Ottawa, Ontario, October 2, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant, a Convention refugee and Tibetan citizen of China, had her application for permanent residence denied by an Immigration Officer (Officer) on the grounds that she was an Indian citizen. The Applicant was held to be a member of a prescribed class listed in s. 177 of the Immigration and Refugee Protection Regulations (Regulations). This is the judicial review of that decision.
[2] In the course of this matter, the Applicant brought a motion to require the Respondent to produce those parts of the certified tribunal record which had been excluded on the grounds of solicitor-client privilege. That motion was dismissed for reasons set forth herein.
II. Facts
[3] The Applicant claims that she is a Tibetan citizen of China. She was found to be a Convention refugee on July 23, 1999. The Respondent, who could have participated in the immigration hearing, chose not to do so and did not object to the refugee application. That refugee application was based on the Applicant’s assertion that she is a Tibetan citizen and feared persecution in Tibet.
[4] On November 4, 1999, the Applicant applied for permanent residence. By letter dated March 3, 2006 - 6½ years after her application was filed – the Officer refused to grant the application for permanent residence on the basis that she was a citizen of India, a country other than the one where she feared persecution. The provision at issue, s. 177 of the Regulations, reads:
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177. For the purposes of subsection 21(2) of the Act, the following are prescribed as classes of persons who cannot become permanent residents:
(a) the class of persons who have been the subject of a decision under section 108 or 109 or subsection 114(3) of the Act resulting in the loss of refugee protection or nullification of the determination that led to conferral of refugee protection;
(b) the class of persons who are permanent residents at the time of their application to remain in Canada as a permanent resident;
(c) the class of persons who have been recognized by any country, other than Canada, as Convention refugees and who, if removed from Canada, would be allowed to return to that country;
(d) the class of nationals or citizens of a country, other than the country that the person left, or outside of which the person remains, by reason of fear of persecution; and
(e) the class of persons who have permanently resided in a country, other than the country that the person left, or outside of which the person remains, by reason of fear of persecution, and who, if removed from Canada, would be allowed to return to that country. |
177. Pour l’application du paragraphe 21(2) de la Loi, les catégories réglementaires de personnes qui ne peuvent devenir résidents permanents sont les suivantes :
a) la catégorie des personnes qui ont fait l’objet d’une décision aux termes des articles 108 ou 109 ou du paragraphe 114(3) de la Loi rejetant la demande d’asile ou annulant la décision qui avait eu pour effet de conférer l’asile;
b) la catégorie des personnes qui sont des résidents permanents au moment de présenter leur demande de séjour au Canada à titre de résident permanent;
c) la catégorie des personnes qui se sont vu reconnaître la qualité de réfugié au sens de la Convention par tout pays autre que le Canada et qui seraient, en cas de renvoi du Canada, autorisées à retourner dans ce pays;
d) la catégorie des personnes qui ont la nationalité ou la citoyenneté d’un pays autre que le pays qu’elles ont quitté ou hors duquel elles sont demeurées par crainte d’être persécutées;
e) la catégorie des personnes qui ont résidé en permanence dans un pays autre que celui qu’elles ont quitté ou hors duquel elles sont demeurées par crainte d’être persécutées et qui seraient, en cas de renvoi du Canada, autorisées à retourner dans ce pays. |
[5] The Applicant had entered Canada using an Indian passport which she admitted was false having been secured by bribery. As proof of her Tibetan citizenship, she produced a “green book”, a recognized document establishing Tibetan identity.
[6] In 2003 another immigration official who was handing the Applicant’s permanent residence application became suspicious that the Indian passport was genuine. It would appear that this officer, who had experience in India, embarked on this inquiry more by instinct than evidence. He did so at a time when third parties, including the local MP, were entreating the department to get on with issuing the permanent residence card after a four-year delay.
[7] This official forwarded “tombstone” information to the Canadian Visa Office in New Delhi who then inquired of the Indian authorities as to the genuineness of the passport.
[8] The Government of Indian Regional Passport Office in July or August 2005 stated that the passport was issued after a CID clearance (presumably a police clearance). The advice from the Indian Passport Office contained a caveat that the verification was performed without a photograph.
[9] On November 25, 2005, the Officer advised the Applicant that she was satisfied that the passport was legitimately issued and that the Indian government considered her a citizen of India. The Officer then invited the Applicant to make submissions on the matter.
[10] Prior to receipt of the submissions the Officer went back to the Appeals and Hearings section of the Canadian Border Services Agency (CBSA), the organization responsible for bringing motions to vacate a Board finding that a person was a refugee. The CBSA had earlier advised that there was insufficient evidence to seek to vacate the Board decision because “the genuineness of a passport is not determinative of citizenship”.
[11] Armed with the new information from the Indian Passport Office, the Officer again raised the issue of vacating the refugee finding. The CBSA advised that it would take another look at the file – that was 10 months ago and no follow-up action has been taken.
[12] In response to the Officer’s invitation to make submissions, the Applicant’s then counsel outlined the proper steps to be taken to confirm whether the Applicant is truly a citizen of India including the use of forensic study of the passport and/or submitting the passport itself to Indian authorities for verification. The submissions as to the proper method of verification were supported by affidavit evidence.
[13] Without further inquiry, including affording the Applicant an interview, the Officer confirmed the finding that the Applicant was a citizen of India and refused the application for permanent residence.
III. Analysis
[14] There are three matters which must be addressed in this judicial review:
· the claim of solicitor-client privilege over, principally, e-mails contained in the certified tribunal record;
· the finding that the Applicant is an Indian citizen and is precluded from permanent resident status; and
· the fairness of the process by which the Respondent reached its decision.
A. Solicitor-Client Privilege
[15] The certified tribunal record contained documents for which all or a portion of the information was blacked out on the grounds of solicitor-client privilege. The Applicant brought a motion challenging this claim of privilege.
[16] The motion was filed late but in order to avoid potential adjournment of this judicial review, the Court directed that the matter be heard at regular motions some 10 days in advance of the scheduled judicial review hearing.
[17] The Respondent’s counsel objected to the matter being heard then citing a busy schedule, inability to secure assistance in her office and other personal matters which prejudiced the ability to fully respond to the motion. Therefore, this motion was heard immediately preceding the judicial review.
[18] At the motion hearing the Respondent tendered to the Court and served on the Applicant a letter of the Officer explaining her reasons for claiming privilege including an assertion of litigation privilege as well as solicitor-client privilege. No affidavit evidence was filed. It was curious that there was sufficient time to prepare a letter but insufficient time or unwillingness to file an affidavit.
[19] This procedure of filing a letter from the client unsupported by an affidavit on the day of the hearing is unacceptable practice. The government enjoys no special status as a litigant as regards proof and is bound by the same rules as are private litigants in this Court.
[20] As I advised counsel, the excuse for the postponement of the motion was tenuous and the failure to file an affidavit would be taken as the failure to file any evidence. The Court was left with only the review of the records upon which to base its decision, the Applicant having waived the right to cross-examination so that this matter could proceed as scheduled. Fortunately for the Respondent, the contents of the records over which privilege was claimed was so clearly solicitor-client advice that the Applicant’s motion had to be dismissed.
B. Indian Citizenship
[21] As a general rule, the findings as to citizenship in another country are a factual inquiry for which the standard of review is patent unreasonableness (Adar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 695 (QL)). This was the standard accepted by the parties and the one which the Court will use for its purposes because nothing turns on the standard of review on this issue.
[22] However, in this case, the conclusion that the Applicant was an Indian citizen was based on the conclusion that the passport was genuine and that it was determinative of citizenship under a foreign law. This analysis is clearly a matter of mixed law and fact which should attract a standard of reasonableness simpliciter (Canada (Minister of Citizenship and Immigration) v. Choubak, 2006 FC 521, [2006] F.C.J. No. 661 (QL)).
[23] In reaching her conclusion, the Officer relied on the verification of the Indian passport which came with a caveat from the Indian Passport Office as to the absence of a photograph; clearly an important point if the very subject is raised by the verifying authority. It must have been taken as a warning that any such verification was tentative.
[24] The reliance on this verification is undermined by the affidavit evidence of the Applicant as to the proper procedure for verification as related by an official of the Indian government. The Respondent neither challenged the evidence in cross-examination nor did it file rebuttal evidence.
[25] The Officer’s conclusion is directly contrary to a finding by the Board that the Applicant is a Tibetan refugee and which the CBSA has so far refused to challenge by way of an application to vacate the Board decision. The CBSA specifically concluded that the genuineness of a passport is not determinative of citizenship; a conclusion which is directly at odds with the Officer’s own conclusion.
[26] The Officer’s decision does not address the evidence which contradicts her findings. There is no mention of the Tibetan identity document nor of the conclusions of the Board nor of the CBSA or even the veracity of the Applicant’s story of bribery.
[27] The Respondent filed an affidavit in which the Officer tries to elaborate on what issues she considered. However, the notes in the file and the e-mail traffic being contemporaneous with the events are a more reliable source of evidence and generally lack the ex post facto justification nature of the affidavit. That affidavit is of questionable weight.
[28] In the face of all the other evidence contrary to the Officer’s conclusion and absent better evidence against the Applicant, this decision is patently unreasonable. This patently unreasonable finding is compounded by the manner in which the decision was made.
C. Fairness
[29] The decision is essentially a finding that the Applicant falsely secured refugee status and that her explanation of how she secured an Indian passport is a lie.
[30] At no time was the Applicant confronted with the challenge to her story of how she secured the Indian passport. At the time the Applicant’s counsel was invited to make submissions, the issue raised was the genuineness of the Indian passport - only one aspect of the issue of the Applicant’s citizenship.
[31] It is unfair to now say, as was argued and referred to in the Officer’s affidavit, that counsel should have reiterated the story of the bribery and given further and better details of the event. At no time was the Applicant alerted to a challenge to this facet of the case and nothing in the invitation to make submissions would have reasonably alerted counsel that the matter of the bribery was being challenged.
[32] While an applicant is not entitled to an interview as of right, where the circumstances of fairness dictate that an interview should have been accorded, the failure to do so is a fatal flaw of natural justice and fairness (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[33] In this instance the Respondent was directly challenging the Applicant’s credibility and notice of that challenge and an opportunity to be heard was denied. An interview would have eliminated this breach of natural justice if the Respondent still had an open mind.
[34] However, the record confirms that in this instance, the Officer’s conclusions about the Applicant had been reached prior to any submission, not just in some preliminary fashion. The invitation to make submissions was form over substance. Not only was the Applicant misled as to the issue being challenged, there is little likelihood that any submissions would have altered the ultimate result.
[35] The Applicant asks that the Respondent be ordered to approve the application for permanent residence. That application is almost seven years old and by now the Respondent must have (or should have) considered all the steps for approval. Further, the Respondent has not indicated that there are any other issues which would hold up or prevent the issuance of the necessary authorization. The Court expects that the approval will follow shortly after this decision unless there is some legal impediment to approval.
IV. Conclusion
[36] The application for judicial review will be granted, the decision of the Board must be quashed and the matter remitted to the Respondent for approval within thirty (30) days by a different decision maker without the involvement of the Officer or the other immigration official mentioned in this decision. The Court will remain seized of this matter if either party has difficulty with implementation of this Court’s decision.
JUDGMENT
IT IS ORDERED THAT the application for judicial review is granted, the decision of the Board quashed and the matter remitted to the Respondent for approval within thirty (30) days by a different decision maker without the involvement of the Officer or the other immigration official mentioned in this decision. The Court remains seized of this matter to address any difficulties with implementation of this Judgment.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1728-06
STYLE OF CAUSE: TASHI DOLMA ALAKTSANG
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 27, 2006
APPEARANCES:
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Ms. Geraldine MacDonald
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Ms. Leena Jaakkimainen
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SOLICITORS OF RECORD:
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MS. GERALDINE MacDONALD Barrister & Solicitor Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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