Docket: IMM-1399-16
Citation:
2016 FC 1202
Ottawa, Ontario, October 28, 2016
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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ANA JULIA
BOHORQUEZ GONZALEZ
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant, Ana Julia Bohorquez Gonzalez [the
Applicant], challenges a negative sponsorship decision by the Immigration
Appeal Division [IAD] on behalf of her 32 year old daughter Luisa Fernanda
Perez Bohorquez [Luisa] and 7 year old accompanying daughter, Anasofia Perez
Bohorquez.
[2]
On November 7, 2013, after an interview with a
visa officer in Bogotá, Colombia, it was determined that Luisa was not a dependent
child due to mental disability under the Immigration and Refugee Protection
Act, SC 2001 c27, and therefore not a member of the family class. The Applicant
appealed the decision to the IAD. The IAD unraveled a tangled web of untruths
by a number of players and on March 8, 2016, delivered a lengthy decision. It found
that Luisa was not a member of the family class because she did not fall under
the definition of a dependent child (i.e. financially dependent on the
Applicant) due to a mental condition.
II.
Factual Background
[3]
The Applicant originally came to Canada from
Colombia on March 5, 2007, based on a fear of Revolutionary Armed Forces of
Columbia (FARC). She was found to be a convention refugee in June 2008, and a
Canadian citizen in 2014. It was not until the Applicant attempted to sponsor
Luisa that the IAD stated it discovered much of the Applicant’s personal information
form from her refugee application was manifestly untrue.
[4]
The Applicant is married and she has 3 children:
Luisa, Valentina and Luis. Luis lives with his parents and Valentina with her
boyfriend. Both Luis and Valentina came to Canada before their parents and were
granted refugee status. When the Applicant was first granted refugee status she
applied in Bogotá for concurrent processing of her husband, mother, Luisa and
her granddaughter. After Luisa was interviewed in Bogotá, the Applicant was
notified that because Luisa was older than 22 at lock-in date, that she and her
child were not members of the family class and their applications for permanent
resident status were refused. On June 20, 2012, the Federal Court denied leave to
judicially review the visa officer’s decision. In 2013, the Applicant’s mother
and husband obtained permanent residency and left Luisa and her child alone in
Colombia.
[5]
On June 3, 2013, Luisa applied for permanent
residence for herself and her child and was co-sponsored by her mother and
father on the same grounds that had been refused by the visa officer. Again,
her application was refused by a visa officer. The Applicant appealed this
decision to the IAD.
[6]
The IAD found the Applicant (as well has her
husband and son) not credible about multiple critical issues. In particular,
the IAD noted significant discrepancies between the Applicant’s basis of claim
for refugee status, statements made to visa officers, and contradictory
evidence put forward before the IAD itself. The Applicant was not credible with
respect to the following: the duration of her and Luisa’s residence in the
United States; the extent and quality of Luisa’s education; Luisa’s past
employment; Luisa’s marriage while living in the United States; Luisa’s ongoing
employment as an early childhood educator; and the Applicant and her husband’s
unreported income in Canada despite each being recipients of Ontario Disability
Support Payments.
[7]
The IAD concluded that Luisa continues to be
employed in Colombia as an early childhood educator. Furthermore, she spent 15
years in the United States, graduating from an American high school which could
partially explain difficulties in reading and writing Spanish. That, despite
successful refugee claims, the Applicant and family members have gone back to
Colombia to visit Luisa. The IAD concluded that given Luisa’s history of
education and employment, she was not dependent on the Applicant for financial
support due to mental disability.
III.
Issue
[8]
The issue I must determine is whether the IAD
reasonably concluded that Luisa is not a member of the family class.
IV.
Standard of Review
[9]
The parties both submit that the applicable standard
of review is reasonableness and I agree.
V.
Analysis
[10]
The relevant definition of “member of a family class” is found at s. 117(1)(b) of
the Immigration and Refugee Protection Regulations, SOR/2002-227 [the
Regulations]. At the time of the visa officer’s decision, section 2 of the
Regulations defined a “dependent child” as:
“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) is 22 years of age or older and has
depended substantially on the financial support of a parent since before the
age of 22 – or if the child became a spouse or common-law partner 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 a parent since
before the age of 22 and is unable to be financially self-supporting due to a
physical or mental condition.
[emphasis added]
[11]
This judicial review comes down to the
highlighted subparagraph. Is Luisa unable to financially support herself, since
before the age of 22, due to a physical or mental condition? Only mental
disability was presented in the sponsorship application.
[12]
This requires a two-step evaluation: first, is
the individual over 22 years of age (the age is now 19); and second, are they
financially dependent because of mental disability. The IAD made a separate assessment
under section 133(1)(j)(i) of the Regulations (as they were at the time of
application) with respect to the financial requirements of the Applicant which
was not contested.
[13]
The Applicant’s counsel led the Court through
the record in great detail to show why the IAD was not reasonable in their
credibility findings. The Applicant disputes the IAD’s treatment of multiple
medical reports submitted to support Luisa’s claim of mental disability. The
Applicant further challenges the IAD’s negative assessment of the medical
reports for their medical evaluation but then relied on them for their finding
that Luisa was in the United States for 15 years.
[14]
In response, the Respondent took the Court
through the timeline of each medical report compared with where the Applicant
and Luisa’s physical presence was alleged to be. Clinical observations,
treatments, follow up, omissions, recommendations and diagnoses were all
discussed at length.
[15]
Having considered all of the arguments by the
parties against the record and the reasons, I find the IAD’s treatment of the
medical reports to be reasonable.
[16]
The Applicant submitted that Luisa was unable to
support herself because of a mental disability. The basis for this assertion is
that she can only communicate in English and therefore cannot maintain a job in
Colombia. Further, she could not get a job because she was under police
protection. This, according to the Applicant, explains why she could not send
financial support directly to Luisa as it would give away her residence. The Applicant
argues that the IAD erred in their negative assessment of Luisa’s dependence
due to mental disability and determination that Luisa could support herself as
an early childhood educator. The IAD’s reliance on Luisa’s education and her
Facebook postings was unreasonable given the sworn statutory declarations and
the evidence that payments were sent monthly by the Applicant to her friend
Silvia (who is a friend and neighbour of Luisa).
[17]
The IAD made supportable findings on the
evidence in determining that Luisa does not have a mental disability which
prevents her from supporting herself. The treatment of the medical reports was
fair and reasonable. The onus was on the Applicant to demonstrate financial
dependence due to mental disability and she failed to do so due to lack of
credibility. Here are a few of the many inconsistencies in the evidence that
are set out by the IAD to support their findings:
- School: It is
repeatedly claimed that Luisa can neither read nor write Spanish well. The
IAD points out that this could reasonably be explained by her 15 years of
education at English schools in the United States. During her November 3,
2011 interview Luisa claimed that she had never been enrolled in full-time
post-secondary education. It was later revealed she was able to obtain a
diploma in early childhood education. Her brother Luis claimed to have no contact
with Luisa in the United States while she went to school. When
Respondent’s counsel pointed out he attended the same school as Luisa for
six months he changed his testimony. At first the Applicant claimed Luisa
and Luis were denied asylum while attending school in the United States
and then later admitted they had not even applied for asylum.
- Work: On social
media Luisa indicated that she was employed in Colombia as an early
childhood teacher related to the Holmes School. At different points the IAD
determined that “there was no credible evidence
that she was prevented from being employed due to dyslexia” and
that “the applicant has the intelligence to work
as her mother initially contended but that she has a different way of
learning.”
- Money: The Applicant
sends the equivalent of $600 to $700 a month to her friend Silvia Montoya.
However, the financial records provided were in Spanish and there is no
basis to determine that Luisa is the ultimate recipient to support her due
to disability. The reason given was that Luisa was hiding from FARC and
they did not want the identification number to show up. Yet the family
visits Colombia with no apparent fear of FARC.
- Marriage: the
IAD analyzed the evidence given by Luisa in her November 3, 2011 interview
in which she said she was never married. In fact Luisa was married in the
United States to an American citizen on May 31, 2003 until the marriage
was annulled December 27, 2013. This only came to light because Canada Border
Services Agency intercepted a package of documentation that was mailed by the
Applicant to Luis containing photocopies of Luisa’s United States marriage
certificate along with a note to do whatever it takes to get the rest of
the family out of Columbia.
- Disability: Luisa’s
claims of disability are contradicted by both herself and the Applicant. In
Luisa’s November 3, 2011 interview, she admitted that she is not unable to
financially support herself due to mental disability. The Applicant also
admitted in a November 7, 2011 email that Luisa was not dependent on her
because of a mental condition and that it was only because of FARC that
Luisa was unable to support herself in Colombia. Despite this a clinical
psychologist, on whom the Applicant relies, accepted the “embroidered truth offered by…” the Applicant and
Luisa when diagnosing her as “having borderline
cognitive deficit that only allows her to perform simple tasks and low
level responsibilities.” The IAD could find no indication that
tests were administered or any treatment or follow up was done to
substantiate this diagnosis.
[18]
It is not my role to reweigh the evidence or to
make factual findings. The Applicant’s detailed arguments about erroneous
factual findings noticeably did not address other unassailable findings. Even
if I found the findings presented in argument to be in error (which I do not),
cumulatively, it was still reasonable for the IAD to determine that Luisa did
not meet the requirements to be a member of the family class.
[19]
Reasonableness requires that the decision must exhibit
justification, transparency and intelligibility within the decision making
process and also the decision must be within the range of possible, acceptable
outcomes, defensible in fact and law (Dunsmuir v New Brunswick, 2008 SCC
9; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12).
[20]
Based on the entire record before the IAD
including the Applicant’s and Luisa’s past failed applications (which the IAD
was entitled to consider), I find that the IAD decision was reasonable. The IAD
meticulously went through the medical reports in their determination that Luisa
was not a dependent child. It weighed the evidence while noting omissions and
contradictions and came to a reasonable conclusion based on those
determinations.
[21]
No question for certification was presented and
none arose so no question will be certified.
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