Date: 20070303
Docket: IMM-1650-07
Citation: 2008 FC 284
Ottawa, Ontario, March 3, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
JAHANSHASH
ANBOUHI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision rendered by a visa officer
(officer) in Damascus, Syria, dated March 1, 2007, rejecting the applicant’s
application for permanent residence in Canada and finding the applicant
inadmissible pursuant to section 40(1)(a) and 40(2)(a) of the Immigration
and Refugee Protection Act (IRPA).
I. Background facts
[2]
The
applicant is a citizen of Iran. She applied for permanent residence in Canada under the
Investor Category, along with her husband and her son, Hessam Pedram, and her
daughter-in-law, Mojgan Hosseinpoor.
[3]
The
applicant is a chemist who owns and is chair of a company in Iran and is
interested in investing money in the Province of Quebec. Her son and
daughter-in-law are university educated, and each possesses a bachelor’s
degree.
[4]
The
applicant presented her application on June 29, 2005 in Damascus, Syria. She was
assisted by an immigration consultant, M. Shahid & Associates, situated in Damascus, Syria.
[5]
In
her application, she declared that her son Hessam Pedram had married Mojgan
Hosseinpoor on February 18, 2001 and presented a document to prove this fact.
[6]
The
officer decided to have this document investigated because Hessam Pedram had
declared that he was not married in an application he made for a student visa
in 2004. The document was investigated and questions arose as to the
authenticity of the document because, amongst other reasons, no record of the
marriage could be found.
[7]
On
January 25, 2007, the officer wrote to the applicant and outlined the problem.
The applicant was given 30 days to address it.
[8]
On
February 6, 2007, the consultant asked the officer why the document of marriage
was considered false and requested an unspecified amount of time to solve the
problem. It was justified on the basis that the letter had only been received
on the 5th. The officer replied by fax on February 8 it was because
of the applicant’s son’s declaration and the fact that the marriage was not
registered. Further, the officer denied the request for an extension.
[9]
The
court documents reveal that the couple resided in the applicant’s home and
began intimate relations as of February 18, 2001.
[10]
In
the correspondence that followed, Hessam Pedram explained that he declared that
he was not married in 2004 because of Iranian customs; the parties were only
considered engaged until the public celebration was held in 2004, when an
official marriage was celebrated and registered in the Tehran registry. He
also said the 2004 celebration was also held to accommodate a guest who could
not attend the 2001 celebration.
[11]
The
tribunal record (page 204) reveals that Hessam Pedram and Mojgan Hosseinpoor
had a new marriage ceremony on February 18, 2007. Verification of the marriage
certificate was sent by email to the officer stating that all marriage
certificates must bear a number and the region it is issued, which is then
registered in the main Tehran office (see p.110 of the tribunal record).
[12]
In
this case, the marriage certificate of 2004 does not bear either a number or
the region where it was issued. However, there is a certified copy of a
religious marriage between the parties, dated February 18, 2007 (Certified
Tribunal Record (CTR.), p. 204).
[13]
On
February 20, 2007, the applicant’s consultant sent a letter to the officer
accompanied by documents (12 pages) to confirm the couple’s marriage in 2001.
[14]
The
applicant also sent a letter with enclosed documents to the officer on February
21, 2007, to explain the marriage and registration in a provincial registry
office in 2001, and suggest reasons why the Tehran main office
was not aware of this fact. She also offered to fax the original first marriage
certificate if necessary (CTR, p.58).
[15]
On
February 28, 2007, the applicant’s consultant sent a letter to the officer
accompanied by 35 pages of documents to prove the 2001 marriage was genuine
(CTR, p.8). It included a declaration by a marriage registry office in Tehran
indicating that there had been a mistake because the notary’s certificate indicated
that the marriage occurred in 2004, while it was celebrated on February 18,
2001 (CTR, p.11) (this letter was sent on February 28, 2007 to the visa office
but was only received on March 4, 2007, i.e. after the decision of March 1,
2007).
II. Decision of the
officer
[16]
The
officer determined that the applicant does not qualify for immigration to Canada on the basis
of subsections 40(1)(a) and 40(2)(a) of the IRPA.
[17]
The
officer stated that the applicant misrepresented the date of marriage of her
son. The officer made this determination on the basis that the applicant’s
son’s marriage certificate (dated February 18, 2001) that was submitted with
the application had been sent for verification and found to be unregistered in
addition to other discrepancies indicating that it was not authentic. Further,
in the student application made by the applicant’s son in June 2004, he
declared himself to be unmarried.
[18]
The
officer noted that this could have induced errors in the administration of the
Act because dependants who were married before the age of 22 may be considered
eligible for inclusion in an application for permanent residence.
[19]
Therefore,
the officer found that the applicant was inadmissible into Canada for two
years from the date of the letter. As she was inadmissible, her application was
refused.
[20]
The
reasons also include Computer Assisted Immigration Processing System (CAIPS)
notes.
[21]
These
notes include the information described before. They also indicate that on
February 21, 2007, the applicant provided a letter of explanation, a letter
from a Notary Public, a letter from the official who wed the couple, a copy of
the marriage statement and affidavits from the applicant and her son. The CAIPS
notes indicate that the applicant and her son alleged that the marriage was not
consummated until some time after it had occurred, therefore the applicant’s
son considered himself engaged and not married at the time of the student visa
application. The CAIPS notes indicate that the applicant also alleged, in
regard to the 2001 certificate, that the couple did marry twice (once in 2001
and once in 2004), because a wedding guest was missing from the first ceremony.
[22]
The
CAIPS notes indicate that further documents were sent on February 26, 2007, and
that these documents contradicted the earlier claims of celibacy as they
included a letter from Hessam’s wife’s gynaecologist that indicated that the
couple entered into an intimate relationship on February 18, 2001.
[23]
The
CAIPS notes indicate that on February 27, 2007, even more documents were
received that contradicted the earlier affidavits about the couple’s
relationship. Further the CAIPS notes also indicate that the issue of the false
marriage certificate had not been adequately addressed.
[24]
Finally,
the applicant’s consultant sent a letter on February 28, 2007, to the officer
accompanied with documents (35 pages) emanating from the applicant, her son or
daughter-in-law or other persons that essentially repeated or affirmed the
explanations about the marriage. It was only received by the officer on March
4, 2007, after the decision was rendered.
III. Issue
[25]
Only
one issue exists.
A. Did
the officer breach procedural fairness by
failing to provide sufficient time for the applicant to disabuse the officer’s
concerns?
IV. Position of the
parties
Applicant’s submissions
[26]
The
applicant submits that the only issue is that a request was made for further
time to provide documents that she believed would satisfy the officer, but that
such time was not granted. The applicant further suggests that the respondent
does not address this issue in its submissions.
[27]
The
applicant submits that Tam v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 1784, (1995) 35 Imm.
L.R. (2d) 201 at paras. 4 to 6 is similar to the present case. The applicant submits
that the fact that documents were provided does not distinguish the present
case from Tam as more time was required to properly reply; in effect,
the officer did not allow reasonable time to provide the information. The
applicant suggests that a time frame cannot be reasonable if they are unable to
provide all that they would in the time given even if they provided all that
they could in that time.
[28]
The
applicant also argues that the present case cannot be distinguished from Tam
on the basis of the fact that the misrepresentation was unknown since that
implies the applicant would have known the officer’s finding before it was
given.
Respondent’s
submissions
[29]
The
respondent submits that the applicant was given sufficient time to respond to
the issues that arose in regard to her application.
[30]
The
respondent also submits that the assertion that the refusal of an additional
extension of time to respond impinged on the applicant’s ability to fully
address the issues raised is without merit. The respondent points out that the
CAIPS notes reveal that the applicant’s consultant submitted the following in
response to the issues surrounding her application: (a) a letter of explanation
from the applicant; (b) a letter from Notary Public No. 24; (c) a letter from officiant
at the applicant’s son’s wedding; (d) a copy of the marriage statement; (e) an
affidavit from Hessam; and (f) an affidavit from the applicant. The respondent
also notes that in Hessam’s affidavit he claims he was celibate at the time of
his 2004 application despite his 2001 marriage, but that this contradicts the
letter of his wife’s gynaecologist which states that the couple entered into an
intimate relationship on February 18, 2001. The respondent further notes that
the claim of two (or three) marriages for Hessam and his wife did not address
the fraudulent nature of the marriage certificate, which had no registry number
and did not include the name of the district where it was issued.
[31]
Based
on the above, the respondent submits that the applicant had a full and fair
opportunity to explain the misrepresentation. The respondent also submits that
the explanation and evidence were found to be not credible and outright
contradictory.
[32]
The
respondent differentiates the present case from Tam on the basis that:
(1) the applicant had a first extension of time; (2) the applicant in the
present case, and her consultant did submit supporting documents; (3) the
applicant knew of her son’s marital status unlike in Tam where the medical
examination revealed the condition for the first time.
[33]
The
respondent submits that the applicant had ample time to go to a registry office
in Tehran with the
marriage certificate and have it registered or at least authenticated. Instead
of doing that, the applicant obtained a certificate confirming the date of the
marriage involved from a Tehran lawyer on February 18, 2007, wrote an
opinion on the subject (CTR, p.13).
V. Analysis
Standard of review
[34]
The
applicant suggests the standard of review of correctness as this is a matter of
procedural fairness.
[35]
When
a statute delegates power to an administrative decision maker, the reviewing
judge must began by determining the standard of review. However, a distinction
must be made between the standard of review to be applied to the ultimate
decision of an administrative decision maker as opposed to the procedural
framework in which the decision is made.
[36]
When
dealing with an allegation of denial of natural justice or procedural fairness,
a court is not obliged to engage in an assessment of the appropriate standard
of review.
Analysis
[37]
The content of the duty
of fairness will vary depending on the facts of each case: Ha v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 49, [2004] F.C.J. No. 174.
[38]
In
Khwaja v. Canada (Minister of Citizenship and Immigration), 2006 FC
522, [2006] F.C.J. No. 703 at para. 17, Justice Blanchard stated that the duty
of fairness “requires that an applicant be given notice of the particular
concerns of the visa officer and be granted a reasonable opportunity to respond
by way of producing evidence to refute those concerns.” (see also John v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 257, [2003] F.C.J. No. 350, and Haghighi
v. Canada (Minister of
Citizenship and Immigration),[2000] 4 F.C. 407, [2000] F.C.J. No. 854 (F.C.A.)).
[39]
In
this case, the issue is whether or not the time provided (30 days from January
25 plus 4 since the decision was rendered on March 1, 2007) was a reasonable
opportunity to respond to those concerns.
[40]
In
Gakar v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 661, (2000), 189 F.T.R. 306, Justice Teitelbaum quashed a
decision of a visa officer refusing a request for an additional 30 days on top
of the 30 days already given to respond. It is important to note that the
applicant in that case provided reasons for why the required documentation
could not be obtained within the time granted. This point was raised in Ching-Chu
v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 1117
where the court determined that there was no violation of natural justice, and Gakar
was found to be distinguishable on this, and other, basis.
[41]
As
noted by Justice Muldoon in Prasad v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 453, (1996),
34 Imm. L.R. (2d) 91 (F.C.T.D.) at paragraph 7:
The onus is on the applicant to satisfy the visa officer
fully of all the positive ingredients in the applicant's application. It is
not for the visa officer to wait and to offer the applicant a second, or
several opportunities to satisfy the visa officer on necessary points which the
applicant may have overlooked. [Emphasis added]
[42]
In
Tam, at para. 5, Madam Justice Simpson stated the following:
In my view, having offered the applicant
an opportunity to respond, the Officer had an obligation to allow reasonable
time for that purpose. Given that the medical condition was a new
discovery and that the application was already four years old and
that the applicant's solicitor was located near Toronto while the applicant was
in Hong Kong, Mr. Lee's request for
approximately two additional weeks to submit material was reasonable in the
circumstances. In my view, it was unfair of the Officer to decide the case
without granting the extra time and without even acknowledging the request for
additional time.
[43]
In
that case, the applicant requested only two more weeks to respond. In the
present case, the applicant has made an open-ended request for time. Further,
in Tam the officer did not even acknowledge the request for additional
time.
[44]
In
the present circumstances, it appears that the applicant had a reasonable
opportunity to respond by way of producing evidence to refute the concerns
raised, i.e. produce a valid or certified copy of the marriage from a registry office
in Tehran.
[45]
The
applicant based her request for more time on the claim that the letter had been
received slightly over a week late, thus providing her with less than the 30
days offered to respond. While this is problematic, the applicant did not say
why this lost time made it so she could not properly respond. She did not
explain how much more time she required, what additional evidence she was
seeking to acquire, or why that evidence could not be provided within the days
remaining.
[46]
In
fact, the applicant did send in a significant amount of material during the
time provided. The evidence, while of questionable value, goes to both issues
raised by the officer. Unfortunately for the applicant, there were a number of
documents in those submissions that that the officer claimed contradicted each
other. Further, the applicant was able to ultimately provide explanations for
both issues raised by the officer. Those explanations were simply insufficient
to convince the officer of the applicant’s claims.
[47]
The
only hint of what else the applicant might have sought came in those additional
submissions where the applicant seems to suggest that she is undertaking to
find something out about why the marriage certificate was not registered. There
is the suggestion that the matter is being pursued and that documents will be
presented to the officer at some point, but no further extension is requested
and no timeline is provided.
[48]
The
first is a letter on page 11 of the Certified Tribunal Record purportedly from
“State Organization of Documents & Real Estates Registration Marriage
Registry No. 24 of Tehran”. However, it appears to be an affidavit related
to a request to change the date of their 2004 marriage certificate to 2001,
rather than a document relating to the knowledge of someone at a registry about
the 2001 marriage certificate itself.
[49]
The
second document, at page 13 of the Certified Tribunal Record, is simply a
letter from a lawyer. He states that couple were married in 2001 and simply had
their marriage entered by Marriage Registry No. 24 (Contract No. 10028) entered
later on.
[50]
Taken
together, these letters also seem to contradict the applicant’s earlier
statements about registration problems. Instead, the applicant now seems to be
trying to use the changed date on the 2004 marriage certificate as if it is
evidence of the 2001 marriage.
[51]
Therefore,
it appears that the applicant did provide some evidence as to the fraudulent
marriage certificate, but she could not successfully explain the marriages of
2001 and 2004 (and now the marriage of February 18, 2007 and registered the
same day).
[52]
Had
the request simply been an extension for 10 or so more days to make up for the
slow mail service and because those 10 days were necessary to gather certain
documents, such a request may have been reasonable. However, what the applicant
appears to have requested here is a finding that it was reasonable in the
circumstances to grant an indefinite extension until the applicant
was satisfied with what she had assembled. Further, as noted above, the
applicant had the opportunity to provide both evidence an explanation on the
issues surrounding the date of her son’s marriage. The applicant took advantage
of the opportunity and has not indicated further why she needs more time to respond
nor how much more time she will require.
[53]
A
delay of 30 days to produce a document was held to be a reasonable time limit
and did not breach the rules of national justice, see Fargoodarzi v. Canada
(Minister of Citizenship and Immigration), 2008 FC 90, [2008] F.C.J. No.
133 at para. 19. The same application determines the result of the present
case.
[54]
I
must conclude that the situation does not reveal any reviewable error on the
part of the officer.
[55]
Therefore,
this application should be dismissed. No question is to be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application for
judicial review is dismissed.
"Orville
Frenette"
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