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 . . . 
(Continued on next page) 
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 
(Continued from previous page) 
(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 
(Continued on next page) 
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 
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.