Docket: IMM-1549-02
Ottawa, Ontario, this 25th day of April, 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
TETSUO KOBAYASHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review, under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), of a decision of Immigration Officer Colleen Wetherall of Citizenship and Immigration Canada ("CIC"), dated November 27, 2001, to continue to detain the applicant's passport. It is also an application for an order by way of mandamus requiring CIC to return the passport to the applicant.
FACTS
[2] On March 20, 2001, Canada Customs and Revenue Agency at the Vancouver International Airport referred to an Immigration Officer two envelopes shipped from Los Angeles by an unknown sender. The envelopes were both addressed to "Sanae Kobayashi" at a Vancouver address. It appeared that same sender shipped both envelopes, as the waybills were identical.
[3] An Immigration officer examined the envelopes. One envelope contained a Japanese passport in the name of Tetsuo Kobasashi. The other contained an American Express card and an international driving permit in the name of Yosuke Ishikawa. The passport and the driving permit bore the photographs of the same man.
[4] The documents were seized in order to facilitate an investigation into the identity of the man whose picture is affixed to the documents, namely, the applicant. Notice of the seizure was sent to the address on the envelopes.
[5] Upon the seizure, the information was forwarded to the Immigration and Passport Section at the RCMP for investigation. The investigation apparently remains ongoing.
[6] By letter dated August 30, 2001, through his counsel, the applicant sought the release of the passport since the passport had been seized for more than three (3) months which contravenes Section 102.06 of the Act. By letter dated November 27, 2001, CIC informed the applicant that the passport would not be released because the investigation had not yet been concluded.
[7] The applicant sought leave for judicial review in Court file number IMM-5241-01 challenging CIC's refusal to release the passport. By Order dated March 18, 2002, this Court denied leave for judicial review.
[8] The application for leave for the present judicial review was submitted on April 4, 2002 and by Order dated January 16, 2003, this Court granted leave.
ISSUES
[9] Here are the issues which I believe need to be addressed:
1. Is this application barred by res judicata?
2. If not barred, does section 102.06 of the Act apply in the present case and if so, was there a breach of that section?
3. Do sections 94(1)(n) and 110(2) of the Act, apply to the seizure of the passport of the applicant?
[10] The applicant submitted other arguments in his memorandum. However, during the verbal submissions, counsel for the applicant dealt only with the issues mentioned above and counsel for the respondent therefore limited her submission to these matters as well. Thus, there is no need to address the other arguments.
ANALYSIS
1. Is this application barred by res judicata?
[11] The respondent submits that the applicant is attempting to relitigate and challenge the initial decision refusing to release the seized passport. It is argued that the applicant is barred from seeking to judicially review the same decision. Upon the principle of res judicata, where a judgement has been pronounced in a proceeding, any party to that judgement is estopped from relitigating the same cause of action, or any issue that was necessarily determined by that judgment, against another party in subsequent litigation. A litigant cannot avoid the effect of res judicata by recasting his claim as an apparently new cause of action, or raising arguments in support of that claim that were not previously made.
[12] The respondent sustains that the Order rendered in Court file No. IMM-5241-01, denying the application for leave to commence a judicial review of the decision of Colleen Wetherall to retain the seized passport, was a judicial decision, was pronounced by a court with jurisdiction, and was a final decision on the merits as between the parties.
[13] I agree with the submissions of the respondent but it appears from the facts of this case that there might be an appearance of illegality if it is validly proven that the passport has been seized for a period of more than three months and I do not think that a Court can remain silent because of the principle of Res Judicata if it observes a continual illegality. Therefore, my analysis will be done with that specific concern in mind.
2. Does section 102.06 of the Act apply in the present case and if so, was there a breach of that section?
[14] The applicant claims that CIC continues to detain his passport notwithstanding a demand for release pursuant to section 102.06 of the Act. He argues that there has been no agreement by the applicant as to the passport's further detention, no decision by a justice of the peace within three months of the time of seizure ordering a further detention and no judicial proceeding were instituted in which the passport may be required. Consequently, the detention of the passport would be contrary to section 102.06 of the Act, which reads:
102.06 (1) Where any record, book or document is examined or seized under this Act, the Minister, or the officer by whom the record, book or document is examined or seized, may make or cause to be made one or more copies thereof, and a copy of any such record, book or document purporting to be certified by the Minister or a person authorized by the Minister is admissible in evidence and has the same probative force as the original record, book or document would have if it had been proved in the ordinary way.
(2) No records, books or documents that have been seized as evidence under this Act shall be detained for a period of more than three months after the time of seizure, unless, before the expiration of that period,
(a) the person from whom they were seized agrees to their further detention for a specified period of time;
(b) a justice of the peace is satisfied on application that, having regard to the circumstances, their further detention for a specified period of time is warranted and the justice so orders; or
(c) judicial proceedings are instituted in which the things seized may be required.
[15] I disagree with such an argument since I do not think that section 102.06(2) of the Act applies to the present situation.
[16] A close reading of sections 102.1 to 102.19 of the Act indicates that it concerns the forfeiture of vehicles and offences related to organizing the entry in Canada and the disembarkment of persons at sea (see ss. 94.1, 94.2 and 94.4 of the Act).
[17] In the present case, the facts about the seizure of a passport and travel documents do not have any relation with the forfeiture of vehicles or the illegal entry of persons in Canada.
[18] Therefore, I can only conclude that section 102.06 of the Act does not apply to the facts of this present legal procedure.
3. Do sections 94(1)(n) and 110(2) of the Act, apply to the seizure of the applicant's passport?
[19] The material forwarded by mail which was seized are a Japanese passport, an international driving permit and an American Express card. They are travel and identity documents which contain the photographs of the applicant but different names and biographical information.
[20] The respondent's representative acted upon paragraph 94(1)(n) of the Act which forbids the importation and exportation by mail of travel and identity documents.
94(1) Every person is guilty of an offence who:
(n) imports or exports, by mail or otherwise, in order to contravene this Act or the regulations, a visa, passport or other travel document, any document or thing that may serve to establish the identity of a person or any document or thing purporting to be any of those documents or things.
[21] The authority to examine, seize and hold the documents by an Immigration Officer is described in paragraph 110(2) of the Act.
110(2) An Immigration officer may:
(a.3) examine at a port of entry or any other place in Canada, for the purposes of this Act or the regulations, any visa, passport or other travel document, any document or thing that may serve to establish the identity of a person or any document or thing purporting to be any of those documents or things that is imported into or about to be imported into or exported from Canada.
(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
(c) for the purposes of this Act and regulations, seize and hold any thing or document if the Immigration Officer believes on reasonable grounds that it has been fraudulently or improperly obtained or used or that action is necessary to prevent its fraudulent or improper use.
[22] In a letter dated November 27, 2001, forwarded to the applicant' s counsel by an Immigration Officer, it was explained that the respondent was investigating the identity of the man appearing on the pictures of the seized documents and that the passport could not be release since all of the documents are needed for investigation purposes. It was also indicated that the passport could be released if the applicant give valid information to the authority to explain why his photograph appears on the seized documents, while his name is not on the international driving permit nor on the American Express card. As of this date, no such information was given by the applicant.
[23] Therefore, the seizure of the documents, including the passport of the applicant, is supported by the pertinent provisions of the Act. It is to be noted that pursuant to subsections 94(1)(n) and 110(2) of the Act, there is no time limit imposed on the seizure made by the authorities.
[24] I conclude that applicant's counsel did not convince me that the decision to maintain the seizure of the applicant's passport while the investigation is ongoing merits an intervention of this Court.
[25] Counsel for both parties did not submit a question for certification and I also do not think that any question should be certified.
ORDER
THIS COURT ORDERS THAT:
The applications for judicial review and for an order by way of mandamus are dismissed and no question will be certified.
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1549-02
STYLE OF CAUSE: Tetsuo Kobayashi v. Minister of Citizenship & Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 16, 2003
REASONS FOR Order : S. Noël, J.
DATED: April 25th, 2003
APPEARANCES:
Mr. Kenneth Specht FOR APPLICANT
Ms. Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Barrister and Solicitor FOR APPLICANT
Vancouver, British Columbia
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada