Docket: IMM-1510-11
Citation: 2011 FC 1325
Ottawa, Ontario, November 18,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
|
|
BALASINGAM NADESAN
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of an Immigration Officer
(Officer) dated February 22, 2011. The Officer refused to grant permanent
residence to the Applicant based on the submission of statutory declarations in
lieu of identity documents.
[2]
For
the following reasons, this application is allowed.
I. Background
[3]
The
Applicant, Balasingam Nadesan, was granted refugee status in Canada on
December 1, 1997. He
subsequently applied for permanent residence. On three occasions, however, he
submitted fraudulent identity documents in support of his application.
[4]
He
therefore attempted to submit statutory declarations to establish his
identity. In his declaration, he deposed that he was a citizen of Sri Lanka and no other
country. He explained that he arrived in Canada with false
documents and did not have any identity documents in his possession. He
claimed that he was unable to obtain the documents from Sri Lanka as his
parents are deceased, he has no siblings and his relatives fled from the
country.
[5]
Two
statutory declarations were also provided by relatives who certify that they
personally knew the Applicant in Sri Lanka and are now Canadian
citizens.
[6]
On
November 26, 2010, the Applicant was informed that he must provide genuine
identity documents. On February 22, 2010, the Officer formally refused the
application for permanent residence. The Officer’s CAIPS notes stated that she
was “NOT PREPARED TO ACCEPT STAT DECS AS CLIENT HAS SUBMITTED NON-GENUINE DOCS
ON MULTIPLE OCCASIONS AND THERFORE HE IS REQUIRED TO SUBMIT IDENTITY DOCS.”
II. Issue
[7]
The
Applicant raises the following issue:
(a) Did
the Officer err in law and breach procedural fairness in refusing to accept the
Applicant’s statutory declarations as satisfactory identity documents?
III. Standard
of Review
[8]
Questions
of law and procedural fairness demand the correctness standard (see Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009
CarswellNat 434 at paras 43-44)
IV. Analysis
[9]
Section
50 of the Immigration and Refugee Protection Regulations, SOR/2002-227
(the Regulations) lists the documents required to be submitted with an
application for permanent residence. Section 178 provides for the submission
of alternative documents including those issued outside Canada before entry
or statutory declarations. It reads as follows:
|
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, before the applicant’s
entry into Canada, knew the applicant, a family member of the applicant or
the applicant’s father, mother, brother, sister, grandfather or grandmother,
or
(ii) a statutory declaration attesting
to the applicant’s identity made by an official of an organization
representing nationals of the applicant’s country of nationality or former
habitual residence.
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.
|
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 d’une affirmation solennelle
qui atteste l’identité du demandeur faite par une personne qui, avant
l’entrée de celui-ci au Canada, a connu le demandeur, un membre de sa
famille, son père, sa mère, son frère, sa soeur, son grand-père ou sa
grand-mère,
(ii) soit d’une affirmation solennelle
qui atteste l’identité du demandeur faite par le représentant d’une
organisation qui représente les ressortissants du pays dont le demandeur a la
nationalité ou dans lequel il avait sa résidence habituelle.
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.
|
[10]
The
Applicant submits that the Officer fettered her discretion and committed an error
of law by not considering the contents of the statutory declarations since
fraudulent documents had been submitted in the past.
[11]
By
contrast, the Respondent relies on an affidavit of the Officer to assert that
the statutory declarations were considered but that in all the circumstances,
specifically three instances of submitting fraudulent documents, there was no
reasonable and objectively verifiable explanation for the Applicant’s inability
to obtain acceptable documentation. Moreover, the statutory declarations could
not be considered credible. The Respondent directs this Court’s attention to
the principle that “[n]o utterance, no document, is proof of anything unless it
is found to be credible. An assertion is not made more credible by being
reduced to writing” (Iqbal v Canada (Minister of Citizenship and
Immigration), [1999] FCJ no 1793, 93 ACWS (3d) 737 at para 8).
[12]
However,
this Court has been clear that affidavits from visa officers explaining and
elaborating on their reasons after the fact should be given little weight (see Basra
v Canada (Minister of Citizenship and Immigration), 2009 FC 535, [2009] FCJ
no 654 at para 12; Hansra v Canada (Minister of Citizenship and Immigration),
2009 FC 230, [2009] FCJ no 297 at paras 14-15; Alem v Canada (Minister of
Citizenship and Immigration), 2010 FC 148, [2010] FCJ no 176 at para 19).
This is certainly true of the affidavit presented in this case that seeks to
provide a justification at paragraph 6 for refusing the Applicant’s statutory
declarations.
[13]
I
must therefore focus my analysis on the refusal letter and CAIPS notes of the
Officer as constituting the decision under review and side with the Applicant. There
is no evidence in the Officer’s notes that the contents of the statutory
declarations were considered to assess the explanation for providing them in
lieu of identity documents or reach a determination on credibility. Indeed, the
Officer asserts “NOT PREPARED TO ACCEPT STAT DECS AS CLIENT HAS SUBMITTED
NON-GENUINE DOCS ON MULTIPLE OCCASIONS AND THERFORE HE IS REQUIRED TO SUBMIT
IDENTITY DOCS.” This implies an outright rejection of the statutory
declarations, not a consideration of their appropriateness or credibility. There
is no mention of the explanation provided in the Applicant’s declaration.
[14]
Section
178 of the Regulations makes clear that statutory declarations may be submitted
where there is “a reasonable and objectively verifiable explanation related to
circumstances in the applicant’s country of nationality or former habitual
residence” that an individual is unable to obtain identity documents. This
necessitates an assessment of the reasons for providing a statutory
declaration. In addition, the Officer is required to accept the statutory
declarations as long as they are “consistent with information previously
provided by the applicant” and “constitutes credible evidence of the
applicant’s identity.” Here again, consideration must be given to whether the
statutory declarations constitute credible evidence. They cannot simply be
rejected in favour of the requirement for formal identity documents. The
Regulations clearly contemplate the submission of either identity documents or
statutory declarations to establish identity.
[15]
Even
though the Officer may have had concerns regarding the Applicant’s credibility
generally, given his previous submissions of fraudulent documents, the decision
to refuse the statutory declarations without regard to their contents does not
correspond to the requirements of section 178. Though I am not suggesting that
the submission of fraudulent documents should have been completely ignored by
the Officer, the Regulations prescribe a particular process for considering the
statutory declarations that has to be addressed. The failure to provide
reasons for this outright rejection is similarly problematic. The Officer’s
decision therefore constitutes an error of law and is in breach of procedural
fairness.
V. Conclusion
[16]
The
failure of the Officer to review the contents of the statutory declarations,
make reference to doing so in her reasons, and provide justification for
refusing to accept them amounts to an error of law and breach of procedural
fairness.
[17]
Accordingly,
this application for judicial review is allowed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed.
“ D.
G. Near ”
Email this Content