Date: 20050829
Docket: IMM-752-05
Citation: 2005 FC 1173
Ottawa,
Ontario, August 29, 2005
PRESENT:
THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
SULEIMAN
DUALE ABDILAHI
Applicant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), against a
decision by the visa officer, Mr. Kivuvani, of the High Commission in
Nairobi, Kenya, dated November 4, 2003, dismissing the applications of his two
brothers, Abdi and Kahin, as dependants included in the sponsorship application
of the applicant’s mother.
FACTUAL BACKGROUND
[2]
The
applicant, a permanent resident, filed an application to sponsor his mother,
Hasno Duale Dowel, as well as her two children (i.e. the applicant’s two
brothers), Abdi and Kahin, as dependant children. They were all citizens of
Somalia. The two sons were allegedly 16 and 18 years old at the
time of the sponsorship application. Somalian birth certificates were filed as
evidence of their age.
[3]
Ms. Dowel
and her two sons were asked to submit to a series of medical exams.
Specifically, the Canadian High Commission in Nairobi wrote to Dr.
N. Georgialis on January 13, 2005, to ask him for the following:
(1) A Tanner stage of development (including a history of the female
applicant’s first menarches and cycle); (2) Dental age by eruption or not
of the third maxillary and mandibulary third molar; (3) Bone age using the
(a) knee for assessment of the onset and completion of fusion of tibial
tuberosity, (b) clavicle for the assessment of the onset and completion of
fusion of the clavicle; (4) Hematocrit (percentage) for male applicants
only; (5) Serum alkaline phosphatase (IU/L); (6) Review of maternal
obstetrical history; (7) Physical review of the applicant: what is your
overall impression of the applicant’s age?
[4]
The
applicant’s mother then received a permanent resident visa. However, the visa
officer decided that the two sons were not members of the family class. Based
on the fact that the bone age test results indicated that they were “more
than” 25 years old, they could not be considered dependant children,
who are defined as being less than 22 years old.
THE APPLICABLE STANDARD OF REVIEW
[5]
Relying on
the bone age tests, the visa officer decided that the applicant’s brothers were
not less than 22 years old and that they did not belong to any of the
classes under the definition of “dependant child”.
Accordingly, pursuant to subsection 117(1) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations), the visa
officer determined that the applicant’s two brothers could not be considered members of the family
class.
[6]
The
standard of review applicable to the visa officer’s decision, in my opinion, is
that of patent unreasonableness. In Sharief v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No.
386 (F.C.T.D.), Dawson J. applied this standard when, exactly as in this
case, the age of the alleged dependant children was at issue. She relied on Jang
v. Canada (Minister of Citizenship and Immigration),
[2001] F.C.J. No. 1575 (C.A.), in which Malone J.A. stated:
12 An application to be
admitted to Canada as an immigrant gives rise to a discretionary decision on
the part of a visa officer, which is required to be made on the basis of
specific statutory criteria. Where that statutory discretion has been
exercised in good faith and in accordance with the principles of natural
justice and where reliance has not been placed upon considerations irrelevant
or extraneous to the statutory purpose, courts should not interfere (Maple
Lodge Farms Limited v. Government of Canada et al [1982] 2 S.C.R. 2 at
pages 7-8; To v. Canada, [1996] F.C.J. No. 696 (F.C.A.).
[7]
Similarly,
in another decision where the circumstances closely mirrored those of this case
– the age of two sons (established by bone age tests) was at issue
– O’Reilly J. decided that the standard was that of a patent
unreasonableness: see Baseer v. Canada (Minister of Citizenship and
Immigration, [2004] F.C.J. No. 1239.
WAS THE DECISION BY THE VISA OFFICER
PATENTLY UNREASONABLE?
[8]
The
applicant argues that the visa officer erred in refusing to recognize the
validity of the Somalian birth certificates filed into evidence with regard to
the age of his brothers.
[9]
In Sharief,
supra, the Court determined that the visa officer had not made a reviewable
error in preferring the opinions of qualified physicians over the Iraqi
identity cards for the purposes of establishing age, based on the fact that the
reliability of the Iraqi documentation was unknown.
[10]
In this
case, the officer’s decision to rely on the medical evidence rather than on the
Somalian birth certificates was not simply a question of preference, but of
practice, since Canadian immigration authorities consider the reliability of
Somalian documents as disputable given the absence of a centralized government
in that country. Accordingly, discounting the Somalian birth certificates
cannot amount to a reviewable error, in my opinion.
[11]
It is true
that when the decision was made, the visa officer did not have any information
on the relative accuracy of the bone age tests. That lack of information
troubled O’Reilly J. in Baseer, supra, where it was decided
that the visa officer’s decision was patently unreasonable.
[12]
However, I
believe that the factual circumstances of that matter differ from the facts of
this case. In Baseer, supra, the dependant children in question
were allegedly 17.5 and 16 years old, and the bone age tests
determined that they were 18 years old or older. The visa officer
nevertheless dismissed their application for permanent residence as members of
the family class for having made a significant misrepresentation, contrary to
paragraph 40(1)(a) of the Act. Obviously, this difference could
have been explained by a degree of error which could have been inherent to bone
age tests. And, in any event, the two children in Baseer, supra,
could have been admissible based on the fact that they were less than 22 years
of age, as O’Reilly J. pointed out, had it not been for the finding that a
significant misrepresentation had been made.
[13]
However,
the difference in the alleged age of the purported dependant children in this
case and their age according to the bone age tests is much greater. The boys
professed to be 16 and 18 years old when the bone age tests
indicate that both were more than 25 years old.
[14]
In short,
the visa officer appears to have based his decision on the best available
evidence of the age of the alleged dependant children. Therefore, I
am not persuaded that the decision by the visa officer in this matter was
patently unreasonable, that it was, in other words, “clearly irrational” or “ so flawed that no amount of
curial deference can justify letting it stand”:
Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R.247, at
paragraph 52.
WERE THE PROCEDURAL FAIRNESS REQUIREMENTS
SATISFIED?
[15]
After
determining that the visa officer’s decision does not contravene the applicable
standard of review, the only remaining issue involves natural justice. On that
point, there is no standard of review that comes into play; procedural fairness
literally involves the process followed to arrive at a decision bearing on the decision
itself: C.U.P.E. v. Ontario (Minister of Labour),
[2003] 1 S.C.R.539, and Moreau-Bérubé v New Brunswick (Judicial
Council), [2002] 1 S.C.R. 249.
[16]
The
applicant claims that he was not clearly notified that the Somalian birth
certificates were insufficient evidence of the age of his brothers, which
amounts to a breach of natural justice.
[17]
This
argument is inconsistent with the facts of this case. First, in a letter from
the Canadian High Commission dated August 29, 2003, addressed to the applicant
and to his mother, it is clearly indicated that the birth documents submitted are
not adequate to establish that there is a blood relation. Further, another
letter from the Canadian High Commission dated January 13, 2003,
requires a medical exam for the two brothers with a request for an age exam.
It is difficult to understand what other explanation the High Commission could
have given. The applicant cannot claim that he was taken by surprise since it
was clear from the correspondence that the medical exam was required to
determine the age of his two brothers.
[18]
The
applicant also contends that the visa officer did not observe procedural
fairness because the negative results of the bone mass tests were sent to Mr.
Miele at the office of the Honourable Stéphane Dion (who had been mandated by
the applicant to do the follow-up) without mentioning that it was a final
decision and giving him time to submit other documentation. The applicant
acknowledges, however, that Mr. Miele had verbally informed him on September 9,
2003. Yet, two months went by before the visa officer made his final decision;
that was ample time for the applicant to be able to challenge the exam results
relating to the bone age tests and/or to file other evidence to establish that
the boys were in fact less than 22 years old, which he did not do.
[19]
I cannot
agree with the proposition to the effect that the procedural fairness
requirements were not met.
[20]
This
application for judicial review is therefore dismissed.
[21]
The
applicant’s counsel asked that the following question be certified:
May intergovernmental correspondence
between the High Commission and a deputy be considered a negative notice of
intent if the correspondence does not indicate that it is not a final decision
and does not give a deadline to respond to it and that, further, the applicant
is not authorized to receive a copy?
[22]
That
question is relevant only to this matter. It does not transcend the interests
of the parties to the litigation. It is therefore not a serious question of
general importance. The question will not be certified.
ORDER
THE COURT ORDERS that the application for judicial
review be dismissed.
“Danièle
Tremblay-Lamer”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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