Date: 20030127
Docket: IMM-5262-01
Ottawa, Ontario, this 27th day of January, 2003
PRESENT: THE HONOURABLE MR. JUSTICE MACKAY
BETWEEN:
GABRIEL PATRASC
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] The applicant seeks judicial review of, and an order setting aside an exclusion order issued against him by an immigration officer at Halifax on November 5, 2001. The matter was heard at Halifax with a similar application of Beniamin Dragosin, who arrived in Canada at the same time as, and in circumstances similar to those concerning Mr. Patrasc.
[2] The applicant, then a 20 year old man with Romanian citizenship, arrived in Canada at Halifax on November 3, 2001, as a stowaway on a cargo vessel from Spain. Like Mr. Dragosin, with whom he travelled, Mr. Patrasc had no immigration visa for entry to Canada and no passport.
[3] The relevant facts are similar to those relating to the application of Mr. Dragosin. Both arrived ashore at Halifax on November 3, 2001 and were taken to local police who contacted Canadian Immigration. Officers of the latter service conducted an initial interview with each man on November 3rd, after which both were ordered to be detained at the Halifax Correctional Centre pursuant to s-s. 103.1(a) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "IA").
[4] Two days after the applicant was thus detained he was further examined by a senior immigration officer, apparently in an inquiry under the IA. At the end of that session on November 5, 2001, he was issued an exclusion order as a person not entitled to enter or remain in Canada, since he had arrived without a visa and without a passport, as required by s. 19 of the IA.
[5] It is averred by the applicant's affidavit that he came to Canada intending to make a refugee claim, that in the course of both examination sessions he had requested legal counsel and he had expressed his fear of returning to Romania. The evidence of the immigration officer who issued the exclusion order is that during the examinations the applicant had not made a claim which the officer recognized as a claim to refugee status and had not expressed fear of persecution on any basis recognized for refugee status.
[6] The application raises two issues: (1) whether the immigration officer erred in not facilitating access to counsel when the applicant was ordered to be detained and (2) whether the immigration officers erred by not acknowledging that a refugee claim was being advanced in the examinations of the applicant.
[7] The facts and the issues here raised are similar to those raised in the case of Mr. Dragosin (Court file IMM-5261-01). For similar reasons as are set out in the Reasons for Order in that case, dated the same day as these Reasons, January 27, 2003, this application for judicial review is allowed.
[8] An order goes setting aside the exclusion order issued to Mr. Patrasc on November 5, 2001, and directing that the circumstances of Mr. Patrasc be considered by another immigration officer.
[9] When the matter was heard, neither counsel proposed a question for consideration as a serious question of general importance for certification pursuant to s-s. 74(d) of the IRPA. No question is certified.
"W. Andrew MacKay"
J.F.C.C.
Ottawa, Ontario
January 27, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5262-01
STYLE OF CAUSE: GABRIEL PATRASC
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: Tuesday, September 17, 2002
REASONS FOR ORDER OF MacKAY J.
DATED: Monday, January 27, 2003
APPEARANCES:
Mr. Lee Cohen
FOR APPLICANT
Ms. Melissa Cameron
FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. M. Lee Cohen
P. O. Box 304, Halifax CRO
Halifax, Nova Scotia
B3J 2N7
FOR APPLICANT
Department of Justice
Suite 1400, Duke Tower
5251 Duke Street
Halifax, Nova Scotia
B3J 1P3
FOR RESPONDENT