Date: 20010503
Docket: T-327-00
Neutral Citation: 2001 FCT 433
BETWEEN:
SORAYYA MIAN
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] This application is for judicial review pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 of two unanimous decisions of a Review Tribunal under the Old Age Security Act, R.S.C. 1985, c. O-9 (the AAct@). The first decision is dated March 22, 1999. It deals with an appeal under section 28 of the Act from a decision made by the Minister of Human Resources Development Canada (the AMinister@) in which he denied the Applicant a spouses' allowance under the Act, (the AFirst Decision@). In the second decision of
December 10, 1999 (the ASecond Decision@), the Review Tribunal declined to re-open the First Decision for reconsideration on the basis of new evidence.
The Background
[2] The Applicant was born in India but moved with her family to Pakistan in 1947 as a result of the partition of India. She and her husband (the AHusband@) are of the Muslim faith and were married in Pakistan in 1966. Her Husband came to Canada by himself in 1968. For this reason the Applicant's father helped her with the arrangements for her trip to Canada and they included obtaining a Pakistani passport. However, the Applicant alleges that, when her father applied for her passport he misstated her birth date by eight years. Instead of giving her correct date of birth which she says is November 29, 1932 (the AEarlier Date@), he provided an incorrect date (the AError@) which is January 4, 1940 (the ALater Date@).
[3] In 1972, the Applicant relied on her Pakistani passport to obtain landed status in Canada. She discovered the Error in 1974 in a discussion with her doctor who recommended that she correct her documents. However, the Applicant did not speak or read English and has worked in the home since her arrival in Canada. For this reason her Husband was the one who took steps to have the Error corrected. Apparently, in 1974 he tried to obtain a copy of her birth certificate but was unsuccessful. There is no documentary proof of this contact with Indian authorities and, for almost twenty years, no further steps were taken to correct the Error.
[4] In the intervening years the Applicant became a Canadian citizen and, in 1979, was issued a Canadian Passport which showed the Later Date as her date of birth. In 1989, she was issued another passport which again showed the Later Date. Neither she nor her Husband questioned these passports and presumably they had used the Later Date when they completed the passport application forms.
[5] On August 23, 1993, the Husband applied for a pension under the Act and perpetuated the Error by showing his wife's birth date as the Later Date. Around this time he renewed his efforts to correct the Error because, in June of 1994, the Applicant received what is said to be her birth certificate #1497 from India (the ABirth Certificate@). A translation of the document shows the Earlier Date for the first time and names the Applicant's father and grandfather. However, although it indicates that it relates to a female child, the child is not named.
[6] In spite of receiving the Birth Certificate, which the Applicant says is hers and which shows the Earlier Date as her date of birth, the Applicant applied for a spouses' allowance under the Act in 1995 (the ASpousal Allowance@), using the Pakistani passport and the Canadian Immigration documents which give the Later Date as her date of birth. The Allowance would have had the effect of increasing the couple's income from $10,000 to $13,000 per year. However, although the application was initially accepted and two payments were made, the Minister reversed his decision on August 14, 1997 and denied the Applicant her Spousal Allowance on the basis that the evidence she had submitted showed the Later Date as her birth date (the AMinister's Decision@).
[7] Meanwhile, in 1996, the Applicant and her husband had both signed a form which was an application for a Guaranteed Income Supplement. The form was pre-printed and it again showed the Later Date as the Applicant's date of birth.
The First Decision
[8] The Applicant, who was represented by counsel, appealed the Minister's Decision to the Review Tribunal under section 28 of the Act. The Review Tribunal, which consisted of a panel of three members, heard evidence from the Husband, in English, and from the Applicant through an interpreter. There is no transcript of the proceedings. However, their evidence is found in their affidavits sworn on July 19, 2000 for this proceeding.
[9] In those affidavits the Applicant and her Husband explain that the Applicant has no childhood records because of her family's hasty departure from India. Further, the couple have lost their marriage documents. The Husband deposed that, in spite of the advice he received from his wife's doctor in 1974, he did nothing to correct the Error between 1974 and 1993 due to other priorities involving his employment and the couple's finances and children.
[10] The Applicant's Memorandum of Fact and Law appears after page 192 in the Application Record filed on October 11, 2000 (the AFactum@). The Factum indicates, at paragraph 95, that the Review Tribunal erred in fact when it concluded that:
All the documents indicated January 4, 1940 [the Later Date] as the date of birth of the Appellant, except for a birth certificate which gives no name of the child.
The Applicant says that this conclusion of fact which I will refer to as the ADisputed Statement@ was perverse because it failed to mention any of the documents which gave the Earlier Date as the Applicant's date of birth. One such document was the Applicant's statutory declaration of March 21, 1995, which appears as Exhibit C to the Husband's affidavit of July 19, 2000. Unfortunately, this document contained a material error in paragraph 3. There the Applicant stated that she had Asix brothers and sisters@. This conflicted with the evidence discussed below which showed that she has five brothers and one sister. The Husband says, in paragraph 12 of his affidavit that he failed to notice the errors in paragraph 3 due to his poor English. However, this explanation is improbable because in the first paragraph of his affidavit he says that he has an average understanding of written English. If this statement is accurate he would have understood the simple wording of paragraph 3 of the statutory declaration.
[11] The affidavit of the Applicant's brother (the ABrother@) of September 18, 1998 also gave the Earlier Date as the Applicant's date of birth. The Brother stated that he is the eldest son of Abdul Karim who appears as the father on the Birth Certificate. He indicated that he has four brothers and two sisters and that the Applicant is his youngest sister and that she was born on the Earlier Date. This affidavit appears in the Tribunal Record at page 96 and in the Applicant's Oral Argument Book (the AArgument@) at Tab 8. The Argument was provided to the Court at the hearing of this application on April 25, 2001. Although the Brother's affidavit stated that the deponent was attaching photocopies of all the birth registration receipts, none are attached. This lack of corroboration is unfortunate because, if the Applicant had a brother born on February 7, 1970 as alleged, the Applicant could not have been born on the Later Date because it was just one month before her brother's birth date.
[12] It is clear that when the Review Tribunal made the Disputed Statement it had not overlooked either the statutory declaration or the Brother's affidavit. It quoted the entire text of the Applicant's statutory declaration on page 2 of its reasons and it described the Brother's affidavit on page 4. In these circumstance, it is obvious that the Review Tribunal considered these two documents and decided that they were unreliable. This view is reinforced by the statement which immediately precedes the Disputed Statement. It reads:
Having considered all the evidence in the present case, the Tribunal has not been convinced on a balance of probabilities that the Appellant's date of birth is November 29, 1932. There are too many discrepancies and irregularities that are still not explained to the satisfaction of the Tribunal. All the documents indicate January 4, 1940 as the date of birth of the Appellant, except for a birth certificate which gives no name of the child.
[13] The Applicant also says that the Board erred because it made the Disputed Statement without mentioning the following supporting documents anywhere in the reasons for the First Decision:
The Applicant's sister's birth certificate (Tribunal Record pages 185 - 6)
Dr. Gardee's letter of July 21, 1998 (at Tab 9 of the Argument)
The letter from the High Commissioner of India of August 26, 1997 (at Tab 6 of the Argument)
A letter from the High Commission for Pakistan of July 28, 1998
[14] Although characterized as a supporting document, I am not sure that the sister's birth certificate was helpful because, unlike the Applicant's birth certificate, the sister's certificate showed the sister's name. This could suggest that the Birth Certificate was not valid. However, the letter from the High Commission said that names could be left off birth certificates in the 1930's and the sister's certificate was dated in 1928. On balance, it is my view that the sister's certificate was largely irrelevant and the Review Tribunal did not err in failing to discuss it in its reasons.
[15] It is also my view that the doctor's letter was not a strong supporting document. While it suggests that the Applicant could be older than the Later Date might indicate, it also shows that he noted the Later Date as the Applicant's birth date on her medical chart. This is not an immigration document and it cannot be said that the Later Date appears because of the Applicant's father's error in Pakistan. The date on the doctor's chart presumably came directly from the Applicant or her husband. Since this was at best a neutral piece of evidence, I can find no error in the Review Tribunal's failure to address it in specific terms.
[16] The letter of August 26, 1997 from the High Commission of India in Ottawa was written after the Minister's Decision and before the hearing on January 19, 1999 which led to the Review Tribunal's First Decision. It appears at page 91 of the certified Tribunal Record and it reads:
With reference to certificate No.1497 issued by Government of India, Batala Municipality, Batala (India), this is to certify that during 1930's it was not mandatory to mention the name of the child in the certificate issued by hospitals and only the sex of the child and the name of the father used to be mentioned. Certificate No.1497 pertains to a female child born on the 29th day of November, 1932, daughter of Abdul Karim.
[17] The Applicant stressed the importance of this information which explained why her Birth Certificate did not include her name. The Applicant suggested that the Review Tribunal's failure to mention this letter meant that it was not sensitive to issues which arise out of cultural diversity. However, I have not been persuaded of any lack of sensitivity. Indeed, it is my impression that the Review Tribunal went out of its way to avoid making a negative finding of credibility when such a finding was open to it on the evidence. It is noteworthy that, although the letter from the High Commission explains why the Birth Certificate does not bear a name, it does not address the relevant point. It does not say that the document is evidence of the Applicant's date of birth.
[18] The Applicant noted that Human Resources Development Canada's policy about Proof of Age Documents does not preclude the acceptance of birth certificates from India and that the Applicant is presenting such a certificate. The policy is found in the Argument at Tab 10 and reads:
An original or certified copy of a birth or baptismal certificate is the document required in order to substantiate proof of age.
However, if you are not born in Canada and it is not possible to obtain a birth or baptismal certificate you must supply us with a minimum of 2 documents from the list below indicating the birth date. [emphasis in original]
[19] However, in my view, the policy is speaking of documents which identify the person who wishes to use them. The simple fact is that the Birth Certificate without a name is not a birth certificate for the Applicant and the High Commission of India's letter does not change that fact.
[20] The letter from the High Commission for Pakistan in Ottawa reads:
This is to certify that Pakistani Passport No. AC768427 dated 17 November 1970 issued by Assistant Director, Immigration & Passports, Government of Pakistan, Lahore in respect of Sorayya Azam wife of Mr. M. Azam Mian was issued as per the procedure in vogue in the year 1970 i.e. the applicant submitted his application forms filled in with necessary details, duly attested by a gazetted officer of the Government. The particulars given by the applicant were entered in the passport.
[21] Again, in my view, this document was not particularly supportive. It said that the Applicant's father would have had to attest to the information he supplied when he applied for her passport in 1970. It is hard to imagine that, when asked to attest to a matter and therefore consider it, a father could make such a large mistake (eight years) about the birth date of one of his children. As this was not an important supporting document, it is my view that the Review Tribunal did not err when it did not mention it in the reasons for its First Decision.
[22] In all the circumstances I have concluded that the Review Tribunal did not err when it did not refer specifically to all the Applicant's evidence and that the Disputed Statement was not patently unreasonable. Accordingly, an order will not be made setting aside the First Decision of the Review Tribunal.
The Second Decision
[23] The Applicant raised an issue about the Second Decision which was not mentioned in her Factum. She submitted that, when the Review Tribunal considers whether new evidence has been presented which justifies a reconsideration, the Tribunal must be composed of the same members who initially heard the case. This is because, in the absence of a transcript, only the members of the first tribunal are in a position to know whether the alleged Anew@ evidence really is new.
[24] Counsel for the Respondent objected to this submission on two grounds. Firstly, he said he was prejudiced by the lack of notice in that he was not prepared to make submissions. Secondly, he advised the Court that, because the matter was discussed by the Review Tribunal in its reasons for the Second Decision, the Review Tribunal had contacted him to see whether the issue was before the Court on this application for judicial review. Based on the Applicant's factum, counsel for the Respondent assured the Review Tribunal that it was not. It is clear that, had it been an issue, the Review Tribunal would have appeared as it is entitled to do pursuant to Rule 304(1)(b)(i) of the Federal Court Rules, 1998.
[25] In these circumstances I advised counsel for the Applicant that, because an interested party was absent, I was going to decide the application for judicial review without regard for her submissions about the proper composition of the Review Tribunal at the time of the Second Decision.
[26] The Second Decision was made pursuant to section 84(2) of the Act. It provides:
(2) Rescission or amendment of decision - The Minister, a Review Tribunal or the Pension Appeals Board may, notwithstanding subsection (1), on new facts, rescind or amend a decision under this Act given by him, the Tribunal or the Board, as the case may be.
(2) Annulation ou modification de la décision - Indépendamment du paragraphe (1), le ministre, un tribunal de révision ou la Commission d'appel des pensions peut, en se fondant sur des faits nouveaux, annuler ou modifier une décision qu'il a lui-même rendue ou qu'elle a elle-même rendue conformément à la présente loi.
[27] The following new evidence was before the Review Tribunal:
i) A Pakistani government identification card showing the Applicant's birth date as the Earlier Date (Tab 13 of the Argument)
ii) A new Pakistani passport of May 17, 1999 showing the Earlier Date as the Applicant's date of birth (Tab 14 of the Argument)
iii) A second letter from the High Commission of India in Ottawa dated April 15, 1999. The pertinent passage reads:
2. From the support documents supplied to this mission by her it has been inferred that the person whose date of birth is shown as 29th November, 1932 in the copy of the birth certificate (enclosed) is that of Mrs. Surraya Begum daughter of late Mr. Abdul Karim.
[28] In Castro v. Minister of Employment and Immigration (1988), 86 N.R. 356 (F.C.A.), the Federal Court of Appeal dealt with a decision of the Immigration Appeal Board in which it refused to re-open a deportation appeal. The Court said:
Thus, it is argued that the burden of proof the applicant has to meet, in order to secure a reopening, should be somewhat less stringent than one demanding that the evidence would Aprobably, if not almost conclusively, change the results of the previous hearing@. In my view counsel's argument in this regard is well-founded. In order to justify reopening, it seems to me the proferred evidence need only be such as to support a conclusion that there is a reasonable possibility as opposed to probability that it could lead the Board to change its original decision.
[my emphasis]
[29] The Applicant says that the Review Tribunal applied too onerous a test when it considered whether the new facts presented by the Applicant justified re-opening the First Decision. In particular, the Review Tribunal allegedly erred when it concluded that:
For the reasons stated we are not satisfied that these new facts are persuasive or determinative at all and, therefore, they do not meet the second branch of the test for reconsideration.
[my emphasis]
[30] However, in my view the standard applied by the Review Tribunal was in accordance with the standard set by the Federal Court of Appeal. As I read the Review Tribunal's conclusion it was saying that there was absolutely no possibility that the new evidence could cause a change in the First Decision.
Conclusion
[31] For all these reasons an order will be made dismissing the application for judicial review in respect of both the First and Second Decisions.
Sandra J. Simpson JUDGE
Ottawa, Ontario
May 3, 2001