Date: 19971224
Docket: IMM-4187-96
OTTAWA, ONTARIO, THIS 24th DAY OF DECEMBER 1997
Present: THE HONOURABLE MR. JUSTICE NADON
Between:
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA,
Applicant,
-and-
LUTH BALANE-DEJARDIN,
Respondent.
JUDGMENT
Application for judicial review seeking:
| - to have the decision of Joseph Blumer, of the Appeal Division of the Immigration and Refugee Board, dated November 1, 1996, set aside, and |
| - an order that a new hearing be held before another member of the Appeal Division of the Immigration and Refugee Board. |
[Section 82.1 of the Immigration Act]
J U D G M E N T
The application for judicial review is allowed. The decision of Board member Joseph Blumer dated November 1, 1996, is set aside. A new hearing will be held before another member of the Appeal Division of the Immigration and Refugee Board.
"MARC NADON"
Certified true translation
C. Delon, LL.L.
Date: 19971224
Docket: IMM-4187-96
Between:
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA,
Applicant,
-and-
LUTH BALANE-DEJARDIN,
Respondent.
REASONS FOR JUDGMENT
NADON J.:
[1] The applicant is seeking review of a decision of the Appeal Division of the Immigration and Refugee Board (the "Appeal Division") dated November 1, 1996.
[2] The material facts are as follows. The respondent claims to be the mother of Clark and Sherwin Balane who filed applications for permanent residence in Canada in July 1995. In September 1995, the respondent signed an undertaking to assist her children.
[3] On December 18, 1995, the Embassy of Canada in Paris (the "Embassy"), to which the applications for permanent residence had been referred, wrote to the respondent to obtain a number of documents, and specifically the original of the children's birth register extracts, the original of their baptismal register extracts and the original of their school records. The author of the letter, Hendrik Ferdinand de Pagter, the then second secretary at the Embassy, informed the respondent that, unless she could provide the documents in question, a DNA test would be necessary in order to establish the respondent's relationship to Sherwin and Clark Balane. Lastly, Mr. de Pagter asked the respondent to reply [translation] "by March 18, 1996".
[4] Another letter, dated March 5,1996, was sent to the respondent by the Embassy. Not having received the originals of the documents referred to in the letter of December 18, 1995, Mr. de Pagter explained to the respondent why these documents were required. At page 2 of his letter, Mr. de Pagter wrote:
| [TRANSLATION] These documents are necessary because the birth certificates provided by Mr. Dejardin are dated May 26, 1994, eighteen years and sixteen years, respectively, after the births of Sherwin and Clark, and for that reason cannot be considered to be valid proof of relationship. I also noted that on the "Affidavit for Delayed Registration of Birth" the reason given for the delay in registering the births is "negligence". |
|
| These facts, and the rather extraordinary events in the children's lives (allegedly abducted and disappeared for years) require careful verification of all documents that could establish a parent-child relationship between you and Sherwin and Clark. That is the reason why we requested all the original documents in your possession to prove that relationship. |
|
[5] On April 17, 1996, Mr. de Pagter wrote to the children to inform them that their applications for permanent residence in Canada had been refused. Mr. de Pagter's letter reads as follows, in part:
| In accordance with subsection 9(3) of the Immigration Act, 1976, which reads as follows: |
|
| Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations. |
|
| and in order to continue the examination of your application, we asked you, on December 18, 1995, to provide the following documents: |
|
| - the original of your birth certificate; |
|
| - the original of your baptismal certificate (if any); |
|
| - the original of your school records showing the names of both your parents; |
|
| - any other document that could assist in establishing your relationship to your guarantor, Luth Balane-Dejardin. |
|
| As we wrote to your guarantor, these documents were necessary because the birth certificate in your file was issued on May 26, 1994, eighteen years after your birth, and for that reason could not be considered to be valid proof of relationship. |
|
| By our correspondence of March 5, 1996, we again asked that you kindly forward these documents to us, and informed you that if we did not receive any news within three months after that date, we would conclude that you no longer wished to carry out your plan and would then refuse your application. |
|
| In addition, you did not attend for the interview to which you were invited in Brussels on March 25, 1996. |
|
| Having received no reply from you, and since you have failed to comply with the provisions of subsection 9(3) of the Act, you are now an inadmissible person as you cannot or do not fulfil or comply with the requirements of the Act and regulations, a class described in paragraph 19(2)(d) of the Act. Your application is accordingly refused. |
|
[6] On June 3, 1996, the respondent filed a notice of appeal from the decision of Mr. de Pagter under section 77 of the Immigration Act. At the end of a hearing, following a brief recess, Joseph S. Blumer, the member of the Appeal Division, allowed the respondent's appeal. Mr. Blumer stated:1
| [TRANSLATION] Sir, I note that I have two certificates before me. A baptismal certificate that the Minister had in his possession probably since 95. That is my impression, from what I have heard concerning the question of adoption and the legality and not only the legality, the formalities that it takes to verify the background in the case of a so-called late birth, not a late birth, but a late application for these people and the Minister, they had the opportunity to check into it (inaudible). |
|
| He went no further than to doubt. He certainly had reasons to raise doubts, but after hearing the lady and I am going to give detailed reasons, I find the lady to be credible in her version of the events, even though they are somewhat bizarre, all these events, and I am going to allow the appeal in law. |
|
[7] Mr. Blumer signed his reasons on November 27, 1996, and on December 6, 1996, the Appeal Division made the following order:
| [TRANSLATION] THE APPEAL DIVISION ORDERS that the appeal be allowed because the refusal to approve the application for landing made by |
|
Clark BALANE (son; 28-10-78)
Sherwin BALANE (son; 27-08-76)
is not in accordance with the law.
[8] It is that decision that the applicant is seeking to have set aside.
[9] In support of his application for judicial review, the applicant submits that Mr. Blumer violated a principle of natural justice when, during the hearing on November 1, 1996, he refused the request for an adjournment made by the appeals officer, Martin Tremblay, who filed an affidavit in support of the application for judicial review.
[10] The applicant further submits that Mr. Blumer erred in concluding, at page 4 of his reasons, that the originals of the delayed registrations of birth and of the baptismal certificates [translation] "had been in the hands of the immigration officers since the middle of 1995 ...".
[11] For the following reasons, I have concluded that Mr. Blumer's decision must be set aside.
[12] First, there can be no doubt that the originals of the documents requested by the Embassy were never provided by the respondent. What the Embassy received are copies certified by Émile Dejardin, born Bombisky, the respondent's husband, to be true. [See the statutory declarations of Hendrik de Pagter and Louise Van Winkle, dated August 29, 1996, and March 15, 1996, respectively.]
[13] It is clear from Mr. de Pagter's letters to the respondent, dated December 18, 1995, and March 5, 1996, that the Embassy required the originals of the three documents: extracts from the birth register, extracts from the baptismal register and school records. In view of the respondent's failure to forward those documents to the Embassy, the applications for permanent residence were refused. However, the originals of the extracts from the birth certificates register and baptismal certificates register were filed on November 1, 1996, at the hearing before Mr. Blumer. More specifically, the following documents were filed:
| Certificate of live birth of Sherwin Balane with an affidavit for delayed registration of birth; |
|
| Certificate of live birth of Clark Balane with an affidavit for delayed registration of birth. |
|
[14] At the hearing, Martin Tremblay, the appeals officer, asked Mr. Blumer to give him an adjournment so that the documents could [translation] "be submitted for expert examination and the content of the information on the documents be verified with the authorities in the Philippines" (page 13 of the transcript of November 1, 1996). The request for an adjournment was denied by Mr. Blumer. The member seems to have denied the request for an adjournment for the following reasons:
| [TRANSLATION] So we will proceed on the basis that there was at least one moment when the officer at the time examined the originals of the extracts, despite the fact that Mr. Tremblay has no notes in his file on that. Fine, that, that resolves the question only of ... for the moment of 9(3), subject to reservations, Mr. Tremblay, the question of the birth certificate, the baptismal certificate, but I would like the lady to testify concerning the school record and the other ... and any other evidence that can show the sons are ... her own sons and if you like, in view of the fact that I have accepted these documents, I don't know whether they have already been entered, it is not necessary to wait until cross-examination, you will have the right to request explanations. |
|
[15] When Mr. Blumer states "that there was at least one moment when the officer at the time examined the originals of the extracts, ...", he is probably referring to a meeting that took place on July 24, 1995, at the Embassy, between Émile Dejardin and Ms. Van Winkle. At that meeting, Mr. Dejardin briefly showed Ms. Van Winkle the originals and left her the certified copies. Those certified copies were certified by Mr. Dejardin himself. Mr. Dejardin did that by being sworn before a commissioner for oaths for the judicial district of Longueuil on February 22, 1995. Before me, the respondent did not argue that the originals required by the Embassy had been sent to the Embassy. On the contrary, the respondent said that she did not send them because she did not want to take the risk of losing them.
[16] There is therefore no doubt that the original documents which were required by the Embassy were never provided to the Canadian authorities which had, in my opinion, good reason for wanting to examine those documents. For example, on June 24, 1985, the respondent signed a statutory declaration in which she affirmed that she had had a miscarriage in 1978, the very year when Clark Balane was supposedly born. In addition, the applicant [sic] affirmed that the miscarriage resulted from a relationship with her former friend Rodolfo Villanueva. In addition, before the Appeal Division and in this Court, as well as in support of the undertaking to assist her children, the respondent contended that her two children were born, in 1976 and 1978, as a result of being raped by an employee of her brother, a priest in the Philippines. Having regard to that statutory declaration and to the position taken by the respondent in support of the applications for permanent residence in Canada made by Clark and Sherwin Balane, it is indisputable that the Canadian authorities have good reason to want to ascertain that the respondent is indeed the mother of the children.2
[17] In view of the fact that the respondent has refused to comply with subsection 9(3) of the Immigration Act,3 and in view of the fact that she filed the originals required by the Canadian authorities at the hearing before Mr. Blumer for the first time, it is difficult, if not impossible, to understand why Mr. Blumer refused to grant the adjournment requested by Mr. Tremblay. Having regard to the evidence before the Canadian authorities, their concern for ascertaining that the respondent was truly the mother of Clark and Sherwin Balane cannot be doubted. In these circumstances, I cannot do otherwise than to allow the application for judicial review. The delay that will result from my decision is unfortunate for the respondent in the event that she is truly the mother of the children. It would perhaps have been preferable for Mr. Blumer to adjourn the hearing for sufficient time to allow the Canadian authorities to submit the original documents for expert examination and make inquiries to the Government of the Philippines concerning the content of the originals.
[18] Accordingly, the application for judicial review will be allowed. The matter will be referred back to the Appeal Division of the Immigration and Refugee Board for a new hearing before another member of the Appeal Division.
"MARC NADON"
Judge
Ottawa, Ontario
December 24, 1997.
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-4187-96
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION
v. LUTH BALANE DEJARDIN
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: DECEMBER 11, 1997
REASONS FOR ORDER OF NADON J.
DATED: DECEMBER 24, 1997
APPEARANCES:
LUTH BALANE-DEJARDIN THE RESPONDENT
FOR HERSELF
MICHEL SYNNOT FOR THE APPLICANT
PASCALE-CATHERINE GUAY
SOLICITORS OF RECORD:
George Thomson FOR THE APPLICANT
Deputy Attorney General of Canada
__________________
1Pages 162 and 163 of the transcript of November 1, 1996.
2In Bombisky v. Canada (1988), 22 F.T.R. 161, at pages 167 and 168, in an action for damages brought by Mr. Dejardin and the respondent in response to the refusal of the Crown employees at the Embassy of Canada in Manilla to issue a landing visa to the respondent, my colleague Mr. Justice Dubé examined the respondent's statutory declaration dated June 24, 1985, as follows:
[22] The plaintiffs submitted that Mrs. Bombisky never signed such a declaration, but simply a blank sheet with, in the endorsement and above her signature, the words:
And I make this solemn declaration conscientiously believing it to be true and knowing it is of the same force and effect as if made under oath.
[23] According to the plaintiffs, the aforesaid declaration was then typed by the officials of the Crown on the reverse side of the sheet in the absence of Mrs. Bombisky.
[24] I cannot grant any credibility to this claim. The two officials, Mrs. Melis and Mrs. Andrada, both testified at the trial and convinced me of their integrity and competence. Furthermore, they would have gained no benefit from such an intrigue. On the other hand, this confession by Mrs. Bombisky constitutes a formidable obstacle that must be overcome by the plaintiffs if they are to prevail.
3Subsection 9(3) of the Immigration Act reads as follows: (3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
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