Date: 20121017
Docket:
IMM-7722-11
Citation: 2012
FC 1209
Ottawa, Ontario, October 17, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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IFEANYI PATRICK UBAH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
“Certain
questions that come before administrative tribunals do not lend themselves to
one specific, particular result:” Dunsmuir v New Brunswick, 2008 SCC 9
at para 47. The question that was before the decision-maker in this
application is one such question; however, the applicant would not have
succeeded regardless of the answer selected by the decision-maker because a
woman cannot give birth to a child 11 days after a medical doctor reports that
she is not pregnant. Faced with the conflicting fact of a birth and a medical
opinion that the mother is not pregnant, there are but a few plausible
explanations and each is equally plausible. The Counsellor deciding Mr. Ubah’s
application for permanent residence selected one. It cannot be said that his
choice was unreasonable; accordingly, this application must be dismissed.
Background
[2]
Mr.
Ubah, a very wealthy citizen of Nigeria, submitted an application for permanent
residence indicating that he had four children, born in 1999, 2002, 2006, and
2007, respectively.
[3]
On
March 17, 2011, Citizenship and Immigration Canada (CIC) sent Mr. Ubah a letter
that it was conducting a preliminary review of his application and that birth
certificates for the two youngest children were not on file. He was asked to
provide them within 90 days. In response, CIC received a “Statement of Live
Birth” for Desire Dumebi Ubah, born January 9, 2006, and a birth certificate
for Marvel Chibuikem Ubah, born May 20, 2007.
[4]
On
May 2, 2011, the Counsellor at the Canadian High Commission in Accra, Ghana,
outlined his concern in an internal email to a colleague in Lagos, Nigeria,
that Desire’s Statement of Live Birth did not accord with other information on
file with CIC. Specifically, the document indicated that Desire was born in
Canada on January 9, 2006, but CIC’s Computer Assisted Immigration Processing
System (CAIPS) notes showed that the child’s mother, Mr. Ubah’s wife, applied
for a temporary resident visa (TRV) from Lagos, Nigeria, on December 29, 2005;
that medical instructions were issued on the same day requiring that she take a
pregnancy test; and that the pregnancy test came back negative. Further, that
TRV was not issued until January 18, 2006, nine days after Desire was allegedly
born in Toronto, Canada.
[5]
The
Counsellor reasoned in his email that if Mrs. Ubah submitted to the medical
test in Lagos, she was not giving birth in Canada and the birth certificate is
fraudulent, or, alternatively, if she did in fact give birth in Canada on
January 9, 2006, that she was not the person who attended the medical exam in
Nigeria. This possibility was noted since Mrs. Ubah had previously been issued
a TRV valid between August 17, 2005, and November 15, 2005.
[6]
The
Counsellor sent Mr. Ubah a fairness letter on May 2, 2011, outlining exactly
these details and concerns, and his preliminary conclusion that the birth
place, citizenship, and true parentage of Desire had been misrepresented.
[7]
Mr.
Ubah replied on June 28, 2011, nearly two full months later, stating that the
information contained in the Statement of Live Birth – that Mrs. Ubah gave
birth to Desire in Toronto, on January 9, 2006 – was correct. He also said
that there must have been a mix up in the December 29, 2005, medical report, as
Mrs. Ubah was most obviously and definitely pregnant at that time. Mr. Ubah
did not, however, address how and when Mrs. Ubah travelled to Canada.
[8]
On
August 2, 2011, the Counsellor wrote to Mr. Ubah informing him that it had been
concluded that Mr. Ubah had misrepresented Desire’s Statement of Live Birth.
The Counsellor recited his concerns from the fairness letter, noted Mr. Ubah’s
response, and indicated that no explanation had been provided as to how Mrs.
Ubah was able to travel to Canada prior to the TRV being issued. The
Counsellor concluded, on a balance of probabilities, that Mrs. Ubah was not in
Canada at the time of Desire’s birth and that consequently the birth
certificate was fraudulent, and that this misrepresentation could have induced an
error in the administration of the Immigration and Refugee Protection Act,
SC 2001, c 27, in particular on the basis that Desire would have been
considered a Canadian citizen and thus would not need to be examined as an
accompanying dependent. As a result of this finding and pursuant to paragraph
40(2)(a) of the Act, Mr. Ubah is inadmissible to Canada for a period of two
years following the date of the decision.
Issue
[9]
The
only issue raised is whether the Counsellor’s decision is unreasonable.
Analysis
[10]
The
concerns these facts raised in the Counsellor’s mind were legitimate because
the facts are in conflict. The person who dealt with Mr. Ubah and his wife’s
request for a TRV in 2005 “was concerned that the spouse might be pregnant” and
accordingly requested that she undergo a pregnancy test. There is no copy of
the medical report in the file but the CAIPS notes indicate that on December
29, 2005, the report showed that Mrs. Ubah was not pregnant. The applicant
later provided a document, the Statement of Live Birth, issued in Canada that
purports that only 11 days later Mrs. Ubah gave birth to Desire in Toronto.
[11]
Mr.
Ubah says that that his wife did give birth on January 9, 2006, and was
pregnant in December 2005. He submits that the indication in the CAIPS notes
that she was not pregnant on December 29, 2005, must be in error. However,
this leads one to ask, as the officer did, how Mrs. Ubah, only 11 days from
delivering her child, travelled from Nigeria to Canada without a valid TRV. As
the decision-maker noted: “You have not offered an explanation for this
significant discrepancy, specifically how Mrs. Uchenna Ubah was able to travel
to Canada prior to the visa being issued.” Indeed, Mr. Ubah still does not
have any explanation as to how his wife was in Canada in January 2006, and the
only argument he has advanced in this application – that she may have
overstayed her 2005 TRV – directly contradicts his response to the fairness
letter, which was that she attended the medical assessment in Nigeria in
December 2005, which was after the 2005 TRV had expired.
[12]
Mr.
Ubah’s counsel made a valiant attempt to support his client’s position and to
convince the Court that the decision under review is unreasonable. The
arguments he advanced cannot succeed. He is attempting to explain the
inexplicable.
[13]
The
following are the points raised by Mr. Ubah:
(i)
his
response to the fairness letter was adequate and appropriate and “there was no
other evidence that [he] could have provided to confront the [Counsellor’s] allegations;”
(ii)
the
Statement of Live Birth was corroborated by Desire’s Canadian passport, issued
on February 27, 2006, which shows that Passport Canada “clearly had no concerns
with [Desire’s] identity documents,” and the Counsellor failed to consider
this;
(iii)
an
explanation existed as to how Mrs. Ubah may have been in Canada on January 9,
2006, namely that she had been issued a TRV in 2005;
(iv)
the
Counsellor relied on the CAIPS notes for the details as to the medical
assessment and there is no evidence in the record that he relied on the actual
medical file or any other paper-based materials; and
(v)
whatever
the explanation for the medical report, no error in the administration of the
Act would have been induced.
No other evidence could
have been provided
[14]
In
the fairness letter, the Counsellor raised the issues that Mrs. Ubah was in
Nigeria in December 2005 undergoing a medical examination which showed that she
was not pregnant, and that the January 2006 TRV was not issued to her until
January 18, 2006. There were clearly two dimensions to his concern: the
result of the medical assessment and the fact that “the temporary resident visa
was issued … nine days after the child was born in Canada.”
[15]
In
response to the fairness letter, Mr. Ubah simply confirmed that his wife
attended both the physical examination in Nigeria and gave birth in Canada on
January 9, 2006. Perhaps this is all the evidence he could have given as to
the first aspect of the fairness letter, but there was another important aspect
to the letter – how Mrs. Ubah was in Canada giving birth when she was not
issued a TRV until nine days after the birth. If there was an explanation,
none was given. Mr. Ubah could have provided his recollection of the events,
flight tickets, passport stamps, and other documents that addressed how and
when Mrs. Ubah travelled to Canada. However, he provided none.
The Canadian passport
[16]
Mr.
Ubah submits that Desire’s birth in Canada is corroborated by his Canadian
passport, and that the Counsellor should have considered and given considerable
weight to the existence of this passport because Passport Canada had already
satisfied itself of the authenticity of the birth certificate, and the
Counsellor, who is not an expert in the authenticity of documents, should not
be second-guessing Passport Canada.
[17]
The
respondent submits that “the Canadian passport was surely issued in reliance on
the Canadian birth certificate and does nothing to address the discrepancy
related to evidence that [Mrs. Ubah] was in Nigeria when she allegedly gave
birth to him.” I agree with the respondent entirely.
The 2005 TRV
[18]
Mr.
Ubah suggests that Mrs. Ubah may have been in Canada on January 9, 2006,
because a TRV was issued to her in 2005. Mr. Ubah says that the Counsellor
referenced this possibility, but failed to consider it or analyze it in his
reasons. He says that the failure to do so renders the decision unreasonable,
especially because that line of thought is consistent with the Certificate of
Live Birth. I disagree.
[19]
First,
Mr. Ubah fails to mention that the 2005 TRV expired on November 15, 2005. If
Mrs. Ubah was in Canada on January 9, 2006, she was not authorized to be here.
Second, and far more important, Mr. Ubah acknowledged in reply to the fairness
letter, at least implicitly, that his wife was in Nigeria in late December 2005
undergoing a medical assessment for the TRV that issued on January 18, 2006.
The 2005 TRV thus provides no explanation whatsoever for how she came to be in
Canada, unless the individual who attended the physical examination was not
Mrs. Ubah, which is, of course, highly problematic in its own right.
Use of CAIPS notes
[20]
Mr.
Ubah complains that the actual medical report was not available to the
Counsellor and that he based his decision entirely on a terse CAIPS entry,
which should be viewed with appropriate caution and that there must have been a
mix-up in the medical assessment given to his wife in December 2005. This
submission is relevant only to the issue of whether Mrs. Ubah was in fact
pregnant in December 2005. No issue has been taken with the timing or location
of the medical assessment. That was the evidence that the Counsellor used to
arrive at his conclusion that, on a balance of probabilities the birth
certificate is fraudulent because Mrs. Ubah was not in Canada on January 9,
2006, because she was in Nigeria on December 29, 2005, and had no valid travel
document permitting her to enter Canada.
No error in the
administration of the Act
[21]
Mr.
Ubah submits that whatever mistakes or confusion surrounds the medical report
undertaken for the TRV, it would not have induced any error in the
administration of the Act:
[W]hatever
took place [at the Canadian Embassy in Nigeria in January 2006] has limited or
no bearing on the Application at hand. [Desire] was born in Canada on 9
January 2006, his Statement of Live Birth is genuine, and he is a Canadian
citizen; consequently, he was not a dependent and did not need to be examined
within the Applicant’s permanent residence application.
[22]
This
submission is rejected. The alleged mix-up in the medical report has nothing
to do with the timing of Mrs. Ubah’s travel to Canada, which is the premise
upon which the Counsellor reached his conclusion.
[23]
For
these reasons, the decision under review is reasonable and the application must
be dismissed. Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that
the application is dismissed and no question is certified.
"Russel W. Zinn"
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