Date: 20111216
Docket: IMM-801-11
Citation: 2011 FC 1481
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, December 16, 2011
PRESENT: The Honourable
Mr. Justice Boivin
BETWEEN:
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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LESLY JOSEPH
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application by the Minister of Citizenship and Immigration (applicant)
under subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the Act) for judicial review of the decision by the
Appeal Division of the Immigration and Refugee Board (the panel) dated
January 21, 2011. In that decision, the panel allowed the respondent’s
appeal of the refusal of his wife’s application for permanent residence as a
member of the family class under section 4 of the Immigration and Refugee Protection Regulations, SOR/2002‑227 (Regulations).
[2]
The applicant is asking the Court to make an order setting aside
the panel’s decision under paragraphs 18.1(4)(c) and
18.1(4)(d) of the Federal Courts Act, RSC 1985, c F-7. He alleges
that the panel erred in fact and in law.
I.
Background
A. Facts
[3]
Lesly Joseph (respondent) is originally from Haiti.
He has been a permanent resident in Canada since
October 19, 1998.
[4]
The applicant’s wife, Marie‑Michelle Annilus (respondent’s wife) is a citizen of Haiti.
She claims that she was born on December 11, 1976, approximately
six years before the respondent was born.
[5]
The respondent and his wife have known each other since childhood.
After learning that she was newly single, the respondent called her on
December 24, 2000. After a number of telephone conversations, the
respondent eventually proposed to her on December 11, 2001, and they were
married on June 21, 2002.
[6]
On June 28, 2006, the respondent filed an application to
sponsor his wife.
[7]
On
August 22, 2007, the respondent’s wife had an interview with an
immigration officer at the Canadian Embassy in Port‑au‑Prince, Haiti.
[8]
In
a letter dated November 26, 2007, the immigration officer rejected the
application of the respondent’s wife for permanent residence on two grounds: her
identity and the genuineness of the marriage.
[9]
Concerning
the identity of the respondent’s wife, the officer questioned the fact that she
had introduced into evidence a late declaration of birth issued in 1983 and the
fact that she had no reliable secondary documents to support the late declaration.
[10]
The
immigration officer also stated that, since identity had not been established,
she had doubts about the genuineness of the marriage. She determined that the
marriage between the respondent and his wife had been entered into primarily
for the purpose of acquiring permanent residence. The officer reached that
conclusion after considering how the respondent and his wife met, their ongoing
relationship after their marriage, her lack of knowledge about her husband, and
the type of documents filed. Consequently, the immigration officer determined that
her account was not credible.
[11]
In
a letter dated May 22, 2008, the immigration officer refused the
application and concluded that the respondent’s wife was a person referred to
in section 4 of the Regulations.
[12]
On
February 5, 2008, the respondent appealed that decision to the panel under
subsection 63(1) of the Act.
[13]
The
hearing before the panel took place in two parts.
[14]
The
panel’s first session dealt with the identity of the respondent’s wife—the
immigration officer’s first ground for refusal. The panel issued an
interlocutory decision on February 5, 2010, which stated that the
immigration officer had erred by concluding that the identity of the respondent’s
wife had not been established.
[15]
The
second session addressed the issue of the genuineness of the marriage between the
respondent and his wife (the second ground for refusal). That decision, issued
on January 21, 2011, allowed the appeal and concluded that the marriage
was genuine and bona fide.
[16]
On
this judicial review, the interlocutory decision issued on February 5,
2010, is the only decision that the applicant is disputing.
B. Impugned
decision
[17]
The
panel determined that the late declaration of birth of the respondent’s wife was
a reliable document even though it did not fully comply with the limitation
period. The panel found that the immigration officer had not indicated that the
late declaration of birth was a false document, that the document was not
issued in accordance with Haitian law or that the document was issued improperly,
either on the basis of false statements or by other means that do not comply
with the Act. The panel stated that the immigration officer had not given
adequate reasons for rejecting the document and that she had not considered the
explanations provided by the respondent’s wife.
[18]
In
addition, the panel found that the immigration officer failed to address the
validity of the passport and national identity card of the respondent’s wife although
they had been filed. Relying on Oumer v Canada (Minister of Citizenship and Immigration),
2003 FC 1353, [2003] FCJ No 1739, Andryanov v Canada (Minister of
Citizenship and Immigration), 2007 FC 186, [2007] FCJ No 272, Mijatovic v
Canada (Minister of Citizenship and Immigration), 2006 FC 685, [2006] FCJ No
860, and Ogunmefun v Canada (Minister of Citizenship and Immigration), [2000]
FCJ No 1302, 188 FTR 317, the panel stated that the passport was a document
that had been validly issued by the Haitian authorities.
[19]
The
panel also briefly considered the secondary documents filed in evidence to
establish the identity of the respondent’s wife. The panel explained that the
irregularities in the documents related to her presentation at the temple were
caused by the [translation] “context
and the particular situation in the country in question . . . and
that the registers are sometimes destroyed, lost or are not always properly
maintained” (Panel’s Decision, p 7). Also, with respect to the school documents
of the respondent’s wife and the fact that some of them spell her last name differently,
the panel accepted her explanation that these errors were, in fact, attributable
to the director of the École Sainte‑Catherine.
[20]
Consequently,
the panel found that the passport and national identity card of the
respondent’s wife were reliable documents and that the testimony was credible.
The panel therefore stated that the respondent had discharged his burden of
proving his wife’s identity on a balance of probabilities.
II.
Issues
[21]
The parties raised a number of issues. In the Court’s view, the pertinent
issue in this case is the following:
Did the panel err in fact and
in law in its assessment of
(a)
the
late declaration of birth;
(b)
the
passport of the respondent’s wife; and
(c)
the
secondary documents?
III.
Applicable
statutory provisions
[22]
Section 12 of the Immigration and Refugee Protection Act provides
as follows:
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Selection
of Permanent Residents
Family reunification
12. (1) A foreign national may be selected as a member of the family
class on the basis of their relationship as the spouse, common-law partner,
child, parent or other prescribed family member of a Canadian citizen or
permanent resident.
. . .
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Sélection
des résidents permanents
Regroupement familial
12. (1) La sélection des
étrangers de la catégorie « regroupement familial » se fait en
fonction de la relation qu’ils ont avec un citoyen canadien ou un résident
permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père ou mère
ou à titre d’autre membre de la famille prévu par règlement.
[…]
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[23]
Section 4
of the Immigration and Refugee Protection
Regulations states the following:
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Family Relationships
Bad faith
4. (1) For
the purposes of these Regulations, a foreign national shall not be considered
a spouse, a common-law partner or a conjugal partner of a person if the
marriage, common-law partnership or conjugal partnership
(a)
was entered into primarily for the purpose of acquiring any status or
privilege under the Act; or
(b)
is not genuine.
. . .
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Notion de famille
Mauvaise foi
4. (1) Pour
l’application du présent règlement, l’étranger n’est pas considéré comme étant
l’époux, le conjoint de fait ou le partenaire conjugal d’une personne si le
mariage ou la relation des conjoints de fait ou des partenaires conjugaux,
selon le cas:
a) visait
principalement l’acquisition d’un statut ou d’un privilège sous le régime de
la Loi;
b) n’est
pas authentique.
[…]
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IV.
Standard
of review
[24]
The Court points out that in Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], the Supreme Court stated at paragraph
51 that “. . . questions of fact, discretion and policy as well
as questions where the legal issues cannot be easily separated from the factual
issues generally attract a standard of reasonableness while many legal issues
attract a standard of correctness. Some legal issues, however, attract the more
deferential standard of reasonableness.” Thus, the
Court agrees with the parties, and the reasonableness standard applies in this
case.
V.
Analysis
[25]
Two
introductory comments are appropriate before the Court can deal with the issues
and evidence that the parties are disputing.
[26]
First,
it should be noted that the parties agree on the fact that, under the
exhaustion doctrine, the applicant only filed an application for judicial
review of the panel’s interlocutory decision of February 5, 2010, after
the final decision of January 21, 2011, because there were no exceptional
circumstances justifying a review of the interlocutory decision prior to the
final decision (see C.B. Powell Ltd. v Canada (Border Services Agency),
2010 FCA 61, 400 NR 367; Greater Moncton International Airport Authority v
Public Service Alliance of Canada, 2008 FCA 68, [2008] FCJ No 312). The
respondent does not dispute this fact.
[27]
The
Court also believes it is appropriate to point out that appeals before the
panel are de novo hearings. In Mendoza v Canada
(Minister of Public Safety and Emergency Preparedness),
2007 FC 934, [2007] FCJ No 1204, my colleague, Mr. Justice de Montigny,
wrote the following:
[20] I need only add to this that the Kahlon
decision has been followed repeatedly by this Court after the adoption of the IRPA,
and it is often noted in these cases that the de novo jurisdiction issue
is accepted and not a point of contention between the parties: see, for
example, Singh v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1673, at paragraph 8; Ni v. Canada
(Minister of Citizenship and Immigration), 2005 FC 241, at paragraph 9; Canada
(Minister of Citizenship and Immigration) v. Savard, 2006 FC
109, at paragraph 16; Canada (Minister of Citizenship and Immigration) v.
Venegas, 2006 FC 929, at paragraph 18; Froment v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1002, at paragraph 19.
At
this stage, the Court will address the issue of the late declaration of birth
of the respondent’s wife.
(a) Late
declaration of birth of respondent’s wife
[28]
The
applicant states that even if the late declaration of birth is a legal
document, this type of document is often issued fraudulently. The applicant says
that the late declaration of birth cannot be used to confirm her identity
because it was issued in 1983, seven years after she was born. The applicant also
submits that her explanation is contradictory. She says that when she was to be
enrolled in school, her parents noticed that they had mislaid her birth
certificate. Accordingly, they had to obtain this late declaration. However, the
applicant points out that the evidence shows that the respondent’s wife was
enrolled in school in 1982, a year before the late declaration was obtained.
Although this contradiction was raised at the hearing before the panel, the
applicant notes that the panel disregarded this irregularity and simply stated
that [translation] “when the late
declaration of birth was obtained, on June 25, 1983, she was six years
old. The panel does not doubt her testimony that she needed it for school” (Panel’s
Decision, paragraph 10).
[29]
In
addition, the applicant maintains that in considering the late declaration
issue the panel should have followed its own previous decisions (Durandisse v Canada (Minister
of Citizenship and Immigration), [2008] IADD
No 1594, 2008 CanLII 75911 (IRB) [Durandisse]; Joseph v Canada (Minister
of Citizenship and Immigration), [2007] IADD
No 527, 2007 CanLII 52912 (IRB) [Joseph]; Lubintus v Canada (Minister
of Citizenship and Immigration), [2010] IADD
No 22, 2010 CanLII 38258 (IRB) [Lubintus] and those of the
Federal Court (Julien v Canada (Minister of
Citizenship and Immigration), 2010 FC 351, [2010] FCJ No 403 [Julien].
[30]
Essentially
for the applicant, these decisions state that late declarations of birth from Haiti are not
reliable identity documents. Although the applicant argued the Durandisse
case before the panel, he criticizes the panel for disregarding it.
Consequently, the applicant contends that the failure to consider previous IAD
decisions is a reviewable error.
[31]
For
his part, the respondent takes the position that the panel stated that the
applicant had not provided evidence that the late declaration of birth was a
false document, had not been issued in accordance with Haitian law or had been
issued improperly. The Court notes that counsel for the respondent submitted at
the hearing that the late declaration of birth was obtained a year after his
wife started school because a birth certificate is required only for primary
school not kindergarten. The respondent also alleges that his wife’s late
declaration of birth is not an excerpt from the archives but a birth
certificate with a judgment from the St. Marc civil court dated
June 23, 1983.
[32]
Also,
the respondent submits that the Julien and Joseph cases do not
apply because, he says, they differ from this case (Respondent’s Memorandum, paragraph
19).
[33]
First,
the Court observes that the panel’s decision did not analyze the irregularity
raised by the applicant concerning the issuance of the late declaration of
birth. On this point, the panel’s reasons at paragraph 10 of the decision are
inadequate because they say nothing about the irregularity in the evidence that
the applicant raised. Pursuant to Cepeda‑Gutierrez v Canada
(Minister of Citizenship and Immigration) (1998), 157 FTR 35 [Cepeda‑Gutierrez],
the onus is on the panel to explain why it accepted the explanation of the
respondent’s wife regarding the one‑year discrepancy between when the late
declaration of birth was obtained (1983) and when she started school (1982).
[34]
The
evidence in the record does not corroborate the explanation provided by the
respondent’s wife. For example, there is no document or affidavit to verify
that her name can be written differently and that the late declaration of birth
was required in the first grade (1983) and not in kindergarten (1982), the year
that she enrolled in school. Consequently, in the Court’s view, the panel erred
by failing to analyze these irregularities, which raise a doubt about the late
declaration of birth. The panel’s reasons on this point are insufficient.
[35]
Regarding
the jurisprudence cited by the applicant—the Julien, Joseph, Lubintus
and Durandisse cases—the Court observes that the applicant tried to
establish that late declarations of birth are a priori unreliable as
evidence of identity in Haiti. However, the Court notes that the facts
of some of those decisions differ from the facts in this case.
[36]
In
the Julien case, the Court held that a doubt persisted about the
reliability of a Haitian citizen’s late declaration of birth. This doubt was
based on the fact that the applicant had stated that her father made her late
declaration whereas the evidence showed that the applicant’s father had died.
[37]
In
the Joseph case, the panel believed that the procedure for obtaining a late
declaration was flawed “because anyone can simply appear before the
officer of civil status and declare that someone is his or her daughter to
obtain a late declaration of birth and, subsequently, a passport” (paragraph
8). The Court accepts the respondent’s argument that the declaration in this
case was made following a civil court judgment, not by an officer of civil
status, and that it was not demonstrated that the judgment was so flawed that
it should have been disregarded.
[38]
With
respect to the Lubintus case, the Court notes that the panel refused to attach
any probative value to a Haitian passport issued on the basis of a late
declaration of birth. However, in that case, the applicant had not provided any
secondary documents. Furthermore, in Lubintus, the late declaration of
birth was issued 22 years after the applicant was born.
[39]
Last,
in Durandisse, although the panel stated that a Haitian passport issued
on the basis of a late report of birth cannot conclusively establish the
bearer’s identity, the panel also confirmed the special importance of secondary
proof of identity in Haiti to corroborate late declarations given the
very high rate of fraud and impersonation.
[40]
In
light of the foregoing, the Court is of the view that determining the validity
and probative value of a late declaration of birth is largely a question of
fact. Conclusions about identity must be based on all the evidence, and the
Court cannot make definitive findings based on the decisions referred to by the
applicant. For this reason, although it would have been preferable had the
panel dealt with some of the decisions cited by the applicant, failure to do so
in this case is not fatal per se.
(b)
Passport
of respondent’s wife
[41]
The
applicant maintains that the panel erred by finding that the passport of the
respondent’s wife, an authentic document issued by the state, could be used as
proof of her identity.
[42]
The
applicant submits that the panel ignored the fact that the passport was issued
on the strength of unreliable documents: her late declaration of birth and her
national identity card.
[43]
The
applicant points out that the appearance of authenticity of a document issued
by a foreign state carries a rebuttable presumption of validity (see Azziz v
Canada (Minister of Citizenship and Immigration), 2010 FC 663, [2010] FCJ No
767, paragraph 67) and that the Canadian authorities may always challenge the
truthfulness of the entries in a foreign passport (see Azziz; Saleem v
Canada (Minister of Citizenship and Immigration), 2008 FC 389, [2008] FCJ No
482, paragraphs 28 to 31; Ariyaratnam v Canada (Minister of Citizenship and
Immigration), 2005 FC 1216, [2005] FCJ No 1497, paragraphs 8 and 9; Ma v
Canada (Minister of Citizenship and Immigration), 2011 FC 417, [2011] FCJ No
530, paragraph 14).
[44]
For
his part, the respondent submits that the panel’s reasons with respect to the
passport should not be reviewable. Essentially, for the respondent, the
jurisprudence on the issue of the reliability of passports indicates that a presumption
of good faith applies to a passport issued by a national authority, but that
presumption may be rebutted by evidence to the contrary regarding how it was
obtained. Any one who wishes to disregard such a document must provide detailed
reasons, which the immigration officer did not do in this case.
[45]
In
the Court’s view, a passport is sufficient prima facie evidence of
citizenship (Varin v Cormier (1937), DLR 588 (Que. Sup. Ct.); Radic v
M.E.I (1994), 85 FTR 65; Adar v M.C.I, [1997] FCJ 695). However, this
presumption is rebuttable and may be refuted if there is evidence to the
contrary.
[46]
In
this case, the passport of the respondent’s wife was issued on the strength of
her late declaration of birth. The validity of the passport is necessarily
compromised if it is based on a document that is potentially unreliable or
about which a doubt persists. As explained above, this is the case of the late
declaration of birth. Consequently, in light of the doubts raised by her late
declaration of birth, it follows that the panel necessarily erred in evaluating
the probative value of her passport.
[47]
Last,
the Court points out however that secondary documents may dispel this doubt.
(c)
Secondary
documents of the respondent’s wife
[48]
The
applicant disputes the panel’s findings with respect to the secondary documents
and relies on a number of deficiencies and gaps in the school documents
provided by the respondent’s wife, her certificates of presentation at the temple,
her church card and her national identity card, which the applicant had
previously raised at the hearing before the panel. The failings include the
following:
·
The respondent’s
wife introduced into evidence a list of marks for the École la Providence for the 1990‑1991
school year, issued on February 19, 2008. However, she stated in her
application for permanent residence (APR) that she was a student there from
October 1982 to June 1990. This document also indicates that she was admitted
at Secondary VI, but she wrote in her APR that this institution was a primary
school (pages 75 and 266 of the Tribunal Record);
·
The respondent’s
wife provided a list of marks from the Collège Dumarsais Estime for the 1995‑1996
school year, issued on February 22, 2008. However, according to her APR, she
attended school there from October 1990 to June 1995 (pages 75 and 267 of the Tribunal
Record);
·
The certificate
from the École d’Auxiliaires Sainte Catherine provided by the respondent’s wife
to the panel is dated September 12, 2000. According to the APR, she was a
student there from October 2000 to December 2001 (pages 75 and 270 of the Tribunal
Record);
·
The
certificate from the Hôpital La Sainte-Famille dated April 25, 2002, which
is in French, includes words in English like “nursing” and “miss” (page 276 of
the Tribunal Record);
·
All of the
school documents of the respondent’s wife contain the same error in the
spelling of her last name (pages 268, 270, 271, 272, 274, 275 of the Tribunal Record).
[49]
Moreover,
the applicant argues that the certificates of presentation at the temple are not
independent and verifiable sources. The applicant says that these types of
documents are issued by pastors to assist their members and that these
organizations do not keep reliable records.
[50]
The
respondent argues that, after hearing the testimony and explanations of the
respondent and his wife, the panel concluded that they were credible. With
respect to the spelling errors in the documentation, the respondent submits
that all the documents that contain errors are based on the initial erroneous
registration of his wife by the director of the École Ste‑Catherine. On a
balance of probabilities, the respondent maintains that the panel found that
his wife’s straightforward and consistent explanations were credible, which
gave them significant weight in this case. Accordingly, the panel determined
that the respondent’s wife had established her identity in a reliable manner.
[51]
The
Court notes that the secondary documents of the respondent’s wife were filed to
support her identity in light of the late declaration of birth. Although the
panel heard the testimony and based its decision on the late declaration of
birth, all of the secondary documents filed in the record do not dispel the
doubt as to the identity of the respondent’s wife, on the contrary.
[52]
Although
the doubts and contradictions in the secondary documents were raised by the
applicant at the hearing before the panel, the panel did not address some of
them and disregarded others entirely. For example, at paragraph 19 of its
decision, the panel refers to the school documents but does not identify and
explain the incongruities and inconsistencies. The panel simply wrote that [translation] “with respect to other
documents submitted as proof of identity, the appellant filed school documents”.
[53]
Moreover,
the Court finds that the panel cannot remedy this failure by its explanation in
paragraph 21 of its decision, which reads as follows:
[translation]
In assessing the applicant’s
identity, the immigration officer did not take into account the significant
problems faced by Haitian citizens in obtaining documents to prove their
identity. This requirement by the immigration officer puts people into a
difficult situation and may even prompt them to obtain all sorts of documents
that can establish their identity.
In accordance with the Cepeda‑Gutierrez
decision, the Court reiterates that in this case the panel was required
to analyze the secondary documents—specifically the school documents—and to
explain why it accepted them despite the fact that they contradict or cast
doubt on certain facts submitted by the respondent’s wife.
[54]
In
the Court’s view, the panel’s findings on the school documents, the passport
and the late declaration of birth were not sufficiently substantiated and did
not take into account the contradictory evidence that was before it regarding
the identity of the respondent’s wife.
[55]
In
these circumstances, the Court’s intervention is
warranted. No question will be certified.
JUDGMENT
THE COURT RULES
that
the application for judicial review is allowed, the panel’s decision is set
aside and the matter is remitted to a differently constituted panel for redetermination.
No question is certified.
“Richard Boivin”
Certified
true translation
Mary
Jo Egan, LLB
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