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.
| 55. (1) An officer may issue a warrant for the arrest and detention of a permanent resident or a foreign national who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.55(2) Arrest and detention without warrant (2) An officer may, without a warrant, arrest and detain a foreign national, other than a protected person, (a) who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); or (b) if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act. 55(3) Detention on entry (3) A permanent resident or a foreign national may, on entry into Canada, be detained if an officer (a) considers it necessary to do so in order for the examination to be completed; or (b) has reasonable grounds to suspect that the permanent resident or the foreign national is inadmissible on grounds of security or for violating human or international rights. 55(4) Notice (4) If a permanent resident or a foreign national is taken into detention, an officer shall without delay give notice to the Immigration Division. |
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55. (1) L'agent peut lancer un mandat pour l'arrestation et la détention du résident permanent ou de l'étranger don't il a des motifs raisonnables de croire qu'il est interdit de territoire et qu'il constitue un danger pour la sécurité publique ou se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi. 55(2) Arrestation sans mandat et détention (2) L'agent peut, sans mandat, arrêter et détenir l'étranger qui n'est pas une personne protégée dans les cas suivants_: a) il a des motifs raisonnables de croire que celui-ci est interdit de territoire et constitue un danger pour la sécurité publique ou se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2); b) l'identité de celui-ci ne lui a pas été prouvée dans le cadre d'une procédure prévue par la présente loi. 55(3) Détention à l'entrée (3) L'agent peut détenir le résident permanent ou l'étranger, à son entrée au Canada, dans les cas suivants_: a) il l'estime nécessaire afin que soit complété le contrôle; b) il a des motifs raisonnables de soupçonner que celui-ci est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux. 55(4) Notification (4) L'agent avise sans délai la section de la mise en détention d'un résident permanent ou d'un étranger.
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[8] Section 58 of the Act requires the Immigration Division to release a person in detention unless it is satisfied of certain facts:
| 58(1) Release - Immigration Division 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or for violating human or international rights; or(d) the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity. 58(2) Detention - Immigration Division (2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada. 58(3) Conditions (3) If the Immigration Division orders the release of a permanent resident or a foreign national, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions. |
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58(1) Mise en liberté par la Section de l'immigration 58. (1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants_: a) le résident permanent ou l'étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2); c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l'étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux; d) dans le cas où le ministre estime que l'identité de l'étranger n'a pas été prouvée mais peut l'être, soit l'étranger n'a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l'identité de l'étranger. 58(2) Mise en détention par la Section de l'immigration (2) La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi. 58(3) Conditions (3) Lorsqu'elle ordonne la mise en liberté d'un résident permanent ou d'un étranger, la section peut imposer les conditions qu'elle estime nécessaires, notamment la remise d'une garantie d'exécution. |
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[9] Section 244 of the Regulations provides that:
| 244. For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person (a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act; (b) is a danger to the public; or c) is a foreign national whose identity has not been established. |
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244. Pour l'application de la section 6 de la partie 1 de la Loi, les critères prévus à la présente partie doivent être pris en compte lors de l'appréciation : a) du risque que l'intéressé se soustraie vraisemblablement au contrôle, à l'enquête, au renvoi ou à une procédure pouvant mener à la prise, par le ministre, d'une mesure de renvoi en vertu du paragraphe 44(2) de la Loi; b) du danger que constitue l'intéressé pour la sécurité publique; c) de la question de savoir si l'intéressé est un étranger don't l'identité n'a pas été prouvée. |
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[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:
| 247. (1) For the purposes of paragraph 244c), the factors are the following: (a) the foreign national's cooperation in providing evidence of their identity, or assisting the Department in obtaining evidence of their identity, in providing the date and place of their birth as well as the names of their mother and father or providing detailed information on the itinerary they followed in travelling to Canada or in completing an application for a travel document; (b) in the case of a foreign national who makes a claim for refugee protection, the possibility of obtaining identity documents or information without divulging personal information to government officials of their country of nationality or, if there is no country of nationality, their country of former habitual residence; c) the destruction of identity or travel documents, or the use of fraudulent documents in order to mislead the Department, and the circumstances under which the foreign national took that actions; (d) the provision of contradictory information with respect to identity at the time of an application to the Department; and (e) the existence of documents that contradict information provided by the foreign national with respect to their identity. |
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247. (1) Pour l'application de l'alinéa 244c), les critères sont les suivants : a) la collaboration de l'intéressé, à savoir s'il a justifié de son identité, s'il a aidé le ministère à obtenir cette justification, s'il a communiqué des renseignements détaillés sur son itinéraire, sur ses date et lieu de naissance et sur le nom de ses parents ou s'il a rempli une demande de titres de voyage; b) dans le cas du demandeur d'asile, la possibilité d'obtenir des renseignements sur son identité sans avoir à divulguer de renseignements personnels aux représentants du gouvernement du pays don't il a la nationalité ou, s'il n'a pas de nationalité, du pays de sa résidence habituelle; c) la destruction, par l'étranger, de ses pièces d'identité ou de ses titres de voyage, ou l'utilisation de documents frauduleux afin de tromper le ministère, et les circonstances dans lesquelles il s'est livré à ces agissements; d) la communication, par l'étranger, de renseignements contradictoires quant à son identité pendant le traitement d'une demande le concernant par le ministère; e) l'existence de documents contredisant les renseignements fournis par l'étranger quant à son identité. |
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[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 22nd 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 30th, 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 27th, 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