Date: 20061002
Docket: IMM-1728-06
Citation: 2006 FC 1168
Ottawa, Ontario, October 2,
2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
TASHI
DOLMA ALAKTSANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The
Applicant, a Convention refugee and Tibetan citizen of China, had her
application for permanent residence denied by an Immigration Officer (Officer)
on the grounds that she was an Indian citizen. The Applicant was held to be a
member of a prescribed class listed in s. 177 of the Immigration and Refugee
Protection Regulations (Regulations). This is the judicial review of that
decision.
[2]
In
the course of this matter, the Applicant brought a motion to require the
Respondent to produce those parts of the certified tribunal record which had
been excluded on the grounds of solicitor-client privilege. That motion was
dismissed for reasons set forth herein.
II. Facts
[3]
The
Applicant claims that she is a Tibetan citizen of China. She was
found to be a Convention refugee on July 23, 1999. The Respondent, who could
have participated in the immigration hearing, chose not to do so and did not
object to the refugee application. That refugee application was based on the
Applicant’s assertion that she is a Tibetan citizen and feared persecution in Tibet.
[4]
On
November 4, 1999, the Applicant applied for permanent residence. By letter
dated March 3, 2006 - 6½ years after her application was filed – the Officer
refused to grant the application for permanent residence on the basis that she
was a citizen of India, a country other than the one where she feared
persecution. The provision at issue, s. 177 of the Regulations, reads:
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177. For the
purposes of subsection 21(2) of the Act, the following are prescribed as
classes of persons who cannot become permanent residents:
(a) the
class of persons who have been the subject of a decision under section 108 or
109 or subsection 114(3) of the Act resulting in the loss of refugee
protection or nullification of the determination that led to conferral of
refugee protection;
(b) the
class of persons who are permanent residents at the time of their application
to remain in Canada as a permanent resident;
(c) the
class of persons who have been recognized by any country, other than Canada, as Convention
refugees and who, if removed from Canada, would be allowed to return to that country;
(d) the
class of nationals or citizens of a country, other than the country that the
person left, or outside of which the person remains, by reason of fear of
persecution; and
(e) the class of persons who have
permanently resided in a country, other than the country that the person
left, or outside of which the person remains, by reason of fear of
persecution, and who, if removed from Canada, would be allowed to return to
that country.
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177. Pour l’application du paragraphe 21(2) de la Loi, les
catégories réglementaires de personnes qui ne peuvent devenir résidents
permanents sont les suivantes :
a) la catégorie des personnes
qui ont fait l’objet d’une décision aux termes des articles 108 ou 109 ou du
paragraphe 114(3) de la Loi rejetant la demande d’asile ou annulant la
décision qui avait eu pour effet de conférer l’asile;
b) la catégorie des
personnes qui sont des résidents permanents au moment de présenter leur
demande de séjour au Canada à titre de résident permanent;
c) la catégorie des
personnes qui se sont vu reconnaître la qualité de réfugié au sens de la
Convention par tout pays autre que le Canada et qui seraient, en cas de
renvoi du Canada, autorisées à retourner dans ce pays;
d) la catégorie des
personnes qui ont la nationalité ou la citoyenneté d’un pays autre que le
pays qu’elles ont quitté ou hors duquel elles sont demeurées par crainte
d’être persécutées;
e) la catégorie des personnes qui ont résidé en permanence dans un
pays autre que celui qu’elles ont quitté ou hors duquel elles sont demeurées
par crainte d’être persécutées et qui seraient, en cas de renvoi du Canada,
autorisées à retourner dans ce pays.
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[5]
The
Applicant had entered Canada using an Indian passport which she
admitted was false having been secured by bribery. As proof of her Tibetan
citizenship, she produced a “green book”, a recognized document establishing
Tibetan identity.
[6]
In
2003 another immigration official who was handing the Applicant’s permanent
residence application became suspicious that the Indian passport was genuine.
It would appear that this officer, who had experience in India, embarked on
this inquiry more by instinct than evidence. He did so at a time when third
parties, including the local MP, were entreating the department to get on with
issuing the permanent residence card after a four-year delay.
[7]
This
official forwarded “tombstone” information to the Canadian Visa Office in New Delhi who then
inquired of the Indian authorities as to the genuineness of the passport.
[8]
The
Government of Indian Regional Passport Office in July or August 2005 stated
that the passport was issued after a CID clearance (presumably a police clearance).
The advice from the Indian Passport Office contained a caveat that the
verification was performed without a photograph.
[9]
On
November 25, 2005, the Officer advised the Applicant that she was satisfied
that the passport was legitimately issued and that the Indian government
considered her a citizen of India. The Officer then invited the Applicant to
make submissions on the matter.
[10]
Prior
to receipt of the submissions the Officer went back to the Appeals and Hearings
section of the Canadian Border Services Agency (CBSA), the organization responsible
for bringing motions to vacate a Board finding that a person was a refugee. The
CBSA had earlier advised that there was insufficient evidence to seek to vacate
the Board decision because “the genuineness of a passport is not determinative
of citizenship”.
[11]
Armed
with the new information from the Indian Passport Office, the Officer again raised
the issue of vacating the refugee finding. The CBSA advised that it would take
another look at the file – that was 10 months ago and no follow-up action
has been taken.
[12]
In
response to the Officer’s invitation to make submissions, the Applicant’s then
counsel outlined the proper steps to be taken to confirm whether the Applicant
is truly a citizen of India including the use of forensic study of the
passport and/or submitting the passport itself to Indian authorities for
verification. The submissions as to the proper method of verification were
supported by affidavit evidence.
[13]
Without
further inquiry, including affording the Applicant an interview, the Officer
confirmed the finding that the Applicant was a citizen of India and refused
the application for permanent residence.
III. Analysis
[14]
There
are three matters which must be addressed in this judicial review:
·
the
claim of solicitor-client privilege over, principally, e-mails contained in the
certified tribunal record;
·
the
finding that the Applicant is an Indian citizen and is precluded from permanent
resident status; and
·
the
fairness of the process by which the Respondent reached its decision.
A. Solicitor-Client
Privilege
[15]
The
certified tribunal record contained documents for which all or a portion of the
information was blacked out on the grounds of solicitor-client privilege. The
Applicant brought a motion challenging this claim of privilege.
[16]
The
motion was filed late but in order to avoid potential adjournment of this
judicial review, the Court directed that the matter be heard at regular motions
some 10 days in advance of the scheduled judicial review hearing.
[17]
The
Respondent’s counsel objected to the matter being heard then citing a busy
schedule, inability to secure assistance in her office and other personal
matters which prejudiced the ability to fully respond to the motion. Therefore,
this motion was heard immediately preceding the judicial review.
[18]
At
the motion hearing the Respondent tendered to the Court and served on the
Applicant a letter of the Officer explaining her reasons for claiming privilege
including an assertion of litigation privilege as well as solicitor-client
privilege. No affidavit evidence was filed. It was curious that there was
sufficient time to prepare a letter but insufficient time or unwillingness to
file an affidavit.
[19]
This
procedure of filing a letter from the client unsupported by an affidavit on the
day of the hearing is unacceptable practice. The government enjoys no special status
as a litigant as regards proof and is bound by the same rules as are private
litigants in this Court.
[20]
As
I advised counsel, the excuse for the postponement of the motion was tenuous
and the failure to file an affidavit would be taken as the failure to file any
evidence. The Court was left with only the review of the records upon which to
base its decision, the Applicant having waived the right to cross-examination
so that this matter could proceed as scheduled. Fortunately for the Respondent,
the contents of the records over which privilege was claimed was so clearly
solicitor-client advice that the Applicant’s motion had to be dismissed.
B. Indian
Citizenship
[21]
As
a general rule, the findings as to citizenship in another country are a factual
inquiry for which the standard of review is patent unreasonableness (Adar v.
Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 695
(QL)). This was the standard accepted by the parties and the one which
the Court will use for its purposes because nothing turns on the standard of
review on this issue.
[22]
However,
in this case, the conclusion that the Applicant was an Indian citizen was based
on the conclusion that the passport was genuine and that it was determinative
of citizenship under a foreign law. This analysis is clearly a matter of mixed
law and fact which should attract a standard of reasonableness simpliciter
(Canada (Minister of
Citizenship and Immigration) v. Choubak, 2006 FC 521, [2006]
F.C.J. No. 661 (QL)).
[23]
In
reaching her conclusion, the Officer relied on the verification of the Indian
passport which came with a caveat from the Indian Passport Office as to the
absence of a photograph; clearly an important point if the very subject is
raised by the verifying authority. It must have been taken as a warning that
any such verification was tentative.
[24]
The
reliance on this verification is undermined by the affidavit evidence of the
Applicant as to the proper procedure for verification as related by an official
of the Indian government. The Respondent neither challenged the evidence in
cross-examination nor did it file rebuttal evidence.
[25]
The
Officer’s conclusion is directly contrary to a finding by the Board that the
Applicant is a Tibetan refugee and which the CBSA has so far refused to
challenge by way of an application to vacate the Board decision. The CBSA
specifically concluded that the genuineness of a passport is not determinative
of citizenship; a conclusion which is directly at odds with the Officer’s own
conclusion.
[26]
The
Officer’s decision does not address the evidence which contradicts her
findings. There is no mention of the Tibetan identity document nor of the conclusions of the Board nor of the CBSA or even the veracity of the Applicant’s
story of bribery.
[27]
The
Respondent filed an affidavit in which the Officer tries to elaborate on what
issues she considered. However, the notes in the file and the e-mail traffic
being contemporaneous with the events are a more reliable source of evidence
and generally lack the ex post facto justification nature of the
affidavit. That affidavit is of questionable weight.
[28]
In
the face of all the other evidence contrary to the Officer’s conclusion and
absent better evidence against the Applicant, this decision is patently
unreasonable. This patently unreasonable finding is compounded by the manner in
which the decision was made.
C. Fairness
[29]
The
decision is essentially a finding that the Applicant falsely secured refugee
status and that her explanation of how she secured an Indian passport is a lie.
[30]
At
no time was the Applicant confronted with the challenge to her story of how she
secured the Indian passport. At the time the Applicant’s counsel was invited to
make submissions, the issue raised was the genuineness of the Indian passport -
only one aspect of the issue of the Applicant’s citizenship.
[31]
It
is unfair to now say, as was argued and referred to in the Officer’s affidavit,
that counsel should have reiterated the story of the bribery and given further
and better details of the event. At no time was the Applicant alerted to a
challenge to this facet of the case and nothing in the invitation to make
submissions would have reasonably alerted counsel that the matter of the
bribery was being challenged.
[32]
While
an applicant is not entitled to an interview as of right, where the
circumstances of fairness dictate that an interview should have been accorded,
the failure to do so is a fatal flaw of natural justice and fairness (Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[33]
In
this instance the Respondent was directly challenging the Applicant’s
credibility and notice of that challenge and an opportunity to be heard was
denied. An interview would have eliminated this breach of natural justice if
the Respondent still had an open mind.
[34]
However,
the record confirms that in this instance, the Officer’s conclusions about the
Applicant had been reached prior to any submission, not just in some
preliminary fashion. The invitation to make submissions was form over substance.
Not only was the Applicant misled as to the issue being challenged, there is
little likelihood that any submissions would have altered the ultimate result.
[35]
The
Applicant asks that the Respondent be ordered to approve the application for
permanent residence. That application is almost seven years old and by now the
Respondent must have (or should have) considered all the steps for approval.
Further, the Respondent has not indicated that there are any other issues which
would hold up or prevent the issuance of the necessary authorization. The Court
expects that the approval will follow shortly after this decision unless there
is some legal impediment to approval.
IV. Conclusion
[36]
The
application for judicial review will be granted, the decision of the Board must
be quashed and the matter remitted to the Respondent for approval within thirty
(30) days by a different decision maker without the involvement of the Officer
or the other immigration official mentioned in this decision. The Court will
remain seized of this matter if either party has difficulty with implementation
of this Court’s decision.
JUDGMENT
IT IS ORDERED THAT the
application for judicial review is granted, the decision of the Board quashed
and the matter remitted to the Respondent for approval within thirty (30) days by
a different decision maker without the involvement of the Officer or the other
immigration official mentioned in this decision. The Court remains seized of
this matter to address any difficulties with implementation of this Judgment.
“Michael
L. Phelan”
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