Date: 20080408
Docket: IMM-3112-07
Citation: 2008 FC 451
BETWEEN:
IMMACULÉE
MUKAMUTARA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
PHELAN
J.
I. OVERVIEW
[1]
The
decision challenged is a refusal by a Visa Officer (Officer) to grant an
application for permanent residence to the Applicant’s adopted daughters. The
basis for the decision is that the Officer found the two girls to be untruthful
about the date of their father’s death, although only one had been interviewed.
The effect of the decision is to keep the daughters away from their adoptive
mother.
II. BACKGROUND
[2]
The
Applicant is the adoptive mother of two girls, Vanessa (born 1989) and Sabrina
(born 1991). The Applicant is a Rwandan national who was granted refugee status
in October 2003. In March 2004, she sought permanent residence status for her
two adopted daughters.
[3]
The
girls’ birth mother -- the Applicant’s sister -- died in 1995. The girls were
then adopted in July 1996 by Ms. Mukamutara.
[4]
After
the permanent resident visa applications were filed in October 2005, the
Officer interviewed Vanessa but not Sabrina.
[5]
This
case turns on the confusion surrounding the date of death of the girls’ father.
On the application it was listed as July 12, 1990. An undated death certificate
was provided with the July 12, 1990 date of death filled in.
[6]
Vanessa
was interviewed and she clarified that her father died on August 2, 1992. A
corrected and dated death certificate was provided to the Officer.
[7]
Following
the interview, the Applicant faxed the Officer a letter explaining the
incorrect death certificate which she had received from Burundi where the
father was said to have died. The Applicant said that when she saw the number
of errors in the death certificate she had received from Burundi, she
obtained a certified copy of the death certificate which she provided to the
Officer.
[8]
The
Applicant went on to explain that, when filling in the application, she had
used the July 12, 1990 date of death from the erroneous certificate.
[9]
The
Officer concluded that she had been faced with three dates of death for the
father. The Officer had a number of other concerns about the documents
including the absence of the birth mother’s death certificate. In the end, the
Officer did not believe that the girls’ father had died or at least not on the
dates in issue, that they had lied on their application and concluded that
neither of them fit within the class of persons who could be sponsored.
III. ANALYSIS
A. Standard
of Review
[10]
Although
the Applicant did not address the standard of review, the Respondent relied on
case law to the effect that a visa officer’s decision is highly discretionary
and therefore the standard was patent unreasonableness. The standard has now
been clarified in Dunsmuir v. New Brunswick, 2008 SCC 9,
to be reasonableness applied by taking into account all the relevant
circumstances. However, this judicial review includes issues of law and
procedural fairness which are to be assessed on a correctness standard.
B. Requirements
of the Immigration and Refugee Protection Act
[11]
The
Applicant argues that the Officer erred in law in deciding that the application
should be denied because of the misrepresentations as to the father’s death.
The Applicant contends that s. 176 of the Immigration and Refugee Protection
Regulations, SOR/2002-227, is mandatory and that a family class application
must be issued so long as the application is filed within one year and the
person is not otherwise inadmissible under s. 176(3) (e.g. serious criminality,
etc.). Section 176 reads:
|
176. (1) An applicant may include in their application to remain in Canada as a permanent
resident any of their family members.
(2) A family member who is included in an application to remain in
Canada as a permanent resident and who is outside Canada at the time the
application is made shall be issued a permanent resident visa if
(a) the family member makes an application
outside Canada to an officer within one year after the day on which the applicant
becomes a permanent resident; and
(b) the family member is not inadmissible
on the grounds referred to in subsection (3).
(3) A family member who is inadmissible on any of the grounds referred
to in subsection 21(2) of the Act shall not be issued a permanent resident
visa and shall not become a permanent resident.
|
176. (1) La demande de
séjour au Canada à titre de résident permanent peut viser, outre le
demandeur, tout membre de sa famille.
(2) Le membre de la famille d’un demandeur visé par la
demande de séjour au Canada à titre de résident permanent de ce dernier et
qui se trouve hors du Canada au moment où la demande est présentée obtient un
visa de résident permanent si :
a) d’une
part, il présente une demande à un agent qui se trouve hors du Canada dans un
délai d’un an suivant le jour où le demandeur est devenu résident permanent;
b) d’autre
part, il n’est pas interdit de territoire pour l’un des motifs visés au
paragraphe (3).
(3) Le membre de la famille qui est interdit de
territoire pour l’un des motifs visés au paragraphe 21(2) de la Loi ne peut
obtenir de visa de résident permanent ou devenir résident permanent.
|
[12]
The
Applicant contends that even if there had been misrepresentation as to the
father’s date of death, even deliberate misrepresentation, the landing
application must be granted because the conditions precedent of time and
admissibility had been met.
[13]
As
a general proposition, I have serious doubts about such a categorical
statement. Such an interpretation does violence to the obligations of truthfulness
in the Act (s. 40):
|
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;
(b) for being or having been sponsored by
a person who is determined to be inadmissible for misrepresentation;
(c) on a final determination to vacate a
decision to allow the claim for refugee protection by the permanent resident
or the foreign national; or
(d) on ceasing to be a citizen under
paragraph 10(1)(a) of the Citizenship Act, in the circumstances set
out in subsection 10(2) of that Act.
(2) The following
provisions govern subsection (1):
(a) the permanent resident or the foreign
national continues to be inadmissible for misrepresentation for a period of
two years following, in the case of a determination outside Canada, a final
determination of inadmissibility under subsection (1) or, in the case of a
determination in Canada, the date the removal order is enforced; and
(b) paragraph (1)(b) does not apply
unless the Minister is satisfied that the facts of the case justify the
inadmissibility.
|
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;
b) être ou
avoir été parrainé par un répondant dont il a été statué qu’il est interdit
de territoire pour fausses déclarations;
c)
l’annulation en dernier ressort de la décision ayant accueilli la demande
d’asile;
d) la perte
de la citoyenneté au titre de l’alinéa 10(1)a) de la Loi sur la
citoyenneté dans le cas visé au paragraphe 10(2) de cette loi.
(2) Les dispositions suivantes s’appliquent au
paragraphe (1):
a)
l’interdiction de territoire court pour les deux ans suivant la décision la
constatant en dernier ressort, si le résident permanent ou l’étranger n’est
pas au pays, ou suivant l’exécution de la mesure de renvoi;
b) l’alinéa
(1)b) ne s’applique que si le ministre est convaincu que les
faits en cause justifient l’interdiction.
|
[14]
The
issue of misrepresentation comes down to the materiality of the representation
or withholding. The date of death in this case may have been material,
particularly if it had any relevance to the validity of the adoption. However, there
is insufficient clarity in the record to consider that the Officer was
questioning the validity of the adoption on the basis that the father was not
dead at the time of adoption. Rather, the issue that troubled the Officer was
more related to the timing of death than the fact of death.
[15]
Therefore,
it is not possible to determine if there was some materiality to the
misrepresentation other than that the Officer may have felt that persons who
misrepresent in any circumstance should not be admitted to Canada.
[16]
As
such, the Officer erred in law in concluding that she had a discretion to
refuse the application because of a misrepresentation, the materiality of which
was never addressed. The Officer never directly challenged the validity of the
adoption – a most material fact.
[17]
There
are other factual and procedural difficulties with the decision under review
which affect the conclusion that there had been a misrepresentation.
C. Reasonableness
of Decision
[18]
The
Officer’s conclusion that the daughters were untruthful rests principally on
the confusion surrounding the father’s death. The Officer concluded that three
different dates of death had been advanced. This is actually incorrect. One
document referred to August 29, 1992, but this was readily acknowledged to be a
typographical error which should have read August 2, 1992, a date which is
listed in other documents.
[19]
There
were only two dates “in play” – July 12, 1990 and August 2, 1992. The Officer
was provided with an explanation as to how the date of July 12, 1990 arose and
that it was in error. The Officer obviously rejected that explanation but
without indicating the reason for that conclusion.
[20]
In
that regard, the Court must conclude that the Officer either ignored relevant
evidence or rejected the evidence without foundation or explanation. In either
event, the decision is flawed.
[21]
In
addition to the Officer’s concern about the father’s death, the Officer
expressed concern about the birth mother’s death – the fact that it had not
been raised in the application and that it was unsupported by evidence. This
finding is inconsistent with the evidence that the birth mother’s death
certificate was in the application package.
[22]
Under
these circumstances and on the face of the record, the Officer’s concerns about
truthfulness are unreasonable. Moreover, the conclusions were reached in a
procedurally flawed manner.
D. Procedural
Fairness
[23]
The
Officer concluded that both daughters were untruthful, in part on the basis of
the interview with Vanessa. While Vanessa’s procedural rights may have been
exercised in that she was confronted by the issue of her father’s date of
death, Sabrina never had that opportunity, yet she was also found not to be
credible.
[24]
While
interviews are not always required, generally where there are credibility
issues, a person is entitled an opportunity to address the issues which may
form a credibility finding in some meaningful way. There may be circumstances
where an interview of the other person affected may not be required but that is
not the case here.
[25]
Sabrina
was to suffer the same consequences and on the same basis as her sister, yet
she had no opportunity to explain the situation. An interview could conceivably
have made a difference. Her procedural rights were breached and she suffered a serious
consequence.
IV. CONCLUSION
[26]
For
all these reasons, the Court concludes that this judicial review should be
granted. The Court will not order that visas be granted, although on this
record there is no material basis for a refusal. While this case will be
referred back to a different visa officer to be processed expeditiously, absent
new material facts, this Court expects that the permanent resident applications
will be approved.
[27]
Counsel
both submitted proposed questions for certification. In light of these reasons,
the Court will permit each party seven days from the date of the decision to
make submissions on a question. The parties will not be held to their initial
submissions. After the expiry of the seven days, an Order will issue in due
course.
“Michael
L. Phelan”
Ottawa, Ontario
April
8, 2008
Email this Content