Date: 20030228
Docket: IMM-62-02
Neutral citation: 2003 FCT 257
BETWEEN:
THRI RAJ JOHN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LINDEN J.A.(ex officio)
Introduction
[1] This is an application for judicial review by Thri Raj John (the "Applicant") of a decision made by Mark Girault (the "Visa Officer") at the Canadian High Commission in Colombo, Sri Lanka. By letter dated December 10, 2001, the Visa Officer refused the Applicant's application for permanent residence as an independent Applicant.
Facts
[2] The Applicant applied for a permanent-residence visa as a member of the assisted relative class because his maternal aunt is a Canadian Citizen residing in Toronto. Following an interview he was tentatively advised that his application was accepted, subject to a medical examination and a background check. As requested, he later provided a copy of his aunt's birth certificate. A new Visa Officer took over his file and wanted to verify that the Applicant was a member of the assisted relative class since the Applicant had previously applied to immigrate to Canada in the independent class without declaring the presence of a close family relative in Canada.
[3] The Applicant was then asked to attend a second interview at which time he was told that the birth certificate he submitted was fraudulent, that he may have committed an serious crime, and, consequently, his application was rejected.
[4] During this interview the Applicant explained that his aunt had sent her birth certificate from Canada, that he did not actually see the certificate as he had been working in Saudi Arabia at the time and that his wife gave the certificate to his lawyer who then submitted it to the Canadian High Commission. He also said that he could contact his aunt for an explanation, and provide other proof of his relationship to her. Notwithstanding this request for more time to allay the Visa Officer's concerns, the Visa Officer reiterated that his application had been rejected.
[5] According to the Applicant, his aunt advised him that she obtained the birth certificate in question in 1982, while working in Kuwait, prior to her arrival in Canada as a refugee. The certificate was mailed to her by a friend to whom she had provided her birth details for the purposes of obtaining the document. Apparently Sri Lankan birth certificates are hand written by officials who transcribe the relevant information from original log books. The Applicant argues that there was no way for him or his aunt to have known that the certificate was fraudulent.
[6] The Visa Officer states that the Applicant was given an opportunity to respond to his concerns about the fraudulent birth certificate, but the Applicant disagrees. He states that he was not advised in advance about the subject of the second interview, and that the Visa Officer ignored his explanation and request for an opportunity to prove his relationship to his aunt. This, it is argued, was not a meaningful opportunity to respond.
[7] The Visa Officer was not satisfied that the Applicant was a member of the assisted relative class and consequently assessed the Applicant in the independent class (which requires 5 more units of assessment to qualify for immigration to Canada). The Applicant was assessed on December 10, 2001 as scoring 65, a pass mark for the assisted relative class but insufficient to be admitted in the independent class.
[8] The Visa Officer also determined that it would be contrary to the Immigration Act for the Applicant to be granted landing in Canada as he came within the inadmissible class of persons described in subparagraph 19(1)(c.i)(ii) of the Act because the Visa Officer had reasonable grounds to believe that, by using a forged document, the Applicant committed an act in Sri Lanka that constitutes a criminal offence, that if committed in Canada, would be punishable by a maximum term of imprisonment of 10 years or more.
[9] The Visa Officer concluded that the Applicant knew the birth certificate was false because the visa officer determined that Attputham Jacob Augustine was not his real aunt. He came to this conclusion because of the Applicant's failure to declare the presence of a relative in Canada on his previous immigration application, despite the benefit associated with applying as an assisted relative. The Visa Officer was not satisfied with the Applicant's explanation that he was cheated by his previous immigration consultant.
- Issue
- Did the Visa Officer violate the principles of fairness by failing to give the Applicant a meaningful opportunity to respond to the Visa Officer's concerns that his aunt's birth certificate was fraudulent?
- Arguments & Analysis
The Applicant submits that he was not given an adequate opportunity to respond to the concerns that his aunt's birth certificate was fraudulent. The Applicant refers to
Baker v.
Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 and
Khan v.
Canada, [2001] F.C.A. 345 for the principle that participatory rights contained in the duty of fairness vary from case to case, but that fairness requires that those whose interests are affected be given a meaningful opportunity to fully and fairly present their case.
[12] The Applicant submits that the Visa Officer breached the duty of fairness set out in Baker by not giving the Applicant some time to make inquiries about the fraudulent birth certificate before responding to the Visa Officer's concerns.
[13] According to the Visa Officer's CAIPS notes, the Applicant was told that the birth certificate was fraudulent and was then asked: "do you have any further information in this regard?" The Applicant replied: "No - she sent it from Canada. I was not aware of this - she is my true aunt."
[14] The Applicant submits that, because the Respondent has adduced no evidence to contradict the Applicant's evidence that he specifically requested an opportunity to contact his Aunt for an explanation of the fraudulent document, and to adduce other proof of their familial relationship, the Court ought to accept the Applicant's evidence on this point.
[15] The Applicant contends that the opportunity he was given to respond to the Visa Officer's concerns was meaningless since he had no prior knowledge that the birth certificate was fraudulent and was not given an opportunity to present evidence as to the authenticity of the document nor as to his ignorance that it was a bogus document. Nor was he allowed to provide alternative proof of relationship.
[16] The Applicant argues that, as per Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C., he should have been given an adequate opportunity to comment upon the extrinsic evidence before the Visa Officer made his assessment.
[17] It is the Respondent's position that the Visa Officer discharged the duty of fairness by advising the Applicant of his concerns, and providing him with an opportunity to respond to them at the hearing. The Respondent relies on Patel v. Canada (Secretary of State), [1995] F.C.J. No. 1410 (F.C.T.D.), a case in which the Court found that the duty of fairness was met when the Applicant was interviewed a second time so that he could respond to the visa officer's concerns about his lack of credentials and experience as a printing mechanic.
[18] In Patel, the Court concluded that the Applicant was advised of the visa officer's concerns and given a full opportunity to respond to them in a second interview. In Patel, however, the prospective immigrant was advised of the purpose of the second interview by a letter in advance of the interview. The Applicant in this case was not advised why he was being re-interviewed until he arrived at the second interview. For this reason, it cannot be said that he was given a full opportunity to respond to the Visa Officer's concerns about the authenticity of his aunt's birth certificate. Had he been told in advance of the purpose of his second interview, or given some time after the interview, he may have been able to gather evidence to meaningfully address the Visa Officer's concerns about the document. This might be done by telephone or other written means of communication.
[19] The Respondent contends that the Applicant must have known why the second interview was convened because at that interview the Applicant adduced an affidavit from his aunt in which she deposed that her last name changed from Jacob to Augustine as a result of her marriage. In my view, this argument is not convincing. The affidavit of the Applicant's aunt, sworn on June 14, 2000, and presented to the Visa Officer at the Applicant's second interview, does not establish that the Applicant had prior knowledge about the fraudulent quality of the birth certificate.
[20] Consequently, I conclude that the Visa Officer breached the duty of fairness by not giving the Applicant ample opportunity to meaningfully respond to the specific problem he faced, that is, that a key document that was submitted by him was fake.
- Conclusion
- The Visa Officer's decision should be quashed, and the Applicant's application remitted for redetermination in accordance with the principles of procedural fairness before March 31, 2003. No costs.
"A.M. Linden"
Judge
Toronto, Ontario
February, 28, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-62-02
STYLE OF CAUSE: THRI RAJ JOHN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: FRIDAY, FEBRUARY 28, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LINDEN J.A. (ex officio)
DATED: FRIDAY, FEBRUARY 28, 2003
APPEARANCES BY: Mr. D. Russ Makepeace
For the Applicant
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD: Mr. D. Russ Makepeace
17 Madison Avenue,
Suite 200
Toronto, Ontario
M5R 2S2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030228
Docket: IMM-62-02
BETWEEN:
THRI RAJ JOHN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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