, 1976.
[10] The plaintiffs submitted that their real identity was Zairean: they had the same father but were born of different mothers.
[11] They alleged that they left their country of origin on December 30, 1999 because they were confronted with persecution by the existing government, in particular because their father had been in politics, specifically as Minister of Foreign Affairs, under the reign of President Mobutu for twenty-three years (1967-1990).
[12] The plaintiffs submitted that with the fall of the Mobutu government the new authorities had attacked former dignitaries of that government. This was how on December 15, 1997 soldiers came to arrest their father, who was warned by the guard and was able to flee through the back door. On that day the whole family was beaten up, mistreated and tortured by soldiers who wanted to know where their father was hiding. Additionally, the plaintiff's mother and the plaintiff herself, Mpembe Bellina Umba (alias Judith Tshabalala), were raped by the soldiers while the entire family looked on helplessly.
[13] As regards the events connected with their entry to Canada, the plaintiffs submitted that because they had an insufficient knowledge of English, French being the official language in the D.R.C., and as the questioning took place in English, the plaintiffs did not fully understand and adequately assess the scope and reasons for the questions put to them by the immigration officers. For all these reasons, the plaintiffs argued that the exclusion decisions contravened the fundamental principles of procedural fairness.
POINT AT ISSUE
[14] Did the senior immigration officer infringe the rules of natural justice or the rules of fundamental justice at the second interrogation when he questioned the plaintiffs and made exclusion orders, based on the reports of the senior immigration officer at the first examination, without informing the plaintiffs they were entitled to a (French-English) interpreter?
ANALYSIS
[15] The case at bar turns essentially on the duties of immigration officers in their interrogations at Customs posts. It is important to see the case at bar in its context. Here there was an interrogation which took place at the airport, by immigration officers who daily check thousands of visitors and who thus have the initial duty of watching over our borders. In Dehghani the Supreme Court of Canada ruled on the duties of officers in such circumstances. As Iacobucci J. put it:
Dickson C.J. stated . . .
. . . No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel.
. . . . .
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.
. . . . .
This point was also made by La Forest J. in Lyons at p. 361:
It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.
. . . . .
To allow counsel at port of entry interviews would, in the words of Heald J.A. in Montfort v. Minister of Employment and immigration, [1980] 1 F.C. 478 (C.A.), at pp. 481-82, "entail another "mini-inquiry" or "initial inquiry" possibly just as complex and prolonged as the inquiry provided for under the Act and Regulations". This would constitute unnecessary duplication. The purpose of the port of entry interview was, as I have already observed, to aid in the processing of the appellant's application for entry and to determine the appropriate procedures which should be invoked in order to deal with his application for Convention refugee status. The principles of fundamental justice do not include a right to counsel in these circumstances of routine information gathering.2
[16] Accordingly, this is the background against which the facts of the case at bar must be considered. Here an analysis of the events and the evidence in the record show that the plaintiffs came to Toronto International Airport holding Swaziland passports; the plaintiffs answered in English the questions put in English by the senior immigration officer and the senior immigration officer; the plaintiffs did not request the services of an interpreter; the plaintiffs persisted in saying that they were from Swaziland; and it was only after they had signed the exclusion orders that the plaintiffs claimed Convention refugee status.
[17] As regards the consequences arising from the exclusion order, the plaintiffs had a duty not to lie to the Canadian authorities when they arrived. Pinard J. dealt with the question of a second-level interview in Chen v. Canada (Minister of Citizenship and immigration), [1998] F.C.J. No. 719 online: QL, where he said 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 [sic] Canada.
[18] Further, the Federal Court of Appeal in Raman v. Canada (Minister of Citizenship and immigration) (A-30-97, June 4, 1999), a similar case to the one at bar in that the plaintiff's failure to claim refugee status on arrival in the country deprived him of the rights relating thereto - the Court said the following at paras. 14 and 16:
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 the 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.
[19] As to the argument that the senior immigration officer had a duty to inform the plaintiff of his right to an interpreter and the possible consequences of the interview before the latter began, I have concluded after thinking about the matter that the plaintiffs simply cannot advance such arguments. A review of the notes taken by the immigration officer on May 9, 2000 indicates that the plaintiffs fully understood all the events and did not show any sign that they did not understand.3 Further, with Swaziland passports it was entirely reasonable for the immigration officers to expect that the defendants would have a sufficient understanding of English.
[20] Finally, the senior immigration officer R. Hildebrandt, who authorized the orders and questioned the plaintiffs, solemnly stated that the plaintiffs demonstrated a sufficient knowledge of English:
My review of Ms. Umba's case was conducted entirely in English. In my opinion, her degree of English fluency was high enough that I believed her to be a citizen of an African country where the English language either is the official language or is widely spoken.
Although she spoke English with an accent, I did not believe that the assistance of an interpreter was required, nor did Ms. Umba request an interpreter. She responded to all my questions and statements without any hesitation and did not appear to demonstrate any difficulty in understanding or communicating with me.
. . . . .
Mr. Umba did not at any time give me the impression that he was having difficulty either expressing himself or understanding me. He responded to all questions put to him without hesitation and readily provided other information.1
[21] I am satisfied in the case at bar that the plaintiffs did not discharge the burden of showing that the senior immigration officer R. Hildebrandt made any error in issuing the two exclusion orders or infringed procedural fairness.
[22] For all these reasons, the application for judicial review by the two plaintiffs will be dismissed.
[23] The plaintiffs submitted the following questions for certification:
[TRANSLATION]
1. Can a person originating in a country subject to a decree by the Minister prohibiting removal (moratorium) who has claimed refugee status in Canada after being informed of exclusion from Canadian territory be returned to a third country (last stop) from which he may removed to his country of origin?
2. Can the moratorium (prohibition of removal of Congolese nationals to their country of origin) be regarded as another exception to s. 23(4) of the Immigration Act?
[24] The defendant maintained that the two questions submitted did not conclusively resolve the points at issue before this Court in the case at bar and could not be certified under subsection 83(1) of the Immigration Act.
[25] I accept the observations of Décary J.A. in Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4 (F.C.A.), who said at page 5:
In order to be certified pursuant to s. 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application ... but it must also be one that is determinative of the appeal. The certification process contemplated by s. 83 of the Immigration Act is neither to be equated with the reference process established by s. 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case.
[26] In the case at bar, the point at issue had to do with two exclusion orders made against the plaintiffs because they were inadmissible to Canada. In my opinion, the two questions submitted for certification did not in any way relate to the point at issue and so are not conclusive.
[27] For these reasons, I am not in a position to certify a serious question of general importance.
ORDER
THE COURT ORDERS that:
1. The application for judicial review from the two exclusion orders dated May 9, 2000 made by senior immigration officer R. Hildebrandt against the plaintiffs, Phoba Umba (alias Jacob Dlamini) and Mpembe Bellina Umba (alias Judith Tshabalala) pursuant to subsection 23(4) of the Immigration Act is dismissed.
|
Edmond P. Blanchard Judge |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-2945-00
STYLE OF CAUSE: Phoba Umba et al. v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 1, 2001
REASONS FOR ORDER AND ORDER BY: BLANCHARD J.
DATED: June 4, 2001
APPEARANCES:
Benjamin F. Bajikijaïe FOR THE PLAINTIFF
Ian Hicks FOR THE RESPONDENT
SOLICITORS OF RECORD:
Benjamin F. Bajikijaïe FOR THE PLAINTIFF
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
[1] Immigration Act, R.S.C. 1985, c. I-2.
* Immigration Act uses "agent principal" for senior immigration officer; "agent d'immigration senior" does not appear in the Immigration Act - TR.
2 Dehghani v. Canada (Minister of Employment and immigration), [1993] 1 S.C.R. 1053, at 1069, 1073, 1076-77 and 1078.
3 Affidavit of Donna Di Pentima, pp. 6 and 11.
1 Ibid., at pp. 13 and 15.