Date:
20130423
Docket:
T-1369-12
Citation: 2013
FC 419
Toronto, Ontario, April 23, 2013
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
|
|
PUWANENDRAN SATHASIVAM,
SAKUNTHALATHEVY EHAMPARAM,
NISHANTH PUVANENDRAN
|
|
|
|
Applicants
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicants seek judicial review of a decision of the Director, Investigations
Division, Security Bureau of Passport Canada dated June 12, 2012; wherein it
was determined that the passport issued to Nishanth Pavanendran would be
revoked and passport services, save for urgent, compelling and compassionate
reasons, would be refused to the Applicants for a period of five years; that
is, until October 16, 2016.
[2]
For
the reasons that follow, I have determined that the application will be
dismissed with costs.
[3]
The
Applicants are a family; Puwanendran Sathasivam, is the father/husband;
Sakunthalathevy Ehamparam, is the mother/wife; and Nishanth Puvanendran, is the
son who at the material time was about eleven (11) years old.
[4]
It
appears that the husband and wife were, in the fall of 2011, in possession of
valid Canadian passports. They applied for a passport for their son on an
urgent basis. The son received this passport on September 21, 2011.
[5]
Within
a few weeks, a person pretending to be the son attempted to enter Canada using the son’s passport. This person said that the passport had been handed over at
the airport in Canada to a “white man” and has not been seen since. That
passport had not been reported by the Applicants as lost or stolen. In an
affidavit submitted by the mother to Passport Canada, she attested that the
son’s passport had been placed in a “pigeon whole” in the father’s vehicle from
where it “may” have been lost or stolen, or taken.
[6]
There
is no evidence that the son ever used the passport, or why the parents
requested that the passport be issued on an urgent basis.
[7]
In
January 2012, the father and mother on separate days applied to have their
passport renewed. At that time, there was no report made by them that the son’s
passport had been lost or stolen. On January 30, 2012, Passport Canada wrote to the mother raising their concern as to possible misuse of the son’s
passport and requesting submissions and a statement under oath addressing those
concerns. In part, the letter said:
Our investigation thus far has revealed the
following:
On September 21, 2011, you and your husband appeared
at Passport Canada’s Scarborough office and submitted a passport application in
the name of your son, Nishanth Puvanendran. Your signature appears in the
Applicant section on this passport application form. Additional fees were paid
to ensure that the passport would be produced quickly. Based on this
application,, passport QB849626 was issued in the name of your son on September
27, 2011, and the passport was picked up at the Scarborough office on September
29, 2011. By signing as the applicant on the application form in the name of
your son, you are responsible for the care and control of the passport.
Passport Canada has received information from the
Canada Border Services Agency (CBSA), indicating that on October 16, 2011, an
imposter entered Canada illegally at the Pearson International Airport in Toronto, having arrived on Air Canada flight 879 from Zurich. According to flight
records, this individual used Canadian passport QB849626, issued in the name of
your son, to board the flight. The CBSA also reports that the ticket used by
the imposter was purchased on October 11, 2011, from a travel agency in Scarborough. CBSA officials also confirmed that they have no record of any other travel for
passport QB849626. Passport QB849626 has not been reported lost or stolen to
Passport Canada to date. CBSA officials also report that the document was not
recovered from the imposter upon his arrival.
Reviewing this file, the Division notes that:
•
you
and your husband paid additional fees to have a passport in your son’s name
produced quickly,
•
eleven
days after receiving the passport, tickets were purchased in your son’s name
that were later used by an imposter
•
the
imposter travelled to Canada using passport QB849626 less than three weeks
after it was issued,
•
the
passport has not been declared lost or stolen, and
•
the
only record of passport QB849626 being used was by an imposter.
Given this information, the Division finds on a
balance of probabilities test that you allowed passport QB849626, issued in the
name of your son, to be used by another individual.
[8]
The
Applicants responded by a letter from their solicitor, accompanied by
affidavits of the father and mother.
[9]
On
April 23, 2012, Passport Canada wrote to the Applicants’ solicitor
acknowledging receipt of the submissions, and stating that the submissions did
not present any new information such as would require further investigation.
That letter indicated that a decision to refuse passport services for a
five-year period would come soon. No further submissions were made on behalf of
the Applicants.
[10]
On
June 12, 2012, Passport Canada sent a further letter to the Applicants’
solicitor. This is the decision at issue. In part that letter states:
After a thorough review of all the information
gathered throughout the investigation and your submissions it has been
determined that there is sufficient information to support a conclusion that
Mr. Sathasivam allowed another person to use passport QB849626 issued in the
name of his son Nishanth Puvanendran.
•
Your
client and his wife presented themselves at a Passport Canada office in Scarborough on September 21, 2011 and submitted a passport application in the name
of their son Nishanth Puvanendran with a request for urgent service. Your
client signed as the co-applicant on his son’s passport application and as
such, is responsible for safeguarding the document.
•
On
October 16, 2011, less than three weeks after the passport was issued, an
imposter entered Canada illegally using Canadian Passport QB849626 issued in
the name of your client’s son. The passport was not reported lost or stolen at
that time.
•
Your
client explains that the passport in question was kept in his car and had
gotten lost unbeknownst to him. I find it highly unlikely that a passport
issued upon submission of an urgent request for passport service, would go
missing without your client’s knowledge.
•
Your
client has not been able to provide a reasonable and plausible explanation as
to how a passport issued in his son’s name on September27, 2011, was used by
another individual on October 16, 2011, to travel from Zurich to Toronto, on a ticket purchased from a travel agency in Scaraborough, Ontario.
Given the aforementioned, it is important to note
that criminal proceedings are separate from any action taken by Passport Canada. As previously mentioned, Passport Canada does not seek long term sanctions against
children in these cases. Therefore, the decision is to revoke passport QB849626
issued in the name of your client’s son Nishanth Puvanendran, under section
10(2)(c) of the Canadian Passport Order, SI/81-86, as amended (the Order), and to
impose a period of refusal of passport services on your client until October
16, 2016, pursuant to section 10.2 of the Order. The duration of refusal of
passport services, which is usually five years, has been computed to correspond
with the date passport QB849626 was misused, which was October 16, 2011. This
reflects the seriousness with which we regard passport abuse, misuse or
misinformation in the context of entitlement to passport services.
[11]
The
Applicants seek to have that decision set aside and returned for
redetermination.
[12]
The
issues raised for determination by this Court are:
1. What
is the standard of review?
2. Does
Passport Canada have the power to revoke the passport of the child in these
circumstances?
3. Does
Passport Canada have the power to refuse passport services to the parents for a
limited period of time in these circumstances?
4. Was
the decision reasonable?
5. Was
Passport Canada wrong in not holding a hearing nor disclosing the identity of
the imposter to the Applicants?
1. What
is the standard of review?
[13]
The
question as to whether or not Passport Canada has the authority to impose a
particular sanction is to be reviewed on the standard of correctness (Hrushka
v Canada (Minister of Foreign Affairs), 2009 FC 69 at para 13). If it did
have such authority, then the exercise of that authority is to be reviewed on
the standard of reasonableness (Kamel v Canada (Attorney General), 2008
FC 338, at paras 58 – 59).
2. Does
Passport Canada have the power to revoke the passport of the child in these
circumstances?
[14]
This
issue is to be determined on the standard of correctness.
[15]
The
affidavit of Hubbard, as filed by the Respondent, including the
cross-examination conducted in writing by the Applicants’ solicitor, sets out
some of the history respecting passports issued to children. Critical to the
issuance of Canadian passports is the Canadian Passport Order, a federal
Regulation respecting the issuance of passports. The Order as it was
published in the Canada Gazette in 1981, P.C. 1981-1472, 4 June 1981, section 7
provided that where a child had not attained sixteen years of age, that child’s
name could be entered in the passport of one of the child’s custodial parents
or legal guardian. No separate passport would be issued to the child. That was
the circumstance in Hrushka, supra.
[16]
In
December 2001, an Order was published in the Canada Gazette amending the Canadian
Passport Order, P.C. 2001-2277. That amendment changed the provisions of
section 7 of the Order such that an “applicant” who was a custodial parent
of a child under sixteen years of age could apply to have a passport issued to
the child. The passport, once issued, was to be delivered to the parent, who
was requested to review it to ensure that the information is correct; and, if
not, to notify Passport Canada.
[17]
The
Canadian Passport Order was further amended in 2004, and again in 2009
and 2012. The Order as it was in place during the relevant period in
2012, provided that Passport Canada could revoke a passport in circumstances, inter
alia, where the person permits another person to use a passport, and
includes the power not only to revoke, but also to impose a period of refusal
of passport services. I repeat sections 10(2)(c) and 10.2 of the Order:
|
10.
(2) In addition, Passport Canada may revoke the passport of a person who
. . .
(c)
permits another person to use the passport;
. . .
10.2
The authority to make a decision to refuse to issue or to revoke a passport
under this Order, except for the grounds set out in paragraph 9(g), includes
the authority to impose a period of refusal of passport services.
|
10.
(2) Il peut en outre révoquer le passeport de la personne qui :
. . .
c)
permet à une autre personne de se servir du passeport;
. . .
10.2
Le pouvoir de prendre la décision de refuser la délivrance d’un passeport ou
d’en révoquer un en vertu du présent décret, pour tout motif autre que celui
prévu à l’alinéa 9g), comprend le pouvoir d’imposer une période de refus de
services de passeport.
|
[18]
The
Order, therefore, is quite clear; Passport Canada may revoke “the
passport of a person” that permits another person to use the passport. Thus, on
the basis of correctness, Passport Canada has the authority to revoke the
passport of a child. The question as to whether, in the circumstances of this
case, it did so properly, is to be determined on a standard of reasonableness.
This will be considered in dealing with the fourth issue.
3. Does
Passport Canada have the power to refuse passport services to the parents for a
limited period of time in these circumstances?
[19]
Subsection
10.2 of the Order as set out above gives Passport Canada the power:
•
to
refuse to issue a passport
•
to
revoke a passport
•
to
impose a period of refusal of passport services.
[20]
The
first two powers are specific to “a passport” or an application for “a
passport”. The third is more broadly stated; it is a refusal of “passport
services”. Subsection 10.2 does not specifically state to whom passport
services are to be refused.
[21]
The
Interpretation Act, RSC 1985, c. I-21, is of assistance. Section 12
provides that enactments are to be deemed to be remedial and to be given such
fair, large and liberal construction and interpretation as best ensures the
attainment of its objects. The Canadian Passport Order, as previously
discussed, originally provided that the name of a child under sixteen years of
age could be inserted into the passport of one of the child’s parents. The Order
was amended so that a parent would have to apply for a separate passport for
the child. The passport was that of the child, but the applicant was one or
both of the parents.
[22]
Therefore,
the proper interpretation of the Order, as amended, is that “passport
services” are those provided to the applicant parent or parents in the case of
a child that is under sixteen years of age. If those parents are seen to be
abusing the passport system in the misuse of the child’s passport, it would be
a correct to interpretation of the provisions of the Order that Passport
Canada has the power to withhold passport services rendered to the parents.
[23]
A
passport remains the property of Her Majesty in Right of Canada (Order,
subsection 3(c)). As stated in Okhionkpanmwonyi v Canada (Attorney General),
2011 FC 1129, at paragraph 6, that while the Canadian Charter of Rights and
Freedoms affords a right to enter and leave Canada - a right which is
facilitated by a passport - misuse of a passport such as the facilitation of
its misuse by imposters to seek entry into Canada, is not to be tolerated.
[24]
A
correct interpretation of subsection 10.2 of the Order is that Passport
Canada may refuse passport services for a period of time to a person, such as a
parent, who has applied for a passport for a child; which passport has been
misused.
4. Was
the decision reasonable?
[25]
I
have determined that a correct interpretation of the relevant provision of the Canadian
Passport Order is that Passport Canada can revoke the passport issued to
the child and can refuse passport services, for a period of time, to the
parents who applied for that passport. Was the decision to do so in this case
reasonable?
[26]
Having
reviewed the record, I am satisfied that the decision at issue was reasonable,
given the fact that the parents applied for the child’s passport on an urgent
basis; and when subsequently asked, provided no good explanation as to the
urgency; and, given that only a few weeks later, the passport turned up in the
hands of an imposter trying to enter Canada; and, given that the parents did
not report the passport lost or stolen, and only subsequently opined that it
“may” have been lost or stolen from a “pigeon whole” in the father’s vehicle; I
conclude that it was reasonable for Passport Canada to determine that the
child’s passport should be revoked; and that, for a period of five years,
passport services should be denied to the parents. Even then, the parents were
told that if circumstances such as compassionate circumstances arose, they may
apply for temporary services.
5. Was
Passport Canada wrong in not holding a hearing nor disclosing the identity of
the imposter to the Applicants?
[27]
The
Applicants were given at least two opportunities to respond to the concerns of
Passport Canada. Their responses were unsatisfactory. There is no requirement
in the Order nor in any other pertinent legislation or regulation that a
hearing be held. The Applicants, in any event, made no request for a hearing.
[28]
The
identity of the imposter is irrelevant to the issues raised. There was no need
to disclose that identity. I repeat what Justice Gleason of this Court wrote in
Slaeman v. Canada (Attorney General), 2012 FC 641 at paragraph
37:
37 Kamel did not decide that Passport Canada must disclose every matter it inquires into or even that it must disclose every
document that it provides to the decision-maker. Rather, it held that Passport Canada must disclose to both the decision-maker and the individual under investigation all
the information it gathered that is relevant to the determination to be made.
Arguably, the above-cited passages from Kamel may go slightly further and provide
that any information given to the decision-maker must also be provided to the
applicant, even if it is immaterial. However, the need to disclose immaterial
information was not squarely addressed in Kamel as the case concerned a highly
relevant and prejudicial report that was provided to the Minister - but not to
Mr. Kamel - which played a central role in the Minster's decision to
permanently suspend passport services for Mr. Kamel. In my view, Justice Noël's
comments regarding what must be disclosed by Passport Canada should be read
bearing these facts in mind, and, accordingly, do not stand for the proposition
that it is a breach of natural justice for Passport Canada to fail to disclose
irrelevant documents that it might send to the adjudicator. While it might be a
more prudent practice for Passport Canada to provide identical disclosure to
the adjudicator and the individuals under investigation (and thereby ensure it
would be immune from challenges of this nature), in my view, there is no breach
of natural justice where, as here, buried in the file forwarded to the
adjudicator there are a few irrelevant facts that were not disclosed to the
individuals under investigation.
CONCLUSION
[29]
Therefore,
the application for judicial review will be dismissed, with costs, which I fix
at $2,000.00.
JUDGMENT
FOR
THE REASONS PROVIDED:
THIS
COURT ADJUDGES that:
1.
The
application is dismissed; and
2.
The
Respondent is entitled to costs in the sum of $2,000.00.
"Roger T.
Hughes"
Email this Content