Federal Court

Cour fédérale

 

Date: 20100331

Docket: IMM-4886-09

Citation:  2010 FC 351

Ottawa, Ontario, March 31, 2010

PRESENT: The Honourable Mr. Justice Boivin 

 

BETWEEN:

FRITZNER JULIEN

Applicant

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

 

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision dated September 10, 2009, by the Immigration Appeal Division of the Immigration and Refugee Board (the panel).

 

[2]               The panel dismissed the appeal filed by the applicant of the refusal of the application for permanent residence in Canada in the family class made by his spouse, Raymonde Charles, under subsection 63(1) of the Act.

 

Factual background

[3]               The applicant is a Canadian citizen born in Haiti. He arrived in Canada in 1980, sponsored by his first spouse, who died in 2005.

 

[4]               The applicant’s current spouse, Raymonde Charles, is a Haitian citizen who filed an application for permanent residence in Canada in the family class.

 

[5]               The applicant knew Ms. Charles before he left Haiti for Canada. They began dating in 1968. Ms. Charles subsequently moved in with the applicant when she became pregnant in 1969. In 1971, they separated and Ms. Charles returned home with their son to live with her parents. At first they maintained contact, but towards the end of 1972, their contacts became limited to conversations about their son, who was born impaired.

 

[6]               Around 1976 or 1977, the applicant met his first spouse, whom he married in 1979. After his departure for Canada in 1980, the applicant maintained contact with Ms. Charles and sent money to help support their son, and to help Ms. Charles set up a small business.

 

[7]               The applicant made frequent trips to Haiti after his arrival in Canada and would meet Ms. Charles and their son on each visit. In 1989, the applicant returned to Haiti to get his son, whom he brought to Canada.

 

[8]               In 2005, the applicant’s first spouse died.

[9]               In 2007, the applicant’s mother died. The applicant returned to Haiti for his mother’s funeral. During his stay he married Ms. Charles. Only four witnesses attended the wedding and no one else had been invited to the ceremony, not even Ms. Charles’ four children living in Haiti, because the applicant was in mourning.

 

[10]           After the wedding, the applicant returned to Haiti to visit Ms. Charles twice in 2008.

 

[11]           On May 8, 2008, the application for permanent residence in Canada in the family class was refused by a visa officer, who was of the view that the marriage between the applicant and his spouse was a marriage described in section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), in that it was not genuine and was entered into primarily for the purpose of acquiring permanent residence in Canada. Moreover, neither Ms. Charles’ identity nor that of her daughter had been established. The visa officer was not satisfied that the documents provided to prove the identities of the applicant’s spouse and her daughter were genuine.

 

[12]           The applicant appealed the visa officer’s decision to the panel under subsection 63(1) of the Act. Two hearings were held before the panel: one on June 8, 2009, to hear the parties’ testimony and another on June 15, 2009, for the parties’ oral submissions.

 

[13]           At the beginning of the hearing on June 8, 2009, the Minister’s counsel advised the applicant of his concerns with regard to Ms. Charles’ identity documents.

[14]           On June 10, 2009, by way of a letter from his counsel, the applicant requested that the evidence be reopened and that the hearing scheduled for June 15, 2009, be postponed in order to grant him a reasonable amount of time to enable him to obtain a corrected document from the Haitian national archives to establish his spouse’s identity.

 

[15]           On June 11, 2009, the Minister’s counsel objected to this request, stating that the evidence was closed.

 

[16]           At the hearing of June 15, 2009, the panel rejected the applicant’s request for adjournment.

 

[17]           On September 10, 2009, the panel dismissed the applicant’s appeal on the ground of the lack of proof of the identity of his spouse, Ms. Charles.

 

[18]           The authenticity of the marriage is not in dispute in this judicial review.

 

 Impugned decision

[19]           In the panel’s view, there was insufficient evidence to establish Raymonde Charles’ identity, on a balance of probabilities. The panel also found that the relationship between the applicant and Ms. Charles was genuine and that the marriage had not been entered into primarily to allow Ms. Charles to acquire permanent residence in Canada. Ms. Charles does not fall within section 4 of the Regulations.

 

[20]           Ms. Charles’ identity was challenged, especially on the ground that her late declaration of birth filed by the applicant shows that it was allegedly made by Ms. Charles’ father in 1999. Yet, Schedule 1 of Ms. Charles’ application for permanent residence shows that her father died in 1994. The applicant testified that he had completed Schedule 1 himself and that he may have made an error. Furthermore, the certificate of attendance at the Temple filed by the applicant bears a registration number that does not match the registration number on the one first submitted.

 

Issues

[21]           This application for judicial review raises the following issues:

1.         Did the panel’s refusal to reopen the evidence and, consequently, grant the applicant more time to produce fresh evidence with regard to Ms. Charles’ identity constitute a breach of the principles of natural justice or procedural fairness?

 

2.         Did the panel base its decision about Ms. Charles’ identity on erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before it?

 

Relevant legislation

[22]           Immigration Appeal Division Rules, SOR/2002-230:

 

Standard of review

[23]           The Court agrees with the parties that the standard applicable to questions of law, of natural justice and of procedural fairness is correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Dhaliwal v. Canada (Minister of Citizenship and Immigration), 2008 FC 296, 165 A.C.W.S. (3d) 888 at para. 36; Canada (Minister of Public Safety and Emergency Preparedness) v. Philip, 2007 FC 908, 160 A.C.W.S. (3d) 525).

[24]           The assessment of the documentary evidence and of the testimony is a question of fact that involves the assessment of the applicant’s evidence by the panel. The standard of review applicable to such questions of assessment of fact is reasonableness (Dunsmuir; Thach v. Canada (Minister of Citizenship and Immigration), 2008 FC 658, [2008] F.C.J. No. 834 (QL)).

 

1.         Did the panel’s refusal to reopen the evidence and, consequently, grant the applicant more time to produce fresh evidence with regard to Ms. Charles’ identity constitute a breach of the principles of natural justice or procedural fairness?

 

[25]           The applicant submits that the panel should have granted his request for an adjournment in order for him to have had the chance to produce additional evidence with regard to his spouse’s identity since its misunderstanding about the reliability of the documents was based on an error by his counsel.

 

[26]           The applicant further submits that in Construction Gilles Paquette ltée v. Entreprises Végo ltée, [1997] 2 S.C.R. 299, 212 N.R. 212 at paragraph 21, the Supreme Court of Canada found ‘‘that a party must not be deprived of his rights on account of an error of counsel where it is possible to rectify the consequences of such error without injustice to the opposing party’’. In Phui v. Canada (Minister of Citizenship and Immigration), 2002 FCT 791, 115 A.C.W.S. (3d) 855, this Court found that an applicant should not be deprived of his or her rights by reason of an error by his or her own counsel.

 

[27]           Lastly, the applicant claims that the document he sought to obtain during the adjournment could have changed the panel’s findings with regard to Ms. Charles’ identity, and that such an adjournment should have been granted in the interests of the administration of justice.

 

[28]           The principle that there is no absolute right to an adjournment—since it is a discretionary power of the administrative tribunal—is well established (Wagg v. Canada, 2004 FCA 303, [2004] 1 F.C.R. 206 at para. 19; Schurman v. Canada, 2003 FCA 393, 315 N.R. 71; Gearlen v. Canada (Minister of Citizenship and Immigration), 2005 FC 874, 274 F.T.R. 303; Hardware v. Canada (Minister of Citizenship and Immigration), 2009 FC 338, 345 F.T.R. 1). When a tribunal refuses an adjournment, one must analyze the circumstances specific to each case in order to be able to determine if there was any breach of the principles of natural justice.

 

[29]           In order to dispose of procedural issues, in particular an application for an adjournment and the reopening of the hearing, the panel must consider the factors listed in Rule 48(4) when making its decision. When dealing with procedural issues, the panel must also consider subsection 162(1) of the Act, which imposes an obligation of celerity. It is accepted law that administrative tribunals have the authority to control their procedure and to decide whether or not to grant an adjournment (Siloch v. Canada (Minister of Employment and Immigration), (1993), 151 N.R. 76, 38 A.C.W.S. (3d) 570). The only requirement is that their decisions comply with the rules of fairness and natural justice (Quindiagan v. Canada (Minister of Citizenship and Immigration), 2005 FC 769, 276 F.T.R. 88).

 

[30]           The panel may consider Rule 48(4) factors that are relevant to the case in addition to any other relevant factors. However, this does not mean that the panel must expressly consider all of the factors set out in Rule 48(4) (Gittens v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 373, 167 A.C.W.S. (3d) 139; Hardware).

 

[31]           The Court notes that, in its analysis, the panel considered relevant factors when it made a decision on the applicant’s request for adjournment, as follows:

a.       The requested documents with regard to Ms. Charles’ identity had been submitted in October 2008 (Rule 48(4)(c));

b.      The applicant had ample time to make sure documents were submitted and to submit additional documents as needed (Rule 48(4)(c), (d) and (i));

c.       The panel agreed to hear the applicant with regard to Ms. Charles’ identity and held hearings to this effect on June 8 and 15, 2009;

d.      Additional documents submitted on May 5, 2009, regarding the genuineness of the conjugal relationship did not pertain to Ms. Charles’ identity (Rule 48(4)(c) and (d));

e.       The Minister’s counsel expressed to the applicant at the start of the hearing on June 8, 2009, that he had concerns regarding the documents related to Ms. Charles’ identity;

f.        The applicant is represented by competent counsel (Rule 48(4)(f)).

 

[32]           The Court also notes that, in her letter of refusal dated May 8, 2008, the visa officer mentioned that she was not satisfied that the documents provided to prove Ms. Charles’ identity were genuine. The applicant should therefore have paid particular attention to the identity documents before the panel (Rule 48(c), (d), (e) and (i)).

 

[33]           In this case, the Court therefore concludes that the panel considered the relevant factors in Rule 48(4) and rendered a reasonable decision after having considered all of the facts. The applicant had reasonable time to provide the documents and evidence needed in order to establish Ms. Charles’ identity. The only justification presented by the applicant related to his lawyer in Haiti and the lawyer’s lack of diligence in checking the documents. That explanation in no way establishes the applicant’s claim that the panel acted unfairly or contrary to the principles of natural justice. The Court notes that the applicant has the onus of preparing his case adequately and that there was no reasonable justification for not having done so (Yang v. Canada (Minister of Citizenship and Immigration), (2000), 101 A.C.W.S. (3d) 791, [2000] F.C.J. No. 1941 at para. 8 (QL)).

 

[34]           Moreover, the evidence in the record does not satisfy this Court that verifications by the lawyer in Haiti would have been sufficient to correct the problems with the documents in question. Furthermore, it has not been established that the documents obtained would have changed the panel’s finding (Hardware at para. 67).

 

[35]           The applicant also argues that he should not be made to suffer for the procedural defect attributable solely to his counsel and that fairness required that an adjournment be granted. However, in Moutisheva v. Canada (Minister of Employment and Immigration), (1993), 47 A.C.W.S. (3d) 684, 24 Imm. R.S. (2d) 212, the Federal Court of Appeal stated that the general rule is that counsel’s conduct cannot be separated from that of the client:

Finally, counsel for a party to a case is that party’s agent. He acts

on his behalf and as such assumes a number of obligations including those of conduct of the proceedings and receipt and issue of documents required by the proceedings.

 

[36]           The panel could only set aside the decision of an administrative tribunal where mistakes were made by counsel who demonstrated ‘‘extraordinary incompetence’’ that resulted in a denial of natural justice (Gogol v. Canada, (1999), 95 A.C.W.S. (3d) 769, 2000 D.T.C. 6168 at para. 3; Huynh v. Canada (Minister of Employment and Immigration, (1993), 65 F.T.R. 11, 41 A.C.W.S. (3d) 696 at p. 15). In this case, the applicant has not established that his counsel had demonstrated extraordinary incompetence. The panel therefore did not commit an error in denying the applicant’s request for an adjournment and, in this Court’s opinion, there has been no breach of the principles of natural justice or procedural fairness. 

 

2.         Did the panel base its decision about Ms. Charles’ identity on erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before it?

 

[37]           It is the task of the trier of fact, in this case the panel, to weigh the documentary and testimonial evidence and to draw conclusions as to whether the evidence is sufficient to establish, on a balance of probabilities, Ms. Charles’ identity. The Court must show great deference and it is not for the Court to substitute its own conclusions for those of the panel (Thatch at paras. 31-33; see also: Morris v. Canada (Minister of Citizenship and Immigration), 2005 FC 369, 147 A.C.W.S. (3d) 489 at para. 5; Nguyen v. Canada (Minister of Citizenship and Immigration), 2004 FC 709, 134 A.C.W.S. (3d) 885 at para. 7; Froment v. Canada (Minister of Citizenship and Immigration), 2006 FC 1002, 299 F.T.R. 70).

 

[38]           The Court notes that the applicant’s testimony regarding Ms. Charles’ identity was corroborated by his brother, Jean Deleix Julien, who testified at the hearing. Moreover, Violette Volcy and Gladys Charles both submitted statements confirming that they know Ms. Charles and that they were aware of the couple’s past relationship and of the birth of their son. Furthermore, the birth certificate of the son of the applicant and Ms. Charles, issued at his birth, confirms the fact that the parties had been in a relationship more than forty years ago.

 

[39]           In spite of this, substantial doubt remains, doubt that has not been addressed on the face of the record.

 

[40]           In fact, the applicant’s explanations in the transcript (pp. 488-490) provide no clear answer with regard to whether Mr. Charles Medixis (Ms. Charles’ father) actually died in 1994 as Ms. Charles had indicated in her application for permanent residence, or whether, as documents 003783, 52612 and 765425 in the record show, Mr. Medixis apparently showed up in 1999 to make a declaration acknowledging his daughter’s birth. 

 

[41]           Moreover, the panel noted that the applicant could have submitted additional evidence of Ms. Charles’ identity before the appeal hearing. The panel also stated that Ms. Charles’ testimony, her father’s death certificate (in order to show that he was not dead when the declaration of birth was made), or a DNA test, could have been submitted in support of Ms. Charles’ identity and in answer to doubts that had been raised regarding her true identity. The applicant chose not to provide this evidence.

 

[42]           At the hearing, counsel for the applicant argued that, in Popal v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 532, 184 F.T.R. 161, the Court was sensitive to the situation in the applicant’s country of origin, namely, Afghanistan, when it considered the identity documentation that the Minister had determined to be unsatisfactory. The Court notes however that, in that case, the passport had been issued on the basis of a Canadian document, whereas in this case there was still a doubt about the authenticity of a Haitian document that had been used as a basis for issuing the passport. Furthermore, in Popal, the officer had failed to provide any reasons, while in this case the panel provided written reasons (paras. 22-30) with regard to the issue of identity. The Court therefore finds that Popal does not apply in this case. 

 

[43]           The panel weighed all of the evidence in the record, including the applicant’s testimony, his brother’s testimony, as well as the letters from Violette Volcy and Gladys Charles. The panel also considered the birth certificate of the son of the applicant and Ms. Charles, Ms. Charles’ passport and the certificates of attendance at the temple submitted in the appeal record and in Ms. Charles’ permanent residence application package.

 

[44]           However, the burden of proof rests on the applicant and, in light of the foregoing, the Court concludes that there remains significant doubt as to Ms. Charles’ identity. The panel therefore reasonably decided, on the balance of probabilities, that the applicant had failed to discharge his burden.

 

[45]           This application for judicial review is hereby dismissed. No questions for certification were proposed by the parties and none arise from this matter.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

THE COURT ORDERS AND ADJUDGES that the application for judicial review is dismissed. No question is certified.

 

 

‘‘Richard Boivin’’

 

 

 

Certified true translation

 

Sebastian Desbarats, Translator

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-4886-09

 

STYLE OF CAUSE:                          Fritzner Julien v. MCI

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      March 22, 2010

 

REASONS FOR JUDGMENT:       BOIVIN J.

 

DATED:                                             March 31, 2010

 

 

APPEARANCES:

 

Francine V. Marion	FOR THE APPLICANT
Patricia Deslauriers	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Beauchemin, Paquin, Jobin, Brisson & Philpot Montréal, Quebec	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT