El Sherbiny v. Canada (Minister of Citizenship and
Immigration)
Between
Tamer El Sherbiny, Applicant, and
Minister of Citizenship and Immigration, Respondent
Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 50
2013 FC 69
Docket IMM-4157-12
Federal Court
Montréal, Quebec
Martineau J.
Heard: January 16, 2013.
Judgment: January 24, 2013.
Docket IMM-4157-12
Federal Court
Montréal, Quebec
Martineau J.
Heard: January 16, 2013.
Judgment: January 24, 2013.
(16 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MARTINEAU J.:-- This is an application for
the judicial review of a decision of a visa officer [officer] of Citizenship
and Immigration Canada [CIC], dated March 11, 2012, which refused the
applicant's permanent resident visa application [application] under the Federal
Skilled Worker [FSW] class.
2 The
applicant, Mr. Tamer Mohamed Shawky Ahmad El Sherbiny, is a citizen of Egypt.
He submitted his application on November 23, 2009 under the FSW category as a
Specialist Physician (NOC code 3111). The application was assessed by the
officer in accordance with the selection criteria and point system stipulated
in the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations].
3 In
particular, under the "Adaptability" criteria, the applicant was not
awarded the 5 possible points for a family relationship in Canada, even though
the applicant had listed Mr. Ahmed Mohamed Shawky Ahmed Ibrahim El Sherbiny
[putative brother] as his brother and a permanent resident living in Canada.
4 According
to the Computer Assisted Immigration Processing System [CAIPS] notes, on March
8, 2012, the officer noted the following:
The passport pages,
whilst being issued two years [sic], appear to have been issued by the same person; as indicated by
the penmanship.
PI has a birth
certificate on file and there seems to be no reason to assume that his brother
does not have one, [or in other words, as reformulated by the Court:
"Applicant provided a birth certificate, but did not provide his brother's
birth certificate."]
I am not satisfied that
this represent [sic] evidence of
an eligible family relationship.
5 It
turns out that the officer awarded the applicant a total of 63 points. The
minimum number of points required by the Minister for the application to
succeed is 67. As a result, the application was refused by the officer. Had the
officer recognized the applicant's alleged family relationship to the putative
brother living in Canada, the applicant would have likely obtained the 5 extra
points he needed for his application to succeed.
6 On
one hand, an applicant bears the onus of providing adequate and sufficient
evidence in support of his application, which means that the immigration
officer is under no obligation to request further clarification from an
applicant if he or she finds there is not enough evidence initially submitted.
On the other hand, where there is a question related to the credibility,
accuracy, or genuineness of the information an applicant has submitted, then
the officer must give the applicant the opportunity to respond to the officer's
concerns, but the credibility issue must be determinative.
7 Considering
that the applicable standard of fairness is relatively low in the case of a
visa application, I am not satisfied, on a balance of probabilities, that there
has been a breach to procedural fairness. Moreover, the decision taken by the
officer is not unreasonable in the circumstances.
8 The
parties disagree on the interpretation to be given to the reasons found in the
CAIPS notes. When read as a whole, I find that the officer's decision of
whether or not to award the 5 points in question was based, on a balance of
probabilities, as to whether or not the applicant was related to the putative
brother, living in Canada as a permanent resident. In particular, I do not find
that the doubts expressed in the CAIPS notes, if any, with respect to the authenticity
of the applicant and the putative brother's passports is wholly determinative
of the matter. Otherwise, the officer would not have also spoken of the failure
to provide the brother's birth certificate. In my humble opinion, the officer
simply concluded that the applicant did not supply sufficient documentation to
establish that an eligible family relationship exists.
9 In
this instance, on December 2, 2009, CIC's Centralized Intake Office sent the
applicant a notice via email with information explaining how to submit a
completed application in addition to instructions pertaining to supporting
documents to be included with the application. I agree with the respondent that
the applicant was informed, at this point, of the importance of submitting full
actual documentation and was notified that his final eligibility would be
determined based on the documentation filed. The same email pointed the
applicant towards the website providing forms specific to the particular visa
office as well as a list of all supporting documents the visa office required (www.cic.fc.ca/english/information/applications/skilled-missio
n.asp).
10 In
the case at bar, I find that the officer has acted in accordance with the usual
and standard procedure in these types of cases. I do not accept any suggestion
made by applicant's counsel at the hearing that the officer should have
conducted an interview. The procedure referred to in the OP 6A manual in force
at the time is only a suggested guideline and the exercise of the officer's
discretion depends on a number of factors. Each situation must be considered on
its own. In this particular case, considering that the best proof of
relationship would be the filing of the birth certificate of the putative
brother instead of his passport, there was no legitimate expectation that an
interview was required.
11 In
particular, the respondent has drawn the Court's attention to the document
checklist available to the applicant and his immigration consultant on the
website at that time: Application for Permanent
Residence - Skilled Workers - Visa Office Specific Instructions - Cairo - IMM7011 E (10-2009). Section 5 of this checklist outlines the
documents necessary for "Proof of Relationship in Canada". It reads
as follows:
· 5. PROOF OF RELATIONSHIP IN CANADA (IF APPLICABLE)
Proof of relationship
to your close relative in Canada, such as birth, marriage or adoption
certificates.
If your close relative
is a permanent resident of Canada: photocopy of his or her Record of landing
(IMM 1000), Confirmation of Permanent Residence or Permanent resident
Card.
If your close relative
is a Canadian citizen: proof of Canadian citizenship, such as a photocopy of
pages of a Canadian passport or Canadian citizenship card.
12 In
the case at bar, documents included by the applicant in his application as
proof of relationship to the close relative in Canada were simply copies of his
passport and the putative brother's passport as well as the putative brother's
permanent resident card. The names on the passports only show that the
applicant and the putative brother apparently share the same family name (El
Sherbiny) and that the father apparently has the same first name as them
(Mohamed Shawky Ahmed), although the elements of the name are not necessarily
in the same order. Further corroboration and proof would be warranted in this
case. Unfortunately, the applicant did not provide a copy of the putative
brother's birth certificate.
13 It
was entirely within the officer's discretion to find the evidence submitted by
the applicant inconclusive. According to the applicant, it is a widely known
custom for Arabic individuals to carry their father's name within their own
name. Be that as it may, there is no evidence on record that such custom was
brought to the attention of the officer, and I cannot assume that the officer
was cognizant of same. Moreover, while both the applicant and respondent agree
that there is no legal requirement to submit a birth certificate, it is clear
from the instructions that this was the quality and type of proof that CIC
expected. The evaluation of the evidence rests with the officer. Courts should
not be ready to interfere unless it is shown that the officer has acted
arbitrarily in discarding relevant evidence or giving it very low weight.
14 As
the applicant contends, assessing penmanship was clearly out the officer's
specialized area of expertise, but I must agree with the respondent that the
officer did not dismiss the application on the grounds that the two passports
were unauthentic. Such a finding was never explicitly made by the officer,
although the officer may have entertained some doubts. If the officer had
concluded that the two passports were in fact not authentic, this would have
been clearly indicated in the CAIPS notes. Accordingly, there would have been
no reason for the officer to even process the application in the first place
and to award points to the applicant.
15 Moreover,
in final analysis, it cannot be concluded from the CAIPS notes that the officer
rejected the application exclusively due to concerns relating to the
authenticity of the passports submitted. Certainly, the applicant's omission to
file a copy of the putative brother's birth certificate, a very important
document to establish a family relationship, was a determinative factor. Thus,
the exercise of the officer's discretion is not unreasonable in the
circumstances, although this result may be unfortunate for the applicant who
will have to submit a new application.
16 For
these reasons, the application shall be dismissed. No serious questions of
general importance were raised by the parties and none shall be certified by
the Court.
JUDGMENT
THIS COURT'S JUDGMENT is that the application is dismissed. No question is certified.
MARTINEAU J.
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