Canada (Minister of Citizenship and Immigration) v. Gill, 2003 FC 1398

Date: 20031128

Docket: IMM-4191-02

Citation: 2003 FC 1398

BETWEEN:

                               THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                     Applicant

                                                                             - and -

                                                           RANDHEER SINGH GILL

                                                                                                                                               Respondent

                                                            REASONS FOR ORDER

LEMIEUX J.:

BACKGROUND:

[1]                 The applicant in this judicial review proceeding is the Minister of Citizenship and Immigration (the "Minister"). The respondent was not present at the hearing of this application nor was he represented by counsel.

[2]                 The Minister seeks to set aside the August 22, 2002 decision of Dianne Tordorf, a member of the Immigration Division of the Immigration and Refugee Board (the "tribunal") who, after conducting a 48-hour first detention review under subsection 57(1) of the Immigration and Refugee Protection Act (the "Act"), ordered, pursuant to section 58 of that Act, the respondent's release from detention.

[3]                 The Minister submits the tribunal erred in several ways:

(1)        by not taking into account prescribed factors;

(2)        by taking into account an irrelevant consideration;

(3)        by making a patently unreasonable finding of fact.

[4]                 The determination of this case turns on a consideration of Part I - Division 6 of the Act, which deals with release and detention as well as the provisions of Part XIV of the Immigration and Refugee Protection Regulations ("Regulations") which prescribes the factors for the application of Part I - Division 6 of the Act.

[5]                 The thrust of the Minister's submissions relate to that aspect of the Act and Regulations which speak to the issue of a person whose identity is not established and who seeks entry in Canada or admission as an immigrant.

[6]                 The respondent claims to be a citizen of India. He entered Canada on June 27, 2002, clearing Customs and Immigration at Dorval Airport. He made a refugee claim the next day.

[7]                 On August 20, 2002, the respondent was interviewed by an immigration officer at the offices of Citizenship and Immigration Canada ("CIC") in Montreal. The following can be gleaned from the affidavit of the immigration officer:

(1)        he did not have in his possession a passport or travel documents such as an airline ticket;

(2)        he used a photo substituted Indian passport under the name Gursharan Singh to gain entry into Canada, a passport which his smuggler kept after showing it to a Canadian Customs officer;

(3)        he said his real name was Randheer Singh Gill;

(4)        he claimed to have travelled from India transiting Holland; he did not, however, remember the name of the airline he travelled on;

(5)        he presented the immigration officer two identity documents: a photocopy of his birth certificate and a driver's licence which CIC immediately examined and determined, that same day, were of doubtful authenticity.

[8]                 After the interview, the following events occurred all on August 20, 2003:

(1)        the immigration officer issued a section 44 report alleging the respondent was inadmissible to Canada;

(2)        a departure order was issued against the respondent in the name of Randheer Singh Gill because he had no valid visa in his possession;

(3)        the Minister's delegate, pursuant to paragraph 58(1)(d) of the Act was of the opinion the respondent's identity had not been established but may be established;

(4)        the respondent was arrested and detained without a warrant pursuant to paragraph 55(2)(b) which authorizes such a measure "if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act".

[9]                 Section 57 of the Act provides the Immigration Division must review the reasons for the continued detention of a permanent resident or a foreign national within forty-eight (48) hours after that person was first taken into detention.

THE TRIBUNAL'S DECISION

[10]            As noted, on August 22, 2002, the tribunal ordered the respondent's release from detention on condition the respondent report, as directed by an immigration officer, at any place, date and time for examination and making of removal arrangements, that he provide CIC with his address and, before moving, advise CIC of his change of address.

[11]            The tribunal stated the respondent told the immigration officer during his August 20, 2002 interview he had never obtained his own passport and it was possible to obtain other identity documents from India such as his ration card, his border pass and his electoral I.D. card. She confirmed the examination by CIC disclosed the photocopy of his birth certificate and driver's licence were of doubtful authenticity and noted on the driver's licence a spelling was "License".

[12]            She said CIC "does not have any other ground in order to justify your detention other than they wish to investigate your identity" and stated "their next step would have been to ask you more information and contact the Canadian embassy in India to continue their research. However, nothing specific was mentioned".

[13]            The tribunal said it asked whether CIC had sent "your fingerprints to the RCMP, the FBI or USINS" and found "there is no indication in the file that any of these agencies have been contacted with your fingerprints, which I might add would be very basic procedures to do if somebody is really worried about who you are, Sir".

[14]            The heart of the Tribunal's written reasons is contained in the following paragraphs:

I mentioned to you at the beginning of the hearing that I would be considering some factors contained at article 247 of the Immigration Regulations. Paragraph (a) : « Has the foreign national cooperated in providing evidence of their identity in assisting the department in obtaining evidence, in providing detailed information on the itinerary they followed in travelling to Canada. » I find that yes, you have cooperated with Immigration and that there has been no investigation regarding your itinerary to put in doubt what you said of how you travelled to Canada.

There is an expertise in your file that carries a lot of weight regarding your birth certificate and your driver's licence. There are serious concerns that are raised regarding the authenticity of those two documents. However, Immigration has decided to issue you a departure order based on the information contained in those documents. In my opinion, I find it inconsistent for Immigration now to put in doubt those same documents if it was sufficient enough for them to make an official document of removal against you.

They had the option to continue your examination and to continue to investigate your identity until such time as they were satisfied and they would end their examination and then they would issue whatever removal order. I understand that the law now puts pressure on the department to decide eligibility within three days, but just because the person would be deemed eligible to claim for refugee status in my mind does not mean that Immigration is necessarily satisfied with identity, but your claim is deemed to be eligible if there is no reason to prevent your refugee claim from going on.

If Immigration had serious concerns about your identity, I think they could have sent your fingerprints to different agencies, at least to verify whether you have been in the United States, whether you have been in a country in Europe and more importantly, whether you were known under another name somewhere in the world. I did not have any reasonable explanation why it was not done and I find it unfair that you would be sitting in detention with Immigration being not totally satisfied with your identity and putting a burden on you to prove with further documents who you are.

I do not find that it is justified to maintain your detention, I am releasing you from detention as there is no ground other than identity, no argument regarding you would be a danger to Canadian public or that you would be a flight risk has been invoked.... [emphasis mine]

RELEVANT STATUTORY AND REGULATORY PROVISIONS

[15]            Section 58 of the Act sets out the circumstances in which a foreign national "shall be released from detention". It reads:

[16]            Section 58 refers to prescribed factors. These prescribed factors are contained in sections 244 and 247 of the Regulations:

ANALYSIS

[17]            The Minister invokes three reasons to justify setting aside the Tribunal's decision.

[18]            First, counsel for the Minister argues that in arriving at her decision whether to release the respondent from detention or not, the Tribunal took into account an irrelevant consideration - the fact CIC had issued a departure order in, said to be by the respondent, his real name - Randheer Singh Gill - (the name on his driver's licence and photocopy of his birth certificate which had been determined to be of doubtful validity). Counsel for the Minister argues that consideration is not relevant to the purposes of the Act relying upon [1982] 2 S.C.R. 2">Maple Lodge Ltd. v. Canada, [1982] 2 S.C.R. 2. The Minister states a departure order is not an attestation of the identity of a person but merely indicates a person known to the Canadian authorities under that name, is inadmissible in Canada and must be returned to his/her country of origin.

[19]            The second reason invoked by the Minister is that the tribunal failed to consider two of the factors prescribed in subsection 247(1) of the Regulations, namely, paragraphs (c) and (e).

[20]            Counsel for the Minister argues consideration of those factors, the absence of travel documents (air ticket), the return of the false passport to a smuggler (paragraph (c) of the Regulations) and the expertise of CIC to the effect the birth certificate and driver's licence were of dubious authenticity (paragraph (e) of the Regulations) should have been taken into consideration to determine if his identity has not been established.

[21]            Counsel for the Minister further argues the tribunal made an erroneous finding of fact which it arrived at in a perverse or capricious manner in concluding the immigration authorities were satisfied with the respondent's identity because they decided to issue a departure order based on the name on his driver's licence and photocopy of his birth certificate.

[22]            I make the following points on the statutory scheme provided for in the Act and Regulations with respect to the release or detention of a foreign national whose identity has not been established:

(1)        section 58 of the Act provides for the mandatory release of a foreign national unless a member of the Immigration Division is satisfied one of the four circumstances fits that person's case;

(2)        in the case of the respondent, the only relevant circumstance invoked by the Minister was paragraph 58(1)(d) relating to identity;

(3)        the application of paragraph 58(1)(d) is only triggered where the Minister is of the opinion the identity of the foreign national has not been, but may be, established. The Minister has issued that opinion in this case;

(4)        whether a person in detention should be released or not depends on an assessment by a member of the Immigration Division of one of two circumstances: its appreciation whether the foreign national has not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing his/her identity or the Minister is making reasonable efforts to establish the identity;

(5)        in this case, the tribunal seems to suggest the Minister was not making reasonable efforts to establish the respondent's identity. That determination has not been challenged and leaves for consideration the respondent's cooperation or lack of it;

(6)        to make this assessment, the Immigration Division must take into account the prescribed factors;

(7)        in the case of a person whose identity has not been established, the prescribed factors are contained in section 247 of the Regulations;

(8)        an examination of the prescribed factors under section 247 of the Regulations suggests that they are particularly appropriate for the determination of whether a foreign national has reasonably cooperated by providing relevant information establishing his identity;

(9)        in assessing that degree of cooperation, the prescribed factors seem to me to be of two types. The first type of factor are those reflecting positive cooperation such as in paragraph 247(1)(a) by providing evidence of their identity or assisting the department in obtaining evidence of their identity. The second type of factor are those evidencing the lack of cooperation which makes identity difficult to determine such as destruction of passports, destruction of airline tickets, production of fraudulent documents, the existence of documents that contradict information provided by the foreign national with respect to his identity.

(10)      it is the task of the Immigration Division to weigh these factors in deciding whether to continue detention or releasing a foreign national on conditions. I add that if it is determined there are grounds for detention, the Immigration Division must examine the factors provided for in section 248.

[23]            I note the new Act places emphasis on identification. For example, subsection 100(4) provides the burden of proving a claim is eligible to be referred to the Refugee Protection Division rests on the claimant who must produce all documents and information as required by the rules of the Board. Section 7 of the Refugee Protection Division Rules states a claimant must produce acceptable documents establishing identity and the claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. In addition, section 106 of the Act provides that the Refugee Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity and, if not, whether they have given a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.

[24]            The importance of a person's identity was emphasized by Justice Nadon, as a member of the Federal Court Trial Division, in Elazi v. Canada (M.C.I.) (2000), 191 F.T.R. 205, at paragraphs 16 and 17 as have other judges of this Court in recent cases.

[25]            I am in agreement with the submissions of the Minister in this case.

[26]            In my view, the tribunal erred in law when it did not weigh two prescribed factors in assessing whether the respondent's detention should continue. The omitted factors are paragraph 247(1)(c) and (e). This is an error of law.

[27]            Furthermore, I am also of the view the tribunal took into account an irrelevant consideration in deciding to release him. That irrelevant consideration was the fact the departure order had been issued in the respondent's supposedly real name, the name reflected in his driver's licence and the photocopy of his birth certificate. That is also an error of law.

[28]            Lastly, the Minister is correct in arguing the tribunal made an erroneous finding of fact, arrived at in a perverse and capricious manner when concluding the immigration authorities were satisfied with the respondent's identity because they decided to issue that departure order in the name reflected in documents of doubtful authenticity. Such a finding is contrary to the Minister's opinion given under paragraph 58(1)(d).

[29]            For these reasons, this judicial review application is allowed, the decision of the tribunal is set aside, and the respondent's detention is to be reviewed by the Immigration Division constituted differently. No certified questions arise.

"François Lemieux"

                                                                                                   J U D G E          

OTTAWA, ONTARIO

NOVEMBER 28, 2003

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:       IMM-4191-02

STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION v. RANDHEER SINGH GILL

PLACE OF HEARING:         Montreal

DATE OF HEARING:           July 2, 2003

REASONS FOR Order :       THE HONOURABLE MR. JUSTICE LEMIEUX

DATED:          November 28, 2003

APPEARANCES:

Me Marie-Claude Demers                      APPLICANT

Not represented

RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg

Department of Justice Canada

Montreal, Quebec                      APPLICANT

Mr. Randheer Singh Gill

Montreal, Quebec                      FOR HIMSELF