Date: 20000921
Docket: IMM-2675-99
BETWEEN:
KHADIJO ADEN ABDULLE
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.:
[1] The applicant seeks judicial review by way of mandamus to compel the respondent to recognize that she has satisfied the respondent as to her identity, pursuant to subsection 46.04(8) of the Immigration Act, R.S.C. 1985, c.I-2, and thereby to compel the respondent to process her application for permanent residence.
[2] The issues are: (i) Whether or not the respondent erred in refusing to accept the applicant's Somalian municipal identity card as proof of her identity; and (ii) Whether or not the respondent processed the matter in accordance with the law.
[3] The applicant had been accepted as a Convention refugee and was then requested to provide proof of her identity. She provided a copy of a Somalian municipal identity card. The original identity card was in the possession of the Fort Erie Immigration office, while her application for landing was being processed through the Vegreville Case Processing Centre.
[4] The applicant presented the affidavit of Abdulkadir Ali, an employee of Midaynta, the Association of Somali Service Agencies (Metro Toronto) [herein "Midaynta"]. At paragraph 17, page 32 of the applicant's Application Record, Mr. Ali states:
| In the Applicant's case, she has a daughter here and her daughter even has a perfectly authentic high school document listing her mother's name. She is an elderly woman so there is no reason to suspect her of being a war criminal, as women had no active role in the Somali military or any of the post-government militias. There is no rational reason why anyone would be pretending to be her, or why her daughter would be caring for her if she were not really her mother. This is a case where an affidavit of identity could assist, if the Vegreville office would accept it. |
[5] Midaynta tried to negotiate a settlement with the Vegreville office based on an affidavit of identity. However, this is not a case where Midaynta is a party and the applicant did not submit an affidavit of identity. The Department of Citizenship and Immigration Operation's Memorandum IP97-29, dated December 22, 1997 states:
| There may well be situations where the statutory declaration is not sufficient to meet 46.04(8). |
However, I do not need to consider this issue any further, as the applicant did not present a statutory declaration regarding identity.
[6] The applicant submits that the reasons given by the immigration officer in refusing to accept the Somalian municipal identity card are irrational or perverse. At page 2 of her affidavit, the immigration officer gives three reasons for her finding that the identity document was not genuine:
| Firstly, the issue date on that document appears to have been date-stamped. Anyone could have stamped that document. |
| Secondly, the print on the document is very different from the rest of the document. Other Somalia identity documents I have seen contain the same type of print. |
| Thirdly, the Applicant did not provide me with the customary cover page for the Somalian Identity Card that I have seen in other cases. It was not the policy of our office to request another office of the Department of Citizenship and Immigration to release documents that have been validly seized from the Applicant and I, in any event, never required the Applicant to produce the original. |
[7] With respect to the first point about the date stamp, it is important to note that the immigration officer admits in cross-examination that she has never seen an original municipal identity card from Somalia and that she has no information as to whether or not the Somalian government had begun to date-stamp identity documents by 1985.
[8] Regarding the concerns about the lack of the customary cover page, it seems to me that the immigration officer could have asked the applicant to have the cover page copied by the Fort Erie office of the Department of Citizenship and Immigration. Alternatively, she could have requested the Fort Erie office to forward the original Somalian municipal identity card to her.
[9] On the facts before me, the finding that the identity card could have been date-stamped by anyone is perverse and capricious. While I agree with the respondent that the applicant should have presented other identity documents that her daughter alleges that she has in her possession, this does not overcome the fact that the findings of the immigration officer with respect to the Somalian municipal identity card are perverse and capricious.
[10] I agree that the onus is on the applicant to provide evidence that she is who she claims to be. As stated in the Department of Citizenship and Immigration Operations Memorandum IP97-09, dated April 4, 1997:
| Officers cannot fetter their discretion by refusing to consider information presented. There is no document or documents which are categorically unacceptable as meeting the requirement of a satisfactory identity document - each must be evaluated on its individual merits on a case by case basis and in consideration of the other known facts of the application. |
[11] The Vegreville Case Processing Centre sent a letter to the applicant on December 8th, 1998. The respondent suggests that this letter served as notice to the applicant to submit a new copy of the identity card cover page. The letter states:
| Although you were eligible to apply as a Convention refugee, further processing of your application has not been possible because: - the Somalian Identity Card documentation 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. |
| If, at some time in the future, you obtain further documentation regarding your identity you should send a copy to this office for consideration. |
In my view, this letter does not indicate that the applicant should submit a new copy of the cover page.
[12] This is a classic example of a case where both parties have attempted to provide as little information to the other party as possible while staying within the strict requirements of the law. I am sending this matter back to the Vegreville Case Processing Centre to be heard by a different immigration officer. The Vegreville office shall request the original Somalian municipal identity card from the Fort Erie office. The applicant shall file an affidavit of identity and such other documents as are in her possession which may assist the immigration officer in deciding on her identity. The review by the immigration officer of the Somalian municipal identity card shall be in a manner not inconsistent with these reasons. The additional identity documents provided by the applicant shall be considered by the immigration officer. This is not an appropriate case for mandamus in light of the conduct of both parties.
[13] The application for judicial review is allowed and the Case Processing Centre shall determine whether or not the applicant has satisfied the requirements of subsection 46.04(8) of the Immigration Act, R.S.C. 1985, c.I-2., after reviewing the original Somalian municipal identity card and all additional documents submitted by the applicant in accordance with these reasons.
| "W.P. McKeown" |
JUDGE
Ottawa, Ontario
September 21, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2675-99 |
| STYLE OF CAUSE: KHADIJO ADEN ABDULLE |
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| DATE OF HEARING: TUESDAY, AUGUST 29, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: McKEOWN J. |
DATED: September 21, 2000
| APPEARANCES BY: Mr. Raoul Boulakia |
| For the Applicant |
| Ms. Cheryl Mitchell |
For the Respondent
| SOLICITORS OF RECORD: Raoul Boulakia |
Barrister and Solicitor
45 Saint Nicholas Street
Toronto, Ontario
M4Y 1W6
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000921
Docket: IMM-2675-99
BETWEEN:
| KHADIJO ADEN ABDULLE |
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |