Docket: IMM-4210-13
IMM-4211-13
Citation:
2015 FC 238
Vancouver, British Columbia, February 24, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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ALI FAISAL MAHMOOD
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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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JUDGMENT AND REASONS
[1]
At the conclusion of the hearing on January 29,
2015, the parties were advised that this application would be allowed because
there has been a breach of natural justice. These are the reasons for that finding.
Background
[2]
Mr. Mahmood is a citizen of Pakistan. He applied for permanent residence under the Skilled Worker category on September 14,
2006, under the occupation of Business Risk Analyst. His wife and two children
were included in the application as dependents. He submitted evidence that he
had an uncle living in Canada, but his application was refused on May 12,
2011. It would have been successful except that he was not awarded points for
having a relative in Canada. He sought judicial review of that decision and by
consent order dated March 6, 2012, the matter was sent back to another
decision-maker.
[3]
On April 2, 2012, pursuant to the
redetermination order, the respondent emailed Mr. Mahmood asking him to submit
an updated Schedule 1/A and “any additional
documentation or information you wish to provide for the Immigration Officer to
review.” Mr. Mahmood complied and, among other documents, provided the “following documents as proof of the Principal Applicant’s
relationship to his uncle, Mr. Muhammad Aziz Tahseen:” a copy of his
uncle’s birth certificate, a copy of his mother’s Family Registration
Certificate from the National Database and Registration Authority [NADRA], a
copy of his uncle’s Canadian passport, a letter from his uncle dated April 2,
2012, in which he confirms that he has settled in Canada since 1974 and is the
maternal uncle of Mr. Mahmood, his uncle’s most recent CRA Notice of
Assessment, and various bills. In the submissions accompanying this
information it was stated that the uncle’s birth certificate and mother’s
family registration certificate showed that they had the same father and
mother, and therefore Mr. Mahmood should be awarded points under the
adaptability factor for his family relationship in Canada.
[4]
By email dated June 1, 2012, the immigration
officer wrote as follows:
In order to proceed with your application,
the following documents are required within 30 days:
Proof of relationship to your relative
living in Canada:
▪ Original of uncle’s birth
certificate.
▪ Documentation of relationship of mother and uncle other than the
recently recorded NADRA. For example. Documents may include birth certificates,
marriage certificates and school certificates.
[emphasis in original]
[5]
The CAIPS notes, to which Mr. Mahmood was not
privy at that time, explain the officer’s concerns and her thinking as to why
this information was sought. On May 31, 2012, the officer notes as follows:
Documentation provided to demonstrate
relationship of person in CDA to applicant raises concerns. Supplies what
states to be birth certificate and yet appears to be, unusually for 1942/1943,
computer generated. It bears the UK flag image at bottom. Additionally, NADRA
form supplied indicates relationship of PA’s mother to himself, and not to her
brother, done in 2001. This is now the crux of the matter as these points
are crucial. Documentation of the relationship needs to be clarified.
As a consequence of
these concerns the June 1, 2012 letter, set out above, was sent.
[6]
In response, by letter dated July 4, 2012, Mr.
Mahmood submitted the following: the uncle’s original birth certificate and the
mother’s original birth certificate. Both documents show that they share the
same parents.
[7]
The decision under review was by letter dated
April 18, 2013, in which the immigration officer wrote that Mr. Mahmood had
been awarded 66 points; the minimum requirement is 67 points. The officer
writes: “Sufficient evidence has not been
provided to award adaptability points for a relative in Canada, thus 0 points awarded for adaptability [emphasis added].” Again, the CAIPS notes
explain the officer’s concerns and reasoning:
PA was asked to provide – by July 26, 2012 –
proof of relationship between mother and uncle other than recently recorded
docs. Specific examples of docs were stated (i.e. marriage and school certs).
However, PA has only submitted a larger size document stating to be the
original birth cert for uncle. This is not an acceptable document as it does
not conform to any known official Pakistani birth certificate (quality is poor,
appears hand-made, British flag image at bottom, appears to have been newly
created even though issue date is stated to be 1942).
[8]
By letter dated May 2, 2013, Mr. Mahmood’s
lawyer asked the officer to reconsider, stating “the
evidence provided to your office demonstrating that Mr. Mahmood has an uncle in
Canada was not insufficient.” It is explained that the documentation
submitted shows that Mr. Mahmood’s mother and uncle have the same parents and
thus he is Mr. Mahmood’s uncle. The letter also provides an explanation from
the uncle as to why his birth certificate is in a different form than his
sister’s, namely because his was issued by the British authorities when Pakistan was still a British colony.
[9]
The officer refused the request stating, in
part, as follows:
The birth certificate submitted for your
relative was deemed insufficient to establish relationship, as were the other
documents you had submitted to support the relative’s parentage. You were
therefore given the opportunity to provide sufficient proof; specifically you
were requested to provide documentation of relationship other than a recently
recorded NADRA birth certificate, and in particular we requested a copy of
your relative’s marriage certificate or school certificate. No such
documentation was submitted and therefore it was concluded that you did not
provided [sic] satisfactory evidence to establish relationship to an
eligible relative. [emphasis added]
Issues
[10]
A number of issues were raised by Mr. Mahmood in
his memorandum; however, the real and determinative issue is whether the
officer breached procedural fairness and natural justice in the decision-making
process.
Analysis
[11]
The officer breached procedural fairness in two
respects. First, it is evident from the CAIPS notes that the officer’s real
concern was the genuineness of the uncle’s birth certificate, but this concern
was never squarely put to Mr. Mahmood. Second, the officer unfairly assessed
the application against evidence the officer alleged was specifically sought,
but was not.
Genuineness of Birth Certificate
[12]
There is no question that an officer is entitled
to proof of the relationship to a Canadian relative when it is asserted in an
application. In this case it is evident that if the officer accepted as
genuine the mother’s and the uncle’s birth certificates, then they proved that
they had common parents and the Canadian relative was, as claimed, an uncle of
Mr. Mahmood. If the certificates were genuine, then no other reasonable
conclusion could be reached; indeed, any other conclusion would be perverse.
This is not, as the officer says, a question of “insufficient”
evidence. It is a question of the veracity of the documentation provided.
[13]
The officer’s concerns regarding the uncle’s
birth certificate, as evidence from the CAIPS notes, was that it was
fraudulent. The officer may be correct; however, Mr. Mahmood was never
informed of this concern, which arose in the officer’s mind when the copy of the
birth certificate was examined. Rather than informing Mr. Mahmood of this
concern and giving him an opportunity to respond, the officer only asked that
he provide the original of the uncle’s birth certificate – which he did.
[14]
I agree with Mr. Mahmood that the jurisprudence
in this court holds that if an officer has concerns about the credibility or
veracity of documents submitted by an applicant, he is under a duty to inform
the applicant of that concern and give him an opportunity to reply: Hassani
v Canada (Minister of Citizenship and Immigration), [2006] FCJ No 1597; Baker
v Canada (Minister of Citizenship and Immigration), [1999] SCJ No 39; Kuthathasan
v Canada (Minister of Citizenship and Immigration [2008] FCJ No 587;
Ororunshola v Canada (Minister of Citizenship and Immigration), [2007] FCJ
No 1383; John v Canada (Minister of Citizenship and Immigration), [2003]
FCJ No 350 (TD); Sketchley v Canada (Attorney General), [2005] FCJ No
2056 (CA).
Assessment of Requested Documentation
[15]
In my view, procedural fairness and natural
justice requires a decision-maker who has requested specific information, which
has been provided, to assess the application on the basis of the evidence
sought and provided, not on an alleged failure to provide evidence that was not
sought.
[16]
In this case, after the officer’s review of the
application, in addition to the unstated concern about the genuineness of the
uncle’s birth certificate, the officer required further evidence to establish
the relationship between the mother and uncle. The officer, in an affidavit
filed in this application attests as to why she asked for additional documents
in this regard:
In Pakistan, both school documents and marriage documents record the name of the father of the
student, bride or groom. As these documents would record the information
provided at the time of registration for school or a marriage, I consider them
valuable documentation to establish family relationships. A birth certificate
itself established the parent-child relationship. To establish the relevant
relationship for selection points under adaptability, the sibling relationship
of the Applicant’s mother and Muhammed Tahseen must also be clearly established.
[17]
Contrary to the officer’s email of May 24, 2013,
it was not true that “in particular we requested a copy
of your relative’s marriage certificate or school certificate.” What
was requested was documentation of the relationship of Mr. Mahmood’s mother and
uncle other than the recently recorded NADRA. The letter did not request any particular
document(s) but merely gave examples stating that “documents
may include birth certificates, marriage certificates and school
certificates” [emphasis added]. What was provided were the original
birth certificates of each of the mother and uncle (one of the suggested
documents) and, as the officer noted in her affidavit “a
birth certificate establishes the parent-child relationship.” These
documents showed that these two persons had the same parents.
[18]
Rather than examining the evidence that was
provided pursuant to the request, the officer wrongly stated that she had “requested a copy of your relative’s marriage certificate or
school certificate” and because neither was submitted, “therefore it was concluded that you did not provided
[sic] satisfactory evidence to establish relationship to an eligible relative”
[emphasis added]. The officer’s conclusion was based solely on the failure to
provide the marriage or school certificates; but the birth certificates
provided were specifically listed as acceptable documents by the officer, and
they had been provided. In short, the officer rejected the evidence tendered
without considering it, notwithstanding that she had specifically mentioned
that evidence as an example of the type of document she was looking for.
Instead, she rejected the application for the failure to provide documents that
had not been specifically requested and without assessing those that were
provided as suggested.
Conclusion
[19]
The respondent submitted that even if a breach
of procedural fairness was found, this application should be dismissed as the
uncle’s birth certificate was clearly suspect. I am not prepared to do so. It
may be that the document will subsequently not be found to be valid; however,
Mr. Mahmood must be given an opportunity, now that he knows the officer’s
concerns, to try to address them through whatever other evidence he can offer.
[20]
Mr. Mahmood sought costs from the respondent on
the basis that there are “special reasons”
within the meaning of Rule 22 of the Federal Courts Immigration and Refugee
Protection Rules, SOR/93-22, for doing so. The respondent acted quickly to
consent to judgment with respect to the first impugned decision. It is truly
regrettable it did not do so with respect to the second impugned decision;
however, the high standard required to award costs has not been met.
[21]
Nonetheless, Mr. Mahmood has been waiting since
September 14, 2006, when his application was first submitted to have it
evaluated fairly and justly. Despite two attempts, that has not yet happened.
If the time required for the last assessment is used as a guide, it will be ten
(10) years from the application date before he will receive the third, and
hopefully last, assessment. The delays have been no fault of his, but entirely
the fault of the respondent. Accordingly, it is appropriate to order that the
redetermination of Mr. Mahmood’s application is to be done only with respect to
points for adaptability, as the other criteria have never been questioned.
Moreover, that decision is to occur within a period of ninety (90) days from
the date of these reasons, after advising Mr. Mahmood of exactly the concerns
regarding the evidence tendered of the relationship between his mother and
uncle.
[22]
Following the hearing of this application,
counsel for the respondent wrote to the court advising that it was his
recollection that the court had not canvassed the parties as to the merits of
certifying a question. Counsel proposed the following question for
certification:
When evidence submitted as part of an
overseas application for permanent residence is void of credibility on its
face, does procedural fairness generally require a visa officer to raise
authenticity with the applicant and provide an opportunity to address concerns?
[23]
Counsel also asked for clarification of whether
the court’s order requiring the respondent to re-determine the application for
permanent residence within ninety (90) days was “directed
towards a selection decision, or a final decision” and suggested that it
would be inappropriate if it were directed to a final decision as “this process involves matters which are not wholly within
the control of [the respondent].”
[24]
A review of my notes and the court’s digital
audio recording of the hearing reflects that the parties were canvassed as to
whether they wished to propose a question and counsel for the respondent
informed the court that he had no question to propose.
[25]
In any event, the question now proposed is not
certifiable because there was no finding made by the court that any evidence
was void of credibility on its face. Certainly that was the respondent’s
submission at the hearing but it was not one accepted by the court. It was
merely an allegation made by the officer that the document was fraudulent.
[26]
The judgment will issue that the application be
re-determined and a final decision rendered within ninety (90) days. Should
the time frame provided prove impossible or impracticable, the parties may
jointly write to the court asking that I extend the time for re-determination.
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