Date: 20010615
Docket: IMM-5056-00
Neutral Citation: 2001 FCT 660
BETWEEN:
GETENET ABEJE ZELEKE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
[1] This is an application for judicial review of the Immigration and Refugee Board Appeal Division's ("IAD") September 5, 2000 decision dismissing the applicant's appeal of a visa officer's decision in which the sponsored application for landing of his son was refused.
[2] On September 19, 1996, the applicant signed an undertaking to sponsor his two children as permanent residents; at that time, the children were living with their mother in Ethiopia. The father withdrew the undertaking for his daughter as her whereabouts were unknown following her disappearance from her mother's home. However, Solomon Getenet Abeje, (the "son") filed an application for permanent residence, which the Canadian High Commission in Nairobi Kenya received on April 10, 1997.
[3] The visa officer advised the son that the late registered birth certificate he had submitted was not satisfactory proof of his age. On July 10, 1997, the visa officer asked the son to submit his Ministry of Education Grade 6 examination results certificate. Upon its receipt, the visa officer suspected this document was not authentic and submitted it to the issuing authority for verification. The issuing authority confirmed it was a fraudulent document.
[4] When confronted with the fraudulent document, the son could not offer a credible explanation. He produced a report card, which he asked the visa officer to rely upon instead. This second document contained erasures on the "academic year" line that would have supported the son's age. The report card was not signed by the Director, which led the visa officer to conclude this document was also fraudulent and the son had twice attempted to deceive the visa officer with respect to his age.
[5] By letter dated September 27, 1999, the son's application was refused. The visa officer explained he did not meet the requirements for admission as a sponsored member of the family class because he was not under the age of 19. The visa officer also concluded the son did not meet the requirements of section 9(3) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") in that he had provided two fraudulent documents to support the assertion he was under 19 years of age. The visa officer also noted the son was inadmissible under subparagraph 19(2)(a.1)(ii) of the Act (mistakenly referred to in the refusal letter as 19(2)(c.1)(ii)), for having submitted fraudulent documents, an offence under Canadian law punishable by a prison term of less than 10 years.
[6] The applicant appealed the decision to the IAD on the grounds that despite the submission of a fraudulent document to the visa post, the son is under 19 years of age and is eligible to be sponsored as a member of the family class and that there are sufficient compassionate or humanitarian considerations to warrant the granting of special relief.
[7] At the IAD hearing, Melak Mengistu, an old childhood friend of the applicant, testified that although he could not recall exactly when the son was born, it was around the time he left the town where the son was born. He stated "probably it is 19 years ago". During cross-examination, the witness stated he has been living in Canada for approximately two and a half years and that prior to coming to Canada he had been living in Addis Ababa for around twenty years.
[8] The IAD found that the applicant's "evidence has been repeatedly inconsistent, contradictory, and evasive" and concluded that the applicant had not established on a balance of probabilities that his son was a member of the family class.
[9] The applicant raised three issues on this application for judicial review. The applicant first submits that the IAD ignored relevant evidence in reaching its decision. Specifically, the IAD did not make any reference in its reasons to the evidence of, Melak Mengistu, which corroborates the applicant's evidence concerning his son's age. The applicant argues that the failure to make any reference to the evidence alone is sufficient to warrant the Court's intervention.
[10] The fact that the IDA did not specifically mention the evidence of the witness does not mean that the evidence was not considered in reaching the decision. As stated by Hugesson J.A. (as he then was) in Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No 598: "... a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown...".
[11] In the present case, although the witness stated initially regarding the date of the son's birth "probably it is 19 years ago", the witness's evidence was clear on two points. First, the applicant's son was born around the time he left the town where the son was born. Second, when he left the town he moved to Addis Ababa where he lived for about 20 years and then he came to Canada. At the time of the IAD hearing he had been in Canada for approximately two and a half years. This evidence would indicate that the son would have been approximately 19 years of age at the time of the application.
[12] Given that the IAD found the applicant's testimony and documentary evidence completely lacking in credibility, the evidence of this witness alone would still not have established that the son was under the age of 19 at the time of the application. While it might have been more thorough on the part of the IAD to make some reference to the fact that this witness testified at the hearing, I am not persuaded that the failure to do so in these circumstances warrants the Court's intervention.
[13] The applicant also submits the IAD failed to consider the son's application under paragraph 2(1)(b) of the Immigration Regulations, SOR/78-172, and failed to consider the humanitarian and compassionate grounds raised on the appeal. I agree with the respondent's submission that there is no factual basis for either of these submissions.
[14] For these reasons, the application for judicial review is dismissed.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
June 15 , 2001