Date: 20020429
Docket: IMM-516-02
Neutral citation: 2002 FCT 490
BETWEEN:
PAULINA YEBOAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant Paulina Yeboah has applied for an Order staying her removal from Canada to Ghana scheduled for 7:30 p.m. today.
[2] I have read carefully all the evidence and heard counsel.
TEST FOR STAY
[3] In Toth v. Canada (Minister of Employment and Immigration) (1998), 6 Imm. L.R. (2d) 123 (F.C.A.) it is noted that to succeed on his motion to stay, the applicant must meet the following requirements: a serious issue, an irreparable harm and a balance of convenience in her favor.
[4] In this case, the applicant submits that the serious issues are that she was not offered an interpreter at the airport, and that she did not understand English and also that section 44(1) of the Immigration Act (the "Act") precluded her to make a refugee claim.
[5] As for an irreparable harm, the applicant submits that if she is deported she will be molested or killed by her boyfriend and balance of convenience favors her because of the probabilities of such occurrence.
BACKGROUND
[6] The applicant filed two applications for a visitor's visa in Canada which were denied: one on September 18, 1999, and the other on December 7 of the same year.
[7] On June 6, 2001, Patricia Sama Ansah filed an application for a visitor visa at the Canadian Embassy in Accra, Ghana. A visa was issued on November 21, 2001.
[8] The applicant arrived in Canada on December 6, 2001, and presented herself as Patricia Sama Ansah.
[9] She was questioned by Immigration Officer Tonina Iermieri. I refer to the Immigration Officer's notes:
Q. Do you understand English?
R. Yes.
Q. Do you have any problems in your country?
R. No.
Q. Do you have any problems going back to Ghana?
R. No I don't have any problems.
[10] The next day a Senior Immigration Officer issued an exclusion order against the applicant. Four days later she applied for Canada's protection.
[11] Paulina Yeboah has been detained since. She has two young children still living in Ghana.
APPLICABLE LEGISLATION
[12] Subsection 44(1) of the "Act" stipulates that a person may not claim Convention Refugee status when a removal order has been made against him/her but has not been executed.
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44. (1) Any person who is in Canada, other than a person against whom a removal order has been made but not executed, unless an appeal from that order has been allowed, and who claims to be a Convention refugee may seek a determination of the claim by notifying an immigration officer. |
44. (1) Toute personne se trouvant au Canada peut revendiquer le statut de réfugié au sens de la Convention en avisant en ce sens un agent d'immigration, à condition de ne pas être frappée d'une mesure de renvoi qui n'a pas été exécutée, à moins que la mesure n'ait été annulée en appel. |
[13] In the case at bar, the applicant filed an application for leave and for judicial review February 6, 2002. In the meantime, she also filed for an humanitarian and compassionate application on January 22, 2002.
[14] I find that the Umba v. Canada (Minister of Citizenship and Immigration), 2001 FCT 582 (IMM-2495-00) case is similar to the present. Mr Justice Blanchard wrote:
[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.
[15] In view of the particular circumstances in the present case, I find that subsection 44(1) of the "Act" has been properly applied by the Senior Immigration Officer. Therefore, the applicant had no right to claim refugee status after the exclusion order signed on December 7, 2001.
[16] The Officer at point of entry in Canada could not guess if the applicant wanted to apply for a refugee status. She was not obliged to ask the applicant if she wanted to apply for such a claim because Paulina Yeboah answered clearly that she had no problems in Ghana.
[17] As to section 24 of the Charter, I agree with Linden J.A. in Raman v. Canada, [1999] 4 F.C. 140, 150 (par. 16):
Such a person is a mere visitor, and it is the fundamental principle of immigration law that visitors have no right to enter into or remain in Canada. 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. [Emphasis added.]
[18] In the case at hand, the claim was too late and the applicant was also precluded from making one.
IRREPARABLE HARM
[19] The applicant did not convince me that there will be physical and sexual abuse if she returns to Ghana. Her answer at the airport was clear and conclusive.
BALANCE OF CONVENIENCE
[20] Finally, with regards to the third branch in Toth, supra, the balance of convenience favours the Respondent section 48 of the Act.
[21] I am therefore not satisfied that the applicant has raised either a serious issue or irreparable harm.
[22] Counsel asked no question to be certified.
[23] This application for a stay of the removal order is dismissed.
Michel Beaudry
Judge
MONTREAL, QUEBEC
April 29, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020429
Docket: IMM-516-02
BETWEEN:
PAULINA YEBOAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-516-02
STYLE OF CAUSE: PAULINA YEBOAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: APRIL 29, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BEAUDRY.
DATED: APRIL 29, 2002
APPEARANCES:
Mr. Stewart Istanffy FOR APPLICANT
Mr. Daniel Latulippe FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Stewart Istanffy
Montreal, Quebec FOR APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada, Montreal, Quebec FOR RESPONDENT