Date: 20000818
Docket: IMM-2761-99
BETWEEN:
FOLARIN OGUNMEFUN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.:
[1] The applicant seeks judicial review of a decision of the Minister not to process the application of the applicant for permanent residence in Canada, for lack of proper identity documents. The applicants seeks an order for a writ of mandamus to compel the Minister to provide reasons for suspending the processing of the applicant"s application. Since the applicant filed his memorandum, Gibson J. decided Popal v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 352, IMM-525-99 (March 17, 2000) (T.D.). This case is based on essentially the same facts.
[2] The applicant is a citizen of Nigeria. He obtained a passport from the Nigerian government and submitted this as proof of his identity in accordance with the requirements of 46.04(8) of the Immigration Act, R.S.C. 1985, c. I-2, as amended. By letter dated July 17, 1998, the Case Processing Centre ("CPC") in Vegreville Alberta advised the applicant that further processing of his application for permanent residence was not possible as the passport did not meet the requirements of subsection 46.04(8), in that it was not "valid and subsisting passport or travel document".
[3] The CPC was concerned that the passport had been obtained by strictly oral communication rather than by submission of documents. However, as Gibson J. stated in Popal it is not for the Canadian officials to decide if the passport was issued on a basis "satisfactory" to Canadian officials.
[4] As Gibson J. stated in Popal:
| 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). |
| 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). |
[5] In the Popal case, Gibson J. found that the Minister also erred in failing to provide adequate reasons for rejecting the applicant"s identity documents. However, I do not have to decide the question of whether reasons are necessary in this matter, in view of my finding about the valid and subsisting passport.
[6] I also agree with Gibson J. in Popal, when he determined that mandamus was not the appropriate remedy in the circumstances. Instead, he set aside the decision to reject the passport and other identity documents. The decisions to reject were referred back to the Minister "for redetermination in accordance with law as interpreted by these reasons."
[7] I will allow the application for judicial review and set aside the decision to reject the applicant"s passport and send it back for redetermination by the Minister in a manner not inconsistent with these reasons.
[8] I will certify the same question as the second question in Popal as question of general importance. It is a more appropriate question than the one proposed by the respondent. The question reads:
| 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? |
"W.P. McKeown"
J.F.C.C.
Toronto, Ontario
August 18, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2761-99 |
| STYLE OF CAUSE: FOLARIN OGUNMEFUN |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: TUESDAY, AUGUST 15, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: MCKEOWN J. |
DATED: FRIDAY, AUGUST 18, 2000
| APPEARANCES BY: Mr. Bola Adetunji |
| For the Applicant |
| Mr. David Tyndale |
| For the Respondent |
| SOLICITORS OF RECORD: Mr. Bola Adetunji |
Barrister and Solicitor
Carlton on the Park
Suite 313-120 Carlton Street
Toronto, Ontario
M5A 4K2
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000818
Docket: IMM-2761-99
BETWEEN:
| FOLARIN OGUNMEFUN |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |