Docket: IMM-3015-15
Citation:
2016 FC 169
[ENGLISH TRANSLATION]
Ottawa, Ontario, February 9, 2016
In the presence of the
Honourable Mr. Justice Gascon
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BETWEEN:
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PARMINDER SINGH
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applicant
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and
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THE MINISTER OF
CITIZENSHIP
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AND IMMIGRATION
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respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
The applicant, Parminder Singh, and his two
sisters, Amanpreet Kaur and Amandeep Kaur, are citizens of India. They are also known,
respectively, by the names Sarabjot Singh, Mandeep Kaur and Sandeep Kaur. In
2001, Mr. Singh arrived in Canada from Abu Dhabi. He was accompanied by his
parents, his sisters and their younger brother, Balraj Singh. Before his
departure, the Canadian authorities issued him a temporary resident visa in the
name of Parminder Singh. At the time, Mr. Singh was a minor child.
[2]
After their arrival in Canada, Mr. Singh’s
parents presented a claim for refugee protection for themselves and their
children. The Canadian authorities granted these claims to the mother and the
children. However, Citizenship and Immigration Canada (CIC) then learned that
Mr. Singh and his family had obtained refugee and permanent resident
status in Canada using false identities. CIC subsequently revoked these
statuses.
[3]
In February 2013, a CIC immigration officer
accepted the permanent residence application for humanitarian reasons for Mr.
Singh, who had since become an adult, on the condition that he comply with the
statutory requirements, namely a medical exam, a criminal records check and the
possession of valid identity or travel documents. However, on
June 9, 2015, immigration officer Marie Géralde Georges (the officer)
refused to grant Mr. Singh permanent residence status because he had failed to
provide the documents required to prove his identity under Section 178 of the Immigration
and Refugee Protection Regulations (SORS/2002227) (Regulations).
[4]
Today, Mr. Singh has asked, by virtue of
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, for judicial review of this decision. He claims, in particular,
that the officer made an error when she insisted that he prove his identity “beyond a reasonable doubt.” The Minister replied that
the officer had reasonably concluded that, according to her analysis of the
file and the proof provided, her doubts as to Mr. Singh’s identity had not been
allayed.
[5]
The issue is to determine whether the officer
committed an error in law by inappropriately formulating the burden of proof
that required Mr. Singh to prove his identity in his application for permanent
residence.
[6]
For the following reasons, Mr. Singh’s request
for judicial review is granted because the Court has concluded that the officer
erroneously invoked and applied the standard of proof that is applicable in
criminal proceedings, namely the proof beyond a reasonable doubt, in her
assessment of Mr. Singh’s identity. It is clear, however, that the officer
should have used and applied the only standard of proof applicable in civil
proceedings, namely a balance of probability.
II.
Background
[7]
In her decision, the officer concluded that Mr.
Singh had failed to provide the authentic identity documents required under
Sections 50 and 178 of the Regulations. The officer reviewed all the documents
that Mr. Singh had sent to the Canadian authorities since his application for
permanent residence was approved for humanitarian reasons in February 2013.
[8]
More specifically, in January 2014, Mr. Singh
had submitted to CIC a solemn declaration, a notarial declaration from his
mother stating that he is her biological child, a copy of his birth
certificate, and a certified copy of the birth certificate’s translation.
Because of the identity fraud committed by Mr. Singh’s parents, the officer
proceeded with a detailed review of Mr. Singh’s documents and submissions. She
was thus advised by the Indian authorities that the original copy of Mr. Singh’s
birth certificate, which he had submitted in September 2014, had been altered
and did not correspond to the certificate issued upon Mr. Singh’s birth. The
officer noted in her decision that an official document containing an
alteration, no matter how minimal, cannot be accepted.
[9]
In her reasons, the officer also referred to the
questions that Mr. Singh was asked on the subject of his passport. She was not
satisfied with Mr. Singh’s response that he was no longer in possession of his
passport nor was she satisfied with the explanations Mr. Singh gave with
respect to the reasons why he could not get his passport from the Indian
Embassy in Canada for the purposes of his claim for refugee protection. She
emphasized that Mr. Singh had not provided documents supporting his claim to
this effect. The officer therefore did not consider credible Mr. Singh’s
explanations about the absence of his passport and the impossibility of obtaining
a valid passport. The officer determined that Mr. Singh had entered Canada with
a passport and visa issued in his true identity and that his passport had not
been seized by a smuggler as he so alleged, because his father had kept his. In
addition, since his claim for refugee protection had been presented under a
false name, there were no impediments to the issuance of a new passport in his
true name.
[10]
In her decision, the officer also noted that in
March 2015, Mr. Singh sent her a new birth certificate obtained through his
uncle in February 2015, and the Canadian Embassy in Indian confirmed its
authenticity. However, the officer noticed that the document had been issued
after Mr. Singh arrived in Canada and felt that the document had been obtained
in order to satisfy immigration and to counteract the information obtained
during the verification of the first birth certificate, which proved to have
been falsified.
[11]
The officer gave little weight to the solemn
declaration of Mr. Singh’s mother attesting to the identity of her son, due to
its lack of credibility and the past fraud that she had committed with the
Canadian authorities in the initial claim for refugee protection.
[12]
After the officer did a complete analysis of the
file, she concluded her decision by stating that Mr. Singh had not demonstrated
“beyond a reasonable doubt” that he is in fact
Parminder Singh and that she was thus not satisfied as to his identity.
III.
Analysis
[13]
The Minister argued that based on the officer’s
reasons, it is clear that the burden of proof imposed on Mr. Singh was not
onerous. He stated that the officer made her decision based on facts that had
no connection to the burden of proof, including the observation that Mr. Singh
had submitted a falsified birth certificate and did not have the required
documents. The Minister argued that the question of identity is a crucial
factor in any application for permanent residence and that Mr. Singh was simply
unable to provide the documents required under Canadian law.
[14]
During the hearing before the Court, the
Minister’s attorney added that the officer’s explicit finding referring to Mr.
Singh’s failure to prove his identity “beyond a
reasonable doubt” at the end of her reasons was not a key statement in
the decision, qualifying it instead as an “unfortunate
phrase.” The Minister stated that the officer’s reasons were enough to
show that she had applied the appropriate legal test in the case, namely a
balance of probability. In support of his arguments, the Minister specifically
cited Alam v. Canada (Minister of Citizenship and Immigration), 2005 FC
4 [Alam] at paragraph 9.
[15]
The Court does not agree with the Minister’s
position and cannot accept the arguments submitted by the Minister’s attorney,
even though they were well articulated and presented during the hearing.
Regardless of how the Minister would like to portray the officer’s analysis and
assessment of the evidence, the fact remains that with respect to the burden of
proof cited by the officer, the decision was clearly and transparently worded.
The officer’s only expression of the burden of proof is found in the very last
paragraph of the decision, in which she specifically states that “after the complete analysis of this file, the applicant did
not prove to me beyond a reasonable doubt that he is Parminder Singh.”
Such a statement leaves little room for interpretation.
[16]
This is a case of a blatant error. It is clear
that the burden of proof is not applicable when evaluating identification
documents’ authenticity and probative value in an application for permanent
residence. In his written submissions and during the hearing, the Minister
acknowledged that this burden must instead be satisfied according to a balance
of probability.
[17]
Of course, as stated in Alam, cited by
the Minister, the Court will not intervene if a Court made its ruling based on “the gist of the appropriate standard of proof” (Alam
at paragraph 9). However, the Court will remit a matter in circumstances
where the wrong test has been applied or when it is unclear which test has been
applied (Srirenganathan v. Canada (Citizenship and Immigration), 2015 FC
730 at paragraph 11; Canada (Citizenship and Immigration) v. Neubauer,
2015 FC 260 at paragraph 24).
[18]
In addition, Alam was not much help to
the Minister. Judge O’Reilly states therein that when a Court has elevated the
standard of proof, or when an onerous burden of proof was imposed on the
applicant, a new hearing should be ordered. He concludes that in circumstances
where the Board has made an error of law regarding a fundamental issue, such as
the appropriate standard of proof, the Court should generally order a new
hearing unless it is clear that the claim could not possibly succeed (Alam
at para. 16). The Alam case involved a situation in which the Court seemed
to have elevated the standard of a balance of probability with respect to its
application to the facts in this case. The Court notes that the applicable
civil standard was respected and that the dispute was instead about the
modulation and amplitude of the burden of a balance of probability that had
been required of the applicant.
[19]
However, this case is not one in which the Court
articulated the gist of the appropriate standard of proof but one in which it
poorly worded the way in which this standard should be applied. Instead, this
is a situation where the officer clearly used the wrong standard of proof and
thereby imposed on Mr. Singh an onerous burden of proof that should govern only
criminal proceedings. There is no doubt that this standard has no place in
reviewing an application for permanent residence and its statutory requirements
and that, in these circumstances, a new hearing must be ordered. The Court
cannot support such a statement made without any qualification or reservation,
nor can it accept the Minister’s attorney’s suggestion to see it only as an
unfortunate phrase.
[20]
Moreover, the Minister provided no reference to
excerpts from the decision that could suggest that despite the clarity of the
language used in its conclusion, the officer could very well have applied the
burden of a balance of probability. Nothing in the decision allows the Court to
find that this sentence cited by the officer is an insignificant blunder that
does not reflect the standard of proof used and that the burden of proof
imposed on Mr. Singh could indeed have been less onerous. The Court also
disagrees with the Minister’s opinion that overall, the burden of proof is not
a determining factor in the decision because Mr. Singh made false statements
and submitted falsified supporting documents with his application for permanent
residence.
[21]
The Court instead finds that upon reading the
officer’s reasons, it is impossible to determine whether the evidence at her
disposal would have sufficed to satisfy the burden of a balance of probability.
Since the only expression of the burden of proof is found at the end of the
decision, everything indicates that this was indeed a legal test applied by the
officer throughout her analysis. The Court has no way of knowing whether,
guided by the burden of proving a balance of probability, the officer could
have found that the new birth certificate was not sufficient to prove Mr. Singh’s
identity, or if her assessment of Mr. Singh’s explanation about his missing
passport or his mother’s credibility would have been different.
[22]
The Court is aware that by sending the case back
to CIC, the result may have been the same after a new review conducted in light
of the civil standard of a balance of probability. However, this is an
assessment that CIC must conduct and to which Mr. Singh is entitled in the
decision regarding his application for permanent residence. It is possible
that, informed by the reasons for the blatant error committed by the officer
and of the standard of proof that should have applied, another immigration officer
may nevertheless have come to a similar conclusion. However, another officer
may have also come to a different conclusion. The Court cannot say that the
case leans so heavily against granting Mr. Singh’s request for permanent
residence that sending the case back to the CIC would serve no useful purpose (Lemus
v. Canada (Citizenship and Immigration), 2014 FCA 114 at paragraph 38).
[23]
That being said, the Court acknowledges that
immigration officers have a duty to defend the integrity of the immigration system
and of Canadian legislation and to ensure that permanent residence is not
granted to people who cannot prove their identity or who attempt to do so under
false pretenses. However, in the performance of these duties, officers cannot
subject applicants for permanent residence to requirements or to a standard of
proof that is not that which Canadian civil cases require.
IV.
Conclusion
[24]
For the abovementioned reasons, Mr. Singh’s
application for judicial review must be granted because the officer used an
improper legal test by finding that Mr. Singh had not proven his identity
beyond a reasonable doubt.
[25]
The parties did not raise any questions for
certification in their written and oral representations, and the Court agrees
that there are none in this case.
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