Date: 19980121
Docket: IMM-329-97
BETWEEN:
ABDIRIZAK OSMAN
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
JOYAL, J.
[1] The Court is urged to quash a decision of a Senior Immigration Officer ( "the SIO") made pursuant to section 46.04(8) of the Immigration Act. This statutory provision reads as follows:
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An immigration officer shall not grant landing status either to an applicant under subsection (1) or to any dependant of the applicant until the applicant is in possession of a valid and subsisting passport or travel document or satisfactory identity document. |
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[2] The applicant in this case is a Somalian refugee who, bereft of any passport, travel document or other evidence of his identity, filed with the SIO affidavit evidence from his wife, his sister and his grandmother, all residents of Canada, as well as other pieces of evidence attesting to his identity.
[3] Unfortunately, the SIO was not satisfied with that evidence and on January 7, 1997, decided that the burden imposed on the applicant by section 46.04(8) had not been met.
[4] In his application for judicial review of that decision, the applicant raises several errors therein, namely:
| 1. that there was a lack of fairness in dismissing uncontradicted sworn evidence and in a lack of opportunity to address the SIO's concerns; |
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| 2. that there was no foundation for the officer to declare that since the evidence was entirely self-serving, it thus carried no weight; |
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| 3. that in any event, the decision contained a serious error of fact; and |
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| 4. that the SIO misconstrued the tenor of the enactment in requiring the applicant to provide "conclusive" proof of identity. |
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[5] At the hearing of the application for judicial review, in Toronto on January 6, 1998, all of these grounds were ably and intelligently debated. However, at the end of the hearing, the Court could conclude that the errors in the decision as alleged were not sufficiently material to justify its intervention.
[6] Firstly, the power conferred by section 46.04(8) of the statute is discretionary and, absence bad faith in its exercise, it should not suffer second guessing by a Court. As was said in Shah v. M.E.I.1, there is required evidence that
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the decision maker erred in law, proceeded on some wrong or improper principle or acted in bad faith. It is a heavy burden ... |
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[7] Secondly, any discernable error in the decision must be analyzed in the context of the whole case and the findings or observations made therein. In other words, an error of fact does not necessarily vitiate the decision in its entirely. The error must be sufficiently serious that had it not been for that error, the decision might have been different.
[8] In conclusion and notwithstanding able argument by counsel for the applicant, the highly protected status of a discretionary power must be respected and the application for judicial review must be dismissed.
[9] The debate before me, however, raises another issue. The identify of many refugee claimants is often difficult to establish and there are strong and obvious policy reasons why this problem should be overcome before permanent landing is granted. Furthermore, the situation of many refugees who lack identification is precarious and uncertain, and their movements are geographically restricted, at least for the first five years after refugee status has been conferred.
[10] It seems to me, therefore, that if proper identification must be established, and the result is a purely discretionary one, then the issue should at all times be an open one, giving a refugee more than one opportunity to establish his bona fides.
[11] I trust that the respondent will not feel abused by the foregoing precatory observations.
L-Marcel Joyal
J U D G E
O T T A W A, Ontario
January 21, 1998.
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1 (1995) 170 N.R. 238 (F.C.A.).
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