Ottawa, Ontario, October 19, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Magda Ahmed Abdal Rahim (the applicant) seeks judicial review of a decision of a Visa Officer (the "officer"), dated November 8, 2005, wherein the officer rejected an application for sponsorship of the applicant’s two sons, Khalid Faroug Tawfig Khafaga (Khalid) and Omar Faroug Tawfig Khafaga (Omar), as family members (dependant’s) for permanent residence to Canada. The applicant and her sons are citizens of Sudan.
[2] The applicant obtained refugee status in September 2003 and applied for Canadian residency for herself and her two sons shortly thereafter. The applicant included her sons as
co-applicants on her permanent residency application.
[3] The officer conducted interviews of the applicant’s sons on March 13, 2005 in relation to this application. The applicant’s sons submitted school certificates, birth certificates, and passports to the officer as proof of their identity. The officer rejected the sponsorship application on March 23, 2005.
[4] The Certified Tribunal Record was filed and served as required on June 30, 2006. Pages 50, 53, 56-57 and 108 were not disclosed. On August 14, 2006 Prothonotary Lafrenière rendered an order allowing the respondent to file an Amended Tribunal Record. Portions of page 50, pages 56-57 in their entirety and portions of page 108 remained undisclosed.
[5] A motion pursuant to section 87 of the Immigration and Refugee Protection Act, S.C. 2001 C. 27 (IRPA) was subsequently brought by the respondent to protect the undisclosed information from release. I first heard the respondent in private in relation to this motion. As a result, the pages were released to the applicant with certain portions blacked out. I then heard both of the parties publicly on October 12, 2006. At this time counsel for the applicant indicated that they were content with the Amended Certified Record. As a result, the section 87 motion was granted, and an order to the above effect was issued.
DECISION
[6] A letter dated March 23, 2005 from the officer, and the Computer Assisted Immigration Processing System (CAIPS) notes of the officer taken in relation to the interviews of Omar and Khalid, were submitted as constituting the officer’s reasons for his decision.
[7] The officer concluded in his letter that the school certificates submitted by the applicant’s sons had fraudulent stamps and that he was not satisfied that they had provided accurate dates of birth. The officer noted that the documents submitted to him prevented him from making a determination that the applicant’s sons met the definition of family member for the purposes of IRPA and its related regulations. The officer further concluded that he was therefore not satisfied that the applicant’s sons were admissible. As a result, he refused their application.
[8] The CAIPS notes of the officer make it clear that he questioned Khalid about the circumstances under which he was able to attain his school certificate and birth certificate. Little mention was made however with respect to Khalid’s passport. As a result of the questioning apparent in the CAIPS notes, it is clear that Khalid did not obtain his school certificate through standard means because he did not complete his military service. This is apparently a requirement which needs to be met before Sudanese schools will release a certificate. The officer expressed concern in his notes about the authenticity of the document, highlighting further the fact that he perceived there to be a spelling mistake in the stamp on the document, where a “v” was used in the word education instead of a “u”. The officer also asked how Khalid obtained his birth certificate. Khalid explained that his uncle obtained it on his behalf as he was in a better position then Khalid to do so.
[9] The CAIPS notes make it clear that the officer had similar concerns regarding the documents provided by Omar. After questioning Omar regarding his school certificate and his birth certificate the officer put his concerns to Omar in the following words:
Let me tell you what my concerns are? You and your brother have submitted school documents with fraudulent stamps. You have very little knowledge as to how your BC [birth certificate] was obtained. Your brother indicated that your uncle obtained his BC for him because he did not have the proper documents to get it himself. I suspect that your Birth Certificates and your passports were either improperly issued or improperly obtained. Your mother would have been 37 and 38 when you were born, which is not impossible but unlikely in the context of Sudan where most women marry at a young age. You could not give me an answer to how old you mother was when you were born. There were contradictory statements concerning your father’s visits. Your testimony was not spontaneous but rather you were hesitant, sometimes not event answering. For all these reasons I have doubts regarding the bona fide of your age. Do you have anything to add? [original in CAPS, typos corrected].
[10] It appears from the notes that a similar summary of concerns was not provided to Khalid in the course of his interview.
ISSUES
[11] The submissions of the parties raised the following issues:
1. Did the officer err in failing to put his concerns, or properly put his concerns to the applicant’s sons regarding their documents?
2. Did the officer base his decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it?
ANALYSIS
Standard of Review
[12] The question of whether or not the officer gave the applicant’s sons a meaningful opportunity to respond to his concerns is a question of procedural fairness: Khwaja v. Canada (Minister of Citizenship and Immigration), 2005 FC 522, [2006] F.C.J. No. 703 (QL) [Khwaja]. It is well established that questions of procedural fairness should be assessed on a correctness standard: Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221, 2001 SCC 4 at para. 65. Where a breach of the duty of fairness is found, the decision must be set aside: Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 at para. 44 (QL) [Benitez]; Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056 at para. 54 (QL).
[13] In the context of findings of fact, the Court has held that the discretionary decision of a visa officer should be accorded the highest level of deference, patent unreasonableness: Shi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1224, [2005] F.C.J. No. 1490 at para. 3 (QL) [Shi]; Canada (Minister of Citizenship and Immigration) v. Navarrete, 2006 FC 691, [2006] F.C.J. No. 878 at para 17 (QL). On this standard, the Court should not intervene unless it can be shown that the visa officer ignored relevant evidence or relied on irrelevant or extraneous considerations: Shi, above at para. 3.
1. Opportunity to Respond
[14] As noted by the Court in Rukmangathan v. Canada (Minister of Citizenship and Immigration), 2004 FC 284, [2004] F.C.J. No. 317 at paras. 22, 23 (QL), the duty of fairness may require immigration officials to inform applicants of their concerns so that they may have a chance to "disabuse" an officer of such concerns, even where such concerns arise from evidence tendered by the applicant. This principle of procedural fairness does not however stretch to the point of requiring that a visa officer provide an applicant with a "running score" of the weaknesses in their application. Where an officer suspects that an applicant has supplied fraudulent documents however, he or she must give the applicant a chance to address that concern: Cornea v. Canada (Minister of Citizenship and Immigration), 2003 FC 972, [2003] F.C.J. 1225 at para. 8 (QL).
[15] In addition, where notice of a given concern only materializes during the interview itself, the visa officer must allow the applicant a reasonable period of time in which to meaningfully respond to the allegations: Khwaja, above at para. 17. In such a case, the duty to inform applicants of the case against them will be fulfilled where “the visa officer adopts an appropriate line of questioning or makes reasonable inquiries which give the applicant the opportunity to respond”: Liao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1926 (T.D.) (QL) at para. 17.
[16] Therefore, so long as an applicant is confronted with the concerns of the officer at their interview, and they are given a reasonable opportunity to respond, the duty of fairness will be met. It is otherwise immaterial at what point during the interview this occurs: Khwaja, above at para. 18.
[17] In the context of the present case, the officer provided Omar with a summary of his concerns at the conclusion of his interview. In his summary, he noted that he suspected that Omar and Khalid had submitted school documents with fraudulent stamps, and that their passports and birth certificates were either improperly issued or improperly obtained. The officer also asked whether Omar had anything further to add. Therefore, despite the fact that the officer’s line of questioning during the interview only included questions pertaining to how Omar obtained his birth certificate and his school certificate, it cannot be said that he did not ultimately put the full scope of his concerns to Omar. In addition, if Omar had felt he needed more time to collect evidence to disabuse the officer’s concerns, he should have requested it. Omar bore the onus to make this request, that he did not do so does not constitute a breach of the duty of fairness by the officer: Khwaja, above at para. 21.
[18] It is clear from the officer’s CAIPS notes that Khalid was not given an equal opportunity to respond to the officer’s concerns. During the course of his interview, the officer did not provide Khalid with a summary of his concerns similar to the one he provided to Omar. The officer questioned Khalid about the origin of his school certificate and birth certificate. From his line of questioning evident in the CAIPS notes, it was clear that he had concerns regarding the authenticity of the school certificate. It is not however clear that he had further concerns regarding Khalid’s birth certificate, after Khalid had explained why his uncle had obtained this document on his behalf. In addition, the origin of Khalid’s passport was not discussed, nor was its authenticity questioned by the officer. Despite this, when the letter and the CAIPS notes of the officer are taken together, it is clear that he relied on his concerns with respect to all three of Khalid’s documents in rejecting his application.
[19] By not putting his concerns to Khalid and by not giving Khalid a reasonable opportunity to respond, the officer breached his duty of fairness. The decision will therefore be set aside, and returned for reconsideration by a different officer.
2. Findings of Fact
[20] I find that the reasons of the officer, notwithstanding the above noted breach of procedural fairness, are not patently unreasonable when taken as a whole. That being said, I wish to highlight two findings of the officer that I do not believe to be reasonable when seen in isolation.
[21] First, the officer drew an adverse inference with respect to the fact that Omar and Khalid allegedly offered conflicting answers with respect to “their father’s visits”. The officer did not ask Khalid when his father’s last visit was; he asked where his father was, how long they had been separated and whether they were still in contact. Khalid responded that his father was in Saudi Arabia, that they had been separated since elementary school, and that they were still in contact. These answers imply that Khalid likely understood the question regarding separation to be asking when his father left the family home. The officer also asked Omar how long he had been separated from his father. Omar responded that his father “used to come for us but for one year we did not see him”. Omar’s answer indicates that he likely interpreted the question to be asking when he had last seen his father. The officer then stated to Omar that according to Khalid they had not seen their father for many years. Omar responded that it had been two years. The officer concluded on this basis that the brothers had made contradictory statements about their “father’s visits”. This was not a reasonable conclusion in the circumstances of the case. The officer also did not put his concern in this regard to Khalid.
[22] Second, it was patently unreasonable for the officer to draw an adverse inference based on the applicant’s age. There was no evidence on the record to substantiate this finding. There was no reason for the officer to infer that these were the only two children the applicant had had, nor was there any evidence that Sudanese mothers cease having children at a certain age.
[23] In the result, on the basis of a breach of procedural fairness, the application is granted. The decision of the officer is quashed, and the case will be sent back for redetermination by another officer.
[24] No serious questions of general importance were proposed and none will be certified.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application is granted. No questions are certified.
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5459-05
STYLE OF CAUSE: MAGDA AHMED ABDAL RAHIM
and
THE MINSITER OF CITIIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 12, 2006
APPEARANCES:
|
Randal Montgomery
|
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Margherita Braccio
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SOLICITORS OF RECORD:
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RANDAL MONTGOMERY Barrister & Solicitor Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |