Docket: IMM-1641-16
Citation:
2016 FC 1384
Ottawa, Ontario, December 19, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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ANTONIO BERIYUT
MEDAH
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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
I.
Overview
[1]
Antonio Beriyut Medah, the applicant, arrived in
Canada in 1990. His application for permanent residence, completed in 1990,
states that he was born in 1953 in “Debougor”, “Burkina [Faso]” and states that
he is a citizen of Burkina Faso.
[2]
Upon arrival in Canada, Mr. Medah was issued a
Confirmation of Permanent Residence Document or Record of Landing [ROL]. The
ROL reflects the date and year of birth set out in his application for permanent
residence. Mr. Medah now asserts that his year of birth was incorrect in the
permanent residence application and is therefore incorrectly recorded on the
ROL. He applied in January 2016 to have the ROL amended to reflect his year of
birth as 1963, instead of 1953. His request was denied. Mr. Medah now
seeks judicial review of that decision.
[3]
Mr. Medah submits that in refusing his request,
the Officer ignored his baptismal certificate, a document that predates his
landing in Canada and establishes that he was born in 1963. Mr. Medah further argues
that he was owed a high degree of procedural fairness due to the importance of
an accurate birthdate on the ROL, a document that is relied upon to establish
his birthdate for other purposes. He also submits that an inaccurate birthdate
on the ROL will impact his eligibility for government benefits in the future.
He submits that the Officer acted in a procedurally unfair manner by not
considering the baptismal certificate and that the decision is unreasonable.
[4]
The application raises the following issues:
A.
Did the Officer fail to consider all of the
evidence?; and
B.
Is the decision unreasonable?
[5]
For the reasons that follow I am of the opinion
that the Officer’s decision is reasonable.
II.
The Amendment Process
[6]
Prior to addressing the issues raised in this
application, a brief review of the Government of Canada’s process available to
permanent residents and Canadian Citizens when requesting an amendment to a ROL
is helpful.
[7]
The process is set out in a Government of Canada
Guide entitled Request to Amend Record of Landing, Confirmation of Permanent
Residence or Valid Temporary Resident Documents (IMM 5218) [Guide]. The
Guide notes that a ROL is an historical document that will only be amended to
correct errors made by Canadian Immigration officials in recording information
provided when applying to come to Canada. The Guide sets out a list of
information that can be corrected such as the date of birth, place of birth,
country of birth and citizenship. The Guide requires an applicant to: (1)
complete and sign a Request to amend the Record of Landing [Request
Form]; (2) include a photocopy of one “piece of federal
or provincial/territorial government issued photo identification or, if
unavailable, a photocopy of government issued or internationally recognized
photo identification before your entry into Canada”; and (3) include a
photocopy of one “piece of government issued or
internationally recognized identification from outside Canada before your entry
to Canada indicating that an error was made in recording your information”.
The Guide states that a baptismal certificate is acceptable where the country
of birth did not issue birth certificates.
[8]
The Guide then proceeds to set out detailed
instructions for the completion of the Request Form. Part C of the Request Form
requires the applicant to set out in a narrative form: (1) the reasons for
seeking the amendment; (2) the error that was made; (3) the information
provided in the application; and (4) why the change is required. The Guide then
provides instructions for the submission of the Request Form and provides some
guidance on the steps to be taken in processing the request.
III.
The Request for Amendment
[9]
Mr. Medah submitted a completed Request Form
seeking to amend his year of birth from 1953 to 1963. In support of his request,
he included a copy of his baptismal certificate from the Catholic Diocese of
Navrongo-Bolgatanga, Ghana stating that he was baptised on April 21, 1984. The
baptism certificate records his date of birth as November 15, 1963, and
identifies his father as Joseph Ergzal Medah and his mother as Mary Magdalene
Kuunuo.
[10]
Mr. Medah also provided a “Certified Copy of
Entry in Register of Births” issued by the Registrar for births and deaths of Ghana
dated July 15, 2011. This document also indicates the birthdate of November 15,
1963, and identifies Mr. Medah’s father as Joseph Ergzal Medah and his mother
as Mary Magdalene Kuunuo. The certificate indicates that the birth was
registered on June 17, 2011.
[11]
The information contained in the baptismal
certificate and the birth certificate differed from that included in his application
for permanent residence in that his parents’ names were different, his place
and country of birth were different, and his year of birth was different. The
only amendment Mr. Medah sought was to the year of birth.
[12]
Mr. Medah’s reasons for seeking the amendment as
recorded in Part C of the Request Form state simply “Year
of birth needs to be amended from 1953 to 1963 as I made a mistake when I
provided my year of birth. Now I am enclosing herewith two documents to confirm
my actual year of birth”. He neither acknowledged nor addressed the
discrepancies relating to his parents’ names or place of birth.
IV.
Decision under Review
[13]
Mr. Medah was provided with a refusal letter
dated March 29, 2016. In that letter, the Officer noted that “… we are not satisfied that an error was made in recording
your information” and further noted that the issuance date for the documents
in support of the request for amendment must be dated prior to the issuance
date of the ROL.
[14]
The Officer’s notes state the following:
Request to amend COPR/ROL: DOB from
1953/11/15 to 1963/11/15. Supp Docs: COPR, Birth Certificate, etc. (see
correspondence attachments) Decision: Refused – based on Insufficient Proof
provided by the client was not issued prior to landing and discrepancy on COB
between sup doc and Original COPR. We are not satisfied that a departmental
error was made in recording the information. Letter sent to client.
V.
Standard of Review
[15]
Mr. Medah argues that a correctness standard of
review applies as the issues raised engage a question of law. I disagree. The
issues raised in this matter relate to the interpretation and application of a
policy document that falls within the expertise of the decision-maker
attracting a reasonableness standard of review. A review of the decision itself
engages questions of fact and mixed fact and law that again attract the
reasonableness standard (Dunsmuir v New Brunswick, 2008 SCC 9 at paras
51, 53 and 54 [Dunsmuir]).
VI.
Analysis
[16]
Mr. Medah submits that the failure of the
Officer to make reference in the refusal letter or the notes to the baptismal
certificate, a document that predated his arrival in Canada, demonstrates that
the Officer ignored this document. He submits, relying on Baker v Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817, that the
decision is one that would have a significant impact on him and, as such, the
fairness requires that he be told why the certificate was not sufficient to change
his year of birth. I am not convinced.
[17]
Matters that are placed before administrative
decision-makers frequently do not lend themselves to a specific result.
Therefore, a court on judicial review must provide a “…
respectful attention to the reasons offered or which could be offered in
support of a decision” (Dunsmuir at paras 47 and 48). Reasonableness
requires the Court to consider whether the reasons provided, either in fact or
principle, support the conclusion reached. This, in turn, requires that a court
“first seek to supplement [reasons] before it seeks to
subvert them” (David Dyzenhaus, “The Politics of
Deference: Judicial Review and Democracy”, in Michael Taggart, ed, The
Province of Administrative Law (Oxford: Hart Publishing, 1997), 279 at 304 cited
in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at para 12 [Newfoundland and
Labrador Nurses]). The “courts should not
substitute their own reasons, but they may, if they find it necessary, look to
the record for the purpose of assessing the reasonableness of the outcome”
(Newfoundland and Labrador Nurses at para 15).
[18]
In this case, the reasons are admittedly sparse
and do not make direct reference to all of the documentary evidence that was
placed before the decision-maker. However, the Officer’s notes acknowledge the
existence of a number of supporting documents when the Officer wrote “Supp. Docs: COPR, Birth certificate, etc (see correspondence
attachments)”. The Officer then highlighted not only that the birth
certificate postdates Mr. Medah’s landing but that there are discrepancies
between the ROL and the birth certificate. These discrepancies are identified
as relating to the place and country of birth. Mr. Medah does not explain or
even identify these discrepancies in the Request Form. These same discrepancies
are found in the baptismal certificate provided by Mr. Medah.
[19]
Mr. Medah relies on the Officer’ reference in
the refusal letter to the requirement that supporting documents must be dated
prior to the ROL to conclude the baptismal certificate was overlooked. Again I
am not convinced. I am in agreement with the respondent’s submission that this
reflects a flawed interpretation of the Officer’s letter. This statement is
intended as a reminder that any evidence submitted with a future request must
satisfy the requirement of having been created prior to entry into Canada.
[20]
Mr. Medah’s argument that fairness requires a
specific explanation as to why the baptismal certificate was not sufficient to
grant the requested amendment ignores the simple fact that he has the onus of
demonstrating that an error was made. The evidence provided did not satisfy
that onus. Instead, the evidence contained significant and relevant discrepancies
that were unexplained. While Mr. Medah takes issue with the sparse reasons for
refusal, his Request Form is equally sparse in details, limited to a single
sentence.
VII.
Conclusion
[21]
I am of the opinion that the Officer’s reasons,
although brief, justify the decision in a transparent and intelligible manner.
The outcome is defensible in light of the facts and applicable law (Dunsmuir
at para 47).
[22]
The parties have not identified a question of
general importance, and none arises.
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