Digests

Vairamuthu v. Canada (Minister of Citizenship and Immigration)

IMM-3529-99

McKeown J.

25/9/00

7 pp.

Judicial review of refusal of application for permanent residence under Immigration Act, s. 46.04--S. 46.04(8) providing immigration officer shall not grant landing until applicant in possession of valid and subsisting passport or travel documents or satisfactory identity document--Applicant provided birth certificates as proof of identity--Further processing of application refused because birth certificates not meeting requirements of s. 46.04(8)--No other evidence provided as to why birth certificates rejected--Department of Citizenship and Immigration's Operations Memorandum IP97-29 including birth certificates in list of documents possibly satisfying inquiry into applicant's identity--Applicant submitting duty of fairness requiring reasons be provided for deciding certain documents not satisfactory; legitimate expectation birth certificates would be accepted unless reasons for refusal provided--Application dismissed--Popal v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 532 (T.D.), wherein Gibson J. found reasons required where Minister rejected valid, subsisting passport and other documents pertaining to applicant's identity, distinguished because Parliament stating valid, subsisting passport must be accepted under s. 46.04(8)--Also in Popal applicants not told which documents not satisfactory--Minister retaining ability to exercise reasonable discretion in determining whether birth certificates satisfying requirement of s. 46.04(8)--Inclusion of birth certificate in Memorandum not constituting requirement officer provide reasons why birth certificate should not be accepted--Application of factors to determine scope of duty of fairness, including provision of written explanation for decision in certain circumstances, identified in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817--Duty of fairness with respect to context of s. 46.04(8) not including duty to give reasons--Decision being made whether landing should be granted--Applicants not entitled as of right to landing--Decision not to grant landing under s. 46.04(8) not having great deal of impact on applicants--Still enjoy right to remain in Canada, conferred upon them by Convention refugee status, and can have application reassessed once produce better proof of identity--Not barred from making subsequent landing applications under s. 46.04(8)--No legitimate expectation landing will automatically be granted as certain onerous conditions must be satisfied prior to such decision--Procedures used both to make, determine s. 46.04(8) applications not suggesting higher duty of fairness--Legitimate expectation created when decision maker by word, procedure or action creating reasonable expectation on part of person concerned that certain process will be followed in making decision--Importing specific process component to duty of fairness owed by decision maker, and duty of fairness breached if process not followed--Doctrine of legitimate expectation procedural, cannot be used to create substantive right or interfere with exercise of legislative power--Inclusion of birth certificate as example of what could constitute satisfactory identity document in Operations Memorandum not creating legitimate expectation that such documents would always be accepted--Statements in Operations Memorandum merely illustrating what documents may satisfy criteria for satisfactory identity document, and cannot be interpreted as saying respondent committing itself to always accepting certain type of document for s. 46.04(8) purposes--No legitimate expectation by applicants that birth certificates would be acceptable--Question certified: are reasons required if application for landing refused pursuant to Immigration Act, s. 46.04(8)--Immigration Act, R.S.C., 1985, c. I-2, s. 46.04(8) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; as am. by S.C. 1992, c. 49, s. 38).