Judgments

Decision Information

Decision Content

A-476-89
Abdul Rassoul Dehghani (Applicant) v.
Minister of Employment and Immigration (Respondent)
INDEXED AS: DEHGHANI V. CANADA (MINISTER OF EMPLOY MENT AND IMMIGRATION) (CA.)
Court of Appeal, Pratte, Heald and Mahoney JJ.A.—Toronto, April 30; Ottawa, June 26, 1990.
Immigration — Refugee status — Foreign national arriving by air without proper documentation — Seeking refugee status — Led from primary immigration kiosk to interview room for secondary examination by immigration officer — 4-hour wait — Examination routine — Everyone, including Canadians, detained at port of entry as no one free to enter Canada until immigration officer satisfied person has right to enter — Not, however, "detained" within Charter, s. 10 and therefore not entitled to be advised of right to counsel — Misstatement of credible basis test by adjudicator irrelevant where correct test later stated and applied.
Constitutional law — Charter of Rights — Criminal process — Right to counsel — Foreign national arriving in Canada without proper documentation and seeking refugee status Led from primary immigration kiosk to interview room for secondary examination by immigration officer — Not "detained" within Charter, s. 10 and therefore not entitled to be advised of right to counsel.
The applicant, a citizen of Iran, arrived in Canada at Pear- son International Airport in May 1989 without any travel or identity documents and claimed refugee status. After a primary examination at one of the kiosks before which all deplaning international passengers line up, the applicant was led to an interview room, where he had to wait for four hours, for a secondary examination by an immigration officer. Nervous and frightened, the applicant failed to disclose relevant information: his royalist political activities, the confiscation of his business and the arrest and execution of his daughter.
This was a section 28 application to review and set aside the decision of an adjudicator and an Immigration Refugee Board member (the tribunal) under subsection 46.01(6) of the Immi gration Act that the applicant did not have a credible basis for his claim to refugee status. The application also sought to have the exclusion order set aside.
Held (Heald J.A. dissenting), the application should be dismissed.
Per Mahoney J.A.: The applicant had not been detained within the contemplation of section 10 of the Charter during his secondary examination by the immigration officer. There was therefore no obligation to inform him of a right to counsel.
Everyone who seeks admission at a port of entry is detained until an immigration officer is satisfied that he has a right to enter. Such a person is not, however, detained in a constitution al sense. He has not been put in a position by an agent of the State assuming control over his movements. Rather, he has put himself in a position by his own actions in seeking admission. The applicant's state of mind during the examination cannot alter the fact that the examination was routine in nature. The tribunal acted entirely within its terms of reference in assessing both the applicant's credibility and the value of the evidence of his state of mind as a reasonable explanation of the omissions.
The adjudicator did misstate the credible basis (subsection 46.01(6)) test at the beginning of the tribunal's hearing. This was without consequence since the tribunal later stated and applied the correct test in its decision.
Per Heald J.A. (dissenting): Applying the rationale of the Supreme Court of Canada decision in Therens to the circum stances of the present case, one must conclude that the appli cant was detained within the meaning of paragraph 10(b) of the Charter. The immigration officer, an agent of the State, who conducted the secondary examination had assumed control over the applicant's movements and the applicant was not free to leave the room. The detailed interrogation which took place became part of an inquiry under the Immigration Act which led to the issuance of an exclusion order. The applicant acquiesced in the deprivation of his liberty since he reasonably believed that he had no choice to do otherwise. There was a reasonable perception of suspension of freedom of choice and an involuntary restraint of liberty. The applicant was also subject to external restraint. And based on the Supreme Court of Canada decision in Singh v. Minister of Employment and Immigration, this claimant for refugee status, who had been physically present in Canada at all relevant times, was entitled to the protection of section 10. The rationale for section 10 protection in the case of a refugee claimant risking incarcera tion, torture and even death if forced to return to Iran was just as compelling as in situations where the criminal process was engaged. The applicant was therefore entitled to be advised of his right to counsel. The section 10 violation in this case was a substantive one since the evidence gathered at his interrogation resulted in the issuance of an exclusion order. A persuasive argument can be made in support of the right to counsel for refugee claimants at ports of entry.
The provisions of section 1 of the Charter do not apply in the circumstances of this case. There was no "limit prescribed by
law" within the meaning of section 1 which would require that a refugee claimant be deprived of his right to counsel in the circumstances of this case.
In a case such as this where the tribunal has set out both a correct and an incorrect credible basis (subsection 46.01(6)) test on at least two occasions, and where, as here, it was impossible to be certain that the tribunal had applied the correct test, the tribunal must be found to have made a reviewable error.
The tribunal's decision on the issue of credible basis as well as the exclusion order should be set aside.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 10(b), 24.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, R.S.C., 1985, c. 1-2, ss. 6(2), 8, 12(3), 46.01(6) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 14).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
R. v. Therens et al., [1985] 1 S.C.R. 613; (1985), 18 D.L.R. (4th) 655; [1985] 4 W.W.R. 286; 38 Alta. L.R. (2d) 99; 40 Sask. R. 122; 18 C.C.C. (3d) 481; 13 C.P.R. 193; 45 C.R. (3d) 57; 32 M.V.R. 153; 59 N.R. 122; Arduengo v. Minister of Employment and Immigration (1981), 40 N.R. 436 (F.C.A.); Kimbudi v. Minister of Employment and Immigration (1982), 40 N.R. 566 (F.C.A.).
REFERRED TO:
R. v. Simmons, [1988] 1 S.C.R. 495; (1988), 67 O.R. (2d) 63; 55 D.L.R. (4th) 673; 45 C.C.C. (3d) 296; 66 C.R. (3d) 297; 889 N.R. I; 30 O.A.C. 241; R. v. Thoms- en, [1988] I S.C.R. 640; (1988), 40 C.C.C. (3d) 411; 63 C.R. (3d) 1; 32 C.R.R. 257; 4 M.V.R. (2d) 185; 84 N.R. 347; Singh et al. v. Minister of Employment and Immi gration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; R. v. Kwok (1986), 31 C.C.C. (3d) 196; 18 O.A.C. 38 (Ont. C.A.); R. v. Manninen, [1987] 1 S.C.R. 1233; (1987), 41 D.L.R. (4th) 301; 34 C.C.C. (3d) 385; 58 C.R. (3d) 97; 76 N.R. 198; Sloley v. Canada (Minister of Employment and Immigration), A-364-89, Heald J.A., judgment dated 22/2/90, F.C.A., not yet reported; Lee v. Canada (Minister of Employment and Immigration), A-401-89, Heald J.A., judgment dated 22/2/90, F.C.A., not yet reported.
AUTHORS CITED
Hogg, P. W. Constitutional Law of Canada, 2nd ed.
Toronto: The Carswell Company Limited, 1985.
COUNSEL:
Pia Zambelli for applicant.
Donald A. MacIntosh for respondent.
SOLICITORS:
Jackman, Silcoff, Zambelli, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
HEALD J.A. (dissenting): This section 28 [Fed- eral Court Act, R.S.C., 1985, c. F-7] application seeks to review and set aside a decision dated August 1, 1989 by Adjudicator S. P. Roberts and Immigration Refugee Board member, R. White (the tribunal) and made pursuant to subsection 46.01(6) of the Immigration Act, R.S.C., 1985 [c. 1-2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 14)], wherein the tribunal decided that the appli cant did not have a credible basis for his claim to Convention refugee status. Additionally, the section 28 application asks that the exclusion order also made by Adjudicator Roberts on August 1, 1989, be set aside.
The record before us consisted of the transcript of the proceedings before the Adjudicator and the proceedings before the tribunal. In addition and pursuant to the order of Pratte J.A. dated April 4, 1990, there was added to the record, an affidavit by the applicant dated August 30, 1989 which relates the circumstances surrounding his exami nation by an Immigration Officer upon his arrival in Canada on May 13, 1989.
At the oral hearing before us, counsel for the applicant raised five issues in support of this application for judicial review. The Court did not
find it necessary to hear the respondent on three of those issues.' We did, however, hear submissions from both counsel on the remaining two issues namely:
(1) whether the tribunal exceeded its jurisdiction by violating the applicant's right to counsel enshrined in paragraph 10(b) of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44 ]] ; z
(2) whether the tribunal exceeded its jurisdiction by applying the wrong test in making the determination which it was required to make pursuant to subsection 46.01(6) of the Immi gration Act, R.S.C., 1985, c. 1-2,
THE FACTS
The applicant, 52 years of age, arrived in Canada at Pearson International Airport, Toronto, on May 13, 1989 without any travel or identity documents. He is an illiterate person in that he does not read or write (other than his own name) in his mother tongue (Farsi). It is also certain that, at all relevant times, he did not understand Eng- lish, the language in which all of the procedures in issue were conducted. He said that he was fleeing persecution in his home country of Iran. He is the father of four children. He has been a royalist sympathizer since 1984, that is, he was a supporter of the Shah of Iran. He urged his children to be royalist sympathizers as well. His daughter, Mah- boobeh, in particular, became very active in sup port of the royalist cause. Consequently, she was arrested, detained and finally executed. Prior to his daughter's arrest, he learned that the authori ties were investigating his activities as well. His family's food coupons were stopped as well as shipments of supplies for his business. Immediately after the execution of his daughter, he and his family went into hiding. He left Iran for Turkey on April 21, 1989. This was the last time he saw his
1 Those issues were: (a) The tribunal ignored or failed to consider the documentary evidence before it; (b) the tribunal failed to properly assess the applicant's credibility; and (c) all the errors alleged, when taken concurrently, amount to review- able error of law.
2 Paragraph 10(b) reads:
10. Everyone has the right on arrest or detention
. . .
(b) to retain and instruct counsel without delay and to be
informed of that right; ...
family. In early May of 1989 he learned from his wife in Iran by way of a telephone call that the Iranian government had confiscated his business. He said that his main concern was to get out of Iran, that he had at an earlier time applied for a Canadian visa which application was refused. He had also applied for a U.S. visa in December of 1988 but did not receive one.
The applicant's affidavit of August 30, 1989 picks up the narrative upon his arrival in Canada on May 13, 1989 from Turkey. The statements of the applicant in that affidavit are uncontradicted since he was not cross-examined thereon even though the order of Mr. Justice Pratte adding the affidavit to the record, expressly granted leave to cross-examine. Paragraphs 7 to 16 inclusive of his affidavit read as follows:
7. This is what happened to me when I arrived at Toronto airport from my perspective. After leaving the plane I walked down a long hallway and then waited in line to see what to my mind was a policeman inside a little booth. I was carrying a false passport at the time, and I was nervous. The first police man told me I would have to see someone else in another part of the airport. I followed his directions and waited there for about four hours. The waiting was difficult for me to endure, because my fate was uncertain, and because of the realization that I was finally seeking permanent asylum from Iran.
8. Finally, a different policeman called me to his desk. It was by this time the evening. I was then interviewed for about two hours. The interview took place at the man's desk. I was sitting in a chair facing him. I was very nervous and frightened. There was a Farsi interpreter there also, but I got the feeling that he wasn't that good of an interpreter. For example, I was born on the 8th of the Iranian calendar month of Estand, but the interpreter kept interpreting it as the 9th of Estand.
9. The officer asked me why I had come to Canada. I told him that my basic aim was to be a refugee, but that I wanted to be in Canada for the purpose of working to better myself and my family. He asked me whether I wanted to be introduced to the Iranian consulate. I told him I did not. Then he asked me if my life would be in danger, if I went back to Iran, and I answered yes. He asked me if I was opposed to the Islamic regime, and I said that I was. He asked me if I was a sympathizer of any political parties in Iran such as the Mojahedeen or the Fedayeen-al-Khalq. I told him I was not. Then I told him my date of birth and other information of the same nature. I showed him some documents that I had brought with me showing ownership of a house in Iran. He also asked me, if I wanted to return to Iran and I said I did not, and he told me that I could make a refugee claim. He also wrote a report on
me alleging that I was not admissible to Canada, because I had false travel documents.
10. I did not tell the man the whole truth about my situation, but I feel that I had a good reason for what I did. First of all, prior to my arrival in Canada, I had no knowledge whatsoever about Canada's refugee laws. All that I knew was what the smuggler had told me, which was not to say too much at the airport. I did not know what Canada's attitude towards refugees from Iran was. I worried that Canada had good relations with Iran and would not want to hear my claim.
11. What I did know was that I was entering Canada illegally, without proper documents. I was very frightened and in dis tressed mental state from before I thought the purpose of the interview was for the officer to find a way to send me out of Canada. All I wanted was to say something that would allow me to stay in Canada. That is why I told the officer that I had come to Canada to work, instead of telling him the truth, which was that I was fleeing. I thought Canada would not appreciate me having been involved in politics, so I did not tell the officer of my political activities in Iran, or of my daughter's execution. As far as I was concerned, I believed that it was possible that Canada could deport me immediately back to Iran without a hearing. Therefore, I felt it was crucial that I not say the wrong thing; however, I had no way of knowing what the "wrong" thing or the "right" thing, for that matter, was.
12. There was no question in my mind at the time that the person who was interviewing me was a policeman. Of course, I know better now. I assumed that he was a policeman, because I was brought to his office by the first man I saw, whom I assumed was a policeman, because he was wearing a uniform. Furthermore, my only frame of reference was that I knew of the airport in Iran, which is staffed by law enforcement offi cials of the Islamic regime. In Iran the airport is a very sensitive place, and the government has complete control of monitoring travellers and checking everyone's documents. I had never heard of an Immigration officer before.
13. I had had experience with the police. When I was back in Iran several times they had come to my home to search it. On these occasions, they would lock me in my bedroom and interrogate me. While they were interrogating me, they beat me and told me not to make any noise. It is also common knowledge in Iran that when a person is summoned before the Pasdaran, interrogation is often accompanied by beating. This was my first experience with Canadian authorities, and I judged them by Iranian standards. As a result, I was afraid that any minute I might be mistreated, if I gave a wrong answer. This seems a foolish assumption now, but at the time I was fresh from my ordeal in Iran and was not thinking clearly.
14. During the interview, I felt very conscious of the fact that I had broken Canadian law, by coming in without proper travel documents. I felt that I had been arrested. I felt that I would either be sent to jail or sent back to Iran after I was inter-
viewed. When I was in the waiting room I was anxious to have my situation with being allowed to stay in Canada was [sic] resolved, so in that respect I was willing to speak to Canadian authorities. Nevertheless, while I thought I might have been able to leave the waiting room, I felt that this was not permissi ble and that I would be stopped by the other "policemen" who were all around. Certainly, when I was being examined by the second officer, I felt that, although he was very courteous, I had to do what he told me to do. Certainly I did not feel that I could leave the room any time I wanted.
15. I was not advised that I could consult a lawyer until the interview with the officer was over. When the officer had determined that I was a refugee claimant, he advised me that I had a right to designated counsel to help me put forward my claim. I did not ask for a lawyer at the beginning of the interview, because I felt that, because I had come into Canada without proper documentation, I had no rights before the authorities, and they could do as they wished with me.
16. The Officer made notes of what I said to him at the interview. Attached hereto and marked as Exhibit "A" to this my affidavit is a true copy of his notes.
THE CONSTITUTIONAL ISSUE— PARAGRAPH 10(B) OF THE CHARTER
It is evident from the tribunal's reasons that in reaching its conclusion, the tribunal considered, inter alia, the applicant's personal information form (Ex. P-1), the very extensive evidence of the applicant at the inquiry, as well as the notes taken by the Immigration Officer at the port of entry of his examination of the applicant. These notes were entered as Exhibit C-3 at the inquiry. At page 93 of the transcript, the tribunal stated:
Therefore this panel is not satisfied with your credibility and trustworthiness ... And therefore, you have failed to establish that there is any credible or trustworthy evidence ... And therefore, we have determined that you do not have a credible basis for your claim.
The transcript reveals that the tribunal did not believe the following statements by the applicant:
(a) that he had been a royalist sympathizer;
(b) that his daughter had been executed;
(c) that he did not know the whereabouts of his wife and children;
(d) that his property was confiscated; and
(e) that his actions were consistent with those of a person fleeing persecution.
It is also apparent from the transcript, (pages 91 and 92) that the tribunal relied heavily on Exhibit C-3. I am satisfied that Exhibit C-3 played a decisive role in the adverse findings of credibility by the tribunal.
In the context of the factual situation at bar then, it is necessary to examine counsel's submis sion that, at the outset of the interview with the applicant which produced Exhibit C-3, the appli cant should have been advised by the Immigration Officer of his right to retain and instruct counsel without delay, because he was being "detained" within the meaning of paragraph 10(b) of the Charter. When the applicant left the aircraft, he walked down a long hallway and waited his turn in the primary inspection line. The primary inspec tion Immigration Officer then diverted him into an interview room for a secondary examination. He waited in that room for approximately four hours. From this time onward, he was being detained within the meaning of paragraph 10(b) according to counsel. As a consequence, it is the further submission of counsel that Exhibit C-3 constituted evidence which was obtained in violation of the applicant's right to counsel as provided by para graph 10(b) of the Charter.
DISCUSSION
(a) Detention
The first question which must be answered is whether, in the circumstances related supra, the applicant can be said to have been "detained" within the meaning of paragraph 10(b). Counsel for the applicant relies on the decision of the Supreme Court of Canada in R. v. Therens et al., 3 and more particularly, on the reasons of Mr. Jus tice Le Dain therein.
The portions of the reasons of Le Dain J. relied upon read as follows (pages 641-642):
The purpose of s. 10 of the Charter is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10—arrest and detention—are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively pre-
3 [1985] 1 S.C.R. 613.
vent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel. In its use of the word "detention", s. 10 of, the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.
In addition to the case of deprivation of liberty by physical constraint, there is, in my opinion, a detention within s. 10 of the Charter when a police officer or other agent of the State assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel. [Emphasis added.]
In Chromiak this Court held that detention connotes "some form of compulsory constraint". There can be no doubt that there must be some form of compulsion or coercion to consti tute an interference with liberty or freedom of action that amounts to a detention within the meaning of s. 10 of the Charter. The issue, as I see it, is whether that compulsion need be of a physical character, or whether it may also be a compulsion of a psychological or mental nature which inhibits the will as effectively as the application, or threat of applica tion, of physical force. The issue is whether a person who is the subject of a demand or direction by a police officer or other agent of the State may reasonably regard himself or herself as free to refuse to comply. [Emphasis added.]
and (pages 643-644):
Any criminal liability for failure to comply with a demand or direction of a police officer must be sufficient to make compli ance involuntary. This would be true, for example, of compli ance where refusal to comply would amount to a wilful obstruc tion of a police officer in the execution of his or her duty, contrary to s. 118 of the Criminal Code.
Although it is not strictly necessary for purposes of this case, I would go further. In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecu tion for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. [Empha- sis added.]
I agree with the applicant's counsel that the rationale of Therens applies to the facts of this case. In my view, the Immigration Officer, "an agent of the State" who conducted the secondary examination of the applicant had assumed control over the applicant's movements and the applicant was not free to leave the room or go elsewhere. The Immigration Officer was engaged in a detailed interrogation of the applicant. In the result, this interrogation became an integral part of an inquiry under the Immigration Act which led, finally, to the issuance of an exclusion order against him. Based on the uncontradicted evidence of the applicant as set out in his affidavit, it is also apparent that he acquiesced in the deprivation of his liberty since he reasonably believed that he had no choice to do otherwise. In these circumstances, and applying the rationale of Therens, supra, I conclude that the applicant was "detained" within the meaning of paragraph 10(b). 4
It is the submission of the respondent, however, that routine questioning by Immigration Officials, whether at a secondary examination or otherwise, does not constitute a detention until such time as the person being questioned is informed that he will be detained under the Immigration Act. Coun sel relies on statements by Chief Justice Dickson in the case of R. v. Simmons.' In Simmons, the accused arrived at Toronto International Airport from Jamaica. She was initially required to attend a primary customs inspection and then a secondary customs inspection. The secondary inspection involved a strip or skin search. This search revealed that she was carrying a quantity of can nabis resin.
After stating that there were three distinct types of border search:
(a) routine questioning which every traveller undergoes at a port of entry;
(b) a strip or skin search; and
(c) a body cavity search.
4 To the same effect, see the decision of the Supreme Court of Canada in R. v. Thomsen, [1988] 1 S.C.R. 640, at pp. 649-650.
5 [1988] 2 S.C.R. 495, at p. 521.
the Chief Justice commented on the routine ques tioning referred to in (a) supra (at page 517):
No stigma is attached to being one of the thousands of travell ers 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.
Thereafter the Chief Justice directed his attention to the strip or skin search referred to in (b) supra.
He stated (at page 521):
In my view, the appellant was detained when she was required to undergo a strip search pursuant to s. 143 of the Customs Act. This result is consistent with both the meaning given to detention in common parlance and with the definition laid out by Le Damn J. in Therens, supra. When the customs officer informed the appellant that she was going to be searched, the appellant could not have refused and continued on her way. The customs officer testified that had the appellant attempted to leave, she would have notified the R.C.M.P. In addition, s. 203 of the Customs Act makes it an offence to obstruct or to offer resistance to any personal search authorized by the Customs Act. At the time of the search the appellant was quite clearly subject to external restraint. The customs officer had assumed control over her movements by a demand which had significant legal consequences.
I am not persuaded by the argument made before us by the Crown that if a strip search is considered a detention, all travellers passing through customs must be seen to be detained and therefore, to have a right to counsel. In Therens, supra, Le Dain J. stated that not all communication with police officers and other state authorities will amount to detention within the meaning of s. 10(b) of the Charter. This statement is equally valid with respect to the customs situation. I have little doubt that routine questioning by customs officials at the border or routine luggage searches conducted on a random basis do not constitute detention for the purposes of s. 10. There is no doubt, however, that when a person is taken out of the normal course and forced to submit to a strip search, that person is detained within the meaning of s. 10.
In my opinion, the comments by the Chief Justice support the applicant's submissions on this issue rather than those of the respondent. The applicant at bar was in a similar situation to the accused in Simmons. He was taken out of the normal course and required to submit to interrogation and, as a consequence, was detained within the meaning of section 10 of the Charter. It is said, however, that a secondary immigration inspection cannot be compared to a customs strip search and is in
reality simply another form of routine questioning of someone who voluntarily seeks admission to Canada. I do not agree. On these facts there was "a reasonable perception of suspension of freedom of choice" and "an involuntary restraint of liber ty". The applicant was also "subject to external restraint". Accordingly, it is my view that the tests for "detention" as set out in the relevant jurispru dence have been satisfied.
Before leaving my consideration of the Therens and Simmons cases, I should note that in Sim- mons, Madame Justice L'Heureux-Dube wrote dissenting reasons which were concurred in by Mr. Justice McIntyre. At page 540, she expressed the view that paragraph 10(b) of the Charter does not apply to a border search. In her view:
A border search is not part of the criminal process, but rather part of the process of entering into the country. The searched person's right to counsel would arise if and when she was placed under custody as part of the criminal process.
With every deference it seems to me that the weight of judicial authority does not compel such a strict interpretation. In the case of Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, Madame Justice Wilson, in com menting on the use of the word "everyone" in section 7 of the Charter, said (at page 202):
... I am prepared to accept that the term includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.
Section 10 of the Charter also employs the term "everyone". As was noted by counsel for the appel lants in the Singh case (at page 202), many other sections of the Charter use more restricted lan guage of application such as "every Canadian citizen" and "permanent residents of Canada". Thus, it seems a reasonable inference that this claimant for refugee status, who has been physical ly present in Canada at all relevant times is en titled to the protection of section 10. In my view, the rationale for section 10 protection in the cir cumstances at bar is just as compelling as in situations where the criminal process is engaged. In the context of a criminal proceeding, the rights
of an accused person are the subject of meticulous safeguards because there is a possibility of a depri vation of liberty through incarceration. In the case of a refugee claimant such as this claimant, assum ing that even a portion of his factual assertions are true, the consequences of his enforced return to Iran could well include incarceration, torture and even death.
For these reasons, then, I conclude that in the circumstances of this case, this applicant was detained within the meaning of paragraph 10(b) of the Charter.
(b) The Right to Counsel
The respondent submits, alternatively, that if the questioning of the applicant by Immigration officials constituted "detention", the applicant was given his Charter rights "without delay" and that section 10 was fully complied with. In support of this submission, counsel relies on the decision of the Ontario Court of Appeal in R. v. Kwok. 6 In that case, the Court seemed to treat the alleged violation of section 10 there as a technical viola tion only (at page 208). On this basis, I find the Kwok decision distinguishable factually from the case at bar. In my view, the section 10 violation in this case is a substantive one. The examining officer's notes obtained from the interview con ducted during the "detention" were used at the ensuing inquiry to impeach the applicant's credi bility. This is evident from the numerous refer ences to those notes by the Tribunal in support of its negative findings with respect to his credibility.' Exhibit C-3 was used as an adversari al weapon at the hearing before the tribunal to destroy the applicant's credibility. Had counsel been present before and during the examination thus giving to the applicant the benefit of an informed explanation as to the scheme of the refugee process under Canadian immigration law, I consider it more likely than not that the entire character of the proceedings would have been altered. In any event, it would have ensured that the applicant understood the consequences of the
6 (1986), 31 C.C.C. (3d) 196, per Finlayson J.A. 'See Transcript, at pp. 90, 91 and 92.
testimony given by him. As stated by Mr. Justice Lamer in R. v. Manninen: 8
The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally, if not more important, to obtain advice as to how to exercise those rights .... For the right to counsel to be effective, the detainee must have access to the advice before he is questioned or otherwise required to provide evidence.
Since the Supreme Court of Canada has indicated in Therens, supra, that the jurisprudence relative to police investigations in criminal matters may be extended to other agents of the State and since the majority of the Court in Simmons, supra has applied the Therens test to searches at ports of entry pursuant to the Customs Act, I think that an equally persuasive argument can be made in sup port of the right to counsel for refugee claimants at ports of entry. In my opinion, the circumstances at bar as summarized herein strongly support such a conclusion.
(c) Section 1 of the Charter
Having found for the reasons given supra, that there was a violation of the applicant's rights given to him pursuant to paragraph 10(b) of the Chart er, the question arises whether the provisions of section 1 of the Charter have any application to the circumstances at bar. 9
The respondent made no arguments under sec tion 1. However, it is my view that, in any event, the provisions of section 1 do not apply in the circumstances of this case. The parameters of sec tion 1 were identified by Le Dain J. in Therens, supra when he said (at page 645):
8 [1987] 1 S.C.R. 1233, at pp. 1242-1243.
9 Section 1 reads:
1. The Canadian Charter of Rights and Freedoms guar antees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstr ably justified in a free and democratic society.
Section 1 requires that the limit be prescribed by law, that it be reasonable, and, that it be demonstrably justified in a free and democratic society. The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s.1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule.
Applying the Therens test (sometimes referred to as the clarity test) to the situation at bar, I con clude that there is no express provision either by statute or regulation nor is there any necessary implication from any statute or regulation which would require that a refugee immigrant be deprived of his right to counsel in the circum stances of this case. The scheme of the Immigra tion Act envisages interviews and interrogations of persons seeking entry into Canada so that Immi gration Officers are able to properly discharge their duty under the Act to determine admissibili ty. Thus, while the administration of the Immigra tion Act permits and contemplates an interview of the kind undertaken on May 13, 1989, in this case, I am unable to conclude therefrom, that where such an interview has taken place during detention the scheme of the Immigration Act can reasonably be said to require the deprivation of the right to counsel. For these reasons, I conclude that section 1 of the Charter does not come into play in the circumstances of this case.
THE SUBSECTION 46.01(6) TEST
I turn now to the second issue set out earlier herein, namely, whether the tribunal applied the wrong test in making the determination which it was required to make pursuant to subsection 46.01(6) of the Act.'° In my view, there is merit in this submission. At page 20 of the transcript, being at an early stage in the credible basis hearing, the Adjudicator said to the applicant:
10 Subsection 46.01(6) reads:
46.01 . . .
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As explained, the onus is on you to satisfy us on evidence considered credible and trusworthy that you have a well-found ed fear of persecution ...(lines 18-19). [Emphasis added.]
Then, at the conclusion of the inquiry, in rendering the decision of the tribunal, the Adjudicator said:
We have therefore examined the evidence to determine whether you have been able to establish grounds for a fear of persecu tion. (p. 90, lines 59-60) [Emphasis added.]
I have no hesitation in concluding that the two tests set forth supra, impose a higher test than that required pursuant to subsection 46.01(6). ' 1
Counsel for the respondent submits however that in a passage on page 90 of the transcript (lines 46-57) the tribunal sets out the proper test to be applied at a credible basis hearing. He further submits that the tribunal set out the cor rect test again on page 93 of the transcript (lines 10-15). I agree that the tests articulated in both of those passages are acceptable. However, the prob lem is that in a case such as this where the tribunal has set out both a correct and an incorrect test on at least two occasions, it is difficult to conclude that no reviewable error has occurred. The situa tion at bar is not dissimilar to that in the case of Arduengo v. Minister of Employment and
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(6) If the adjudicator or the member of the Refugee Division, after considering the evidence adduced at the inqui ry or hearing, including evidence regarding
(a) the record with respect to human rights of the country that the claimant left, or outside of which the claimant remains, by reason of fear of persecution, and
(b) the disposition under this Act or the regulations of claims to be Convention refugees made by other persons who alleged fear of persecution in that country,
is of the opinion that there is any credible or trustworthy evidence on which the Refugee Division might determine the claimant to be a Convention refugee, the adjudicator or member shall determine that the claimant has a credible basis for the claim.
" Compare: Sloley v. Canada (Minister of Employment and Immigration), A-364-89, Heald J.A., judgment dated 22/2/90, not yet reported. See also: Lee v. Canada (Minister of Employ ment and Immigration), A-401-89, Heald J.A., judgment dated 22/2/90, not yet reported.
Immigration.' That was a case where the Immi gration Appeal Board, at one point in their rea sons, had set out the correct test for determining Convention Refugee status (well founded fear of persecution), and then in another portion of the reasons had incorrectly stated the test ("the appli cants have not established that they would be subject to persecution if they were to return to Chile"). [Emphasis added.] At page 438, I said, speaking for the majority of the Court:
The result is that in the total reasons of the board, ... two separate and conflicting tests for determining Convention refugee status have been articulated. One test is correct, the other is incorrect. In such circumstances it is impossible, in my view of the matter, to ascertain which test the board finally applied to the facts here present. I have, therefore, concluded that the board's decision should not be allowed to stand in view of the uncertainty as to whether or not the board applied the proper test in concluding that the applicant and his wife were not Convention refugees.
I find myself in a similar position in the instant case. At page 20, the Adjudicator stated a test and a burden of proof which is higher than that set out in subsection 46.01(6). At page 90, he states it correctly (lines 46-57) but then, also on page 90, he states it incorrectly (lines 59-60). Finally on page 93 (lines 10-15) he once again stipulates an acceptable test.
On this basis, and as in Arduengo, I am unable to satisfy myself that the tribunal did, in fact, apply the correct test. In these circumstances, I think the tribunal has committed reviewable error." A similar situation confronted the Court in the case of Kimbudi v. Minister of Employment
12 (1981), 40 N.R. 436 (F.C.A.).
13 See: Sloley v. Canada (Minister of Employment and Immigration), supra, where the Court said [at p. 2]. "In applying a higher test than that required pursuant to subsection 46.01(6), the Tribunal committed an error of law which is fundamental to the validity of its decision."
and Immigration.' 4 In that case, the tribunal stated the wrong test in one sentence and then proceeded to articulate the correct test in the next sentence. Urie J.A. speaking for the Court, said that this was reversible error since he was unable to conclude that a subsequent correction would serve to rectify an earlier misstatement of the applicable test.
REMEDY
To summarize, I have concluded firstly that in the circumstances at bar, the applicant's right to counsel under paragraph 10(b) of the Charter was infringed during the procedures invoked pursuant to the Immigration Act. I have also concluded that the tribunal committed reviewable error by apply ing a wrong test in making the determination it was required to make pursuant to subsection 46.01(6) of the Immigration Act. The remaining question to be considered is the nature of the relief to which the applicant is entitled.
In her memorandum of fact and law, counsel for the applicant simply requests that the exclusion order made against the applicant be set aside. Based on my conclusion with respect to the test applied pursuant to subsection 46.01(6), I think the applicant is entitled to have the decision of the tribunal dated August 1, 1989 set aside. The exclu sion order dated August 1, 1989 and made against the applicant by Adjudicator Roberts should also be set aside.
In-so-far as the Charter violation is concerned, counsel for the applicant did not, either in her memorandum or in oral argument request exclu sion of the evidence contained in Exhibit C-3. Similarly, she did not make any submissions in support of such a request's
14 (1982), 40 N.R. 566 (F.C.A.), per Urie J.A., at p. 568.
15 I am not unmindful of the view expressed by some Charter analysts that a specific request for the exclusion of evidence obtained in violation of a Charter right is not necessary. Professor Hogg, for example, expresses the view (Constitution- al Law of Canada, (2nd) ed., at p. 702) that where an objection
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Accordingly, the difficult question as to whether this Court, on a section 28 application, has the power, pursuant to subsection 24(2) of the Charter to order the exclusion of this evidence, in the rather special circumstances of this case, need not be considered on this application.
* * *
The following are the reasons for judgment rendered in English by
MAHONEY J.A.: I have had the advantage of reading in draft the reasons for judgment proposed by Mr. Justice Heald J.A. and am, with respect, unable to agree. In my opinion, the applicant had not been detained within the contemplation of section 10 of the Charter during his secondary examination by the immigration officer at the port of entry. It follows that there was no obligation to then inform him of a right to counsel.
Everyone, including a Canadian citizen or per manent resident who has a right to come into Canada, is detained when he presents himself for admission at a port of entry. No one is free to enter Canada until an immigration officer is satis fied that he has a right to do so or that it would not be contrary to the Immigration Act, R.S.C., 1985, c. 1-2, for him to do so. What distinguishes all such detainees from the sort of detainee con sidered in R. v. Therens et al., [1985] 1 S.C.R. 613, is that the person has not been put in that position by an agent of the State assuming control over his movements. Rather, he has put himself in that position by his own action in seeking admis sion. Such a person is not, in the terminology of R.
(Continued from previous page)
is made to such evidence in the course of a criminal trial, the objection itself amounts to an application under subsection 24(1) of the Charter to a Court of competent jurisdiction (the Trial Court) for an appropriate remedy, i.e. the exclusion of evidence. I am not persuaded that, even if that view is a proper one in the context of criminal proceedings, it can be applied to administrative law proceedings. Furthermore, when this matter was before the tribunal, no objection was taken to admissibility of Exhibit C-3. Thus, we do not have a parallel situation to that discussed by Professor Hogg. On this record it is not possible, in my view, to imply or infer an application under subsection 24(1) of the Charter for the relief available under subsection 24(2) of the Charter.
v. Simmons, [1988] 2 S.C.R. 495, at page 517, "detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel".
When a person presents himself at a port of entry, admits that he has no right to come into Canada and claims to be a Convention refugee, the immigration officer examining that person has the duty to enquire, inter alia, whether that person may be admitted pursuant to subsection 6(2) as well as section 8 and whether he should be detained pursuant to subsection 12(3).
(2) Any Convention refugee and any person who is a member of a class designated by the Governor in Council as a class, the admission of members of which would be in accord ance with Canada's humanitarian tradition with respect to the displaced and the persecuted, may be granted admission subject to such regulations as may be established with respect thereto and notwithstanding any other regulations made under this Act.
• • •
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
(2) Every person seeking to come into Canada shall be presumed to be an immigrant until that person satisfies the immigration officer examining him or the adjudicator presiding at his inquiry that he is not an immigrant.
• • •
12. (1) Every person seeking to come into Canada shall appear before an immigration officer at a port of entry, or at such other place as may be designated by a senior immigration officer, for examination to determine whether that person is a person who shall be allowed to come into Canada or may be granted admission.
• • •
(3) Where an immigration officer commences an examina tion referred to in subsection (1), the officer may, in such circumstances as the officer deems proper,
(a) adjourn the examination and refer the person being examined to another immigration officer for completion of the examination; and
(b) detain or make an order to detain the person.
(4) Every person shall answer truthfully all questions put to that person by an immigration officer at an examination and shall produce such documentation as may be required by the immigration officer for the purpose of establishing whether the person shall be allowed to come into Canada or may be granted admission.
As I understand the terminology, the primary examination occurred, in this case, at what the applicant described as a "little booth". That, I take it, was one of the kiosks before which all deplaning international passengers line up. It seems clearly unreasonable to expect that the required examination of a Convention refugee claimant by an immigration officer could ever be satisfactorily conducted at the head of the primary examination line. The mere reference of such a person to a secondary examination and a delay in beginning it cannot, in my view, themselves lead to the conclusion that the person is detained in the constitutional sense. A delay of several hours may be attributable only to the numbers of persons requiring examination and officers available to do it or to the need for translation.
I am unable to agree that the examination of the applicant in the present instance was anything but routine. I see no way of demonstrating the basis for my opinion but to set out, in Appendix 'A', the full text of the immigration officer's handwritten record of the questions and answers, translated to and signed by the applicant at the time. It speaks for itself and, in my opinion, simply does not suggest anything in the nature of an inquisitorial strip search that would, I quite agree, escalate a detention of no constitutional consequence. Accepting the applicant's uncontradicted affidavit evidence as to his state of mind when subjected to the secondary examination, such a circumstance particular to the person concerned cannot, in my view, change the character of what was plainly a routine examination.
It is important to note that it is not damaging information the applicant was cajoled into telling the immigration officer that nourished the tribu nal's doubt as to the credible basis of his claim; it
was, rather, what he did not mention. The omis sions included his royalist political activities, the confiscation of his business and the arrest and execution of his daughter. While we may be obliged to accept the applicant's affidavit evidence as to his state of mind and perception of the secondary examination, the tribunal was under no such constraint in assessing both the applicant's credibility and the value of that evidence as a reasonable explanation of the omissions. That assessment was entirely within its terms of reference.
As to the subsection 46.01(6) test, the adjudica tor did, indeed, misstate it at the beginning of the tribunal's hearing. That was on May 19, 1989. The proceeding adjourned to June 30, on which date the evidence was completed and arguments pre sented. It adjourned to August 1 when the decision was rendered and, in the course of which, the test was correctly stated.
In Arduengo v. Minister of Employment and Immigration (1981), 40 N.R. 436, a three-mem ber panel of the Immigration Appeal Board issued reasons and supplementary reasons for a decision, each authored by a different member and con curred in by the other two. One stated the test in issue correctly and the other misstated it with the result, as held at page 438:
... that in the total reasons of the board, concurred in by all three board members hearing the case, two separate and con flicting tests for determining Convention refugee status have been articulated. One test is correct, the other one is incorrect. In such circumstances it is impossible, in my view of the matter, to ascertain which test the board finally applied to the facts here present. I have, therefore, concluded that the board's decision should not be allowed to stand in view of the uncer tainty as to whether or not the board applied the proper test in concluding that the applicant and his wife were not Convention refugees.
In Kimbudi v. Minister of Employment and Immigration (1982), 40 N.R. 566, as Mr. Justice Heald J.A. has observed, the I.A.B. stated the
wrong and correct tests in consecutive sentences of its decision.
Those situations seem to me to be very different from that at hand. Notwithstanding its statement of the wrong test on May 19, I have no real doubt that this tribunal applied the correct test, as stated in its decision delivered August 1.
I would dismiss this section 28 application.
PRATTE J.A.: I agree.
APPENDIX 'A'
NAME: DEHGHANI, ABDUL RASSOUL ADDRESS: 74 KHAKSHENASSY AVENUE SHIRAZ
D.O.B.: 28/Apr/1937 HEIGHT: 175 WEIGHT: 80Kgs
EYES: Brown
P.O.B.: SHIRAZ, IRAN
Q. What is the purpose of your visit to Canada.
A. My basic aim is to be a refugee.
Q. Are you claiming refugee status at this time.
A. Yes.
Q. On what basis are you claiming refugee status.
A. I want to work for myself and the future of my children
who want to study.
Q. Is there any other basis upon which you are claiming
refugee status.
A. No.
Q. Married.
A. Married.
Q. Children.
A. 4-3 daughters & 1 son: Mahboobeh 26 yrs old, Zahrr 27
yrs, Mohammed Reza 24 yrs and Fatemeh 22 yrs. old.
Q. What is your wife's name.
A. JAHADPOUR, SHAMSYEH born in 1946.
Q. Where are your wife and children.
A. They are in Shiraz, Iran.
Q. Could you tell me how you made your way from Iran to
Canada.
A. I was sent by the smuggler whom I paid, he arranged the
papers for me.
Q. When did you leave Iran.
A. About twenty five days ago.
Q. Was your exit from Iran legal or illegal.
A. It was legal.
Q. Were you in possession of a passport and/or other travel
documents when you left Iran.
A. Yes. I had a passport which I haven't brought with me. I brought my Iran identity card, the house deed and shop deed, and my trade licence ... and also police certificate of clean record, and my wife's professional licence—she's a beautician.
Q. Are these documents with you.
A. It's in my bag.
Q. What happened to your Iranian passport.
A. I mailed it back to Shiraz from Turkey.
Q. Once you left Iran where did you go.
A. To Turkey ... to Istanbul then Ankara.
Q. How long in Istanbul.
A. Twenty days.
Q. Your exit from Iran to Istanbul was legal.
A. Yes.
Q. What is your occupation.
A. I'm a shopkeeper.
Q. What kind of goods.
A. Zinc products.
Q. Do you own your own home.
A. Yes.
Q. What did you do in Istanbul.
A. Nothing.
Q. Why did you go to Istanbul.
A. I wanted to go to the States.
Q. When you left Iran was your goal to come to Canada or the U.S.
A. Basically I wanted to come to Canada. Q. Why try to go to the States.
A. I wanted to go to the States legally and then come here. Unfortunately it did not happen.
Q. What do you mean.
A. I wanted to apply for a visitor's visa to the U.S. from there
to legally come here.
Q. Why go the round about route, why did you not apply to Canada direct.
A. I didn't have anybody here to send me an invitation or visa, but I had someone in the States.
Q. Who did you have in the States.
A. My cousin ... Mathew Registry—he's my mother's sister's son. USINS form 1-134 & letter of non-immigrant visa refusal from U.S. Consulate, on file.
Q. Was your goal to obtain a visitor's visa and remain illegally in the U.S.
A. As I said I wanted to get my green card & then come over here legally.
Q. Were you applying for a visitor visa or a permanent visa to the U.S.
A. Visitor—non-immigrant.
Q. If you applied for an non-immigrant visa how does this support your claim that you wanted to obtain your green card before coming to Canada.
A. There I would have got a lawyer who does this. When I go there and start to work & live there the lawyer is going to get the green card for me and with the green card I could come here.
Q. So in effect what you are saying is that you planned to go to the U.S. as a visitor, remain there illegally, working illegal ly and then try to obtain your green card.
A. No it would be absolutely legally. Because when I enter there ... I will work there then I will get my green card. Everything would be legally done.
Q. Did you apply for a visa to live in the U.S. or simply a tourist visa.
A. My request was for a temporary visa.
Q. For how long.
A. Six months.
Q. What you're saying is that within the six months you'll try to get your green card.
A. Yes.
Q. What made you change your plans.
A. I was told in the meantime that it's better to go directly to Canada ... I was told there was trouble in getting the proper documentation in the U.S.... it might be a very long process. Consequently I thought I would skip going to the U.S. & come here directly.
Q. So what happened to your idea of doing things legally.
A. I'd love to be always within the law, however, in this case the smuggler said that it would not be possible to come here with an Iranian passport so I gave him the money to arrange the documents.
Q. When did you decide to come here through a smuggler. After your visa request to the U.S. was refused?
A. After the U.S. refused my visa application.
Q. Where did you meet the smuggler.
A. In Istanbul in the street.
Q. Was it by chance?
A. By chance.
Q. What's his name.
A. He said his name is Manucheis.
Q. What does he look like.
A. He is partially bald, fattish, 50 yrs., medium complexion,
about 160 cms.
Q. How much did you pay him.
A. $6,500 (U.S.D)
Q. For what? What did that include.
A. Included ticket, passport & everything from Istanbul to
Toronto.
Q. After you paid him what next.
A. He (the smuggler) bought the ticket and passport.
Q. What was the routing on the ticket.
A. Istanbul—Amsterdam—Toronto.
Q. What kind of passport did he give you.
A. Spanish. The passport said ESPANA.
Q. Did the passport have your picture or someone else's.
A. My own picture.
Q. Do you know how he got the passport.
A. No.
Q. When did you leave.
A. This morning (13/May/89)
Q. Left Istanbul.
A. Yes.
Q. Did the smuggler accompany you.
A. No.
Q. You simply showed your ticket and passport & the ticket
agent allowed you onto the plane in Istanbul.
A. Yes.
Q. What happened in Amsterdam when you changed planes.
A. From Istanbul to Amsterdam I came by KLM. From
Amsterdam to Toronto by CP.
Q. When you boarded the CP plane what was the procedure.
A. I went to have my ticket confirmed then I took the passport
to the police and I got my boarding card.
Q. Did anyone question you about the passport.
A. No. It was a clean passport.
Q. Why is there pages missing.
A. The smuggler told me to destroy the passport or at least the
two pages with the picture and bio data.
Q. How much money do you have with you.
A. Whatever money I had I gave to the smuggler. I have
nothing now with me.
Q. Any relatives in Canada
A. No.
Q. Any friends.
A. No.
Q. How about in the U.S.—just the cousin.
A. Yes.
Q. Any criminal conviction.
A. No. I have a clean record certificate.
Q. Any medical problems.
A. No, I have none.
Q. Why did you not apply for an immigrant visa to come to
Canada.
A. I didn't know that it will be accepted.
Q. But did you even apply.
A. There were rumours that it wouldn't be accepted.
Q. Ever been to Canada before.
A. No.
Q. Do you have CR. Status in any other country.
A. No.
Q. Applied for refugee status in any other country.
A. No.
Q. Why did you not apply for refugee status in Turkey.
A. I don't like Turkey. I wanted to be in Canada not in
Turkey. Moreover, Turkey would possibly turn me back to
Iran.
Q. Were you involved in religious orgs. in Iran.
A. No.
Q. Involved in any political orgs.
A. No.
Q. Were you ever been [sic] jailed for religious or political
reasons.
A. I have never ever been in jail.
Q. Why did you leave Iran at this time.
A. Because I am now already fed up and my daughter is going
to University, my daughter is passing here midwifery
courses .. my son also want to study and go to university,
because of this I chose to come out now.
Q. How will the fact that you're here help them go to
University.
A. If I'm here, I will then sell my properties, bring the money
& put the children through university in Canada.
Q. If you went back to Iran would your life be in danger.
A. Yes.
Q. Why.
A. I'm a shopkeeper ... people know that I have left Iran &
they know my purpose for leaving.
H & C CONSIDERATIONS
Category One: Life & Safety Negative
Category Two: Personal Relationships Negative
Category Three: Compassionate Negative
Category Four: Profile Negative
Category Five: Ties with Canada Negative
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