Docket: IMM-5452-15
Citation:
2016 FC 694
Ottawa, Ontario, June 20, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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LETICIA
NDAYINASE
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of the Immigration Appeal Division of the Immigration and Refugee
Board [IAD] holding that a sponsorship refusal of a visa officer at the
Canadian High Commission in Accra, Ghana, was not legally valid. The visa officer
had denied the sponsored family class application of a minor child because the
sponsor, his mother Leticia Ndayinase, failed to provide documents establishing
that she either had full custody of him or written confirmation that his biological
father did not object.
I.
Background
[2]
The Respondent, Leticia Ndayinase, is a citizen
of Ghana who became a permanent resident of Canada in March 2010, after
marrying a Canadian citizen in January 2008.
[3]
In December 2013, the Respondent applied and was
found eligible to sponsor her fourteen year-old son, Emmanuel Ndayina-nse, as a
member of the family class.
[4]
In processing the permanent resident visa
application, the High Commission of Canada in Accra, Ghana [the High
Commission], requested that Emmanuel provide a “no
objection letter” from his biological father, with signed photographic
identification.
[5]
The Respondent submitted a “no objection letter” from Joseph Kaku Ndayina-nse,
her father, as Emmanuel’s legal guardian, without further documentation proving
legal guardianship.
[6]
On March 10, 2014, a visa case analyst noted
that Emmanuel’s birth certificate indicated his father as “Kwesi Odroh”. The High Commission thus again
requested that Emmanuel provide a “no objection letter”
from Kwesi Odroh, or alternatively, court documents indicating the Respondent
has full custody of him.
[7]
Visa case analyst notes indicate that the
Respondent submitted a statutory declaration in early April of 2014, yet the
requested documents had still not been received.
[8]
The High Commission thus sent a procedural
fairness letter to Emmanuel, notifying him of the requirement under subsection
16(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the
Act] to produce all relevant evidence and documents the officer reasonably
requires to process the application. The documents were again requested, and
were to be filed within 30 days.
[9]
On September 10, 2014, a visa officer refused
the application for permanent residence due to the failure to comply with
subsection 16(1) of the Act [Refusal Letter]. The Refusal Letter notes that
based on the available information, the visa officer was not satisfied that
Emmanuel, a minor child, is not inadmissible and that he meets the requirements
of the Act pursuant to subsection 11(1), since his father did not authorize his
immigration to Canada.
[10]
The Respondent appealed the refusal to the IAD
and a hearing was held on June 23, 2015.
[11]
The November 16, 2015 decision of the IAD
allowed the Respondent’s appeal [the Decision]. The IAD concluded that in the
specific circumstances, it would be impossible for the Respondent to secure the
documents requested in such a way that would render them meaningful or
truthful. The Decision provides the following basis for this conclusion:
- The Respondent
explained she was unable to obtain a “no
objection letter”: she testified at the hearing that she became
pregnant at age 17, and had not seen or heard from Emmanuel’s biological
father since his birth. She had attempted to find him, to no avail, and
the only evidence of his whereabouts was that he may have moved to
Liberia.
- The Respondent also
claimed she was unable to secure the requested court documents proving
sole custody due to corruption of the courts in Ghana and the high cost of
legal counsel. She testified that she had returned to Ghana in 2014 and
had spent considerable funds to obtain a nonsensical “statutory
declaration”, believing it was the proper custody document.
[12]
The Decision also outlined that the Minister had
canvassed the attempts the Respondent could have made to secure some type of
documentation attesting to the disappearance of Emmanuel’s biological father,
or court documents demonstrating sole custody.
[13]
The IAD found the Respondent to be credible: she
testified in a straightforward and consistent manner, and there was no reason
to doubt the veracity of her version of events, particularly that the
whereabouts of Emmanuel’s biological father are unknown.
[14]
The IAD cited as applicable paragraphs 14 and 15
of Lan v Canada (Minister of Citizenship and Immigration), 2004 FC 770 [Lan],
which deals with a refusal under subsection 16(1) of the Act, where the Court
noted:
[14] The approach advocated by the visa
officer cannot hold because it put too heavy a burden on the applicant.
[15] In fact, it was unreasonable to
require the applicant to produce documents which are too difficult if not
impossible to access…
[15]
Accordingly, on a balance of probabilities, the
IAD concluded that the visa officer’s refusal was not legally valid and allowed
the appeal.
II.
Issue
- Was the IAD Decision that the visa officer’s refusal was not
legally valid reasonable?
III.
Standard of Review
[16]
Findings of mixed fact and law by the IAD are
afforded considerable deference and are reviewed on a standard of
reasonableness (Ma v Canada (Minister of Citizenship & Immigration),
2010 FC 509 at para 26; Dunsmuir v New Brunswick, 2008 SCC 8).
IV.
Analysis
[17]
The Applicant claims the IAD Decision is
unreasonable, as it was not legally invalid for the visa officer to refuse the
application on the basis that the visa applicant did not provide requested
documents thereby demonstrating he or she meets the requirements of the Act. A
visa officer is bound to refuse to issue a visa to an applicant who has not
fulfilled the obligations provided in section 16 of the Act (Lan, above,
at para 10).
[18]
The Applicant argues the IAD’s reliance on Lan,
above, was unreasonable, as it is distinguishable from the present case. In Lan,
the visa officer’s request for documents was unreasonable because the documents
requested pre-dated the period of consideration and were not relevant to the
officer’s concerns surrounding the legality of funds indicated in the permanent
residence application (Lan, above, at paras 12-16).
[19]
In the present case, the Applicant submits the
visa officer’s request for documents to establish the custody of a minor child
is highly relevant to assessing that child’s permanent residence application to
ascertain whether the child is in the legal custody of someone other than the
sponsor (Rojas v Canada (Citizenship and Immigration), 2012 FC 1303 at
paras 12-13).
[20]
The Respondent’s difficulties in obtaining the
requested documents does not render the the visa officer’s request for certain
documents unreasonable or legally invalid. Particularly so, the Applicant argues,
where the Respondent’s evidence is inconsistent with respect to her son’s
guardianship.
[21]
On this point, I disagree with the Applicant
that the evidence is inconsistent with respect to Emmanuel’s guardianship. The
transcript reveals that Emmanuel was left under the care of the Respondent’s
aunt, and when she became ill he then went to live with his grandfather. The
IAD found this testimony credible, and there are no unexplained inconsistencies
which call into question the reasonableness of IAD’s acceptance of the evidence.
[22]
The Applicant further submits that the IAD
ignored the following evidence suggesting the Respondent did not exhaust all
avenues to obtain the requested documents, and which runs
contrary to the IAD’s conclusion that obtaining the documents was an “impossible” endeavour:
- the country-wide
Legal Aid scheme in Ghana provides assistance in custody issues to the
poor: advisory services are free and legal representation requires proof
of inability to pay;
- articles
submitted by the Respondent are from 2007 and simply speak to attempts
to interfere with judicial independence and official duties, and a 2013
website indicating the “perception” that
Ghana is a corrupt country: they provide no recent evidence corroborating
the Respondent’s claim regarding the extent of corruption in the courts of
Ghana.
[23]
Though the IAD need not refer to every piece of
evidence before it, significant evidence is expected to be considered and
analyzed, especially when it contradicts the IAD’s finding. Accordingly, the Applicant
claims the IAD’s failure to consider this contradictory evidence makes the
conclusion it was “impossible” for the
Respondent to obtain the requested documents unreasonable, and without regard
to the material before it (Cepeda-Gutierrez v Canada (Citizenship and
Immigration) (1998), 157 FTR 35 (FC) at paras 16-17 [Cepeda-Gutierrez]).
[24]
The Respondent made no written submissions.
[25]
In my view, and as further explained below, the
IAD’s Decision is unreasonable. The IAD found that the visa officer’s refusal
of the sponsorship application was “not legally valid”,
as the visa officer had demanded documents the IAD found were impossible for
the Respondent to secure in a way that would render them meaningful or truthful
to the visa application. With respect to the Respondent’s ability to obtain a
court order proving custody, I find this conclusion was made without regard to
the facts before it.
[26]
The IAD cites Lan, above, as standing for
the proposition that a visa officer’s request to produce documents under subsection
16(1) of the Act is unreasonable if those documents are too difficult, or
impossible to access. At paragraphs 14 and 15 of Lan, above, cited only
partially by the IAD, the Court stated:
14 Yet, the only concern of the visa
officer that led her to her decision to refuse was the source of the applicant’s
revenues accumulated in the years between 1984 and 1989. The approach
advocated by the visa officer cannot hold because it put too heavy a burden on
the applicant.
15 In fact, it was unreasonable to require
the applicant to produce documents which are difficult if not impossible to
access, for a period so long ago, which are also without relevance or of
very little relevance with regard to the legality of the funds indicated on her
application for permanent residence.
[Emphasis added]
[27]
Notably, it was also the irrelevance of
such requested documents that rendered the visa officer’s refusal unreasonable
in Lan. Thus, I find Lan is applicable to the present facts
insofar as it outlines that a request for documents must be reasonable, in the
sense that the documents sought must be relevant, and not impossible to obtain.
[28]
In fact, this is essentially what is conveyed by
the wording of subsection 16(1) of the Act:
A person who makes an application must answer
truthfully all questions put to them for the purpose of the examination and
must produce a visa and all relevant evidence and documents that the officer
reasonably requires.
[Emphasis added]
[29]
With regards to the “no
objection letter” by the biological father, the evidence before the IAD
was that: (i) the Respondent had never been close with the father of her son
and has not spoken with him since before Emmanuel’s birth; and (ii) the
biological father has never met Emmanuel and has never cared for him in any
manner, physically, financially or emotionally. In light of this accepted
evidence, I find the IAD’s conclusion that the request for a “no objection letter” from the biological father was
not reasonably required under subsection 16(1) of the Act (and was therefore
not legally valid) is a reasonable decision. Given the rather unique set of
factual circumstances in this case, I find that it is justified on the evidence
before the IAD and explained in the reasons provided.
[30]
The visa officer alternatively requested a court
order proving the Respondent has sole custody of her son. Requiring proof of
custody where a “no objection letter” cannot be
obtained before permitting a minor child’s immigration across international
borders is both reasonable and relevant, as required by subsection 16(1).
[31]
The IAD found that the Respondent testified
credibly. Her testimony explained at length the substantial effort (including
travelling to Ghana twice and at one point spending a month there), and
significant sum of money spent in attempting to obtain the requested court
order, which was ultimately rejected by the High Commission on the basis that
the document obtained, a statutory declaration, was “not acceptable”.
[32]
The Respondent also testified at the hearing of
the difficulties she would face in attempting to obtain a court order of
custody in Ghana. She provided evidence speaking to the corruption in Ghanaian
court, and the implications that attempting to obtain such an order would have
on her and her family, considering the time commitment, expense, loss of
employment and the effect it would have on the ongoing financial support she
provides her son and family.
[33]
Notwithstanding this testimony, I find that the
IAD made an erroneous finding of fact, without regard to the evidence in concluding
that it would be impossible for the Respondent to secure the documents
requested in a way that would render them meaningful or truthful. Thus, the
IAD’s conclusion that the visa officer’s request for such documentation was legally
invalid is also not reasonable.
[34]
Section 18.1(4)(d) of the Federal Courts Act,
RSC 1985, c F-7 provides that this Court may set aside a tribunal’s finding
of fact if it is satisfied that the tribunal “based its
decision or order on an erroneous finding of fact it made in a perverse or
capricious manner or without regard to the material before it” (Khosa
v Canada (Minister of Citizenship & Immigration), 2009 SCC 12 at para
46). Parliament quite evidently intended that a high degree of deference be
afforded administrative fact finding.
[35]
Though it is trite that the IAD need not refer
to every piece of evidence before it, there is evidence in the record that is
both critical and contradictory to the IAD’s conclusion that it would be
impossible for the Respondent to obtain a court order proving custody. Though a
statement conveying that the decision-maker “reviewed
all the documentary evidence and testimony before it” may be sufficient
in some cases to assure the parties and the Court that the IAD directed itself
to the totality of the evidence, such a blanket statement will not suffice when
the evidence omitted from any discussion in the reasons appears squarely to
contradict the agency’s finding of fact (Cepeda-Gutierrez, above, at
paras 16, 17).
[36]
In concluding it was impossible to secure the
requested documents, the IAD provides no analysis of the evidence provided that
is contradictory to this finding – an omission which in my view suggests the
IAD’s conclusion was made without regard to the material before it (Cepeda-Gutierrez,
above, at para 17).
[37]
The following evidence runs directly contrary to
the IAD’s conclusion, and there is no discussion within the Decision as to why
it would be impossible for the Respondent to access these services, or why the
evidence was ultimately not accepted, such that the IAD could reasonably
conclude obtaining the court order was impossible.
[38]
First, the Applicant provided evidence of the
Legal Aid scheme in Ghana, which is free of charge to children under the age of
18, who are “exempted from providing their ability to
pay”. The Respondent did not know this assistance existed, or that her
son or his grandfather could access this avenue for assistance. The evidence in
the record explains that services are provided for civil matters, including
custody.
[39]
Secondly, in the record before the IAD, but
mentioned nowhere in its reasons, is the scale of fees adopted by the Ghana Bar
Association that indicates the price for initial consultation, hourly rates for
lawyers of various levels of seniority, and the estimated costs for legal
proceedings, including custody. The Respondent’s testimony was that she had
already spent approximately CAD $10,000 in attempting to find the biological
father, and paying for a statutory declaration from the Ghanaian court, rather
than a court order. Though the Respondent provided no corroborating documentation
of this, her testimony was accepted as credible.
[40]
Considering this above evidence, and without it
having been discounted or found not probative, it is difficult to conceive of
how the IAD arrived at the conclusion it would be “impossible”
for the Respondent to secure a court order. Moreover, there was no evidence the
Respondent had exhausted the reasonable options open to her: since the
statutory declaration was rejected by the visa office as insufficient to prove
custody, the Respondent has not attempted to obtain the court order, or have
her father or son do so in Ghana, nor has she looked into how long it would
take.
[41]
The Respondent’s testimony, accepted by the IAD,
was that she distrusted the courts, and believed them to be corrupt. This is understandable
given her negative experience thus far in paying for what she thought would be
a custody order. Nonetheless, the only other evidence before the IAD on the
issue of the corruption of the courts of Ghana are two one-page articles from
2007, and an internet website indicating Ghana was ranked as the third most
perceived corrupt country. It was open to the IAD to accept this evidence over
that provided by the Applicant. However, absent express findings and an
analysis as to why the evidence suggesting it would not be impossible
for the Respondent to secure a court order was not accepted, the Court is
entitled to infer that this contradictory evidence was overlooked when the IAD
made its finding of fact.
[42]
In order to allow a permanent resident visa
application, the visa officer must be convinced that “that
the foreign national is not inadmissible and meets the requirements of this
Act” (subsection 11(1)). Here, the visa officer was not satisfied of the
Respondent’s son’s eligibility, as the documents required for the immigration
of a minor child had not been received.
[43]
Though I have sympathy for the Respondent’s
desire to be reunited with her son, the visa officer is not only entitled to
request, but is mandated to require, on a reasonable basis, proof of valid
custody of the Respondent’s minor child under section 16(1) of the Act – either
by way of (1) a “no objection letter” from the
biological father, which I agree here was impossible as found by the IAD, or
(2) court documents indicating that the Respondent has full custody of her son
– which were not obtained or provided.
[44]
The Respondent is now aware of options available
to her, and without having attempted those options, and without the Court
having the benefit of the IAD’s reasons justifying why it ultimately decided it
would be impossible to secure the documents requested in the face of
contradictory evidence, the IAD’s conclusion that the visa officer’s refusal
was not legally valid amounted to an erroneous finding of fact, made without
regard to the evidence. For this reason, I would allow the application and
remit the matter to the IAD for redetermination in accordance with these
reasons.
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