Date:
20140311
Docket:
IMM-12395-12
Citation:
2014 FC 240
Ottawa, Ontario,
March 11, 2014
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
|
|
QIAN CHEN
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT
AND JUDGMENT
[1] This is an application
for judicial review of the decision of an Immigration Officer of Citizenship
and Immigration Canada [the Officer], pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act]. The Officer rejected
the Applicant’s inclusion as a dependent child on a claim for permanent
residence.
I. Issue
[2]
Did
the Officer breach the duty of procedural fairness owed to the Applicant by not
advising her of the inconsistency in her application?
II. Background
[3]
The
Applicant is a citizen of the People’s Republic of China. She was included as a
dependent child in the application for permanent residence of Liancheng Gao.
Ms. Gao is married to the father of the Applicant, but she is not the
Applicant’s mother.
[4]
As
the Applicant was not a child of the marriage and over age 22 as of the
relevant date, her eligibility as a dependent child was dependent on the
criteria described under the subsection 2b(ii) definition for “dependent child”
in section 2 of the Act, namely that she was continuously enrolled in a
post-secondary institution on a full-time basis since before the age of 22. The
Applicant was born on December 3, 1987.
[5]
The
Officer found that the Applicant had not met the requirements to be considered
a dependent child in Ms. Gao’s permanent residence claim under subsection 11(1)
of the Act. In Schedule A of her application, the Applicant stated that she had
been enrolled at Shenyang Open University since September, 2009. However, a
certificate of her enrolment states that she started studies in March, 2010, in
a part-time, two-year program.
[6]
Additionally,
given the discrepancy between the evidence provided and her statement at
Schedule A, the Officer determined that the Applicant had misrepresented her
educational history and as a result, had not fulfilled her obligations pursuant
to subsection 16(1) of the Act.
III. Standard of Review
[7]
The
standard of review pertaining to questions of procedural fairness is that of
correctness (Dunsmuir v New Brunswick, 2008 SCC 9, at para 50; Juste
v Canada (Minister of Citizenship and Immigration), 2008 FC 670, at paras
23-24).
IV. Analysis
[8]
The
Applicant argues that where the Officer found a misrepresentation in her
Application, an opportunity for the Applicant to respond should have been given
(Cornea v Canada (Minister of Citizenship and Immigration), 2004 FC
972).
[9]
The
Applicant also argues that this case concerns credibility, as the Officer
concluded the Applicant was untruthful in Schedule A of her application. Where
an Officer has concerns about credibility a duty of procedural fairness arises
(Ansari v Canada (Minister of Citizenship and Immigration), 2013 FC
849).
[10]
The
Respondent argues that the Officer’s duty of procedural fairness is limited in
the context of this case (Khan v Canada (Minister of Citizenship and
Immigration), 2001 FCA 345, at paras 22, 30-32).
[11]
An
Officer is not obliged to provide an applicant with a “running score” of
weaknesses in her application (Thandal v Canada (Minister of Citizenship and
Immigration), 2008 FC 489, at para 9) nor was the Officer obliged to notify
the Applicant of the obvious inconsistency in the evidence that was provided (Kaur
v Canada (Minister of Citizenship and Immigration), 2010 FC 442 at para 9).
[12]
This
Court has established that the Applicant has the onus to file a clear and
complete application with the necessary supporting documentation (Prasad v
Canada (Minister of Citizenship and Immigration), [1996] FCJ No 453 at para
7). The question of whether the Applicant is a “dependent child” is one based
directly on the requirements of the Act. The Officer was not required to
provide the applicant with an opportunity to address the inconsistency (Chen
v Canada (Minister of Citizenship and Immigration), 2011 FC 1279, at paras
20-22).
[13]
While
the Officer did note there was an “inconsistency” in the evidence, the
Officer’s decision did not turn on credibility as suggested by the Applicant.
The Officer found that the Applicant had not provided the necessary evidence to
support her application as per subsection 11(1) of the Act. The start date for
her enrolment at Shenyang Open University was incorrect and she was not
enrolled in full time study, but only part-time study at University. This is an
unambiguous finding and is supported by the evidence. The Applicant was
required to support her claim with the necessary evidence and the Officer was
under no obligation to allow the Applicant to make further representations to
correct her failings (Chen at paras 20-22).
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. This Application is
dismissed;
2. There is no question for
certification.
"Michael D.
Manson"
Email this Content