Date: 20100314
Docket: IMM-4212-10
Citation: 2011 FC 304
Toronto, Ontario, March 14,
2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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LUNN KIM
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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 ORDER AND
ORDER
[1]
BORN
TOO SOON – Born too soon to be eligible to apply for permanent
residence in Canada as a member
of the family class. The visa officer concluded that the applicant
misrepresented the age of two of his children. The application was dismissed
pursuant to section 40(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 which
provides that a foreign national is inadmissible for directly or indirectly
misrepresenting material facts relating to a relevant matter which could induce
an error in the administration of the Act. This is a judicial review of that
decision.
[2]
Another
sibling, the eldest sister, Sophary, a Cambodian national, became a permanent
resident of Canada in July
2001, sponsored by her husband. She first attempted to sponsor her parents and
four siblings in 2004, but was unsuccessful in that she lacked sufficient
funds. She applied again in 2007. It is that application which is the subject
of this judicial review.
[3]
The
lock-in date with respect to the ages of the minor children was 9 February
2007. At that time to be eligible, a dependent child who had left school had to
be less than 22 years of age as required by section 2 of the Immigration and
Refugee Protection Regulations, SOR/2002-227.
[4]
Although
the birth certificates indicated that all four siblings were then under 22
years of age, the visa officer had concerns with the two eldest, Sophara, said
to be born 10 September 1985, and Sopharith, said to be born 9 July 1988. These
concerns culminated in bone density tests. The results suggested that at the
lock-in date Sophara was at least twenty-four and a half and Sopharith at least
twenty-two and a half years of age.
[5]
The
visa officer certainly had reasons to be concerned. Based on the documents she
considered, Sophara’s vaccination certificate, both in the English translation
and in the original, indicates that he was vaccinated before he was born. The
birth certificates were of recent origin. There had been a major flood in Cambodia in 2000 as a
result of which many government documents, including the original records of
birth, were destroyed. Recreated documents naturally were looked at with
suspicion. Sophara and Sopharith both appeared older than their birth certificates
would suggest. Mr. Kim acknowledged that fact but attributed their appearance
to acne and living outdoors.
[6]
Counsel
for Mr. Kim mounted a strenuous argument based on the unreliability of bone
density tests as an indicator of age. He also argued, quite correctly, that
government issued documents are presumptively valid. It is not necessary for me
to consider these issues, although I should point out that the authenticity of
the birth certificates are not in issue, rather their contents, as they had to be
recreated by those who may have had an interest in the matter.
[7]
I
say this because in the certified tribunal record, the CAIPS (Computer Assisted
Immigration Processing System) Notes, part of the electronic data processing
used by Canadian immigration officers, contains an entry on 7 July 2000 that
the documents then reviewed indicated that the eldest sister, Sophary, had four
sponsorable siblings, the first two of which were born in 1985 and 1988. No
mention of this entry is made in the decision.
[8]
In
the oft cited case of Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1988), 157 FTR 35, [1998] FCJ No 1425
(QL), Mr. Justice Evans acknowledged the presumption that the decision maker
had reviewed the entire record. He stated that the Court might infer that an
erroneous finding of fact was made without regard to the evidence from the
Tribunal’s failure to mention in its reasons relevant evidence which pointed to
a different conclusion from the one reached. He said at paragraph 17:
However,
the more important the evidence that is not mentioned specifically and analyzed
in the agency's reasons, the more willing a court may be to infer from the
silence that the agency made an erroneous finding of fact "without regard
to the evidence": Bains v. Canada (Minister of Employment and
Immigration) (1993), 63 F.T.R. 312 (Fed. T.D.). In other words, the agency’s
burden of explanation increases with the relevance of the evidence in question
to the disputed facts. Thus, a blanket statement that the agency has considered
all the evidence will not suffice when the evidence omitted from any discussion
in the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact.
[9]
Given
the 2000 entry in the CAIPS Notes and given that the first sponsorship application
had been made in 2004 when Sophara, the eldest sibling, would have been only
19, the reasons for rejecting this application had to state why the CAIPS Notes
entry was not reliable. I can only conclude that the Officer made a finding of
fact without regard to the evidence.
[10]
The
judicial review shall be granted. There is no serious question of general
importance to certify.
ORDER
FOR THE
REASONS GIVEN;
THIS COURT
ORDERS that:
1.
The
application for judicial review is granted.
2.
The
decision rendered by the visa officer is set aside and the matter is returned
to another visa officer for redetermination.
3.
There
is no serious question of general importance to certify.
“Sean
Harrington”
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