Date: 20101221
Docket: IMM-1986-10
Citation:
2010 FC 1317
Ottawa, Ontario, December 21, 2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
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JUANITA CASTILLO AFABLE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision of the Immigration Appeal
Division (IAD) of the Immigration and Refugee Board, dated February 23, 2010, denying
the applicant’s appeal from the decision of a visa officer refusing the
applicant’s application to sponsor her alleged niece for permanent residence in
Canada.
FACTS
Background
[2]
The
applicant is a 62-year-old Canadian citizen who came to Canada from the Philippines twenty years
ago, in June 1989, as a landed immigrant. She has no children, no family
members in Canada, and her
parents and grandparents are deceased. She is a schoolteacher, and anticipates
retiring from her teaching career in the near future.
[3]
The
applicant sponsored the application for permanent residence of Alma Toni
Castillo Lasalita, who she claimed was her niece, the daughter of her deceased
elder sister.
[4]
By
letter dated October 5, 2006, a visa officer informed the applicant that her
application had been denied. The reason for the denial was that the officer was
not persuaded of the genuineness of the applicant’s relationship to Ms.
Lasalita, and determined that Ms. Lasalita was not a member of the family class
under section 117(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
[5]
The
applicant appealed the refusal of the visa officer to the IAD on November 3,
2006. The applicant’s first scheduled hearing before the IAD, on October 14,
2009, was adjourned in order to allow the applicant to provide additional
evidence regarding her relationship to Ms. Lasalita. Following a hearing on
January 26, 2010, the IAD dismissed the applicant’s appeal. It is this
dismissal that forms the basis of this application for judicial review.
[6]
Attached
to her supplementary affidavit on this application, the applicant included the
results of a DNA test dated June 28, 2010 – that is, subsequent to her hearing
before the IAD.
Decision under Review
[7]
The
applicant represented herself at her hearing before the IAD. In its decision,
the IAD stated that the issue before it was whether Ms. Lasalita fell within
the definition of a member of the family class. The relevant aspect of that
definition was paragraph 117(1)(h) of the Regulations, which provides that any
relative of the sponsor is a member of the family class in cases where the
sponsor does not have another member of the family class who is a Canadian
citizen or permanent resident, or who may otherwise be sponsored as a member of
the family class. The IAD agreed with the visa officer that the applicant did
not have any other relative who is a Canadian citizen or permanent resident or
who could be sponsored to come to Canada by the applicant as a
member of the family class. As a result, the IAD agreed with the immigration
officer that if Ms. Lasalita was in fact the applicant’s niece then she would
be eligible to be sponsored as a member of the family class. The critical issue
before the IAD was whether the applicant and Ms. Lasalita were in fact blood
relatives.
[8]
The
IAD stated that the applicant had the onus of proving that she and Ms. Lasalita
were blood relatives on the balance of probabilities. The IAD considered the
evidence that the applicant had provided, recognizing that she had been given
additional time to adduce more and better evidence by having the original
October 14, 2009 hearing adjourned. In particular, the IAD considered the
following evidence:
a. A copy of a
document that the applicant stated was the birth certificate of her elder
sister, Eugenia Imaguin Castillo, submitted with a sworn Affidavit for Delayed
Registration of Live Birth, sworn by the applicant’s brother, who resides in
the Philippines. The
document stated that Eugenia’s birth date was June 5, 1932. The applicant
testified that the original birth certificate had been destroyed in bombings of
the government office during World War II.
b. A copy of a
document that the applicant stated was her birth certificate, submitted with a
sworn Affidavit for Delayed Registration of Live Birth, sworn by the
applicant’s brother, who resides in the Philippines. The
document stated that the applicant’s birth date was December 7, 1947. The
applicant testified that the original birth certificate was destroyed in a fire
at the government office.
c. A copy of a
Certificate of Live Birth for Ms. Lasalita. The birth certificate listed Ms.
Lasalita’s mother as Eugenia Castillo Lasalita, the applicant’s elder sister.
d. Eugenia’s
school record, which stated her birth date as June 8, 1932.
e. Eugenia’s
marriage certificate, which stated that she was 30 years old at the time of her
marriage on June 8, 1965.
[9]
The
IAD questioned the reliability of the information contained in the birth
certificates of Ms Lasalita and of Eugenia. In particular, the IAD raised the
following concerns:
a. The IAD
questioned Eugenia’s date of birth for the following reasons:
i.
The
date of birth stated on the school record differed from that on the birth
certificate (June 8, 1932, as opposed to June 5, 1932).
ii.
The
marriage certificate, dated June 8, 1965, lists Eugenia’s age as 30 at the time
of marriage, but if the birth certificate were correct then she would have been
33 at that time.
iii.
Ms.
Lasalita’s birth certificate states that her mother’s age was 34 at the time of
her birth, but if the birth certificate were correct then she would have been
36 at that time. Because the birth certificate and the marriage certificate
corresponded – that is, if Eugenia was 30 at the time of marriage then she
would have been 34 at the time of Ms. Lasalita’s birth – the IAD questioned the
reliability of the document purporting to be Eugenia’s birth certificate.
b. The IAD
related additional reasons that it had for doubting the reliability of the
documentary evidence:
i.
Eugenia’s
birth certificate stated that at the time of her birth her mother was 18 years
old. The birth certificate of the applicant, who was apparently born of the
same mother 15 years later, however, stated that at the time of her birth her
mother was 17 years old.
ii.
The
birth weight of Eugenia and the applicant were listed as an identical 2722
grams.
iii.
The
IAD doubted the likelihood of both the applicant’s and her sister’s birth
certificates being destroyed.
iv.
The
IAD further doubted the destruction because the affidavits provided by the
applicant’s brother state the reason for delay in registration was
“negligence,” whereas the applicant testified to the cause of destruction being
bombing and fire.
v.
The
IAD was “deeply disturbed” that the affidavits sworn by the applicant’s brother
were sworn in 2006 and 2007, as opposed to soon after the destruction of the
original documents.
[10]
The
IAD found that the applicant’s oral testimony was not sufficiently detailed to
dispel its concerns regarding the reliability of the documentary evidence.
Because those were the only documents submitted to the IAD, the IAD concluded
that there was not enough reliable or credible evidence before it to establish
on the balance of probabilities that the applicant and Ms. Lasalita were aunt
and niece as claimed.
LEGISLATION
[11]
Section
117(1) of the Regulations defines who is a member of the family class who may
become a permanent resident in Canada:
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117.
(1) A foreign national is a member of the family class if, with respect to a
sponsor, the foreign national is
. .
.
(h)
a relative of the sponsor, regardless of age, if the sponsor does not have a
spouse, a common-law partner, a conjugal partner, a child, a mother or
father, a relative who is a child of that mother or father, a relative who is
a child of a child of that mother or father, a mother or father of that
mother or father or a relative who is a child of the mother or father of that
mother or father
(i)
who is a
Canadian citizen, Indian or permanent resident, or
(ii)
whose
application to enter and remain in Canada
as a permanent resident the sponsor may otherwise sponsor.
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117.
(1) Appartiennent à la catégorie du regroupement familial du fait de la
relation qu’ils ont avec le répondant les étrangers suivants :
. . .
h)
tout autre membre de sa parenté, sans égard à son âge, à défaut d’époux, de
conjoint de fait, de partenaire conjugal, d’enfant, de parents, de membre de
sa famille qui est l’enfant de l’un ou l’autre de ses parents, de membre de
sa famille qui est l’enfant d’un enfant de l’un ou l’autre de ses parents, de
parents de l’un ou l’autre de ses parents ou de membre de sa famille qui est
l’enfant de l’un ou l’autre des parents de l’un ou l’autre de ses parents,
qui est :
(i)
soit un
citoyen canadien, un Indien ou un résident permanent,
(ii)
soit une
personne susceptible de voir sa demande d’entrée et de séjour au Canada à
titre de résident permanent par ailleurs parrainée par le répondant.
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[12]
Section
2 of the Regulations defines a relative:
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“relative”
means a person who is related to another person by blood or adoption.
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«
membre de la parenté » Personne unie à l’intéressé par les liens du sang ou
de l’adoption.
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ISSUE
[13]
The
applicant raises the following issue:
1. The
IAD exceeded its jurisdiction, erred in law and made a decision that is
patently unreasonable in that it ignored relevant evidence in coming to its
decision to dismiss the appeal.
[14]
In
addition, the respondent raises a preliminary issue, which is that the DNA
report attached as an exhibit to the supplementary affidavit submitted by the
applicant prior to this hearing should not be admitted into evidence.
[15]
I
shall deal first with the issue of whether the supplementary affidavit will be
admitted into evidence.
STANDARD OF REVIEW
[16]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of (deference) to be accorded
with regard to a particular category of question”: see also Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, per
Justice Binnie at paragraph 53.
[17]
As I
recognized in Wu v. Canada (Citizenship and Immigration), 2009 FC 929, at paragraph
17, credibility determinations are factual in nature. Post-Dunsmuir
jurisprudence has established that the appropriate standard of review
applicable to these factual determinations is reasonableness: see also, for
example, Saleem v. Canada (Citizenship and Immigration), 2008 FC 389, at
paragraph 13; Malveda v. Canada (Citizenship and Immigration), 2008 FC 447 at paras. 17-20; Khokhar
v. Canada (Citizenship and Immigration), 2008 FC 449 at paras. 17-20,
and my decision in Dong v. Canada (Citizenship and Immigration), 2010 FC 55, at paragraph 17.
[18]
The
standard of review is therefore reasonableness. In reviewing the IAD's decision
using a standard of reasonableness, the Court will consider “the existence of
justification, transparency and intelligibility within the decision-making
process” and “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law”: Dunsmuir,
supra, at paragraph 47; Khosa, supra, at paragraph 59.
[19]
The first
issue, however, regarding the admissibility of the DNA Analysis Report, is a
question of law which is reviewed by the Court on a standard of correctness.
ANALYSIS
Issue No. 1: Should the supplementary
affidavit be admitted into evidence?
[20]
On
applications for judicial review, the parties are entitled to submit
supplementary affidavits. In this case, the applicant filed a supplementary
affidavit that was sworn on October 16, 2010. As an exhibit to that affidavit,
the applicant attached a copy of a document entitled “Results of DNA Analysis,”
dated June 28, 2010.
[21]
The
respondent submits that this evidence cannot be admitted because it is new evidence
that post-dates the decision of the IAD and was, therefore, not before the IAD
when it rendered its decision.
[22]
The
Court agrees with the respondent. The law is clear that judicial review
applications are to be conducted strictly on the evidence that was before the
decision-maker, unless the additional evidence pertains to questions of
procedural fairness or jurisdiction: see, e.g., Vasquez Encinas v. Canada
(Citizenship and Immigration), 2006 FC 61. In this case, the applicant’s
affidavit purports to put into evidence the results of a DNA test conducted
subsequent to the visa officer’s decision. As explained by Justice Dubé in Chopra
v. Canada (Treasury IAD), [1999]
F.C.J. No. 835 at paragraph 5,
There
is considerable jurisprudence to the effect that only the evidence that was
before the initial decision-maker should be considered by the Court on judicial
review. These decisions are premised on the notion that the purpose of judicial
review is not to determine whether or not the decision of the Tribunal in
question was correct in absolute terms but rather to determine whether or not
the Tribunal was correct based on the record before it. . . . [references
omitted]
[23]
The
applicant’s affidavit attempts to submit evidence that the decision of the
officer was incorrect in absolute terms. This Court has no capacity to assess
that evidence.
Issue No. 2: Did the IAD err by ignoring
relevant evidence in making its decision?
[24]
The
applicant submits that the IAD ignored or misconstrued the applicant’s
documentary evidence. In particular, the applicant submits that the IAD
committed the following errors:
a. The IAD
ignored the two marriage contracts showing Eugenia and the applicant having the
same parents.
b. The IAD
ignored the fact that Eugenia’s high school record showed Eugenia’s father’s
name.
c. The IAD
ignored Ms. Lasalita’s baptism certificate, which showed her parents’ names.
d. The IAD
ignored Ms. Lasalita’s birth certificate, which showed her parents’ names.
e. The IAD
ignored the applicant’s university transcript, which showed the applicant’s
parents’ names.
f.
The
IAD ignored the joint affidavit of elders from the applicant’s hometown, Florentina
Torres and Feliza Pastores, dated August 24, 1990, swearing that Eugenia and
the applicant are sisters.
[25]
The
IAD is presumed to have considered all of the evidence before it, and need not
refer to individual pieces of evidence. As stated by Justice Evans in Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.)(QL), 157
F.T.R. 35, at paragraph 16,
¶16. On
the other hand, the reasons given by administrative agencies are not to be read
hypercritically by a court (Medina v. Canada (Minister of Employment and
Immigration)
(1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to
every piece of evidence that they received that is contrary to their finding,
and to explain how they dealt with it (see, for example, Hassan v. Canada
(Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).
That would be far too onerous a burden to impose upon administrative
decision-makers who may be struggling with a heavy case-load and inadequate
resources. . . .
[26]
In
this case, however, the IAD stated, at paragraph 29, that it was rejecting the
applicant’s testimony regarding her relationship with her niece because the
documents that it had expressly considered were “the only ones tendered into
evidence by the applicant”. Thus, the IAD’s failure to expressly consider other
documents submitted into evidence by the applicant leads this Court to conclude
that the IAD did not consider that evidence. If that evidence could have led to
a different result, then this review application must be granted.
[27]
The
Court accepts that the IAD has made a reviewable error because it failed to
consider evidence submitted by the applicant that indicates that the applicant
and Eugenia are sisters. That is, the IAD rejected the purported birth
certificates of the applicant and Eugenia, but failed to consider whether other
evidence could itself support their alleged relationship. In particular, the Court
accepts that the IAD did not adequately address the applicant’s documentary
evidence regarding the fact that both the applicant and Eugenia had the same
parents. Although the IAD rejected the authenticity of the two birth
certificates, the IAD nevertheless ought to have considered whether the other
documentation was sufficient to establish the relationship between the
applicant and Ms. Lasalita.
[28]
The
applicant submitted two marriage contracts to the IAD. At the Court hearing,
both parties agreed that these marriage contracts had been accepted as
authentic documents. The first marriage contract was that of the applicant’s
sister, Eugenia, dated June 8, 1965. The IAD expressly considered this marriage
contract at paragraph 22 of its decision, where it states that the fact that
Eugenia’s age is consistent between her marriage contract and the birth certificate
of Ms. Lasalita suggests that those documents, as opposed to Eugenia’s birth
certificate, correctly state her age. The IAD held that this fact “calls into
question the reliability of the information contained in the document that
purports to be Eugenia’s birth certificate.” That is, the IAD concluded that
the marriage contract was an authentic document.
[29]
The
second marriage contract submitted by the applicant was from her own marriage,
dated January 2, 1988. The IAD did not expressly refer to this document in its
reasons.
[30]
Both
marriage contracts list the names of the parents of the parties, and the names
of the parents of the applicant and of Eugenia are the same. The IAD accepted
the validity of Eugenia’s marriage contract. Although the IAD found that that
undermined the legitimacy of the purported birth certificate, the IAD ought to
have considered whether it could itself constitute evidence of the relationship
between the two alleged sisters when considered together with the applicant’s
marriage contract.
[31]
The
applicant also provided school records showing the applicant’s shared parentage
with Eugenia. The IAD did not expressly consider the applicant’s university
transcript, which names both of her parents. The IAD did consider Eugenia’s
high school records, but did not refer to the fact that those, too, listed the
names of her parents.
[32]
The
IAD did not appear to doubt that Eugenia is Ms. Lasalita’s mother. As a result,
had the IAD accepted that the applicant and Eugenia shared parents – that is,
were sisters – then the IAD would have concluded that Ms. Lasalita is, indeed,
the applicant’s niece.
CONCLUSION
[33]
Because
the IAD stated that the only evidence before it was the evidence referred to in
the reasons for decision, and because the IAD failed to refer to probative
evidence, this Court concludes that the IAD committed a reviewable error so
that this matter must be referred back to a different panel of the IAD for
redetermination. At that new hearing, the applicant can submit the results of
the DNA Analysis showing, as both parties agreed at the hearing, that the
applicant and Ms. Lasalita are related on a probability threshold of 99.98
percent.
CERTIFIED QUESTION
[1]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
This application for judicial review is granted and the
matter referred back to a different panel of the IAD for redetermination.
“Michael
A. Kelen”
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