Date: 20070220
Docket: IMM-1790-06
Citation: 2007 FC 186
Ottawa, Ontario, the 20th day of February, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
SERGEY
ANDRYANOV
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is a Russian national married to a Canadian citizen. In 2002, his
wife sponsored Mr. Andryanov’s application for permanent residence. A lengthy
and confusing exchange of correspondence followed between the parties
concerning a passport which
Mr. Andryanov says he never possessed. The
result was a “Catch 22” situation. The respondent's officials refused to accept
that Mr. Andryanov was whom he said he was without the passport and the Russian
Embassy refused to give him one without a request from the respondent's
officials. They refused to make such a request as the onus to provide the
passport rested upon the applicant. In the result, Mr. Andryanov’s application
was denied in a decision dated March 15, 2006 from which he seeks judicial
review.
[2]
At
the conclusion of the hearing in Toronto on February 13, 2007, I
advised the parties that the application would be granted. These are my reasons
for that decision.
[3]
I
note that it does not appear from the record that there was at any time any real
doubt about Mr. Andryanov's identity. Indeed, when he arrived in Canada he was
in possession of a valid and subsisting "Seaman’s Passport” issued by the Russian
Federation.
He also subsequently submitted a birth certificate issued by the Union of
Soviet Socialist Republics.
[4]
The
applicant and his wife attended a marriage interview at the respondent's
offices in Etobicoke in August 2002. The officer who conducted the interview
was satisfied that the marriage was genuine. A letter dated August 15, 2002
indicates that the applicant's request for a waiver of the visa requirement in subsection
11(1)of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 was approved.
[5]
A
considerable amount of correspondence then ensued between the applicant and the
respondent's officials with respect to paragraphs 50(1)(a) or (b) of the Immigration
and Refugee Protection Regulations, S.O.R./2002-227 (the
“IRPR”) namely that he provide a passport or a travel document issued by his
country of origin. These paragraphs read as follows:
|
50.
(1) In addition to the permanent resident visa required of a foreign national
seeking to become a permanent resident at a port of entry, a foreign national
seeking to become a permanent resident must hold
(a) a passport, other than a diplomatic,
official or similar passport, that was issued by the country of which the
foreign national is a citizen or national;
(b) a travel document that was issued by the
country of which the foreign national is a citizen or national;
|
50. (1)
En plus du visa de résident permanent que doit détenir l’étranger qui cherche
à devenir résident permanent à un point d’entrée, l’étranger qui entend
devenir résident permanent doit détenir l’un des documents suivants :
a) un passeport — autre qu’un
passeport diplomatique, officiel ou de même nature — qui lui a été délivré
par le pays dont il est citoyen ou ressortissant;
b) un titre de voyage délivré par le
pays dont il est citoyen ou ressortissant;
|
[6]
It is clear
from the manual which is provided to officials to assist them in the
interpretation of these regulations, Citizenship and Immigration Canada’s Inland
Processing Manual (IP), that the ultimate reason for requiring such a
passport or travel document is to ensure the identity of the person who seeks
permanent residence. For example, in Chapter 5: Immigrant Applications in Canada made on Humanitarian
and Compassionate Grounds (IP5), the manual deals with the waiver of the
passport requirement. IP5 refers to subparagraph 72(1)(e)(ii) of the IRPR as
requiring “all foreign nationals to be in possession of a valid passport in
order to become permanent residents”. Section 72 of the IRPR however merely
sets out the requirements for in-Canada applications for permanent residences
of members of a class, such as the spouse or common-law partner in Canada class. Subparagraph
72(1)(e)(ii) simply states that such persons must “…hold a document described
in any of paragraphs 50(1)(a) to (h)”. IP5 clarifies that the
rational for requiring a valid and subsisting passport is that it is “a
relatively good confirmation of identity” as “[m]ost countries carefully verify
an applicant’s identity before issuing a passport that grants a person the
right to enter that country” and “[i]ssuing governments are often in a better
position to verify identity documents than Canadian officers”.
[7]
In
a letter dated November 3, 2003, the applicant was advised by a Citizenship and
Immigration Canada (CIC) Official that “Seaman’s Passports” are not an acceptable
identification for landing purposes and that he had to provide a photocopy of a
“valid and subsisting” passport from Russia. The objection to
Seaman’s Passports does not appear to be a matter of law but rather a guideline
which CIC has adopted as policy. The “valid and subsisting” requirement derives
from the former legislation. No explanation was provided in the letter as to
why the document would not serve as a “travel document” which, in paragraph 50(1)(b)of
the IRPR, is accepted as an alternative to a passport.
[8]
In
the ensuing exchange of correspondence between Mr. Andryanov and CIC officials,
the applicant repeatedly advised them of the concerted efforts that he had made
to obtain a regular passport from the Russian Embassy and further, that the
consular officials at the Embassy were prepared to assist him upon receipt of a
direct request from CIC. In their responses, CIC officials took the position
that their correspondence to Mr. Andryanov should suffice as notice to the
Russian consular officials. In the alternative, he was told that he must
provide a letter from the Embassy indicating why a passport would not be
issued. Mr. Andryanov explained to CIC that the Seaman’s Passport was issued to
him when he went abroad and was the only form of passport he had ever received.
Also submitted was his national identity card, required for internal purposes
in Russia. The record
reflects some confusion between these documents when CIC officials reviewed the
file from time to time.
[9]
On
January 18, 2006 an official wrote to the applicant returning his original
internal identity card and drivers license indicating that the documents were
not acceptable for granting permanent residence. The document incorrectly
refers to the passport as his “seaman book”. The letter also indicates that his
medical examination is missing. As per all the other letters received, it is
indicated that he has 30 days to respond. A letter of the same date indicates
that if he is unable to obtain a passport, he must provide a letter from the
embassy indicating the reasons why.
[10]
On February 18, 2006 the applicant
responded, indicating he would not be able to provide “a valid passport” as he
could not go to Russia to obtain one and, again that the Russian Consulate
General in Toronto would not provide a letter indicating the reasons why a
passport would not be issued unless the request came from CIC directly.
[11]
On
March 15, 2006 the applicant was sent a letter indicating that his application
from within Canada for permanent residence
on humanitarian and compassionate grounds had been rejected. In particular the
letter noted:
A
separate decision has been made regarding your ability to meet other statutory
requirements and it appears that you are inadmissible to Canada. Specifically, you are unable to provide a passport or
suitable identification to satisfy me as to your identity and meet the
requirements of becoming a permanent resident. You were given an extended
period of time and multiple opportunities to provide satisfactory identification
or a reasonable explanation and you have been unable to do so.
ISSUES:
[12]
The
applicant has raised two issues with respect to this decision:
1) Did the Immigration
Officer breach the duty of procedural fairness by failing to provide
adequate reasons?
2) Did the Immigration Officer err in
concluding that the applicant did not provide satisfactory
identification or a reasonable explanation?
ANALYSIS:
Standard of Review:
[13]
As
the decision under review is that of an Immigration Officer considering humanitarian
and compassionate factors, it is well established that the overall standard is
one of reasonableness: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]. As noted in Baker at paragraph 62 “considerable
deference should be accorded to immigration officers exercising the powers
conferred by the legislation”.
[14]
The question of whether the
Immigration Officer erred in concluding that the applicant did not provide
satisfactory identification is a question of mixed fact and law. This issue
involves the interpretation of section 50 of the IRPR and the
application of this section to the facts. Accordingly, the standard of review
is also reasonableness: Ly v. Canada (Minister
of Citizenship and Immigration), 2003 FCT 527, [2003]
4 F.C. 658 at para. 20 (T.D.); Dave v. Canada (Minister
of Citizenship and Immigration), 2005 FC 510, 272 F.T.R. 168 at
para. 4; Woldeselassie
v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1540 at para. 14.
[15]
The question of whether the
reasons that were provided are adequate is a question of procedural fairness, and
issues of procedural fairness are decided against a standard of
correctness: Jang v. Canada (Minister
of Citizenship and Immigration), 2004 FC 486, 250 F.T.R.
303 at para. 9; Adu v. Canada (Minister of Citizenship and Immigration), 2005 FC 565, 139 A.C.W.S. (3d) 164 at para.
9. A pragmatic and functional analysis is
not required: Canadian Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 44.
Procedural Fairness:
[16]
The first question to be
considered is whether or not reasons are a requirement in the present case. The
second question is whether or not the reasons that were required are adequate.
A comparison with case law dealing with subsection 46.04(8) of the former Immigration Act,
R.S.C. 1985, c.I-2 [Immigration Act] is instructive in both regards. That
enactment provided that landing would not be granted unless the applicant was
in possession of a valid and subsisting passport or travel documents or a
satisfactory identity document. In Oumer v. Canada (Minister of Citizenship and
Immigration), 2003
FC 1353, 243 F.T.R. 155 [Oumer] it was noted that subsection 46.04(8)
has “similar requirements” to those now found in subsection 50(1) of the IRPR.
[17]
In
Popal v Canada
(Minister of Citizenship and Immigration), [2000] 3 F.C. 532 (T.D.) [Popal]
the Court found that the officer’s statement that “these documents [not
identified] do not meet immigration requirements in supporting your identity”
was not an explanation or a reason for refusing the application. The Court went
on to state at paragraph 42:
…
While the respondent might well have had good reasons for rejecting the
principal applicant's Afghan driver's license with a translation, his Ontario
driver's license card and his Ontario provincial health insurance card as
"satisfactory identity document[s]", no explanation or reasons were
given. Similarly, no explanation or reasons were given for the rejection of the
affidavit of the principal applicant's brother attesting to the principal
applicant's identity. I am not prepared to accept that the following sentence
from the respondent's letter to the principal applicant of the 22nd of June,
1999 amounts to an explanation or reasons:
The
identity document you have submitted does not meet the requirements of 46.04(8)
of The Immigration Act.
[18]
The
Court went on to find that the respondent erred in a reviewable manner in not
providing reasons for the rejection of the various identity documents provided
to him as it would be unfair for a person or persons subject to a decision such
as this one not to be told why the result was reached.
[19]
The
contrary result was reached in Vairamuthu v. Canada (Minister of
Citizenship and Immigration) (2000), 195 F.T.R. 44 (T.D.) [Vairamuthu].
In this case the Court again addressed the obligation to provide reasons under
subsection 46.04. However the Court concluded that the duty of fairness in
that context did not include the duty to give reasons. Popal was distinguished on the basis of the fact
that the specific identity documents being rejected were not identified in that
case, whereas in Vairamuthu the applicant’s were told specifically that
their birth certificates were not satisfactory.
[20]
In
the particular circumstances of the present case, I am satisfied that
procedural fairness required the provision of reasons. In Via Rail Canada
Inc. v. National Transportation Agency, [2001] 2 F.C. 25 at para. 21
(C.A.) the Federal Court of Appeal made it clear that the duty to give
reasons was “only
fulfilled if the reasons provided are adequate”, and that “[w]hat constitutes
adequate reasons is a matter to be determined in light of the particular
circumstances of each case”. The Federal Court of Appeal went on to note:
22. The obligation to provide adequate
reasons is not satisfied by merely reciting the submissions and evidence of the
parties and stating a conclusion. Rather, the decision maker must set out its
findings of fact and the principal evidence upon which those findings were
based. The reasons must address the major points in issue. The reasoning
process followed by the decision maker must be set out and must reflect
consideration of the main relevant factors.
[21]
This
statement has since been cited with approval by this Court on numerous
occasions, see for example: Abdollahi-Ghane v. Canada (Attorney General), 2004 FC 741 at para.
23; Demirovic v. Canada (Minister of Citizenship and Immigration), 2005 FC 1284 at para.
13. That being said, as highlighted by the Federal Court in Liang v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1501, 33 Imm. L.R. (3d) 262 at para.
42, reasons must not be held to a standard of perfection or read
microscopically, they should be considered as a whole.
[22]
In the present case, the letter
provided to the applicant merely makes conclusive statements. The Immigration
Officer’s computerized notes (“FOSS notes”) submitted as part of the certified
record contain a similar conclusion. On March 15, 2006 it is noted by Immigration
Officer D. Jonas that the application was refused at stage 2, on the following
basis: “Applicant unable to comply with request to provide a travel document or
other suitable form of identification. Applicant unable to satisfy me as to his
identity. Refusal letter sent…”
[23]
At no point in either the refusal
letter or the FOSS notes is it explained how the Officer reached his conclusion
that the applicant had not provided a passport, travel document or other
suitable identification, or reasonable explanation. Though this conclusion was
ultimately open to the Officer, in light of the fact that the applicant
provided his Seaman’s Passport, internal identity card, his birth certificate,
and his valid Russian driver’s license, in addition to multiple explanations,
something further was required on the part of the Officer to meet the adequacy
test for his reasons.
[24]
In
reaching the conclusion that the applicant had failed to provide sufficient
documentation to establish his identity or a reasonable explanation, the
Officer evidently found that the evidence and explanations that were presented
were insufficient in some form. Because of the background to this case and the
applicant’s determined efforts to satisfy the identity requirements, in my view
the Officer had a duty to explain why they were insufficient. I find,
therefore, that the Officer breached the duty of fairness owed to the applicant
in the particular circumstances of this case.
Did the Immigration Officer err in concluding that the
applicant did not provide satisfactory identification or a reasonable
explanation?
[25]
In
light of my prior finding, it is not strictly necessary to address this issue.
However, for the benefit of the next Immigration Officer to consider the
application I will offer these observations.
[26]
In
her submissions in this case, respondent’s counsel relied upon the decision in Diarra c. Canada (Ministre de la Citoyenneté et
de l’Immigration), 2006 CF 1515 [Diarra]. In Diarra, the Court found that it had not been
unreasonable of the Officer in that case to have rejected the application on
the basis that insufficient documentation was provided to establish identity.
The person had provided a birth certificate and a school document, and had been
informed that subsection 50(1) of the IRPR required a passport or travel
document. Diarra is however distinguishable as it dealt with other kinds
of identity documents over which the Immigration Officer arguably has greater
discretion. The discretion to accept or reject passports or travel documents is
arguably narrower.
[27]
As
previously noted, in Oumer the Court compared subsection 46.04(8) of
the Immigration Act to the “similar requirements” now found in paragraph
50(1)(a) of the IRPR. At issue was the fact that the applicant’s passport had been
rejected by an Immigration Officer on the basis that it had been issued by the
Ethiopian Embassy in Ottawa after the applicant entered Canada (Oumer, above
at para. 9). The court concluded that it is not open to an Immigration Officer
to disregard a document merely because they believe it is not in accordance
with a preconceived standard.
[28]
There
is of course a question of whether or not a document is in fact a passport or a
travel document. This inquiry is however much narrower then a determination as
to whether other identity documents are sufficient. The latter is a more
residual consideration that is only analyzed if a passport or travel document
can not be provided. It is an exception to what is typically required to meet
the statutory obligation. This however was not strictly at issue in the present
case.
[29]
For example, in
the present case, it is unclear why the Seaman’s Passport was not accepted as a
travel document. The applicant explained that this was the document on which he
traveled to Canada. Further it is clearly a document
that had been issued by the country of which the applicant is a citizen, and it
was subsisting at the time it was submitted. At no time does CIC indicate that
they have a concern regarding the validity of the document. Though it was open
to CIC to determine that this document, by itself, was not sufficient to
establish the applicant’s identity, more detail was required in the
circumstances.
[30]
Further,
it is not clear why the applicant’s internal identity card was not accepted as
sufficient identification. It is evident from the record that CIC had concerns
regarding whether or not the document was subsisting, in light of the fact that
it did not have an expiry date. As noted by the Court in Oumer however,
where the issuing Government is satisfied with the validity of a document’s
issuance, it is not for the Officer to consider. Moreover, as noted above, neither paragraph 50(1)(a) or (b)
include the words “valid and subsisting” as was the case in subsection 46.04(8)
of the Immigration Act. It would seem that the way in which a document
expires is a matter that falls squarely within the issuing Government’s
expertise to determine. In light of the fact that the applicant clearly
explained that the document was issued for life, absent a conclusion on the
part of CIC that either the document was fraudulent or that they did not
believe the explanation of the applicant, it was not open to them to conclude
that the document was not subsisting. In light of the nature of the document,
it was reasonable that the CIC might have had concerns regarding whether the
document was still valid, however no analysis is provided for this conclusion.
CONCLUSION
[31]
I
find that the decision to refuse the application on the ground that the
applicant had been unable
to provide a passport or suitable identification to satisfy CIC officials as to
his identity was unreasonable. Accordingly, it will be remitted for
reconsideration by a different officer having regard to these reasons for
decision. It is my view that had sufficient care and attention been given to
the application, this judicial review would not have been necessary. I trust
that the matter will not come back before the Court a second time.
[32]
No
serious questions of general importance were proposed and none will be
certified.
JUDGM ENT
IT IS THE
JUDGMENT OF THIS COURT that the application is granted and the matter
remitted for consideration by a different officer in accord with the reasons
for this decision. No questions are certified.
“
Richard G. Mosley ”
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