Docket: T-499-14
Citation:
2015 FC 431
Montréal, Québec, April 17, 2015
PRESENT: The
Honourable Madam Justice St-Louis
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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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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Mr. Alireza Gomravi seeks judicial review of the January
31, 2014 decision by the Director, Investigations Division, Passport Program
Integrity Branch of Citizenship and Immigration Canada [CIC] who revoked his
passport and denied him access to a passport until December 23, 2015.
[2]
The events leading to this decision took place in December 2010 at the Ataturk
International Airport in Istanbul, Turkey, when Mr. Gomravi was taking a flight
back to Canada. He states he was travelling with his business partner and friend,
Mr. Ebrahim Latifi, who, CIC concluded, was being impersonated by another
person using Mr. Latifi’s Canadian passport.
[3]
CIC revoked Mr. Gomravi’s passport and denied him access to a passport until
December 23, 2015, after concluding that he had used his Canadian passport
while acting as an escort to assist an unidentified individual who was
unlawfully using Mr. Latifi’s passport in order to board a flight to Canada.
[4]
A first decision was issued by Passport Canada (now the Passport Program Integrity Branch of CIC) on June 1,
2012, and Mr. Gomravi challenged it before this Court. Madam Justice Mactavish
allowed the judicial review as she found Mr. Gomravi had been denied
procedural fairness in the adjudication process. She noted that Mr. Gomravi should
have had the opportunity to address pieces of evidence which constituted “material facts” and pointed to the June 27, 2011, Canada
Border Services Agency email [CBSA email] and the July 7, 2011, Facial
Comparison Analysis report [Facial Analysis] (Gomravi v Canada (Attorney
General), 2013 FC 1044 [Gomravi 2013]).
[5]
By letter dated October 31, 2013, Mr. Gomravi was advised that the CBSA
email and the Facial Analysis were added to his file and he was given the opportunity
to make submissions. A new decision was rendered by CIC on January 31, 2014, which
is the one under review in this case.
[6]
For the reasons set down below, this application for
judicial review will be dismissed.
II.
Background
[7]
As Justice Mactavish found in her decision, the facts
giving rise to the revocation of Mr. Gomravi’s passport are complicated and
convoluted.
[8]
Mr. Gomravi is a Canadian citizen. On March 12, 2010, he
was issued Canadian passport number WG916449, which was valid until March 12,
2015.
[9]
He is acquainted with Mr. Ebrahim Latifi, a Canadian citizen
who he described as his friend and business partner.
[10]
On December 19, 2010, Mr. Gomravi left Calgary for a
business trip to Germany and Belgium. During that trip, Mr. Gomravi was to
travel with Mr. Latifi, meet with a business contact, Mr. Mohammed Bassiri, and
dine at Mr. Latifi’s sister’s house in Liege. He was returning from Germany to Canada on December 22 and 23, 2010, transiting through Istanbul, Turkey.
[11]
Hence, following his stay in Germany and Belgium, Mr. Gomravi took a flight from Germany and arrived at the airport in Istanbul at approximately
7:50 p.m. on December 22, 2010. He remained at the airport and, since he was in
transit, he was not admitted into Turkey.
[12]
He presented himself at the check-in counter for his
flight to Toronto at 9:00 a.m. on December 23, 2010.
[13]
The events that followed are at the heart of this case,
and it is worthy to note from the onset, that Mr. Gomravi presented different
versions of those events.
[14]
In brief, at the check-in counter, the Gozen security
(airport security) suspected that the individual using Mr. Latifi's passport in
order to board the Toronto-bound flight was not actually Mr. Latifi, but an
imposter. Therefore, they referred the individual to the Turkish authorities.
[15]
The Turkish authorities were unable to confirm that the
individual using Mr. Latifi’s passport was an imposter, but they nevertheless did
not allow him to take the flight to Canada and directed him to take the next
flight back to Germany, as an in-transit passenger.
[16]
On May 26, 2011, B. Harrison, Chief Investigator of the
Investigations Division of then Passport Canada, advised Mr. Gomravi by letter
that he was the subject of an investigation for his involvement in an attempt
to escort an improperly documented individual into Canada. From July to October
of 2011, Mr. Gomravi and CIC exchanged emails and letters in which Mr. Gomravi
made submissions and CIC responded to his submissions.
[17]
On June 1, 2012, CIC revoked Mr. Gomravi’s passport
pursuant to paragraph 10(2)(b) of the Canadian Passport Order, SI/81-86
[the CPO] and declared it null and void. Based on section 10.2 of the CPO, it
also decided that passport services would not be available to Mr. Gomravi until
December 23, 2015.
[18]
Mr. Gomravi challenged the June 1, 2012 decision by way
of judicial review and, on October 16, 2013, Justice Mactavish of this Court
set it aside.
[19]
From October 2013 to January 2014, Mr. Gomravi made
submissions to CIC and CIC responded to those submissions. Mr. Gomravi was
given an opportunity to make submissions on the evidence held by CIC, namely
the aforementioned CBSA email and Facial Analysis report.
III.
The decision under review
[20]
On January 31, 2014, CIC revoked Mr. Gomravi’s passport
and refused him passport services until December 23, 2015.
[21]
CIC found that, on a balance of probabilities, there
was sufficient information to conclude that Mr. Gomravi used passport number
WG916449, issued in his name, to accompany an improperly documented person to
enter Canada illegally, and that he should have been aware that by doing so, he
was attempting to organize, aid, or abet this person to enter Canada illegally
contrary to section 117, in conjunction with section 135 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA].
[22]
CIC relied on the following documentary evidence in
rendering its decision:
•
A December 23, 2010 email from the Security
Supervisor of Gozen security [Gozen security email] at the Ataturk
International Airport in Istanbul to the CBSA Liaison Officer in Syria advising
him that they had intercepted a passenger attempting to use the Canadian
passport issued to another individual on a flight to Toronto and that Mr.
Gomravi had been identified as a facilitator;
•
Several images attached to the Gozen security
email, including images of the Canadian passport used by the alleged imposter,
an image of Mr. Gomravi’s Canadian passport WG916449, and a photograph of the
alleged imposter taken at the airport;
•
The Facial Analysis conducted by CIC, comparing
the photograph of the alleged imposter and the photograph of the rightful
bearer of the passport;
•
The CBSA email dated June 27, 2011, advising CIC
that they were not certain that the passenger travelling on the Canadian
passport was the rightful holder of the passport and that they suspected that
he was an imposter. The email also mentioned that the subject had been allowed
to return to Germany since he was an in-transit passenger from Germany, and CBSA
was unable to conclude that he was an imposter; and
•
A letter dated December 13, 2013, from Mr.
Gomravi’s counsel, explaining that there was no imposter as the individual in
question was Mr. Latifi, and that Mr. Gomravi had denied knowing him to the Gozen
security agents because he was angry at him at the time.
IV.
Issues
1)
Does paragraph 10(2)(b) of the CPO grant CIC
jurisdiction to revoke Mr. Gomravi’s passport in the absence of charges or of a
conviction of an indictable offence ?
2)
Did CIC arrive at a decision without regard to
the evidence before it?
3)
Did CIC breach procedural fairness?
V.
Standard of review
[23]
The issues of jurisdiction and procedural fairness are
to be reviewed against the standard of correctness (Dias v Canada (Attorney
General), 2014 FC 64, aff’d in 2014 FCA 195 at para 11 [Dias]; Sketchley
v Canada (Attorney General), 2005 FCA 404 at para 70).
[24]
However, CIC’s decision to revoke the passport and to deny
passport services is to be assessed under the reasonableness standard (Kamel
v Canada (Attorney General), 2008 FC 338 at paras 57-59 [Kamel]; Villamil
v Canada (Attorney General), 2013 FC 686 at para 30).
VI.
Submission of the parties
[25]
According to Mr. Gomravi, CIC’s decision is
unreasonable as the elements of the offence under section 117 of the IRPA, in
conjunction with section 135, were not established. Mr. Gomravi submits that there
is no evidence that he ever used his passport for any purpose other than to
board his flight or that he used his passport to aid or abet the alleged imposter.
[26]
Mr. Gomravi further submits that there is no evidence
of the existence of an “imposter”.
[27]
He submits that neither he nor the alleged imposter was
convicted of any offence relating to impersonation or illegal use of a
passport.
[28]
According to Mr. Gomravi, his procedural rights have
been breached by CIC as it failed to provide him with the CBSA email, which
constitutes crucial and compelling evidence that the Turkish authorities had verified
that there was no imposter.
[29]
Mr. Gomravi also submits that CIC was required to contact
the German authorities and obtain information on Mr. Latifi’s or the alleged
imposter’s admission in Germany, upon return from Istanbul, and has failed to
do so.
[30]
Finally, Mr. Gomravi alleges that CIC acted in bad
faith and discriminated against him.
[31]
The Respondent submits that paragraph 10(2)(b) of the CPO
and section 117 of IRPA require a person to have used the passport, directly or
indirectly, to aid, abet, or otherwise help a person in an attempt to enter
Canada without the required documents. Therefore, even if Mr. Gomravi used his
passport for his own travel and did not alter, copy, or otherwise misuse it, he
was using his passport while claiming to be the friend of an imposter which
aided that person’s attempt to enter Canada without the required documents.
[32]
The Respondent submits that the decision was reasonable
in the circumstances, given that CIC had evidence of the existence of an
imposter, and the fact that Mr. Gomravi was travelling with him.
[33]
The Respondent submits that Mr. Gomravi is not credible
as he presented several accounts of the events. For instance, Mr. Gomravi
denied knowing the person travelling with Mr. Latifi’s passport, but later
asserted on the contrary that he did know him and explained that he denied
knowing him because he was angry at him.
[34]
The Respondent submits that a criminal proceeding, let
alone a criminal conviction, is not a precondition to the authority to revoke a
passport under paragraph 10(2)(b) of the CPO, and relies on the decision in Vithiyanthan
v Canada, [2000] 3 FC 576 [Vithiyanthan] to support this argument.
According to the Respondent, the interpretation in Vithiyanthan ought to
prevail, “as it is supported by the language of the
provision interpreted using basic principles of statutory interpretation.”
[35]
The Respondent also submits that there was evidence of
the existence of an imposter. The fact that CBSA was unable to confirm that the
individual using the passport was an imposter does not establish that there was
no imposter.
[36]
Hence, according to the Respondent, CIC’s findings were
based on the information before it and were not perverse or capricious.
[37]
The Respondent also submits that the decision to refuse
passport services for Mr. Gomravi for a period of five years is reasonable.
[38]
The Respondent submits that the requirements of
procedural fairness were met in this case as Mr. Gomravi was aware of the
allegations against him and was afforded an opportunity to participate in the
investigative process (Kamel at para 68; Abdi v Canada (Attorney
General), 2012 FC 642 at para 21). Mr. Gomravi obtained both the CBSA email
and the Facial Analysis referred to in Justice Mactavish’s decision, and the
evidence from Mr. Latifi’s judicial review was included within his material.
[39]
Finally, the Respondent submits that CIC was under no
duty to collect information from foreign authorities about the imposter’s
whereabouts once he was not allowed to board the flight to Toronto (Sathasivam
v Canada (Attorney General), 2013 FC 419 at para 28).
VII.
Analysis
[40]
For the reasons set down below, I find that CIC did not lack
jurisdiction to revoke Mr. Gomravi’s passport, that CIC made no reviewable
error with regard to the assessment of the evidence, and that Mr. Gomravi was
afforded the procedural fairness rights he was entitled to.
A.
The Jurisdictional Issue
[41]
Paragraph 10(2)(b) of the CPO provides that :
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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
[…]
(b) uses the
passport to assist him in committing an indictable
offence in Canada or any offence in a foreign country or state that would
constitute an indictable offence if committed in Canada;
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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 :
[…]
b) utilise le
passeport pour commettre un acte criminel au Canada, ou pour commettre,
dans un pays ou État étranger, une infraction qui constituerait un acte
criminel si elle était commise au Canada;
[…]
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[Emphasis added.]
[42]
The Court is divided on the interpretation to be given to the meaning of
the word “committed” in paragraph 10(2)(b) in that it has been held to require a “conviction” in
certain cases and the simple “commission”
of the act in other cases.
[43]
In Vithiyanthan, Justice Simpson held that subsection 10(b) (now
paragraph 10(2)(b)) does not require that a charge be laid or that a conviction
be obtained in order for CIC to be entitled to revoke an individual’s passport (Vithiyanthan
at para 23). This reasoning stemmed from the use of the word “committed” (Vithiyanthan
at para 11). Justice Simpson determined that the wording used in other
provisions of the CPO is different than the wording used under subsection 10(b),
which indicates that the purpose is also different. She pointed out that
subsection 10(a) (now paragraph 10(2)(a) of the CPO) deals with people who have
been charged with an offence, while section 9 covers both those who have been
charged (subsection 9(b) and (c)) and those who have been convicted (subsection
9(e)).
[44]
More recently, Justice Phelan of this Court analyzed CIC’s jurisdiction
under paragraph 10(2)(b) of the CPO, and opened the door to the need for a conviction
(Dias at paras 14-16). A few months later, Justice Zinn found in Siska
v Canada (Passport), 2014 FC 298 [Siska] that a conviction is
a precondition to the authority to revoke a passport or to refuse passport
services (Siska at para 18).
[45]
Subsequently, in De Hoedt v Canada (Minister of Citizenship and
Immigration), 2014 FC 829 [DeHoedt], Justice McVeigh, relying on the
decision in Mbala v Canada (Attorney General), 2014 FC 107 and taking
into account the decision in R v Appulonappa, 2014 BCCA 163, leave
granted [2014] SCCA No 283, found that CIC had the jurisdiction to find that
the Applicant committed the offence under section 117 of IRPA (DeHoedt
at para 29). Justice McVeigh based her decision on the different terms used in
the CPO and, relying on Vithiyanthan, stated that the rationale of
paragraph 10(2)(b) “would seem to be
that some foreign countries do not have the same legal processes as Canada and
with this section we do not need to rely on foreign countries justice systems
for a conviction of an equivalent offence”.
[46]
The Federal Court of Appeal issued its decision in Canada (Attorney General) v Dias, 2014 FCA 195, and upheld Justice Phelan’s
decision. Justice Stratas agreed with the Federal Court’s result and noted “that the facts relied upon by the Director
could not lead to his conclusion that Mr. Dias committed the offence under
section 117.” However, the Federal Court
of Appeal made no comment on whether or not a conviction is required under
paragraph 10(2)(b) to entitle CIC to revoke a passport.
[47]
On February 20, 2015, Justice Fothergill ruled on this same issue for
this Court. After reviewing the Court’s jurisprudence on the issue, Justice
Fothergill found the language of paragraph 10(2)(b) of the CPO to be ambiguous
and resolved the ambiguity in favour of the Applicant.
[48]
After a careful reading of the CPO and of the jurisprudence of this
Court, I am of the opinion that paragraph 10(2)(b) of the CPO is not ambiguous,
that the use of the term “committed”
indicates that the commission of the act is sufficient, and that a conviction
is not a precondition to its application.
[49]
Hence, CIC had the jurisdiction to revoke Mr. Gomravi’s passport and
deny him passport services on the basis that he acted in contravention of
section 117, in conjunction with section 135 of IRPA, in “committing” an
act that would constitute an indictable offence if committed in Canada.
B.
The Reasonableness of the Decision
[50]
With regard to the reasonableness of the decision, this Court is
concerned with the “existence of
justification, transparency and intelligibility within the decision-making
process” and will intervene only where the
decision under judicial review does not “fall within a range of possible, acceptable outcomes which are
defensible with respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47).
[51]
Mr. Gomravi contravened section
117 of IRPA and paragraph 10(2)(b) of the CPO by using his
passport to assist him in organizing, inducing, aiding or abetting the coming
into Canada of an imposter knowing that, or being reckless as to whether his coming
into Canada is or would be in contravention of the IRPA. Mr. Gomravi challenges this finding on the basis
that there is no evidence that he aided and abetted anyone through the use of
the passport issued in his name and, moreover, that there is no evidence that
there was, in fact, an imposter.
[52]
Mr. Gomravi’s report of the events that occurred on December 23, 2010 at
the airport comprises, to say the least, inconsistencies
and incoherencies.
[53]
For example, on December 31, 2013, Mr. Gomravi wrote a letter to the
investigator, Mr. Hubbard, and pointed that “as the imposter told me, his name is Ebrahim Latifi” (Certified Tribunal Record [CTR] at para 35) and stated in
this same letter that “I did not know
the third party. Also I did not know his name” (CTR
at para 52).
[54]
At the hearing, in response to a question from the Court about the CBSA
email, Mr. Gomravi indicated that Mr. Latifi arrived at the check-in counter
escorted by Turkish police as he had been detained since the previous night, a
fact that he had never mentioned before.
[55]
It is unnecessary to examine each of Mr. Gomravi’s inconsistencies. This
Court is satisfied that there was sufficient evidence before CIC to conclude
that there was an imposter, and that Mr. Gomravi committed an indictable
offence under section 117 of the IRPA while using his passport.
[56]
The Facial Analysis carried out using the photograph from Mr. Latifi’s
2011 passport application, and the photograph taken at the Istanbul airport in
December 2010 clearly demonstrate that the two photographs are of two separate
and distinct individuals. Mr. Gomravi doubted the authenticity of this
evidence, but submitted no evidence in support of his allegations and I do not
find any reason to doubt the reliability of this document.
[57]
I find that it was reasonable for CIC to conclude that “although the Turkish airport police were
unable to conclude the passenger was an imposter, their actions are revealing
in that they decided to return the passenger to Germany, rather than permit him
to travel to Canada”, particularly in the context that the
individual was in transit and had not been admitted in Turkey.
[58]
Therefore, in light of the aforementioned evidence and of the other
evidence included in the application, I find that CIC made no reviewable error
with regard to the existence of an imposter.
[59]
With respect to Mr. Gomravi’s allegation that there is no evidence that
he aided and abetted anyone through the use of the passport issued in his name,
the security case history sheet reveals that:
Both individuals had booked identical itineraries […] Both
paid the exact same fare for flight – Imposter had no check in bags whereas
GOMRAVI had two check in bags […] GOMRAVI requested at the CGY counter to sit
beside imposter to seat 31 A imposter 31 B […] Both were in line together and
check in same time with the same Turkish Arline Employee
[60]
Moreover, CIC pointed to the following fact in its decision :
The information received from Gozen security regarding their
questioning of the passenger indicated that he was travelling without any
check-in baggage, could not speak English or French well, was inconsistent in
identifying his place of residence, was not able to provide additional
documentation to confirm his identity, could not answer question regarding the
visas and stamps in the Canadian passport, and was not able to replicate the
signature appearing in the passport.
[61]
Thus, I also find that there was sufficient evidence in front of CIC for
it to reach the conclusion that Mr. Gomravi attempted to organize,
induce, aid or abet the coming into Canada of an imposter.
C.
The Procedural Fairness Issue
[62]
The Court in Kamel held at paragraph 72 that the investigations
made by then Passport Canada will comply with the principle of procedural
fairness where “the investigation
includes disclosure to the individual affected of the facts alleged against him
and the information collected in the course of the investigation and gives the
applicant an opportunity to respond to it fully and informs him of the
investigator's objectives; as well, the decision-maker must have all of the
facts in order to make an informed decision” (see
also Slaeman v Canada (Attorney General), 2012 FC 641 at para 23 [Slaeman]).
[63]
In Gomravi 2013,
Justice Mactavish ruled that CIC had an obligation to disclose all material
facts to Mr. Gomravi, specifically referring to the CBSA email and the
Facial Analysis. By way of a letter dated October 31, 2013, CIC informed Mr.
Gomravi that the CBSA email and the Facial Analysis had been added to his file.
Mr. Gomravi was provided with the opportunity to make further submissions.
Therefore, the issues pointed out by Justice Mactavish in Gomravi 2013
were addressed by CIC and the second investigation conducted by CIC did not
breach Mr. Gomravi’s rights to procedural fairness.
[64]
On October 31, 2013, in response to Mr. Gomravi’s request, CIC informed
him that “the primary evidence
provided by the Turkish police or authorities to the Migration Integrity
Officer was not held by Passport Canada.” With
respect to Mr. Gomravi’s allegation, I find that CIC was under no obligation to
collect information from foreign authorities. In fact, Mr. Gomravi was entitled
to all the information gathered that
is relevant to the determination to be made and that is what he was provided with (Slaeman
at para 37). The
evidence disclosed to Mr. Gomravi is the information CIC relied on to make its
decision and this information was sufficient to support CIC’s conclusion.
[65]
Mr. Gomravi made many allegations to the effect that CIC acted in bad
faith and discriminated against him. Since those allegations are serious and
are not supported by the evidence, and to deter Mr. Gomravi or other applicants
from making such gratuitous and unfounded allegations, costs will be awarded to
the Respondent in the amount of $2,500.00.
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