Docket:
T-1335-12
Citation: 2013 FC 1044
Ottawa, Ontario, October 16, 2013
PRESENT: The Honourable
Madam Justice Mactavish
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BETWEEN:
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ALIREZA GOMRAVI
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA (THE MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE) AND
PASSPORT CANADA
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Alireza Gomravi seeks
judicial review of the decision by Passport Canada to revoke his passport and
to deny him access to passport services for a period of five years. Passport Canada found that Mr. Gomravi had used his Canadian passport while acting as an escort assisting an
unidentified individual who was unlawfully using the passport of one Ebrahim
Latifi while trying to board a flight to Canada.
[2]
Mr. Gomravi asserts
that Passport Canada’s decision was unreasonable and that he was treated
unfairly as material evidence was not disclosed to him during the adjudication
process.
[3]
For the reasons that
follow, I have concluded that Mr. Gomravi was indeed denied procedural fairness
in the adjudication process. Consequently, his application for judicial review
will be allowed.
Background
[4]
The facts giving rise
to the revocation of Mr. Gomravi’s passport are complicated and convoluted.
Because I have found that the procedural fairness issue is dispositive of the
application, I will not go through an exhaustive review of the allegations and
Mr. Gomravi’s various explanations of what transpired at the Istanbul airport on December 23, 2010.
[5]
Suffice it to say
that Mr. Gomravi is a naturalized Canadian citizen of Iranian origin who held a
Canadian passport issued on March 12, 2010. He is acquainted with Ebrahim
Latifi, another Canadian citizen. Indeed, Mr. Gomravi had acted as a character
reference for Mr. Latifi’s May 6, 2006 Canadian passport application.
[6]
On December 23, 2010,
Mr. Gomravi was at the Istanbul airport where he attempted to board a plane to Toronto. Mr. Gomravi was stopped by Turkish airport security who determined that Mr.
Gomravi was travelling with an impostor who was travelling on Mr. Latifi’s
Canadian passport.
[7]
Mr. Gomravi initially
stated that he and the impostor were friends. However, after it became apparent
that the Turkish authorities were concerned about the identity of the other
individual, Mr. Gomravi changed his story and denied knowing the person in
question.
[8]
Turkish airport
security subsequently determined that Mr. Gomravi and the impostor had changed
their seat assignments the previous day so that they could sit together on the
Istanbul‑Toronto flight. They concluded that Mr. Gomravi was involved in
facilitating the impostor’s improperly documented travel and informed the
Canadian authorities accordingly. The Turkish authorities also provided Canadian
authorities with a photograph of the individual using Mr. Latifi’s passport
together with a copy of the passport itself.
[9]
Passport Canada commenced an investigation into both Mr. Gomravi and Mr. Latifi. The same
investigator was assigned to carry out each investigation, and there was
considerable overlap in the evidence in the two cases as it related to the
events of December 23, 2010.
[10]
On May 26, 2011,
Passport Canada sent Mr. Gomravi a proposal letter advising him that he was the
subject of an investigation for having been involved in an attempt to escort an
improperly documented individual to Canada. A similar letter was sent to Mr.
Latifi on the same day.
[11]
The letter to Mr.
Gomravi advised him that, based on the information that it had received through
its investigation, the Investigations Division of Passport Canada would be
recommending to an adjudicator that Mr. Gomravi’s passport be revoked based
upon section 10(2)(b) of Canadian Passport Order, SI/81-86 (a copy
of which is appended to these reasons), and that passport services be withheld
from Mr. Gomravi for a five-year period beginning December 23, 2010.
[12]
Mr. Gomravi was than
invited to provide information to Passport Canada that “would contradict or
neutralize” the information set out in the May 26, 2011 proposal letter, prior
to the issuance of a final decision by an Adjudicator.
[13]
Between July 2011 and
October 2011, Mr. Gomravi and Passport Canada exchanged correspondence
regarding these allegations, in which Mr. Gomravi made a number of confusing
and inconsistent statements. After reviewing Mr. Gomravi’s submissions, the
Investigations Division of Passport Canada referred his file to an adjudicator
on October 21, 2011.
[14]
The same adjudicator
was assigned to both Mr. Gomravi and Mr. Latifi’s cases. In each case, the adjudicator
found that that there had been misuse of Mr. Latifi’s passport and that Mr. Gomravi
had facilitated the travel of an improperly documented individual who was
travelling on Mr. Latifi’s Canadian passport. The same penalty was imposed on
both Mr. Gomravi and Mr. Latifi, namely revocation of their passports and
the suspension of access to passport services for a period of five years.
Analysis
[15]
Mr. Gomravi
categorically denies facilitating the travel of an impostor through the Istanbul airport. Indeed, Mr. Gomravi denies the existence of any such impostor. Although
Mr. Gomravi’s evidence on this point has varied over time, he now insists
that it was Mr. Latifi himself who was traveling on his own Canadian passport
on December 23, 2010, and that it was unreasonable for the adjudicator to have
concluded otherwise. Given my conclusion on the procedural fairness issue, it
is not necessary to address this argument.
[16]
Mr. Gomravi asserts
that he was treated unfairly as material facts and information were not disclosed
to him during the investigative and adjudicative processes.
[17]
In particular, Mr.
Gomravi points to a June 27, 2011 email to the investigator from a Canada
Border Services Agency officer at the Canadian Embassy in Ankara advising that
the Turkish police “were unable to conclude that [the individual using Mr.
Latifi’s passport] was an impostor”. The email goes on to state that, as a
result, the individual was allowed to return to Germany (where his journey had
originated) on the next available flight back. The email also advised that the
Turkish police had informed the German police that the individual in question
was en route back to Germany. According to Mr. Gomravi, this email is
exculpatory evidence, given that it calls into question the very existence of
the impostor.
[18]
Mr. Gomravi also
points to the report of a “Facial Comparison Analysis” dated July 11, 2011,
which compares the photograph of the individual caught using Mr. Latifi’s
passport on December 23, 2010 with the photograph of Mr. Latifi in his Canadian
passport. The report concludes that the photographs are of two different
individuals.
[19]
Neither of these
documents was provided to Mr. Gomravi prior to the decision being made to
revoke his passport. Mr. Gomravi only became aware of the existence of these
documents when he obtained a copy of the Certified Tribunal Record filed in
connection with Mr. Latifi’s application for judicial review of the revocation
of his passport.
[20]
Mr. Gomravi says that
both documents were material to the issues before the adjudicator, and that he
was denied any opportunity to address either one of them. In support of his
contention that this constitutes a denial of procedural fairness, Mr. Gomravi
cites the decision in Abdi v. Canada (Attorney General), 2012 FC 642,
[2012] F.C.J. No. 945, in which Justice Gleason determined that Passport Canada
had breached the applicant’s right to procedural fairness by failing to
disclose information that was material to the investigation.
[21]
The Minister asserts
that the May 26, 2011 letter sent to Mr. Gomravi by Passport Canada clearly sets out the allegations against him. Moreover, the correspondence
subsequently exchanged by Mr. Gomravi and Passport Canada demonstrates that Mr.
Gomravi was given a meaningful opportunity to contest these allegations.
[22]
The Minister also
points out that neither the email nor the Facial Comparison Analysis report
appear in the Certified Tribunal Record in Mr. Gomravi’s case. The Minister says
that this demonstrates that neither document was before the adjudicator when he
made the decision under review. This is further confirmed by the fact that
neither document is referred to in the adjudicator’s decision in Mr. Gomravi’s
case. The Minister also points out that the documents both post-date the
Investigations Division’s letter of May 26, 2011.
[23]
As a consequence, the
Minister says that Passport Canada was not obliged to disclose either document
to Mr. Gomravi, and there has been no denial of procedural fairness in this
case.
[24]
I cannot accept the
Minister’s argument.
[25]
While the cases of
Mr. Latifi and Mr. Gomravi were technically two separate matters, the reality
is that they were closely intertwined and the distinction between the two files
is in fact somewhat artificial. The cases involved the same individuals
involved in the same events. Both were being investigated by the same
investigator at the same time, and much of the evidence in the two cases
overlapped.
[26]
The
inter-relationship between the two files is compounded by the fact that the
same adjudicator dealt with both cases. Significantly, by the time the
adjudicator rendered his decision in Mr. Gomravi’s case, he had already made
very specific and very damning findings against Mr. Gomravi in the context
of Mr. Latifi’s case based upon the record that was before him in that matter,
which included the June 27, 2011 CBSA email and the Facial Comparison Analysis
report.
[27]
That is, it is
apparent from the decision of Justice Manson in Latifi v. Attorney General
of Canada et al., 2013 FC 939, [2013] F.C.J. No. 975 (QL), that the
adjudicator's decision in Mr. Latifi’s case was rendered on September 22,
2011, and a reconsidered decision was issued on October 17, 2011: at para.
8. The decision in Mr. Gomravi’s case was rendered on June 12, 2012.
[28]
Based upon the evidence
in Mr. Latifi’s case, the adjudicator found that Mr. Latifi had allowed an
impostor to use his passport to travel to Toronto from Istanbul. More
importantly for our purposes, the adjudicator also found as a fact that Mr.
Gomravi had acted as a facilitator for the impostor: see Justice Manson’s
decision at para. 11.
[29]
It should be noted
that while this finding by the adjudicator could potentially have given rise to
other concerns, Mr. Gomravi has limited his procedural fairness arguments to
the issue of non-disclosure.
[30]
The July 11, 2011
“Facial Comparison Analysis” report was potentially very damning evidence
against Mr. Gomravi. While the report is not referred to in the adjudicator’s
decision in Mr. Gomravi’s case, there is also nothing in that decision to
suggest that the adjudicator had disabused himself of the evidence that had
been considered in Mr. Latifi’s case.
[31]
The fact that the
CBSA email and the “Facial Comparison Analysis” report both post-date the May
26, 2011 letter sent to Mr. Gomravi by Passport Canada setting out the
allegations against him does not, in my view, relieve Passport Canada from its
obligation to have disclosed the evidence to Mr. Gomravi.
[32]
This Court has held
that the duty of fairness in passport revocation matters requires that all
material facts discovered by Passport Canada in its investigation be
disclosed to the affected party: Abdi, above at para. 21. This would
clearly include both inculpatory and exculpatory information.
[33]
The fact that the
Turkish police “were unable to conclude that [the individual using Mr. Latifi’s
passport] was an impostor” was clearly a material fact relevant to the case
against Mr. Gomravi. It is arguably exculpatory evidence in that it potentially
calls into question the existence of the impostor, whose existence was central
to the case against Mr. Gomravi.
[34]
It would, of course,
have been open to the adjudicator to ascribe whatever weight he deemed
appropriate to this evidence, in light of the other evidence before him
corroborating the existence of the impostor. However, fairness required that
Mr. Gomravi should at least have been afforded the opportunity to address the
issue prior to a decision being made to revoke his passport.
Remedy
[35]
The Minister argues
that even if there was a breach of procedural fairness in this case, nothing
would be served by quashing Passport Canada’s decision and remitting the matter
for re‑determination. The Minister submits that the result of the new
review will inevitably be the same in light of Mr. Gomravi’s overwhelming lack
of credibility and ever-changing story.
[36]
As a general rule, a
breach of procedural fairness will void the hearing and the resulting decision:
see Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, 24 D.L.R. (4th)
44. The Supreme Court observed in Cardinal that the right to a fair
hearing is “an independent, unqualified right which finds its essential
justification in the sense of procedural justice which any person affected by
an administrative decision is entitled to have”: at para. 23. The Court went on
in the same paragraph to observe that “[i]t is not for a court to deny that
right and sense of justice on the basis of speculation as to what the result
might have been had there been a [fair] hearing”.
[37]
There is a limited
exception to this rule. That is, a reviewing court may disregard a breach of
procedural fairness “where the demerits of the claim are such that it would in
any case be hopeless”: Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland
Offshore Petroleum Board, [1994] 1 S.C.R. 202, [1994] S.C.J. No. 14 (QL) at
para. 53. See also Yassine v. Canada (Minister of Employment and
Immigration) (1994), 172 N.R. 308 at para. 9 (F.C.A.), 27 Imm. L.R. (2d)
135. This situation may arise where, for example, the circumstances of the case
involve a legal question which has an inevitable answer: Mobil Oil at
para. 52. Justice Iacobucci went on, however, in Mobil Oil to emphasize
the “exceptional character” of this exception, noting that he “would not wish
to apply it broadly”: at para. 54.
[38]
I have given careful
consideration to the Minister’s argument. While there are undoubtedly
significant credibility issues involving Mr. Gomravi, I have determined that
these issues are better addressed by Passport Canada, on the basis of the
record as a whole, once Mr. Gomravi has had a reasonable opportunity to
address the previously undisclosed evidence.
[39]
Mr. Gomravi has also
made submissions with respect to the issue of remedy. He submits that if I
grant his application, I should quash the decision to revoke his passport and
suspend passport services, and not remit the matter for re-determination. Mr.
Gomravi points out that his passport services have already been suspended for
nearly three years, and the delays associated with the re-determination of his
case would render the matter essentially moot.
[40]
I am not prepared to
grant Mr. Gomravi the remedy he seeks. Once again, deference to the process
created by Parliament suggests that the merits of the case against Mr. Gomravi
should be decided by Passport Canada. While I am sympathetic to Mr. Gomravi’s
concern with respect to the delays that may be associated with the
re-determination process, these concerns can be addressed through the provision
of directions governing the re-determination process.
Conclusion
[41]
For these reasons,
Mr. Gomravi’s application for judicial review is granted, and the decision of
the Passport Canada adjudicator dated June 12, 2012 is set aside.
[42]
The issue of the
revocation of Mr. Gomravi’s passport and the imposition of a ban on his
receiving passport services shall be remitted back to Passport Canada for
re-determination by a different adjudicator than the one who issued the June
12, 2012 decision, if there is another individual employed by Passport Canada
who could act as an adjudicator in this matter.
[43]
If there is no other
such individual available to act as an adjudicator, then the matter may be
remitted to the same adjudicator, who shall conduct a hearing de novo
and in no way refer to or consider anything said in the decision that has been
set aside.
[44]
Mr. Gomravi shall
have 30 days in which to make whatever additional submissions he may wish to
make based upon the additional materials from the Certified Tribunal Record in
Mr. Latifi’s case, and Passport Canada shall render a decision in relation
to Mr. Gomravi’s case within 60 days thereafter.
[45]
These timelines may
be varied by agreement of the parties.
[46]
Mr. Gomravi seeks his
costs fixed in the amount of $5,000, on the basis of what he says was grossly
unfair conduct on the part of Passport Canada. The respondent has similarly
sought an award of costs in the same amount, based upon Mr. Gomravi’s allegedly
egregious conduct in attempting to assist an individual in unlawfully entering Canada.
[47]
While I accept that
Mr. Gomravi should receive an award of costs in connection with this
application in light of the unfairness of the process, I am not prepared to
grant him the amount sought.
[48]
At the hearing of
this matter, Mr. Gomravi’s counsel made allegations of racism on the part of
Canadian authorities. Counsel observed that one of Mr. Gomravi’s basic rights
of citizenship had been taken away from him by Passport Canada, suggesting that someone of British extraction might not have received the same treatment.
Counsel conceded, however, that there was no evidence in the record to suggest
that racism played any role in this matter.
[49]
It is a serious
matter to allege that the actions of public officials have been animated by
racism, and such allegations should not lightly be made in the absence of any
evidentiary foundation.
[50]
Taking all of the
circumstances into account and in the exercise of my discretion, Mr. Gomravi
shall have his costs fixed in the amount of $1,500, inclusive of disbursements.
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