Date: 20040719
Docket: IMM-4953-03
Citation: 2004 FC 1005
Toronto, Ontario, July 19th, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
AMTUL BASEER
FAROOQ AHMAD DAR
SAEED AHMAD DAR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mrs. Amtul Baseer and her dependent sons, Farooq Dar and Saeed Dar, applied to become permanent residents in Canada. An immigration officer in Islamabad, Pakistan denied their application because he concluded that Mrs. Baseer had misrepresented the ages of her sons. The applicants argue that the officer made a serious error and ask me to order that their application be reconsidered by a different officer. I agree that the officer was mistaken and will grant this application for judicial review.
I. Issues
1. Did the officer err in finding that the ages of Farooq and Saeed had been misrepresented?
2. If not, was the misrepresentation material?
[2] Given my conclusion that the answer to the first question is yes, it is unnecessary for me to address the second question in any detail.
II. Analysis
[3] The parties agree that the officer's decision should be overturned only if I find that his error was patently unreasonable, in the sense that it was completely unsupported by the evidence.
1. Did the officer err in finding that the ages of Farooq and Saeed had been misrepresented?
[4] The officer became concerned about the ages of Farooq and Saeed because of the entries on one of the forms submitted in support of the application for permanent residence. For some reason, three of Mrs. Baseer's nine children's names had been left off the form although they appeared elsewhere in the appliation. Further, Farooq's and Saeed's names had been entered in a different hand and with a different colour of pen. However, the birth dates listed were consistent with the other forms submitted in support of their application, as well as their school papers and birth certificates. Farooq's birth date was consistently entered as March 17, 1985 and Saeed's was October 21, 1986.
[5] The officer was also concerned that Mrs. Baseer did not know Farooq's age. I have reviewed the notes of the interview with Mrs. Baseer and note that she did not know either Farooq's or Saeed's ages. However, she did know the years of their births.
[6] In light of his concerns, the officer proposed that the boys submit to DNA tests (to determine whether they were the sons of Mrs. Baseer) and bone age tests (to verify their ages). The DNA test was positive, indicating that Farooq and Saeed were Mrs. Baseer's sons. The bone age tests indicated that Farooq was approximately 19 and that Saeed was approximately "18 plus". At the time of the tests, Farooq was 17.5 and Saeed was almost 16, according to the birth dates they had supplied in their application. The officer had no information to assist him in determining how accurate the tests were.
[7] The officer concluded that the bone age tests showed that the applicants had misrepresented material facts in their application. He wrote to Mrs. Baseer in April 2003 stating that "the bone age test result showed that your son Saeed Ahmad Dar is over 18 years old and that your son Farooq Admad Dar is over 19 years old which is contrary to your statement of your claim about your dependant son's ages."
[8] Based on the alleged misrepresentation, the officer found that Mrs. Baseer and her sons were inadmissible to Canada according to s. 40(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (see Annex).
[9] In my view, the officer made a reviewable error. The bone age tests represented rough estimates and we do not know how accurate they were. Nor did the officer. It was an error to treat the test results as if they represented definitive determinations of the boys' ages from which it was possible to conclude that the birth dates they had provided were clearly wrong.
[10] Counsel for the respondent argued that the bone age tests constituted some evidence on which the officer could have based his conclusion that there had been misrepresentation and that I should defer to the officer's judgment (citing Sharief v. Canada (Minister of Citizenship and Immigration) 2003 FCT 278, [2003] F.C.J. No. 386 (T.D.) (QL)). I might have been inclined to accept this argument in different circumstances. Here, we are dealing with an accusation that the applicants lied. The consequences of a positive finding were grave: the applicants were inadmissible to Canada. In my view, it was patently unreasonable for the officer to arrive at that kind of conclusion based on the imprecise information that was before him.
[11] I would, therefore, grant this application for judicial review and order that the matter be reconsidered by a different officer.
2. If the officer did not err in finding that there was misrepresentation, was the misrepresentation material?
[12] Under the Immigration and Refugee Protection Regulations, SOR/2002-227, s. 2(b)(i), a child may be considered a dependent if he or she is less than 22 years of age. It is arguable, therefore, that any misrepresentation of the ages of Farooq and Saeed was immaterial to their application since they clearly fell within the Regulations in any case. It is only material misrepresentations that result in a person being inadmissible to Canada under the Immigration and Refugee Protection Act, s. 40(1)(a).
[13] Given my answer to the first question, it is unnecessary for me to decide whether any misrepresentation was material in the circumstances of this case.
[14] The parties suggested that it might be appropriate to state a question of general importance on the issue of materiality. However, given the manner in which I have decided this case, no question of general importance arises.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed. The matter is returned for reconsideration by another officer.
2. No question of general importance is stated.
"James W. O'Reilly"
F.C.J.
| Immigration and Refugee Protection Act, S.C. 2001, c. 27
Misrepresentation
40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
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Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
Fausses déclarations
40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants_:
a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d'entraîner une erreur dans l'application de la présente loi;
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| Immigration and Refugee Protection Regulations, SOR/2002-227
2. "dependent child", in respect of a parent, means a child who
[...]
(b) is in one of the following situations of dependency, namely,
(i) is less than 22 years of age and not a spouse or common-law partner,
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Règlements sur l'immigration et la protection des réfugiés, DORS/2002-227
2. « _enfant à charge_ » L'enfant qui :
...
b) d'autre part, remplit l'une des conditions suivantes :
(i) il est âgé de moins de vingt-deux ans et n'est pas un époux ou conjoint de fait,
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4953-03
STYLE OF CAUSE: AMTUL BASEER
FAROOQ AHMAD DAR
SAEED AHMAD DAR
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 14, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: O'REILLY J.
DATED: JULY 19, 2004
APPEARANCES BY:
Mr. Lorne Waldman
FOR THE APPLICANTS
Mr. Greg C. George
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Barristers & Solcitors
Toronto, Ontario
FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040719
Docket: IMM-4953-03
BETWEEN:
AMTUL BASEER
FAROOQ AHMAD DAR
SAEED AHMAD DAR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
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