Date: 20000308
Docket: IMM-263-99
BETWEEN:
KAMALPREET KAUR GOSAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLAIS, J.
[1] This is an application for judicial review of the decision of visa officer, John R. Butt, Canadian high Commission, New Delhi, dated November 24, 1998, requesting that the applicant and her claimed sisters undergo a DNA testing to prove her identity.
Facts
[2] The applicant was sponsored by her husband for permanent residency in Canada. The applicant claims that the marriage took place on April 3, 1996 and that it was arranged by her parents and her husband"s sister when she visited India in 1995. The sponsor claims that the marriage was arranged by his maternal grandmother who was related to his wife"s family.
[3] During the interview with the visa officer, the applicant explained that she was the eldest of four daughters. When asked about their date of birth, she was unable to give any. The visa officer pointed out to the fact that she looked much older than the 24 years she admits to. He also raised the fact that the husband was much older than her. The visa officer was further, not satisfied that her three sisters were not actually her children. He requested that she submits birth certificates for the three girls.
[4] On April 22, 1998, the visa officer received a letter from the applicant stating: "I am enclosing herewith Not Found Certificate of my children and affidavit duly attested."
[5] In her affidavit, the applicant listed Gurpreet Kaur d.o.b. 09-10-1980, Manpreet Kaur, d.o.b. 22-02-1982 and Harpreet Kaur d.o.b. 11-12-1985 as her children.
[6] The visa officer wrote to the applicant asking her to explain the discrepancy: in her interview she claims that the girls are her sisters, while in her letter she claims that they are her children. He further indicated that given the conflicting information provided with no corroboration of either version, she, her husband and the three girls are to undergo medical testing to prove their familial relationship.
[7] The applicant forwarded a letter and a fresh affidavit explaining that the previous affidavit holds a mistake, that the girls are actually her sisters and not her children.
[8] On June 14, 1998, the visa officer sent a letter explaining that the documents submitted did not establish the relationship of her sisters with her. The request to undergo DNA testing was again reiterated.
[9] The applicant"s counsel wrote to the visa officer protesting the DNA testing. Counsel stated that the applicant being born in 1973 could not possibly be the mother of her sisters born in 1980, 1982, 1985.
[10] The visa officer once again reiterated the request to the applicant"s counsel. Counsel sent letter stating that both the applicant and her husband are willing to sign an Opting-out Waiver that they will not sponsor her three sisters.
Visa officer"s decision
[11] The visa officer sent a letter, dated November 24, 1998 to the applicant giving her the necessary information to arrange for the DNA testing.
The applicant"s position
[12] The applicant submits that the interview was conducted and the proceedings subsequent thereto, denied her procedural fairness and safeguards.
[13] She submits that the officer erred in not giving consideration to the humanitarian and compassionate grounds existing in her case.
[14] The applicant suggests that the visa officer erred in giving undue emphasis upon the DNA testing when the sisters were not in fact accompanying dependent as the sponsor"s application only made reference to the applicant.
[15] The applicant notes that the visa officer is now stating that he disbelieves the bona fide of the marriage and the stated age of the applicant, although he believes that she gave birth in 1980. The applicant argues that a medical examination is far more expeditious than DNA testing to determine is she gave birth to a child in 1980.
[16] With regard to the "opting out waiver" the visa officer refers to certain sections of the Immigration Act and the Regulations and states that he is not aware of the authority for such an opting out waiver. What the visa officer did, was close his mind to the other issued by persisting with the DNA testing which would not have concluded the outstanding issues that the officer appears to have, ie: bona fides of the marriage, the applicant"s age, giving birth in 1980.
[17] The applicant submits that the DNA testing would not conclude that matter since the issue listed above will remain outstanding.
[18] The applicant further submits that if the visa officer had doubts with respect to her age, he should have confronted her during the interview and allowed her to refute it. By failing to do, the visa officer violated the duty of procedural fairness.
The respondent"s position
[19] The respondent submits that in assessing the applicant"s application for permanent residence, the visa officer was required to determine if the applicant had any dependents and to determine if the applicant and any dependents were admissible into Canada as a member of the sponsor"s family class as set out in section 6 of the Immigration Regulations .
[20] The respondent submits that there was no denial of natural justice or procedural fairness in the processing of the applicant"s family class application. The respondent submits that the applicant was fully aware of the visa officer"s concerns relating to the applicant"s familial relationship to her claimed sisters. During the interview with the applicant and in the letters to the applicant, the visa officer clearly stated his concerns regarding the familial relationship of the applicant"s claimed sisters as well as the applicant"s claimed age.
[21] The respondent submits that the applicant was provided with every opportunity to respond to the concerns of the visa officer and in fact, both the applicant, her husband and counsel to the applicant provided submissions to the visa officer regarding the familial relationship.
[22] The respondent submits that the visa officer"s request to the applicant to undergo DNA testing with her claimed sisters is an interlocutory matter and to date, no final decision has been made with respect to the applicant"s visa application for permanent residence. The respondent submits that there are no special circumstances in this application which would warrant the intervention of this Honourable Court. If the applicant objects to undergoing DNA testing, then the applicant can simply advise the visa officer of her refusal to do so and the visa officer can continue with the processing of the applicant"s application.
[23] The respondent submits that the judicial review application is premature at this time.
Issues
| [24] 1 - Should this Court exercise its jurisdiction on an interlocutory matter? |
| 2 - Was there a denial of natural justice or breach of procedural fairness by the visa officer in the processing of the applicant"s visa application and in requesting the applicant to undergo DNA testing? |
Analysis
| Should this Court exercise its jurisdiction on an interlocutory matter? |
[25] In Novopharm Ltd. v. Aktiebolaget Astra, [1996] 2 F.C. 839, Justice Gibson stated:
| There can be no doubt that the decision sought to be reviewed is interlocutory in nature. It does not in any sense dispose of the opposition proceedings before the Registrar [...] But this Court's jurisdiction under section 18 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)] is not restricted to the final substantive decision on the question before a tribunal. |
| there is authority in this Court to engage in judicial review under section 18 of the Federal Court Act of an interlocutory judgment or decision and, second, that in special circumstances, it is appropriate to exercise that authority. |
[26] In Szczecka v. Canada (M.E.I.)(1993), 116 D.L.R. (4th) 333, Mr. Justice Létourneau of the Federal Court of Appeal held :
| . . .unless there are special circumstances there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, especially immediate review, when at the end of the proceedings some other appropriate remedy exists. These rules have been applied in several court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses which interfere with the sound administration of justice and ultimately bring it into disrepute. |
| The Refugee Division's decision on the objection to the admissibility of the documentary evidence is an interlocutory decision, not a final decision ruling on the merits of the case. In addition, the applicant has a right of appeal from the decision which will eventually be made on the merits of her application for refugee status. At that time she can seek review of any error on the admissibility of the evidence and any denial of natural justice which she may have suffered, whether it results from final judgment or from an interlocutory decision. There is thus an appropriate remedy at a later stage of the proceedings. |
[27] The visa officer wrote on June 2, 1998 :
| Please advise us in writing of the willingness of you, your husband Gurprett Kaur, Manpreet Kaur and Harpreet Kaur to undergo this testing. If no reply is received within 30 days, your application for permanent residence in Canada will have to be refused. |
[28] The visa officer wrote again on July 14, 1998:
| The documents you submitted do not establish relationship of your sisters...It is therefore my intention to refuse your application because you are a member of the inadmissible class of persons... |
| Please advise us in writing as soon as possible if you are willing to undergo DNA test. If no reply is received within 60 days, your application will be refused |
| [visa officer"s underlining] |
[29] In the letter to the applicant"s counsel, dated September 28, 1998, the visa officer states:
| "If she is unwilling to comply, I will have no choice but to refuse her application for permanent residence." |
[30] In his Affidavit dated June 18, 1999 wherein he answers questions put forward bu counsel for the applicant, he states at question 16 :
| At the stage when I requested the applicant to undergo DNA testing, and today, I am still in the process of gathering information required to make a decision on the case. |
[31] In my view, the visa officer is still processing the application.
[32] If ultimately, the applicant is refused, she could apply for judicial review and raise any argument she might have, including the DNA testing.
[33] Given the conflicting affidavits brought forward and signed by the applicant herself, the visa officer felt he had no other choice but to require DNA testing seeing that there is no birth records, no school records and the only evidence before him is contradictory. In my view, given the facts in this case, it was reasonable for him to do as he did.
[34] I don"t find that there are special circumstances to justify the Court"s intervention. For these reasons this judicial review should be dismissed.
(Sgd.) "Pierre Blais"
Judge
March 8, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-263-99
STYLE OF CAUSE: Kamalpreet Kaur Gosal
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 7, 2000
| REASONS FOR ORDER OF Blais, J. |
DATED: March 8, 2000
APPEARANCES:
| Gerald G. Goldstein For the Applicant |
| Helen Park For the Respondent |
SOLICITORS OF RECORD:
Evans, Goldstein & Eadie
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
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