Date: 20101115
Docket: IMM-1637-10
Citation: 2010 FC 1143
Ottawa, Ontario, November 15,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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RAJ RANI MINHAS
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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
I. INTRODUCTION
[1]
The
Applicant, Raj Rani Minhas, was denied permanent residence status as a skilled
worker because she had not earned sufficient “points” in the immigration
criteria. The Applicant would have had sufficient points if the Visa Officer
had accepted that she had a relative (her husband’s brother) in Canada. This is the
judicial review of the Visa Officer’s decision.
II. BACKGROUND
[2]
The
Applicant, a citizen of India, applied for a permanent resident visa as
a skilled worker based on her profession as a secondary school teacher. Her
husband was included in her application.
[3]
Her
application was refused because she received 64 points whereas the required
number was 67. She was awarded 0 points for having a relative in Canada.
[4]
The
Applicant claimed that her evidence of her brother-in-law’s Canadian
citizenship, submitted as part of her application, included copies of Mr.
Ranjit Singh Minhas’ (Ranjit Singh) (the alleged brother-in-law) Record of
Landing, Alberta Personal Health Card, his Social Insurance Number and Canadian
Passport. She also submitted as proof of the fraternal relationship with her
husband Ranjit Singh’s Ministry of Defence Junior Air Certificate Examination
and his 1981 Matriculation Examination Certificate.
[5]
The
Visa Officer’s affidavit in this matter attests to her having received as
updated information only the Matriculation Examination Certificate as proof of
fraternal relationship and only the Canadian passport as evidence of Ranjit
Singh’s citizenship. In addition, the Visa Officer had already received copies
of Ranjit Singh’s Citizenship Card and his Income Tax Return.
[6]
The
Visa Officer found a discrepancy between the birth dates on Ranjit Singh’s
Canadian passport and his 1981 Matriculation Examination Certificate. One
indicated a date of birth of August 26, 1963, and the other February 6, 1964.
[7]
The
Visa Officer, on the basis of this discrepancy alone, concluded that there was
insufficient proof that the Applicant had a relative in Canada.
[8]
After
the Visa Officer’s decision, the Applicant submitted additional documents
trying to show the relationship between her husband and Ranjit Singh. The Visa
Officer attests to considering one of the new documents, an Indian land
document showing Ranjit Singh owned property (it had no date of birth
information) but she apparently refused to have regard to the other documents
being a power of attorney to the Applicant’s husband to manage Ranjit Singh’s
properties, a family tree showing the respective brothers’ shareholdings and
the mother’s death certificate.
[9]
The
controlling issue in this judicial review is the Visa Officer’s consideration
of the discrepancy between Ranjit Singh’s date of birth on his Canadian passport
and that on his high school leaving document.
III. ANALYSIS
[10]
Both
parties accept reasonableness as the standard of review for the Visa Officer’s
decision (Wai v. Canada (Minister of
Citizenship and Immigration), 2009 FC 780) with the Respondent contending
that considerable deference is owed.
[11]
The
parties are correct as to the standard of review of the decision. The attempt
to elevate deference cannot be used to move the “reasonableness” standard back
to the previously unmanageable “patent unreasonableness” standard under the
guise of deference. The focus remains on “justification, transparency and
intelligibility within the decision making process” and in the result on a
range of possible acceptable outcomes defensible in respect of the facts and law.
[12]
The
Applicant also raises the issue of procedural fairness in not confronting the
Applicant with the date of birth discrepancy prior to the decision. To the
extent that this is a live issue, it must be reviewed on a correctness
standard.
[13]
Assuming
that fairness did not, in these unusual circumstances, dictate that the Visa
Officer raise her concerns about the inconsistent documents, the question is
whether this was a reasonable decision.
[14]
Contrary
to the Applicant’s position, this is not a case of preferring one date of birth
over another. It is evident that the Matriculation Examination Certificate was
the only document before the Visa Officer which was used to establish the link
between the alleged brothers.
[15]
If
the Certificate was accurate, then the Visa Officer’s conclusion would have
been reasonable. It would have meant that the Canadian citizen with a birth
date of August 26, 1963 could not be the same person as the Indian citizen born
February 6, 1964. The other, and less likely conclusion, is that Ranjit Singh
had false documentation to secure his Canadian passport.
[16]
Therefore,
everything turns on the veracity of the Matriculation Examination Certificate
because it flies in the face of the weight of the evidence about Ranjit Singh.
[17]
Therefore,
this case turns, not on the sufficiency of evidence as argued by the
Respondent, but on the credibility, accuracy or genuineness of the evidence.
[18]
This
Court has held that visa officers are not required to advise applicants about
concerns of adequacy, completeness or sufficiency of documents. However, this
Court has held that where accuracy or genuineness of information is at issue,
an applicant is entitled to know that a visa officer has these concerns.
[19]
Justice
Snider in Baybazarov v. Canada (Minister of Citizenship
and Immigration), 2010 FC 665, summarized the state of the law at paragraphs
11-12 as follows:
11 First
and foremost, applicants have the burden to establish entitlement to a visa.
Applicants bear the responsibility to produce relevant information to assist
their application. There is no obligation on officers to apprise an applicant
of concerns that arise directly from statutory requirements. Officers are also
not required to give applicants a "running score" of weaknesses in
applications. See Rukmangathan, above, at paragraph
23; Nabin v. Canada (Minister of Citizenship and Immigration), 2008 FC 200, [2008] F.C.J. No. 250 at paragraph 7; Rahim v. Canada (Minister of Citizenship and Immigration), 2006 FC 1252, 58 Imm. L.R. (3d) 80 at paragraph 14.
12 Second,
officers have a duty to notify applicants where: a) concerns arise about
credibility, accuracy or genuineness of the information submitted (see Nabin, above, at para.
8); or b) the officer has relied on extrinsic evidence (see Rukmangathan, above, at
para. 22; Nabin,
above, at para. 8; Mekonen,
above, at para. 4). The purpose of this duty is to allow applicants a fair and
reasonable opportunity to know the case against them and to respond to
concerns.
[20]
The
Visa Officer’s concerns fell within the exception to the rule that notice of
evidentiary concerns need not be given. (See Nabin, above.)
[21]
It
would be profoundly unfair to decide against an applicant on the basis of a
typographical or clerical error which could easily be addressed. Fairness is at
the root of the Visa Officer’s obligation to have given the Applicant notice
that the discrepancy in dates of birth was not addressed and was highly
relevant. No such notice was given.
IV. CONCLUSION
[22]
Therefore,
this judicial review will be granted, the decision of the Visa Officer quashed
and the matter referred to a different visa officer for a new consideration
including affording the Applicant an opportunity to address the matters raised
in this judicial review.
[23]
There
is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted, the
decision of the Visa Officer is quashed and the matter is to be referred to a
different visa officer for a new consideration including affording the Applicant
an opportunity to address the matters raised in this judicial review.
“Michael
L. Phelan”
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