Canada (Minister of Citizenship and Immigration) v. Singh, 2004 FC 1634

Date: 20041123

Docket: IMM-1468-04

Citation: 2004 FC 1634

Ottawa, Ontario, November 23, 2004

Present:         The Honourable Mr. Justice Blais                                 

BETWEEN:

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                          Applicant

                                                                           and

                                                             RAVINDER SINGH

                                                                                                                                     Respondent

                                           REASONS FOR ORDER AND ORDER

[1]                This is an application by the Minister of Citizenship and Immigration (applicant) for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (RPD), dated February 5, 2004, which ordered that Ravinder Singh (respondent) be released from detention, subject to certain conditions.

RELEVANT FACTS

[2]                The respondent is a citizen of India who entered Canada on October 3, 2003, and claimed refugee status on October 7, 2003. He was able to enter using forged documents which bore the name Vijay Kumar. These documents were provided to him by an agent.

[3]                During a meeting with an Immigration officer on December 3, 2003, Mr. Singh provided three new documents which he claimed to be authentic, but were eventually determined to also have been forged. It was at that time that detention of the respondent was ordered until his identity could be established, as per paragraph 55(2)(b) of the Immigration and Refugee Protection Act (Act). Reviews of his detention were conducted on December 5, 2003, December 11, 2003 and January 9, 2004, all recommending that the respondent remain in detention. However, the RPD in its January 9, 2004 decision, placed conditions on an offer for release which could be effective on January 30, 2004.

[4]                On February 5, 2004, the RPD found that the delay set out in the January 9, 2004 order had passed and that Mr. Singh should therefore be released in accordance with the terms of that order. The applicant now asks this Court to quash the decision of the RPD dated February 5, 2004.

ISSUES

[5]                1.         Did the RPD err in law in regards to its jurisdiction when it interpreted the offer of release rendered on January 9, 2004?

2.        Did the RPD fail to observe a principle of natural justice when not permitting Minister's counsel to make further representations at the hearing for review of detention?

ANALYSIS

1.         Did the RPD err in law in regards to its jurisdiction when it interpreted the offer of release rendered on January 9, 2004?

[6]                In my view we should review the different sections of the Act and the Immigration and Refugee Protection Regulations (Regulations) to determine whether the Board Member made a reviewable error.

[7]                Section 55 of the Act provides that a foreign national can be detained in certain circumstances notably for identification purposes.

[8]                Section 58 of the Act requires the Immigration Division to release a person in detention unless it is satisfied of certain facts:

[9]                Section 244 of the Regulations provides that:

[10]            In the present case, it is paragraph 244c) of the Regulations that is relevant because the Immigration authorities alleged this ground to detain the respondent.

[11]            Moreover, subsection 247(1) of the Regulations states that:

[12]            When a Board member has to review the detention, he or she has to rely on the previous sections of the Act and Regulations.

[13]            In fact, to understand the decision made by Board Member Tordoff, we have to go back to the decision made by Board Member Louis Dubé on January 9, 2004.

[14]            The reasons and decision of Board Member Louis Dubé are very comprehensive and, in his reasons, he relied on everything that was done by the respondent and the Minister to verify information regarding the identity of the respondent.

[15]            In the past, the respondent has provided different documents that were found to be fake, fabricated and unreliable. Those documents were provided to other Board members, and in particular, in December 2003, before two different members, Mr. Pierre Turmel and Mr. Michel Beauchamp.

[16]            After that, it appears that the respondent provided a new document which was an affidavit of the Sarpanch of the village where the respondent is alleged to come from and this document was provided to the Immigration officer sometime between December 17 and December 22, 2003. Member Louis Dubé explained in his reasons that:

... the affidavit was sent to the Delhi's Canadian authorities for verification, an answer came on the 22^nd of December 2003 from Delhi, that it is not possible to verify such documents and that it is very easy and simple to obtain such documents for a small fee, but they will try other avenues with the address of your mother, they may even go to visit the village and they did send your fingerprints to the Canadian authorities in India. [my emphasis]

[17]            Later on, at page 4 of his decision, Mr. Dubé stated:

...You have to understand that I am not the one who has to be satisfied with your identity, I do find that the efforts made during the last month are reasonable. There were two interviews, they did send the document back to India for verification, the affidavit, they sent also the fingerprints to the Canadian authorities in India and they are exploring new avenues to verify your say in India. [my emphasis]

[18]            Nevertheless, later on when Board Member Dubé was satisfied that the respondent should remain in detention for the time being and also at page 4, paragraph 3, he wrote:

So, I will cancel the offer of release by my colleague and make a new one. The conditions will be the same ones for you to report every month, I will not ask for any money, you will have to provide the Immigration Department with an address and advise the Immigration Department before moving from that address and the offer will be valid as soon as the Immigration Department is satisfied with the authenticity of the document, I mean the affidavit.

If there is nothing, no news from India by the...

So, if there is nothing out of India, no results or no steps further were made by the Immigration Department in that regard, « in that regard » I mean going to your village and verify the authenticity of the document, the affidavit, if there is no result by January 30^th, at noon, you will be released at that time. If ever the result comes from India that the document, they just cannot do anymore with that, you will be released also, but if the result comes up from India clearly that it is a fake one or that it is not genuine, the detention will be continued and you will be heard again at a date that I will set in the next few minutes with the registrar.

[19]            I had to rely on that particular decision even though it was not challenged, because Board Member Tordoff relied on it to make her own decision. It is obvious that at the time of the decision by Mr. Dubé, the affidavit provided by the respondent, that being the Sarpanch one, was not considered as being reliable and fell well short of establishing the identity of the foreign national, the applicant in our case.

[20]            In making his decision, Mr. Dubé had to apply subsection 58(1) of the Act which says that the respondent should be released unless the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and he has not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing his identity or the Minister is making reasonable efforts to establish his identity.

[21]            It should be noted that Mr. Dubé is also entitled to impose some conditions pursuant to subsection 58(3) of the Act.

[22]            To make a long story short, when Mr. Dubé made his decision on January 9, 2004, he decided that the Minister had to verify the validity of the affidavit that was provided to serve as an identity document by any means, including going to India, and returning with an answer by January 30, 2004. If there was an answer that the document could be valid or provide valid evidence regarding the identity of the respondent, or if there is no report before January 30, 2004, too bad for the Minister, the respondent will be released because the condition imposed would not have been met.

[23]            In fact, the Board Member, in his decision, obviously crossed the line; he decided that the affidavit provided by the respondent should be dealt with during the next 21 days and based on the assessment of this document, a decision will be made regarding the identity of the respondent. Unfortunately, this discretion belongs to the Minister, not to the Board Member. The Board Member's decision should be made pursuant to the law, particularly sections 244 and 247 of the Regulations.

[24]            The clock was then ticking; the Board Member made a decision on January 9, 2004 and the Minister decided not to appeal that decision. It would have been curious if the Minister had appealed a decision maintaining the respondent in detention. Nevertheless, this decision was somehow reversing the burden and the Minister had a very short period of time to determine whether the affidavit provided by the respondent would be valid.

[25]            I have no hesitation that at that stage, as I mentioned, Board Member Dubé crossed the line in imposing a condition on the Minister that exceeded his jurisdiction. This decision was not challenged, and so was valid at that time. Nevertheless, when Board Member Diane Tordoff rendered her decision on February 5, 2004, she relied heavily on Mr. Dubé's decision and decided to release the respondent, based on a preliminary motion which was whether the Minister had complied with the conditions imposed by the decision of Board Member Dubé. Having found that the Minister had not complied with the condition imposed by Board Member Dubé, Board Member Tordoff made the decision to release the respondent and to not entertain the revision of the detention because it became moot.

[26]            Obviously, the situation has probably evolved since those decisions of February 2004, but nevertheless, counsel for the Minister insisted that a decision on this judicial review should be made to clarify the extent of the scope of a decision of a Board member and the limits of his or her jurisdiction.

[27]            In my view, given that the condition imposed by Board Member Dubé in his decision of January 9, 2004 was an excess of his jurisdiction, relying on that particular condition by Board Member Tordoff on February 5, 2004 is an obvious excess of jurisdiction as well, and the decision should therefore be quashed.

[28]            The officer representing the Minister and only the officer representing the Minister is entitled to make a decision whether he or she is satisfied of the identity of the foreign national in the course of any procedure under the Act (Paragraph 55(1)b)).

[29]            The Immigration Division also has its share of responsibilities provided through section 58 of the Act. Nevertheless, the process has been well-established through sections 244 and 247 of the Regulations.

[30]            In this case, the Minister suggests that in making her decision to release the respondent, the Board Member failed to address the obligation provided by section 244 and the factors identified at subsection 247(1), and particularly at paragraphs 247(1)a), c) and e).

[31]            Regarding paragraph 247(1)a), the Minister suggests that there is ample evidence that the respondent did not cooperate in providing evidence of his identity or in assisting the department in obtaining evidence of his identity. He provided fake documents and refused to contact his family in India to gather reliable information regarding his identity.

[32]            Regarding paragraph 247(1)c), the respondent has admitted that he has destroyed his identity and travel documents and has used fraudulent documents in order to mislead the department.

[33]            And finally, regarding paragraph 247(1)e), many documents were provided that contradicted information provided by the foreign national with respect to his identity.

[34]            In fact, the decision-maker Mrs. Tordoff never went through the process and the factors enumerated in section 247 because she made a preliminary decision and refused to address the new information that was to be provided by the Minister's representatives.

[35]            In fact, on January 29, 2004, an expert provided a report which says that even though the expertise concludes "le support est fort probablement authentique", this document cannot be considered as an identity document but only an affidavit by someone regarding the identity of another person. The expert also mentioned that it is very easy to get even an "official" document with a few rupees, but that there is no assurance that the information contained in the document would be truthful. In fact, it seemed obvious that the Minister wanted to get more information starting with this particular affidavit to gather facts regarding the identity of the respondent. The Minister had no obligation whatsoever to take this document and make a finding that will be in the end, determinative of the identity of the respondent.

[36]            In fact, asking the Minister to pursue the validity of this affidavit could be a helpful means to gather information but it is an obvious mistake for any Board member to conclude that a decision on this particular document would be determinative of the identity of the respondent, one way or another.

[37]            The imposition of such a condition in the decision by Board Member Dubé on January 9, 2004 was of itself problematic, and relying on this particular condition to make a decision on a preliminary motion by the Board Member on February 5, 2004 was simply another mistake.

[38]            When we refer to the applicable section of the law, it is obvious that the Minister has the responsibility to decide whether he or she is satisfied with the identity of a foreign national; that does not mean that he or she has the burden to travel around the world to gather information to establish that identity. In my view, there is no doubt that the responsibility to establish the identity of a foreign national rests on the foreign national himself. Obviously, when such foreign national provides documents, the Minister will do whatever he or she can to verify and to become satisfied with the identity of the foreign national. The burden is not displaced from the foreign national to the Minister but the sole responsibility rests with the foreign national. In the case at bar, the foreign national provided on numerous occasions, different information regarding his identity, most of it being fake or fabricated. The fact that he cannot provide a valid document to prove his identity does not mean that he should seek out a third party to testify about his identity; if the respondent did ever live in India, traces should exist about his life over there and it should be relatively easy to find such documents, a responsibility which lies with the foreign national, not the Minister.

[39]            Regarding the responsibility and the duty of the Immigration Division, the Rules are established through sections 244 and 247 and I will not go further than what I have already laid out on that particular point.

[40]            Therefore, I have no hesitation to conclude that Board Member Tordoff made a reviewable error in relying on a condition made in a previous decision which falls outside the jurisdiction attributed under the applicable legislation. The intervention of this Court is justified.

[41]            Given my conclusion on the first issue, it will not be necessary to address the second issue; namely, the possible failure to observe a principle of natural justice. Although, this question remains very important, it would be better addressed in a more appropriate context.

[42]            I have been informed by the parties that the situation has evolved since the decision made on February 5, 2004, that the respondent has been released and that the decision on this judicial review could be moot. Nevertheless, I have no hesitation to conclude that the Board Member erred in law and acted beyond her jurisdiction.

[43]            In my view, the Refugee Protection Division of the Immigration and Refugee Board should act in light of these reasons in their future detention reviews.

[44]            Counsel for the Minister suggests the following questions for certification:

1.        Dans le cadre d'un examen de révision de détention, qui du Ministre de la Citoyenneté et de l'Immigration (ci-après appelé CIC) ou de la Section de l'immigration a compétence pour décider quel type de documents constitue une preuve d'identification valide?

2.        Lorsque l'identité de l'étranger n'est pas prouvée, l'application de l'alinéa 58(1)d) de la Loi par la Section de l'immigration prévoit-il que le fardeau du Ministre de faire des efforts raisonnables est supérieur à celui de l'étranger de coopérer avec le Ministre? Si non, s'agit-il d'un cas d'excès de juridiction révisable par cette Cour?

3.        Est-ce que la Section d'immigration doit tenir compte, à chacune des séances consécutives portant sur la détention d'une personne n'ayant pas établi son identité, des critères prévus à l'article 244 et aux éléments prescrits au paragraphe 247(1) du Règlement (ci-après appelé (RIPR)?

[45]            Counsel for the respondent suggested a serious question which is:

1.        Does an obligation on the part of Immigration Canada to make effort to investigate the identity of detained persons end upon their release?

[46]            In my view, the law and regulations are clear regarding how the identity of a foreign national should be established, and the Board Member made a reviewable error in imposing or applying conditions that had the perverse effect to usurp the responsibility of the Minister clearly established by law and regulations. None of the questions suggested are of general importance, therefore, no questions will be certified.

                                             O R D E R

THIS COURT ORDERS that:

-          This application for judicial review is granted.

-          The decision of the Refugee Protection Division made by Mrs. Diane Tordoff is quashed because she acted beyond her jurisdiction and erred in law.

-          No questions for certification.

                    "Pierre Blais"               

                          J.F.C.

FEDERAL COURT

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                    IMM-1468-04

STYLE OF CAUSE:                 MINISTER OF CITIZENSHIP AND IMMIGRATION v.

RAVINDER SINGH

PLACE OF HEARING:            MONTREAL, QUEBEC

DATE OF HEARING:               OCTOBER 27^th, 2004

REASONS FOR ORDER AND ORDER:    MR. JUSTICE BLAIS     

DATED:                                      NOVEMBER 23, 2004

APPEARANCES:

MRS. DIANE LEMERY                                                        FOR THE APPLICANT

MRS. NATALIYA DZERA                                                   FOR THE RESPONDENT

SOLICITORS ON THE RECORD:

MR. MORRIS ROSENBERG                                             FOR THE APPLICANT

DEPUTY ATTORNEY GENERAL OF CANADA

MRS. NATALIYA DZERA                                                   FOR THE RESPONDENT