Date: 20070329
Docket: IMM-1897-06
Citation: 2007 FC 337
Vancouver,
British Columbia, March 29, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
EMAN BALLA IBRAHIM ABDELMAGID
TARIG BALLA IBRAHIM ABDELMAGID
RASHID BALLA IBRAHIM ABDELMAGID
MUNTASER BALLA IBRAHIM ABDELMAGID
MAHA BALLA IBRAHIM ABDELMAGID
RANIA BALLA IBRAHIM ABDELMAGID
UM SALAMA OSMAN SHARAFI
BALLA IBRAHIM ABDELAMAGID
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of a visa officer, dated February 9, 2006, which removed Iman, Tarig,
Rashid, Muntasir, Maha, and Rania (the applicants), as dependants from their
mother, Um Salama Osman Sharafi’s application for permanent residence.
[2]
The
applicants seeks an order setting aside the visa officer’s decision to remove
them from their mother’s application for permanent residence, and requiring the
respondent to issue them permanent resident visas.
Background
[3]
Um
Salama Osman Sharafi fled Sudan for Canada in 1998. She
was granted refugee status in January 1999. She filed an in-Canada application
for permanent residence in February 1999. The final version of this application
included her husband, Balla Ibrahim Abdelmagid, and six of her children (the
applicants) as dependents.
[4]
The
affidavit of Um Salama Osman Sharafi’s husband outlined the circumstances
leading to the inclusion of the applicants upon their mother’s application for
permanent residence. The husband and the applicants fled Sudan for Egypt in 1998,
during the civil war. They had few possessions and no official documents. Knowing
that the family would need identification documents, the husband approached the
Sudanese Embassy in Cairo. He claimed that the Embassy verified his
identity and issued him a Sudanese passport and a marriage certificate. The
same process was followed in order to obtain passports and birth certificates
for the applicants. These documents were sent to the Canadian Embassy in Cairo; however
immigration officials doubted their authenticity and requested originals. The
husband explained that originals were unavailable, as he and the applicants
fled without documents. In addition, the issuing institutions in Sudan had been
destroyed during the war.
[5]
On
April 13, 2003, the husband went to the Canadian Embassy in Cairo and signed a
waiver allowing the Embassy to share information with the UNHCR. A request was
later made for information from the UNHCR file with respect to the applicants.
The reliability of the information in the UNHCR file is disputed by the
parties. The applicants explained that seventeen year old Tarig had filed an
application for refugee status in Australia out of frustration at
the amount of time it was taking to process the Canadian application. The
husband explained that he had nothing to do with the second application, and
that the information obtained from this application might not be accurate.
[6]
On
May 14, 2003, the husband was interviewed by a visa officer, with the help of
an interpreter. When asked to list the applicants in birth order, his list
differed from that on his wife’s application. He was advised that the
applicants’ birth certificates were fraudulent, as they were not the type
issued by the Sudanese government, and could not be used as proof of their
ages. In addition, the ages of the applicants listed in the UNHCR file differed
from those found in the application for permanent residence. The officer
advised that she had serious concerns that the applicants were much older than
was indicated in the application. She also advised that the newly issued
passports, without the old passports, were not reliable documents to prove
their ages.
[7]
Finally,
the officer informed him orally that she would remove the applicants from the
file, and that it would remain in his name only. The husband responded by indicating
that he was shocked. The visa officer proceeded to email the case processing
center in Vegreville,
Alberta, and
informed them that the applicants were removed from the application for
permanent residence. Um Salama Osman Sharafi became a permanent resident of Canada in June
2005. Her husband was granted a visa in late 2005 and joined her in Canada. The file
was closed in December 2005.
[8]
The
applicants did not hear anything from immigration officials until a fax was
received in response to a request for information by counsel in January 2006. On
February 9, 2006, applicants’ counsel received a fax from the visa section at
the Canadian Embassy in Cairo, which advised that the applicants had
been removed from the file as they were not dependant children. This is the
judicial review of the visa officer’s decision to remove the applicants as
dependants from their mother’s application for permanent residence.
Officer’s
Reasons
[9]
The
decision to remove the children from the application for permanent residence
was communicated orally to the husband during an interview with the visa officer
at the Canadian Embassy in Cairo. The officer’s CAIPS notes, dated May 14,
2003, provide a more or less verbatim record of the interview:
You have provided false docs, and the
UNHCR DOB for 2 of yr children (including the youngest) are considerably
different. You had an opportunity to allay my concerns, but you have not done
so. Thus I am not satisfied that your children meet the defn of dep under Cdn
law. Thus I will remove your children from the file, and the file remains in your
name only.
- this is a terrible shock.
Anything to add:
- they will be shocked.
(Closed interview).
For reasons explained in IV, all children
will be removed, as they do not meet dep defn.
Email sent to CIC-London, cc: CPC-Veg
& Min Inq Unit, advising of removal.
[10]
The
email sent by the officer to CPC-Vegreville on May 14, 2003, stated the
following:
I have interviewed the husband of Mrs.
Sharfi Mohamed, Mr. Abdelmagid, regarding the age of his children. The birth
certificates for the alleged dependants are not/ not genuine. Further, Mr.
Abdelmagid signed a waiver allowing us to request biodata from his UNHCR file,
and it was found that the family had provided different DOB for the children. (Rashid
was listed as born in 1973 in the UNHCR file, but as born in 1982 in our file;
Rania, the youngest child, was listed as born 1977 in the UNHCR file, but as
1984 in our file). The PA was not able to allay my concerns. Given the above, I
have removed the 6 individuals (Iman, Tarig, Rashid, Mustasr, Maha and Rania)
as not meeting the definition of dependant child. The file remains open with
the PA only. My interview notes are on CAIPS.
[11]
No
correspondence was sent to the applicants, their mother, or the husband,
confirming this conversation at the time. Applicants’ counsel received a fax
from E. Gaudet, Second Secretary, Embassy of Canada in Cairo, Egypt,
dated February 9, 2006, in response to a request for an update regarding the
applicants’ permanent residence application. The fax stated the following:
This is further to your fax dated January
18, 2005. Please note that the applicants have been removed from their father’s
file because they have been determined not to be dependant children. They have
submitted birth certificates that were not genuine which prevented the case
officer from determining the children’s real ages. Therefore, the DNA testing
will not resolve the matter since it is not a parent-child relationship issue
but rather meeting the definition of dependant child.
Please note that our file closed since
December 2005.
Issues
[12]
The
applicants submitted the following issues for consideration:
1. Did
the officer err in law in determining that the applicants were not accompanying
dependants and therefore ineligible for permanent resident status?
2. Did
the officer fail to observe a principle of natural justice or procedural
fairness?
3. Was
the officer’s decision erroneous, whether or not the error appears on the face
of the record?
4. Did
the officer base his or her decision upon an erroneous finding of fact that was
made in a perverse or capricious manner or without regard to the material?
5. Did
the officer act in any way contrary to law?
[13]
I
would rephrase the issues as follows:
1. Did
the officer breach the rules of procedural fairness?
2. Did
the officer err in removing the applicants from the application for permanent
residence?
Applicants’
Submissions
[14]
The
applicants submitted that the officials at the Canadian Embassy in Cairo exhibited
bias toward them. It was submitted that officials accused them of lying,
providing false documents, and including children who were not theirs in their
application on the basis of their skin colour.
[15]
The
applicants submitted that immigration officials delayed the processing of their
application, which was filed in 2000. After receiving a preliminary approval
letter in 2001, they were not notified of the Embassy’s concerns about their
application for many years. It was submitted that this delay prevented them
from taking steps to rectify any concerns. The applicants submitted that this
delay prejudiced their ability to qualify on a further application, since they
were now over twenty-two years old.
[16]
The
applicants submitted that the officials based their conclusions upon irrelevant
considerations, including the alleged illegitimacy of their birth certificates.
It was submitted that the officials were provided with information indicating
that they had followed the proper channels for obtaining these documents
through the Sudanese Embassy in Cairo. They had also
explained that originals were not available, due to the civil war in Sudan. The
applicants submitted that the officials breached the duty of fairness by not
providing them with an opportunity to respond to allegations that they had
provided false evidence. It was submitted that this duty was also breached by
requiring the applicants to provide original documents that were impossible to
obtain. The applicants noted that the officials unfairly accused them of
bribing the Sudanese Embassy.
[17]
The
applicants submitted that the officers breached the duty of fairness by taking
into account irrelevant considerations, such as the age of the eldest daughter
and their skin colour, when concluding that their documents were false. It was
submitted that the daughter’s age was not outside the realm of possibility, and
that they had explained why their skin colours varied. The applicants noted
that these explanations were consistently provided to the Immigration and
Refugee Board, CPC Vegreville, and the visa office.
[18]
The
applicants submitted that the Court should issue an order granting them
permanent resident visas, since the only barrier to the acceptance of their
application was the authenticity of their documents, which they had answered.
[19]
The
applicants submitted that the issuance of the preliminary approval letter in
2001, and assurances given by officials that the application was in order,
created a legitimate expectation that the application would proceed, and
prevented them from taking steps to alleviate any concerns (see Bendahmane v.
Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16,
(1989) 61 D.L.R. (4th) 313 (C.A.)).
[20]
The
applicants submitted that the visa office file indicated the following:
- despite a search of visa
office records, no written decision was on file in 2003 or at any other
time, about their removal from the application;
- there was an initial
application by the husband, which indicated that the original documents
had been lost or destroyed and that certificates were filed attesting to
the authenticity of the applicants’ birth certificates;
- the application to the UN
was made by one of the children, (the husband stated that the information
on file at the UN was not reliable);
- the information from the
UN file indicated that the discrepancy in ages only referred to two of the
applicants;
- there was a decision in
2001 as to the applicants’ compliance with the requirements for permanent
residence which indicated that their landing was only pending their
mother’s landing in Canada;
- their mother’s landing
was held up because of concerns about her identity documents, although one
review found them to be genuine;
- a letter from applicants’
counsel from 2003 indicated that the UNHCR application was by a child, who
did so out of frustration; and
- there were many comments
by officials which were derogatory.
Respondent’s
Submissions
[21]
The
respondent submitted that the officer’s assessment of the dates of birth of the
children was a question of fact entirely with her mandate (see Lim v. Canada (Minister of
Citizenship and Immigration) (1991), 121 N.R. 241, 12 Imm. L. R. (2d)
161 (F.C.A.)). In To v. Canada (Minister of Employment and
Immigration) (1993), 39 A.C.W.S. (3d) 664, the Court held that where a visa
officer’s discretion was exercised in good faith and, where required, in
accordance with the principles of natural justice, and where reliance was not
placed upon considerations irrelevant or extraneous to the statutory purpose,
the Courts should not interfere. It was submitted that the fax dated February
9, 2006, and the CAIPS notes, showed that the officer turned her mind to the
proper question and that her conclusion was not patently unreasonable.
[22]
A
Convention refugee may file an application for permanent residence that
includes family members. The Immigration and Refugee Protection Regulations,
S.O.R./2002-227 (the Regulations), define “family member” to include a
dependant child. To meet the definition of a dependant child, one must be: (1)
less than 22 years old and not a spouse or common law partner; or (2) if over
22 years old, financially dependant on the parent since before the age of 22
and continuously enrolled as a student; or (3) if over 22 years old,
financially dependent on the parent since before the age of 22, and unable to
be self-supporting due to a health condition. It was submitted that there was
no evidence indicating that the applicants were students, nor that they had
health conditions preventing them from being self-supporting. It was submitted
that the officer therefore had to be satisfied that the children were less than
22 years old to be eligible family members.
[23]
The
respondent submitted that the applicants failed to show that the officer erred
in removing them from the application. Their mother’s application for permanent
residence was filed in February 1999, and listed the applicants as born in
1979, 1980, 1982, 1983 and twins born in 1984. The applicants were therefore
between the ages of 14 and 19 in 1999. The UNHCR information contradicted this
information, as it indicated that the applicants were all born in the 1970s. It
was submitted that the husband also provided contradictory information about
the applicants’ birth order.
[24]
The
respondent submitted that there was no reliable evidence indicating that the
applicants were less than 22 years old. It was noted that their birth
certificates were not genuine, their newly issued passports were not reliable,
and their older passports were not provided. The respondent submitted that the
failure to submit any reliable evidence prevented the officer from determining
the real ages of the applicants. It was submitted that she therefore did not
err in removing them from the application.
[25]
The
respondent submitted an additional memorandum in order to respond to issues
raised by the filing of the applicants’ supplementary record. It was first
noted that there was only ever one application for permanent residence, being
the inland application filed by the applicants’ mother. The respondent denied
the allegation that the husband continued to seek information from the Canadian
Embassy, since the CAIPS notes showed that following the May 2003 interview, he
did not return to the Embassy until July 2005.
[26]
The
respondent conceded that the decision to remove was not communicated to the
applicants until February 9, 2006. It was submitted that the delay was
inadvertent, given that the officer believed that the decision had been
communicated orally to the husband, and nothing further was required. It was
submitted that the applicants did not demonstrate that they were prejudiced by
the delay.
Applicants’
Reply
[27]
The
applicants noted that they did not receive a decision regarding their removal
from the
application in any
understandable way until February 9, 2006. It was submitted that the respondent
failed to provide reliable information explaining why their birth certificates
were not valid. It was submitted that their genuineness of the documents was
not contradicted.
[28]
The
applicants noted that they were not provided with a copy of the UNHCR file. It
was submitted that the respondent breached the duty of fairness by relying upon
this information without providing it to them, nor giving them an opportunity
to respond. With regard to the alleged contradiction between the husband’s
information regarding the date of birth of the applicants and his wife’s
information, it was submitted that he had stated that he did not remember their
ages, and was relying upon his wife’s information in that regard. It was
submitted that there was therefore no contradiction.
Analysis and
Decision
Standard of
Review
[29]
The
standard of review applicable to a breach of the rules of procedural fairness
is that of correctness.
[30]
Issue
1
Did the
officer breach the rules of procedural fairness?
Delay
The decision
to remove the applicants from their mother’s application for permanent
residence was communicated orally by the officer to the husband on May 14,
2003. The parties agree that no written decision was issued to the applicants
regarding this decision until their counsel received a fax on February 9, 2006.
The respondent has conceded that the applicants were not aware of the decision
to remove them from the application until 2006. There was therefore a delay of almost
three years between the oral communication of the decision, and its
confirmation in writing.
[31]
The
applicants submitted that this delay breached procedural fairness, as they were
now over 22 years of age and their ability to qualify on a further application
was severely prejudiced. The respondent submitted that the applicants had not
demonstrated that any prejudice was incurred by the delay. In my view, the
officer committed a breach of the rules of procedural fairness by delaying the
communication of the decision to remove the applicants from the application almost
three years. While the decision appears to have been communicated to the
husband orally in 2003, the repercussions of the removal clearly were not
understood. In my opinion, the applicants were prejudiced by this delay in that
they proceeded under the assumption that they had not been removed from the
application, and were not able to challenge the decision earlier.
[32]
I
would note from the file that written notice of the removal of the applicants
from the application was given by e-mail to the case processing centre in Vegreville, Alberta, and the
London Citizenship and Immigration Canada office. However, no notice was given
to the affected parties, the applicants, or their mother, who was the primary
applicant. In addition, there is no evidence that the husband was instructed,
to tell the applicants that their names had been removed from the application.
[33]
The
application for judicial review is therefore allowed, and the matter is
referred to a different visa officer for redetermination.
[34]
Neither
party wished to submit a serious question of general importance for my
consideration for certification.
JUDGMENT
[35]
IT
IS ORDERED AND ADJUDGED that the application for judicial review is
allowed and the matter is referred to a different visa officer for
redetermination.
"John
A. O'Keefe"
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27.:
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21. . . .
(2) Except in the case of a person described in subsection
112(3) or a person who is a member of a prescribed class of persons, a person
whose application for protection has been finally determined by the Board to
be a Convention refugee or to be a person in need of protection, or a person
whose application for protection has been allowed by the Minister, becomes,
subject to any federal-provincial agreement referred to in subsection 9(1), a
permanent resident if the officer is satisfied that they have made their
application in accordance with the regulations and that they are not
inadmissible on any ground referred to in section 34 or 35, subsection 36(1)
or section 37 or 38.
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21. . . .
(2) Sous réserve d’un accord
fédéro-provincial visé au paragraphe 9(1), devient résident permanent la
personne à laquelle la qualité de réfugié ou celle de personne à protéger a
été reconnue en dernier ressort par la Commission ou celle dont la demande de
protection a été acceptée par le ministre — sauf dans le cas d’une personne
visée au paragraphe 112(3) ou qui fait partie d’une catégorie réglementaire —
dont l’agent constate qu’elle a présenté sa demande en conformité avec les
règlements et qu’elle n’est pas interdite de territoire pour l’un des motifs
visés aux articles 34 ou 35, au paragraphe 36(1) ou aux articles 37 ou 38.
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The Immigration
and Refugee Protection Regulations, S.O.R./2002-227.:
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1. (3) For the purposes of the Act, other than section 12
and paragraph 38(2)(d), and for the purposes of these Regulations, other than
sections 159.1 and 159.5, "family member" in respect of a person
means
(a) the spouse or common-law partner of the person;
(b) a dependent child of the person or of the person's
spouse or common-law partner; and
(c) a dependent child of a dependent child referred to in
paragraph (b).
"dependent child" , in respect of a parent,
means a child who
(a) has one of the following relationships with the
parent, namely,
(i) is the biological child of the parent, if the child
has not been adopted by a person other than the spouse or common-law partner
of the parent, or
(ii) is the adopted child of the parent; and
(b) is in one of the following situations of dependency,
namely,
(i) is less than 22 years of age and not a spouse or
common-law partner,
(ii) has depended substantially on the financial support
of the parent since before the age of 22 — or if the child became a spouse or
common-law partner before the age of 22, since becoming a spouse or
common-law partner — and, since before the age of 22 or since becoming a
spouse or common-law partner, as the case may be, has been a student
(A) continuously enrolled in and attending a
post-secondary institution that is accredited by the relevant government
authority, and
(B) actively pursuing a course of academic, professional
or vocational training on a full-time basis, or
(iii) is 22 years of age or older and has depended
substantially on the financial support of the parent since before the age of
22 and is unable to be financially self-supporting due to a physical or
mental condition.
175.(1) For the purposes
of subsection 21(2) of the Act, an application to remain in Canada as a
permanent resident must be received by the Department within 180 days after
the determination by the Board, or the decision of the Minister, referred to
in that subsection.
(2) An officer shall not be satisfied that an applicant
meets the conditions of subsection 21(2) of the Act if the determination or
decision is subject to judicial review or if the time limit for commencing
judicial review has not elapsed.
(3) For the purposes of subsection 21(2) of the Act, an
applicant who makes an application to remain in Canada as a permanent
resident — and the family members included in the application — who intend to
reside in the Province of Quebec as permanent residents and who are not
persons whom the Board has determined to be Convention refugees, may become
permanent residents only if it is established that the competent authority of
that Province is of the opinion that they meet the selection criteria of the
Province.
176.(1) An applicant may include in their application to
remain in Canada as a permanent resident any of their family members.
(2) A family member who is included in an application to
remain in Canada as a permanent resident and who is outside Canada at the
time the application is made shall be issued a permanent resident visa if
(a) the family member makes an application outside Canada
to an officer within one year after the day on which the applicant becomes a
permanent resident; and
(b) the family member is not inadmissible on the grounds
referred to in subsection (3).
(3) A family member who is inadmissible on any of the
grounds referred to in subsection 21(2) of the Act shall not be issued a
permanent resident visa and shall not become a permanent resident.
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1. (3) Pour l’application de la Loi — exception faite de
l’article 12 et de l’alinéa 38(2)d) — et du présent règlement — exception
faite des articles 159.1 et 159.5 —, «membre de la famille» , à l’égard d’une
personne, s’entend de:
a) son époux ou conjoint de fait;
b) tout enfant qui est à sa charge ou à
la charge de son époux ou conjoint de fait;
c) l’enfant à charge d’un enfant à charge visé à l’alinéa
b).
«enfant à charge » L’enfant qui:
a) d’une part, par rapport à l’un ou
l’autre de ses parents:
(i) soit en est l’enfant biologique et
n’a pas été adopté par une personne autre que son époux ou conjoint de fait,
(ii) soit en est l’enfant adoptif;
b) d’autre part, remplit l’une des
conditions suivantes:
(i) il est âgé de moins de vingt-deux ans
et n’est pas un époux ou conjoint de fait,
(ii) il est un étudiant âgé qui n’a pas
cessé de dépendre, pour l’essentiel, du soutien financier de l’un ou l’autre
de ses parents à compter du moment où il a atteint l’âge de vingt-deux ans ou
est devenu, avant cet âge, un époux ou conjoint de fait et qui, à la fois:
(A) n’a pas cessé d’être inscrit à un établissement
d’enseignement postsecondaire accrédité par les autorités gouvernementales
compétentes et de fréquenter celui-ci,
(B) y suit activement à temps plein des cours de formation
générale, théorique ou professionnelle,
(iii) il est âgé de vingt-deux ans ou
plus, n’a pas cessé de dépendre, pour l’essentiel, du soutien financier de
l’un ou l’autre de ses parents à compter du moment où il a atteint l’âge de
vingt-deux ans et ne peut subvenir à ses besoins du fait de son état physique
ou mental.
175.(1) Pour
l’application du paragraphe 21(2) de la Loi, la demande de séjour au Canada à
titre de résident permanent doit être reçue par le ministère dans les cent
quatre-vingts jours suivant la décision de la Commission ou celle du ministre
visées à ce paragraphe.
(2) L’agent ne peut conclure que le demandeur remplit les
conditions prévues au paragraphe 21(2) de la Loi si la décision fait l’objet
d’un contrôle judiciaire ou si le délai pour présenter une demande de
contrôle judiciaire n’est pas expiré.
(3) Pour l’application du paragraphe
21(2) de la Loi, la personne qui présente une demande de séjour au Canada à
titre de résident permanent — et les membres de sa famille visés par celle-ci
— qui cherchent à s’établir dans la province de Québec à titre de résidents
permanents et à qui la Commission n’a pas reconnu le statut de réfugié au
sens de la Convention ne deviennent résidents permanents que sur preuve que
les autorités compétentes de la province sont d’avis qu’ils répondent aux
critères de sélection de celle-ci.
176.(1) La demande de séjour au Canada à titre de résident
permanent peut viser, outre le demandeur, tout membre de sa famille.
(2) Le membre de la famille d’un
demandeur visé par la demande de séjour au Canada à titre de résident
permanent de ce dernier et qui se trouve hors du Canada au moment où la
demande est présentée obtient un visa de résident permanent si:
a) d’une part, il présente une demande à
un agent qui se trouve hors du Canada dans un délai d’un an suivant le jour
où le demandeur est devenu résident permanent;
b) d’autre part, il n’est pas interdit de
territoire pour l’un des motifs visés au paragraphe (3).
(3) Le membre de la famille qui est interdit de territoire
pour l’un des motifs visés au paragraphe 21(2) de la Loi ne peut obtenir de
visa de résident permanent ou devenir résident permanent.
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