Yang v. Canada ( Minister of Citizenship and Immigration )
IMM-5833-98
Evans J.
13/11/98
7 pp.
Motions for stay of execution of removal of applicants to Hong Kong pursuant to exclusion orders issued in March 1998-Applicants had arrived at Vancouver International Airport without valid passports or other travel documents-Prior to issue of exclusion orders, applicants declared had no problems in China or Hong Kong and did not fear being returned there-Told of contents of exclusion orders and declared understood explanations and had no questions-Even if, as applicants allege, were subsequently denied access to counsel and their requests to make refugee claims, this would not invalidate exclusion orders or removal-Applications denied-Applicants have not satisfied all three prongs of test for issuing stays established in Toth v. Canada (Minister of Employment and Immigration), [1989] 1 F.C. 535 (C.A.)-Although serious issue to be tried: whether applicants had constitutional right to have counsel present at immigration interview prior to issue of exclusion order-Under current legislation, SIO's examination may lead to issue of exclusion order without benefit of hearing-Right to counsel can therefore no longer be said to create miniinquiry prior to inquiry-Since issue of exclusion order has significant impact on individual rights by barring any subsequent right to determination by CRDD of claim to be recognized as refugee, serious issue whether Charter, s. 7 requiring SIO to advise individuals of right to counsel before exclusion order issued-However, no evidence of irreparable harm if applicants returned to Hong Kong, and even to China-Bare assertion of fear of persecution, without more, not sufficient evidence of irreparable harm-Balance of convenience therefore favours prompt removal of applicants by Minister pursuant to statutory obligation-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], s. 7.