Date: 20010427
Docket: IMM-2760-00
Neutral Citation: 2001 FCT 394
Between:
MAHMOUD ABOU-AL-RASHTA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J.:
[1] The applicant seeks judicial review of the May 16, 2000 decision of Anna Lombara, an Immigration Officer with Citizenship and Immigration Canada, in which she refused to accept the applicant's identification documents as satisfactory proof of his identity as per subsection 46.04(8) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[2] The applicant is a stateless Palestinian, born in Kuwait. He was granted Convention Refugee status in Canada on May 24, 1994 and immediately thereafter, applied for permanent residence. The applicant was required to provide proof of his identity at the time of his refugee hearing. As most of his identity documents had been destroyed in bombings during the Gulf War in 1990, his proof of identity consisted of a photocopy of his Kuwaiti driver's licence and his oral testimony.
[3] The applicant was again asked to provide a valid passport or other original identity documents in connection with his application for permanent residence. Being stateless, he was unable to provide a passport, however he again provided a photocopy of his Kuwaiti driver's licence. On December 2, 1997, the processing of his application for permanent residence was suspended because of his inability to provide satisfactory original identity documents.
[4] The applicant was advised in a letter dated May 16, 2000 that the documents submitted by him did not meet the requirements of subsection 46.04(8) of the Act.
[5] The letter dated May 16, 2000 from Anna Lombara of the Canada Immigration Centre (Etobicoke) states:
This is in reference to your refugee application for landing which was suspended on 02 December 1997 due to lack of satisfactory identity documents.
You have since submitted affidavits from your mother, brother, Adel Mohamed, and Sameer Mohammed Dost. In addition, two forms from the Palestinian Liberation Organization dated 09/02/2000 and 02/12/1999. A review has been completed of the above-mentioned documentation and we have come to the decision that these documents/affidavits do not meet the requirements of section 46.04(8) of the Immigration Act, as in our opinion these documents do not provide satisfactory proof of your identity.
Unfortunately our case remains suspended until satisfactory evidence of your identity can be provided. . . .
[6] The certified copy of the record includes further reasons by Ms. Lombara for rejecting the identity documents, dated May 16, 2000:
I have reviewed the affidavits submitted by the mother, brother and Adel Mohamed and Sameer Dost as proof of identity. It is my opinion that these do not provide satisfactory evidence of Mr. Abou-Al-Rashta identity. I am not satisfied that these provide any evidence from a third party who have (sic) no interest in the favourable decision of our client's application.
I have also reviewed the two forms form the P.L.O. and I have sought assistance from the visa office just as an additional source of information. It was my opinion that these documents are not satisfactory and with the assistance of the visa office, I have come to the conclusion that these documents do not provide evidence of the identity of our client.
[7] With respect to the original Kuwaiti driver's licence, the respondent states the following in a letter dated December 2, 1997:
The identity document we have in our possession has been seized in accordance with Section A110(2)(c) of the Immigration Act. As you are unable to comply with the identity requirement, we have suspended processing of your application for permanent residence.
[8] The only issue raised by the applicant before me is basically that the appropriate standard of review is reasonableness simpliciter and that the Immigration Officer's assessment of his identity documents was completely unreasonable.
[9] Assuming, without deciding, that reasonableness simpliciter is the appropriate standard of review in this matter, the applicant has nonetheless failed to satisfy me that this Court's intervention is warranted.
[10] The onus is on the applicant to provide evidence that he is who he claims to be. However, the Department of Citizenship and Immigration Canada Operations Memorandum, No. IP97-29, dated December 22, 1997 provides that:
In light of the number of representations and Federal Court cases that have come to the attention of Departmental officials regarding identity documents, officers should keep in mind the following:
[. . .]
2. Officers must consider EVERY piece of documentation that is submitted by an applicant seeking landing. Officers CANNOT summarily dismiss documentation as fraudulent or insufficient without fully considering the document that has been submitted.
[11] The Memorandum indicates that under the "satisfactory identity document" requirement, an officer may accept any document provided that it meets the following three-fold test: it is genuine, it pertains to the Convention refugee and it provides credible evidence of the person's identity.
[12] The Memorandum provides that there may be situations where a statutory declaration may not be sufficient to meet subsection 46.04(8). The level of reliability of such documents may be assessed by the following factors: the level of personal knowledge of the declarant, the relationship to the applicant, any personal interest in the outcome of the application and the extent to which the declaration is based on opinion or inference.
[13] The Immigration Officer in the present matter was not satisfied with the affidavit evidence from the mother, brother and friends of the applicant as they did not provide satisfactory evidence of the applicant's identity and were not provided by a "third party who have (sic) no interest in the favourable decision of our client's application". Although I may have arrived at a different conclusion, I cannot see how this determination is unreasonable.
[14] As for the P.L.O. forms, the Immigration Officer found that they "did not provide evidence of the identity" of the applicant. I take this to mean, and find support for this view from the applicant himself, that the evidence did not satisfy the third prong of the test, namely, that it did not provide credible evidence of identity. This is a reasonable conclusion in light of the correspondence on the issue between the Immigration Officer and the local visa office, which suggests that although that office was not familiar with the P.L.O. forms, such identifications were a subject of debate in Kuwait, as it was felt that the Palestinian Authority had no legal justification to claim any rights for the Palestinians who left Kuwait after the liberation.
[15] In light of the previous conclusions, I cannot conclude that the decision to refuse the poor photocopy of the Kuwaiti driver's licence alone as proof of identity was unreasonable.
[16] Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
April 27, 2001