Date: 20010525
Docket: IMM-4250-00
Neutral Citation: 2001 FCT 515
Between:
MUKTI ROY KARMA HARAKRISHNA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] The applicant seeks judicial review of a decision of Gail Rowe, an Immigration Officer with Citizenship and Immigration Canada, dated July 21, 2000, in which she refused to continue processing the applicant's application for permanent residence as a Convention refugee on the basis that his passport did not meet the requirements of subsection 46.04(8) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[2] The applicant is a citizen of Bangladesh. He entered Canada in August 1998 and was granted Convention refugee status on May 6, 1999. Upon applying for permanent residence, he was asked to provide a valid and subsisting travel or identification document. He approached the Bangladesh High Commission in Ottawa, who issued him a passport on April 16, 1999. Upon request for further documentation, the applicant sent Immigration Canada his Birth Certificate and Secondary School Examination Certificate. He was notified by letter dated July 21, 2000 that none of these documents "meet the requirements of subsection 46.04(8)" of the Act in that the passport was not "valid and subsisting" and the two other documents were not "satisfactory identity" documents. Consequently, the processing of the applicant's landing was suspended.
[3] The July 21, 2000 letter written by Gail Rowe, Immigration Officer in Vegreville, Alberta Case Processing Centre, states:
This refers to your application for permanent residence. Although you were eligible to apply as a Convention refugee, further processing of your application has not been possible because:
- the birth certificate, secondary school certificate examination and passport that was issued by Ottawa you have submitted does not meet the requirements of subsection 46.04(8) of the Immigration Act. Subsection 46.04(8) states that an immigration officer shall not grant landing until the applicant is in possession of a valid and subsisting passport or travel document or a satisfactory identity document.
Ms. Rowe provides reasons for rejecting the identity documents in her affidavit:
3. In support of his application for permanent residence, the applicant had filed . . ., and a copy of a passport issued in Ottawa on April 16, 1999;
4. When I started to process the applicant's application for permanent residence on August 10, 1999, I noted that the applicant had stated at question 28 of his PIF that he had used a false passport to travel to Canada, and that he had not kept this document. I also noted that at question 29 of his PIF, the applicant did not mention any document which would have been in his possession;
5. I immediately sent a letter to the applicant requesting him to provide CIC with a copy of the documents that he used to obtain his passport, . . .
[. . .]
7. On March 21, 2000, the applicant submitted a birth certificate issued in Bangladesh on September 7, 1998. I noted that this document was issued after the applicant had entered Canada, and that the applicant had not mentioned this document in section D of his application for permanent residence or in response to question 29 of his PIF;
8. The applicant also submitted a school certificate issued in Bangladesh on July 14, 1988. The document was not listed in section D of the applicant's application for permanent residence or in response to question 29 of his PIF;
[. . .]
16. Indeed, the applicant submitted a passport to the name of Mukti Roy Karma Harakrishna. However, two documents he allegedly provided in order to obtain his passport, namely his birth certificate and his school certificate, refer to him as Mukti Roy Karmakar. In his application for permanent residence, the applicant stated that his name was Multi Roy Karmakar Harakrishna whereas in his PIF, he wrote that his name was Multi Roy Karmakar;
[4] The applicant contests the Immigration Officer's decision solely with respect to the passport. He argues that the passport, which was issued by the Bangladeshi High Commission, the official representative of the Bangladeshi government in Canada, is "valid and subsisting".
[5] In contesting the Immigration Officer's rejection of his passport, the applicant relies on the judgment of my colleague Gibson J. in Popal v. Minister of Citizenship and Immigration (March 17, 2000), IMM-525-99 (followed by McKeown J. in Ogunmefun v. Minister of Citizenship and Immigration (August 18, 2000), IMM-2761-99).
[6] The case at bar can be distinguished in that the present fact situation does not require the Court to determine whether an Immigration Officer does or does not have the authority to consider the satisfactory nature of a passport submitted by an applicant as proof of identity. Here, the Immigration Officer was not merely dissatisfied with the manner in which the passport was issued rather, the applicant's identity seemed to be at issue. As such, she actually questioned the passport's validity. The applicant is attempting to use a passport, as proof of his identity, in a name other than the one he claims as his own. Logic dictates that a passport is simply not validly held by a person other than the one to whom it was issued.
[7] Subsection 46.04(1) of the Act provides that any person recognized by the Refugee Division to be a Convention refugee may apply for landing in Canada. However, pursuant to subsection 46.04(8), such an application will not be granted until the applicant "is in possession of a valid and subsisting passport . . ." (my emphasis). It follows that the Immigration Officer's determination with respect to the applicant's passport in this matter was fully within his authority pursuant to subsection 46.04(8).
[8] In the present case, there is certainly some doubt with respect to the name in which the passport was issued. In fact, the name indicated on the passport is "Mukti Roy Karma Harakrishna", while in a request submitted by the applicant to Immigration Canada to amend his Acknowledgement of Convention Refugee Claim, the applicant stated that his correct name was "Mukti Roy Karmakar". Next to Reasons for Your Request, he writes: "Because, my family name is Karmakar, but on the documentation has (sic) Harakrishna".
[9] The onus is on the applicant to provide evidence that he is who he claims to be. In light of the previous observations, I cannot conclude that the decision to refuse the applicant's passport as proof of identity was unreasonable.
[10] Consequently, the application for judicial review is dismissed.
[11] The following question is certified:
Under subsection 46.04(8) of the Immigration Act, may an immigration officer refuse to grant landing to an applicant who submits a passport issued by his country of nationality if he believes that the passport was issued on the basis of false or contradictory identity documents or if he has reasonable doubts as to the applicant's identity?
JUDGE
OTTAWA, ONTARIO
May 25, 2001