Federal Court Decisions

Date: 20020426

Docket: IMM-807-01

Neutral citation: 2002 FCT 474

Ottawa, Ontario, this 26th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                            ALEKSEY KORNIAKOV

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review under subsection 82.1(6) of the Immigration Act, R.S.C. 1985, c. I-2 , of a decision of a senior immigration officer ("SIO") dated February 6, 2001, wherein the SIO issued a departure order to the applicant.

[2]                 The applicant seeks an order setting aside the decision of the SIO, referring the matter back for determination by a different senior immigration officer.

Background

[3]                 The applicant, Aleksey Korniakov, was born in Ekaterinburg, USSR, and emigrated to Israel in October, 1993. The applicant's USSR citizenship expired in 1998. The applicant is presently a citizen of Israel.

[4]                 The applicant arrived in Canada on May 1, 2001, and was granted admission as a visitor for six months.

[5]                 The applicant applied to renew his visitor's visa but was refused. The applicant remained in Canada illegally.

[6]                 On February 3, 2001, the applicant was arrested by police in the Thornhill and Richmond Hill area just north of Toronto, having been found as a passenger in a stolen Mercedes vehicle. The applicant was turned over to immigration authorities on the same day.

[7]                 The notice of arrest (under section 103 of the Immigration Act, supra) included the following reasons:

SUBJECT ARRESTED BY POLICE AND CHARGED WITH POSSESSION OVER $5,000.00 SECTION 354-1(A) OF THE CRIMINAL CODE OF CANADA. SUBJECT WAS PASSENGER IN STOLEN MERCEDES VEHICLE, SUBJECT ONLY APPREHENDED AFTER POLICE CHASE AND HELICOPTER PURSUIT OF VEHICLE, DUE TO EXCESSIVE SPEED OF VEHICLE.

. . .

SUBJECT STATES HE KNEW HE WAS SUPPOSED TO LEAVE CANADA, BUT DOES NOT WISH TO LEAVE, WANTS TO REMAIN IN CANADA. SUBJECT STATES HE WAS JUST GOING TO TRY AGAIN LATER TO OBTAIN ANOTHER EXTENSION. STATES HAS NO HOME TO RETURN TO AND WANTS TO LIVE HERE IN CANADA WITH HIS FAMILY (SISTER WHO IS PERMANENT RESIDENT).

STRONG DESIRE TO REMAIN, NOT WILLING TO LEAVE CANADA, SINGLE, MOBILE, STATES HAS MONEY OF HIS OWN TO SUPPORT HIMSELF, CLAIMS NOT WORKING IN CANADA, AND NOT COLLECTING SOCIAL ASSISTANCE. SOURCE OF SUBJECT'S MONEY NEVER REVEALED.

[8]                 The applicant's criminal charges were stayed at the request of immigration authorities in order to facilitate the applicant's removal from Canada.

[9]                 The applicant attended an interview conducted by the SIO on February 6, 2001. An interpreter (to translate between Russian and English) was present at the interview.

[10]            The SIO was satisfied that the applicant was a person described in paragraphs 27(2)(e) and 26(1)(c) of the Immigration Act, supra and issued a departure order against the applicant pursuant to subsection 27(4). The applicant stated that he was willing to leave Canada but refused to sign the departure order because it was in English.

[11]            This is the judicial review of the SIO's decision to issue a departure order.

Applicant's Submission

[12]            The applicant submits that upon his detention, the applicant was presented with a document from Citizenship and Immigration Canada ("CIC") titled "Notice of Rights Conferred by the Vienna Convention and to the Right to be Represented by Counsel at an Immigration Inquiry". The applicant submits that this document was given to the applicant on February 3, 2001, but the document was never translated.

[13]            The applicant submits that the applicant's rights were violated by having him sign the "Right to be Represented by Counsel" form when the form was never translated to him.

[14]            The applicant submits that CIC knew the applicant could not understand English as is evidenced by the interpreter provided for the interview on February 6, 2001.

[15]            The applicant submits that the right to an interpreter is an important right guarded by section 14 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[16]            The applicant submits that the SIO interviewed the applicant using a preprinted script that included a box where the SIO must check whether there is a refugee claim. That box was not checked and the applicant submits that the SIO failed to canvass whether the applicant intended to make a refugee claim. The applicant submits that the SIO had a duty to canvass, in at least some minimal way, whether the applicant intended to make a refugee claim.

Respondent's Submissions

[17]            The respondent submits that there is no right to counsel at an SIO interview, and therefore there has been no breach of the rules of natural justice. The respondent submits that an SIO interview is not an inquiry. The respondent submits that the Court of Appeal, in Raman v. Canada (M.C.I.) [1999] 4 F.C. 140 (F.C.A.), has conclusively held that there is no right to counsel during an interview with an SIO.

[18]            The respondent submits that the applicant was given every opportunity to indicate to the SIO whether he wished to make a refugee claim but failed to do so. The respondent submits that the applicant was not prevented in any way from making a claim at the appropriate time.

[19]            The respondent submits that the applicant was asked a series of detailed questions about the allegations against him and was advised of the consequences of a removal order. The respondent submits that the applicant told the SIO that he was willing to leave Canada.

[20]            The respondent submits that the SIO's failure to check one box on a checklist does not vitiate the entire decision, particularly in light of the surrounding circumstances. The respondent submits that there is no evidence that the applicant ever indicated to immigration at any time prior to the removal order being issued that he feared for his safety if removed. The respondent submits that there were several indications to the contrary.

[21]            The respondent submits that there is no basis on the record for the applicant's suggestion that he was denied an opportunity to make a refugee claim.

[22]            The respondent submits that this is a situation where the applicant failed to make a refugee claim at the SIO interview and later returned with an improved version of his story, including detailed allegations of persecution. The law was made clear by the Court of Appeal in Raman, supra, that a person cannot make a refugee claim if it is initiated after a removal order has been made against that person.

[23]            The respondent submits there is no basis for setting aside the SIO's decision.

[24]            Issues

1.          (a)         Is there a right to counsel at an SIO interview?

(b)         Was there a breach of the right to counsel?

2.          Did the SIO breach a duty of fairness by not asking the applicant if he intended to claim refugee status?

Relevant Statutory Provisions, Regulations and Rules

[25]            The relevant sections of the Immigration Act, supra state as follows:

26. (1) A person ceases to be a visitor in Canada when . . . (c) that person remains in Canada for a period of time greater than that for which he is authorized to remain in Canada; . . . (2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who . . . (e) entered Canada as a visitor and remains in Canada after that person has ceased to be a visitor; (4) Subject to section 28, where a senior immigration officer receives a report and a direction made pursuant to paragraph (3)(a) in respect of a person, or where a person has been arrested pursuant to subsection 103(2), the senior immigration officer shall . . .

26. (1) Emporte déchéance de la qualité de visiteur le fait_: . . . c) de séjourner au Canada au-delà de la durée autorisée; (2) L'agent d'immigration ou l'agent de la paix doit, sauf si la personne en cause a été arrêtée en vertu du paragraphe 103(2), faire un rapport écrit et circonstancié au sous-ministre de renseignements concernant une personne se trouvant au Canada autrement qu'à titre de citoyen canadien ou de résident permanent et indiquant que celle-ci, selon le cas_: . . . e) est entrée au Canada en qualité de visiteur et y demeure après avoir perdu cette qualité; (4) Sous réserve de l'article 28, dans le cas où une personne a fait l'objet de l'ordre prévu à l'alinéa (3)a) ou a été arrêtée en vertu du paragraphe 103(2), l'agent principal doit_: . . .

30. Every person with respect to whom an inquiry is to be held shall be informed of the person's right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and shall be given a reasonable opportunity, if the person so desires, to obtain such counsel at the person's own expense.

30. L'intéressé doit être informé qu'il a le droit de se faire représenter par un avocat ou un autre conseiller et se voir accorder la possibilité de le choisir, à ses frais.

[26]            The relevant subsections of the Canadian Charter of Rights and Freedoms, supra state:

10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

10. Chacun a le droit, en cas d'arrestation ou de détention: a) d'être informé dans les plus brefs délais des motifs de son arrestation ou de sa détention; b) d'avoir recours sans délai à l'assistance d'un avocat et d'être informé de ce droit; c) de faire contrôler, par habeas corpus, la légalité de sa détention et d'obtenir, le cas échéant, sa libération. 14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu'ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu'ils sont atteints de surdité, ont droit à l'assistance d'un interprète.

Analysis and Decision

[27]            Issue 1(a)

1.(a)      Is there a right to counsel at an SIO interview?

As a starting point, a determination by an SIO to issue a departure order is not an inquiry within the meaning of section 30 of the Immigration Act, supra. The administrative review to be held with respect to the applicant is simply a review of his immigration status. It is a process akin to the process used at the port of entry to determine whether or not an applicant has met the requirements to enter Canada. Our courts have consistently held that a person does not have the right to counsel in such a process (see Dehghani v. Canada (Minister of Employment and Immigration) [1993] 1 S.C.R. 1053 at 1077 to 1078 and Chen v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 719 (QL)). I do not see the review by the SIO as being any different. In this case, he determined that the applicant entered Canada on May 1, 2001 with a visitor's permit that was valid for six months. He was refused a renewal of the permit. The notes of the SIO indicate that the applicant agrees with the facts found in the section 27 report. For a review such as this review, I am of the opinion that the applicant does not have a right to counsel. Furthermore, as held by the Supreme Court of Canada in Dehghani, supra, subsection 10(b) of the Charter does not extend beyond arrest and detention to include a right to counsel at routine immigration examinations that are not hearings.

[28]            Issue 1(b)

1.(b)      Was there a breach of the right to counsel?

On February 3, 2001, the applicant signed a form titled "Notice of Rights Conferred by the Vienna Convention and to the Right to be Represented by Counsel at an Immigration Inquiry". The form included notice that section 30 of the Immigration Act, supra provides for a right to obtain the services of counsel at an immigration inquiry. The applicant signed the form which, on the face of it, is an acknowledgement that the applicant was made aware of a right to counsel at an inquiry.

[29]            The applicant now alleges that the form was not in Russian, and was not translated to him, and so the applicant did not understand what he was signing. If I am willing to accept that the applicant did not know what he was signing, and that he was not informed in a way he understood that he might have a right to counsel at an inquiry, then this will only give rise to a breach of the right to counsel and possible Charter implications if there was a right to counsel at the SIO interview. These issues do not have to be dealt with.

[30]            As pointed out earlier, the review before the SIO was not an inquiry as contempated by section 30 of the Immigration Act, supra.

[31]            In any event, as explained under Issue 1(a), I am of the view that the jurisprudence indicates that the applicant did not have a right to counsel at the SIO interview. Therefore, there was no breach of any right to counsel.

[32]            Issue 2

Did the SIO breach a duty of fairness by not asking the applicant if he intended to claim refugee status?

The SIO's failure to check a box next to the question of whether the applicant intended to make a refugee claim does not necessarily mean that the applicant was not asked whether he intended to make a refugee claim.

[33]            The applicant did not indicate any circumstances that would give rise to the faintest suggestion that the applicant's circumstances would warrant a refugee claim or that he intended to file a refugee claim. On the contrary, the applicant told the SIO that he was willing to leave Canada, which strongly suggests that he did not intend to file a refugee claim. In my view, under the circumstances the SIO did not breach a duty of fairness or act in an unreasonable manner in relation to the potential for the applicant to make a refugee claim.

[34]            The applicant has failed to demonstrate errors that justify judicial intervention with the SIO's decision to issue a removal order against the applicant.

[35]            The application for judicial review is therefore dismissed.

[36]            Counsel submitted the following serious question of general importance for my consideration:

Was there a breach of natural justice or the principles of fundamental justice in the failure of the senior immigration officer to advise the applicant of a right to counsel prior to conclusion of the interview before the senior immigration officer which resulted in the issuance of a removal order? (Question 3 from Raman, supra with slight modifications).

[37]            I am not prepared to certify the proposed question as I am of the opinion that in light of the factual background of this case, which the applicant does not dispute, the question is not a serious question of general importance.

ORDER

[38]            IT IS ORDERED that the application for judicial review is dismissed.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 26, 2002