Docket: IMM-3048-15
Citation:
2016 FC 171
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 9, 2016
PRESENT: The Honourable Mr.
Justice Gascon
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BETWEEN:
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AMANDEEP KAUR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Amandeep Kaur, her brother
Parminder Singh and her sister Amanpreet Kaur are Indian citizens. They are also known,
respectively, by the names Sandeep Kaur, Sarabjot Singh, and Mandeep Kaur. In
2001, Ms. Kaur arrived in Canada from Abu Dhabi. She was accompanied by
her parents, her sister, her brother and their younger brother, Balraj Singh.
Before her departure, Canadian authorities issued her a temporary resident visa
in the name of Amandeep Kaur. At the time, Ms. Kaur was a minor child.
[2]
After their arrival in Canada, Ms. Kaur’s
parents applied for refugee status for themselves and their children. Canadian
authorities approved these applications for the mother and the children.
However, Citizenship and Immigration Canada (CIC) then learned that
Ms. Kaur and her 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
approved the application for permanent residence on humanitarian and
compassionate grounds for Ms. Kaur, who was then an adult, on the
condition that she comply with the statutory requirements, i.e., a medical
examination, a criminal record check, and possession of valid identity or
travel documents. However, on June 8, 2015, immigration officer Marie
Géralde Georges (the officer) refused to grant Ms. Kaur permanent resident
status because she had failed to provide the documents required to prove her
identity under section 178 of the Immigration and Refugee Protection
Regulations (SOR/2002227) (Regulations).
[4]
Today, Ms. Kaur is applying for judicial
review of this decision under subsection 72(1) of the Immigration and
Refugee Protection Act (S.C. 2001, c. 27). She specifically
claims that the officer made an error when she insisted that she prove her
identity [translation] “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 Ms. Kaur’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 Ms. Kaur had to meet to prove her identity in her application for
permanent residence.
[6]
For the reasons that follow, Ms. Kaur’s
application for judicial review is allowed because the Court finds that the
officer erroneously invoked and applied the standard of proof that is
applicable in criminal proceedings, namely proof beyond a reasonable doubt, in
her assessment of Ms. Kaur’s identity. It is clear, however, that the
officer should have used and applied the only standard of proof applicable in
civil proceedings, namely the balance of probabilities.
II.
Background
[7]
In her decision, the officer concluded that
Ms. Kaur had failed to provide the authentic identity documents required
under sections 50 and 178 of the Regulations. The officer reviewed all the
documents that Ms. Kaur had sent to Canadian authorities since her
application for permanent residence for humanitarian and compassionate
considerations was approved in February 2013.
[8]
More specifically, in January 2014,
Ms. Kaur had submitted to CIC a solemn declaration, a notarized
declaration from her mother stating that she is her biological child, a copy of
her birth certificate, and a certified copy of the translation of the birth
certificate. Because of the identity fraud committed by Ms. Kaur’s parents, the
officer proceeded with a detailed review of Ms. Kaur’s documents and
submissions. Consequently, Indian authorities advised the officer that the
original birth certificate, which Ms. Kaur had submitted in
September 2014, had been altered and did not match the certificate issued
at the time of her 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 Ms. Kaur was asked on the subject of her passport. She was
not satisfied with Ms. Kaur’s response that she was no longer in
possession of her passport, nor was she satisfied with the explanations
Ms. Kaur gave with respect to the reasons why she could not get her
passport from the Indian Embassy in Canada for the purposes of her refugee
claim. She emphasized that Ms. Kaur had not provided documents supporting
her claim to this effect. The officer therefore did not consider credible
Ms. Kaur’s explanations about the absence of her passport and the
impossibility of obtaining a valid passport. The officer determined that
Ms. Kaur had entered Canada with a passport and visa issued in her true
identity and that her passport had not been seized by a smuggler as alleged,
because her father had kept his. In addition, because she had applied for
refugee protection under a false name, there was nothing to prevent a new
passport from being issued in her real name.
[10]
The officer also noted in her decision that in
March 2015, Ms. Kaur sent her a new birth certificate obtained
through her uncle in February 2015, and the Canadian Embassy in India
confirmed its authenticity. However, the officer also noticed that the document
was issued after Ms. Kaur arrived in Canada and believed that the document
was obtained in order to satisfy immigration authorities and to contradict the
information obtained during the verification of the first birth certificate,
which proved to have been falsified.
[11]
Lastly, the officer gave little weight to
Ms. Kaur’s mother’s solemn declaration attesting to her daughter’s identity
because of the lack of credibility and the previous fraud that her mother had
committed with Canadian authorities in the initial refugee claim.
[12]
After the officer did a complete analysis of the
file, she concluded her decision by stating that Ms. Kaur did not prove [translation] “beyond
a reasonable doubt” that she is indeed Amandeep Kaur and the officer was
thus not satisfied as to her identity.
III.
Analysis
[13]
The Minister argued that based on the officer’s
reasons, it is clear that the burden of proof imposed on Ms. Kaur 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
Ms. Kaur had submitted a falsified birth certificate and did not have the
required documents. The Minister argued that the issue of identity is a crucial
factor in any application for permanent residence and that Ms. Kaur was
simply unable to provide the documents required by Canadian law.
[14]
At the hearing before the Court, the Minister’s
counsel added that the officer’s explicit finding referring to Ms. Kaur’s
failure to prove her identity [translation] “beyond a reasonable doubt” at the end of her reasons
was not a key statement in the decision, qualifying it instead as [translation] “an
unfortunate phrase.” The Minister stated that the officer’s reasons were
enough to prove that she had applied the appropriate legal test in this case,
namely the balance of probabilities. 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 counsel,
even though they were well articulated and presented at 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 mention of the burden of proof is in the very last paragraph of
the decision, in which she specifically states that [translation] “after a complete
review of this file, the applicant has not proved to me beyond a reasonable
doubt that she is Amandeep Kaur.” Such words leave little room for
interpretation.
[16]
This is a blatant error. It is clear that this
is not the burden of proof that applies when assessing the authenticity and
probative value of identity documents required for an application for permanent
residence. In his written submissions and at the hearing, the Minister also
acknowledged that this burden must instead be satisfied according to the
balance of probabilities.
[17]
Of course, as stated in Alam, cited by
the Minister, where the tribunal has articulated “the
gist of the appropriate standard of proof,” the Court will not intervene
(Alam at paragraph 9). However, the Court will remit a matter in
circumstances in which the wrong test has been applied or it is unclear as to
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]
At any rate, Alam was not of great
assistance to the Minister. Justice O’Reilly states therein that when a court
has elevated the standard of proof, or when an excessive burden of proof is
imposed on the applicant, a new hearing should be ordered. He concludes that in
circumstances where the tribunal 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 paragraph 16). Alam involved a
case where the standard of the balance of probabilities seemed to have been
elevated by the tribunal with respect to its application to the facts in this
case. The Court notes that the civil standard still applied and that the issue
in dispute was instead the modification and scope of the burden of balance of
probabilities that the applicant had in fact been required to satisfy.
[19]
However, this case is not one in which the
tribunal articulated the gist of the appropriate standard of proof, but one in
which it misstated how this standard was to be applied. Instead, this is a
situation where the officer clearly used the wrong standard of proof and
thereby imposed on Ms. Kaur an onerous burden of proof that should apply
only in criminal cases. There is no doubt that this standard is inappropriate
for assessing an application for permanent residence and its statutory
requirements and that, in these circumstances, a new hearing is required. The
Court cannot support such a statement made without any qualification or
reservation, nor can it accept the Minister’s counsel’s suggestion to see it as
simply an unfortunate phrase.
[20]
Moreover, the Minister did not provide any
references to excerpts from the decision that could suggest that despite the
clarity of the language used in her conclusion, the officer had in fact applied
the burden of balance of probabilities. Nothing in the decision allows the
Court to find that this statement by the officer is an insignificant blunder
that does not reflect the standard of proof used and that the burden of proof
imposed on Ms. Kaur was in fact less onerous. The Court also disagrees
with the Minister’s opinion that overall, the burden of proof is not a key
factor in the decision because Ms. Kaur made false statements and
submitted falsified supporting documents with her 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 balance of probabilities.
Since the only mention of burden of proof is found at the end of the decision,
everything indicates that this was indeed the legal test applied by the officer
throughout her analysis. The Court has no way of knowing whether, guided by the
burden of proof on a balance of probabilities, the officer would still have
found that the new birth certificate was not sufficient to prove Ms. Kaur’s
identity, or if her assessment of Ms. Kaur’s explanation about her missing
passport or her mother’s credibility would have been different.
[22]
The Court is aware that if it refers the matter
back to CIC, the outcome may be the same after a new review conducted in light
of the civil standard of proof on a balance of probabilities. However, this is
an assessment that CIC must conduct and to which Ms. Kaur is entitled in the
decision regarding her application for permanent residence. Informed by these
reasons of the egregious error committed by the officer and the standard of
proof to be applied, another immigration officer might nevertheless come to a
similar conclusion. However, another officer might also come to a different
conclusion. The Court cannot say that the case leans so heavily against
granting Ms. Kaur’s application for permanent residence that sending the
case back to 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 not applicable to Canadian civil cases.
IV.
Conclusion
[24]
For all of the above reasons, Ms. Kaur’s
application for judicial review must be allowed because the officer used an
improper legal test in finding that Ms. Kaur had not proven her 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.
JUDGMENT
THE COURT ORDERS that:
- The application for judicial review is allowed;
- The decision rendered on June 8, 2015 by immigration
officer Marie Géralde Georges is rescinded;
- The matter is referred back to Citizenship and Immigration
Canada for redetermination by another immigration officer.
- No serious questions of general importance were certified.
“Denis Gascon”
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