Date:
20130611
Docket:
IMM-2124-12
Citation:
2013 FC 637
Ottawa, Ontario,
June 11, 2013
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
|
|
RAISAHMED MUSA
INTWALA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of
a Visa Officer (Officer) of the Canadian High Commission, New Delhi, dated 13
December 2011 (Decision), which found that the Applicant is ineligible to be
granted a permanent residence visa on the basis that he is inadmissible to
Canada under paragraph 40(1)(a) of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of India. His son lives in Canada, and in August, 2003
sponsored the Applicant to come to Canada as a permanent resident in the family
class category. In his application, the Applicant did not list one of his
children by birth, Rizvan (sometimes spelled “Rizwan”). As the Applicant’s son
outlines in his affidavit, this is because Rizvan was adopted by his uncle, the
Applicant’s brother, in 1983 when Rizvan was an infant.
[3]
The
Applicant’s son in Canada first submitted the sponsorship application in 2006.
The Applicant, his wife, and his children (not including Rizvan) were
interviewed in 2008. During that interview, the Applicant and his family were
asked a number of questions with respect to Rizvan. The officer who conducted
that interview ultimately concluded that the adoption appeared genuine, and the
family could be processed further. The Applicant also provided two school
certificates that contained Rizvan’s adoptive father’s name as his father. The transcript
of this interview is attached as Exhibit B to the Affidavit of Imran Raiahmed
Intwala.
[4]
On
25 July 2008, the Applicant’s family was refused immigration to Canada on financial grounds. The Applicant appealed based on humanitarian and compassionate
(H&C) factors, and the appeal was allowed in September, 2010. The file was
returned to the Canadian High Commission in New Delhi and processing
recommenced.
[5]
In
preparing the new application the Applicant relied upon the officer’s decision
in 2008 that Rizvan was not a member of his family. Along with the application
the Applicant also submitted an affidavit, dated 27 December 2010, outlining
all the natural born members of his family, including Rizvan.
[6]
By
letter dated 24 May 2011, the Officer requested an explanation from the
Applicant as to why Rizwan was not listed as his biological son in his new
application. The Applicant replied by letter in June, 2011 (Applicant’s Record,
page 32) stating that his brother adopted Rizwan because he had no male children
and that customary adoption is recognized by law in his state. The Applicant
enclosed a text on the relevant customary law, as well as a ration card issued
in 1996 showing Patel Ishtak as Rizvan’s father. The Applicant goes on to say
that customary adoption does not require any court orders or paper work and is
based on conduct. The Applicant does not consider Rizvan as one of his family
members, so he was not listed as one.
[7]
By
letter dated 13 December 2011, the Officer informed the Applicant that he was inadmissible
to Canada under paragraph 40(1)(a) of the Act 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 the Act. For
this reason, the Applicant’s application for permanent residence was refused.
DECISION
UNDER REVIEW
[8]
The
Decision consists of the Exclusion Letter dated 13 December 2011 and the
Officer’s Global Case Management Systems notes (Notes).
[9]
By
entry dated 7 December 2011 in the Notes, the Officer points out that in 2006
when the Applicant was first examined, he was asked why Rizwan was not listed
as his son. The Applicant replied that he would “have to check.” Two days later
he provided a notarized adoption deed signed by the birth and adoptive parents,
but no court order. The Officer notes that after the appeal the Applicant had
still not listed Rizwan as his son, and that the Applicant did not present
Rizwan for an interview.
[10]
The
Notes from 7 December 2011 go on to discuss the Hindu Adoptions and Maintenance
Act. Based on this act, the Officer found that the Applicant would not be able
to legally give up Rizwan for adoption. The Applicant’s counsel argued that the
adoption was under customary law, but the Officer stated that the Applicant had
not provided any documentation to support this proposition. The Officer was
also concerned that the Applicant said Rizwan was adopted at 6 months, his wife
said 5 months, and his counsel said 2.5 months. The Officer found on a balance
of probabilities that the Applicant had tried to conceal his relationship with
Rizwan, and had then tried to show that an adoption took place.
[11]
The
Exclusion Letter states that the Applicant was found inadmissible under
paragraph 40(1)(a) of the Act because he failed to list his son Rizwan
on his application, although Rizwan was listed as a brother by his sponsor, the
son in Canada. The letter goes on to say:
We advised you of this discrepancy and you
subsequently provided a recently acquired adoption deed. Adoption among Muslims
is prohibited under Indian law therefore the adoption is not legally
recognized. Accordingly, you were obligated to declare Rizwan as your son and
have him examined as he was under the age of 22 at the time of your
sponsorship. You were provided with an opportunity to respond to these
concerns.
[12]
As
such, the Applicant was deemed ineligible to come to Canada.
ISSUES
[13]
The
Applicant raises the following issues in this application:
a.
Whether
the Officer erred by coming to unreasonable conclusions with respect to
paragraph 40(1)(a) of the Act;
b.
Whether
the Officer erred by finding that a misrepresentation was made pursuant to
paragraph 40(1)(a) by the Applicant failing to include Rizvan in his
resubmitted application forms in January, 2011;
c.
Whether
the Officer erred by ignoring the decision of a prior immigration officer made
in February, 2008, who found that Rizvan was not part of the Applicant’s family
and that the adoption was genuine;
d.
Whether
the Officer erred by ignoring the affidavit of the Applicant, dated 27 December
2010, which identifies all the Applicant’s natural born children, including
Rizvan.
STANDARD
OF REVIEW
[14]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[15]
All
of the issues raised by the Applicant involve a review of fact or mixed fact
and law with respect to the Officer’s finding of inadmissibility. Previous
decisions of this Court have recognized that the standard of review applicable
to finding of inadmissibility under paragraph 40(1)(a) is reasonableness
(Kumar v Canada (Minister of Citizenship and Immigration), 2011 FC 781
at paragraph 21; Karami v Canada (Minister of Citizenship and Immigration),
2009 FC 788 at paragraph 14). Thus, contrary to the Applicant’s Reply
submissions, all the issues will be reviewed on a standard of reasonableness.
[16]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
STATUTORY
PROVISONS
[17]
The
following provisions of the Act are applicable in this proceeding:
|
Misrepresentation
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 their claim for refugee protection or application for protection; 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.
|
Fausses
déclarations
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 ou de protection;
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.
|
ARGUMENTS
The Applicant
[18]
The
Applicant submits that it is clear from the transcript of the first interview
in 2008 that the family was questioned separately and extensively as to the history
of the adoption of Rizvan. On 3 March 2008, the first officer decided that the
adoption of Rizvan was genuine and he was no longer a member of the Applicant’s
family. Given the fact that the Applicant was aware of this decision, it would
have made no sense for the Applicant to include Rizvan as his son in his new
application forms submitted on 11 January 2011.
[19]
The
Applicant submits that he had every right to rely on the decision made in 2008,
but notwithstanding that decision, he points out that when he submitted his
application in 2011 he included an affidavit that listed all his natural born
children, including Rizvan (Affidavit of Imran Intwala, Exhibit C). In the
Decision, the Officer states “subsequent to the appeal, the PA still does not
declare Rizwan as his son.” This is incorrect, as the Applicant does declare
Rizwan as his son in his affidavit. Not only did the Applicant follow the
written decision of the first officer, he also declared in his affidavit that
Rizvan is his natural born son.
[20]
All
the members of the family were consistent in their statements about Rizvan’s
adoption, and the only minor discrepancy related to Rizvan’s age at the time of
adoption which varied from 3 to 6 months, and the exact day and month of his
birth in 1983. To clarify these matters, two affidavits were submitted to the
Canadian High Commission, one dated 6 April 2011 and the other dated 7 April
2011. The Applicant points out that the adoption took place in 1983, and the
dates given by family members are consistent given the passage of time. The
Applicant’s son in Canada states in his affidavit that the adoption was not
something that the family dwelled upon, and it has been nearly 30 years since
then.
[21]
The
Applicant further submits that had the issue in this application had to do with
the validity of the adoption, the Applicant would have filed an appeal to the
Immigration and Refugee Board of Canada. As to misrepresentation, the Applicant
submits that the Officer’s Decision was unreasonable.
The Respondent
[22]
The
Respondent points out that the Applicant failed to declare Rizwan as his son,
but on his sponsor son’s initial immigration application his son in Canada declared Rizwan as a brother. When the Applicant’s son immigrated to Canada in 2000 he declared Rizwan as his brother, and indicated that Rizwan would be accompanying
him to Canada. Twice the son wrote that his relationship to Rizwan was
“brother,” and there was no explanation given that Rizwan had been adopted and
that the Applicant’s family no longer considered part of the immediate family.
[23]
The
Respondent points out that there is no error in the Officer’s statement that
the Applicant did not declare Rizwan as his son. Rizwan was not listed as his
son under either “Details of Family Members” or “Additional Family
Information.” On redetermination, there is no obligation on the Officer to
agree with positive findings made by the initial visa officer. When the IAD
allowed the appeal, it put no restrictions on the Officer’s jurisdiction to
consider the matter afresh. In fact, when the Applicant sought an appeal at the
IAD against the within decision (denied for want of jurisdiction), the IAD made
the following statement:
In my view, once the appellant’s case went back to
the visa officer, it was open for a visa officer to make an additional finding
of inadmissibility. Misrepresentation was not raised as a basis of refusal in
the first refusal and IAD appeal. Even though the visa officer has considered
Rizwan’s adoption and the visa officer stated that it “appears genuine,” there
was no detailed analysis.
[24]
The
Officer noted that the H&C grounds had been dealt with on appeal, but that
the issue of Rizwan’s adoption had not been conclusively resolved or reviewed
by the first officer. The Officer states in the Notes dated 7 December 2011:
The case was allowed by IAD on H&C for the MNI
not met. Subsequent to the appeal, PA still does not declare Rizwan as his son.
Since the relationship, this lack of declaration and the adoption was not fully
examined in the pre-appeal file, it was examined now in order to assess
admissibility… As IAD has allowed on H&C the fact that the sponsor did not
meet MNI so I am not assessing that.
[25]
Prior
to making the Decision, the Officer clearly informed the Applicant and his
family that the issue of Rizvan had not been resolved. Shortly after the IAD
decision, the visa officer requested Rizvan’s birth certificate for further
inquiry on the issue of possible misrepresentation. When it had not been
received two months later, immigration officials again asked for a copy of the
birth certificate. The Applicant sent some materials, including two affidavits
from Rizwan which sought to explain inconsistencies amongst documents
presented. Rizwan’s birth date on his school records was 8 July 1983 and the
date on his birth certificate was 14 October 1983. The affidavit purported that
the birth certificate was correct. However, the Respondent points out that when
the Applicant’s son initially declared Rizwan as his brother he listed Rizwan’s
birth date as 8 July 1983 on his immigration forms.
[26]
On
24 May 2011, immigration officials sent a procedural fairness letter in which
the Officer’s specific concerns about Rizwan were outlined. The Applicant
responded, stating that the adoption was permissible under customary law and
that the first visa officer had been satisfied with the genuineness of the
adoption.
[27]
In
the Notes dated 7 December 2011, the Officer states:
I have reviewed the counsel’s submissions and find
that while they have provided statements, they have not provided any evidence
of any of the claims. The onus was on the applicant to provide evidence to
overcome the concern that they are not legally free to adopt. They did not
provide any documentary evidence to substantiate the statements made by counsel.
The crux of counsel’s argument is that adoption is allowed customary law in India but they have not provided evidence that this particular adoption was recognized by
Indian court system (in the form of a court order). Overall, I have reviewed
the entire case and the submission from counsel and find that the concerns are
not overcome.
[28]
The
Respondent submits that the Officer was accurate in saying that counsel did not
provide evidence for the assertions put forward. Counsel submitted that
“several experts” were consulted on Indian adoption law, but none of these
“several experts” were named; nor was any explanation given as to who these
individuals were, and if they were knowledgeable about adoptions customs.
Counsel also submitted that Sharia law can be legally binding on Muslims in India, but there were no authorities cited for this proposition. There was also no
explanation for what custom was entered into for the adoption of Rizwan, or
what efforts were made to legalize the adoption.
[29]
The
Officer also noted that on 4 September 2006, when asked why Rizwan was listed
as a sibling by his sponsor and was not declared as a son by the Applicant, the
Applicant did not say that Rizwan was adopted but stated “I will check.” Two
days later, on 6 September 2006, an adoption certificate was issued. The
Respondent submits that it was reasonable for the Officer to conclude that
these events indicated that it was probable that the Applicant was trying to
conceal his relationship with Rizwan.
[30]
The
Officer also noted that there were inconsistencies in when the Applicant, his
wife, and his counsel said that Rizwan was adopted. The Officer stated in the
Notes from 07 December 2012, “I do not find it credible that biological parents
cannot recall the difference between giving up their baby at 2.5 months vs 5 or
6 months.”
[31]
The
Officer also placed weight on the fact that the Applicant was given the
opportunity to present Rizwan for an interview, but declined. Rizwan very well
could have provided convincing testimony that he was raised in another city by
his aunt and uncle, as the Applicant claims. There is no indication that Rizwan
is unavailable for questioning, and in fact he provided two affidavits seeking
to explain inconsistencies between his birth certificates and his school
records.
[32]
In
sum, the Respondent concludes that the Officer’s determination that the
Applicant was inadmissible due to a material misrepresentation was a reasonable
conclusion in light of all the evidence presented by the Applicant.
The Applicant’s Reply
[33]
The
Applicant submits that this Court only has jurisdiction to deal with the issue
of misrepresentation as outlined in the Refusal Letter, and not the issue of
the validity of Rizvan’s adoption. If the issue were the adoption, then it
would properly be before the IAD.
[34]
As
to the issue raised in paragraph 12 of the Respondent’s Memorandum as to why
the Applicant’s son listed Rizwan as his brother on his application form in
2000, the Applicant points out that he and his son were asked about this on multiple
occasions by immigration officers. At the 26 February 2008 interview, the
Applicant said that he did not know why his son listed Rizwan as a brother. The
Applicant submits that this is a completely logical answer; there is no
evidence that the Applicant had anything to do with the preparation of his
son’s application to immigrate to Canada in 2000. When his son was asked at the
interview why Rizvan was included in his application he said “It was a mistake,
I did not know I should not write. Actually we feared that if we don’t declare
him that it could create a problem in my papers as he is biologically my
brother.” The Applicant submits there is no reason not to accept the
explanations offered by the Applicant and his son, when they individually and years
apart completed their respective application forms.
[35]
The
Applicant points out that the Respondent argues there is no error in the
Officer stating that the Applicant did not declare his son, yet goes on to say
that the Applicant included in his application an affidavit attesting to all
his children. This is a contradiction. The Applicant submits that the affidavit
is part of the application for permanent residence in Canada and that it clearly discloses Rizvan as the Applicant’s biological son. The Applicant
further submits that this is clear evidence that he did not commit a
misrepresentation pursuant to subsection 40(1)(a) of the Act by failing
to disclose Rizvan in his application.
[36]
The
Applicant agrees with the Respondent that the Officer was free to come to his
or her own conclusions with respect to inadmissibility, but submits that this
freedom does not mean that the Officer can simply ignore the notes from the
first immigration officer’s interview with the Applicant’s family in 2008,
especially given the fact that the Officer did not personally interview the
Applicant or his family.
[37]
The
Respondent says that the Applicant was “clearing informed… that the issue of
Rizvan had not been resolved.” The Applicant has not been able to locate any
communication to the Applicant that states that the issue of Rizvan had not
been resolved. A procedural fairness letter dated 24 May 2011 was sent to the
Applicant, which primarily raised issues to do with the validity of the
adoption. It also said that the Officer was of the opinion that Rizvan should
have been included in the Applicant’s application, and that failure to do so
may constitute a misrepresentation.
[38]
The
Respondent also emphasizes that the Applicant was given an opportunity to
present Rizvan for an interview but declined. The Applicant points out,
however, that nowhere in the correspondence by either the first or second
officer is there a request to present Rizvan for an interview. At the first
interview, the Officer asked the Applicant if he brought Rizvan along. The
Applicant simply replied “no,” and the interview carried on. At the conclusion
of the first interview the Applicant was asked to supply further documentation,
which he did. The Applicant submits that the officer could have requested an
interview with Rizvan, but did not. With respect to the Officer who made the
Decision, he or she pointed out that Rizvan was not interviewed,
notwithstanding the fact that no one in the family was interviewed.
ANALYSIS
[39]
The
Officer finds that the Applicant did not provide sufficient evidence to
establish Rizwan’s adoption as a legal fact. A few “other concerns” are
mentioned, and then the Officer proceeds to find that
Overall, I find, on the balance of probabilities
that the Applicant initially with information pertaining to his dependent son
Rizwan and then, once advised of our concern, tried to show that an adoption
took place.
This finding is the
basis for the Officer’s conclusion that a misrepresentation has taken place. In
my view, the Officer’s conclusions on this point lacks justification,
transparency and intelligibility, and are unreasonable.
[40]
The
record shows that the Applicant did not withhold information about Rizwan and
he did not initially conceal his relationship with Rizwan. The record shows
(CTR page 102) that, in conjunction with his initial application, the Applicant
provided an affidavit in which he explained how Rizwan, his biological child,
had been adopted by his brother, Ishak Patel, who had no male child. He
explained that Rizwan had been living with his brother as his brother’s child
for many years, that Rizwan is known as his brother’s son, and is no longer
regarded as his son.
[41]
The
Applicant was entirely candid about his relationship with Rizwan and explained
the adoption issue upfront. The officer who considered the Applicant’s first
application interviewed the whole immediate family separately and, based upon
the evidence presented, accepted the adoption as genuine.
[42]
The
Applicant concedes that the Officer who considered his second application did
not have to accept the first officer’s findings on the legalities of the
adoption. However, the Applicant in completing the forms for his second
application would obviously not list Rizwan as his son when the first officer
had accepted the adoption as genuine. The Applicant had to respond to the
second Officer’s concerns about the legality of the adoption, but he did not,
as the Officer found, attempt to conceal his relationship with Rizwan. He had
explained the situation in full to the first officer who had accepted the
adoption as genuine. His actions in relation to the second Officer were simply
an attempt to respond to that Officer’s concerns about whether an adoption had,
legally speaking, taken place.
[43]
The
second officer’s conclusion is that, because the Applicant could not satisfy
her as to the legalities of the adoption, then, on a balance of probabilities,
the Applicant must have initially concealed his relationship with Rizwan. The
record shows, however, that the Applicant explained his relationship with
Rizwan fully. Whether or not there was an adoption, legally speaking, was not
the issue for purposes of misrepresentation. The Applicant placed the issue
fully before the first officer and that officer accepted the adoption as
genuine. When he made his second application, it is obvious that the Applicant
would not, therefore, identify Rizwan as his son. The second Officer says she
has “reviewed the entire case…,” but she never mentions the affidavit in
question and the Applicant’s placing the adoption situation before the first
officer, or the fact that the first officer interviewed the immediate family
separately on this point, and was satisfied overall that the adoption was
genuine. There is no evidence of any withholding of information by the
Applicant before the first officer. This finding is pure speculation and
appears to be based, for the most part, upon the Officer’s conclusion that the
Applicant was not able to satisfy her that a legal adoption had occurred.
[44]
The
Officer also mentions “some other concerns,” but a reading of the Decision as a
whole reveals that these concerns would have looked entirely different if the
Officer had not come to the conclusion that her failure to be satisfied as to
the legality of the adoption was a basis for finding misrepresentation, given
what had taken place before the first officer.
[45]
The
Applicant’s saying “I will check” instead of saying that Rizwan was given up
for adoption is entirely consistent with the question of why Rizwan was listed
on the sponsor’s application and not the Applicant’s. Also, the discrepancy
over the precise age (5, 6 or 2.5 months) is peripheral, especially when people
are being asked to recall with precision something that happened 25 years ago.
[46]
As
for the sponsor listing Rizwan as his brother, I have examined the documents,
and it is not entirely clear why Imran did this, but it looks like a case of
confusion to me. Biologically, Rizwan is Imran’s brother, and Imran, aware of
the consequences of misrepresentation, is probably trying to cover all his
bases. In any event, this discrepancy cannot, in my view, support a finding
that the Applicant was “initially trying to conceal his relationship with
Rizwan,” when reviewed in conjunction with the Applicant’s dealings with the
first officer on the adoption issue.
[47]
The
Decision is unreasonable, and it needs to be reconsidered. Counsel agree there
is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is allowed. The decision is quashed and the matter returned back to
a different officer for reconsideration.
2.
There
is no question for certification.
“James Russell”
Email this Content