Date:
20130530
Docket:
IMM-4512-12
Citation:
2013 FC 579
Ottawa, Ontario, May 30, 2013
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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OBIANUJU NONYE ANIKWOBI,
UZOAMAKA OBIAGELI OKOYE,
CHUKWUNEDU CHUKWUEMEKA OKOYE,
OBIANUJU EBELE OKOYE,
UCHENNA OBIORA OKOYE
AND CHUKWUNONSO
NNAMDI OKOYE
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Applicants
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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]
This
is an application for judicial review of 5 (five) decisions of a Visa Officer dated April 10, 2012 and April 11, 2012
wherein she determined that none of the Applicants meet the definition of
“dependent child” as defined by section 2 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 and therefore cannot be included in
Ms. Anikwobi’s permanent residence application.
I. Facts
and decision under review
[2]
Ms.
Anikwobi, the Principal Applicant, came to Canada on January 28, 2008 and
sought refugee protection. Her claim was accepted and she applied for permanent
residence on November 24, 2009. She listed her 5 (five) children in her
application, who reside in Nigeria: Uzoamaka Obiageli Okoye, Chukwunonso Nnamdi
Okoye, Obianuju Ebele Okoye, Uchenna Obiora Okoye and Chukwunedu Chukwuemeka
Okoye.
[3]
The
Officer sent a letter on
December 13, 2011
and a second letter in January 2012 asking them to provide various documents
including original birth certificates, police clearance certificates, evidence
of name change, school documents including letters of admission, transcripts,
receipts, West Africa Examination Council [WAEC] Certificates and National
Examination Council [NECO] Certificates, unused scratch cards for WAEC and
NECO, student ID cards and copies of school admission/enrolment registers from
primary, junior and senior secondary schools, communication with their mother
and previous as well as valid passports. On March 27, 2012, all her dependent
children were interviewed at the Visa Office in Ghana.
[4]
The
Officer reviewed the documentation provided which includes birth registration
forms, University transcripts, passports, certificates of baptism, police
clearance certificates, affidavits regarding their name change, student ID
cards, WAEC Certificates, Offer of Provisional Admission Letters, online
payment receipts, Senior School Statements of Results and Junior School
Statements of Results. She noted that all the Applicants look older than their
declared age, that there was a name change that is unsupported by the evidence
and that they all declared that they completed high school when they were 19
(nineteen) years old although the usual age to complete high school in Nigeria
is between 15 (fifteen) and 17 (seventeen) years of age. She further noted that
all documents seemed to have been damaged by water in the same manner and that
the University’s logo included in all the documents is different than the
original one. All 5 (five) applications were therefore denied.
II. Applicants’
submissions
[5]
The
Applicants submit that the Officer was not procedurally fair to them as she did
not make her concerns known to them. The Officer’s determination that the
Applicants look older is unreasonable as she was under an obligation to consult
an expert before coming to a determination because such conclusion should have
been based on scientific proof.
[6]
The
Applicants submit that the Officer erred in doubting the value of the birth
registration forms on the basis that they are hospital-issued and that they
were submitted in lieu of the National Commission birth certificate. Both
documents are equally used in Nigeria and have the same probative value.
[7]
The
Officer’s conclusion that the school documents as well as other documents
appeared to be deliberately dirtied and soiled to give the appearance of being
aged is subjective and drawn without regard to the explanation that their home
was flooded.
[8]
The
Applicants further submit that the conclusion as to the discrepancies in their
school records is drawn without regard to known and undisputed facts about
primary and secondary school ages in Nigeria. Indeed, incessant disputes
between teachers and the government have often resulted in the disruption of
the school calendar hence it is no longer unusual to see students starting or
ending their academic year at different times in different states of Nigeria.
[9]
With
regards to the date appearing on the Enegu State University of Science and
Technology transcripts, the Officer’s determination that the date of the
Applicants’ graduation from school contradicts the information contained in
their transcripts disregards the Applicants’ explanation that the transcripts
were provided in a sealed envelope and that, therefore, any error contained in
the documents was made by the issuer.
[10]
In
respect of the University’s logo, the Officer failed to consider that the logo
she considers as authentic is the old one as it has now changed. The documents
submitted by the Applicants were new and bore the new logo. The Officer was
under an obligation to verify which logo was the correct one.
[11]
The
Officer’s conclusion, as to the authenticity of some documents, was drawn
without contacting the issuer to verify their authenticity and without
consideration for the explanation provided by the Applicants.
III. Respondent’s
submissions
[12]
The
Respondent submits that the reasons provided by the Officer are reasonable and
well within the range of possible and acceptable outcomes which are defensible
in respect of the facts and the law for this type of discretionary, fact-driven
type of decision.
[13]
The
Officer found that the Applicants did not meet the definition of “dependent
child” because she was not satisfied that they were under 22 (twenty two) years
of age at the time their mother submitted her application for permanent
residence, nor was she satisfied that since turning 22 (twenty two) years of
age they had been in full-time attendance at University.
[14]
The
Applicants bear the onus of showing that they meet the definition of a
“dependent child.” Therefore, they had the responsibility to provide the
Officer with all the necessary information to assess their applications.
[15]
The
Applicants were asked to provide their original birth certificates and they did
not do so, nor did they provide an explanation as to why they had not produced
them. The Officer’s explanation as to why the handwritten birth registration
forms and passports are less reliable is reasonable.
[16]
In
any event, the Officer reviewed and considered all of their documentations in
order to ascertain whether in its totality, the Applicants had proven that they
meet the definition of a dependent child. The Officer had a number of concerns
about these documents causing her to doubt their authenticity. Her conclusion
in regard to the documentations submitted is reasonable.
IV. Issue
[17]
Is
the Visa Officer’s assessment of the evidence presented by the Applicants
reasonable?
V. Standard
of review
[18]
Findings of credibility are questions
of fact and are therefore to be evaluated under the standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 S.C.R. 190
[Dunsmuir]). A Visa Officer must render reasonable decisions
that fall within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law (see Dunsmuir,
above at paras 47-48, 51, 53; Natt
v Canada (Minister of Citizenship and Immigration), 2009 FC 238, 80 Imm LR (3d)
80 at para 12).
VI. Analysis
[19]
In
order to be included in Ms. Anikwobi’s permanent residence application, the
Applicants bore the onus of submitting the necessary evidence to establish
their status as dependent children.
[20]
With
regards to the Applicants’ identity, the Visa Officer, noted that although she
asked for their original birth certificates, all the Applicants however
provided hospital-issued handwritten birth registration forms.
Moreover, the Applicants provided their passports, which were issued in 2011
but failed to provide their expired passports, if any existed. The passports
submitted were given low probative value as passports have known to be issued
based on limited documentation in Nigeria. The Officer, therefore, considered
that additional documents, such as birth certificates were required to
establish the identity of the Applicants, and in the absence of the former, the
Officer reviewed additional supporting evidence.
[21]
In
her decision, the Visa Officer noted the following identical concerns with
regards to the content of the applications of all 5 (five) Applicants:
-
They
all graduated from high school at the age of 19 (nineteen), which is
inconsistent with the documentary evidence on the Nigerian education system.
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The logo on the
front page of the transcripts from the Enegu State
University of Science and Technology is inconsistent with the logo on the
following pages.
-
The
logo on the first page of the transcripts is inconsistent with the logo on a
sample genuine document kept at the Visa Office as well as with the logo on the
University website.
-
The
logo used on the Offer of Provisional Admission Letters is inconsistent with
the official logo of the University and they all appeared to have been soiled
and suffered damages in the same manner, despite having been issued in
different years.
-
There
is the same spelling error, “Independecne” on all student I.D. cards and they
all seem to have been scratched and dirtied in the same way to make them look
older.
-
All
the Applicants submitted the same student card, transcripts, Offer of
Provisional Acceptance Letter, WAEC Statement of Results, Baptismal
Certificate, online payment receipts and Senior School Statement of Results.
-
The
documents submitted all appeared to have been soiled and damaged by water in a
similar manner.
-
All
Primary School Registration Forms of the Applicants are written in the same
handwriting despite spanning from 1994 to 1998.
-
The Offer of
Provisional Admissions Letters and the West African
Examination Council results
post-date the mother’s application for refugee protection and therefore,
limited weight was assigned to the latter.
[22]
The
Visa Officer further noted that all Applicants seemed older to her. Such finding
is reasonable. Indeed, the purpose of an interview is to assess the credibility
of a claimant’s application. Therefore, it was completely open to the Visa
Officer to make a determination that the Applicants look physically older than
their declared age.
[23]
Moreover,
except in the case of Chukwunedo Chukwuemeka, the Officer noted a number of
additional issues with the evidence submitted. First, there are inconsistencies
between admission dates and session dates on the University transcripts.
Indeed, the transcripts indicate that the Applicants’ first session took place
before their alleged year of admission. The WAEC Statement of Results’ dates
are inconsistent with the University transcripts’ dates: if the date of their
first University session is taken into consideration, the Applicants would have
completed senior school after they started attending University. In addition to
this, if it is considered that the date of the first session in the Applicants’
transcripts is the time when they first attended University, the Applicants
would be between 2 (two) to 7 (seven) years younger than their declared age
included in their birth registration forms.
[24]
Furthermore,
the Officer noted that the name change of the Applicants is unsupported by the
evidence. Indeed, they explained the name change in their affidavits, which
consists in secondary evidence. An official document emanating from the
Nigerian Government should have been provided.
[25]
Contrary
to what is alleged by the Applicants, the Visa Officer informed them of her
concerns. A reading of the Visa Officer’s notes taken during the interview
shows that a number of the answers provided were evasive. As an example, one of
the Applicants was not able to recall her date of birth. Therefore, the Applicants were
provided with an opportunity to respond to the Officer’s concerns and they did
not provide satisfying answers. Her decision to reject the
explanation that the issue with the University’s logo on their transcript is
not their responsibility as they were included in a sealed envelope is
reasonable. Indeed, it is not credible that the University Registrar’s Office
would commit the same mistake in the case of all 5 (five) Applicants. Also, it
was reasonably open for the Visa Officer to dismiss the explanation that the documents
are damaged because their house was flooded as all the documents seemed to be
soiled in a similar way.
[26]
As
for the Applicants’ alleged late graduation from high school, the Visa
Officer’s determination that the documentary evidence states that in Nigeria
students graduate from high school between the ages of 15 (fifteen) and 17
(seventeen) and that it is therefore not credible that all the Applicants
graduated late is reasonable. Indeed, as noted by the Officer in her affidavit
submitted after the initial decisions were rendered, although the documentary
evidence is to the effect that in Nigeria, the age of graduation is between 16
(sixteen) and 18 (eighteen) and not between 15 (fifteen) and 17 (seventeen) as
indicated in her decisions, it remains that all the Applicants graduated at the
age of 19 (nineteen), which is inconsistent with the said evidence. Her
decision to reject the Applicants’ explanations that they repeated a year/class
or dropped some classes as the answers provided were vague is reasonable.
[27]
In
conclusion, the entirety of the Visa Officer’s findings falls within a range of possible, acceptable outcomes which are defensible in respect of
the facts and law. All of the above-mentioned concerns with the
evidence lead this Court to conclude that it was not unreasonable for the Visa
Officer to determine that the Applicants did not credibly establish that they
are the dependent children of Ms. Anikwobi. The Applicants were provided with
the opportunity to respond to the Officer’s concerns but did not give
satisfactory answers.
[28]
The
parties were invited to submit a question for certification but none were
proposed.
JUDGMENT
THIS
COURT’S JUDGMENT IS THAT this application for judicial review is
dismissed. No question is certified.
“Simon Noël” __________________________
Judge
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