Date:
20130906
Docket:
T-1788-11
Citation:
2013 FC 939
Ottawa, Ontario,
September 06, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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EBRAHIM LATIFI
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Applicant
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and
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ATTORNEY GENERAL OF CANADA (THE MINISTER OF FOREIGH AFFAIRS AND INTERNATIONAL TRADE) AND THE PASSPORT OFFICE
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of Jocelyn Francoeur, an
Adjudicator with Passport Canada [the Adjudicator], pursuant to section 18.1 of
the Federal Courts Act, RSC 1985, c F-7. The Adjudicator revoked the
availability of passport services to the Applicant for a period of five years,
starting on December 23, 2010.
I. Background
[2]
The
parties do not dispute that on December 23, 2010, an unknown individual [the
Impostor] attempted to board a flight from Istanbul, Turkey, to Toronto, using
the Applicant’s passport [the Passport]. The Impostor was removed from the
flight by the authorities but was not detained for any length of time. His
identity is unknown. The parties also do not dispute that Ali Reza Gomravi was
also on that flight, and that Mr. Gomravi is an old friend of the Applicant’s.
In fact, Mr. Gomravi was used as a reference for the Applicant’s May 6, 2006
Passport application.
[3]
The
Respondent and the Applicant differ sharply on most of the remaining facts that
form the basis of the Adjudicator’s decision.
[4]
According
to the Applicant’s Affidavit, the Applicant traveled to Germany in December, 2010, for a business and family visit. He was to return to Toronto from Bonn, Germany via Istanbul on December 22, 2010 in the company of Mr.
Gomravi. After sleeping in the Istanbul airport overnight, the Applicant
realized his Passport and boarding pass were missing. He immediately reported
this to the Turkish authorities, who detained him until January 3, 2011, when
he paid a bribe to secure his release. Upon his release, the authorities
provided the Applicant his Passport. He then flew from Istanbul to Dubai, United Arab Emirates on January 8, 2011. After three days in the airport in Dubai, he flew to Vienna, Austria via Damman, Saudi Arabia on January 11, 2011, before
eventually flying to Toronto via Paris. The Applicant claims not to know the
Impostor.
[5]
The
Respondent alleges that the Impostor and the Applicant knew each other, and
that Mr. Gomravi acted as a facilitator for the Impostor to come to Canada illegally. The Respondent does not believe that the Applicant was in Istanbul on December 22, 2010, a fact corroborated by Mr. Gomravi. The Passport appears to
have been returned to the Impostor after he was removed from the plane.
[6]
It
is not in dispute that the Applicant flew from Vienna to Paris on January 12,
2011, and from Paris to Canada on January 14, 2011. The parties also agree that
on May 4, 2011 the Applicant attempted to renew the Passport, which was in his
possession at that time.
[7]
On
May 26, 2011, Passport Canada sent the Applicant a proposal letter which
indicated that their investigation had reached a preliminary recommendation to
withhold passport services based on section 10.3 of the Canadian Passport
Order, SI/81-86 [the Order]. This letter gave the Applicant an opportunity
to respond to the investigation against him by providing additional information
prior to the issuance of a final decision by the Adjudicator. Subsequent to
this proposal letter and prior to the Adjudicator’s decision, 36 emails were
exchanged between various officials at Passport Canada and the Applicant.
[8]
The
Adjudicator’s decision was rendered on September 22, 2011, but in light of the
omission of evidence of a passport stamp indicating the Passport was used on
January 12, 2011 in Vienna, it was reconsidered and reissued on October 17,
2011.
[9]
The
Adjudicator’s decision hinged on the improbability of the Applicant’s
explanation as to why the Impostor was using his Passport on December 23, 2010.
The Adjudicator describes two alternate scenarios that would have had to occur
if the Applicant’s version of events is believed:
A. The
Impostor found the Applicant’s Passport and boarding pass and attempted to use them.
Upon failing, the Impostor disposed of the Passport, where it was subsequently
found by the authorities some time later; or
B. Airport
security found the Passport and the Applicant’s boarding pass and acted as
accomplices to the Impostor before subsequently disembarking him, re-acquiring
the Passport, and later forcing the Applicant to pay a bribe to obtain his
passport.
[10]
Beyond
a finding that these scenarios were improbable, the Adjudicator also did not
believe that the Applicant travelled to and was detained in Istanbul. He notes
that there is no objective evidence of his whereabouts from December 23, 2010
to January 12, 2011, and specifically of his alleged detention in Turkey.
[11]
Based
on these probabilities and a lack of evidence supporting a contrary
explanation, other than from the Applicant himself, the Adjudicator determined
that the Applicant allowed the Impostor to use his Passport to travel to Toronto and Mr. Gomravi acted as a facilitator. The Passport was then returned to him for
his flight from Vienna on January 12, 2010. This constituted a breach of
section 10(2)(c) of the Order.
[12]
Based
on this finding, the Adjudicator decided to revoke passport services for a
period of five years, pursuant to 10.3 of the Order, as the Passport had
expired by the time of the decision.
II. Issues
[13]
The
issue raised in the present application is as follows:
A. Was
Passport Canada’s decision to withhold passport services from the Applicant for
five years pursuant to the Canadian Passport Order reasonable?
III. Standard of review
[14]
The
parties agree that the standard of review is reasonableness (Kamel v Canada (Attorney General), 2008 FC 338).
IV. Analysis
A. Relevant legislation
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Canadian
Passport Order, SI/81-86
10.
(1) Without limiting the generality of subsections 4(3) and (4) and for the
greater certainty, the Minister may revoke a passport on the same grounds on
which he or she may refuse to issue a passport.
(2) In addition, the Minister
may revoke the passport of a person who
(c) permits another person to
use the passport;
10.3
If a passport that is issued to a person has expired but could have been
revoked under any of the grounds set out in sections 10 and 10.1 had it not
expired, the Minister may impose a period of refusal of passport services on
those same grounds, except for the grounds set out in paragraph 9(g), if the
facts that could otherwise have led to the revocation of the passport
occurred before its expiry date.
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Décret
sur les passeports canadiens (TR/81-86)
10.
(1) Sans que soit limitée la généralité des paragraphes 4(3) et (4), il est
entendu que le ministre peut révoquer un passeport pour les mêmes motifs que
ceux qu’il invoque pour refuser d’en délivrer un.
(2) Il peut en outre révoquer
le passeport de la personne qui :
c) permet à une autre personne
de se servir du passeport;
10.3
Dans le cas où un passeport aurait pu être révoqué pour l’un des motifs visés
aux articles 10 et 10.1 — à l’exception du motif prévu à l’alinéa 9g) — s’il
n’avait pas été expiré, le ministre peut imposer une période de refus de
services de passeport pour le même motif si les faits qui auraient autrement
pu mener à la révocation se sont produits avant la date d’expiration.
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[15]
The
Applicant argues that the Adjudicator’s decision was unreasonable because it
was based on insufficient and contradictory evidence, in particular with regard
to the whereabouts of the Applicant, including his alleged travel to Turkey, the detention of the Applicant and the Impostor, and the location of the Applicant’s
Passport during the events in question.
[16]
While
the Applicant takes issue with contradicting evidence, it is not the reviewing
court’s role to re-weigh the evidence (Okhionkpanmwonyi v Canada (Attorney General), 2011 FC 1129).
[17]
It
was also reasonable for the Adjudicator to consider the evidence and determine
that the probability of the Applicant’s version of events occurring as low. The
lack of any evidence from the Applicant’s friend, Mr. Gomravi, to corroborate
the Applicant’s story about his presence in Istanbul, or that he was not a
facilitator to the Imposter in using Mr. Latifi’s passport, as well as the lack
of any objective evidence concerning Mr. Latifi’s detention, led to the
investigator’s decision to revoke the Applicant’s passport for a period of five
years.
[18]
Further,
the Applicant was unable to provide travel itineraries for his alleged travel
between Germany and Istanbul, Istanbul to Dubai, Dubai to Saudi Arabia, and Saudi Arabia to Vienna.
[19]
It
is clear from the correspondence contained in the Certified Tribunal Record that
Passport Canada officials gave the Applicant ample opportunity to submit any
evidence that he wished, and he failed to provide satisfactory evidence to establish
his version of events that transpired with respect to his Passport being used
by an Impostor.
[20]
The
evidence in support of the Adjudicator’s decision that the Applicant allowed
the Impostor to use his Passport is circumstantial, but viewed as a whole, had
a sound basis and a five year ban is also reasonable (Slaeman v Canada
(Attorney General), 2012 FC 641 at paras 49-50). The Adjudicator based his
decision in the low probability that the Applicant’s version of events occurred
and the lack of objective evidence to support it. This reasoning is
justifiable, intelligible and sufficient, and lies well within a range of
acceptable outcomes as required by Dunsmuir v New Brunswick, 2008 SCC 9,
and Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62).
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed;
2.
Cost
to the Respondent fixed in the amount of $2500, as agreed to by the parties.
“Michael D. Manson”
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