Date: 20130801
Docket: IMM-10795-12
Citation: 2013
FC 845
Ottawa, Ontario,
August 1, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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OLUKOLA OLUKUNMI ALADE
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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
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks to set aside a decision of a visa officer dated August 21,
2012, refusing his application for family class sponsorship. He says, in broad
terms, that the officer was bound as a matter of law to accept his application
in light of his successful appeal of a previous visa officer decision refusing
his application on the basis of the genuineness of the marriage and
misrepresentation. He also contends that the decision is unreasonable and
violates procedural fairness. Mandamus is sought remitting the matter to a
different visa officer to determine his application.
[2]
The
applicant has not yet exhausted his appeal options. Therefore, the application
must be dismissed.
Background
[3]
The
applicant was sponsored for a permanent resident visa by his Canadian spouse,
Tammy Renee Alade. The couple met online on May 18, 2009. Ms. Alade travelled
to meet the applicant in October of that year and they married in Nigeria on October 24, 2009.
[4]
His
application was initially refused on August 17, 2010 on the basis of the
genuineness of their marriage and misrepresentation. The visa officer
concluded that despite having represented in his application that he had never
previously applied for a visa to Canada, the applicant had applied for a
visitor’s visa to Canada in 2008 using a different name, Kolawole Olukunmi
Alade.
[5]
In
a decision dated July 11, 2011, the Immigration Appeal Division (IAD) found
that the marriage was genuine. The IAD also determined that the applicant had
committed a misrepresentation but found that there were sufficient humanitarian
and compassionate factors to overcome his inadmissibility.
[6]
Before
the IAD, the applicant testified that he had never previously applied for a
Canadian visa. The applicant testified that he had been defrauded by a travel
consultant. He claimed to have given the consultant his photograph, personal
information and money to make a visa application but the consultant disappeared
before he could apply. He testified that the consultant must have submitted an
application without his knowledge or consent. He also said that he reported
this to the police and provided a police report. He said that his name, date
of birth and some background information had been modified. The applicant’s
real name is Olukola Olukunmi Alade, born December 7, 1982. The name in the
visa application was Kolawole Olukunmi Alade, born December 7, 1983.
[7]
The
IAD expressly rejected this explanation, finding that it lacked credibility.
It also found the applicant’s answers to be vague, unhelpful and inconsistent.
Despite a clear finding that the applicant had lied under oath, the IAD allowed
his appeal on humanitarian and compassionate grounds, based largely on the best
interests of Ms. Alade’s daughter.
[8]
On
September 8, 2011, the Accra visa office requested that the applicant obtain a
Nigerian Police Clearance Certificate for his real name, Olukola, and for his alternate
name, Kolawole. The applicant complied with respect to his real name only. On
January 31, 2012 the visa office repeated its request that the applicant
provide the second police certificate. It set a deadline of March 30, 2012.
[9]
The
applicant visited various police stations to see if he could obtain the
document requested by the visa officer. His evidence is that he received a
consistent response – no police clearance certificate would be provided for a
different name.
[10]
After
a discussion with an unidentified officer at the Accra office, on March 19,
2012, the applicant explained, in writing, that police certificates could only
be obtained in relation to a person’s true identity, although he did not
provide any document to this effect from the Nigerian officials.
[11]
On
August 16, 2012, the applicant swore an “affidavit of name verification” before
the Nigeria High Court, which he then presented to police, and on August 17,
2012, he obtained a letter from the Nigerian police stating that “to the best
of our knowledge and statistics” there was no criminal record under the name of
his alias. This was not a formal police clearance certificate, but did
confirm, as least from the applicant’s perspective, that there was no criminal
record in his alternate name.
[12]
On
August 20, 2012, the applicant and his spouse attended the High Commission.
They were told that the application had been refused in July. Neither the
applicant, nor his spouse had received a decision letter to this effect. The
applicant told the officer that he had new documents to tender. They were
asked to return the next day at 3:00 pm.
[13]
At
11:54 am the next day, the visa officer emailed the applicant a decision
letter. When he and his spouse arrived at 3:00 pm to their interview, the
applicant was given a copy of the email and asked to leave the High Commission.
The officer refused to accept the affidavit or the letter from the Nigerian police.
The decision letter, dated August 2, 2012 was unsigned. The decision letter
made reference to the written explanation delivered, prior to the deadline, on
March 19, 2012.
[14]
The
applicant had no written communication with the visa office since January 31, 2012
and learned that the March 19, 2012 explanation was insufficient only on August
21, 2012.
Analysis
[15]
Section
70 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA)
provides that an officer, in examining an application of a foreign national or
permanent resident, is bound by a prior decision of the IAD. Decisions of a
visa officer concerning the requirement to comply with the IAD are reviewed on
a standard of correctness: Ashraf et al v Canada (Minister of Citizenship
and Immigration), 2011 FC 1383.
[16]
Section
72 provides that judicial review under the IRPA is broadly available. An
applicant may apply for judicial review "with respect to any matter - a
decision, determination or order made, a measure taken or a question
raised" but the application may not be made until any right of appeal that
may be provided by the IRPA is exhausted.
[17]
The
applicant submits that the visa officer did not have jurisdiction to refuse the
application because the IAD decision is binding, by operation of Section 70
of the IRPA. The applicant submits that Parliament's intention was to
achieve finality after an appeal and that the visa officer was therefore
required to accept his application.
[18]
Therefore,
a central issue is the scope of the IAD decision. The applicant also argues
that the visa officer breached procedural fairness in requiring compliance with
a condition that could not be met or in making the decision without regard to
the August 17th letter from the Nigerian police that there was no
record of criminal conduct under the alternate name.
Governing
Principles
[19]
When
a matter has been considered by the IAD and remitted to a visa officer, the
visa officer is precluded from revisiting issues within the scope of the IAD
decision. In Au v Canada (Minister of Citizenship and Immigration), 2002
FCA 8, the Court of Appeal said at para 16:
However,
the relief granted by the IAD is predicated on the facts presented to the IAD.
Where new facts come to the attention of the visa officer, the visa officer is
required to consider whether the sponsor and the person being sponsored meet
the requirements of the Act, having regard to those new facts. Of course, the
facts must be new in the sense that they arose after the IAD hearing or, as in
this case, were within the knowledge of the sponsoree but were withheld from
the IAD and were discovered subsequently. Also, the new facts considered by the
visa officer must be material. A visa officer cannot seize on insignificant
facts. To do that would, in effect, mean that the visa officer was considering
whether the individual met the requirements of the Act on virtually the same
material facts considered by the IAD.
[20]
A
second refusal is permitted only where new material facts are before the visa
officer, or where material facts had been concealed. To allow otherwise would
render the IAD appeal process nugatory and allow the visa officer to sit on
appeal or review from the IAD decision.
[21]
In
the circumstances, even if generously interpreted, the IAD decision is not
determinative of the question of inadmissibility for criminality. The IAD
confirmed that there had been a misrepresentation in that the applicant had made
a prior application, but made no finding on whether the applicant was
inadmissible based on criminality. Nor had there been a prior decision on
criminal inadmissibility. As such, the visa officer was not bound by the IAD
decision.
[22]
Subsection
16(1) of the IRPA requires the applicant to produce all relevant
evidence and documents than the visa officer reasonably requires. The
applicant bears the burden of convincing the visa officer that he meets the
requirements of the IRPA.
[23]
The
applicant submits that it was unreasonable to expect a police certificate for
his alias because the police force only provides certificates for genuine
names. However, he did not provide any evidence from the Nigerian police to
this effect before the applicable deadline.
[24]
This,
however, does not end the matter. The decision of the visa officer does not
consider or address any of the information provided by the applicant. It was
obviously scripted hastily on the evening of the 20th or morning of
the 21st. It is unsigned. It is a bare statement of conclusions, which, under
the circumstances, fails to meet the requisite standards of intelligibility,
transparency and coherence. I note that the decision said to have made and delivered
to the applicant in July was not produced in evidence.
[25]
It
is axiomatic that visa officers are not required to give detailed reasons, but
whether the reasons meet the minimum threshold is informed by the context, the
history of proceedings and the interests engaged. In this case, it was
incumbent on the officer to address why she was not satisfied with the
information presented. As there was evidence in the record that there had been
a previous application by the applicant under a different name, it was
reasonable to require further inquiries in respect of that name. However, the
visa officer failed to consider the applicant’s evidence that the proof
requested could not be provided. The visa officer also did not consider the
August 17, 2012 letter from the Nigerian police that there was no criminal
record for the alternative name, as the applicant was not permitted to tender
this evidence.
[26]
In
an obvious effort to address the deficiencies in the decision, the visa officer
filed a subsequent affidavit. Affidavits of this nature are, in the main, inadmissible.
It does not fall within the exception where basic factual information is required
to complete the record. This affidavit was a clear attempt to supplement the
reasons that were given.
Remedy
[27]
Subsection
63(1) of the IRPA provides a sponsor with a right of appeal to the IAD from
a decision not to issue a permanent resident visa in respect of a family
class sponsorship. Paragraph 72(2)(a) provides that judicial review may
not be commenced until any right of appeal under IRPA is exhausted.
[28]
The
Federal Court of Appeal has determined that subsection 72(2) precludes
concurrent applications to this Court: Somodi v Canada (Minister of Citizenship
and Immigration), 2009 FCA 288. The Court of Appeal explained, at
paragraphs 22 and 29:
Parliament
has prescribed a route through which the family sponsorship applications must
be processed, culminating, after an appeal, with a possibility for the sponsor
to seek relief in the Federal Court. Parliament's intent to enact a
comprehensive set of rules in the IRPA governing family class sponsorship
applications is evidenced both by paragraph 72(2)(a) and subsection 75(2).
[…]
[…]
It would be illogical and detrimental to the objectives of the scheme to allow
a multiplicity of proceedings on the same issue, in different forums, to
parties pursuing the same interests. It would also be detrimental to the
administration of justice as it would open the door to conflicting decisions
and fuel more litigation. This is precisely what Parliament intended to avoid.
[29]
An
appeal to the IAD grants an appellant a de novo hearing on the merits
and the IAD can consider whether there was a breach of natural justice.
[30]
The
IAD’s decision did not prevent a visa officer from subsequently considering
whether the applicant meets the requirement of the IRPA and,
specifically that he is not inadmissible for criminality. The IAD decided that
the application should continue to be processed. It did not guarantee a
positive outcome with respect to criminality, nor did it grant a free pass in respect
of that requirement.
[31]
It
is true that a visa officer cannot effectively overturn the IAD by rejecting an
application based on the same facts as the IAD’s decision when the underlying
issue is the same: Au, above, at para 15. Here, however, the IAD
determined that the applicant was not inadmissible for misrepresentation.
Accordingly, it would have been impermissible for the visa officer to deny the
application on the basis of misrepresentation or genuineness of marriage as
there were no new facts. These issues had been decided by the IAD. However,
the IAD made no finding regarding the applicant’s inadmissibility based on
criminality. It is appropriate and necessary for the visa officer to consider
the applicant’s alternate name, not as it relates to misrepresentation, but as
it relates to the applicant’s burden to demonstrate that he is not inadmissible
for criminality: Wu v Canada (Minister of Citizenship and Immigration),
[2004] FCJ No 393, paras 20-21.
[32]
The
applicant failed to satisfy the visa officer that he was not inadmissible.
That decision is now before the IAD on appeal. Therefore the application for
judicial review is dismissed and I see no basis to award costs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is dismissed. There is no question for certification.
"Donald J. Rennie"
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