Date: 20110106
Docket: IMM-2213-10
Citation: 2011 FC 3
Ottawa, Ontario, this 6th
day of January 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
HAJERA KHATUN,
MOHAMMAD ROWSHAN BHUYAN,
FAHMIDA BEGUM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of the Operations Manager
of the Visa Section of the High Commission of Canada in Singapore, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”) by Hajera Khatun, her son Mohammad Rowshan Bhuyan, and
her daughter Fahmida Begum (the “applicants”). The Officer determined that
there were reasonable grounds to believe that the applicants had misrepresented
material facts in their application for permanent residence under subsection
40(1) of the Act.
* * * * * * *
*
[2]
The
applicants are citizens of Bangladesh. The principal applicant’s husband died in 1999. Her son
Mohammad Kawsar Bhuyan (the “sponsor”) has been a citizen of Canada since 2009, having
first been granted permanent residence in 2004 on humanitarian and
compassionate grounds.
[3]
On
the sponsor’s original immigration form in 2000, he listed his family members.
He indicated that his sister Fahmida Begum was born in 1990, and that his
brother Mohammad Rowshan Bhuyan was born on August 18, 1980, and was (in 2000)
19 years of age. He indicated the same year of birth for his brother (1980) on
another immigration form submitted in 2003, and again in May 2004. However, on
his “Application to Sponsor and Undertaking” completed in November 2004, he
indicated that his brother’s date of birth was August 18, 1986. He claims that
he accidentally wrote the wrong year on the 2000 form, and that subsequent
mistakes arose because he copied all information from one form to another
without making any changes.
[4]
On
May 6, 2009, Citizenship and Immigration Canada sent a “procedural fairness
letter” to the principal applicant, asking for an explanation of the
discrepancy in the dates. The sponsor replied to the letter on May 20, 2009. He
indicated that he had made an inadvertent mistake on the earlier forms, and he
submitted copies of Mohammad Rowshan Bhuyan’s birth certificate, passport, and
school records, all of which indicated a year of birth of 1986.
* * * * * * * *
[5]
The
Officer noted the discrepancies on the forms regarding the year of birth of
Mohammad Rowshan Bhuyan, and emphasized that in the original application in 2000,
the sponsor had indicated that Mohammad Rowshan Bhuyan was 19, which would
accord with a birth year of 1980 or 1981. The Officer acknowledged the receipt
of the documents in support of a birth year of 1986, but found that these did
not satisfy her that the applicant was genuinely born in 1986. She found that
on a balance of probabilities, the applicant had misrepresented a material fact
on his application, contrary to subsection 40(1) of the Act. She noted that a
birth year of 1980 would mean that the applicant was not less than 22 years of
age at the “lock-in date” of the application (November 5, 2004), and was
therefore not eligible to be sponsored as a dependent child.
* * * * * * * *
[6]
This
matter raises two issues:
a.
Did the Officer
breach procedural fairness by failing to provide adequate reasons for the
rejection of the evidence presented?
b.
Was the Officer’s
finding that the applicants misrepresented information unreasonable with regard
to the evidence?
[7]
In Karami
v. Canada (Minister of
Citizenship and Immigration), [2009] F.C.J. No. 912, at paragraphs 14 to 17,
Justice James Russell, basing himself on Dunsmuir v. New Brunswick ([2008] 1 S.C.R. 190, at
paragraph 47), found that the standard of review applicable to an officer’s
finding of a material misrepresentation is reasonableness, but that procedural
fairness issues are determined on a standard of correctness.
A. Were the Officer’s reasons
adequate?
[8]
The
applicants argue that the Officer did nothing more than state that she was not
satisfied that no misrepresentation had occurred, without any explanation of
her rejection of the sponsor’s submissions and the documentary evidence
provided. The applicants submit that according to the Federal Court of Appeal
in Hilo v. Canada (Minister of Employment
and Immigration)
(1991), 15 Imm. L.R. (2d) 199, a decision questioning the credibility of
testimony or evidence should be rendered in clear and unmistakable terms.
[9]
The
respondent submitted an affidavit from the deciding Officer, Patricia Brown. In
this affidavit, Ms. Brown explains her decision in detail.
[10]
The
respondent relies on this affidavit, as well as the Computer Assisted
Immigration Processing System (CAIPS) notes that repeat a portion of these
reasons, as evidence of sufficient reasons. However, in my opinion, the
respondent cannot use this affidavit to supplement the reasons provided in the
decision letter. There has been consistent jurisprudence from this Court to the
effect that the respondent cannot submit an affidavit during the judicial review
proceedings in an attempt to buttress the reasons provided in the decision: Kalra
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No.
1199, paragraph 15; Du v. Canada (Minister of Citizenship and Immigration)
(2001), 15 Imm. L.R. (3d) 64 (F.C.T.D.); Adil v. Canada (Minister of
Citizenship and Immigration), [2010] F.C.J. No. 1228, paragraph 35.
[11]
However,
these same cases have held that the CAIPS notes can supplement the reasons
provided in the decision (see, for example, Kalra at paragraph 15). In
this case, the CAIPS notes from January 18, 2010 list the following reasons for
the Officer’s concerns about the evidence provided:
-birth
certificates in Bangladesh are obtained based on self-declaration;
-passports
in Bangladesh are based on birth certificates;
-school
documents can easily be fraudulently obtained in Bangladesh,
and thus cannot be considered to outweigh the declaration on the sponsor’s
immigration papers;
-even
if the school records are genuine, the school’s letter states that the date of
birth on record is based on the admissions register, which would be based on
the family’s declaration;
-the
sponsor made consistent declarations regarding his brother’s age on his
original form, listing an age consistent with the year of birth 1980.
[12]
As
the CAIPS notes are admissible as part of the reasons for the decision, and as
these notes provide details of the reason for rejecting each piece of evidence
submitted, I find that the reasons are adequate and no breach of procedural
fairness occurred.
B. Was the Officer
unreasonable in finding that the applicants had misrepresented information?
[13]
In
my opinion, though the reasons set out in the CAIPS notes are less detailed
than those set out in the Officer’s affidavit, and although the expressed
reason that school documents can easily be fraudulently obtained in Bangladesh is not supported by
evidence, I find that, as a whole, the other reasons are nevertheless sufficient
and reasonable. The CAIPS notes emphasize that the sponsor not only originally
listed the applicant’s birth year as 1980, but stated that the applicant’s age
in 2000 was 19, which would accord with being born in 1980. While it is
possible that the sponsor could have genuinely miswritten the birth year, I
find that it was reasonable of the Officer to conclude that it was unlikely
that he also happened to misprint the applicant’s age as 19 instead of 13 (the
age he would have been if he had been born in 1986 as alleged). The combination
of these factors with the incentive to later change the birth year to allow the
applicant to immigrate as a dependent child (a factor also alluded to in the
CAIPS notes) could reasonably lead to a conclusion of misrepresentation that
would be difficult to overcome with documents based on self-declared
information.
[14]
In
this particular context, I find that the “procedural fairness letter” sent on
May 6, 2009, by Citizenship and Immigration Canada to the principal applicant,
asking for an explanation of the discrepancy in the dates, meets the requirements
of procedural fairness in this entire matter.
* * * * * * * *
[15]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[16]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review of the decision of the Operations Manager of the Visa Section of the
Canadian High Commission in Singapore, determining that there were reasonable
grounds to believe that the applicants had misrepresented material facts in
their application for permanent residence under subsection 40(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
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