Date: 20061019
Docket: IMM-5459-05
Citation: 2006 FC 1252
Ottawa, Ontario, October
19, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
MAGDA
AHMED ABDAL RAHIM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Magda Ahmed Abdal Rahim (the applicant) seeks judicial review of a decision of a Visa Officer (the
"officer"), dated November 8, 2005, wherein the officer rejected an application
for sponsorship of the
applicant’s two sons, Khalid Faroug
Tawfig Khafaga (Khalid) and Omar Faroug Tawfig Khafaga (Omar), as family
members (dependant’s) for permanent residence to Canada. The applicant and her
sons are citizens of Sudan.
[2]
The applicant obtained refugee
status in September 2003 and applied for Canadian residency for herself and her
two sons shortly thereafter. The applicant included her sons as
co-applicants
on her permanent residency application.
[3]
The officer conducted interviews
of the applicant’s sons on March 13, 2005 in relation to this application. The
applicant’s sons submitted school certificates, birth certificates, and
passports to the officer as proof of their identity. The officer rejected the sponsorship
application on March 23, 2005.
[4]
The Certified Tribunal Record was
filed and served as required on June 30, 2006. Pages 50, 53, 56-57 and 108 were
not disclosed. On August 14, 2006 Prothonotary Lafrenière rendered an order
allowing the respondent to file an Amended Tribunal Record. Portions of page
50, pages 56-57 in their entirety and portions of page 108 remained
undisclosed.
[5]
A motion pursuant to section 87 of the Immigration and Refugee
Protection Act, S.C. 2001 C. 27 (IRPA) was subsequently brought by the respondent to protect the undisclosed
information from release. I first heard the respondent in private in relation
to this motion. As a result, the pages were released to the applicant with
certain portions blacked out. I then heard both of the parties publicly on October
12, 2006. At this time counsel for the applicant indicated that they were
content with the Amended Certified Record. As a result, the section 87 motion
was granted, and an order to the above effect was issued.
DECISION
[6]
A
letter dated March 23, 2005 from the
officer, and the Computer Assisted Immigration Processing System (CAIPS) notes
of the officer taken in relation to the interviews of Omar and Khalid, were
submitted as constituting the officer’s reasons for his decision.
[7]
The officer concluded in his
letter that the school certificates submitted by the applicant’s sons had
fraudulent stamps and that he was not satisfied that they had provided accurate
dates of birth. The officer noted that the documents submitted to him prevented
him from making a determination that the applicant’s sons met the definition of
family member for the purposes of IRPA and its related regulations. The officer
further concluded that he was therefore not
satisfied that the applicant’s sons were admissible. As a result, he refused
their application.
[8]
The CAIPS notes of the officer make
it clear that he questioned Khalid about the circumstances under which he was
able to attain his school certificate and birth certificate. Little mention was
made however with respect to Khalid’s passport. As a result of the questioning
apparent in the CAIPS notes, it is clear that Khalid did not obtain his school
certificate through standard means because he did not complete his military
service. This is apparently a requirement which needs to be met before Sudanese
schools will release a certificate. The officer expressed concern in his notes
about the authenticity of the document, highlighting further the fact that he
perceived there to be a spelling mistake in the stamp on the document, where a
“v” was used in the word education instead of a “u”. The officer also asked how
Khalid obtained his birth certificate. Khalid explained that his uncle obtained
it on his behalf as he was in a better position then Khalid to do so.
[9]
The CAIPS notes make it clear that
the officer had similar concerns regarding the documents provided by Omar. After
questioning Omar regarding his school certificate and his birth certificate the
officer put his concerns to Omar in the following words:
Let me tell you what my concerns are? You and your
brother have submitted school documents with fraudulent stamps. You have very
little knowledge as to how your BC [birth certificate] was obtained. Your
brother indicated that your uncle obtained his BC for him because he did not
have the proper documents to get it himself. I suspect that your Birth
Certificates and your passports were either improperly issued or improperly
obtained. Your mother would have been 37 and 38 when you were born, which is
not impossible but unlikely in the context of Sudan where most women marry at a young
age. You could not give me an answer to how old you mother was when you were
born. There were contradictory statements concerning your father’s visits. Your
testimony was not spontaneous but rather you were hesitant, sometimes not event
answering. For all these reasons I have doubts regarding the bona fide of your
age. Do you have anything to add? [original in CAPS, typos corrected].
[10]
It appears from the notes that a
similar summary of concerns was not provided to Khalid in the course of his
interview.
ISSUES
[11]
The
submissions of the parties raised the following issues:
1. Did the officer err in failing to put his concerns, or
properly put his concerns to the applicant’s sons regarding their documents?
2. Did the officer base his decision on an erroneous finding
of fact made in a perverse or capricious manner or without regard to the
material before it?
ANALYSIS
Standard of
Review
[12]
The question of whether or not the
officer
gave the applicant’s sons a meaningful opportunity to respond to his concerns
is a question of procedural fairness:
Khwaja v. Canada (Minister of Citizenship and
Immigration), 2005 FC 522, [2006] F.C.J. No. 703
(QL)
[Khwaja]. It is well established that questions of procedural fairness
should be assessed on a correctness standard: Ellis-Don Ltd. v. Ontario (Labour
Relations Board), [2001] 1 S.C.R. 221, 2001 SCC 4 at para. 65. Where
a breach of the duty of fairness is found, the decision must be set aside: Benitez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 at para. 44
(QL) [Benitez]; Sketchley v.
Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056
at para. 54 (QL).
[13]
In the context of findings of
fact, the Court has held that the discretionary decision of a visa officer
should be accorded the highest level of deference, patent unreasonableness: Shi v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1224, [2005] F.C.J. No.
1490
at para. 3 (QL) [Shi]; Canada (Minister
of Citizenship and Immigration) v. Navarrete, 2006 FC 691, [2006] F.C.J. No. 878
at para 17 (QL). On this
standard, the Court should not intervene unless it can be shown that the visa
officer ignored relevant evidence or relied on irrelevant or extraneous
considerations: Shi, above at para. 3.
1. Opportunity
to Respond
[14]
As noted by the Court in Rukmangathan v. Canada (Minister
of Citizenship and Immigration), 2004 FC 284, [2004] F.C.J. No. 317 at paras. 22, 23 (QL), the duty of
fairness may require immigration officials to inform applicants of their
concerns so that they may have a chance to "disabuse" an officer of
such concerns, even where such concerns arise from evidence tendered by the
applicant. This principle of procedural fairness does not however stretch to
the point of requiring that a visa officer provide an applicant with a
"running score" of the weaknesses in their application. Where an officer suspects that an applicant has supplied
fraudulent documents however, he or she must give the applicant a chance to
address that concern: Cornea v. Canada (Minister
of Citizenship and Immigration), 2003 FC 972, [2003] F.C.J. 1225
at para. 8 (QL).
[15]
In addition, where notice of a given
concern only materializes during the interview itself, the visa officer must
allow the applicant a reasonable period of time in which to meaningfully
respond to the allegations: Khwaja, above at para. 17. In such a case,
the duty to inform applicants of the case against them will be fulfilled where
“the visa officer adopts an appropriate line of
questioning or makes reasonable inquiries which give the applicant the
opportunity to respond”: Liao v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1926 (T.D.) (QL) at para.
17.
[16]
Therefore, so long as an applicant is confronted with the
concerns of the officer at their interview, and they are given a reasonable
opportunity to respond, the duty of fairness will be met. It is otherwise
immaterial at what point during the interview this occurs: Khwaja, above
at para. 18.
[17]
In the context of the present
case, the officer provided Omar with a summary of his concerns at the
conclusion of his interview. In his summary, he noted that he suspected that
Omar and Khalid had submitted school documents with fraudulent stamps, and that
their passports and birth certificates were either improperly issued or
improperly obtained. The officer also asked whether Omar had anything further
to add. Therefore, despite the fact that the officer’s line of questioning during
the interview only included questions pertaining to how Omar obtained his birth
certificate and his school certificate, it cannot be said that he did not
ultimately put the full scope of his concerns to Omar. In addition, if Omar had
felt he needed more time to collect evidence to disabuse the officer’s concerns,
he should have requested it. Omar bore the onus to make this request, that he did
not do so does not constitute a breach of the duty of fairness by the officer:
Khwaja, above at para. 21.
[18]
It is clear from the officer’s
CAIPS notes that Khalid was not given an equal opportunity to respond to the
officer’s concerns. During the course of his interview, the officer did not
provide Khalid with a summary of his concerns similar to the one he provided to
Omar. The officer questioned Khalid about the origin of his school certificate
and birth certificate. From his line of questioning evident in the CAIPS notes,
it was clear that he had concerns regarding the authenticity of the school
certificate. It is not however clear that he had further concerns regarding Khalid’s
birth certificate, after Khalid had explained why his uncle had obtained this
document on his behalf. In addition, the origin of Khalid’s passport was not
discussed, nor was its authenticity questioned by the officer. Despite this, when
the letter and the CAIPS notes of the officer are taken together, it is clear
that he relied on his concerns with respect to all three of Khalid’s documents
in rejecting his application.
[19]
By not putting his concerns to
Khalid and by not giving Khalid a reasonable opportunity to respond, the
officer breached his duty of fairness. The decision will therefore be set
aside, and returned for reconsideration by a different officer.
2. Findings of Fact
[20]
I find that the reasons of the
officer, notwithstanding the above noted breach of procedural fairness, are not
patently unreasonable when taken as a whole. That being said, I wish to
highlight two findings of the officer that I do not believe to be reasonable
when seen in isolation.
[21]
First, the officer drew an adverse
inference with respect to the fact that Omar and Khalid allegedly offered
conflicting answers with respect to “their father’s visits”. The officer did
not ask Khalid when his father’s last visit was; he asked where his father was,
how long they had been separated and whether they were still in contact. Khalid
responded that his father was in Saudi
Arabia, that they had been separated since
elementary school, and that they were still in contact. These answers imply
that Khalid likely understood the question regarding separation to be asking
when his father left the family home. The officer also asked Omar how long he
had been separated from his father. Omar responded that his father “used to
come for us but for one year we did not see him”. Omar’s answer indicates that
he likely interpreted the question to be asking when he had last seen his
father. The officer then stated to Omar that according to Khalid they had not
seen their father for many years. Omar responded that it had been two years.
The officer concluded on this basis that the brothers had made contradictory
statements about their “father’s visits”. This was not a reasonable conclusion
in the circumstances of the case. The officer also did not put his concern in
this regard to Khalid.
[22]
Second, it was patently
unreasonable for the officer to draw an adverse inference based on the
applicant’s age. There was no evidence on the record to substantiate this
finding. There was no reason for the officer to infer that these were the only
two children the applicant had had, nor was there any evidence that Sudanese
mothers cease having children at a certain age.
[23]
In the result, on the basis of a
breach of procedural fairness, the application is granted. The decision of the
officer is quashed, and the case will be sent back for redetermination by
another officer.
[24]
No
serious questions of general importance were proposed and none will be
certified.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the application is granted. No questions are
certified.
“ Richard G. Mosley “
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