Date: 20000925
Docket: IMM-3529-99
BETWEEN:
SELVARAJAH VAIRAMUTHU
PUSHPAKALA SELVARAJAH
RAJINY SELVARAJAH
COWSIYA SELVARAJAH
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant and his common law wife and their two children seek judicial review of a decision of the Immigration Officer dated June 28, 1999 wherein the applicants' application for permanent residence under section 46.04 of the Immigration Act, R.S.C. 1985, c.I-2 was refused.
[2] The issues are whether or not the respondent must issue reasons in deciding if certain documents are satisfactory identity documents under subsection 46.04(8) of the Immigration Act, and whether or not the applicant had a legitimate expectation that the birth certificates he submitted would be accepted unless reasons for the refusal were provided.
[3] The letter dated January 20, 1999 from the Canada Immigration Centre (Mississauga) states:
| Although you were eligible to apply as a Convention refugee, further processing of your application is not possible because the documentation which you submitted, namely birth certificates, do not meet the requirements of subsection 46.04(8) of the Immigration Act. |
There is nothing in the certified copy of the record or any other evidence provided by the respondent that shows why the birth certificates were rejected. The Humanitarian and Compassionate narrative report of January 11, 1999 goes into some detail regarding why other documents submitted by the applicant were not accepted.
[4] The applicant relies on Popal v. Canada (M.C.I.), [2000] F.C.J. 352 (T.D.), where Gibson J. found that reasons were required in a case where the Minister rejected a valid and subsisting passport, as well as other documents pertaining to the applicant's identity. In my view, that case can be distinguished from the one before me, because Parliament has stated that a valid and subsisting passport must be accepted under subsection 46.04(8). In contrast, the wording of the subsection implies that the Minister is given discretionary authority to decide what constitutes a "satisfactory identity document," provided that that discretion is not exercised unreasonably. Subsection 46.04(8) states that:
| An immigration officer shall not grant landing either to an applicant under subsection (1) or to any dependant of the applicant until the applicant is in possession of a valid and subsisting passport or travel documents or a satisfactory identity document. |
The applicant provided birth certificates as proof of identity. Thus, the Minister retains the ability to exercise reasonable discretion in determining whether or not these documents satisfy the requirements of the subsection.
[5] The applicant submitted that the reasons were also required in light of the Department of Citizenship and Immigration's own Operations Memorandum IP97-29, dated December 22, 1997, which states in part that:
| The term "satisfactory identity document" provides the officer making the decision with maximum authority to accept a document that: |
| - is genuine; |
| - pertains to the Convention refugee; and, |
| - provides credible evidence of the person's identity. |
| Where a Convention refugee seeking landing is not in possession of a valid and subsisting passport or travel document, the immigration officer may accept any other document that meets the three-fold test and satisfies the officer with respect to identity. Without limiting the generality of that authority of the officer, the following documents may be accepted: |
The list of documents that follows indicates, inter alia, that a birth certificate may satisfy the inquiry into the applicant's identity.
[6] The applicant submits that he is not arguing that the officer must accept the birth certificate but says that reasons should be offered in the context of a case such as the one before me. However, in my view, the inclusion of "birth certificate" in this memorandum does not constitute a requirement that the officer provide reasons should a birth certificate not be accepted.
[7] In the Humanitarian and Compassionate narrative report, the immigration officer refused to accept several other documents provided by the applicant, including a driver's licence, a national identity card and a sports certificate. The officer decided that these documents do not meet the requirements of subsection 46.04(8). However, while birth certificates are mentioned in the officer's notes, there is no discussion of birth certificates in the "recommendation and rationale" portion of the report, except to note that no birth certificates had been submitted with respect to the children.
[8] In Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, L'Heureux-Dubé J. held at paragraph 43 that, "in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision." That duty will include the requirement to give reasons. The decision in Baker, supra identifies five factors to be used to determine the scope of the duty of fairness: (i) the nature of the decision being made and the process followed in making it; (ii) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (iii) the importance of the decision to the individual or individuals affected; (iv) the legitimate expectations of the person challenging the decision; and (v) the choices of procedure made by the agency itself. The duty of fairness with respect to the context of subsection 46.04(8) does not include the duty to give reasons. The officer has indicated that she does not accept the birth certificates of the parents, and in my view there is no error in doing so. It is not an arbitrary decision. In the circumstances of this case, I do not have to decide whether the absence of the children's birth certificates is a material point.
[9] The decision being made is whether or not landing should be granted under subsection 46.04(8) of the Immigration Act. The applicants are not entitled as of right to landing. The decision not to grant landing under this subsection has some but not a great deal of impact on the applicants. They still enjoy the right to remain in Canada, which is conferred upon them by their Convention refugee status and can have their application reassessed once they produce better proof of identity. They are not barred from making any subsequent landing applications under subsection 46.04(8).
[10] There is no legitimate expectation that landing will automatically be granted, as certain onerous conditions must be satisfied prior to such a decision. The procedures used both to make and to determine subsection 46.04(8) applications do not suggest a higher duty of fairness. I note that in Tewelde v. Canada (M.C.I.), [2000] F.C.J. No. 549 (T.D.), Muldoon J. found that reasons need not be given in the context of subsection 70(5) of the Immigration Act when the person concerned is found to be a danger to the public. In my view, a similar level of discretion is implied in determining what constitutes "satisfactory identification documents." Reasons are not required. I also note that in Popal, supra, the applicants were not told which documents were not satisfactory. In the present case, the applicants were told that the birth certificates they provided were not satisfactory.
[11] A legitimate expectation is created when a decision maker, by word, procedure or action, creates a reasonable expectation on the part of the person concerned that a certain process will be followed in making the decision. This imports a specific process component to the duty of fairness owed by the decision maker and the duty of fairness is breached if that process is not followed.
[12] The doctrine of legitimate expectation is procedural and cannot be used to create a substantive right or interfere with the exercise of a legislative power.
[13] The inclusion of "birth certificate" as an example of what could constitute a "satisfactory identity document" in the aforesaid Operations Memorandum did not create a legitimate expectation that such documents would always be accepted. The Operations Memorandum notes that "the following documents may be accepted." It does not deem that these documents shall be accepted. Parliament has created two different categories in subsection 46.04(8), such that if a person has a valid and subsisting passport or travel document, then the person will have satisfied the identity part of the requirement to become landed. The statements in the Operations Memorandum were merely meant to illustrate what documents may satisfy the criteria for a satisfactory identity document, and cannot be interpreted as saying that the respondent was committing itself to always accept a certain type of document for subsection 46.04(8) purposes. There was no legitimate expectation by the applicants that these birth certificates would be acceptable.
[14] The application for judicial review is dismissed.
[15] The following question will be certified as a serious question of general importance:
| Are reasons required if an application for landing is refused pursuant to s.46.04(8) of the Immigration Act, R.S.C. 1985, c.I-2? |
"W.P. McKeown"
JUDGE
Ottawa, Ontario
September 25, 2000