Date:
20130613
Docket:
IMM-6928-12
Citation:
2013 FC 633
Ottawa, Ontario,
this 13th day of June 2013
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
Asadullah KHAN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the “Act”) of a decision by
an immigration officer (the “officer”) with the High Commission of Canada in
Islamabad, Pakistan (the “High Commission”). In the decision, dated May 9,
2012, the officer refused the applicant’s application for a permanent resident
visa.
[2]
The
applicant is a citizen of Pakistan. On November 22, 2005, Citizenship and
Immigration Canada (CIC) received his application for permanent residence. The
application listed two dependent male children: Usman Asad, born January 21,
1982, and Sarbuland Chaudhary, born October 27, 1986.
[3]
In
a letter dated February 11, 2011, the applicant informed CIC that he was
withdrawing his son Usman as a dependent applicant because Usman was over 22
years of age at the time of the submission of sponsorship date.
[4]
On
August 6, 2011, the High Commission mailed the applicant a letter (the
“fairness letter”) informing him that it had concerns he may have
misrepresented Sarbuland’s date of birth, as the bay-form (a child registration
form) he submitted appeared to alter Sarbuland’s date of birth from 1981 to
1986, thereby misrepresenting his eligibility as a dependent child. The letter
also stated that the fact the birth dates of the applicant’s four children were
not listed in chronological order on the bay-form strengthened the High
Commission’s doubts. The High Commission informed the applicant that he had 45
days to respond to its concerns.
[5]
In
a letter dated August 24, 2011 and received by the High Commission on September
14, 2011, the applicant responded, inter alia, that he had not altered
the bay-form and that his youngest son Sarbuland was born on October 27, 1986.
* * *
* * * * *
[6]
In
his decision, the
officer determined that the applicant did not meet the requirements for a
permanent resident visa. The officer found that the applicant had
misrepresented material facts related to both Sarbuland and Usman’s dates of
birth by providing an altered bay-form, thereby raising concerns over
Sarbuland’s eligibility as a dependent and concerns over Usman’s identity and
admissibility. The officer stated that this counterfeit documentation and false
information could have induced errors in the administration of the Act.
* * *
* * * * *
[7]
Paragraph
40(1)(a) of the Act defines misrepresentation as follows:
|
40.
(1) A permanent resident or a foreign national is inadmissible for
misrepresentation
(a)
for directly or indirectly misrepresenting or withholding material facts
relating to a relevant matter that induces or could induce an error in the
administration of this Act;
|
40. (1) Emportent
interdiction de territoire pour fausses déclarations les faits suivants :
a) directement ou
indirectement, faire une présentation erronée sur un fait important quant à
un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque
d’entraîner une erreur dans l’application de la présente loi;
|
[8]
Section
2 of the Immigration and Refugee Protection Regulations, SOR/2002-227,
defines a dependent child as follows:
|
“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.
|
«
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.
|
* * * *
* * * *
[9]
This
matter raises one issue: whether the officer erred by concluding that the
applicant had misrepresented a material fact.
[10]
It
is well established in the case-law that an assessment of a misrepresentation
decision under section 40 of the Act is reasonableness (Gatue v The Minister
of Citizenship and Immigration, 2012 FC 730 and the authorities cited
therein). Accordingly, the Court will consider “the existence of justification,
transparency and intelligibility within the decision-making process” and
“whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]).
* * *
* * * * *
[11]
The
applicant essentially submits that the officer erred by not having regard to
the totality of the evidence and that he disregarded the majority of the
documentary evidence before him with respect to the birth date of Sarbuland.
[12]
The
applicant submits he satisfied the statutory onus by providing multiple
identity documents that stated Sarbuland was born on October 27, 1986. He had
provided Sarbuland’s national identity card, passport and educational
documents. In his August 24, 2011 response to the fairness letter, the
applicant reminded the visa office that he had submitted these documents and
also provided an original birth certificate for Sarbuland and photocopies of
expired passports for both Sarbuland and Usman. The applicant notes that in this
letter he explained that he had obtained Sarbuland’s identity documents far in
advance of his application, which he says demonstrates that the documents could
not have been prepared to further any misrepresentation in his application. Both
expired passports for Sarbuland and Usman were issued in June 2005 and one of
Sarbuland’s education documents dates back to September 2002. The applicant
submits that the bay-form was just a supporting document and did not carry
substantial weight in light of the primary official identity documents
submitted.
[13]
Moreover,
the applicant notes that other than a personal assessment, the visa section
gave no evidence to the applicant in support of the position that there was an
error on the bay-form.
[14]
For
his part, the respondent submits that contrary to the applicant’s argument, the
officer considered all of the evidence and that it was open to the officer to
ascribe more weight to the bay-form than the other documents the applicant
submitted. The respondent maintains that the officer reasonably found that the
misrepresentation of the birth dates for Sarbuland and Usman were material
facts since the birth dates directly affected their eligibility and the
officer’s ability to assess identity, which could have induced errors in the
administration of the Act.
* * *
* * * * *
[15]
The
officer’s explanation as to why the altered bay-form outweighed the other
identity documents submitted that corroborated the stated birth year, namely
Sarbuland’s national identity card, passport, birth certificate and educational
documents, appears in the Computer Assisted Immigration Processing System notes
and reads as follows:
I note that Sar Buland’s secondary school cert and
his civil docs list his date of birth as 27-10-1986 but these docs have little
credibility as there is no central computerized registry to registry (sic)
birth dates.
[16]
I
am troubled by this explanation. First, the reason given to attribute little
credibility to the other documents could also apply to the bay-form. Moreover, I
think it is noteworthy that the applicant provided expired passports for
Sarbuland and Usman that were issued fourteen years before the applicant
applied for permanent residence and the officer did not explain what incentive
the applicant would have had for misrepresenting his children’s birth years at
that time.
[17]
The
officer’s lack of reasonable explanation for preferring the bay-form over the
voluminous other identity documentation leads me to question what possible
identity documentation the applicant could have provided in response to the
fairness letter that could have satisfied the officer.
[18]
I
find, therefore, based on Dunsmuir, supra, that it was
unreasonable for the officer to give preference and greater weight to the
bay-form without providing a credible explanation for doing so.
* * *
* * * * *
[19]
For
the above-mentioned reasons, this application for judicial review is allowed
and the matter is sent back to another immigration officer for redetermination.
[20]
No
question of general importance is certified.
JUDGMENT
The application for
judicial review is allowed. The decision rendered by an immigration officer with
the High Commission of Canada in Islamabad, Pakistan, on May 9, 2012, is
quashed and the matter is remitted to a different immigration officer for redetermination.
“Yvon Pinard”
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