Judgments

[2000] 3 F.C. 532

IMM-525-99

Nassim Mohammad Popal, Shajan Popal, Wais Ashraf Popal, Abdul Tawab Popal, Qais Aziz Popal and Ali Abdul Wahab Popal (Applicants)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Popal v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Gibson J.—Toronto, February 3; Ottawa, March 17, 2000.

Citizenship and Immigration — Status in Canada — Permanent residents — Principal applicant, citizen of Afghanistan, determined to be Convention refugee — MCI failing to grant him permanent resident status, record of landing document — Also failing to issue immigrant visas to other applicants, to return identity documents seized under Immigration Act, s. 110(2) — No reasons provided as to why identity documentation presented by principal applicant determined to be insufficient — MCI committing reviewable error in processing of application for landing — Also erred in not providing reasons for rejection of identity documents provided by applicant.

Administrative law — Judicial review — Certiorari — Declarations — Applicants seeking certiorari, mandamus to obtain permanent resident status, immigrant visas, return of identification documents — MCI’s course of conduct demonstrating cavalier attitude toward applicants — Court having jurisdiction to entertain application — Minister’s official failing to give reason why identity documents considered inadequate — MCI erred in law in rejecting passport submitted by principal applicant — Immigration Act, s. 46.04(8) speaking only of “valid and subsisting” passport — No explanation, reasons given for rejection of other identity documents — Court granting certiorari, declaratory relief, but mandamus found inappropriate — Question certified in respect of “course of conduct”.

This was an application for judicial review seeking certiorari and mandamus brought against the Minister of Citizenship and Immigration who has failed to grant permanent resident status and a record of landing document to the principal applicant, and to issue immigrant visas to the other applicants, being his wife and children. The Minister has also failed to return to him certain of his identity documents that were seized under subsection 110(2) of the Immigration Act. The principal applicant, who alleges that he is a citizen of Afghanistan, was determined by the Immigration and Refugee Board to be a Convention refugee. After submitting an application for permanent residence under section 46.04 of the Act, he was required, more than a year later, to provide additional identity documents. A passport was issued to him valid from March 11, 1996 to March 10, 1997. In April 1998, the principal applicant was advised that the documentation he had provided and displayed was not satisfactory and that his record of landing would be issued only upon provision of satisfactory identification. His identity booklet and marriage certificate, that had been seized, were never submitted for verification or “feedback” from “Intelligence”. In September 1999, he was granted approval in principle for landing as a member of the undocumented Convention refugee in Canada class (UCRCC). In the meantime, his wife and children, whom he had not seen for more than six years, continued to languish in Pakistan while he was himself waiting in Canada. The issue herein was the action or inaction of the Minister in failing to land the principal applicant under subsection 46.04 of the Immigration Act and, on the basis thereof, to issue immigrant visas to the other applicants.

Held, the application should be allowed in part.

The Minister has demonstrated a remarkably cavalier attitude toward the hardships that the principal applicant and his family members have been enduring. Communication with the principal applicant was less than full and open. Had this application for judicial review not been initiated on behalf of the principal applicant and his family members, many of the potential embarrassments for the Minister’s officials, and perhaps for the Minister herself, might have gone unnoticed. The waiting period for members of the UCRCC was intended to be used to allow identification of non-deserving claimants. The Minister had failed to utilize the waiting period for this purpose, appearing content to respond to the applicants and the Court “when she is ready” and urging that we all “be patient”. There was no doubt that the Court had jurisdiction to entertain this application under section 18.1 of the Federal Court Act and there was no time bar against the applicants seeking relief by way of mandamus, prohibition, declaration and certiorari.

The Minister committed reviewable error in her processing of the principal applicant’s application for landing. During an interview which took place April 20, 1998, the applicant stated that his Afghanistani passport was issued on the basis of his Canadian social insurance card. Upon completion of the interview, he was handed a letter indicating that he had not presented sufficient identification. However, no reasons whatsoever were provided as to why the identity documentation was determined to be insufficient. The grounds on which officials of the Afghan government choose to issue passports is a matter for that government. Subsection 46.04(8) of the Act speaks only of a “valid and subsisting” passport, not a valid and subsisting passport issued on a basis “satisfactory” to the Minister. The latter erred in law in rejecting the passport submitted by the principal applicant for the purposes of subsection 46.04(8). Moreover, she provided no explanation or reasons whatsoever for the rejection of certain of the other identity documentation that was presented by the principal applicant at the April 20, 1998 meeting. As the Supreme Court of Canada said in Baker v. Canada (Minister of Citizenship and Immigration), it would be unfair for a person subject to a decision such as this one which is so critical to the future of the principal applicant and his family members not to be told why the result was reached. The Minister erred in a reviewable manner in not providing reasons for the rejection of the various identity documents provided by the applicant, other than the marriage certificate and identity booklet where reasons were provided.

The decisions of the Minister to reject the valid and subsisting passport of the principal applicant and the various other identity documents submitted by him, other than his identity booklet and marriage certificate, were set aside and referred back to the Minister for redetermination in accordance with law as expeditiously as possible. The Court also ordered the return to the principal applicant of his seized identity booklet and his marriage certificate as they were never submitted for verification and their continued retention by the Minister was not justified. Although quashing “non-decisions” is very close in nature to mandamus, this was not an appropriate case for the granting of such relief. However, a declaration should be granted that the Minister has failed to properly balance the objectives stated in the Act. The Minister’s lack of sensitivity and responsiveness to the interests of the principal applicant and his family members constituted special reasons for awarding the applicant costs fixed at $2,000. A question as to statutory time bars to the granting of certiorari or any other form of relief in respect of a “course of conduct” was certified.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Immigration Act, R.S.C., 1985, c. I-2, ss. 3(f), (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 2), (g),(i),(j), 46.04 (as enacted idem, s. 14; S.C. 1992, c. 49, s. 38), 83(1) (as am. by S.C. 1992, c. 49, s. 73), 110(2) (as am. idem, s. 99; 1995, c. 15, s. 21).

Immigration Regulations, 1978, SOR/78-172, s. 2(1) “member of the undocumented Convention refugee in Canada class” (as enacted by SOR/97-86, s. 1; 99-74, s. 1), Sch. XII (as enacted by SOR/97-86, s. 7; 99-74, s. 4).

CASES JUDICIALLY CONSIDERED

APPLIED:

Krause v. Canada, [1999] 2 F.C. 476 (1999), 19 C.C.P.B. 179; 236 N.R. 317 (C.A.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 11 Admin. L.R. (3d) 1; 43 Imm. L.R. (2d) 117; 226 N.R. 201; amended reasons [1998] 1 S.C.R. 1222; (1998), 11 Admin. L.R. (3d) 130.

REFERRED TO:

Puccini v. Canada (Director General, Corporate Administrative Services, Agriculture Canada), [1993] 3 F.C. 557 (1993), 65 F.T.R. 127 (T.D.); Gassmann v. Canada (Minister of Employment and Immigration) (1990), 36 F.T.R. 105; 11 Imm. L.R. (2d) 149 (F.C.T.D.); Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (1993), 18 Admin. L.R. (2d) 122; 52 C.P.R. (3d) 339; 162 N.R. 177 (C.A.); Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.).

APPLICATION for judicial review of the failure, on the part of the Minister of Citizenship and Immigration, to grant permanent resident status and a record of landing document to the principal applicant, to issue immigrant visas to the other applicants and to return to the applicant certain identity documents that had been seized by the Minister. Application allowed in part.

APPEARANCES:

Dan Miller for applicants.

Marianne Zoric for respondent.

SOLICITORS OF RECORD:

Dan Miller, Toronto, for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Gibson J.:

INTRODUCTION

[1]        These reasons arise out of an application for judicial review of the failure on the part of the respondent, effective February 4, 1999, to grant permanent resident status and a record of landing document to the applicant Nassim Mohammad Popal (the principal applicant) and, effective the same day, the failure of the respondent to issue immigrant visas to the other applicants herein, being the wife and the children of the principal applicant. Further, the principal applicant seeks judicial review of the failure on the part of the respondent to return to him certain of his identity documents that were seized by the respondent.

[2]        The applicants seek the following reliefs:

1.   That the application be allowed, and a writ of certiorari be issued quashing, setting aside, or declaring invalid the non-decision of the Respondent to grant the Applicant Nassim Mohammad Popal his permanent resident status and issue him a Record of Landing document.

2.   That the application be allowed, and a writ of mandamus be issued ordering the Respondent to grant the Applicant Nassim Mohammad Popal his permanent resident status and issue him a Record of Landing document.

3.   That the application be allowed, and a writ of certiorari be issued quashing, setting aside, or declaring invalid the non-decision of the Respondent to issue immigrant visas to the other Applicants herein ….

4.   That the application be allowed, and a writ of mandamus be issued ordering the Respondent to issue immigrant visas to the other Applicants herein ….

5.   That the application be allowed, and a writ of certiorari be issued quashing, setting aside, or declaring invalid the non-decision of the Respondent to return the identification documents of the Applicant Nassim Mohammed Popal, namely, his expired Afghan passport, Afghan driver’s licence, Afghan marriage certificate, and Afghan Identity booklet.

6.   That the application be allowed, and a writ of mandamus be issued ordering the Respondent to return to the Applicant Nassim Mohammad Popal his identification documents, namely, his expired Afghan passport, Afghan driver’s licence, Afghan marriage certificate, and Afghan Identity booklet.

BACKGROUND

[3]        By decision dated November 15, 1994, the principal applicant, who alleges he is a citizen of Afghanistan, was determined by the Convention Refugee Determination Division of the Immigration and Refugee Board to be a Convention refugee as against Afghanistan. Apparently at that time, and at all times since, the principal applicant’s wife and children, the other applicants herein, have been residing in Pakistan under what the principal applicant attests to be “deplorable conditions”. The principal applicant is in his mid-fifty’s. As of March 30, 1999, he was a student here in Canada.

[4]        In December of 1994, the principal applicant submitted an application for permanent residence as a Convention refugee in accordance with the terms of section 46.04 of the Immigration Act.[1] The relevant portions of that section read as follows:

46.04 (1) Any person who is determined by the Refugee Division to be a Convention refugee may, within the prescribed period, apply to an immigration officer for landing of that person and any dependant of that person, unless the Convention refugee is

(a) a permanent resident;

(b) a person who has been recognized by any country, other than Canada, as a Convention refugee and who, if removed from Canada, would be allowed to return to that country;

(c) a national or citizen of a country, other than the country that the person left, or outside of which the person remains, by reason of fear of persecution; or

(d) a person who has 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.

…

(3) Notwithstanding any other provision of this Act, but subject to subsections (3.1) and (8), an immigration officer to whom an application is made under subsection (1) shall grant landing to the applicant, and to any dependant for whom landing is sought if the immigration officer is satisfied that neither the applicant nor any of those dependants is a person described in paragraph 19(1)(c.1), (c.2), (d), (e), (f), (g), (j), (k) or (l) or a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of

(a) more than six months has been imposed; or

(b) five years or more may be imposed.

(3.1) An immigration officer may grant landing under subsection (3) only if

(a) the time normally limited for filing an application for leave to commence an application for judicial review under the Federal Court Act in respect of the Refugee Division’s determination that the person is a Convention refugee has elapsed without such an application having been filed; or

(b) where the Minister has filed an application for leave to commence an application for judicial review under the Federal Court Act within the time normally limited for doing so, a judgment is made in respect of the Refugee Division’s determination by the Federal Court—Trial Division, Federal Court of Appeal or Supreme Court of Canada that finally disposes of the matter.

(4) An immigration officer who grants landing to an applicant pursuant to this section may impose terms and conditions of a prescribed nature in connection therewith.

…

(8) 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 document or a satisfactory identity document.

[5]        The principal applicant’s wife and children, the co-applicants herein, were included in the principal applicant’s application.

[6]        By letter dated January 23, 1996, more than a year after the principal applicant’s application, the principal applicant was advised that he was required to provide additional identity documentation. A copy of a passport was specifically identified as appropriate identity documentation.

[7]        The principal applicant applied through the Afghan Consulate General in New York City for an Afghan passport. A passport was issued to him valid for the period from March 11, 1996 to March 10, 1997. Counsel for the applicant forwarded a notarized copy of the passport to the respondent under cover of a letter dated March 21, 1996.

[8]        By letter dated July 15, 1996, counsel for the principal applicant enquired of the respondent whether any additional documentation was required. In response, by facsimile dated July 22, 1996, the respondent indicated no dissatisfaction with the notarized copy of the principal applicant’s passport and further that:

It appears all we are waiting for are the results of the overseas checks for [the applicant’s] dependants.

[9]        Counsel for the principal applicant made written inquiries of the respondent over the following months on a number of occasions requesting status reports. No response was received until April 9, 1998.

[10]      On April 9, 1998, the principal applicant was advised by the respondent that he was scheduled for a “landing appointment” on April 20, 1998 at the Canada Immigration Centre in Etobicoke, Ontario. The principal applicant attended the scheduled “landing appointment”. He was requested at the appointment to provide “personal identification” before a record of landing would be issued. The principal applicant displayed to the interviewing officer the originals of his now expired Afghan passport, his Afghan driver’s licence with a translation, his Ontario driver’s licence card and his Ontario provincial health insurance card. The principal applicant’s Afghan driver’s licence that he displayed during the landing appointment had been submitted as proof of his identity during his Convention Refugee Determination Division hearing in 1994, and its authenticity had apparently been found to be satisfactory.

[11]      The principal applicant was advised that the documentation he had provided and displayed was not satisfactory. He was requested to obtain other identification documents such as an original marriage certificate or a birth certificate. He was advised that his record of landing would be issued only upon provision of satisfactory identification. This, some 39 or 40 months after his application for landing and more than two years after the notarized copy of the passport was provided to the respondent.

[12]      The principal applicant arranged to have his original marriage certificate and original identity booklet sent by courier from his family in Pakistan. He also arranged to have those documents translated into English. After some delay following the transfer of his file between offices of the respondent, the original of the principal applicant’s expired passport, his Afghan driver’s licence, his marriage certificate with translation, and his identity booklet with translation were provided to the respondent. This was apparently at about the end of July 1998.

[13]      On or about September 14, 1998, the respondent wrote to the applicant to advise that the additional identity documentation he had submitted was not satisfactory, that the respondent was stopping the processing on his immigration file, and that his identity booklet and marriage certificate had been seized pursuant to subsection 110(2) [as am. by S.C. 1992, c. 49, s. 99; 1995, c. 15, s. 21] of the Immigration Act. While the principal applicant’s expired Afghan passport and Afghan driver’s licence were apparently not formally seized, they were not returned to him. Material from the remarkably sparse tribunal record on this application indicates that both the marriage certificate and the identity booklet submitted by the principal applicant

… contain alteration [sic] which render them unacceptable for the purposes of A46.04.

The marriage certificate contains white-out [sic] and write-overs in the age at time of marriage section.

The Identity Document has erasures and overwriting ….

Documents will be seized and forwarded to Intelligence for review and observation.

[14]      Notices of seizure of the principal applicant’s identity booklet and marriage certificate indicate that “feedback” on the seized documents was requested, presumably from “Intelligence”. In the event, the identity documents were never forwarded to “Intelligence” for verification of the respondent’s concerns. Material before the Court indicates that this failure to seek verification or “feedback” was not discovered and disclosed to the principal applicant for many, many months. As late as January 21, 2000, in response to written questions posed to the respondent’s affiant in this matter, the affiant replied:

The documents that were seized were fowarded to our Regional Intelligence Office on September 14, 1998 and feedback was requested as to the erasures and information that was written over the documents. I have not received any feedback to date.

No feedback was received because, in truth, the documents were never submitted for verification or feedback.

[15]      The principal applicant was further advised through a staff member in the office of a Member of Parliament, in early October 1998, about the seizure of his documents and about the respondent’s concerns with those documents. The staff member apparently advised the respondent by letter dated October 28, 1998 that relatives of the principal applicant were willing to attest to his identity. Apparently no response was received. Nonetheless, the principal applicant forwarded to the respondent an affidavit sworn by his brother attesting to the principal applicant’s identity. No acknowledgement of receipt of this affidavit was provided.

[16]      In a response to written questions, the respondent’s affiant disclosed the following text received June 24, 1999 from a visa officer for the respondent at Islamabad:

This refers to your e-mail addressed to Islamabad concerning the above-named [presumably, the principal applicant]. Our file B033894195. Sorry you didn’t quote your file number.

Marriage Certificates in Afghanistan and Pakistan are completed, generally by the “Mullah” who is authorized to perform marriages under the Muslim Law. Mullahs are usually self-selected volunteers who, while they have a good knowledge of the Coran, most are uneducated. To see Nikah Nama (marriage certificate) with erasures and white-out areas is a common occurrence. They are also very often incomplete and contain wrong information, nevertheless they are genuine.

In the case of the Afghans, your client has two more documents than the majority of the Afghans we interview here. Very often, the relationship is established by inquisitive interviews on the knowledge of each other, family photos. For the last 20 years, documents from Afghanistan are almost inexistant. ID cards have no more weight than the word of the applicant.

In this particular case, it is true that we have accepted the documents as submitted. We have no means to verify the authenticity of documents from Afghanistan. The interviewing officer, who is no longer at this post, simply wrote that the relationship was established. The interview was more to determine the eligibility of overaged dependents.

Having said this, this application has been dragging for more than 4 years now and we would like to conclude it as soon as possible. They have been through medical examination twice and the last results are expired: however, should you land the HOF, we will issue visa without further medicals as per A46.04(3).

[17]      The visa officer’s comments disclose that the respondent applies different standards in the determination of satisfactory identification in cases such as this, in different circumstances. I find it of interest to note that, in Islamabad, much closer to the reality of the situation in Afghanistan and Pakistan, the principal applicant’s documentation was found to be much above the average for persons fleeing Afghanistan. A different, and obviously much more stringent standard was applied within the safety and security of the boundaries of Canada.

[18]      On June 22, 1999, more than four months after this application for judicial review was filed, the respondent wrote to the principal applicant, in part in the following terms:

This refers to your application for permanent residence. Although you were eligible to apply as a Convention Refugee, further processing of your application is not possible.

Section 46.04(8) of The Immigration Act states that landing shall not be granted until the applicant is in possession of a valid and subsisting passport, travel document or satisfactory identity document.

The identity document you have submitted does not meet the requirement of 46.04(8) of The Immigration Act. As you are unable to comply with this requirement, we have suspended processing of your application for permanent residence.

…

If, at some time in the future, you feel you are able to comple [sic] with the requirements of 46.04(8), please provide Etobicoke CIC with the original passport, travel or identity document and we will review it.

In addition, the letter advises the principal applicant regarding the undocumented Convention refugee in Canada class (UCRCC) and of the process for applying as a member of that class.

[19]      Whether through the initiative of the respondent or otherwise, the principal applicant became aware that, effective six months before the expiration of 5 years from the date he was determined to be a Convention refugee, he was entitled to apply for landing in Canada as a member of the UCRCC. That class is defined in subsection 2(1) of the Immigration Regulations, 1978[2] in the following terms:

2. (1) …

“member of the undocumented Convention refugee in Canada class” means a Convention refugee

(a) who has been determined to be a Convention refugee, where all rights of appeal and judicial review have been exhausted and a period of five years has elapsed since the date of that determination,

(b) who has not been the subject of a decision of the Refugee Division under subsection 69.3(4) of the Act resulting in the cessation or vacation of the member’s status as a Convention refugee,

(c) whose country of nationality or, if stateless, whose country of former habitual residence is a country, set out in Schedule XII, that is in turmoil and does not have a central authority that can issue identity documents,

(d) who applied to an immigration officer pursuant to subsection 46.04(1) of the Act for landing as a Convention refugee and was not granted landing, in accordance with subsection 46.04(8) of the Act, for the sole reason of not being in possession of a valid and subsisting passport or travel document or a satisfactory identity document, and

(e) who has paid the applicable fees, in respect of the application referred to in paragraph (d), under the Immigration Act Fees Regulations that were in effect at the time the application was made;

The countries identified in Schedule XII to the Immigration Regulations, 1978 [as enacted by SOR/97-86, s. 7; 99-74, s. 4] are Afghanistan and Somalia.

[20]      Without forsaking his efforts to be landed under the provisions of section 46.04 of the Immigration Act, the principal applicant filed an application to be landed as a member of the UCRCC on July 19, 1999, some three months after the time when he was first eligible to file such an application. On September 21, 1999, the principal applicant was granted approval in principle for landing as a member of that class. He remained not landed at the date of hearing of this application, while “background and security checks” are being conducted.

[21]      In the meantime, more than five years after the principal applicant was determined under Canadian law to be a Convention refugee as against Afghanistan, his wife and children, whom he had not seen for over six years as of March 30, 1999, continue to languish in limbo in Pakistan. The principal applicant himself remains in suspended animation in Canada. His children continue to grow older. One of his children is now of an age where he can no longer sponsor that child as a dependant. Another apparently approaches that age.

CONTEXT

[22]      The situation of the principal applicant herein and his family is apparently far from unique although, arguably at least, and certainly in the view of an officer of the respondent’s ministry in Islamabad, it is distinguishable from that of many persons determined to be Convention refugees who find themselves in Canada in similar situations. Certainly not all of those who find themselves in similar situations to the principal applicant will have a spouse, and children who are inexorably aging and therefore losing dependant status in relation to their father, in what the principal applicant describes as “deplorable conditions”, outside of this country. Not all families of similarly situated persons will have been separated in the manner in which this family finds itself.

[23]      A Regulatory Impact Analysis Statement related to amendments to the Immigration Regulations, 1978 that amended the definition “member of the undocumented Convention refugee in Canada class” in 1999[3] provides some insight as to why the UCRCC was developed and the objectives to which it is directed. The Regulatory Impact Analysis Statement reads in part as follows:

Paragraph 114(1)(e) of the Immigration Act allows the Governor in Council to create classes of immigrants and to prescribe landing requirements in regulation in order to grant permanent resident status (landing) to persons on public policy or compassionate or humanitarian grounds. These amendments renew Schedule XII of the Immigration Regulations, 1978, i.e. the country list to which the regulations apply, as well as the sunset clause contained in the Regulations.

The Undocumented Convention Refugees in Canada Class (UCRCC) was created as a class for public policy reasons. The creation of this class allows for the grant of permanent residence to undocumented refugees from specified countries—currently Somalia and Afghanistan. Special provision has been made for citizens of these countries in recognition of the fact that extreme turmoil exists within both countries and that that turmoil has prevented and continues to prevent refugees who are citizens or nationals of Somalia and Afghanistan from complying with the current legislative requirement for passport, travel document or other satisfactory identity document before being granted permanent residence in Canada. In both these cases, the lack of an effective central government has meant that, for some time, no reliable identity documents, in any official form, have been available to citizens or nationals of the two countries.

…

Since there was no exception to the requirement for an identity document, a growing number of Convention refugees who lacked a satisfactory identity document were not granted permanent residence status. Prior to the creation of the UCRCC Class, many faced indefinite and possibly perpetual inability to comply with the requirements for permanent residence status. A refugee lacking a satisfactory identity document could not sponsor the admission to Canada of immediate family members who remain abroad, could never aspire to Canadian citizenship, and would not, as a result, ever become fully integrated into Canadian society. At the time the UCRCC provisions were implemented, it was estimated that there were approximately 7,500 refugees in Canada whose country of origin was Somalia or Afghanistan and who had not been granted permanent residence due to lack of a satisfactory identity document.

It was recognized that the great majority of persons in this situation were genuine refugees who, through no fault of their own, were unable to obtain an identity document from their country of origin due to existence within the country of turmoil to the extent that there was (and still is) no central authority in place able to issue identity documents. It was also recognized that our desire to facilitate landing for refugees from such countries must be balanced with our commitment to protect Canada from the small minority of individuals who would willfully conceal their identity or country of origin, for the purpose of hiding information that could adversely affect their entitlement to protection in Canada. In this regard, UCRCC class applicants are required to make a solemn declaration regarding the accuracy and completeness of the information provided with respect to identity. This declaration confirms that the information is consistent with that provided to the Refugee Division when the refugee claim was made, or identifies and explains any differences between the information provided now and that provided at the time of the refugee claim.

A principal eligibility criterion for UCRCC is the passage of a significant period of time from the date of determination of Convention refugee status. The current waiting period is of five years. As part of new directions for immigration and refugee policy and legislation, announced on January 6, 1999, the government is proposing balanced measures to strengthen the refugee protection system while maintaining the safety of Canadian society, including the reduction of the waiting period for undocumented refugees from five to three years.

The waiting period provides a necessary balance between providing protection to those individuals with a well-founded fear of persecution and safeguarding Canada and Canadians against those individuals who would abuse Canada’s generosity by willfully concealing their identities in order to hide a criminal past or conceal their true country of origin. The waiting period allows the opportunity of detecting, often with the assistance of the communities of which they are members, those with histories of criminality, human rights abuses, or other activities that would exclude them from the benefits to which refugees are entitled under the United Nations Convention relating to the status of Refugees (Geneva Convention). As well the passage of time allows for these refugees to establish their ongoing willingness to respect the laws and norms of Canadian society. Assessment of their conduct during this time in Canada serves as a substitute for the background checks that are normally conducted on all immigrants, including refugees, since background checks are of limited effectiveness when the name of the individual cannot be confirmed or any of the personal information corroborated by official records.

To be eligible for consideration for membership in the class, the person must: have been determined to be a Convention refugee in Canada; have not had his or her Convention refugee determination revoked; be a national of, or, if stateless, a former habitual resident of a country recognized as in turmoil and therefore unable to issue identity documents; have applied for permanent residence under the regular application process in place for persons determined to be Convention refugees; have paid all applicable fees associated with that application; and, not have been granted permanent residence for the sole reason of lack of a satisfactory identity document (for example, there are no serious criminality or security barriers to the granting of permanent residence).

A member of the Class is eligible to include in the UCRCC application for permanent residence only those dependants who were included on the original application for permanent residence and who have resided in Canada since the time of that application. An exception to the requirement that dependants have been residing in Canada since the time of that application is provided for any eligible dependants who came to Canada before the date on which public notice of the Government’s intent to create the Class was given (November 16, 1996). This provision differs from the current rule respecting inclusion of dependants of Convention refugees in applications for landing pursuant to subsection 46.04(1) of the Act. It was introduced in recognition of the fact that these refugees are adversely affected by lack of documentary proof of relationship. Because of the inordinate processing delays that would otherwise result, the non-inclusion of dependants outside of Canada is intended to facilitate the earliest possible conclusion of the application for permanent residence under this class for the member and any dependants in Canada. [Emphasis added.]

COMMENTARY

[24]      Four points from the foregoing quotation from the Regulatory Impact Analysis Statement accompanying amendments to the Immigration Regulations, 1978 as they relate to the definition “member of the undocumented Convention refugee in Canada class” are worthy of note. First, as at the date of the implementation of the UCRCC program, the class in question was not small: it was estimated to include approximately 7,500 refugees in Canada whose country of origin was Somalia or Afghanistan and who had not been granted permanent residence due to a lack of satisfactory identity documents. That number does not reflect the number of dependants both within Canada and outside Canada who had not themselves been found to be Convention refugees. Second, the government was contemplating the reduction of the waiting period for members of the UCRCC from five years to three years. Third, the class hardly benefits dependants outside Canada. Fourth, the waiting period was intended to be used to allow identification of non-deserving claimants. There was no evidence before the Court in this matter to demonstrate that the waiting period had been so used by the respondent in the case of the principal applicant. To the contrary, the respondent would appear to have adopted an entirely passive role throughout the waiting period.

ANALYSIS

[25]      The foregoing background, context and brief commentary on the Regulatory Impact Analysis Statement indicates, to this judge at least, that the respondent has demonstrated a remarkably cavalier attitude toward the hardships that the principal applicant and his family members have been enduring. Communication with the principal applicant would appear to have been less than full and open. Identity documents thought to be less than adequate were never sent for verification when they should have been and were alleged to have been. The difference in philosophy demonstrated in the communication from a visa officer in the respondent’s ministry in Islamabad from the philosophy reflected in the actions or inactions of officers in the same ministry here in Canada appears to have been dramatic. I am left with the firm impression that if this application for judicial review had not been initiated on behalf of the principal applicant and his family members, many of the potential embarrassments for the respondent’s officials, and perhaps indeed for the respondent herself, might have gone unnoticed.

[26]      Despite this application, the process is ongoing. In an affidavit sworn December 10, 1999, the respondent’s affiant attests:

Currently, his [the principal applicant’s] application is pending the results of his security and criminal clearances. The Applicant’s landing will be authorized when the CSIS and RCMP results are received as having been passed. As of the date of this affidavit, the results of the background checks have not yet been received.

[27]      No assurances are provided to the principal applicant, his family members or this Court as to when the CSIS and RCMP “results” might be received. The respondent appears content to respond to the applicants and this Court “when she is ready”. In the meantime, she urges that we all “be patient”. As indicated earlier in these reasons, in the meantime, the principal applicant’s children are aging with the result that more might cease to be eligible for sponsorship to Canada by the principal applicant. The time that the principal applicant and his family members have been separated from one another continues to lengthen. And the respondent continues to hold any identity documents that might conceivably facilitate a reunion, somewhere, between the principal applicant and his spouse and children.

[28]      All of the foregoing being said, it is the action, or inaction of the respondent in failing to land the principal applicant under subsection 46.04 of the Immigration Act and, on the basis thereof, to issue immigrant visas to the other applicants herein that is under review in this application, not the treatment of the principal applicant under the UCRCC and any failure to lay an effective foundation in the five years preceding the principal applicant’s claim to qualify as a member of that class.

Jurisdiction

[29]      Neither party to this application for judicial review, either in written material or through counsel during the hearing, questioned this Court’s jurisdiction to deal with this application for judicial review of what the applicants, in their application for judicial review, described as a “non-decision of the Respondent” and what I, in an earlier decision,[4] described as a “course of conduct”. On the facts of this matter, there were at least three decisions within the context of the “non-decision” or “course of conduct”; two rejections of identity documents prior to the date of filing of the application for judicial review, and a further rejection of an identity document following commencement of the application. Each of the three decisions was carefully described as not being a definitive rejection of the principal applicant’s application for landing under section 46.04 of the Immigration Act.

[30]      I am satisfied that it is now beyond doubt that this Court has jurisdiction to entertain an application such as this under section 18.1 of the Federal Court Act.[5] In Krause v. Canada,[6] Mr. Justice Stone, for the Court, wrote at paragraph 21 [page 491]:

The appellants point out that the drafters of section 18.1 employed language elsewhere in its text which, in their submission, is designed to accommodate an application for both a section 18 remedy per se and such other remedy as is provided for in subsection 18.1(3). Thus in subsection 18.1(1), the words “anyone directly affected by the matter in respect of which relief is sought” appear. The Motions Judge … was of the view that the word “matter” as repeated in former Rule 1602 is “reflective … of the necessity to find a word to cover a variety of administrative actions.” I respectfully agree. Further support for that view was expressed after Bill C-38 which proposed this change was adopted, but before it came into force. Indeed, it seems to me that the word “matter” does embrace not only a “decision or order” but any matter in respect of which a remedy may be available under section 18 of the Federal Court Act. [Citation omitted.]

At paragraph 23 [page 492], Mr. Justice Stone wrote:

In my view, the time limit imposed by subsection 18.1(2) does not bar the appellants from seeking relief by way of mandamus, prohibition and declaration.

Finally, at paragraph 24 [page 492], the Court wrote:

I am satisfied that the exercise of the jurisdiction under section 18 does not depend on the existence of a “decision or order.”

[31]      In summary then, I am satisfied that this Court has jurisdiction to review the “course of conduct” that is before me, and, on the facts of this matter, there is no time bar against the applicants seeking relief by way of mandamus, prohibition and declaration. To this list, I would add certiorari.

Reviewable errors

[32]      The interview of the principal applicant on April 20, 1998 is of critical importance to my determination herein. The only sworn evidence that is before the Court as to what transpired at that interview comes from the principal applicant himself. The interviewing officer’s notes of the interview, contained in the tribunal record, are to the following effect:

Unable to land subject this date as identification presented unacceptable. He presented Afghanistani driver’s license which does not provide proof of citizenship, country of birth or date of birth. He also presented an Afghanistani passport which was issued in New York in March 1996. He stated that this passport was issued on the basis of his Canadian social insurance card. [Emphasis added.]

[33]      The principal applicant attests that he was handed a letter at the close of the interview. A copy of the letter is an exhibit to his affidavit and a further copy appears in the tribunal record. It is a form letter in which “Xs” have been placed in boxes beside the following statements: “You have not presented sufficient identification”; and “Further processing is required.” The letter provides no further explanation or guidance to the principal applicant. More particularly, no reasons whatsoever are provided as to why the identity documentation presented by the principal applicant was determined to be insufficient. This, despite the fact that the form letter provided space for such an explanation.

[34]      As indicated earlier in these reasons, the respondent again wrote to the principal applicant on September 14, 1998. That letter reads in part as follows:

This will acknowledge receipt of the documents you submitted to this office in support of your application for permanent residence. It has been determined that these documents do not meet Immigration requirements in supporting your identity. Moreover, the documents have been seized as per Section 110(2) of the Immigration Act. A copy of the seizure form is attached for your records.

If you subsequently obtain original identity documents, please forward them as soon as possible to this office. In the meantime, your application will be held in abeyance.

[35]      Once again, the identity documents in question are not identified. Further, as noted earlier in these reasons, not all identity documents submitted were seized, and no follow-up or feedback was ever requested with respect to the documents that were seized despite the fact that the “seizure form[s]” indicate that feedback had been requested.

[36]      More than four months after this application for judicial review was filed, the respondent wrote to the principal applicant on June 22, 1999. The relevant portions of that letter are quoted earlier in these reasons.

[37]      As of the date on which this application for judicial review was filed, and continuing through to the date of the hearing of this application before me, I am satisfied that the respondent committed reviewable error in her processing of the principal applicant’s application for landing. For ease of reference, subsection 46.04(8) is repeated here:

46.04 …

(8) 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 document or a satisfactory identity document. [Emphasis added.]

[38]      As noted earlier in these reasons, the principal applicant was advised by letter dated January 23, 1996 that additional identity documentation was required. A copy of a passport was specifically identified as appropriate identity documentation. The principal applicant applied through the Afghan Consulate General in New York City for an Afghan passport and obtained one. It was valid from March 11, 1996 to March 10, 1997. Counsel for the applicant forwarded a notarized copy of the passport to the respondent under cover of a letter dated March 21, 1996, clearly at a time when the passport was “subsisting”.

[39]      At the interview of the principal applicant on April 20, 1998, the principal applicant presented the original of the passport, then no longer “subsisting”, to the interviewing officer. According to the officer’s notes that appear in the tribunal record, the passport was rejected as an identity document, presumably because it was issued “on the basis of [the principal applicant’s] Canadian Social Insurance Card”.

[40]      The bases on which officials of the Afghan government choose to issue passports is a matter for that government. The basis on which the principal applicant’s passport, apparently valid in the view of the Afghani officials in New York, and subsisting at the time the notarized copy of the passport was submitted, might not have been “satisfactory” to officials in the respondent’s ministry, but that is not the test. Subsection 46.04(8) of the Immigration Act speaks only of a “valid and subsisting” passport, not a valid and subsisting passport issued on a basis “satisfactory” to the respondent. The term “satisfactory” in that subsection modifies only “identity document[s]” other than valid and subsisting passports and travel documents. I am satisfied that this interpretation is supported by reference to the french language version of subsection 46.04(8).

[41]      I conclude that the respondent erred in law in rejecting the passport submitted by the principal applicant for the purposes of subsection 46.04(8).

[42]      Further, the respondent provided no explanation whatsoever, at least none that is before the Court, for the rejection of certain of the other identity documentation that was presented by the principal applicant at the April 20, 1998 meeting. The relevant sentence contained in the respondent’s letter to the principal applicant of September 14, 1998 to the effect:

It has been determined that these documents [not identified] do not meet immigration requirements in supporting your identity.

is no explanation or reasons at all. While the respondent might well have had good reasons for rejecting the principal applicant’s Afghan driver’s licence with a translation, his Ontario driver’s licence card and his Ontario provincial health insurance card as “satisfactory identity document[s]”, no explanation or reasons were given. Similarly, no explanation or reasons were given for the rejection of the affidavit of the principal applicant’s brother attesting to the principal applicant’s identity. I am not prepared to accept that the following sentence from the respondent’s letter to the principal applicant of June 22, 1999 amounts to an explanation or reasons:

The identity document you have submitted does not meet the requirements of 46.04(8) of The Immigration Act.

That is not an explanation or reasons. Further, there is nothing to provide any assurance that the reference to “the identity document you have submitted” is a reference to the affidavit.

[43]      In Baker v. Canada (Minister of Citizenship and Immigration)[7], Madam Justice L’Heureux-Dubé, in the context of an application for landing from within Canada on humanitarian and compassionate grounds, wrote at page 848:

In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, … militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached. [Citations omitted.]

[44]      I am satisfied that precisely the same can be said here. To paraphrase the words of Madam Justice L’Heureux-Dubé, it would be unfair for a person or persons subject to a decision such as this one which is so critical to the future of the principal applicant and his family members not to be told why the result was reached. On this basis as well, I am satisfied that the respondent erred in a reviewable manner in not providing reasons for the rejection of the various identity documents provided by him, other than the marriage certificate and identity booklet where reasons were provided.

[45]      In the result, this application for judicial review will be allowed.

RELIEFS

[46]      All of the foregoing being said, there remains an issue as to the relief that this Court is in a position to grant to the principal applicant and his family members.

[47]      The decisions of the respondent to reject the valid and subsisting passport submitted by the principal applicant in support of his application for landing and that of his dependants pursuant to section 46.04 of the Immigration Act and the various other identity documents submitted by him, other than his identity booklet and marriage certificate, are set aside and are referred back to the respondent for redetermination in accordance with law as interpreted in these reasons. Given the time that has elapsed since the original application by the principal applicant and his dependants, the respondent is urged to make the redetermination, and to provide the principal applicant with reasons for the result of the redetermination, as expeditiously as possible.

[48]      I am satisfied the Court can order the return to the principal applicant of his seized identity booklet and his marriage certificate. The seizure of those documents was purportedly effected under subsection 110(2) of the Immigration Act. The relevant portions of that subsection read as follows:

110. …

(2) An immigration officer may

…

(b) seize and hold at a port of entry or any other place in Canada any thing or document if the immigration officer believes on reasonable grounds that that action is required to facilitate the carrying out of any provision of this Act or the regulations; and

While the seizure may have been appropriate as being “required to facilitate the carrying out of any provision of this Act or the regulations”, there is no evidence before the Court that the documents were so used after their seizure given that they were never submitted for verification. In the circumstances, regardless of whatever worth these documents might have to the principal applicant, I can see no justification for the continued retention by the respondent.[8]

[49]      Quashing or setting aside “non-decisions” is very close in nature to mandamus and, for reasons that follow, I am not satisfied that such relief is appropriate here. On the other hand, a form of declaration is I am satisfied, justified.

[50]      Section 3 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 2] of the Immigration Act declares the objectives of Canadian immigration policy. It provides that Canadian immigration policy and the rules and regulations made under the Immigration Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the following needs, among others:

3. …

(f) to ensure that any person who seeks admission to Canada on either a permanent or temporary basis is subject to standards of admission that do not discriminate in a manner inconsistent with the Canadian Charter of Rights and Freedoms;

(g) to fulfil Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted;

…

(i) to maintain and protect the health, safety and good order of Canadian society; and

(j) to promote international order and justice by denying the use of Canadian territory to persons who are likely to engage in criminal activity.

[51]      Clearly there is a balance to be struck between the objectives reflected in paragraphs 3(f) and 3(g) quoted above and those reflected in paragraphs 3(i) and (3)(j). On the facts of this matter, I am satisfied that the balance has been skewed to an unreasonable extent in favour of objectives 3(i) and 3(j) without any evidence being provided to the Court that those objectives have been diligently pursued in dealing with the situation of the principal applicant and his family members. In the result, my decision will include a declaration to the following effect:

It is hereby declared that, on the facts of this matter as summarized in reasons given for this order, the respondent has failed to properly balance the immigration objectives reflected in paragraphs 3(f) and (g) of the Immigration Act with those reflected in paragraphs 3(i) and (j) by failing to diligently and effectively pursue the application for landed immigrant status of the principal applicant, Nassim Mohammad Popal and of the members of his family who are co-applicants in this application, while at the same time failing to act diligently to protect the safety and good order of Canadian society and to promote international order and justice by denying the use of Canadian territory to persons who are likely to engage in criminal activity.

[52]      Relief in the nature of mandamus, beyond what I am prepared to grant regarding return of identity documents, is more problematic. In Apotex Inc. v. Canada (Attorney General),[9] Mr. Justice Robertson, for the Court, described “several principal requirements” that must be satisfied before mandamus will issue. Given the reliefs that I am prepared to provide, against those principal requirements, I am not satisfied that further relief by way of mandamus is here justified.

CONCLUSION

[53]      In the result, I will set aside the decisions of the respondent to reject the valid and subsisting passport submitted by the principal applicant and the various other identity documents submitted by him other than his identity booklet and marriage certificate. Those decisions will be referred back to the respondent for redetermination in accordance with law as interpreted in these reasons. I will order return to the principal applicant of the identity documents submitted by him and still in the respondent’s possession, however suspect they may or may not be. In addition, I will provide a declaration in the terms set out earlier in these reasons.

COSTS

[54]      Counsel for the applicants urged that, on the particular facts of this matter, there can be found special reasons for ordering costs in favour of the principal applicant. Counsel urged that those costs should be fixed in the amount of $4,000. Counsel for the respondent urged that there are no special reasons for an order of costs on this application. I favour the view of counsel for the applicant as to the existence of special reasons. The record before the Court discloses a lack of sensitivity and responsiveness to the interests of the principal applicant and his family members which appears only to have been alleviated, and then only partially and reluctantly, by the institution of this application. That being said, I will order that costs be payable by the respondent to the principal applicant fixed in the amount of $2,000, inclusive of disbursements.

CERTIFICATION OF A QUESTION

[55]      An unsigned copy of these reasons was distributed to counsel who were invited to consider the issue of certification of a question and to provide written representations to be followed by a teleconference if required.

[56]      Counsel for the applicants proposed no question and indicated that he would oppose certification of any question that might be proposed on behalf of the respondent.

[57]      Counsel for the respondent proposed three questions as follows:

1. Does the time bar in ss. 18.1(2) of the Federal Court Act, or ss. 82.1(3) of the Immigration Act, apply so as to bar the grant of relief in the nature of certiorari in an application for judicial review against a “course of conduct”.

2. Is a passport, however issued by an applicant’s country of citizenship, sufficient for the purposes of ss. 46.04(8) of the Immigration Act, or may an immigration officer have reference to the underlying process for issuance in determining whether to accept it for the purposes of the subsection?

3. Is it a reviewable error for an immigration officer to retain documents seized under ss. 110 of the Immigration Act in order to facilitate the carrying out of any provisions of the Immigration Act or Regulations, including the potential future removal of the document holder, and then not to submit those documents for verification where their authenticity may be in doubt?

[58]      It is well established that, in order for a question to be certified pursuant to subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act, it must be a question which transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application. In addition, it must be a question that is determinative of the appeal.[10] More recently, the Supreme Court of Canada has made it clear that where a question is certified, the Court of Appeal is not limited to addressing only the certified question and issues related to it. In Pushpanathan v. Canada (Minister of Citizenship and Immigration),[11] the Supreme Court wrote:

The certification of a “question of general importance” is the trigger by which an appeal is justified. The object of the appeal is still the judgment itself, not merely the certified question.

[59]      Against the foregoing guidance, I am satisfied that the first question proposed on behalf of the respondent, with one modification, warrants certification. Relief in the nature of certiorari is not the only relief that will be granted in this matter and thus, if the question were related only to relief in the nature of certiorari, as proposed on behalf of the respondent, arguably at least, the answer to the question would not be dispositive of an appeal. The words “or any other form” will be added after the word “certiorari”.

[60]      Certification of the first question in effect makes certification of the second and third proposed questions superfluous. That is not to say that I regard the second and third questions as being other than questions of broad significance or general application. But I am concerned that either of the second or third questions would not, of itself, be dispositive of an appeal in this matter. Further, the third question presupposes a purpose in retaining seized documents that had no evidentiary basis before me. There was simply nothing before the Court to indicate that the seized documents that continued to be retained by the respondent at the time of the hearing of this matter were being held to facilitate the potential future removal of the principal applicant. The only purpose for the seizure and detention of the documents disclosed in the evidence before the Court was for purposes of verification of their authenticity.

[61]      For the foregoing reasons, and particularly because certification of more than one question is not required in order for a full argument on an appeal, neither the second nor the third question will be certified.

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