Date: 20050113
Docket: IMM-6492-04
Citation: 2005 FC 29
Montréal, Quebec, the 13th day of January 2005
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
DEOGRATIAS NKUNZIMANA
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] The Minister of Citizenship and Immigration (the Minister) is asking the Court to set aside the decision of the Immigration Appeal Division (the panel) dated June 28, 2004, allowing the appeal of Deogratias Nkunzimana (the applicant), a Canadian citizen of Burundian origin, against a decision of a visa officer of the Kenyan High Commission rejecting his application to sponsor five orphaned children of whom the applicant alleges to be the uncle. The mothers of the children were the applicant's two deceased sisters.
[2] The Minister is basing the application on two grounds.
[3] First, the Minister submits that the panel erred in law in stating that it was bound by legal and technical rules of evidence notwithstanding the provisions of s. 175 of the Immigration and Refugee Protection Act (the Act), which stipulates:
| 175. (1) The Immigration Appeal Division, in any proceeding before it,
(a) must, in the case of an appeal under subsection 63(4), hold a hearing;
(b) is not bound by any legal or technical rules of evidence; and
(c) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.
(2) In the case of an appeal by a permanent resident under subsection 63(4), the Immigration Appeal Division may, after considering submissions from the Minister and the permanent resident and if satisfied that the presence of the permanent resident at the hearing is necessary, order the permanent resident to physically appear at the hearing, in which case an officer shall issue a travel document for that purpose.
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175. (1) Dans toute affaire dont elle est saisie, la Section d'appel de l'immigration :
a) dispose de l'appel formé au titre du paragraphe 63(4) par la tenue d'une audience;
b) n'est pas liée par les règles légales ou techniques de présentation de la preuve;
c) peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision.
(2) Pour l'appel formé au titre du paragraphe 63(4), la section peut, le ministre et le résident permanent ayant été entendus et la nécessité de la présence de ce dernier ayant été prouvée, ordonner sa comparution; l'agent délivre alors un titre de voyage à cet effet. ent to physically appear at the hearing, in which case an officer shall issue a travel document for that purpose.
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[4] Second, counsel for the Minister argues that the panel erred in qualifying the letter from the Burundian Ambassador to Canada (the Ambassador) as a record of civil status.
[5] The key evidence on which the panel based its decision is a letter from the Ambassador dated October 16, 2003, attesting that, following a verification of the father's [applicant's] attestation of family composition and the birth certificates of the children to be adopted, the applicant is the uncle of the children he wants to sponsor.
[6] The attestation of family composition is a document signed by the Butaganzwa Commune Administrator (the Administrator), confirming that the family of the applicant's father and mother is made up of five children, including the applicant and the two deceased sisters, who are the mothers of the children in question.
[7] The Ambassador certified the Administrator's signature.
Panel's decision
[8] At paragraph 18, the panel writes:
[18] That said, the fact remains that the issue is well defined in law: What is the probative value of the document signed by the Burundian Ambassador to Canada?
[9] In the next paragraph, the panel notes that, according to the Vienna Convention, which is in effect in Canada, consular duties conferred on the Ambassador authorize her to act as a notary and civil registrar for nationals of her country and concludes as follows in paragraphs 20, 21 and 28:
[20] Accordingly, the Ambassador's confirmation of the attestation of family composition prepared by Côme Hatungimana on October 16, 2003 means that this document is authentic. Therefore, in the absence of improbation or some other similar act before the IAD, which has the authority of a superior court (section 162 of the Act), it must be accepted as proven that the children from the marriage of Sylvestre Karikurubu and Madeleine Ngenzebuhoro are the persons named on the document.
[21] The document concerned is a record of civil status issued by the consular post in accordance with the Vienna Convention and there is no indication in the notes of our own consular post that the information provided might not be well founded. Thus, under the rule of the balance of probabilities, this panel must conclude that these persons are brothers and sisters.
[28] For the purposes of this decision, on the basis of the authentic nature of the Ambassador's statement in her capacity as civil registrar for the state of Burundi, the panel is satisfied that the five children are the appellant's nephew and four nieces even though they are the children of two different sisters.
[Emphasis added.]
[10] At paragraph 31, the panel writes that "the issue now consists solely of the probative value of a document declared authentic . . . that is, the attestation of family composition."
[11] The panel concludes:
[32] With all due respect, the panel does not concur with this interpretation of what constitutes an authentic document. The very purpose of an authentic document is to attest to the veracity of its contents. It is for this reason that the Code of Civil Procedure sets out a specific procedure, a veritable procedure within another procedure referred to as "improbation", for the purpose of setting aside the contents of an authentic document.
[33] In the case before us, the foreign state has declared through its civil registrar that the two mothers of the children were the appellant's sisters. Unless it wishes to improbate this statement by Her Excellency the Ambassador of Burundi, the panel must accept this evidence with respect to not only the form of the document but also its contents.
[34] This in no way invalidates the assertion that our own consular posts abroad are not required to go beyond the call of duty in conducting proper verifications. However, the fact remains that no mention of this difficulty was originally made in the Computer Assisted Information Processing System (CAIPS) notes on this subject. Moreover, when the documentation attested by the Ambassador was submitted, no serious grounds were presented to attack the veracity of its contents.
[35] The panel could have heard evidence on this subject if the representatives of the Canadian state wanted to improbate the authentic document of the representative of the state of Burundi, and the same rule of law would have applied, namely the assessment of its probative value on a balance of probabilities. Such evidence was not provided and the panel must therefore conclude that the family relationship between the appellant and his two deceased sisters was established. The same holds true for the sisters' two spouses.
[36] The children are therefore, in law, on a balance of probabilities, the appellant's nieces and nephew and are members of the family class within the meaning of subparagraph 117(1)(f)(ii) of the IRPR.
Analysis
[12] In my view, counsel for the Minister is correct in arguing that the panel's approach goes against the Act and the purpose of s. 175, which I consider to be mandatory and non-discretionary. The panel claims it is bound by the legal and technical rules of evidence of the Civil Code of Québec and Code of Civil Procedure in finding that the contents of the Ambassador's letter have to be assumed to be true unless the Minister's representative improbates the letter.
[13] In my view, the panel introduced an evidentiary framework based on the civil law concept of authentic acts into the Act, thereby removing from the panel the primary mission of assessing the probative value of a document in light of all the evidence before it. The panel's approach incorporates a form of evidentiary rigidity that was not intended by Parliament and that, in actual fact in this case, reverses the burden of proof and places it on the Minister's shoulders.
[14] In support of this finding, I quote Décary J. in Mugesera v. Canada (Minister of Citizenship and Immigration) [2004] 1 F.C.R. 3 at para. 31:
[31] It is well settled, in accordance with the wording of paragraph 69.4(3)(c) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Act, that the Appeal Division may receive "such additional evidence as it may consider credible or trustworthy". The effect of this provision is to free the Appeal Division from the constraints resulting from the application of technical rules on presentation of evidence, including those having to do with the best evidence and hearsay evidence (see Canada (Minister of Employment and Immigration) v. Dan-Ash (1988), 5 Imm. L.R. (2d) 78 (F.C.A.). I conclude from that case that for all practical purposes paragraph 69.4(3)(c) lays down for the Appeal Division the same rules of evidence as subsection 68(3) [as am. idem] lays down for the Refugee Division. The latter thus provides that the Refugee Division "is not bound by legal or technical rules of evidence". At the same time, though paragraph 69.4(3)(c) deals with the submission of additional evidence to the Appeal Division, needless to say the Division must, based on the evidence already accepted by the adjudicator and which the parties have agreed to file before it, form its own opinion on the relevance and credibility of the latter and reject it or give it less weight, or none at all, depending on the circumstances. It also goes without saying that the more indirect or unverifiable the evidence is, the more vigilant the Appeal Division must be when accepting and weighing that evidence.
[15] In Canada (Minister of Citizenship and Immigration) v. Dan-Ash [1988] F.C.J. No. 571 (C.A.), in relation to s. 65(2)(c) of the former Act, which is expressed in similar terms at s. 175(1)(c) of the current Act, Hugessen J.A. held that this provision "has the purpose and effect of freeing the Board's hearings from all technical rules of evidence and particularly the 'best evidence' and 'hearsay' rules".
[16] I therefore do not have to address the second issue raised by the Minister.
[17] I feel, however, that the panel's decision should not be set aside in spite of the error in law.
[18] Judicial review is a discretionary power that, in some circumstances, can be exercised to withhold the remedies sought (see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202).
[19] Under the circumstances, I see no reason why a differently constituted Immigration Appeal Division panel should re-examine Mr. Nkunzimana's sponsorship application, because it would come to the same conclusions drawn by this Court, that is, on the balance of probabilities, the children the applicant wants to sponsor are members of the family class within the meaning of the Act.
[20] In this case, the Minister's challenge was limited to determining whether the applicant is the brother of the mothers of the children.
[21] The Minister expressed some doubts as to the authenticity of the documents issued by the Administrator (panel's file, page 314).
[22] In a detailed statement dated March 10, 2004, (panel's file, page 352) the Administrator explains that the attestation of family composition in this case was issued at the request of the Ambassador and is based on the Commune's records. He explains why the document is not numbered or dated.
[23] His secretary made these oversights because she was distracted. He adds that, as far as they are concerned, what is important about the document is that the contents confirm that Deo NKUNZIMANA and his two sisters were born of the same parents.
[24] The applicant filed this document with the Immigration Appeal Division on March 18, 2004, and faxed a copy to the Minister. The Minister did not challenge the merits of the statement.
ORDER
THE COURT ORDERS that this application for judicial review be dismissed. The parties have seven days to formulate certified questions with a right to reply by January 28, 2005.
François Lemieux
Judge
Certified true translation
Michael Palles
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