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.