Date: 20030226
Docket: IMM-516-02
Neutral citation: 2003 FCT 240
BETWEEN:
PAULINA YEBOAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
BACKGROUND
[1] Paulina Yeboah (the "applicant") is a thirty-three year old citizen of Ghana. She travelled to Canada on December 6, 2001, on a false passport registered under the name of Patricia Sama Ansah. That passport also contained a Canadian visitor's visa ("CVV") issued to Patricia Sama Ansah valid for six months.
[2] When she arrived at Dorval International Airport, the applicant was questioned by Immigration Officer Iermieri who sent, that same day, a section 20 Immigration Act (the "Act") written report to a senior immigration officer (the "SIO") stating it was her opinion she could not let the applicant come into Canada because she was a member of an inadmissible class covered by paragraph 19(2)(d) of the Act since she did not have a valid passport and visa issued in her name.
[3] The immigration officer gave the SIO her reasons which were based on her interview and her accessing Citizenship and Immigration Canada's data base to view Patricia Sama Ansah's application for a CVV and comparing the answers given there with the answers given by the applicant during her primary interview with the immigration officer.
[4] The immigration officer's written report was endorsed by the SIO who issued an exclusion order dated December 6, 2001, against Patricia Sama Ansah pursuant to subsection 23(4) of the Act. He was satisfied the applicant did not comply with the conditions or requirements of the Act or Regulations, namely, a valid passport and visa.
[5] The applicant was detained immediately. Her detention was reviewed as required by the Act. During her detention review, the applicant revealed her true identity as Paulina Yeboah.
[6] Once a removal order has been issued against a person, the effect of section 44(1) of the Act is to preclude that person from making a refugee claim.
[7] The applicant claims she is a victim of spousal abuse at the hands of her boyfriend, a member of the Ghanaian army. She fears female excision will be forced on her.
[8] On January 6, 2002, the applicant filed an application for leave to appeal the SIO's exclusion order. On January 22, 2002, she also filed an H & C application.
[9] On April 29, 2002, Mr. Justice Beaudry of this Court refused a motion by the applicant to stay her removal (see, Paulina Yeboah v. Minister of Citizenship and Immigration, [2002] F.C.T. 490). He concluded no serious issue had been raised nor irreparable harm made out.
[10] On the lack of serious issue, Justice Beaudry was of the view the applicant's case was similiar to that of Umba v. Canada (Minister of Citizenship and Immigration), [2001] F.C.T. 582, a case decided by Mr. Justice Blanchard who relied upon the Federal Court of Appeal's decision in Raman v. Canada (Minister of Citizenship and Immigration, [1999] 4 F.C. 140.
[11] Mr. Justice Beaudry was also of the view section 44(1) of the Immigration Act, had properly been applied dismissing the applicant's claim about interpretation problems at the airport.
[12] Justice Beaudry, based on the applicant's answers at the airport, held she did not convince him she would suffer physical and sexual abuse if she was returned to Ghana.
[13] Counsel for the applicant raised two issues before me:
(1) Whether section 44(1) of the Act, which precludes the making of a refugee claim once a removal order is made, is compatible with the Charter and Canada's obligations under international law. He argued I should carve out an exception and allow refugee claims to be made in cases of women with battered female syndrome, notwithstanding the clear wording of that section in the Immigration Act;
(2) Whether, because no interpreter was present during the primary and secondary interview, natural justice was not met.
[14] I deal with the interpretation issue first. The question before me is whether the applicant, who did not ask for an interpreter, was properly understood during the primary and secondary interviews and had an opportunity to make a refugee claim.
[15] I, like Justice Beaudry did, reviewed the immigration officer's interview notes. Those notes, when read in their entirety, reveal, in my view, that in respect of some questions, the applicant had an imperfect grasp of them but she understood and gave clear answers to key questions such as:
(i) "Do you understand English? "Yes";
(ii) "Do you have any problems in your country?" "No"; and
(iii) "Do you have any problems going back to Ghana?" "No, I don't have any problems".
[16] I am convinced the applicant had ample opportunity to make a refugee claim and did not do so because she was attempting to enter Canada on somebody else's passport and visa. Justice Linden's words in Raman, supra, are apt:
[14] . . . In this case there is nothing on the record to show that the appellant was constrained from making a free and independent decision regarding a possible claim to refugee status. While it has been argued that the appellant was misinformed 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.
[17] Counsel for the applicant did not press his Charter breach and Charter remedy because no notice had been given under section 57 of the Federal Court Act. Without a Charter breach and remedy, I cannot carve out the applicant's desired exemption from the plain wording of section 44(1) of the Act.
[18] For all of these reasons, this judicial review application is dismissed. No certified question was proposed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
February 26, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-516-02
STYLE OF CAUSE: PAULINA YEBOAH v. MCI
PLACE OF HEARING: Montreal
DATE OF HEARING: 30-JAN-2003
REASONS FOR [ORDER or JUDGMENT] :
The Honourable Mr. Justice François Lemieux
DATED: February 26, 2003
APPEARANCES:
Me Stewart Istvanffy FOR PLAINTIFF / APPLICANT
514-876-9776
Me Daniel Latulippe
514-283-6484 FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Me Stewart Istvanffy
1070 Bleury, Suite 503
Montreal, Quebec H2Z 1N3 FOR PLAINTIFF/APPLICANT
Me Daniel Latulippe
Department of Justice of Canada
Complexe Guy-Favreau
200 René-Lévesque Blvd. West
East Tower, 5th Floor
Montreal, Quebec H2Z 1X4 FOR DEFENDANT/ RESPONDENT