Date: 20010820
Docket: IMM-850-00
Neutral citation: 2001 FCT 919
BETWEEN:
VU SON TRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J. A.:
[1] This is a judicial review of a decision of a Visa Officer denying the applicant his application for permanent residence in Canada as a dependent son. The application was denied because the Visa Officer was of the opinion that the applicant was not less than 19 years of age when the application was made and was not enrolled and in attendance as a full time student since attaining the age of 19 years.
[2] As to age, the issue is whether the applicant was born in 1977 or 1979. When the applicant's sister came to Canada, she indicated that the applicant's age was 14 at the time rather than 12, which would have meant that the applicant was not less than 19 when he made his permanent residence application. The Visa Officer believed the older age because he considered that the sister would have known the age of her brother and that she would have had no reason to fabricate the date of his birth at the time of her application.
[3] The Visa Officer rejected the sister's evidence that when she made her application, her brother's age was not material, that she was a number of years older than her brother and that she had been mistaken. He also rejected various documents including a household registry, school report cards and university records because in his opinion "many Vietnamese documents such as household registry or school certificates, are fraudulent, incorrect, and generally unreliable". He also noted that if the applicant's high school was completed at a normal age, it would have been completed in 1996 at age 17, "not age 15 as would be the case had he been born in 1981".
[4] There was no interview conducted in this case. The Visa Officer's credibility analysis was based on the documentary evidence before him. It goes without saying that, generally, the Court will not interfere with credibility assessment of tribunals. However, in this case, I am not satisfied with the reliability of the Visa Officer's assessment as to the applicant's age or full time attendance at university.
[5] The respondent concedes that the Visa Officer was incorrect in believing that the applicant was asserting that he was born in 1981 which would have made him 15 when he graduated from high school. In fact, the applicant was asserting that he was born in 1979 and would have been 17 in 1996, the normal age for the completion of high school as noted by the Visa Officer.
[6] As to the authenticity of the documentary evidence submitted, it is not unreasonable for a Visa Officer to rely on experience of a high level of fraud at a visa post to raise suspicions about the authenticity of documents. Generally, this would suggest that documents be more closely reviewed than might otherwise be the case. See for example, Mina v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1735 per Dawson J. In Mina, the Visa Officer rejected the authenticity of documents because the documents submitted were not in the original and were issued many years after the fact.
[7] I do not think a Visa Officer may simply reject the authenticity of specific documents because of a high level of fraud experienced at a visa post. At least there must be some examination of the actual documents submitted.
[8] There is no indication that occurred in this case. The Visa Officer gave no indication he examined the documents submitted to determine their authenticity. A review of the record does not indicate whether the Vietnamese documents submitted were originals or copies. Nor is it obvious when the documents were issued.
[9] For these reasons, I am not satisfied that the Visa Officer's age assessment in this case was reliable.
[10] As to full time attendance at school, the Visa Officer found that the applicant provided no evidence of full time attendance at a school since graduating from high school in 1996, but only that he had taken a course at university which he found not to be full time attendance.
[11] On the applicant's application he indicated that he was in attendance at Can Tho University from September 19, 1997 to May 19, 1998 and from September 19, 1998 to the present (November 4, 1998). The 1997-98 term was indicated as "1st year" and the second period was shown as "2nd year". His occupation is shown as "student". On an Application for Confirmation, the applicant is stated to be a "Student of Economics-business Management course 23-Can Tho University". On an Application for Certification the reference is to "session 23".
[12] From this documentary evidence, the Visa Officer inferred that the applicant was not a full time student. Whether he is or is not is not for the Court to determine. However, in my respectful opinion, the documents before the Visa Officer did not support the inference he drew from them. Inferences must be based on proven facts. A reference to "course 23" in one document, translated to English from Vietnamese is simply insufficient to conclude that an individual was not in full time attendance at university, in light of all the other documentary evidence, and in particular, the reference in another document to "session 23".
[13] For these reasons, the judicial review will be allowed and the matter remitted to a different Visa Officer for redetermination, based upon a more thorough assessment of the documents that are in the record and such further documents as the applicant may submit and, if deemed necessary or desirable by the Visa Officer, an interview of the applicant.
[14] Counsel for the applicant has drawn attention to paragraph 11(5)(b) of the Immigration Regulations which provides that a visa shall not be issued to an accompanying dependant unless the dependant meets the criteria for student status at the time the visa is issued. He says that the applicant may no longer be in full time attendance at university. Had his application been granted originally he says he would have been in full time attendance at the time the visa would have been issued. He says that if the applicant is found not to have been under 19 when he made his application but still a full time student at that time, he should not be barred from receiving a visa under paragraph 11(5)(b). While I appreciate counsel's concern, as the question of whether the applicant meets the definition of dependant son and if so, on what grounds, is yet to be decided, it would be premature for this Court to address the relevance, or the issue the applicant raises in respect of, paragraph 11(5)(b).
"Marshall Rothstein"
Judge
Toronto, Ontario
August 20, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-850-00
STYLE OF CAUSE: VU SON TRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, AUGUST 16, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN J.A.
DATED: MONDAY, AUGUST 20, 2001
APPEARANCES: Mr. Cecil L. Rotenberg, Q.C.
For the Applicant
Mr. Matthew Oommen
For the Respondent
SOLICITORS OF RECORD: Cecil L. Rotenberg, Q.C.
Barristers & Solicitors
255 Duncan Mill Road, Suite 808
Toronto, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010820
Docket: IMM-850-00
BETWEEN:
VU SON TRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
Date: 20010820
Toronto, Ontario, Monday the 20th day of August, 2001
PRESENT: The Honourable Mr. Justice Rothstein
BETWEEN:
VU SON TRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The judicial review is allowed and the matter is remitted to a different Visa Officer for re-determination.
"Marshall Rothstein"
Judge