Date: 20060801
Docket: IMM-5004-05
Citation: 2006 FC 941
Ottawa, Ontario, August 1,
2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JUGRAJ KAUR SANDHU
JAGROOP KAUR SANDHU
SURMEET SINGH SANDHU
AMANDEEP
SINGH SANDHU
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is the judicial review of a denial of permanent residence made by a visa
officer. This case raises issues about the conduct of officials of the
Respondent in respect of this judicial review proceeding.
II. Background
[2]
The
principal Applicant, a citizen of India, was sponsored for
permanent residence by her daughter in Canada. The
Applicant included in her permanent residence application her dependent children.
[3]
In
April 2005, the Applicant was interviewed by an immigration officer
(Immigration Officer) in New Delhi. The Immigration
Officer expressed concerns about the application because two of the children
did not have birth certificates and, in addition, supporting letters issued by
the particular public school had, in the past, been found to be fraudulent.
[4]
Following
the interview, the Applicant wrote to the Canadian High Commission responding
to the concerns raised by the Immigration Officer regarding the school
certificates. Attached to the correspondence was documentary evidence
corroborating that the school documents provided were genuine. These documents
were received by the Canadian High Commission on May 10, 2005, a crucial fact
in this case.
[5]
The
Immigration Officer allegedly reviewed all the information in the file,
including the post-interview information, and in June 2005 sent the file to the
Canadian High Commission Visa Section with her recommendation that the
application for permanent residence be refused on the grounds that the
Applicant had misrepresented or withheld material facts. A visa officer (Visa
Officer), holding the delegated authority to make the final determination of
admissibility, refused the application for those same reasons.
[6]
In
the letter decision from the Visa Officer, the grounds for refusal were:
On April 18, 2005, you misrepresented or
withheld the following material facts:
- You submitted
school certificates from Dashmesh Residential Public School that purported to establish
the age and relationship of Jagroop Kaur Sandhu and Amandeep Singh Sandhu.
[7]
There
is no mention of the post-interview documents filed with the Canadian High
Commission in early May.
[8]
In
the Leave for Judicial Review proceeding, the Respondent took the position that
the Applicant had misaddressed the correspondence and post-interview documents
and therefore had not proven that the Canadian High Commission ever received
those post-interview documents. The purport of the submission was that the
Applicant was entirely responsible for this failure and that leave should not
be granted because the Visa Officer could not be expected to consider documents
which were never received.
[9]
Fortunately
for the Applicant, Justice O’Keefe granted leave. It was during the subsequent
judicial review proceedings, including the necessary cross-examination of the
Respondent’s representations, that the Respondent admitted that it had had the
documents from the very time that the Applicant had claimed – May 10, 2005.
[10]
The
Respondent, having been “caught out”, turned its argument around and through
evidence and submission claimed that the documents were considered and given no
weight. The Immigration Officer now claimed that she had read the documents and
gave them no weight – the Visa Officer could not recall the evidence but said
that it would have made no difference to his decision.
III. Analysis
[11]
As
to the substance of this judicial review, it falls squarely within the
principle enunciated in Menon v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 1548 (QL), 2005 FC 1273 where the failure
to mention in the CAIPS Notes that supplementary material had been filed was
held to be a breach of fairness because it denied the Visa Officer an
opportunity to fulfil his responsibilities to consider all relevant material.
[12]
In
this instance there can be no assurance that the evidence was considered at
all. The subsequent affidavits of both officers, particularly given the initial
position taken by the Respondent that the post-interview documents had not been
received, do little to establish that the Applicant’s evidence was properly
considered. The failure to cite this material in the decision letter counters
any weight that might be given to the officers’ evidence.
[13]
For
this reason alone, this judicial review must be granted. The Applicant has also
asked for costs because of the Respondent’s conduct of this matter.
[14]
The
initial position of the Respondent was that the Applicant had not proven that
the post-interview documents had been received by the Respondent’s officials.
It was a disingenuous submission devoid of any truth. It was made at a time
when there was no doubt that the Respondent had received the material; and if
the Respondent’s evidence is to be believed, the material had been considered
and rejected.
[15]
It
is evident that the submission was designed to cast blame on the Applicant
where there was none and to cause the Court to dismiss the application for
judicial review. If it had had that effect, it would have misled the Court; if
the submission had been supported by evidence, there would have been the most
serious consequences to those who had been involved in making blatantly
misleading submissions.
[16]
The
Court has not pursued the issue of responsibility and leaves that to senior
officials in the relevant organizations. Suffice it to say that this Court
relies on the underlying honesty of submissions and the forthright conduct of
Crown officers involved in proceedings in this Court. The Court assumes, as
indicated in argument, that counsel would not have made these submissions
without information and instructions from the client department. If so, counsel
was also misled.
[17]
The
egregious nature of this matter is underscored by the fact that it was not
until after affidavits and cross-examination that the Respondent advised the
Applicant, on May 23, 2006, that it was abandoning its leave arguments of lack
of receipt of the supplementary materials. It was a concession which ought to
have been made at the first opportunity – not the last.
[18]
In
a nutshell, the Respondent’s conduct was misleading to the Applicant and to the
Court. It is simply unacceptable.
[19]
Therefore,
I find that “special reasons” under Rule 22 of the Federal Courts
Immigration and Refugee Protection Rules have been shown which justify an
award of costs. The Applicant shall have solicitor-client costs of the whole of
this matter. If the parties cannot agree as to costs, the matter may be
returned to me for determination.
IV. Conclusion
[20]
This
judicial review will be granted, and the decision of the Visa Officer will be
quashed. The matter will be remitted for a new decision by a different officer.
No official involved in the initial determination shall be involved in this new
determination. The Applicant shall have its fees and disbursements on a
solicitor-client basis.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is granted, and the decision of the Visa
Officer is quashed. The matter is remitted for a new decision by a different
officer. No official involved in the initial determination shall be involved in
this new determination. The Applicant shall have its fees and disbursements on
a solicitor-client basis.
“Michael
L. Phelan”
Email this Content