Date: 20090706
Docket: IMM-4508-08
Citation: 2009 FC 700
Ottawa, Ontario,
July 6, 2009
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Applicant
and
SANDRA
SIKIRATU IYILE
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and
background
[1]
The
Minister of Public Safety and Emergency Preparedness (the Minister) challenges,
in this judicial review application, the September 19, 2008 decision of Marie-Louise
Côté, a member of the Immigration Division of the Immigration and Refugee Board
(the tribunal), who ordered the release from detention of Sandra Sikiratu Iyile
(the respondent), subject to conditions. The respondent was required to report
weekly to the Immigration Officer in Montreal. The tribunal said,
however: “This condition will cease once an Immigration Officer is satisfied of
your identity”. She claims she was born in Benin, Nigeria in December
1983 which would make her 25 years of age. She claimed to have left Nigeria on July
16, 2008 with the assistance of a smuggler, taking a flight from Lagos to
Accra, the capital of Ghana where she spent a few hours in transit before she
boarded a flight, accompanied by her smuggler, from Accra to Geneva, staying
there about four days then flying to Munich transiting there before her flight
to Montreal where she landed on July 22, 2008.
[2]
Counsel
for the Minister submits the tribunal erred in law in the following ways:
1) Relying on
the Federal Court of Appeal’s decision in the Minister of Citizenship and
Immigration v. Kaileshan Thanabalasingham, [2004] 3 F.C.R. 572 (Thanabalasingham),
the tribunal erred in not providing clear and convincing reasons for departing
from previous decisions rendered by members of the Immigration Division who
reviewed her detention and had not released her.
2) The tribunal exceeded
its jurisdiction, by usurping the Minister’s function under section 58(1)(d) of
the Immigration and Refugee Protection Act (IRPA).
3) The tribunal erred in
law in relying on paragraphs 178(1)(a) and (b) of the Immigration and
Refugee Protection Regulations (IRPR).
4) The tribunal made
capricious or perverse findings of fact or conclusions.
[3]
She
was detained on arrival at Pierre-Elliott-Trudeau Airport because her
identity was in doubt. She had no passport on arrival in Montréal but, as was
determined a few days later, she had travelled from Germany on a
Canadian passport bearing the name of Catherine Iyodele. When she deplaned, she
had the following documents issued to her in either April or May 2008:
· a National Birth
Certificate issued to Sandra Sikiratu Iyile dated April 21, 2008
on the application of Daniel Odiase. The certificate states Sandra Sikiratu
Iyile was born on the 20th of December 1983 in Benin City, Edo State
to Mr. Sam Iyile (father) and Mrs. Margret Iyile (mother) (Minister’s Record,
page 38);
· a Statutory Declaration
of Age
dated April 17, 2008 submitted by Daniel Odiase to the High Court of
Justice in Nigeria in which he swears Ms. Iyile is his niece, indicates
the date of her birth and who are her parents (Minister’s Record, page 40);
· a Certificate
of Identification/Origin dated May 26, 2008 with photo issued to
Ms. Iyile by the Ikpoba Okha Local Government Council of Edo State Nigeria
(Minister’s Record, page 36); and,
· an Affidavit
dated May 26, 2008 from Daniel Odiase to the Customary Courts Edo State of Nigeria entitled
Affidavit of Local Government Area of Origin. In that affidavit, he says Miss
Iyile is his niece (Minister’s Record, page 42).
[4]
These
documents were sent for verification to determine if they were genuine. Her
fingerprints were also taken and sent to the authorities who concluded she has
no record in Canada or the United
States.
She claimed refugee status upon arrival in Montréal and was issued a
conditional departure order.
[5]
Pursuant
to the provisions of the Immigration and Refugee Protection Act (IRPA),
the respondent had a number of detention reviews.
· On July
25, 2008, her first detention review was conducted, at which the respondent
testified and her interview of July 22nd with an Immigration Officer
at the airport was analysed. Commissioner Ladouceur concluded:
“I will maintain preventive detention for
seven days and maybe shorter if immigration is satisfied of your identity. It’s
strictly a matter of identity at this point, and then afterwards when identity
is established, normally you’ll be released.”
· On August
1, 2008, her second detention review where Commissioner Suzanne Bibeau determined
the respondent would remain in detention because her collaboration to assist in
proving her identity was not sufficient. The previous day, July 31, 2008,
Canada Border Services Agency (CBSA) had received the expert analysis on the
documents which the respondent had furnished to prove her identity. That
same day, the respondent was interviewed by an Immigration Officer.
· Other reviews
which will be mentioned later in these Reasons.
[6]
On
July 31, 2008, the expert analyst reported on the examination of the
four documents submitted: Mr. Odiase’s affidavit of May 26, 2008; the
certificate of identification of origin dated May 26, 2008, the national birth
certificate and the declaration of age. The examiner said these documents could
not provide the basis for establishing Ms. Iyile’s identification because: (1)
all of them contained no security features enabling the analyst to verify their
authenticity; (2) these documents did not provide any biometric information
enabling a linkage to Ms. Iyile; (3) none revealed any trace of alteration; (4)
there were no specimens to which the documents could be compared; and, (5) in
the case of some (most) of the documents, they were based on information
provided by a third party (Mr. Odiase).
[7]
This
expertise led to the submission by Minister’s counsel before commissioner
Bibeau CBSA did not have enough information to conclude on her identity. Minister’s
counsel then described the other steps CBSA was taking to verify her identity.
Commissioner Bibeau, after hearing from Ms. Iyile and having considered the
Minister’s submissions which included his comments on the July 31, 2008
interview the respondent had with the Immigration Officer, ruled she should
remain in detention for the following reasons:
“So with respect to the efforts done by
the Minister in the past week, I consider that they are reasonable given the
facts of your claim, first of the results arrived on the 30th,
so starting from then, they had to make more verifications because the
conclusion is that they are not satisfied. With respect to your cooperation, I
do find you quite limited. Some of your answers seem to be quite imprecise, if
I can say that. I asked you with respect to the amount, what you purchased
for that amount and your answers were very, very vague. I do have problems with
the amount as stated previously and also you seem to not being able to provide
much more information.
So, therefore, on the basis of this, I
find the efforts reasonable and I find your cooperation limited, so I do invite
you to try to cooperate more, either by contacting a friend or thinking of more
information that you could give in order to establish your identity.” [My
emphasis.]
[8]
On
August 14, 2008, counsel for the respondent sent to Citizenship and
Immigration Canada (CIC) the following additional documents: 1) A document
entitled State Primary Education Board; 2) New school register of attendance;
and 3) Register of admission progress and withdrawal, all related to (Iyile) Sandra Sikiratu.
These were apparently obtained and sent by Mr. Odiase. CIC sent these documents
for analysis.
[9]
On August
22, 2008, an expertise analysis was provided to CIC. The examiner confirmed
these documents could not be the basis for the establishment of her identity
for reasons previously expressed in relation to the four documents reported on
July 31, 2008.
[10]
On
August 29, 2008, a third detention review was convened this time before
Commissioner Côté. Ms. Iyile was not present because she had been hospitalized
– she was about to give birth. The review was adjourned to September 5, 2008.
[11]
On
September 5, 2008, the hearing was convened before Commissioner Germain.
Ms. Iyile was still absent as she was still in hospital. Commissioner Germain
reviewed the efforts made by the Minister to verify the respondent’s identity.
Those efforts included: (1) word from the German authorities she was not known
there; (2) the receipt of the expertise report on her additional documentation;
(3) her August 26, 2008 interview with an immigration officer where she
said she had travelled on a green passport from Nigeria to Switzerland but could
not remember the name of the airline she travelled on and could not give the
name of the person on the green passport, was unable to give the name of the
person on the blue passport she travelled from Switzerland to Montreal; that
she did not know where the father of her child is and how to contact him; (4)
verification with the Swiss authorities to determine whether she was known in
that country; (5) verification with the Canadian passport office to determine whether
and when any blue Canadian passport had been declared lost or stolen. On August
28, 2008, it was discovered that Catherine Iyodele had reported in August
2008 her blue passport had been missing since May 2008; and, (6) the
respondent provided her uncle’s telephone number in Nigeria, he was contacted
and confirmed he was the respondent’s uncle, gave her parents’ names and was
the person who obtained the birth certificate and sent the school documents. The
commissioner concluded:
“So, in the circumstances, due to the
fact that Madam is not fully collaborating with the minister, and due to the
fact that nothing that she has said, we cannot confirm or infirm the
way she had travelled as we do not know how she did, on which airline, what is
the name used, etc. So, that makes it more complicated for the Immigration to
try to establish the identity.
I do not know, it is not for me to decide
if the information gathered will be enough to be satisfied of her identity. But for today, I believe the
efforts to be reasonable in those circumstances. What I will do, as Madam
is not here for the second time due to some medical problems with her
pregnancy, the next hearing, due to her personal health, which should be taken
into consideration by CBSA, and due to the fact that there is nothing else
that Madam can provide pertaining to her identity, her next hearing will be
held in two weeks.” [My emphasis.]
The Tribunal’s decision
on release from detention
[12]
As
noted, on September 19, 2008 after hearing from Ms. Iyile, her counsel and the
Minister’s counsel, particularly on the substance of an interview which the
respondent had with an Immigration Officer on September 16, 2008, the
tribunal based on the factors set out in section 247 of the Immigration and
Refugee Protection Regulations, decided she would not continue the
respondent’s detention on the ground of identity. She said she must look at her
collaboration and then look at the efforts which have been made by the
Immigration Department to verify her identity. She noted the respondent was a
refugee claimant who had used the services of a smuggler, used false documents
to get to Canada and was
pregnant at the time of her arrival.
[13]
Commissioner
Côté noted “there has been a great emphasis placed on the factor dealing with
the itinerary” and expressed the view Ms. Iyile gave information which was
vague or contradictory including:
· contradictory
information on whether she used a smuggler to travel to Montréal: once saying
travelled alone and another time she had travelled with a smuggler;
· contradictory
information on whether she destroyed Ms. Iyodele’s blue Canadian passport or
handed it back to the smuggler;
· implausible
information on having travelled by plane from Accra in Ghana to Geneva when there
were no flights between these two points;
· her inability
to give the names of the persons to whom the passports had been issued, nor the
names of the airlines she travelled on, nor the seats she occupied but noted in
her testimony that day she said she could not read;
· her denial
not knowing Catherine Iyodele yet the immigration officer who compared their
photos discerned similar facial characteristics between leading to the
possibility they were family members, a suspicion heightened by the fact Ms.
Iyodele only declared in August 2008 her passport missing since May 4, 2008;
and,
· she concluded
on this point by stating: “Much of the concerns deal with the way in which you
travelled. Your itinerary”.
[14]
She
then wrote:
“It seems in my opinion that there are
other elements that deal with your collaboration and that play in your favour.
I note the fact that you have been able to present several identity documents.
I refer to the four documents that you had when you came to Canada – the Birth Certificate, the
Statutory Declaration of Age, the Certificate of Identity in the affidavit of
your uncle. There was also another school document that was added later on.
It was called the State Primary Indication Board. This document was added on
the 19th of August 2008.
I am familiar with the results of the
expertise of the first four documents that I mentioned. This was received as
Exhibit C-1 at a previous detention review. I have considered the analysis and
I noted that there are no traces of alteration on any of these documents. This
I believe is an element that is positive.
I note the fact you have systematically
repeated that there are no other documents that you can present. You actually
alluded to the fact that you are unable to contact your family and that this
is a factor which prevents you in getting any other ID documents. At any rate
there would be no other ID documents available. You never had a passport for
example. You didn’t have a Driver’s License.
I also note, in terms of assessing
your collaboration, that you did give the phone number of your uncle. Your
uncle was contacted by an immigration officer. It seems that your uncle was
able to confirm that you are his niece and that he actually gave your parents’
names. He was also the one who provided some of the identity documents that
were presented at the Immigration Department.
It seems that the information that refers
to your identity as such is not contradictory. It appears to me that this
is an important element. I refer specifically to subsection 247(1)(e) which
refers to documents that contradict information provided by the foreign
national with respect to their identity. There are documents presented and
they do not contradict the information you give.
I would like to also refer to the
sections in the Immigration and Refugee Protection Act that deal with
the documentation that is accepted for refugee claimants. I refer to Section
178(1) who indicates which documents a refugee claimant can present when
this person does not hold a passport, and make specifically reference to
178(1)(a) and (b). Among those documents that are accepted are documents that
have been delivered before you came to Canada, and there are also sworn statements
from a person who knows you such as a family member. In this instance, there is
an affidavit of your uncle, which was actually supported by his answers to an
immigration officer.
Somehow these elements that I have
pointed out seem to have been cast aside and great emphasis has been placed on
the issue of your itinerary and the other points that I stated before.
The fact that you cannot read can, in my opinion, explain the fact that
you may not have been able to read the names of the airlines companies. The
fact that you were fleeing persecution, as you will try to establish in
your refugee claim, and combined with the fact that you were pregnant at the
time, can explain that you did not note the number of the seat in which you
were seating. It can also be explained that perhaps you were not in Switzerland given that you were told by
the agent that you were in that country. But the information you give me about
your stay there brings doubts that you were actually in Switzerland.
I want to stress the fact that this
particular point was raised before at a previous detention review when it was
held before my colleague on August 1st, 2008. You specifically said
that day that you travelled from Nigeria to the place the agent said was Switzerland but you did not know.
This could perhaps explain why the department is not able to find a flight that
goes from Accra to Geneva for example.
For the reasons that I gave, I make the
finding that for someone in your particular situation, you are collaborating
although there are contradictions pertaining to, for example, the fact that you
would have destroyed a passport on the plane instead of giving it to someone
else.”
[15]
The
tribunal next embarked on her analysis of CIC’s efforts at verifying the
respondent’s identity writing:
“I have to look at the efforts that have
been made by the Immigration Department to see if they are reasonable. I note that
at the interview that was held, on the 16th of September 2008, several
points had already been established before. The fact that you had no
other identity document for example. That you had no passport, no other school
documents to give. The fact that you left Nigeria on the 16th of July. The fact that you travelled
with a smuggler Paul. The fact that you could not give the airline company’s name.
The fact that you stayed four days in a country that you think is Switzerland.
These are elements that had already
been established before. They are not new. There were elements, however, during
this interview that are relevant to the issue of your identity. And in that
respect, the interview is an effort that has to be looked at.” [My
emphasis.]
[16]
She
noted there were “several efforts regarding the flight from Accra to Geneva,
including the verification on the Internet, the Immigration Officer’s phone
call to Geneva Airport and the request for information from Lufthansa for the
purpose of determining whether the respondent had actually travelled from Accra
to Geneva and how that could be”. The Commissioner then wrote:
This
effort has to be looked at in view of the fact that there is in this case a
possible doubt that you were in Switzerland. I believe it is important to take your
previous statement into account that perhaps it was Switzerland and perhaps not. [My emphasis.]
[17]
The
Commissioner then discussed the efforts at verifying whether she had any status
in Switzerland (a visitor’s
visa/a claim for refugee status). She opined she could not see in this effort
any reasonableness given that it had not given any fruit. Neither did she see
any relevance of making enquiries in the Netherlands “given that
there was no information that you actually travelled there”.
[18]
The
tribunal next examined Citizenship and Immigration Canada’s (CIC) efforts to
see if there was any family link between the respondent and Catherine Iyodele
noting that photographs were compared and “apparently there were similar
characteristics noted”. The Commissioner referred to the respondent’s claim “that
you have no family members in Canada and you say you do not know who she is.” She
concluded:
“I am not convinced that this effort
is called for in respect to establishing your identity. At any rate, it becomes
so much less important when compared to the other elements that I made
reference to in terms of your collaboration. I refer to the documents you
presented, to the fact that your uncle confirmed that you are his niece. In
this context, comparing the photographs, perhaps noting similar characteristics
with Catherine Iyodele, is not in my opinion as relevant as it should be.”
[My emphasis.]
[19]
The
Commissioner then commented on CIC’s enquiries whether she travelled to France
as a result of Ms. Iyodele’s declaration when she took on a flight from Paris to Montreal
she lost her blue passport on which the respondent travelled from Munich to Montreal. She wrote:
“I question the relevancy of this effort actually in establishing your
identity.”
[20]
Finally,
the Commissioner noted CIC’s request to the detention centre to see the list of
visitors who had come to see the respondent. Concerning this request, the
tribunal wrote that it: “is not in my opinion relevant to establishing your
identity”, adding: “It seems much more relevant to consider the fact that you
did come forth with the name and the phone number of your uncle and he has
confirmed your identity. This, in my opinion, is much more relevant.”
[21]
She
expressed her overall conclusion in these terms:
I see that the department is making
efforts, but it seems to me that some of these efforts are not relevant, and
they are of much less importance than the collaboration that you have made up
until today. Consequently, I have come to the finding that your detention
not justified given the collaboration that you give. Again I stress the fact
that this collaboration has been looked at in view of the factors in section
247 of the Regulations. [My emphasis.]
[22]
She
also offered the opinion she believed CIC “is in a position to continue with
its investigations even if you are released”, adding:
“There must be, in my opinion, a way to
impose conditions that will help the department keep close contact with you, ask
you any questions that they may find relevant on the issue of your identity.
I am aware that the Minister’s delegate does not think your identity has been
established. I find that the continued detention is not justified, as I have
applied the factors in Section 247. At any rate, I also am concerned with the
fact that there does not seem to be [sic] any other documents that you
can present. There does not seem to be any end in sight. So, for these reasons,
I will not continue the detention on the ground of identity.”
[23]
It
is then the tribunal imposed the condition that: “You must report to the
Immigration Office once a week until your identity is established. This
condition will cease once an Immigration Officer is satisfied of your
identity.”
The
Legislative and Regulatory Scheme
[24]
Division
6 of IRPA deals with Detention and Release with section 54 providing the
Immigration Division is the competent Division of the Immigration and Refugee
Board with respect to the review of the reasons for detention under the
Division.
[25]
Section
58 of IRPA provides for release from detention with paragraph 58(1)(d)
reading:
|
Release
– Immigration Division
58. (1) The
Immigration Division shall order the release of a permanent resident or a
foreign national unless it is satisfied, taking into account prescribed
factors, that
…
(d) the
Minister is of the opinion that the identity of the foreign national has not
been, but may be, established and they have not reasonably cooperated with
the Minister by providing relevant information for the purpose of
establishing their identity or the Minister is making reasonable efforts to
establish their identity. [My emphasis.]
|
|
Mise
en liberté par la Section de l’immigration
58.
(1) La section prononce la mise en liberté du résident permanent ou de
l’étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel
des faits suivants :
…
d) dans
le cas où le ministre estime que l’identité de l’étranger n’a pas été prouvée
mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en
fournissant au ministre des renseignements utiles à cette fin, soit ce
dernier fait des efforts valables pour établir l’identité de l’étranger.
[Je souligne.]
|
[26]
The
prescribed factors are located in Part 14 of the Immigration and Refugee
Protection Regulations (IRPR), also headed “Detention and Release”. Section
244 of the IRPR provides for the purposes of Division 6 of Part 1 of IRPA,
“the factors set out in this Part shall be taken into consideration when
assessing whether a person …. (c) is a foreign national whose identity has not
been established”.
[27]
Section
247.(1) of IRPA is headed “Identity not established” and provides for
the purposes of paragraph 244(c), the factors are the following:
|
Identity
not established
247. (1)
For the purposes of paragraph 244(c), the factors are the following:
(a) the
foreign national's cooperation in providing evidence of their identity,
or assisting the Department in obtaining evidence of their identity, in
providing the date and place of their birth as well as the names of their
mother and father or providing detailed information on the itinerary they
followed in travelling to Canada or in completing an application for a travel
document;
(b) in the
case of a foreign national who makes a claim for refugee protection, the
possibility of obtaining identity documents or information without divulging
personal information to government officials of their country of nationality
or, if there is no country of nationality, their country of former habitual
residence;
(c) the
destruction of identity or travel documents, or the use of fraudulent
documents in order to mislead the Department, and the circumstances under
which the foreign national acted;
(d) the
provision of contradictory information with respect to identity at the time
of an application to the Department; and
(e) the
existence of documents that contradict information provided by the foreign
national with respect to their identity.
|
|
Preuve de l’identité de l’étranger
247.
(1) Pour l’application de l’alinéa 244c), les critères sont les
suivants :
a) la
collaboration de l’intéressé, à savoir s’il a justifié de son identité,
s’il a aidé le ministère à obtenir cette justification, s’il a communiqué des
renseignements détaillés sur son itinéraire, sur ses date et lieu de
naissance et sur le nom de ses parents ou s’il a rempli une demande de titres
de voyage;
b)
dans le cas du demandeur d’asile, la possibilité d’obtenir des renseignements
sur son identité sans avoir à divulguer de renseignements personnels aux
représentants du gouvernement du pays dont il a la nationalité ou, s’il n’a
pas de nationalité, du pays de sa résidence habituelle;
c) la
destruction, par l’étranger, de ses pièces d’identité ou de ses titres de
voyage, ou l’utilisation de documents frauduleux afin de tromper le
ministère, et les circonstances dans lesquelles il s’est livré à ces
agissements;
d) la
communication, par l’étranger, de renseignements contradictoires quant à son
identité pendant le traitement d’une demande le concernant par le ministère;
e) l’existence
de documents contredisant les renseignements fournis par l’étranger quant à
son identité.
|
[28]
For
the sake of completeness, I also set out section 178 of the Immigration and
Refugee Protection Regulations which were referred to by the tribunal. It
deals with situations where an applicant for permanent residence does not hold
a document prescribed in any of paragraphs 50(1)(a) to (h) of the IRPR.
Section 178 of the IRPR reads:
|
Identity documents
178 (1)
An applicant who does not hold a document described in any of paragraphs 50(1)(a)
to (h) may submit with their application
(a) any
identity document issued outside Canada before the person's entry into Canada; or
(b) if there
is a reasonable and objectively verifiable explanation related to
circumstances in the applicant's country of nationality or former habitual
residence for the applicant's inability to obtain any identity documents, a
statutory declaration made by the applicant attesting to their identity,
accompanied by
(i) a
statutory declaration attesting to the applicant's identity made by a person
who knew the applicant, a family member of the applicant, or the applicant's
father, mother, brother, sister, grandfather or grandmother prior to the
applicant's entry into Canada, or
(ii) the
statutory declaration of an official of an organization representing
nationals of the applicant's country of nationality or former habitual
residence attesting to the applicant's identity.
Alternative documents
(2) A document
submitted under subsection (1) shall be accepted in lieu of a document
described in any of paragraphs 50(1)(a) to (h) if
(a) in the
case of an identity document, the identity document
(i) is
genuine,
(ii)
identifies the applicant, and
(iii)
constitutes credible evidence of the applicant's identity; and
(b) in the
case of a statutory declaration, the declaration
(i) is
consistent with any information previously provided by the applicant to the
Department or the Board, and
(ii)
constitutes credible evidence of the applicant's identity.
SOR/2004-167,
s. 49.
|
|
Pièces
d’identité
178
(1) Le demandeur qui ne détient pas l’un des documents mentionnés aux alinéas
50(1)a) à h) peut joindre à sa demande l’un ou l’autre des documents
suivants :
a)
toute pièce d’identité qui a été délivrée hors du Canada avant son entrée au
Canada;
b)
dans le cas où il existe une explication raisonnable et objectivement
vérifiable, liée à la situation dans le pays dont il a la nationalité ou dans
lequel il avait sa résidence habituelle, de son incapacité d’obtenir toute pièce
d’identité, une affirmation solennelle dans laquelle il atteste de son
identité et qui est accompagnée :
(i)
soit de l’affirmation solennelle d’une personne qui a connu le demandeur, un
membre de sa famille, son père, sa mère, son frère, sa soeur, son grand-père
ou sa grand-mère, faite avant l’entrée du demandeur au Canada, attestant de
l’identité du demandeur,
(ii)
soit de l’affirmation solennelle d’un représentant d’une organisation qui
représente les ressortissants du pays dont le demandeur a la nationalité ou
dans lequel il avait sa résidence habituelle, attestant de l’identité de ce
dernier.
Documents
de remplacement
(2)
Les documents fournis au titre du paragraphe (1) en remplacement des
documents mentionnés aux alinéas 50(1)a) à h) sont acceptés si :
a)
dans le cas d’une pièce d’identité, la pièce, à la fois :
(i)
est authentique,
(ii)
identifie le demandeur,
(iii)
constitue une preuve crédible de l’identité du demandeur;
b)
dans le cas d’une affirmation solennelle, l’affirmation, à la fois :
(i)
est compatible avec tout renseignement fourni précédemment par le demandeur
au ministère ou à la Commission,
(ii)
constitue une preuve crédible de l’identité du demandeur.
DORS/2004-167,
art. 49.
|
Analysis
a) The Standard of Review
[29]
Since
the reform of the standard of review analysis undertaken by the Supreme Court
of Canada in Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190 (Dunsmuir)
through the elimination of the patent unreasonableness standard, there are only
two standards of review: correctness and reasonableness.
[30]
At
paragraph 51 of Dunsmuir, Justices Bastarache and LeBel stated questions of fact,
discretion and policy as well as questions where the legal issues cannot easily
be separated from factual issues generally attract the standard of
reasonableness while many legal issues attract a standard of correctness. A
reasonableness standard requires deference on the part of the reviewing Court in
judicial review applications. When applying the correctness standard, the
reviewing Court will not show deference but rather will undertake its own
analysis to decide whether it agrees with the tribunal’s decision and, if not,
will substitute its own view and provide the correctness standard (see Dunsmuir
at paragraphs 48, 49 and 50). Moreover, in Dunsmuir at paragraph 57,
Justices Bastarache and LeBel held that an exhaustive review is not required in
every case to determine the proper standard of review if the existing
jurisprudence has satisfactorily settled the matter.
[31]
In Thanabalasingham,
Justice Rothstein held at paragraph 24 that my colleague Justice Gauthier had
correctly applied the proper standards of review in that case. The conclusion
my colleague reached on the standard of review of a decision to release from
detention or not under sections 57 and 58 of IRPA largely depended on
the nature of the question at issue: (1) questions of law are reviewed on a
correctness standard; (2) questions of fact (previously reviewed on a patently
unreasonableness standard) are now reviewed on a reasonableness standard; and,
(3) mixed questions of fact and law, the standard of review depended on whether
the mixed question was “factually intensive or legally inclusive”. In summary,
in Thanabalasingham reported at [2004] 3 F.C.R. 523 my colleague Justice
Gauthier:
1) Reviewed on a
correctness basis the issue of the nature of detention review under sections 57
and 58 of IRPA and the burden of proof because they raised questions of
law.
2) Reviewed on the basis of
patent unreasonableness the issue of the assessment of evidence because this
question was largely fact-based.
[32]
One
additional comment arises and it relates to the existence of section 18.1(4)(d)
of the Federal Courts Act which provides that the Federal Court may set
aside the decision of a federal tribunal if the Court is satisfied the tribunal
based its decision “on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it”.
[33]
The
Supreme Court of Canada very recently in Canada (Citizenship and
Immigration) v. Khosa,
2009 SCC 12 had an opportunity to consider the impact of paragraph 18.1(4)(d)
on the standard of review. Justice Binnie, for the majority, found:
1) This paragraph in the Federal
Courts Act was not a legislated standard of review.
2) This paragraph did,
however, reflect the intention of Parliament as to the degree of deference
applicable to findings of fact of a federal tribunal. Such conclusions of fact
commanded a high degree of deference (see paragraphs 3 and 45).
b) Application to this case
Issue 1 – Reasons for
departing from previous decisions
[34]
In
Sittampalam
v. Canada (Solicitor General), 2005 FC 1352, my
colleague Justice Dawson had an opportunity to summarize what Thanabalasingham
stood for:
19 In
Thanabalasingham, supra, the Federal Court of Appeal considered
the nature of the detention review hearing before the Board and articulated the
following principles. First, a detention review is not, strictly speaking, a de
novo hearing. The record before the Board continues to be built at each
hearing and the Board is expected to take into consideration the reasons for
previous detention orders. Second, the Board must decide afresh at each hearing
whether continued detention is warranted. Third, where a member chooses to depart
from prior decisions of the Board, clear and compelling reasons for doing so
must be set out. Fourth, the onus is always on the Minister to demonstrate
that there are reasons which warrant detention or continued detention. However,
once the Minister has made out a prima facie case for continued detention, the
individual must provide some evidence or risk his or her continued detention.
[My emphasis.]
[35]
In
Thanabalasingham, Justice Rothstein
explained why there are good reasons for requiring such clear and compelling
reasons. This is what he wrote at paragraph 11:
11 Credibility
of the individual concerned and of witnesses is often an issue. Where a prior
decision maker had the opportunity to hear from witnesses, observe their
demeanour and assess their credibility, the subsequent decision maker must
give a clear explanation of why the prior decision maker's assessment of the
evidence does not justify continued detention. For example, the admission of
relevant new evidence would be a valid basis for departing from a prior
decision to detain. Alternatively, a reassessment of the prior evidence based
on new arguments may also be sufficient reason to depart from a prior decision.
[My emphasis.]
[36]
At
paragraphs 12 and 13 of his reasons, Justice Rothstein explained what was the
best way a tribunal should provide clear and compelling reasons:
12 The
best way for the Member to provide clear and compelling reasons would be to
expressly explain what has given rise to the changed opinion, i.e. explaining
what the former decision stated and why the current Member disagrees.
13 However, even if the Member does not
explicitly state why he or she has come to a different conclusion than the
previous Member, his or her reasons for doing so may be implicit in the
subsequent decision. What would be unacceptable would be a cursory decision
which does not advert to the prior reasons for detention in any meaningful way.
[My emphasis.]
[37]
From
the Federal Court of Appeal’s teaching in Thanabalasingham, we learn the record in
detention reviews is built up on a continuous basis from one review to the
other and the Tribunal Member is expected to take into consideration the
reasons for previous detention orders. Yet the Tribunal Member must decide anew
whether continued detention is warranted hence the requirement that a different
decision than the ones reached in the past requires from the Tribunal Member
“clear and compelling reasons” for doing so.
[38]
My
review of the transcripts of the detention reviews in this case and the reasons
expressed by various tribunal members is that, whether during the several
interviews the respondent had with various Immigration Officers (at the airport
on July 22, 2008, on July 31, 2008, on August 26, 2008 and on September 16,
2008) or during her testimony at the detention reviews, various tribunal
members had serious problems with the testimony.
[39]
I
cite the following examples:
1. On the first
detention review, Commissioner Ladouceur noted the discrepancy that she told
the Immigration Officer at the airport she travelled alone and what she
testified before him – that she travelled with a helper. He also noted the
fundamental problem on identity was she had travelled on a passport but yet had
none in her possession when she arrived in Montreal.
2. At the second
detention review, Commissioner Bibeau noted she had several problems with her
testimony leading to her to conclude her cooperation had been quite limited
because her answers seemed to be quite imprecise or vague, noting: (1) the
implausibility of the amount she testified paying the smuggler; (2) the
discrepancy between the smuggler’s name Mathew at the airport interview; Paul
during the interview on July 31, 2008; and, (3) the documents she presented to
support her identity were non conclusive as to her identity. She also found the
efforts being made by CIC to discover her identity were reasonable: efforts to
determine her status in Switzerland and Germany as well as
efforts to determine whether Ms. Iyodele had entered Switzerland.
3. At the
September 5, 2008 detention review, Commissioner Germain heard submissions from
the Minister’s counsel on the CIC’s efforts to determine her identity: (1) response
from Germany she was not known there; (2) a determination her second batch of
documents which had been sent for examination were not conclusive of her
identity; (3) the results of the August 26, 2008 interview with an Immigration
Officer which revealed a major contradiction now saying she travelled with a
handler on the flight from Munich to Montreal and handed him back the blue
passport versus what she had previously said – that she travelled alone and
destroyed the blue passport on the plane; (4) the fact she is now saying she
still owes money to Paul but does not know where he is; and, (5) her testimony
she does not know where her child’s father is or how to contact him. She also
noted the respondent’s uncle had been interviewed. Commissioner Germain was
satisfied the Minister’s efforts at finding her identity were reasonable in the
circumstances because the respondent was not fully cooperating with CIC; she
was providing limited information, observing the respondent cannot confirm or
infirm the way she travelled, which according to the Commissioner, makes it
more difficult for CIC to establish her identity.
[40]
From
a factual perspective, I mention the respondent was further interviewed by an
Immigration Officer on September 16, 2009. During that interview, she
changed her testimony again to say that between Munich and Montreal, she
travelled alone and destroyed her passport. At that hearing, counsel for the
Minister said CIC’s investigations disclosed there were no flights from Accra
to Geneva which
triggered a whole new set of enquiries as to how she travelled. It was also at
this hearing the respondent disclosed for the first time she could not
read.
c) Conclusions
[41]
On
this record, I find persuasive counsel for the Minister’s submissions the
tribunal breached the teaching of the Federal Court of Appeal in Thanabalasingham, by failing to provide
clear and compelling reasons why she departed from the findings of the previous
commissionaires who had determined the Minister’s efforts were reasonable and
her collaboration weak and limited. I reach this conclusion for the following
reasons:
1) The tribunal
never explained how she came to the conclusion the documents the applicant or
her uncle provided established her identity when the evidence before her and
the findings of her colleagues pointed otherwise as the expertise report on the
document stated those documents could not serve to establish the respondent’s
identity.
2) The tribunal
never came to grips with the constant changes or additions in and to the
respondent’s story and how these impacted on her credibility as determined by
her colleagues. In coming to the conclusion she did, she accepted the
respondent’s story without saying why she should be believed when her other
colleagues thought otherwise.
3) The tribunal
did not assess the impact of the rolling changes in the applicant’s story had
on the Minister’s efforts to discover her identity. CIC’s investigation into
the fact there were no flights between Accra and Geneva shifted
enormously the landscape and forced the Minister, CIC and CBSA to engage in
another round of inquiries. I cite my colleague Justice Shore’s decision in Timothy Igbinosa v. the
Minister of Public Safety and Emergency Preparedness, et al, 2008 FC 1372, at
paragraph 64, where he recognized the applicant’s inadequate collaboration and
lack of credibility complicated efforts to determine identity and thereby
caused renewed efforts and different investigations.
[42]
As
noted, the tribunal questioned the relevance of many of the efforts CIC was
taking. Those criticisms, in my view, are not reasonable in the circumstances
particularly when a centerpiece of her testimony proved not to be so – her
flight from Accra to Geneva and her stay there for four days. That
discrepancy cannot be simply washed away by the respondent’s statement: “That
is what the smuggler told me. I really did not know I was in Geneva or Switzerland”.
[43]
For
these reasons, this judicial review application must be allowed. I need not
deal with the other issues raised by counsel for the Minister.
[44]
I
hasten to add this determination is consistent with the emphasis and importance
Parliament placed on a person’s identity when the IRPA was proclaimed in
force in 2002. (See Canada (Minister of Citizenship and
Immigration) v. Gill, 2003
FC 1398.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial review application is allowed,
the tribunal’s decision to release the respondent is quashed and the issue of
her continued detention is returned for reconsideration by a different member
of the Immigration Division. No certified question was proposed.
“François
Lemieux”
____________________________
Judge
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