I wrote this article published by Canadian Employment law Today on an interesting and unusual case that can change the dynamics of hiring foreign workers.
Canadian Employment Law Today Article - Foreign worker class action a warning to employers
Monday, April 30, 2012
TUBERCULOSIS AMONGST NEWCOMERS TO CANADA A DISTURBING TREND
See article in the link below. It has been known for some time that many newcomers, especially for the Indian subcontinent, test positive for TB. A solution to this problem needs to be found immediately before the matter becomes a greater concern tot the public.
C-Health
C-Health
Sunday, April 29, 2012
ABA SPRING MEETING 2012
Sergio R. Karas chaired a panel at the recent American Bar Association Section of International law Spring Meeting in new York on the topic " For better or worse: international issues in marriage and divorce". Shown in the photos from right to left: Sergio R. Karas (Canada), Jessica Sandberg ( Sweden), Graeme Kirk (UK), Gabrielle Buckley (USA), Jeremy Morley (USA) and David Starks (USA).
Friday, April 27, 2012
BIOMETRICS FOR PERMANENT RESIDENTS COMING SOON
A sensible idea to combat impersonation and to ensure compliance with the residency obligation. This is a serious problem. I know of cases in which people impersonated residents and even filed tax returns in their name, while the resident was abroad.
Feds to consider biometrics for permanent residents to combat fraud
Feds to consider biometrics for permanent residents to combat fraud
By Tobi Cohen, Postmedia News
April 26, 2012
OTTAWA — Immigration Minister Jason Kenney says he supports extending biometric ID requirements to permanent residents and would consider amending his current omnibus immigration bill to make it happen.
"I think in principle, we should be doing everything we reasonably can to identify visitors or immigrants and ensure they don't represent a threat to Canada's safety, so biometrics is the best technical tool at our disposal and I think in principle, that it should be applied to not just temporary but also permanent residents," Kenney said Thursday after testifying before a Commons committee reviewing Bill C-31, the Protecting Canada's Immigration Act.
After hinting at it during the meeting, he confirmed the government was "considering" amending the bill to ensure it covers permanent residents.
Right now, the provision that would grant Citizenship and Immigration the legal authority to collect fingerprints and digital photographs starting next year only applies to those entering Canada on a visitor visa, work permit or study visa.
Kenney was on the hot seat Thursday as Commons committee members grilled him on his controversial refugee bill for the first time.
Bill C-31 seeks to deport so-called "bogus" refugee claimants more quickly, clamp down on human smugglers and require certain visa holders to turn over biometric data. The bill would fast-track refugee applications from so-called "safe" countries deemed unlikely to produce bona fide asylum claimants and bar those who receive a negative decision from filing an appeal.
It's billed as an improvement to the Balanced Refugee Reform Act adopted during the previous Parliament but not yet implemented. That bill was approved with much fanfare after the then-minority Conservatives reached a consensus with the NDP. The new bill, however, effectively reintroduces the contentious elements that were omitted — a move that has the official Opposition New Democrats crying foul.
Critics also say the proposed legislation puts too much power in the hands of the minister and raised further concerns Thursday about a provision that could have the unintended consequence of revoking a refugee's permanent residence due to improved circumstances in their country of origin.
BEGIN OPTIONAL END
Kenney said the provision is actually aimed at "streamlining" the current two-step process for revoking the status of those found to have obtained their refugee status fraudulently and that he's open to amendments that might clarify the situation.
He also rejected suggestions that detaining individuals who enter Canada by way of illegal smuggling operations and barring even the bona fide refugees among them from obtaining permanent resident status for five years violates international agreements and creates a two-tier system.
Feds to consider biometrics for permanent residents to combat fraud
Feds to consider biometrics for permanent residents to combat fraud
By Tobi Cohen, Postmedia News
April 26, 2012
OTTAWA — Immigration Minister Jason Kenney says he supports extending biometric ID requirements to permanent residents and would consider amending his current omnibus immigration bill to make it happen.
"I think in principle, we should be doing everything we reasonably can to identify visitors or immigrants and ensure they don't represent a threat to Canada's safety, so biometrics is the best technical tool at our disposal and I think in principle, that it should be applied to not just temporary but also permanent residents," Kenney said Thursday after testifying before a Commons committee reviewing Bill C-31, the Protecting Canada's Immigration Act.
After hinting at it during the meeting, he confirmed the government was "considering" amending the bill to ensure it covers permanent residents.
Right now, the provision that would grant Citizenship and Immigration the legal authority to collect fingerprints and digital photographs starting next year only applies to those entering Canada on a visitor visa, work permit or study visa.
Kenney was on the hot seat Thursday as Commons committee members grilled him on his controversial refugee bill for the first time.
Bill C-31 seeks to deport so-called "bogus" refugee claimants more quickly, clamp down on human smugglers and require certain visa holders to turn over biometric data. The bill would fast-track refugee applications from so-called "safe" countries deemed unlikely to produce bona fide asylum claimants and bar those who receive a negative decision from filing an appeal.
It's billed as an improvement to the Balanced Refugee Reform Act adopted during the previous Parliament but not yet implemented. That bill was approved with much fanfare after the then-minority Conservatives reached a consensus with the NDP. The new bill, however, effectively reintroduces the contentious elements that were omitted — a move that has the official Opposition New Democrats crying foul.
Critics also say the proposed legislation puts too much power in the hands of the minister and raised further concerns Thursday about a provision that could have the unintended consequence of revoking a refugee's permanent residence due to improved circumstances in their country of origin.
BEGIN OPTIONAL END
Kenney said the provision is actually aimed at "streamlining" the current two-step process for revoking the status of those found to have obtained their refugee status fraudulently and that he's open to amendments that might clarify the situation.
He also rejected suggestions that detaining individuals who enter Canada by way of illegal smuggling operations and barring even the bona fide refugees among them from obtaining permanent resident status for five years violates international agreements and creates a two-tier system.
Labels:
Canada immigration,
residency,
visa fraud biometrics
Thursday, April 26, 2012
FRAUDULENT LANGUAGE TEST RESULTS IN MISREPRESENTATION FINDING
In the case below, an applicant whose consultant presented a fraudulent IELTS claimed not to have knowledge of the fact. the court rejected the argument and held that direct knowledge of the fraudulent document was not necessary to find a misrepresentation. Applicant lost on all grounds. Note the court's highlighted sections of its reasoning. This is a warning to all applicants.
Sayedi v. Canada (Minister of Citizenship and Immigration)
Between
Sayedabbas Sayedi, Farkhondeh Baghaei Abchouyeh, Sayed Amin
Sayedi Rash Khar, Mina Sayedi, Applicants, and
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 469
2012 FC 42
Docket IMM-3289-11
Federal Court
Montréal (Quebec)
Tremblay-Lamer J.
Heard: December 19, 2011.
Judgment: April 13, 2012.
(56 paras.)
_______________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application for judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) of a decision of an immigration counsellor dated March 14, 2011. The counsellor determined that the applicants are inadmissible pursuant to section 40(1)(a) of the Act, due to misrepresentation of a material fact in their application for permanent residence.
BACKGROUND FACTS
2 The applicants, Sayedabbas Sayedi, Farkhondeh Baghaei Abchouyeh, Sayed Amin Sayedi Rash Khar and Mina Sayedi, are a family from Iran. Dr. Sayedabbas Sayedi (the principal applicant) applied as a member of the federal skilled worker class and his family applied as accompanying family members. He is a cardiologist.
3 The principal applicant states that he hired Mr. Arash Rahmatian of Queen Consultants Corporation to assist in the preparation of his application in 2005. The consultant was not an authorized immigration consultant or lawyer. He prepared the application and translated it into English.
4 The principal applicant states that, unbeknownst to him, Mr. Rahmatian included an International English Language Testing System (IELTS) test result in his application that turned out to be fraudulent (the False Document). The principal applicant claims to have specifically asked Mr. Rahmatian about the requirement to take an IELTS test as part of his application, but was told that the test would not be required for another three to four years. The principal applicant wrote the IELTS examination on September 25, 2010. These results were assessed (although a note was later made in the CAIPS notes to disregard this assessment) by a visa officer on October 19, 2010.
5 The principal applicant claims to have signed the application where he was told, but that he was not given an opportunity to review it. He further claims that he was not given a copy of what was submitted by Mr. Rahmatian.
6 The application was received on December 15, 2005 at the Canadian Embassy in Tehran and appears to have been transferred to the Canadian Embassy in Damascus, Syria on January 3, 2006. The applicants heard nothing about their applications until they were notified on January 19, 2009 that the consultant they had retained was not an authorized representative.
7 On April 28, 2010, the application was transferred to the Canadian Embassy in Warsaw as part of backlog reduction. On July 21, 2010, Canadian officials contacted the applicants to request updated information, as the processing of their application was set to begin. The applicants responded with updated submissions on October 21, 2010, including IELTS test results for the principal applicant from 2010.
8 On October 26, 2010, immigration officials sent the principal applicant an email detailing their concerns with his application (the Fairness Letter). The Fairness Letter notified him that the official had been unable to verify the authenticity of the False Document and, as a result, was considering finding that he was inadmissible for misrepresentation pursuant to subsection 40(1)(a) of the Act. Another consultant the applicants had hired by that time responded on December 22, 2010, stating that the principal applicant was unaware of the False Document and had been the victim of a fraudulent immigration consultant, and asked that he not be penalized for the consultant's actions.
9 The immigration official rejected the explanation that the principal applicant was not aware of the False Document as not credible since the application clearly indicated that an English language test was required to be submitted with the application. The letter that was sent to the applicants erroneously stated the reason for the inadmissibility finding as an undisclosed refugee claim by the Principal Applicant's spouse, but this was later corrected in a letter dated April 8, 2011. After receiving the corrected refusal letter, the Principal Applicant requested a meeting with the counsellor to discuss his concerns, but this request was refused.
APPLICABLE LAW
10 Section 40(1)(a) of the Act states:
• 40.
(1) A permanent resident or a foreign national is inadmissible for misrepresentation
• (a)
for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
* * *
• 40.
(1) Emportent interdiction de territoire pour fausses déclarations les faits suivants :
• a)
directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d'entraîner une erreur dans l'application de la présente loi;
PRELIMINARY QUESTION
Can the Court consider the evidence submitted by the applicants that was not before the decision-maker?
11 The respondent submits that the applicants have filed evidence that was not before the counsellor in his decision. The respondent submits that the applicants are not entitled to adduce fresh evidence upon judicial review, except to resolve issues of procedural fairness or jurisdiction: Vong v Canada (Minister of Citizenship and Immigration), 2006 FC 1480 at paragraphs 35-36, 38; Alabadleh v Canada (Minister of Citizenship and Immigration), 2006 FC 716 at paragraph 6. The respondent submits that these exceptions do not apply in this case, and therefore the evidence should be struck from the application record. I agree and thus the Court will not rely on this additional evidence.
ISSUES
12 The issues in this application are:
• 1)
Was it reasonable for the counsellor to conclude that there was a misrepresentation?
• 2)
If so, was it reasonable for the counsellor to conclude that this misrepresentation was material?
• 3)
Does section 40(1)(a) require the applicants' knowledge of the misrepresentation?
STANDARD OF REVIEW
13 Misrepresentation is an issue of mixed fact and law and is therefore reviewable on the reasonableness standard: Karami v Canada (Minister of Citizenship and Immigration), 2009 FC 788, 349 FTR 96 at paragraph 14.
14 The questions of whether section 40(1)(a) includes a knowledge component is a question of law related to the interpretation of the officer's home statute and will thus also be reviewed on a reasonableness standard: Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at paragraphs 46 and 48:
• [46] At para. 22 of Canada (Canadian Human Rights Commission), LeBel and Cromwell JJ. state:
• On the other hand, our Court has reaffirmed that general questions of law that are both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise, must still be reviewed on a standard of correctness, in order to safeguard a basic consistency in the fundamental legal order of our country. [Emphasis added.]
• In other words, since Dunsmuir, for the correctness standard to apply, the question has to not only be one of central importance to the legal system but also outside the adjudicator's specialized area of expertise.
• [...]
• [48] The Commissioner's interpretation of s. 50(5) PIPA relates to the interpretation of his own statute, is within his expertise and does not raise issues of general legal importance or true jurisdiction. His decision that an inquiry does not automatically terminate as a result of his extending the 90-day period only after the expiry of that period is therefore reviewable on the reasonableness standard. (Emphasis added.)
ANALYSIS
Issue No.1 Was it reasonable for the counsellor to conclude that there was a misrepresentation?
15 The applicants submit that there was no misrepresentation, because the False Document was clearly not a test result. While the document mimics the appearance of an IELTS Test Report, it states that it is "just a domestic document". Thus, no reasonable person could conclude that it was an IELTS Test Report, and there is no misrepresentation.
16 The respondent submits that the False Document was clearly designed to mislead the immigration authorities to believe it was an IELTS Test Report. Thus, the respondent submits there clearly was a misrepresentation.
17 The Court agrees with the respondent that the False Document constitutes a misrepresentation: an examination of its physical appearance reveals that it is clearly designed to imitate the appearance of an IELTS Test Report. There is no other plausible purpose behind the submission of the False Document other than to mislead the immigration authorities into thinking that the file was complete and that the principal applicant had satisfied the language requirements. An official doing an initial completeness review of the file would not necessarily notice that it was fraudulent. I do not accept that any reasonable person would say that the purpose of this document was anything other than to mislead. It was thus wholly reasonable for the counsellor to conclude that it was intended to mislead the authorities to believe it to be an authentic test result.
Issue No. 2 Was it reasonable for the counsellor to conclude that the misrepresentation was material?
18 The applicants submit in the alternative that if there was a misrepresentation, it was not material. The applicants rely on the CIC Enforcement Manual ENF 2, Evaluating Inadmissibility, which states that a misrepresentation should only be considered material if it affects the process. Since only the most recent language test results are to be considered, the False Document could not have affected the process.
19 The applicants rely on Ali v Canada (Minister of Citizenship and Immigration), 2008 FC 166, in which the applicant committed a misrepresentation by submitting a fraudulent document, but the Court found the misrepresentation to be immaterial.
20 The applicants submit that this case is similar to Zaib v Canada (Minister of Citizenship and Immigration), 2010 FC 769, and Medel v Canada (Minister of Employment and Immigration), [1990] 2 FC 345 (CA): in those cases, the visa officer misinformed the applicants regarding the basis for the concerns about misrepresentation. The applicants assert that the officer misled them in the Fairness Letter, stating that they had submitted an unverifiable IELTS Test Report -- since the False Document was clearly not a test result, this was inaccurate information.
21 The applicants also submit that the officer erred by finding their response to the Fairness Letter implausible -- since their consultant was so unscrupulous as to falsify a language test result, it was unreasonable to conclude that the consultant would not also falsify the form on which the applicants are purported to have acknowledged submitting those results.
22 The respondent submits that the applicants' submissions on materiality are contrary to the wording of section 40(1)(a) of the Act -- when the False Document was submitted, it was the only evidence of the principal applicant's language proficiency. Had it not been submitted, the application would have been deemed incomplete and returned. Thus, the misrepresentation affected the process, and was material: Guan v Canada (Minister of Citizenship and Immigration), 2009 FC 274. I agree for the following reasons.
23 In determining whether a misrepresentation is material, regard must be had for the wording of the provision, and its underlying purpose.
24 Section 40(1)(a) is to be given a broad interpretation in order to promote its underlying purpose: Khan v Canada (Minister of Citizenship and Immigration), 2008 FC 512 at paragraph 25. The objective of this provision is to deter misrepresentation and maintain the integrity of the immigration process -- to accomplish this objective the onus is placed on the applicant to ensure the completeness and accuracy of his or her application. Section 40(1)(a) is broadly worded to encompass misrepresentations even if made by another party, without the knowledge of the applicant: Jiang v Canada (Minister of Citizenship and Immigration), 2011 FC 942, at paragraph 35; Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at paragraphs 55-56. The applicant cannot misrepresent or withhold any material facts that could induce an error in the administration of the Act.
25 In this case, the misrepresented fact was whether the principal applicant had passed an IELTS language test. There is no doubt this fact was material to his application -- federal skilled worker applicants must demonstrate language proficiency to be accepted. As soon as the False Document was submitted, it could have induced an error in the administration of the Act, because a decision-maker could have relied upon it to conclude that the principal applicant had demonstrated language proficiency.
26 I agree with the respondent that to be material, a misrepresentation need not be decisive or determinative. It will be material if it is important enough to affect the process. The False Document was thus clearly material because the application could not have been processed without it.
27 The fact that the misrepresentation was caught before the final assessment of the application does not assist the applicants. The materiality analysis is not limited to a particular point in time in the processing of the application -- the fact that the principal applicant had submitted more recent language test results does not render the earlier misrepresentation immaterial. Such a result would reflect a narrow understanding of materiality that is contrary to the wording and purpose of section 40(1)(a) of the Act. The False Document was submitted and it was material.
28 This case is distinguishable from Ali, above: there, the fraudulent document was irrelevant to the determination of the application. Here, language test results are clearly relevant to the application at issue. The decision in Zaib is also distinguishable: the officer in that case was mistakenly informed that a letter confirming the applicant's degree was forged -- further evidence proved that the degree itself was authentic. Here, the 'test' for which the False Document purports to provide results never occurred, and thus the reasoning from that case does not apply.
29 Therefore, I find that the visa officer was reasonable to conclude that the False Document constituted a material misrepresentation pursuant to section 40(1)(a) of the Act.
Issue No. 3 Does section 40(1)(a) require the applicants' knowledge of the misrepresentation?
30 The applicants suggest that in order to be found inadmissible pursuant to section 40(1)(a) of the Act, a party must have acted with subjective intent, i.e. knowledge of the misrepresentation.
31 The applicants cite the recent decision of Justice Hughes, in Osisanwo et al v Canada (Minister of Citizenship and Immigration), 2011 FC 1126 (Osisanwo), which considered this question. In Osisanwo, the applicant was found inadmissible under section 40(1)(a) by Citizenship and Immigration Canada (CIC) because she had listed her husband as the father of her two children, when in fact he was only the biological child of one. The couple had briefly separately almost 30 years prior, and during that separation the applicant had had a one-time affair with another man. The couple then reconciled and neither suspected that the husband was not the father of the child in question. This fact only came to light when an official at CIC ordered DNA testing. Despite the lack of knowledge on the part of the applicant, she was declared inadmissible for misrepresentation pursuant to section 40(1)(a).
32 In conducting the judicial review of this decision, Justice Hughes surveyed cases in which a misrepresentation finding was upheld, and noted that they all contained an element of mens rea, or subjective intent. He concluded that, because the applicants in the decision under review had no reason to believe they were misrepresenting a material fact, it was unreasonable to find them inadmissible for misrepresentation. He certified a question on the issue, but the respondent did not pursue an appeal.
33 I find that the decision in Osisanwo is not of assistance to the applicants in this case. That decision was dependent on a highly unusual set of facts, and cannot be relied upon for the general proposition that a misrepresentation must always require subjective knowledge. Rather, the general rule is that a misrepresentation can occur without the applicant's knowledge, as noted by Justice Russell in Jiang, above, at paragraph 35:
• [35] With respect to inadmissibility based on misrepresentation, this Court has already given section 40 a broad and robust interpretation. In Khan, above, Justice O'Keefe held that the wording of the Act must be respected and section 40 should be given the broad interpretation that its wording demands. He went on to hold that section 40 applies where an applicant adopts a misrepresentation but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40 applies to an applicant where the misrepresentation was made by another party to the application and the applicant had no knowledge of it. The Court stated that an initial reading of section 40 would not support this interpretation but that the section should be interpreted in this manner to prevent an absurd result. (Emphasis added.)
A few cases have carved out a narrow exception to this rule, but this will only apply for truly exceptional circumstances, where the applicant honestly and reasonably believed they were not misrepresenting a material fact.
34 In Osisanwo, Justice Hughes cites the decision of Justice Harrington in Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 378. In that case, the applicant was found inadmissible for misrepresentation because he had failed to disclose the existence of a child that the Board found he reasonably should have suspected was his own. (Notably, like the applicants in the case before me, this applicant was found to not be credible.) Justice Harrington considered certifying a question similar to that in Osisanwo, above, but concluded that the decision was unreasonable on other grounds.
35 The passage of Singh referred to by Justice Hughes contains an oft-cited portion of Justice O'Reilly's judgment in Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299:
• [15] Under s. 40(1)(a) of IRPA, a person is inadmissible to Canada if he or she "withholds material facts relating to a relevant matter that induces or could induce an error in the administration" of the Act. In general terms, an applicant for permanent residence has a "duty of candour" which requires disclosure of material facts. This duty extends to variations in his or her personal circumstances, including a change of marital status: Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299 (F.C.T.D.) (QL). Even an innocent failure to provide material information can result in a finding of inadmissibility; for example, an applicant who fails to include all of her children in her application may be inadmissible: Bickin v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.1495 (F.C.T.D.) (QL). An exception arises where applicants can show that they honestly and reasonably believed that they were not withholding material information: Medel v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 345, [1990] F.C.J. No. 318 (F.C.A.) (QL). (Emphasis added.)
36 Despite being frequently cited, the "exception" referred to in this passage has received limited application. Its originating case, Medel, above, involved an unusual set of facts: the applicant was being sponsored by her husband, but unbeknownst to her the husband withdrew his sponsorship. Canadian officials then misled the applicant by asking her to return the visa because they claimed it contained an error. They implied it would be returned to her, corrected. The applicant had English-speaking relatives inspect the visa and, after they assured her that nothing was wrong with it, she used it to enter Canada. The Immigration Appeal Board found her to be a person described in section 27(1)(e) of the former Immigration Act, 1976, SC 1976-77, c 52 [now RSC 1985, c I-2)], i.e. that she had been "granted landing... by reason of any fraudulent or improper means". This finding was set aside by the Federal Court of Appeal because the applicant had "reasonably believed" that she was not withholding information relevant to her admission.
37 When considered within its factual context, therefore, the exception in Medel is relatively narrow. As Justice MacKay noted while distinguishing the case before him in Mohammed v Canada (Minister of Citizenship & Immigration), [1997] 3 FC 299:
• 41 The present circumstances may also be distinguished from those in Medel on the basis that the information which the applicant failed to disclose was not information regarding which he was truly subjectively unaware. The applicant in the present case was not unaware that he was married. Nor was it information, as in Medel, the knowledge of which was beyond his control. This was not information which had been concealed from him or about which he had been misled by Embassy officials. The applicant's alleged ignorance regarding the requirement to report such a material change in his marital status and his inability to communicate this information to an immigration officer upon arrival does not, in my opinion, constitute "subjective unawareness" of the material information as contemplated in Medel. (Emphasis added)
Furthermore, I emphasize that a determinative factor in the Medel case was that the applicant had reasonably believed that she was not withholding information from Canadian authorities. In contrast, in the case before this Court the applicants did not act reasonably -- the principal applicant failed to review his application to ensure its accuracy.
38 It must be kept in mind that foreign nationals seeking to enter Canada have a duty of candour: Bodine v Canada (Minister of Citizenship and Immigration), 2008 FC 848, at paragraph 41; Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at paragraph 15. Section 16(1) of the Act reads that "[a] person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires."
39 As noted in Bodine (at paragraph 44):
• ...The purpose of section 40(1)(a) of the Act is to ensure that applicants provide complete, honest and truthful information in every manner when applying for entry into Canada (see De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 (F.C.T.D.), Khan v. Canada (Minister of Citizenship and Immigration), 2008 FC 512 (F.C.T.D.), Wang v. Canada (Minister of Citizenship and Immigration), 2005 FC 1059 (F.C.T.D.), aff'd on other grounds, 2006 FCA 345 (F.C.A.)). In some situations, even silence can be a misrepresentation (see Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299) and the present facts went well beyond mere silence.
40 In keeping with this duty of candour, there is, in my opinion, a duty for an applicant to make sure that when making an application, the documents are complete and accurate. It is too easy to later claim innocence and blame a third party when, as in the present case, the application form clearly stated that language results were to be attached, and the form was signed by the applicants. It is only in exceptional cases where an applicant can demonstrate that they honestly and reasonably believed that they were not withholding material information, where "the knowledge of which was beyond their control", that an applicant may be able to take advantage of an exception to the application of section 40(1)(a). This is not such a case.
41 The applicants allege that they had no knowledge of the misrepresentation and wish to exonerate themselves by blaming their immigration consultant. In essence, they submit that the fraudulence of their immigration consultant should serve as a defence to the application of section 40(1)(a).
42 In response to this submission, I adopt the argument of the respondents, that the decisions in Cao v Canada (Minister of Citizenship and Immigration), 2010 FC 450, and Haque v Canada (Minister of Citizenship and Immigration), 2011 FC 315, require that an applicant be held responsible for the contents of an application which he or she has signed.
43 Justice Mosley's comments at paragraph 16 of Haque, above, are instructive:
• [16] The applicant was in Bangladesh at the time the updated application was submitted. He admitted during the phone conversation on May 26th that he "could have signed the blank form for the consultant". The new form had further discrepancies. The applicant apparently chose to rely on the consultant to submit the required information without personally verifying that it was accurate.
The applicants in this case chose to rely on their consultant. The principal applicant acknowledges having signed his application. It would be contrary to the applicant's duty of candour to permit the applicant to rely now on his failure to review his own application. It was his responsibility to ensure his application was truthful and complete -- he was negligent in performing this duty.
44 Furthermore, in order for the applicants to rely on a 'defence' to the finding of misrepresentation, that defence must be grounded either in statute or common law. In my view, there is no such defence under the Act: the wording of section 40(1)(a) is broad enough to encompass misrepresentations made by another party, of which the applicant was unaware: Wang, above at paragraphs 55-56. Furthermore, in Haque v Canada (Minister of Citizenship and Immigration), 2011 FC 315, the Court held that the fact that an immigration consultant was to blame for the misrepresentation was no defence. As already discussed, the applicants cannot avail themselves of the exception for an innocent mistake.
45 I additionally do not find that there is any relevant defence under the common law. The applicants were entitled to procedural fairness, but that entitlement was minimal and it was satisfied in this case: the applicants received the Fairness Letter advising them of the officer's concerns about the False Document, and giving them 30 days to respond. The applicants' response to the Fairness Letter was a brief email from their new consultant, stating they were duped by their earlier consultant, and asking that they not be punished for his actions.
46 As demonstrated by the CAIPS notes, the officer considered this response, but found it not credible since the application form clearly stated that language results were attached and that form was signed by the applicants. The Court finds that it was reasonably open to the officer to reach this conclusion, faced with no more than the bald assertion by the applicants that they were duped. The applicants provided no supporting evidence of their claim to have been innocent in the misrepresentation, and the officer is not required to make further inquiries if the applicants' response to the Fairness Letter was deficient: Pan v Canada (Minister of Citizenship and Immigration), 2010 FC 838 at paragraph 28. As stated by Justice Crampton (as he then was), "To impose such an obligation on a visa officer would be akin to requiring a visa officer to give advance notice of a negative decision, an obligation that has been expressly rejected. (Ahmed v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 940 (QL); Sharma, above)" (ibid at paragraph 28). There is no further entitlement to now try again to prove that they were defrauded and therefore should not be found inadmissible.
47 The applicants seek to rely on the decision in Doe v Canada (Citizenship and Immigration), 2010 FC 284 at paragraph 28, for the proposition that the negligence of counsel (or in this case, fraudulence of a consultant) should not cause an applicant who has acted with care to suffer. However, as already discussed, the applicants in this case did not act with care -- they failed to take responsibility for the contents of their application, and review it before it was submitted. An applicant has to verify the accuracy and completeness of the required information before signing it. It is not sufficient to not exercise diligence and then plead ignorance when caught. Therefore, the applicants cannot rely on the reasoning from this case to claim a defence to the finding of misrepresentation.
48 Furthermore, it seems to me that when a consultant, like in the present case, provides information that does not coincide with the instructions provided with an application, an applicant should be alerted to the possibility that the consultant's advice may not be accurate and should inquire with officials before signing the application to make sure that what the consultant said was accurate.
49 The applicants submit that the visa officer had failed meet the duty of care required in the situation. They suggest that the False Document should have been immediately returned when it was received, because it was clearly a copy and not an original. The applicants' argument seems to be an attempt to separate the fraudulent aspect of the False Document from its other deficiencies -- i.e. that the visa officer should have first realized the False Document was a copy and not an original, and then, rather than inspect it any further, immediately return it to the applicants and ask for an original instead.
50 The concept of a duty of care does not apply in this context -- the applicants were subject to a duty of candour, which they did not satisfy. The initial screening officer was simply tasked with undertaking a "completeness" check of the application file. He owed no "duty of care" to the applicants.
51 The requirements of procedural fairness -- which did exist -- were in fact satisfied. When the visa officer later examined the False Document, he noted several problems with it (likely including the fact that it was evidently a copy), which led him to conclude it was fraudulent. The visa officer's obligation at that point was to advise the applicants that they were potentially inadmissible for misrepresentation. He discharged this obligation by sending the Fairness Letter and thus satisfied the requirements of procedural fairness.
52 The Court acknowledges that the problem of fraudulent immigration consultants is a serious one. However, this problem does not amount to a defence against the operation of section 40(1)(a). Furthermore, subject to the narrow exception discussed above, this Court has consistently found that an applicant can be inadmissible under section 40(1)(a) for misrepresentations made by another without the applicant's knowledge. There can thus clearly be no subjective intent or knowledge requirement to section 40: this would be contrary to the broad interpretation that the wording and purpose of the provision requires.
53 The application must therefore be dismissed.
Certified Question
54 The applicants have submitted the following question for the Court's certification:
• Is a foreign national inadmissible for misrepresenting a material fact if at the time of filing his/her application for permanent residence or at the time of granting permanent residence he/she had no knowledge of the material fact that constituted such misrepresentation?
55 The respondent submits that no question should be certified in this case as too many factual conclusions would have to be presumed in the applicants' favour. However, if the Court disagrees with its submissions on this point, the respondent submits that the following question should be certified:
• Where supporting documentation is submitted with a signed application form for permanent residence in Canada, but the applicant later states that he or she had no knowledge of the documentation submitted or part thereof, is the applicant still responsible for the veracity of all the supporting documentation for the purposes of the application of paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27, as amended?
56 In order for a question to be certified, it must arise from the case before the Court and raise a question of law of general importance that has not already been determined by the Federal Court: Hyunh v R, [1995] 1 FC 633, 88 FTR 60. Based on my reasoning above, I find that the answer to this question is already well-settled in this Court's jurisprudence and thus decline to certify the question.
JUDGMENT
• THIS COURT'S JUDGMENT is that:
• 1. This application for judicial review is dismissed; and
• 2.
No question of general importance is certified.
TREMBLAY-LAMER J.
Sayedi v. Canada (Minister of Citizenship and Immigration)
Between
Sayedabbas Sayedi, Farkhondeh Baghaei Abchouyeh, Sayed Amin
Sayedi Rash Khar, Mina Sayedi, Applicants, and
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 469
2012 FC 42
Docket IMM-3289-11
Federal Court
Montréal (Quebec)
Tremblay-Lamer J.
Heard: December 19, 2011.
Judgment: April 13, 2012.
(56 paras.)
_______________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application for judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) of a decision of an immigration counsellor dated March 14, 2011. The counsellor determined that the applicants are inadmissible pursuant to section 40(1)(a) of the Act, due to misrepresentation of a material fact in their application for permanent residence.
BACKGROUND FACTS
2 The applicants, Sayedabbas Sayedi, Farkhondeh Baghaei Abchouyeh, Sayed Amin Sayedi Rash Khar and Mina Sayedi, are a family from Iran. Dr. Sayedabbas Sayedi (the principal applicant) applied as a member of the federal skilled worker class and his family applied as accompanying family members. He is a cardiologist.
3 The principal applicant states that he hired Mr. Arash Rahmatian of Queen Consultants Corporation to assist in the preparation of his application in 2005. The consultant was not an authorized immigration consultant or lawyer. He prepared the application and translated it into English.
4 The principal applicant states that, unbeknownst to him, Mr. Rahmatian included an International English Language Testing System (IELTS) test result in his application that turned out to be fraudulent (the False Document). The principal applicant claims to have specifically asked Mr. Rahmatian about the requirement to take an IELTS test as part of his application, but was told that the test would not be required for another three to four years. The principal applicant wrote the IELTS examination on September 25, 2010. These results were assessed (although a note was later made in the CAIPS notes to disregard this assessment) by a visa officer on October 19, 2010.
5 The principal applicant claims to have signed the application where he was told, but that he was not given an opportunity to review it. He further claims that he was not given a copy of what was submitted by Mr. Rahmatian.
6 The application was received on December 15, 2005 at the Canadian Embassy in Tehran and appears to have been transferred to the Canadian Embassy in Damascus, Syria on January 3, 2006. The applicants heard nothing about their applications until they were notified on January 19, 2009 that the consultant they had retained was not an authorized representative.
7 On April 28, 2010, the application was transferred to the Canadian Embassy in Warsaw as part of backlog reduction. On July 21, 2010, Canadian officials contacted the applicants to request updated information, as the processing of their application was set to begin. The applicants responded with updated submissions on October 21, 2010, including IELTS test results for the principal applicant from 2010.
8 On October 26, 2010, immigration officials sent the principal applicant an email detailing their concerns with his application (the Fairness Letter). The Fairness Letter notified him that the official had been unable to verify the authenticity of the False Document and, as a result, was considering finding that he was inadmissible for misrepresentation pursuant to subsection 40(1)(a) of the Act. Another consultant the applicants had hired by that time responded on December 22, 2010, stating that the principal applicant was unaware of the False Document and had been the victim of a fraudulent immigration consultant, and asked that he not be penalized for the consultant's actions.
9 The immigration official rejected the explanation that the principal applicant was not aware of the False Document as not credible since the application clearly indicated that an English language test was required to be submitted with the application. The letter that was sent to the applicants erroneously stated the reason for the inadmissibility finding as an undisclosed refugee claim by the Principal Applicant's spouse, but this was later corrected in a letter dated April 8, 2011. After receiving the corrected refusal letter, the Principal Applicant requested a meeting with the counsellor to discuss his concerns, but this request was refused.
APPLICABLE LAW
10 Section 40(1)(a) of the Act states:
• 40.
(1) A permanent resident or a foreign national is inadmissible for misrepresentation
• (a)
for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
* * *
• 40.
(1) Emportent interdiction de territoire pour fausses déclarations les faits suivants :
• a)
directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d'entraîner une erreur dans l'application de la présente loi;
PRELIMINARY QUESTION
Can the Court consider the evidence submitted by the applicants that was not before the decision-maker?
11 The respondent submits that the applicants have filed evidence that was not before the counsellor in his decision. The respondent submits that the applicants are not entitled to adduce fresh evidence upon judicial review, except to resolve issues of procedural fairness or jurisdiction: Vong v Canada (Minister of Citizenship and Immigration), 2006 FC 1480 at paragraphs 35-36, 38; Alabadleh v Canada (Minister of Citizenship and Immigration), 2006 FC 716 at paragraph 6. The respondent submits that these exceptions do not apply in this case, and therefore the evidence should be struck from the application record. I agree and thus the Court will not rely on this additional evidence.
ISSUES
12 The issues in this application are:
• 1)
Was it reasonable for the counsellor to conclude that there was a misrepresentation?
• 2)
If so, was it reasonable for the counsellor to conclude that this misrepresentation was material?
• 3)
Does section 40(1)(a) require the applicants' knowledge of the misrepresentation?
STANDARD OF REVIEW
13 Misrepresentation is an issue of mixed fact and law and is therefore reviewable on the reasonableness standard: Karami v Canada (Minister of Citizenship and Immigration), 2009 FC 788, 349 FTR 96 at paragraph 14.
14 The questions of whether section 40(1)(a) includes a knowledge component is a question of law related to the interpretation of the officer's home statute and will thus also be reviewed on a reasonableness standard: Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at paragraphs 46 and 48:
• [46] At para. 22 of Canada (Canadian Human Rights Commission), LeBel and Cromwell JJ. state:
• On the other hand, our Court has reaffirmed that general questions of law that are both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise, must still be reviewed on a standard of correctness, in order to safeguard a basic consistency in the fundamental legal order of our country. [Emphasis added.]
• In other words, since Dunsmuir, for the correctness standard to apply, the question has to not only be one of central importance to the legal system but also outside the adjudicator's specialized area of expertise.
• [...]
• [48] The Commissioner's interpretation of s. 50(5) PIPA relates to the interpretation of his own statute, is within his expertise and does not raise issues of general legal importance or true jurisdiction. His decision that an inquiry does not automatically terminate as a result of his extending the 90-day period only after the expiry of that period is therefore reviewable on the reasonableness standard. (Emphasis added.)
ANALYSIS
Issue No.1 Was it reasonable for the counsellor to conclude that there was a misrepresentation?
15 The applicants submit that there was no misrepresentation, because the False Document was clearly not a test result. While the document mimics the appearance of an IELTS Test Report, it states that it is "just a domestic document". Thus, no reasonable person could conclude that it was an IELTS Test Report, and there is no misrepresentation.
16 The respondent submits that the False Document was clearly designed to mislead the immigration authorities to believe it was an IELTS Test Report. Thus, the respondent submits there clearly was a misrepresentation.
17 The Court agrees with the respondent that the False Document constitutes a misrepresentation: an examination of its physical appearance reveals that it is clearly designed to imitate the appearance of an IELTS Test Report. There is no other plausible purpose behind the submission of the False Document other than to mislead the immigration authorities into thinking that the file was complete and that the principal applicant had satisfied the language requirements. An official doing an initial completeness review of the file would not necessarily notice that it was fraudulent. I do not accept that any reasonable person would say that the purpose of this document was anything other than to mislead. It was thus wholly reasonable for the counsellor to conclude that it was intended to mislead the authorities to believe it to be an authentic test result.
Issue No. 2 Was it reasonable for the counsellor to conclude that the misrepresentation was material?
18 The applicants submit in the alternative that if there was a misrepresentation, it was not material. The applicants rely on the CIC Enforcement Manual ENF 2, Evaluating Inadmissibility, which states that a misrepresentation should only be considered material if it affects the process. Since only the most recent language test results are to be considered, the False Document could not have affected the process.
19 The applicants rely on Ali v Canada (Minister of Citizenship and Immigration), 2008 FC 166, in which the applicant committed a misrepresentation by submitting a fraudulent document, but the Court found the misrepresentation to be immaterial.
20 The applicants submit that this case is similar to Zaib v Canada (Minister of Citizenship and Immigration), 2010 FC 769, and Medel v Canada (Minister of Employment and Immigration), [1990] 2 FC 345 (CA): in those cases, the visa officer misinformed the applicants regarding the basis for the concerns about misrepresentation. The applicants assert that the officer misled them in the Fairness Letter, stating that they had submitted an unverifiable IELTS Test Report -- since the False Document was clearly not a test result, this was inaccurate information.
21 The applicants also submit that the officer erred by finding their response to the Fairness Letter implausible -- since their consultant was so unscrupulous as to falsify a language test result, it was unreasonable to conclude that the consultant would not also falsify the form on which the applicants are purported to have acknowledged submitting those results.
22 The respondent submits that the applicants' submissions on materiality are contrary to the wording of section 40(1)(a) of the Act -- when the False Document was submitted, it was the only evidence of the principal applicant's language proficiency. Had it not been submitted, the application would have been deemed incomplete and returned. Thus, the misrepresentation affected the process, and was material: Guan v Canada (Minister of Citizenship and Immigration), 2009 FC 274. I agree for the following reasons.
23 In determining whether a misrepresentation is material, regard must be had for the wording of the provision, and its underlying purpose.
24 Section 40(1)(a) is to be given a broad interpretation in order to promote its underlying purpose: Khan v Canada (Minister of Citizenship and Immigration), 2008 FC 512 at paragraph 25. The objective of this provision is to deter misrepresentation and maintain the integrity of the immigration process -- to accomplish this objective the onus is placed on the applicant to ensure the completeness and accuracy of his or her application. Section 40(1)(a) is broadly worded to encompass misrepresentations even if made by another party, without the knowledge of the applicant: Jiang v Canada (Minister of Citizenship and Immigration), 2011 FC 942, at paragraph 35; Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at paragraphs 55-56. The applicant cannot misrepresent or withhold any material facts that could induce an error in the administration of the Act.
25 In this case, the misrepresented fact was whether the principal applicant had passed an IELTS language test. There is no doubt this fact was material to his application -- federal skilled worker applicants must demonstrate language proficiency to be accepted. As soon as the False Document was submitted, it could have induced an error in the administration of the Act, because a decision-maker could have relied upon it to conclude that the principal applicant had demonstrated language proficiency.
26 I agree with the respondent that to be material, a misrepresentation need not be decisive or determinative. It will be material if it is important enough to affect the process. The False Document was thus clearly material because the application could not have been processed without it.
27 The fact that the misrepresentation was caught before the final assessment of the application does not assist the applicants. The materiality analysis is not limited to a particular point in time in the processing of the application -- the fact that the principal applicant had submitted more recent language test results does not render the earlier misrepresentation immaterial. Such a result would reflect a narrow understanding of materiality that is contrary to the wording and purpose of section 40(1)(a) of the Act. The False Document was submitted and it was material.
28 This case is distinguishable from Ali, above: there, the fraudulent document was irrelevant to the determination of the application. Here, language test results are clearly relevant to the application at issue. The decision in Zaib is also distinguishable: the officer in that case was mistakenly informed that a letter confirming the applicant's degree was forged -- further evidence proved that the degree itself was authentic. Here, the 'test' for which the False Document purports to provide results never occurred, and thus the reasoning from that case does not apply.
29 Therefore, I find that the visa officer was reasonable to conclude that the False Document constituted a material misrepresentation pursuant to section 40(1)(a) of the Act.
Issue No. 3 Does section 40(1)(a) require the applicants' knowledge of the misrepresentation?
30 The applicants suggest that in order to be found inadmissible pursuant to section 40(1)(a) of the Act, a party must have acted with subjective intent, i.e. knowledge of the misrepresentation.
31 The applicants cite the recent decision of Justice Hughes, in Osisanwo et al v Canada (Minister of Citizenship and Immigration), 2011 FC 1126 (Osisanwo), which considered this question. In Osisanwo, the applicant was found inadmissible under section 40(1)(a) by Citizenship and Immigration Canada (CIC) because she had listed her husband as the father of her two children, when in fact he was only the biological child of one. The couple had briefly separately almost 30 years prior, and during that separation the applicant had had a one-time affair with another man. The couple then reconciled and neither suspected that the husband was not the father of the child in question. This fact only came to light when an official at CIC ordered DNA testing. Despite the lack of knowledge on the part of the applicant, she was declared inadmissible for misrepresentation pursuant to section 40(1)(a).
32 In conducting the judicial review of this decision, Justice Hughes surveyed cases in which a misrepresentation finding was upheld, and noted that they all contained an element of mens rea, or subjective intent. He concluded that, because the applicants in the decision under review had no reason to believe they were misrepresenting a material fact, it was unreasonable to find them inadmissible for misrepresentation. He certified a question on the issue, but the respondent did not pursue an appeal.
33 I find that the decision in Osisanwo is not of assistance to the applicants in this case. That decision was dependent on a highly unusual set of facts, and cannot be relied upon for the general proposition that a misrepresentation must always require subjective knowledge. Rather, the general rule is that a misrepresentation can occur without the applicant's knowledge, as noted by Justice Russell in Jiang, above, at paragraph 35:
• [35] With respect to inadmissibility based on misrepresentation, this Court has already given section 40 a broad and robust interpretation. In Khan, above, Justice O'Keefe held that the wording of the Act must be respected and section 40 should be given the broad interpretation that its wording demands. He went on to hold that section 40 applies where an applicant adopts a misrepresentation but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40 applies to an applicant where the misrepresentation was made by another party to the application and the applicant had no knowledge of it. The Court stated that an initial reading of section 40 would not support this interpretation but that the section should be interpreted in this manner to prevent an absurd result. (Emphasis added.)
A few cases have carved out a narrow exception to this rule, but this will only apply for truly exceptional circumstances, where the applicant honestly and reasonably believed they were not misrepresenting a material fact.
34 In Osisanwo, Justice Hughes cites the decision of Justice Harrington in Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 378. In that case, the applicant was found inadmissible for misrepresentation because he had failed to disclose the existence of a child that the Board found he reasonably should have suspected was his own. (Notably, like the applicants in the case before me, this applicant was found to not be credible.) Justice Harrington considered certifying a question similar to that in Osisanwo, above, but concluded that the decision was unreasonable on other grounds.
35 The passage of Singh referred to by Justice Hughes contains an oft-cited portion of Justice O'Reilly's judgment in Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299:
• [15] Under s. 40(1)(a) of IRPA, a person is inadmissible to Canada if he or she "withholds material facts relating to a relevant matter that induces or could induce an error in the administration" of the Act. In general terms, an applicant for permanent residence has a "duty of candour" which requires disclosure of material facts. This duty extends to variations in his or her personal circumstances, including a change of marital status: Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299 (F.C.T.D.) (QL). Even an innocent failure to provide material information can result in a finding of inadmissibility; for example, an applicant who fails to include all of her children in her application may be inadmissible: Bickin v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.1495 (F.C.T.D.) (QL). An exception arises where applicants can show that they honestly and reasonably believed that they were not withholding material information: Medel v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 345, [1990] F.C.J. No. 318 (F.C.A.) (QL). (Emphasis added.)
36 Despite being frequently cited, the "exception" referred to in this passage has received limited application. Its originating case, Medel, above, involved an unusual set of facts: the applicant was being sponsored by her husband, but unbeknownst to her the husband withdrew his sponsorship. Canadian officials then misled the applicant by asking her to return the visa because they claimed it contained an error. They implied it would be returned to her, corrected. The applicant had English-speaking relatives inspect the visa and, after they assured her that nothing was wrong with it, she used it to enter Canada. The Immigration Appeal Board found her to be a person described in section 27(1)(e) of the former Immigration Act, 1976, SC 1976-77, c 52 [now RSC 1985, c I-2)], i.e. that she had been "granted landing... by reason of any fraudulent or improper means". This finding was set aside by the Federal Court of Appeal because the applicant had "reasonably believed" that she was not withholding information relevant to her admission.
37 When considered within its factual context, therefore, the exception in Medel is relatively narrow. As Justice MacKay noted while distinguishing the case before him in Mohammed v Canada (Minister of Citizenship & Immigration), [1997] 3 FC 299:
• 41 The present circumstances may also be distinguished from those in Medel on the basis that the information which the applicant failed to disclose was not information regarding which he was truly subjectively unaware. The applicant in the present case was not unaware that he was married. Nor was it information, as in Medel, the knowledge of which was beyond his control. This was not information which had been concealed from him or about which he had been misled by Embassy officials. The applicant's alleged ignorance regarding the requirement to report such a material change in his marital status and his inability to communicate this information to an immigration officer upon arrival does not, in my opinion, constitute "subjective unawareness" of the material information as contemplated in Medel. (Emphasis added)
Furthermore, I emphasize that a determinative factor in the Medel case was that the applicant had reasonably believed that she was not withholding information from Canadian authorities. In contrast, in the case before this Court the applicants did not act reasonably -- the principal applicant failed to review his application to ensure its accuracy.
38 It must be kept in mind that foreign nationals seeking to enter Canada have a duty of candour: Bodine v Canada (Minister of Citizenship and Immigration), 2008 FC 848, at paragraph 41; Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at paragraph 15. Section 16(1) of the Act reads that "[a] person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires."
39 As noted in Bodine (at paragraph 44):
• ...The purpose of section 40(1)(a) of the Act is to ensure that applicants provide complete, honest and truthful information in every manner when applying for entry into Canada (see De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 (F.C.T.D.), Khan v. Canada (Minister of Citizenship and Immigration), 2008 FC 512 (F.C.T.D.), Wang v. Canada (Minister of Citizenship and Immigration), 2005 FC 1059 (F.C.T.D.), aff'd on other grounds, 2006 FCA 345 (F.C.A.)). In some situations, even silence can be a misrepresentation (see Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299) and the present facts went well beyond mere silence.
40 In keeping with this duty of candour, there is, in my opinion, a duty for an applicant to make sure that when making an application, the documents are complete and accurate. It is too easy to later claim innocence and blame a third party when, as in the present case, the application form clearly stated that language results were to be attached, and the form was signed by the applicants. It is only in exceptional cases where an applicant can demonstrate that they honestly and reasonably believed that they were not withholding material information, where "the knowledge of which was beyond their control", that an applicant may be able to take advantage of an exception to the application of section 40(1)(a). This is not such a case.
41 The applicants allege that they had no knowledge of the misrepresentation and wish to exonerate themselves by blaming their immigration consultant. In essence, they submit that the fraudulence of their immigration consultant should serve as a defence to the application of section 40(1)(a).
42 In response to this submission, I adopt the argument of the respondents, that the decisions in Cao v Canada (Minister of Citizenship and Immigration), 2010 FC 450, and Haque v Canada (Minister of Citizenship and Immigration), 2011 FC 315, require that an applicant be held responsible for the contents of an application which he or she has signed.
43 Justice Mosley's comments at paragraph 16 of Haque, above, are instructive:
• [16] The applicant was in Bangladesh at the time the updated application was submitted. He admitted during the phone conversation on May 26th that he "could have signed the blank form for the consultant". The new form had further discrepancies. The applicant apparently chose to rely on the consultant to submit the required information without personally verifying that it was accurate.
The applicants in this case chose to rely on their consultant. The principal applicant acknowledges having signed his application. It would be contrary to the applicant's duty of candour to permit the applicant to rely now on his failure to review his own application. It was his responsibility to ensure his application was truthful and complete -- he was negligent in performing this duty.
44 Furthermore, in order for the applicants to rely on a 'defence' to the finding of misrepresentation, that defence must be grounded either in statute or common law. In my view, there is no such defence under the Act: the wording of section 40(1)(a) is broad enough to encompass misrepresentations made by another party, of which the applicant was unaware: Wang, above at paragraphs 55-56. Furthermore, in Haque v Canada (Minister of Citizenship and Immigration), 2011 FC 315, the Court held that the fact that an immigration consultant was to blame for the misrepresentation was no defence. As already discussed, the applicants cannot avail themselves of the exception for an innocent mistake.
45 I additionally do not find that there is any relevant defence under the common law. The applicants were entitled to procedural fairness, but that entitlement was minimal and it was satisfied in this case: the applicants received the Fairness Letter advising them of the officer's concerns about the False Document, and giving them 30 days to respond. The applicants' response to the Fairness Letter was a brief email from their new consultant, stating they were duped by their earlier consultant, and asking that they not be punished for his actions.
46 As demonstrated by the CAIPS notes, the officer considered this response, but found it not credible since the application form clearly stated that language results were attached and that form was signed by the applicants. The Court finds that it was reasonably open to the officer to reach this conclusion, faced with no more than the bald assertion by the applicants that they were duped. The applicants provided no supporting evidence of their claim to have been innocent in the misrepresentation, and the officer is not required to make further inquiries if the applicants' response to the Fairness Letter was deficient: Pan v Canada (Minister of Citizenship and Immigration), 2010 FC 838 at paragraph 28. As stated by Justice Crampton (as he then was), "To impose such an obligation on a visa officer would be akin to requiring a visa officer to give advance notice of a negative decision, an obligation that has been expressly rejected. (Ahmed v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 940 (QL); Sharma, above)" (ibid at paragraph 28). There is no further entitlement to now try again to prove that they were defrauded and therefore should not be found inadmissible.
47 The applicants seek to rely on the decision in Doe v Canada (Citizenship and Immigration), 2010 FC 284 at paragraph 28, for the proposition that the negligence of counsel (or in this case, fraudulence of a consultant) should not cause an applicant who has acted with care to suffer. However, as already discussed, the applicants in this case did not act with care -- they failed to take responsibility for the contents of their application, and review it before it was submitted. An applicant has to verify the accuracy and completeness of the required information before signing it. It is not sufficient to not exercise diligence and then plead ignorance when caught. Therefore, the applicants cannot rely on the reasoning from this case to claim a defence to the finding of misrepresentation.
48 Furthermore, it seems to me that when a consultant, like in the present case, provides information that does not coincide with the instructions provided with an application, an applicant should be alerted to the possibility that the consultant's advice may not be accurate and should inquire with officials before signing the application to make sure that what the consultant said was accurate.
49 The applicants submit that the visa officer had failed meet the duty of care required in the situation. They suggest that the False Document should have been immediately returned when it was received, because it was clearly a copy and not an original. The applicants' argument seems to be an attempt to separate the fraudulent aspect of the False Document from its other deficiencies -- i.e. that the visa officer should have first realized the False Document was a copy and not an original, and then, rather than inspect it any further, immediately return it to the applicants and ask for an original instead.
50 The concept of a duty of care does not apply in this context -- the applicants were subject to a duty of candour, which they did not satisfy. The initial screening officer was simply tasked with undertaking a "completeness" check of the application file. He owed no "duty of care" to the applicants.
51 The requirements of procedural fairness -- which did exist -- were in fact satisfied. When the visa officer later examined the False Document, he noted several problems with it (likely including the fact that it was evidently a copy), which led him to conclude it was fraudulent. The visa officer's obligation at that point was to advise the applicants that they were potentially inadmissible for misrepresentation. He discharged this obligation by sending the Fairness Letter and thus satisfied the requirements of procedural fairness.
52 The Court acknowledges that the problem of fraudulent immigration consultants is a serious one. However, this problem does not amount to a defence against the operation of section 40(1)(a). Furthermore, subject to the narrow exception discussed above, this Court has consistently found that an applicant can be inadmissible under section 40(1)(a) for misrepresentations made by another without the applicant's knowledge. There can thus clearly be no subjective intent or knowledge requirement to section 40: this would be contrary to the broad interpretation that the wording and purpose of the provision requires.
53 The application must therefore be dismissed.
Certified Question
54 The applicants have submitted the following question for the Court's certification:
• Is a foreign national inadmissible for misrepresenting a material fact if at the time of filing his/her application for permanent residence or at the time of granting permanent residence he/she had no knowledge of the material fact that constituted such misrepresentation?
55 The respondent submits that no question should be certified in this case as too many factual conclusions would have to be presumed in the applicants' favour. However, if the Court disagrees with its submissions on this point, the respondent submits that the following question should be certified:
• Where supporting documentation is submitted with a signed application form for permanent residence in Canada, but the applicant later states that he or she had no knowledge of the documentation submitted or part thereof, is the applicant still responsible for the veracity of all the supporting documentation for the purposes of the application of paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27, as amended?
56 In order for a question to be certified, it must arise from the case before the Court and raise a question of law of general importance that has not already been determined by the Federal Court: Hyunh v R, [1995] 1 FC 633, 88 FTR 60. Based on my reasoning above, I find that the answer to this question is already well-settled in this Court's jurisprudence and thus decline to certify the question.
JUDGMENT
• THIS COURT'S JUDGMENT is that:
• 1. This application for judicial review is dismissed; and
• 2.
No question of general importance is certified.
TREMBLAY-LAMER J.
REFORM OF INTERIM FEDERAL HEALTH PROGRAM TO END EXTRA COVERAGE TO REFUGEES
A sensible measure to ensure that non-residents do not get better coverage than residents, an anomaly that resulted in paradoxical inequality and some people taking advantage of the system to get costly procedures.
Reform of the Interim Federal Health Program Ensures Fairness, Protects Public Health and Safety - MarketWatch
Reform of the Interim Federal Health Program Ensures Fairness, Protects Public Health and Safety - MarketWatch
Wednesday, April 25, 2012
QUOTED IN TODAY'S NATIONAL POST ON SERBIAN ALLEGED SPY CASE
I an quoted in today's National Post story:
Serbian barred from Canada over alleged Soviet-era espionage | News | National Post
Serbian barred from Canada over alleged Soviet-era espionage
Sarah Boesveld Apr 24, 2012 – 11:16 PM ET | Last Updated: Apr 24, 2012 11:18 PM ET
A Serbian man has been barred from entering Canada on suspicion that he belongs to a secret police service in the former Yugoslavia that spied on Western governments and institutions during the Communist era.
In a case that casts an unusually wide net, setting a precedent to keep anyone with even remote links to suspicious groups from entering the country, the Federal Court of Canada denied permanent residency to Zoran Vukic who worked as a communications attaché for the Embassy of the Federal Republic of Yugoslavia (now Serbia and Montenegro) in Ottawa between 1998 and 2002.
Mr. Vukic, whose job it was to receive and transmit secret communications between the embassy and the Ministry of Foreign Affairs in Belgrade, has since returned to Serbia. But his wife Zorica, who was also deemed inadmissible to Canada, remains in Ottawa on a temporary resident work permit and challenged the government on its decision late last month.
She and her husband were both refused permanent residency because a visa officer decided there were “reasonable grounds” to believe Mr. Vukic was inadmissible because he “is or was” a member of an “organization engaged in espionage,” Madam Justice Anne Mactavish ruled on March 29.
The organization in question, Sluzba za istrazavanje dokumentacije (SID), is accused of spying on Western governments and establishments during the Communist era and participating in the deaths of enemies of the state and nationals within Yugoslavia and beyond.
Mr. Vukic said his job with the Ministry of Foreign Affairs was to transmit encrypted messages between their government office and the Embassy in Ottawa.
That correspondence was often sent by diplomatic bag or courier; that was co-ordinated by a different embassy official, court documents said.
‘It’s also noteworthy that the interpretation of who is a member is fairly wide as well’
He was first interviewed at the Canadian embassy in Belgrade in August 2005 about his family’s application for permanent residence in Canada. In December of that year, the family was told the visa section in Vienna had new information about them that needed further probing. Mr. Vukic was interviewed again in March 2006.
Mrs. Vukic was told by letter in May 2007 that there were “reasonable grounds to believe” Mr. Vukic was inadmissible to Canada under section 34 of the Immigration and Refugee Protection Act, which states foreign nationals cannot be accepted into Canada on security grounds for engaging in an act of espionage or an act of subversion against a government, or for being a member of an organization that there are reasonable grounds to believe engages in such acts.
The Vukics provided the visa officer with more information, including documents relating to Mr. Vukic’s employment. The officer reviewed them and still decided there were reasonable grounds to deny them residency, mostly because Mr. Vukic couldn’t prove it was impossible to work for both the SID and the Ministry of Foreign Affairs at the same time.
In fact, in an interview with the visa office in February 2011, he “appears to acknowledge the possibility that one could work for both the SID and the Ministry of Foreign Affairs at the same time,” the court documents said.
Ms. Vukic alleged she and her husband had been treated unfairly by the visa officer, a claim Judge Mactavish said she was “not persuaded” by.
Toronto immigration lawyer Sergio Karas, who is not involved in the case, said inadmissibility based on membership in an organization accused of espionage is fairly rare.
“The court interpreted the scope of this particular section of the legislation pretty widely and accorded the visa officer great deference in his conclusions that the person was in fact a member of this organization,” he said.
“It’s also noteworthy that the interpretation of who is a member is fairly wide as well.”
The case is also not as obvious as that of ex-KGB officer Mikhail Lennikov, who worked mostly as a Japanese translator with the Russian national security agency for six years until he quit in 1988. He has sought sanctuary at a Vancouver church for more than three years.
National Post
Serbian barred from Canada over alleged Soviet-era espionage | News | National Post
Serbian barred from Canada over alleged Soviet-era espionage
Sarah Boesveld Apr 24, 2012 – 11:16 PM ET | Last Updated: Apr 24, 2012 11:18 PM ET
A Serbian man has been barred from entering Canada on suspicion that he belongs to a secret police service in the former Yugoslavia that spied on Western governments and institutions during the Communist era.
In a case that casts an unusually wide net, setting a precedent to keep anyone with even remote links to suspicious groups from entering the country, the Federal Court of Canada denied permanent residency to Zoran Vukic who worked as a communications attaché for the Embassy of the Federal Republic of Yugoslavia (now Serbia and Montenegro) in Ottawa between 1998 and 2002.
Mr. Vukic, whose job it was to receive and transmit secret communications between the embassy and the Ministry of Foreign Affairs in Belgrade, has since returned to Serbia. But his wife Zorica, who was also deemed inadmissible to Canada, remains in Ottawa on a temporary resident work permit and challenged the government on its decision late last month.
She and her husband were both refused permanent residency because a visa officer decided there were “reasonable grounds” to believe Mr. Vukic was inadmissible because he “is or was” a member of an “organization engaged in espionage,” Madam Justice Anne Mactavish ruled on March 29.
The organization in question, Sluzba za istrazavanje dokumentacije (SID), is accused of spying on Western governments and establishments during the Communist era and participating in the deaths of enemies of the state and nationals within Yugoslavia and beyond.
Mr. Vukic said his job with the Ministry of Foreign Affairs was to transmit encrypted messages between their government office and the Embassy in Ottawa.
That correspondence was often sent by diplomatic bag or courier; that was co-ordinated by a different embassy official, court documents said.
‘It’s also noteworthy that the interpretation of who is a member is fairly wide as well’
He was first interviewed at the Canadian embassy in Belgrade in August 2005 about his family’s application for permanent residence in Canada. In December of that year, the family was told the visa section in Vienna had new information about them that needed further probing. Mr. Vukic was interviewed again in March 2006.
Mrs. Vukic was told by letter in May 2007 that there were “reasonable grounds to believe” Mr. Vukic was inadmissible to Canada under section 34 of the Immigration and Refugee Protection Act, which states foreign nationals cannot be accepted into Canada on security grounds for engaging in an act of espionage or an act of subversion against a government, or for being a member of an organization that there are reasonable grounds to believe engages in such acts.
The Vukics provided the visa officer with more information, including documents relating to Mr. Vukic’s employment. The officer reviewed them and still decided there were reasonable grounds to deny them residency, mostly because Mr. Vukic couldn’t prove it was impossible to work for both the SID and the Ministry of Foreign Affairs at the same time.
In fact, in an interview with the visa office in February 2011, he “appears to acknowledge the possibility that one could work for both the SID and the Ministry of Foreign Affairs at the same time,” the court documents said.
Ms. Vukic alleged she and her husband had been treated unfairly by the visa officer, a claim Judge Mactavish said she was “not persuaded” by.
Toronto immigration lawyer Sergio Karas, who is not involved in the case, said inadmissibility based on membership in an organization accused of espionage is fairly rare.
“The court interpreted the scope of this particular section of the legislation pretty widely and accorded the visa officer great deference in his conclusions that the person was in fact a member of this organization,” he said.
“It’s also noteworthy that the interpretation of who is a member is fairly wide as well.”
The case is also not as obvious as that of ex-KGB officer Mikhail Lennikov, who worked mostly as a Japanese translator with the Russian national security agency for six years until he quit in 1988. He has sought sanctuary at a Vancouver church for more than three years.
National Post
Labels:
Canada immigration,
espionage,
inadmissibility,
inadmissible groups,
reisdency,
Serbia,
Sergio Karas
Tuesday, April 24, 2012
BUREAUCRATIC ERROR, CONFUSSION IN REASONS, REPRIEVE FOR CITIZENSHIP APPLICANT
The strange case of two different sets of reasons in the refusal of a citizenship application highlights the administrative confusion and results in a new hearing before a different Citizenship judge.
Haddad v. Canada (Minister of Citizenship and Immigration)
Between
Michael Haddad, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 430
2012 FC 361
Docket T-1067-11
Federal Court
Toronto, Ontario
Near J.
Heard: February 21, 2012.
Judgment: March 27, 2012.
(23 paras.)
______________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 NEAR J.:-- This is an appeal of the decision of a Citizenship Judge under subsection 14(5) of the Citizenship Act, RSC 1985, c C-29. Michael Haddad contests the refusal of his application for not satisfying the residency requirement of subsection 5(1)(c) in a letter dated April 27, 2011.
• I. Facts
2 On October 14, 2003, the Applicant became a permanent resident of Canada. On October 24, 2007, he applied for citizenship. The relevant residency period was from October 24, 2003 to October 24, 2007. He declared 351 days of absence, leaving him with 1109 days of physical presence.
3 On April 11, 2011, the Applicant appeared before a Citizenship Judge. He was also given the opportunity to file additional evidence. He submitted various invoices from a gas station.
4 On April 27, 2011, the Citizenship Judge issued his decision. There are, however, two letters addressed to the Applicant in the Certified Tribunal Record both containing the same overall reasons for decision but one with the wrong facts.
5 Leaving aside the incorrect statement of facts in one of the decisions for the moment, I will address the reasons for denying the application for review purposes as this is consistent in both letters.
• II. Citizenship Determination
6 The Citizenship Judge identified the main problem with the application as "the lack of evidence of ongoing physical presence and concerns regarding the credibility of the Applicant's oral statements in this regard."
7 It was difficult for the Citizenship Judge to believe that it would take a young mechanical engineer seven years to learn how to operate a gas station. His vague answers describing his duties during the day raised questions regarding his employment situation in Canada.
8 The Applicant's banking records led to further doubts regarding his residency. He stated that he lived and worked with his brother. A letter from the building management company also indicated that the Applicant lived with his brother, but the Citizenship Judge did not attribute much weight to this letter because it referred to residence in general terms. The Applicant did not provide any rent receipts, leases or letters from neighbours to demonstrate that he supported himself in Canada.
9 The Applicant had also failed to mention his collection of Employment Insurance (EI) payments towards the end of the period in his Residence Questionnaire.
10 Though the Applicant claimed to live in Canada during the entire period, he had to look at his driver's licence to provide his postal code.
11 The Citizenship Judge concluded:
• It is impossible for me to determine, on balance of probabilities, how many days the Applicant was actually physically present in Canada, because there is insufficient evidence of his continued physical presence during the periods that he claims to have been in Canada.
• Also, I find the Applicant's claims and evidence regarding his work and life in Canada - virtually all of which are supplied in one way or another by his brother-to be troubling, and to lack credibility.
• III. Issues
12 The issues that arise in this application are as follows:
• (a) Given the existence of two sets of reasons for decision, which set is under review for the purposes of this application?
• (b) Can the Applicant submit new affidavit evidence as part of this application?
• (c) Did the Citizenship Judge err in finding that the Applicant did not meet the residency requirement under subsection 5(1)(c)?
• (d) Did the Citizenship Judge breach procedural fairness or natural justice?
• IV. Standard of Review
13 The determination of a Citizenship Judge regarding the number of days of physical presence in Canada to meet the residency requirement of subsection 5(1)(c) is reviewed based on reasonableness (Ghahremani v Canada (Minister of Citizenship and Immigration), 2009 FC 411, [2009] F.C.J. No. 524 at para 19; Chen v Canada (Minister of Citizenship and Immigration), 2008 FC 763, [2008] F.C.J. No. 964 at para 5).
14 According to the reasonableness standard, this Court should not intervene unless the decision fails to demonstrate "the existence of justification, transparency and intelligibility" or does not fall "within a range of possible, acceptable outcomes" (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47).
15 By contrast, issues of procedural fairness and natural justice warrant the correctness standard (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009 CarswellNat 434 at para 43).
• V. Analysis
16 The Applicant understandably raises concerns regarding the existence of two sets of reasons for decision. This is particularly the case where one set of facts does not apply to him and references the wrong dates for the relevant residency period. It also discussed undisclosed absences and different declarations.
17 The second letter contains the correct facts but did not explain the mistake. This letter was never received by the Applicant and only came to his attention on the arrival of the Certified Tribunal Record. As a consequence, the Applicant takes issue with the same finding on these correct facts that he was untruthful in his application.
18 The Respondent acknowledges that a mistake was made in this instance. It has provided an affidavit from Kamesh Yeleswarapu indicating that she made an inadvertent error re-formatting and initially inputted the wrong set of facts in the decision sent to the Applicant.
19 According to the Respondent, the second letter citing the correct facts should be the decision under review for the purposes of this application. Alternatively, the Respondent argues that the error in the first set of reasons is immaterial and that the reasons provided are adequate based on the principles referred to in Vancouver International Airport Authority v Public Service Alliance of Canada, 2010 FCA 158, [2010] F.C.J. No. 809. With the exception of the brief facts section, the analysis and conclusions reached in the decision clearly refer to the Applicant's situation. It is evident that credibility concerns were the basis for the Citizenship Judge's denial of the application.
20 I cannot accept the Respondent's position. The confusion surrounding the two letters warrants the intervention of this Court. The Applicant only received the first letter with the primary finding that he was not credible but also referring to a set of incorrect negative facts. This undeniably raised questions in his mind regarding the fairness and reasonableness of the decision-making process that can only be remedied by the reconsideration of a different Citizenship Judge.
21 Irrespective of whether the error was clerical in nature as the Respondent claims, the Applicant should have received an explanation as to what occurred in the circumstances as soon as it came to the Citizenship Judge's attention. The receipt of the Certified Tribunal Record containing the second letter after the fact and the late affidavit was insufficient.
22 I am not prepared to find a decision to deny citizenship, based on a failure to satisfy the residency requirement, reasonable where it is based on an incorrect letter and a correction not sent to the Applicant. It is therefore unnecessary for me to deal with the other issues raised by this application.
• VI. Conclusion
23 Given the concerns that arise as a result of the existence of two sets of reasons, the Applicant's appeal is allowed. The matter is sent back to a different citizenship judge for re-determination.
JUDGMENT
THIS COURT'S JUDGMENT is that this application for judicial review is allowed and the matter is sent back to a different citizenship judge for re-determination.
NEAR J.
Haddad v. Canada (Minister of Citizenship and Immigration)
Between
Michael Haddad, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 430
2012 FC 361
Docket T-1067-11
Federal Court
Toronto, Ontario
Near J.
Heard: February 21, 2012.
Judgment: March 27, 2012.
(23 paras.)
______________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 NEAR J.:-- This is an appeal of the decision of a Citizenship Judge under subsection 14(5) of the Citizenship Act, RSC 1985, c C-29. Michael Haddad contests the refusal of his application for not satisfying the residency requirement of subsection 5(1)(c) in a letter dated April 27, 2011.
• I. Facts
2 On October 14, 2003, the Applicant became a permanent resident of Canada. On October 24, 2007, he applied for citizenship. The relevant residency period was from October 24, 2003 to October 24, 2007. He declared 351 days of absence, leaving him with 1109 days of physical presence.
3 On April 11, 2011, the Applicant appeared before a Citizenship Judge. He was also given the opportunity to file additional evidence. He submitted various invoices from a gas station.
4 On April 27, 2011, the Citizenship Judge issued his decision. There are, however, two letters addressed to the Applicant in the Certified Tribunal Record both containing the same overall reasons for decision but one with the wrong facts.
5 Leaving aside the incorrect statement of facts in one of the decisions for the moment, I will address the reasons for denying the application for review purposes as this is consistent in both letters.
• II. Citizenship Determination
6 The Citizenship Judge identified the main problem with the application as "the lack of evidence of ongoing physical presence and concerns regarding the credibility of the Applicant's oral statements in this regard."
7 It was difficult for the Citizenship Judge to believe that it would take a young mechanical engineer seven years to learn how to operate a gas station. His vague answers describing his duties during the day raised questions regarding his employment situation in Canada.
8 The Applicant's banking records led to further doubts regarding his residency. He stated that he lived and worked with his brother. A letter from the building management company also indicated that the Applicant lived with his brother, but the Citizenship Judge did not attribute much weight to this letter because it referred to residence in general terms. The Applicant did not provide any rent receipts, leases or letters from neighbours to demonstrate that he supported himself in Canada.
9 The Applicant had also failed to mention his collection of Employment Insurance (EI) payments towards the end of the period in his Residence Questionnaire.
10 Though the Applicant claimed to live in Canada during the entire period, he had to look at his driver's licence to provide his postal code.
11 The Citizenship Judge concluded:
• It is impossible for me to determine, on balance of probabilities, how many days the Applicant was actually physically present in Canada, because there is insufficient evidence of his continued physical presence during the periods that he claims to have been in Canada.
• Also, I find the Applicant's claims and evidence regarding his work and life in Canada - virtually all of which are supplied in one way or another by his brother-to be troubling, and to lack credibility.
• III. Issues
12 The issues that arise in this application are as follows:
• (a) Given the existence of two sets of reasons for decision, which set is under review for the purposes of this application?
• (b) Can the Applicant submit new affidavit evidence as part of this application?
• (c) Did the Citizenship Judge err in finding that the Applicant did not meet the residency requirement under subsection 5(1)(c)?
• (d) Did the Citizenship Judge breach procedural fairness or natural justice?
• IV. Standard of Review
13 The determination of a Citizenship Judge regarding the number of days of physical presence in Canada to meet the residency requirement of subsection 5(1)(c) is reviewed based on reasonableness (Ghahremani v Canada (Minister of Citizenship and Immigration), 2009 FC 411, [2009] F.C.J. No. 524 at para 19; Chen v Canada (Minister of Citizenship and Immigration), 2008 FC 763, [2008] F.C.J. No. 964 at para 5).
14 According to the reasonableness standard, this Court should not intervene unless the decision fails to demonstrate "the existence of justification, transparency and intelligibility" or does not fall "within a range of possible, acceptable outcomes" (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47).
15 By contrast, issues of procedural fairness and natural justice warrant the correctness standard (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009 CarswellNat 434 at para 43).
• V. Analysis
16 The Applicant understandably raises concerns regarding the existence of two sets of reasons for decision. This is particularly the case where one set of facts does not apply to him and references the wrong dates for the relevant residency period. It also discussed undisclosed absences and different declarations.
17 The second letter contains the correct facts but did not explain the mistake. This letter was never received by the Applicant and only came to his attention on the arrival of the Certified Tribunal Record. As a consequence, the Applicant takes issue with the same finding on these correct facts that he was untruthful in his application.
18 The Respondent acknowledges that a mistake was made in this instance. It has provided an affidavit from Kamesh Yeleswarapu indicating that she made an inadvertent error re-formatting and initially inputted the wrong set of facts in the decision sent to the Applicant.
19 According to the Respondent, the second letter citing the correct facts should be the decision under review for the purposes of this application. Alternatively, the Respondent argues that the error in the first set of reasons is immaterial and that the reasons provided are adequate based on the principles referred to in Vancouver International Airport Authority v Public Service Alliance of Canada, 2010 FCA 158, [2010] F.C.J. No. 809. With the exception of the brief facts section, the analysis and conclusions reached in the decision clearly refer to the Applicant's situation. It is evident that credibility concerns were the basis for the Citizenship Judge's denial of the application.
20 I cannot accept the Respondent's position. The confusion surrounding the two letters warrants the intervention of this Court. The Applicant only received the first letter with the primary finding that he was not credible but also referring to a set of incorrect negative facts. This undeniably raised questions in his mind regarding the fairness and reasonableness of the decision-making process that can only be remedied by the reconsideration of a different Citizenship Judge.
21 Irrespective of whether the error was clerical in nature as the Respondent claims, the Applicant should have received an explanation as to what occurred in the circumstances as soon as it came to the Citizenship Judge's attention. The receipt of the Certified Tribunal Record containing the second letter after the fact and the late affidavit was insufficient.
22 I am not prepared to find a decision to deny citizenship, based on a failure to satisfy the residency requirement, reasonable where it is based on an incorrect letter and a correction not sent to the Applicant. It is therefore unnecessary for me to deal with the other issues raised by this application.
• VI. Conclusion
23 Given the concerns that arise as a result of the existence of two sets of reasons, the Applicant's appeal is allowed. The matter is sent back to a different citizenship judge for re-determination.
JUDGMENT
THIS COURT'S JUDGMENT is that this application for judicial review is allowed and the matter is sent back to a different citizenship judge for re-determination.
NEAR J.
JASON KENNEY SPEAKS ABOUT IMMIGRATION FUTURE
Interview with Citizenship and Immigration Minister Jason Kenney on TVO last night.
http://ww3.tvo.org/video/176162/jason-kenney-bottom-line-immigrationhttp://ww3.tvo.org/video/176162/jason-kenney-bottom-line-immigration
http://ww3.tvo.org/video/176162/jason-kenney-bottom-line-immigrationhttp://ww3.tvo.org/video/176162/jason-kenney-bottom-line-immigration
FEDERAL COURT CERTIFIES QUESTION ON DNA TESTING
In a very interesting and complex case, the Federal Court certified a question to be decided by the federal Court of Appeal as to whether the IAD has jurisdiction to hear appeals where the applicant is determined "not a member of the family class". In this case, DNA testing was at the core of the factual determination. Note that DNA testing to determine paternity is not mandatory in sponsorship cases. Should it be mandatory?
Canada (Minister of Public Safety and Emergency Preparedness)
v. Martinez-Brito
Between
The Minister of Public Safety and Emergency Preparedness,
Applicant, and
Luis Manuel Martinez-Brito, Respondent
[2012] F.C.J. No. 453
2012 FC 438
Docket IMM-5468-11
Federal Court
Montréal, Quebec
Noël J.
Heard: March 22 and April 10, 2012.
Judgment: April 16, 2012.
(57 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 NOËL J.:-- This is an application brought forth under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], seeking judicial review of an Immigration Appeal Division [IAD] decision dated July 19, 2011. The IAD allowed the respondent's appeal of a refusal of his son Luilly Martinez-Luna's [Luilly] application for permanent residence in Canada. The IAD determined that the respondent had established on a balance of probabilities that Luilly was his biological son and therefore a member of the family class as the respondent's dependent child within the meaning of section 2 and paragraph 117(1)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR].
I. Background
2 The respondent, Mr. Luis Manuel Martinez-Brito, is a citizen of the Dominican Republic and a permanent resident of Canada since September 21, 2005. In 2008, he sponsored the application for permanent residence of his two sons Luilly and Luilivin, then 13 and 11-years old respectively.
3 The officer reviewing Luilly's application noted in the Computer Assisted Immigration Processing System [CAIPS] that while the respondent had listed both sons in his own immigration application, filiation had not been established and the officer processing the respondent's application had not excluded the possibility of conducting a DNA test should the respondent eventually sponsor his children. It is also mentioned in the notes that while Luilly was born in 1995, his birth was only declared in 2001 (Trial Record [TR] at 32).
4 In a letter dated November 16, 2009, the respondent was informed that after reviewing the information provided in support of the application, the officer was not satisfied that there was sufficient evidence to prove the identities of his two "presumed children" (TR at 67):
• A DNA test will serve to verify the relationship between you, Luilly and Luilivin. The decision to be tested is entirely yours and Luilly and Luilivin's responsibility. If you wish to proceed with this application, Luilly and Luilivin will be required to undergo DNA testing to establish the relationship [...] If I do not receive word from you or Luilly and Luilivin within the next [two] months, stating that you will be proceeding with the DNA testing, I will assume that you are no longer interested in pursuing the sponsorship and will close the file.
The results of the DNA test, received on May 11, 2010, indicated that while Luilivin was the respondent's biological son, Luilly was not (TR at 36). In a letter dated May 12, 2010, the officer informed Luilly of the results of the DNA test and that as a result, he did not meet the requirements for immigration to Canada as a dependent child under subsections 12(1) of the IRPA and 117(1) of the IRPR (TR at 21-22).
5 On June 4, 2010, the respondent appealed the officer's decision to the IAD. The respondent filed written submissions and supporting affidavits invoking breaches both of natural justice and the Charter (TR at 223). The Minister of Public Safety and Emergency Preparedness [the minister] argued for its part that the IAD should dismiss the appeal for lack of jurisdiction or in the alternative, that there was no violation of principles of natural justice and no contravention of the Charter (TR at 147).
II. Impugned Decision
6 In its interlocutory decision rendered on April 11, 2011, the IAD determined that subsection 63(1) of the IRPA gave it jurisdiction over the matter and ruled that, in this particular case, the request for DNA tests to establish a biological link between the respondent and his sons violated procedural fairness and thus constituted a breach of natural justice. As a result, the DNA evidence was excluded from the proceedings, the officer's refusal was set aside, and the appeal was ordered to proceed with the respondent given an opportunity to provide any additional evidence to establish, on a balance of probabilities, that Luilly was his biological son (TR at 103).
7 Of note, the parties agreed that if the IAD were to determine Luilly was not a dependant child as set out in section 2 and paragraph 117(1)(b) of the IRPR, the constitutional question challenging the validity of these provisions would then be addressed by the IAD on the basis of the written submissions already made.
8 A hearing to determine the relationship between Luilly and the respondent was held on June 29, 2011. In reasons dated July 19, 2011, the IAD first addressed the minister's position that it did not have jurisdiction to hear the present appeal and that the file should be sent back to the visa office. The IAD concluded that under section 67 of the IRPA, it could substitute the officer's original decision with its own without referring the matter back to the visa office. As to the issue of Luilly's relationship with his father, the IAD determined that the respondent had established on a balance of probabilities that Luilly was his biological son and that he was therefore a member of the family class within the meaning of section 2 and paragraph 117(1)(b) of the IRPR.
9 Addressing the evidence before it, the IAD observed that all the testimonies heard and evidence submitted established that the respondent continued to treat Luilly as his son and that, while there was no documentary evidence to support the respondent's testimony that he continues to provide financial support for Luilly, the IAD had no reason to doubt his testimony. Regarding Luilly's birth certificate, which lists the respondent as his father, the IAD acknowledged the minister's argument that it was legitimate for the officer to investigate further to address his concerns about the respondent's paternity, as confirmed by this Court in Azziz v Canada (Minister of Citizenship and Immigration), 2010 FC 663 at para 68, [2010] F.C.J. No. 767 [Azziz]. However, the IAD distinguished Azziz on the basis that there were reasons to doubt the information on the birth certificate in that case: the mother's advanced age, her decision to give birth at a midwife's rather than at a hospital, and the fact the only evidence of the presumptive birth was a certificate from the midwife (IAD Reasons at para 15).
10 In the case at bar, the IAD notes that the respondent's paternity was not questioned by the Children Court, the social worker who conducted an evaluation prior to the custody judgment or by the judge who approved the custody agreement between the respondent and the children's mother. According to the IAD, the only factor that would have led the officer to question the respondent's paternity is the late registration of his sons' births. The IAD points out however that the registrations occurred before the respondent met his current wife and so the future prospect of sponsoring his children would play no role in the late registration.
11 Rather, the respondent testified that because he did not register his children at the time of their birth, he would have had to pay a fine and so he waited. His former sister-in-law, who worked for 20 years at the hospital where Luilly was born, also confirmed during her testimony that the respondent could not register the boys' births at the hospital. While the IAD noted that the respondent's testimony differed somewhat from his affidavit signed on January 26, 2011 (in which he declared that it was the prohibitive cost of registration which caused the delay), the IAD deemed this insufficient to cast doubt on his credibility.
12 While acknowledging the minister's position that fictively trying to determine biological filiation on the basis of testimonies and documents alone is very difficult, the IAD stated that this was clearly the situation contemplated by the Federal Court "[...] when it held that because of its intrusive nature, DNA testing should generally be limited to 'those relatively rare cases where viable alternatives to such testing do not exist' and that DNA evidence obtained improperly could be excluded" (IAD Reasons at para 19). It must be clarified that the IAD incorrectly attributed the citation above to the Federal Court when in fact it appears to have been taken from the IAD's decision in Mohamad-Jabir v Canada (Minister of Citizenship and Immigration), [2008] IADD 44 at para 33 [Jabir]. However, the IAD also referred to this Court's decision in MAO v Canada (Minister of Citizenship and Immigration), 2003 FC 1406 at paras 84 and 91, [2003] F.C.J. No. 1799 [MAO], which supports the IAD's statement above:
• 84 I agree with the Applicant that DNA evidence is "qualitatively different" from other forms of evidence. The intrusion into an individual's privacy that occurs with DNA testing means that it is a tool that must be carefully and selectively utilized. The visa officer acted as if this evidence was the only way under the former Act that the Applicant could prove his relationship to his children, instead of regarding it as one of several ways that the Applicant could establish his familial relationship to his children. In this manner, the officer fettered his discretion.
• [...]
• 91 In my opinion, the DNA evidence was obtained as a result of an error by the visa officer in too narrowly interpreting the breadth of his discretion under the former Act. Further, this evidence prompted the IAD to conclude that other evidence was "immaterial". In order to remedy the unfairness to the Applicant that has resulted from this improperly obtained evidence, I direct that the DNA evidence is to form no part of the IAD's decision, upon rehearing of this matter. The Applicant has requested a direction that the DNA evidence is to be regarded as only one factor in the IAD's decision. In my view, total exclusion of this evidence is required in order for the IAD to fairly assess this matter.
13 Finally, addressing the minister's argument that the legislator has chosen to favour biological over legal filiation, the IAD observed that while documents establishing legal filiation would be insufficient on their own to conclude biological filiation, and that testimony as to the relationship would establish only a de facto parent-child relationship, a combination of both types of evidence in this case led to the conclusion that the respondent has established on a balance of probabilities that Luilly was his biological son.
III. Parties' Positions
14 The minister raises three issues before this Court. First, it argues that the IAD has no jurisdiction to hear an appeal of a decision made by a visa officer not to issue a permanent resident visa when the sponsored foreign national is not the biological or adoptive child of the sponsor. Second, it argues that the IAD's conclusion that Luilly is the respondent's biological child is wholly inconsistent with the evidence. Finally, it argues that the officer's decision to order a DNA test did not contravene the principles of natural justice. The respondent naturally disagrees with the applicant on each of these points, siding instead with the IAD's decision. The respondent also notes that if this Court were to overturn the IAD's decision, the constitutional issue remains to be dealt with and would have to be sent back to the IAD or addressed by this Court.
IV. Issues
• 1.
Did the IAD have jurisdiction to hear the respondent's Appeal under the IRPA?
• 2.
Did the IAD err in finding that the visa officer contravened the principles of natural justice when he requested that the respondent complete a DNA test?
• 3.
Did the IAD err in finding that Luilly is the respondent's biological son and thus a dependent child and member of the family class under the IRPR?
V. Standard of Review
15 The parties agree that the second issue - whether the officer contravened the principles of natural justice by ordering a DNA test - should be assessed on a standard of correctness (Sapru v Canada (Minister of Citizenship and Immigration), 2011 FCA 35 at paras 25-27, [2011] F.C.J. No. 148). When applying this standard, the Court will show no deference to the IAD, instead undertaking its own analysis to determine the correct answer (Dunsmuir v New Brunswick, 2008 SCC 9 at para 50, [2008] 1 SCR 190 [Dunsmuir]).
16 The parties also agree that the IAD's determination of whether Luilly is the respondent's biological son is a factual finding to be assessed on the standard of reasonableness (Dunsmuir, above, at paras 51 and 53). This standard requires this Court to determine whether the IAD's conclusion falls within "a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, above, at para 47) and as long as this outcome fits comfortably with the principles of justification, transparency, and intelligibility, it is not open to this Court to substitute its own view for a more preferable outcome (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1 SCR 339).
17 The parties disagree however as to which standard to apply to the IAD's ruling that it had jurisdiction to hear the appeal. The minister submits that this issue raises a question of law to which the standard of correctness applies and relies on Smith v Alliance Pipeline Ltd, 2011 SCC 7 at para 37, [2011] 1 SCR 160 [Alliance Pipeline], where Justice Fish observed that a tribunal's interpretation of its home statute normally attracts the standard of reasonableness, but not where the question raised demarcates the tribunal's authority from that of another specialized tribunal. The respondent contends that the issue here is not whether the appeal should have been heard by one tribunal or another, but whether it should have been heard at all. The issue called for the IAD to interpret its jurisdiction as set out in the IRPA, and as acknowledged by the Supreme Court in Alliance Pipeline and Dunsmuir before it, the reasonableness standard should apply to a tribunal's interpretation of its own statute (Dunsmuir, above, at para 54).
18 Having considered that the IAD's jurisdiction to hear the appeal is determined by interpreting the relevant provisions of the IRPA and that the IAD's jurisdiction to hear this appeal would not impede any other specialized tribunal's jurisdiction, this Court finds that the appropriate standard of review is reasonableness. As stated above, this Court will only intervene if it determines that the IAD's decision does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir, above, at para 47).
VI. Analysis
• A.
Did the IAD have jurisdiction to hear the Respondent's Appeal under the IRPA?
19 In examining the relevant provisions of the IRPA, this Court bears in mind the remarks of Chief Justice McLachlin and Justice Major in Canada Trustco Mortgage Co v Canada, 2005 SCC 54 at para 10, [2005] 2 SCR 601 [Canada Trustco] regarding statutory interpretation:
• It has been long established as a matter of statutory interpretation that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": see 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at para. 50. The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole. [Emphasis added.]
20 In its interlocutory decision dated April 11, 2011, the IAD determined that it had jurisdiction to hear the appeal, "[c]onsidering that this is an appeal based on [subsection] 63(1) of the [IRPA] against a decision not to issue a permanent resident visa to [Luilly] as a member of the family class [...]" (TR at 103, IAD Interlocutory Reasons at para 10). The subsection of the IRPA to which the IAD refers is as follows:
• Immigration and Refugee Protection Act, SC 2001, c 27
• Right to appeal -- visa refusal of family class
• 63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa. [Emphasis added.]
* * *
• Loi sur l'immigration et la protection des réfugiés, LC 2001, ch 27
• Droit d'appel : visa
• 63. (1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent. [Nous soulignons.]
21 Importantly, subsection 10(6) of the IRPR clarifies that for an application to be filed "in the prescribed manner," it must be made in accordance with subsection 10(1):
• Immigration and Refugee Protection Regulations, SOR/2002-227
• Form and content of application
• 10. (1) Subject to paragraphs 28(b) to (d), an application under these Regulations shall
• (a) be made in writing using the form provided by the Department, if any;
• (b) be signed by the applicant;
• (c) include all information and documents required by these Regulations, as well as any other evidence required by the Act;
• (d) be accompanied by evidence of payment of the applicable fee, if any, set out in these Regulations; and
• (e) if there is an accompanying spouse or common-law partner, identify who is the principal applicant and who is the accompanying spouse or common-law partner.
* * *
• Règlement sur l'immigration et la protection des réfugiés, DORS/2002-227
• Forme et contenu de la demande
• 10. (1) Sous réserve des alinéas 28b) à d), toute demande au titre du présent règlement :
• a) est faite par écrit sur le formulaire fourni par le ministère, le cas échéant;
• b)
est signée par le demandeur;
• c) comporte les renseignements et documents exigés par le présent règlement et est accompagnée des autres pièces justificatives exigées par la Loi;
• d) est accompagnée d'un récépissé de paiement des droits applicables prévus par le présent règlement;
• e) dans le cas où le demandeur est accompagné d'un époux ou d'un conjoint de fait, indique celui d'entre eux qui agit à titre de demandeur principal et celui qui agit à titre d'époux ou de conjoint de fait accompagnant le demandeur principal.
The minister has raised no grounds on which to conclude that the respondent's application did not meet these criteria.
22 The minister is of the view however that the IAD has no jurisdiction to hear an appeal under subsection 63(1) when the sponsored foreign national is not a member of the family class. Paragraph 117(1)(b) of the IRPR sets out that a foreign national is a member of the family class if he or she is a dependent child of the sponsor, while section 2 of the IRPR defines a dependent child as the biological or adopted child of the parent. Hence in the case at bar, the minister argues that the IAD committed an error in law in hearing the appeal because Luilly was not the biological or adopted son of the respondent and thus not a member of the family class.
23 To support its interpretation, the minister relies on three Federal Court decisions (Bui v Canada (Minister of Citizenship and Immigration), 2001 FCT 144, [2001] F.C.J. No. 296 [Bui]; Samra v Canada (Minister of Citizenship and Immigration) (2000), 193 FTR 263, [2000] F.C.J. No. 1491 [Samra]; Bistayan v Canada (Minister of Citizenship and Immigration), 2008 FC 139, [2008] F.C.J. No. 169 [Bistayan]) and three IAD decisions which are purported to have adopted the minister's reasoning (Watson v Canada (Minister of Citizenship and Immigration), [2008] IADD 2475 [Watson]; Green v Canada (Minister of Citizenship and Immigration), [2008] IADD 1901 [Green]; Guerre v Canada (Minister of Citizenship and Immigration), [2011] IADD 836 [Guerre]).
24 For example, the minister refers to Samra, above, to argue that "[w]hen a person is found to be outside the member of the family class category, the IAD has no jurisdiction to hear an appeal and must dismiss it" (ASM at paras 40-41) and relies on Bui, above, to argue that "the IAD cannot entertain appeals when it finds that an individual is not a 'member of the family class' as set forth in the legislation and the regulations [emphasis added]" (ASM at para 40). Yet in this second statement the minister concedes that it is the IAD that must determine that the foreign national is not a member of the family class - it must not simply rely on the finding made by the visa officer. In fact, this distinction reveals the primary flaw in the minister's argument that the IAD did not have jurisdiction to hear the respondent's appeal. This Court will now seek to clear up any confusion that may have arisen over the interpretation of the relevant provisions of the IRPA and the case law referred to by the minister.
25 Firstly, as previously mentioned, when a decision is made not to issue a permanent resident visa to a foreign national, subsection 63(1) of the IRPA allows a right of appeal to the IAD to the person who filed that application in the prescribed manner, as set out in subsection 10(1) of the IRPR.
26 Secondly, to allow such an appeal, subsection 67(1) of the IRPA sets out that the IAD must be satisfied at the time the appeal is disposed of that either (a) the decision appealed was wrong in law or fact or mixed law and fact, (b) a principle of natural justice had not been observed, or (c) sufficient humanitarian and compassionate [H&C] considerations warranted special relief in light of all the circumstances of the case:
• Immigration and Refugee Protection Act, SC 2001, c 27
• Appeal allowed
• 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
• (a) the decision appealed is wrong in law or fact or mixed law and fact;
• (b) a principle of natural justice has not been observed; or
• (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
* * *
• Loi sur l'immigration et la protection des réfugiés, LC 2001, ch 27
• Fondement de l'appel
• 67. (1) Il est fait droit à l'appel sur preuve qu'au moment où il en est disposé :
• a) la décision attaquée est erronée en droit, en fait ou en droit et en fait;
• b) il y a eu manquement à un principe de justice naturelle;
• c) sauf dans le cas de l'appel du ministre, il y a -- compte tenu de l'intérêt supérieur de l'enfant directement touché -- des motifs d'ordre humanitaire justifiant, vu les autres circonstances de l'affaire, la prise de mesures spéciales.
27 Thirdly, section 65 of the IRPA makes clear that the final ground to allow an appeal under paragraph 67(1)(c) (H&C considerations) may only be considered by the IAD once it has confirmed the foreign national is a member of the family class:
• Immigration and Refugee Protection Act, SC 2001, c 27
• Humanitarian and compassionate considerations
• 65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations. [Emphasis added.]
* * *
• Loi sur l'immigration et la protection des réfugiés, LC 2001, ch 27
• Motifs d'ordre humanitaires
• 65. Dans le cas de l'appel visé aux paragraphes 63(1) ou (2) d'une décision portant sur une demande au titre du regroupement familial, les motifs d'ordre humanitaire ne peuvent être pris en considération que s'il a été statué que l'étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire. [Nous soulignons.]
Section 65 makes clear that when examining an appeal of a decision that a foreign national is not a member of the family class, as was the case here, the IAD must first determine for itself the status of the foreign national before it may take into account any H&C considerations pursuant to paragraph 67(1)(c).
28 That being said, section 65 does not preclude the IAD from considering any remaining arguments based on an error in law or fact or mixed law and fact (paragraph 67(1)(a) of the IRPA) or any arguments concerning whether a principle of natural justice was not observed (paragraph 67(1)(b)) when such arguments have a direct bearing on the finding that the foreign national is not a member of the family class. The reason for this requirement is quite simple: if either the error in law or fact or the breach of natural justice is irrelevant to the finding that the foreign national is not a member of the family class, the appeal would evidently fail because a foreign national who is not a member of the family class cannot be sponsored for permanent residency under subsection 13(1) of the IRPA. But where, as in the case at bar, the applicant successfully raises an issue of natural justice that goes to the finding that they are not a member of the family class, there is no question that the IAD has jurisdiction to hear such an argument under subsections 63(1) and 67(1) and to determine for itself whether this impacts on the final outcome of the decision under appeal.
29 The IAD acknowledged this very possibility in its letter of December 30, 2010 where it explained how the respondent's appeal would be considered (TR at 181):
• If the member of the IAD decides that the sponsored foreign national is not a member of the family class, the member may dismiss the appeal because the decision to refuse a permanent resident visa would be correct [...] If the member does not dismiss the appeal, the parties will be advised in writing and the IAD will continue with the regular process in considering the appeal. [Emphasis added.]
30 By disputing the mandatory obligation to conduct DNA testing, the respondent raised an issue of natural justice which could be considered under paragraph 67(1)(b). Accordingly, this Court disagrees with the minister's allegation that the IAD ignored the "member of the family class" provisions in the IRPA and IRPR and instead crafted itself an appellate jurisdiction by making a finding on an issue of natural justice. Considering the general principles of statutory interpretation repeated in Canada Trustco and seeking to read the provisions of the IRPA as a harmonious whole, this Court finds that the application of the ordinary meaning of the precise and unequivocal wording of sections 63, 65, and 67 is reasonable in these circumstances and leads to the conclusion that the IAD remains free to consider whether any principle of natural justice had not been observed by the visa officer and whether it was directly linked to the determination that Luilly was not a member of the family class.
31 After hearing from both parties on this issue, the IAD determined there had indeed been a breach of natural justice and so it ordered the results of the DNA testing and any other evidence that had arisen from it to be excluded. Accordingly, whether Luilly was a member of the family class remained a live issue and the IAD was free to continue the regular appeal process. Under subsection 67(2) of the IRPA, the IAD had the jurisdiction to hear the evidence from both parties, set aside the officer's original decision, and substitute its own determination. If the IAD had instead concluded that the DNA testing did not constitute a breach of natural justice or that it did not impact the finding that Luilly was not the respondent's biological son, it could have agreed that based on the DNA evidence, Luilly was not a member of the family class and thus excluded from the possibility of sponsorship under subsection 13(1) of the IRPA.
32 The minister has interpreted section 65 of the IRPA as having an impact on the IAD's jurisdiction to hear an appeal as set out in subsection 63(1). A reading of both provisions makes clear that section 65 does not limit the right of appeal under subsection 63(1), but rather the grounds that may be considered under section 67. Aside from two exceptions set out in subsections 64(1) and 64(2) (where the foreign national or sponsor has been deemed inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, or where the foreign national in question has been deemed inadmissible for misrepresentation and is not the sponsor's spouse, common-law partner or child), the IAD will continue to have jurisdiction under subsection 63(1) to hear an appeal of a decision not to issue a foreign national a permanent resident visa. However, where there was a finding that the foreign national was not a member of the family class, the IAD has jurisdiction to hear any argument as to whether an error in law or fact or a breach of natural justice directly impacts this finding. In the absence of such arguments, the appeal cannot continue as the foreign national will not qualify under subsection 13(1) regardless of any other issues raised in the appeal. The following case law from this Court and the IAD, which was raised by the minister, supports the above interpretation of the IRPA.
33 The minister cited paragraph 32 of Bui, above, which reads as follows:
• When the tribunal finds that a spouse is not a "member of the family class" within the meaning of the Act, it is entitled to refuse to undertake consideration of the second part of s. 77(3). The tribunal can only make a ruling in equity when the refusal is of a non-jurisdictional kind, such as for medical reasons. However, when the refusal is jurisdictional in nature it must dismiss the appeal for want of jurisdiction and so has no power to grant special relief in equity. [Emphasis added.]
To clarify, the second part of subsection 77(3) of the old Immigration Act mentioned above sets out that a sponsor may appeal to the IAD on the ground that there exist H&C considerations that warrant the granting of special relief. As a result, Justice Lemieux ruled in Bui that before the IAD could proceed with H&C considerations, it had to determine whether the sponsored spouse had entered into the marriage in good faith, thereby first confirming his status as a member of the family class. The decision in Bui thus reflects precisely what is established by section 65 of the IRPA: when examining an appeal under subsection 63(1) of the IRPA, the IAD must first confirm that the foreign national is a member of the family before it may examine any H&C considerations.
34 It should also be mentioned that Justice Lemieux confirmed in Bui that the hearing before the IAD as to whether the marriage was entered into in good faith was an appeal de novo, that the IAD was not required to simply review the officer's decision, and that the plaintiff could present new evidence to the IAD (Bui, above, at paras 19, 24 and 27). The same procedure was correctly applied in the case at bar, where the IAD accepted arguments from both parties and once it accepted the argument concerning natural justice, it considered de novo the issue of Luilly's relationship with the respondent and allowed both parties to make submissions.
35 The minister also cited paragraph 11 of Samra, above, which reads as follows:
• Once a determination as to membership in the family class has been made, the jurisdictional issue of the Immigration Appeal Division must be considered. As the Appeal Division can hear only those family class appeals where the applicants are found to be within the provided definition, if the applicant is determined to be outside that category, the Appeal Division has no jurisdiction to make a determination regarding the application for landing. This is demonstrated in the decisions of Blais, J. in Chattat v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 813, (May 26, 1999, IMM-5220-98) and Reed, J. in Chow v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1131, (July 29, 1998, IMM-5200-97).
In Samra, both the immigration officer and the Appeal Division refused the applications for permanent residence on the grounds that the applicants had not been adopted in accordance with the Immigration Regulations and Indian law. As the respondent rightfully points out, Justice Muldoon found in this decision that the IAD will have no jurisdiction to make a determination regarding the application for landing when the IAD itself (and not an earlier decision-maker) determines that the foreign national is not a member of the family class. In his reasons, Justice Muldoon stated clearly that the IAD refused the applications for permanent residence only after it found the applicants were not members of the family class (Samra, above, at para 2). There is no indication in these reasons that the parties raised any arguments regarding errors of fact or law or breaches of natural justice directly related to the finding of non-membership in the family class.
36 Similar conclusions were made in the two decisions referred to by Justice Muldoon. In Chattat v Canada (Minister of Citizenship and Immigration) (1999), 91 ACWS (3d) 804, [1999] F.C.J. No. 813, Justice Blais confirmed that the Appeal Division examined the evidence before it and determined for itself that the applicant and appellant did not have a husband-and-wife relationship. Only then did it determine that it did not have jurisdiction to proceed further. Meanwhile in Chow v Canada (Minister of Citizenship and Immigration) (1998), 153 FTR 236, [1998] F.C.J. No. 1131 [Chow], the appellant commenced an appeal to the IAD in a case where her brother had not been admitted. However, siblings did not fall under the definition of family member under the provisions of the IRPR. Hence on its face the application could not be allowed as it was not in dispute that the foreign national sponsored in the application did not meet the definition of family member as set out in the IRPR.
37 In the same way, the three IAD decisions referred to by the minister confirm this reasoning. First, in both Watson and Green, the IAD did not question its jurisdiction to determine whether the appellant was a member of the family class. Meanwhile in Guerre, a one-page decision where the appellant failed to even respond to the minister's argument regarding jurisdiction, the appellant had attempted to directly sponsor a cousin, but cousins also do not fall under the definition of a member of the family class. Thus just as in Chow, above, it was clear from the outset that the foreign national did not qualify as a member of the family class and no arguments alleging an error in fact or law or breach of natural justice was raised in this regard.
38 Finally, in referring to this Court's decision in Bistayan, above, the minister attempts to draw a parallel with paragraph 117(9)(d) of the IRPR. This provision sets out that a foreign national shall not be considered a member of the family class if the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined (with one exception provided for in cases where an officer had determined the foreign national was not required to be examined).
39 The minister argues that the Federal Court has consistently found the IAD not to have jurisdiction to hear appeals where paragraph 117(9)(d) has come into play, but as Justice Shore rightfully points out in Bistayan, first "the IAD had to assess if Ms. Bistayan was a person described in paragraph 117(9)(d) of the Regulations before deciding if it had jurisdiction or not" (Bistayan, above, at para 26). The IAD thus had to determine for itself whether the foreign national fell under paragraph 117(9)(d) and the appellant had a right to make submissions on this issue. In fact, Justice Shore points out that the IAD did not dismiss the appellant's appeal for lack of jurisdiction, but rather that it considered the appeal, but found that the appellant's son was a person described in paragraph 117(9)(d) and so it did not have jurisdiction to consider H&C grounds pursuant to section 65 of the IRPA (Bistayan, above, at paras 31-33). Once again, this is precisely the interpretation given in these reasons to paragraph 63(1) and section 65 of the IRPA.
40 Having determined that the IAD had jurisdiction to determine for itself Luilly's status and also to hear any arguments concerning natural justice raised by the respondent in that regard, it also bears repeating the following warning raised by the respondent when considering the validity of the minister's argument that the IAD should have no jurisdiction to consider the respondent's appeal (respondent's Supplementary Memorandum at paras 20-25):
• Moreover, the [IAD] would be unable to condemn a breach of natural justice from the moment that proof obtained by such breach had a material effect on the qualification of an Applicant as a member of the family class;
• It seems unlikely that the legislator would have wanted to reward breaches of natural justice, shielding officers from an Appeal whenever proof obtained illegally is probing;
• It is especially so given the fact that the [IAD] was clearly given jurisdiction in breaches of natural justice at [section] 67 of the IRPA;
• Applicant's logic deprives article 67 of any meaning;
• If one were to follow Applicant's logic, the IAD would only have jurisdiction on a natural justice issue when the result of such a breach is immaterial to the file;
• An Appeal on a question of natural justice would thus become an illusory recourse; [...]
This Court agrees with the respondent's concerns that if the IAD were not to have jurisdiction to consider this matter, then an appellant in a similar situation could very well find him or herself with no recourse despite an apparent breach of natural justice which impacts on the qualification to be made. The respondent points out that such an outcome would clearly contradict the Supreme Court's recognition that: "[...] there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual" (Cardinal v Kent Institution, [1985] 2 SCR 643 at para 14, [1985] SCJ 78).
41 Finally, it is worth mentioning that this Court has ruled in similar cases that where sponsors proceeded immediately with an application for judicial review, they had not exhausted their right of appeal to the IAD (Li v Canada (Minister of Citizenship and Immigration), 2006 FC 1109 at para 20, [2006] F.C.J. No. 1409 and Landaeta v Canada (Minister of Citizenship and Immigration), 2012 FC 219 at para 24, [2012] F.C.J. No. 258).
• B.
Did the IAD err in finding that the visa officer contravened the principles of natural justice when he requested that the respondent complete a DNA test?
42 In determining that the officer had contravened the principles of natural justice, the IAD relied predominantly on this Court's decision in MAO, above, where Justice Heneghan examined a case that shares many parallels with the matter before us. Among her conclusions, Justice Heneghan determined that the IAD had committed an error in law by interpreting the former Act as requiring a visa officer to demand that the applicant provide DNA evidence and also by failing to inquire as to whether the visa officer erred in requesting the DNA evidence from the applicant (MAO, above, at para 78).
43 Of particular importance to Justice Heneghan was the fact that the officer in that case had requested the DNA tests from the applicant in a manner that left no choice but to undergo the testing: "Failure to undergo a DNA blood test will likely lead to the refusal of an application [...] If we do not hear from you within 3 months of the date of this letter we will assume that there is no interest in doing the test and we will proceed accordingly with the refusal of the application" (MAO, above, at para 81). In strikingly similar fashion, the officer in the present case also left the respondent no choice: "If you wish to proceed with this application, Luilly and Luilivin will be required to undergo DNA testing to establish the relationship [...] If I do not receive word [...] within the next [two] months, stating that you will be proceeding with the DNA testing, I will assume that you are no longer interested in pursuing the sponsorship and will close the file" (TR at 67).
44 In light of the fact the former Act contained no requirement that an applicant undergo DNA testing when other traditional forms of documentation were not available (and the minister has given no indication the IRPA or IRPR now contains such a requirement), Justice Heneghan considered the letter from the officer to be "[...] improper and unfair. While in some circumstances DNA evidence may be considered necessary by the deciding officer, in the present case, the visa officer did not consider whether the applicant could provide other evidence" (MAO, above, at para 83). In the present case it is apparent the officer also treated DNA testing as if it were the only option available to confirm the respondent's paternity, failing to even raise the possibility that other evidence could be provided. Yet Justice Heneghan warned against precisely this type of behaviour (MAO, above, at paras 83-84):
• 83 In my opinion, the visa officer's letter requesting the DNA evidence, stating that if it was not provided the application would "likely" be refused, was improper and unfair. While in some circumstances DNA evidence may be considered necessary by the deciding officer, in the present case, the visa officer did not consider whether the Applicant could provide other evidence.
• 84 [...] The intrusion into an individual's privacy that occurs with DNA testing means that it is a tool that must be carefully and selectively utilized. The visa officer acted as if this evidence was the only way under the former Act that the Applicant could prove his relationship to his children, instead of regarding it as one of several ways that the Applicant could establish his familial relationship to his children. In this manner, the officer fettered his discretion. [Emphasis added.]
Justice Heneghan determined that the only appropriate relief in that case was to send the matter back for redetermination and to order that the DNA evidence form no part of the IAD's decision upon rehearing the matter.
45 Should there be any doubt as to whether Justice Heneghan's views are still applicable today, almost a decade later, Citizenship and Immigration Canada's [CIC] operation manuals are certainly enlightening in this case. Section 5.10 of operating manual OP 1 - Procedures advises immigration officers of the following: "5.10 When is a DNA test appropriate? A DNA test to prove relationship is a last resort. When documentary submissions are not satisfactory evidence of a bona fide relationship, officers may advise applicants that positive results of DNA tests by a laboratory listed in Appendix E are an acceptable substitute for documents." Also of note is the suggested sample letter for requesting DNA tests provided in Appendix D, which includes the following excerpts that reveal important differences between it and the letter sent by the officer:
• [...]
• Since the documentary evidence you have provided does not enable us to establish parentage between you and the child, and you are unable to obtain other documentary evidence, in place of documentary evidence we will accept the results of a DNA analysis carried out by a laboratory accredited by the Standards Council of Canada for DNA testing.
• [...]
• DNA tests are not mandatory.
• If we are not advised within 90 days by a laboratory that you will undergo DNA testing, we will assume that you are no longer interested in providing a DNA test result and will render a decision based on the information available to us at that time.
• [Emphasis added.]
46 The officer in the case at bar appears never to have considered - let alone suggested - any alternative to DNA testing. Instead, without analyzing the evidence already submitted, basing himself solely on the fact the respondent had not registered his children until 2001, and without giving an opportunity to explain this omission or to provide any other documentary evidence, the officer simply demanded that the respondent and his sons undergo DNA testing or the file would be closed (see CAIPS notes in TR at 32-33). In doing so, the officer completely disregarded this Court's warning that DNA testing is "a tool that must be carefully and selectively utilized" (MAO, above, at para 84) and ignored the CIC's operation manual which makes clear that DNA testing "is a last resort." While not law and not binding, these manuals have been recognized by this Court as valuable guidelines to the immigration officers in carrying out their duties (Frank v Canada (Minister of Citizenship and Immigration), 2010 FC 270 at para 21, [2010] F.C.J. No. 304 and John v Canada (Minister of Citizenship and Immigration), 2010 FC 85 at para 7, [2010] F.C.J. No. 100).
47 Many of the considerations which explain why officers should not consider DNA testing as the only means to determine filiation were set out by the IAD in Jabir, above, at paragraph 33:
• A request for DNA testing should be limited generally to those relatively rare cases where viable alternatives to such testing do not exist. The reason for this relates to the intrusive nature of such testing, the high costs involved in undertaking the same, the accompanying delays in the immigration process in obtaining such testing, and religious and philosophical reasons for refusing or being reluctant to undertake such testing. The concern is ultimately a question of whether it is reasonable to obtain such testing in the context on the one hand of practical considerations such as efficiency and the like and on the other hand in the context of personal considerations involving such concerns as cultural and religious categorical imperatives. It involves in part a balancing process with a view to achieving a meaningful and fair disposition of the issue involved.
48 In spite of this, the minister submits that the officer's request to conduct a DNA test did not constitute a violation of natural justice as there were concerns raised by the late registration of Luilly's birth more than six years after it occurred. The minister invokes section 55 of the Dominican Civil Code, which requires that births in the country be registered within 5 or 15 days of the birth of a child depending on the circumstances (TR at 169-171). While the minister blames the IAD for not mentioning this law in its reasons, there is also no mention of it in the CAIPS notes and so no evidence that the law was of any concern to the officer. The respondent also adds that there is no proof the law was in place at the time of Luilly's birth nor is there any evidence that the law was ever enforced by authorities.
49 The minister points to events that followed the officer's decision, including certain contradictions found in the respondent's testimony, as raising further questions and concerns as to the delay to register Luilly's birth. However, as the respondent rightfully points out, these subsequent events have no role to play in determining whether the officer's initial decision to order DNA tests constituted a breach of natural justice.
50 The applicant's attempt to distinguish MAO, above, by emphasizing Justice Heneghan's remarks that she was dealing with a unique factual situation fail to sway this Court. As previously established, the same factors that led Justice Heneghan to her decision (the fact that the officer completely disregarded alternatives to DNA testing and left the applicants with no choice but to proceed with it) were present in this case and lead this Court to draw the same conclusion. As a result, this Court finds the IAD's determination that a breach of natural justice had occurred to be correct.
51 Regarding the decision to exclude the DNA evidence, the respondent refers this Court to the following statement made by the Supreme Court in R v G (B), [1999] 2 SCR 475 at para 33, [1999] SCJ 29, arguing there is no reason not to apply this ruling to the present procedure:
• To reintroduce an involuntary statement in this way would run counter to the most fundamental aspect of trial fairness. In many cases, as here, the guilt of the accused will depend solely on his or her credibility and on that of the other witnesses. To allow the statement to be used, even for the limited purpose of undermining the credibility of the accused, could lead to abuse and serious injustice. That is why the traditional rule, which is still in force in Canadian law, must be interpreted in such a way that no use may be made of an inadmissible statement at any stage whatsoever of the trial.
The minister did not raise any argument concerning whether exclusion of the DNA evidence was the appropriate remedy in these circumstances and this Court sees no reason to question the IAD's decision, which is consistent with what was ordered in MAO, above.
• C.
Did the IAD err in finding that Luilly is the respondent's biological son and thus a dependent child and member of the family class under the IRPR?
52 The minister submits that it was unreasonable for the IAD to conclude that the respondent had established that he was Luilly's biological father and that it ignored or failed to consider "the most significant evidence in this case" (ASM at para 67). The minister refers for example to the respondent's written submissions sent in response to the IAD's preliminary letter of December 30, 2010, in which the respondent acknowledges that only one of his two children is his biological child (TR at 235 and 606). A similar admission is made in the Notice of Constitutional Question filed by the respondent (TR at 183). Finally, the minister highlights the respondent's affidavit of January 26, 2011, in which the respondent alludes to the DNA test results (TR at 260 and 262), and the transcript of the hearing, which shows that the respondent is fully aware that he is not Luilly's biological father (TR at 613-614).
53 This Court rejects the minister's arguments and agrees with the respondent that the order to exclude the DNA evidence also excludes not only the arguments or declarations made in order to obtain that exclusion, but also any evidence that is attributable only to the DNA test. To do otherwise would justify the breach of natural justice. Consequently the issue is whether, after having excluded any evidence that arose directly from the DNA testing, the respondent was able to establish on a balance of probabilities that he was the biological father of Luilly. In light of the testimonial and documentary evidence in this case, this Court finds that the IAD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law as called for by Dunsmuir, above, at paragraph 47.
54 The parties were invited to submit questions for certification and the minister submitted the following:
• Under section 63(1) of the Immigration and Refugee Protection Act, does the Immigration Appeal Division have jurisdiction to hear an appeal when the foreign national who filed an application for permanent residence is not, in relation to his sponsor, his biological or adopted child pursuant to the definitions of "dependent child" and "member of the family class" at sections 2(1) and 117(1)b) of the Immigration and Refugee Protection Regulations?
55 For its part, the respondent submitted three questions for certification, of which the first reiterates the minister's question with the underlined addition:
• 1.
Under section 63(1) of the Immigration and Refugee Protection Act, does the Immigration Appeal Division have jurisdiction to hear an appeal when the foreign national who filed an application for permanent residence is not, as deemed by the minister acting through its local representative in a Canadian visa office, in relation to his sponsor, his biological or adopted child pursuant to the definitions of "dependent child" and "member of the family class" at sections 2(1) and 117(1)b) of the Immigration and Refugee Protection Regulations?
• 2.
Does the Immigration Appeal Division have jurisdiction to determine whether or not there has been a breach of natural justice with respect to a decision made by the Minister acting through its local representative in a Canadian visa office, as to whether or not a foreign national who filed an application for permanent residence in the prescribed manner is, in relation to his sponsor, his biological or adopted child?
• 3.
If a genetic test of paternity is conducted in violation of the basic rights of an applicant for permanent residence as a sponsored person in the family class, in the category of a "dependent child," and is set aside for this reason by the Immigration Appeal Division, can the Immigration Appeal Division render a fresh decision on paternity on such other evidence that may be available in the file?
[Emphasis added.]
56 This Court agrees with the minister's submission that the second and third questions raise an argument as to the scope of the jurisdiction of the IAD that need not be raised as stand-alone questions and may already be addressed within the confines of the first question.
57 With regard to the first question, the minister submits that the first question should not assume that the application was filed in the "prescribed manner," but this Court disagrees with the minister's assertion that the addition to the question proposed by the respondent lacks neutrality. In this case, it is not in dispute that the determination Luilly was not a member of the family class was a determination made by the minister acting through its local representative in a Canadian visa office. The question remains whether in such cases, the IAD has jurisdiction to hear an appeal of this type of decision and on what grounds. Accordingly, the question will be certified as follows:
• Under section 63(1) of the Immigration and Refugee Protection Act, does the Immigration Appeal Division have jurisdiction to hear an appeal when the foreign national who filed an application for permanent residence is not, in relation to his sponsor, his biological or adopted child pursuant to the definitions of "dependent child" and "member of the family class" at sections 2(1) and 117(1)b) of the Immigration and Refugee Protection Regulations, as deemed by the minister acting through its local representative in a Canadian visa office?
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed and the following question is certified:
• Under section 63(1) of the Immigration and Refugee Protection Act, does the Immigration Appeal Division have jurisdiction to hear an appeal when the foreign national who filed an application for permanent residence is not, in relation to his sponsor, his biological or adopted child pursuant to the definitions of "dependent child" and "member of the family class" at sections 2(1) and 117(1)b) of the Immigration and Refugee Protection Regulations, as deemed by the minister acting through its local representative in a Canadian visa office?
NOËL J.
Canada (Minister of Public Safety and Emergency Preparedness)
v. Martinez-Brito
Between
The Minister of Public Safety and Emergency Preparedness,
Applicant, and
Luis Manuel Martinez-Brito, Respondent
[2012] F.C.J. No. 453
2012 FC 438
Docket IMM-5468-11
Federal Court
Montréal, Quebec
Noël J.
Heard: March 22 and April 10, 2012.
Judgment: April 16, 2012.
(57 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 NOËL J.:-- This is an application brought forth under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], seeking judicial review of an Immigration Appeal Division [IAD] decision dated July 19, 2011. The IAD allowed the respondent's appeal of a refusal of his son Luilly Martinez-Luna's [Luilly] application for permanent residence in Canada. The IAD determined that the respondent had established on a balance of probabilities that Luilly was his biological son and therefore a member of the family class as the respondent's dependent child within the meaning of section 2 and paragraph 117(1)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR].
I. Background
2 The respondent, Mr. Luis Manuel Martinez-Brito, is a citizen of the Dominican Republic and a permanent resident of Canada since September 21, 2005. In 2008, he sponsored the application for permanent residence of his two sons Luilly and Luilivin, then 13 and 11-years old respectively.
3 The officer reviewing Luilly's application noted in the Computer Assisted Immigration Processing System [CAIPS] that while the respondent had listed both sons in his own immigration application, filiation had not been established and the officer processing the respondent's application had not excluded the possibility of conducting a DNA test should the respondent eventually sponsor his children. It is also mentioned in the notes that while Luilly was born in 1995, his birth was only declared in 2001 (Trial Record [TR] at 32).
4 In a letter dated November 16, 2009, the respondent was informed that after reviewing the information provided in support of the application, the officer was not satisfied that there was sufficient evidence to prove the identities of his two "presumed children" (TR at 67):
• A DNA test will serve to verify the relationship between you, Luilly and Luilivin. The decision to be tested is entirely yours and Luilly and Luilivin's responsibility. If you wish to proceed with this application, Luilly and Luilivin will be required to undergo DNA testing to establish the relationship [...] If I do not receive word from you or Luilly and Luilivin within the next [two] months, stating that you will be proceeding with the DNA testing, I will assume that you are no longer interested in pursuing the sponsorship and will close the file.
The results of the DNA test, received on May 11, 2010, indicated that while Luilivin was the respondent's biological son, Luilly was not (TR at 36). In a letter dated May 12, 2010, the officer informed Luilly of the results of the DNA test and that as a result, he did not meet the requirements for immigration to Canada as a dependent child under subsections 12(1) of the IRPA and 117(1) of the IRPR (TR at 21-22).
5 On June 4, 2010, the respondent appealed the officer's decision to the IAD. The respondent filed written submissions and supporting affidavits invoking breaches both of natural justice and the Charter (TR at 223). The Minister of Public Safety and Emergency Preparedness [the minister] argued for its part that the IAD should dismiss the appeal for lack of jurisdiction or in the alternative, that there was no violation of principles of natural justice and no contravention of the Charter (TR at 147).
II. Impugned Decision
6 In its interlocutory decision rendered on April 11, 2011, the IAD determined that subsection 63(1) of the IRPA gave it jurisdiction over the matter and ruled that, in this particular case, the request for DNA tests to establish a biological link between the respondent and his sons violated procedural fairness and thus constituted a breach of natural justice. As a result, the DNA evidence was excluded from the proceedings, the officer's refusal was set aside, and the appeal was ordered to proceed with the respondent given an opportunity to provide any additional evidence to establish, on a balance of probabilities, that Luilly was his biological son (TR at 103).
7 Of note, the parties agreed that if the IAD were to determine Luilly was not a dependant child as set out in section 2 and paragraph 117(1)(b) of the IRPR, the constitutional question challenging the validity of these provisions would then be addressed by the IAD on the basis of the written submissions already made.
8 A hearing to determine the relationship between Luilly and the respondent was held on June 29, 2011. In reasons dated July 19, 2011, the IAD first addressed the minister's position that it did not have jurisdiction to hear the present appeal and that the file should be sent back to the visa office. The IAD concluded that under section 67 of the IRPA, it could substitute the officer's original decision with its own without referring the matter back to the visa office. As to the issue of Luilly's relationship with his father, the IAD determined that the respondent had established on a balance of probabilities that Luilly was his biological son and that he was therefore a member of the family class within the meaning of section 2 and paragraph 117(1)(b) of the IRPR.
9 Addressing the evidence before it, the IAD observed that all the testimonies heard and evidence submitted established that the respondent continued to treat Luilly as his son and that, while there was no documentary evidence to support the respondent's testimony that he continues to provide financial support for Luilly, the IAD had no reason to doubt his testimony. Regarding Luilly's birth certificate, which lists the respondent as his father, the IAD acknowledged the minister's argument that it was legitimate for the officer to investigate further to address his concerns about the respondent's paternity, as confirmed by this Court in Azziz v Canada (Minister of Citizenship and Immigration), 2010 FC 663 at para 68, [2010] F.C.J. No. 767 [Azziz]. However, the IAD distinguished Azziz on the basis that there were reasons to doubt the information on the birth certificate in that case: the mother's advanced age, her decision to give birth at a midwife's rather than at a hospital, and the fact the only evidence of the presumptive birth was a certificate from the midwife (IAD Reasons at para 15).
10 In the case at bar, the IAD notes that the respondent's paternity was not questioned by the Children Court, the social worker who conducted an evaluation prior to the custody judgment or by the judge who approved the custody agreement between the respondent and the children's mother. According to the IAD, the only factor that would have led the officer to question the respondent's paternity is the late registration of his sons' births. The IAD points out however that the registrations occurred before the respondent met his current wife and so the future prospect of sponsoring his children would play no role in the late registration.
11 Rather, the respondent testified that because he did not register his children at the time of their birth, he would have had to pay a fine and so he waited. His former sister-in-law, who worked for 20 years at the hospital where Luilly was born, also confirmed during her testimony that the respondent could not register the boys' births at the hospital. While the IAD noted that the respondent's testimony differed somewhat from his affidavit signed on January 26, 2011 (in which he declared that it was the prohibitive cost of registration which caused the delay), the IAD deemed this insufficient to cast doubt on his credibility.
12 While acknowledging the minister's position that fictively trying to determine biological filiation on the basis of testimonies and documents alone is very difficult, the IAD stated that this was clearly the situation contemplated by the Federal Court "[...] when it held that because of its intrusive nature, DNA testing should generally be limited to 'those relatively rare cases where viable alternatives to such testing do not exist' and that DNA evidence obtained improperly could be excluded" (IAD Reasons at para 19). It must be clarified that the IAD incorrectly attributed the citation above to the Federal Court when in fact it appears to have been taken from the IAD's decision in Mohamad-Jabir v Canada (Minister of Citizenship and Immigration), [2008] IADD 44 at para 33 [Jabir]. However, the IAD also referred to this Court's decision in MAO v Canada (Minister of Citizenship and Immigration), 2003 FC 1406 at paras 84 and 91, [2003] F.C.J. No. 1799 [MAO], which supports the IAD's statement above:
• 84 I agree with the Applicant that DNA evidence is "qualitatively different" from other forms of evidence. The intrusion into an individual's privacy that occurs with DNA testing means that it is a tool that must be carefully and selectively utilized. The visa officer acted as if this evidence was the only way under the former Act that the Applicant could prove his relationship to his children, instead of regarding it as one of several ways that the Applicant could establish his familial relationship to his children. In this manner, the officer fettered his discretion.
• [...]
• 91 In my opinion, the DNA evidence was obtained as a result of an error by the visa officer in too narrowly interpreting the breadth of his discretion under the former Act. Further, this evidence prompted the IAD to conclude that other evidence was "immaterial". In order to remedy the unfairness to the Applicant that has resulted from this improperly obtained evidence, I direct that the DNA evidence is to form no part of the IAD's decision, upon rehearing of this matter. The Applicant has requested a direction that the DNA evidence is to be regarded as only one factor in the IAD's decision. In my view, total exclusion of this evidence is required in order for the IAD to fairly assess this matter.
13 Finally, addressing the minister's argument that the legislator has chosen to favour biological over legal filiation, the IAD observed that while documents establishing legal filiation would be insufficient on their own to conclude biological filiation, and that testimony as to the relationship would establish only a de facto parent-child relationship, a combination of both types of evidence in this case led to the conclusion that the respondent has established on a balance of probabilities that Luilly was his biological son.
III. Parties' Positions
14 The minister raises three issues before this Court. First, it argues that the IAD has no jurisdiction to hear an appeal of a decision made by a visa officer not to issue a permanent resident visa when the sponsored foreign national is not the biological or adoptive child of the sponsor. Second, it argues that the IAD's conclusion that Luilly is the respondent's biological child is wholly inconsistent with the evidence. Finally, it argues that the officer's decision to order a DNA test did not contravene the principles of natural justice. The respondent naturally disagrees with the applicant on each of these points, siding instead with the IAD's decision. The respondent also notes that if this Court were to overturn the IAD's decision, the constitutional issue remains to be dealt with and would have to be sent back to the IAD or addressed by this Court.
IV. Issues
• 1.
Did the IAD have jurisdiction to hear the respondent's Appeal under the IRPA?
• 2.
Did the IAD err in finding that the visa officer contravened the principles of natural justice when he requested that the respondent complete a DNA test?
• 3.
Did the IAD err in finding that Luilly is the respondent's biological son and thus a dependent child and member of the family class under the IRPR?
V. Standard of Review
15 The parties agree that the second issue - whether the officer contravened the principles of natural justice by ordering a DNA test - should be assessed on a standard of correctness (Sapru v Canada (Minister of Citizenship and Immigration), 2011 FCA 35 at paras 25-27, [2011] F.C.J. No. 148). When applying this standard, the Court will show no deference to the IAD, instead undertaking its own analysis to determine the correct answer (Dunsmuir v New Brunswick, 2008 SCC 9 at para 50, [2008] 1 SCR 190 [Dunsmuir]).
16 The parties also agree that the IAD's determination of whether Luilly is the respondent's biological son is a factual finding to be assessed on the standard of reasonableness (Dunsmuir, above, at paras 51 and 53). This standard requires this Court to determine whether the IAD's conclusion falls within "a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, above, at para 47) and as long as this outcome fits comfortably with the principles of justification, transparency, and intelligibility, it is not open to this Court to substitute its own view for a more preferable outcome (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1 SCR 339).
17 The parties disagree however as to which standard to apply to the IAD's ruling that it had jurisdiction to hear the appeal. The minister submits that this issue raises a question of law to which the standard of correctness applies and relies on Smith v Alliance Pipeline Ltd, 2011 SCC 7 at para 37, [2011] 1 SCR 160 [Alliance Pipeline], where Justice Fish observed that a tribunal's interpretation of its home statute normally attracts the standard of reasonableness, but not where the question raised demarcates the tribunal's authority from that of another specialized tribunal. The respondent contends that the issue here is not whether the appeal should have been heard by one tribunal or another, but whether it should have been heard at all. The issue called for the IAD to interpret its jurisdiction as set out in the IRPA, and as acknowledged by the Supreme Court in Alliance Pipeline and Dunsmuir before it, the reasonableness standard should apply to a tribunal's interpretation of its own statute (Dunsmuir, above, at para 54).
18 Having considered that the IAD's jurisdiction to hear the appeal is determined by interpreting the relevant provisions of the IRPA and that the IAD's jurisdiction to hear this appeal would not impede any other specialized tribunal's jurisdiction, this Court finds that the appropriate standard of review is reasonableness. As stated above, this Court will only intervene if it determines that the IAD's decision does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir, above, at para 47).
VI. Analysis
• A.
Did the IAD have jurisdiction to hear the Respondent's Appeal under the IRPA?
19 In examining the relevant provisions of the IRPA, this Court bears in mind the remarks of Chief Justice McLachlin and Justice Major in Canada Trustco Mortgage Co v Canada, 2005 SCC 54 at para 10, [2005] 2 SCR 601 [Canada Trustco] regarding statutory interpretation:
• It has been long established as a matter of statutory interpretation that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": see 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at para. 50. The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole. [Emphasis added.]
20 In its interlocutory decision dated April 11, 2011, the IAD determined that it had jurisdiction to hear the appeal, "[c]onsidering that this is an appeal based on [subsection] 63(1) of the [IRPA] against a decision not to issue a permanent resident visa to [Luilly] as a member of the family class [...]" (TR at 103, IAD Interlocutory Reasons at para 10). The subsection of the IRPA to which the IAD refers is as follows:
• Immigration and Refugee Protection Act, SC 2001, c 27
• Right to appeal -- visa refusal of family class
• 63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa. [Emphasis added.]
* * *
• Loi sur l'immigration et la protection des réfugiés, LC 2001, ch 27
• Droit d'appel : visa
• 63. (1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent. [Nous soulignons.]
21 Importantly, subsection 10(6) of the IRPR clarifies that for an application to be filed "in the prescribed manner," it must be made in accordance with subsection 10(1):
• Immigration and Refugee Protection Regulations, SOR/2002-227
• Form and content of application
• 10. (1) Subject to paragraphs 28(b) to (d), an application under these Regulations shall
• (a) be made in writing using the form provided by the Department, if any;
• (b) be signed by the applicant;
• (c) include all information and documents required by these Regulations, as well as any other evidence required by the Act;
• (d) be accompanied by evidence of payment of the applicable fee, if any, set out in these Regulations; and
• (e) if there is an accompanying spouse or common-law partner, identify who is the principal applicant and who is the accompanying spouse or common-law partner.
* * *
• Règlement sur l'immigration et la protection des réfugiés, DORS/2002-227
• Forme et contenu de la demande
• 10. (1) Sous réserve des alinéas 28b) à d), toute demande au titre du présent règlement :
• a) est faite par écrit sur le formulaire fourni par le ministère, le cas échéant;
• b)
est signée par le demandeur;
• c) comporte les renseignements et documents exigés par le présent règlement et est accompagnée des autres pièces justificatives exigées par la Loi;
• d) est accompagnée d'un récépissé de paiement des droits applicables prévus par le présent règlement;
• e) dans le cas où le demandeur est accompagné d'un époux ou d'un conjoint de fait, indique celui d'entre eux qui agit à titre de demandeur principal et celui qui agit à titre d'époux ou de conjoint de fait accompagnant le demandeur principal.
The minister has raised no grounds on which to conclude that the respondent's application did not meet these criteria.
22 The minister is of the view however that the IAD has no jurisdiction to hear an appeal under subsection 63(1) when the sponsored foreign national is not a member of the family class. Paragraph 117(1)(b) of the IRPR sets out that a foreign national is a member of the family class if he or she is a dependent child of the sponsor, while section 2 of the IRPR defines a dependent child as the biological or adopted child of the parent. Hence in the case at bar, the minister argues that the IAD committed an error in law in hearing the appeal because Luilly was not the biological or adopted son of the respondent and thus not a member of the family class.
23 To support its interpretation, the minister relies on three Federal Court decisions (Bui v Canada (Minister of Citizenship and Immigration), 2001 FCT 144, [2001] F.C.J. No. 296 [Bui]; Samra v Canada (Minister of Citizenship and Immigration) (2000), 193 FTR 263, [2000] F.C.J. No. 1491 [Samra]; Bistayan v Canada (Minister of Citizenship and Immigration), 2008 FC 139, [2008] F.C.J. No. 169 [Bistayan]) and three IAD decisions which are purported to have adopted the minister's reasoning (Watson v Canada (Minister of Citizenship and Immigration), [2008] IADD 2475 [Watson]; Green v Canada (Minister of Citizenship and Immigration), [2008] IADD 1901 [Green]; Guerre v Canada (Minister of Citizenship and Immigration), [2011] IADD 836 [Guerre]).
24 For example, the minister refers to Samra, above, to argue that "[w]hen a person is found to be outside the member of the family class category, the IAD has no jurisdiction to hear an appeal and must dismiss it" (ASM at paras 40-41) and relies on Bui, above, to argue that "the IAD cannot entertain appeals when it finds that an individual is not a 'member of the family class' as set forth in the legislation and the regulations [emphasis added]" (ASM at para 40). Yet in this second statement the minister concedes that it is the IAD that must determine that the foreign national is not a member of the family class - it must not simply rely on the finding made by the visa officer. In fact, this distinction reveals the primary flaw in the minister's argument that the IAD did not have jurisdiction to hear the respondent's appeal. This Court will now seek to clear up any confusion that may have arisen over the interpretation of the relevant provisions of the IRPA and the case law referred to by the minister.
25 Firstly, as previously mentioned, when a decision is made not to issue a permanent resident visa to a foreign national, subsection 63(1) of the IRPA allows a right of appeal to the IAD to the person who filed that application in the prescribed manner, as set out in subsection 10(1) of the IRPR.
26 Secondly, to allow such an appeal, subsection 67(1) of the IRPA sets out that the IAD must be satisfied at the time the appeal is disposed of that either (a) the decision appealed was wrong in law or fact or mixed law and fact, (b) a principle of natural justice had not been observed, or (c) sufficient humanitarian and compassionate [H&C] considerations warranted special relief in light of all the circumstances of the case:
• Immigration and Refugee Protection Act, SC 2001, c 27
• Appeal allowed
• 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
• (a) the decision appealed is wrong in law or fact or mixed law and fact;
• (b) a principle of natural justice has not been observed; or
• (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
* * *
• Loi sur l'immigration et la protection des réfugiés, LC 2001, ch 27
• Fondement de l'appel
• 67. (1) Il est fait droit à l'appel sur preuve qu'au moment où il en est disposé :
• a) la décision attaquée est erronée en droit, en fait ou en droit et en fait;
• b) il y a eu manquement à un principe de justice naturelle;
• c) sauf dans le cas de l'appel du ministre, il y a -- compte tenu de l'intérêt supérieur de l'enfant directement touché -- des motifs d'ordre humanitaire justifiant, vu les autres circonstances de l'affaire, la prise de mesures spéciales.
27 Thirdly, section 65 of the IRPA makes clear that the final ground to allow an appeal under paragraph 67(1)(c) (H&C considerations) may only be considered by the IAD once it has confirmed the foreign national is a member of the family class:
• Immigration and Refugee Protection Act, SC 2001, c 27
• Humanitarian and compassionate considerations
• 65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations. [Emphasis added.]
* * *
• Loi sur l'immigration et la protection des réfugiés, LC 2001, ch 27
• Motifs d'ordre humanitaires
• 65. Dans le cas de l'appel visé aux paragraphes 63(1) ou (2) d'une décision portant sur une demande au titre du regroupement familial, les motifs d'ordre humanitaire ne peuvent être pris en considération que s'il a été statué que l'étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire. [Nous soulignons.]
Section 65 makes clear that when examining an appeal of a decision that a foreign national is not a member of the family class, as was the case here, the IAD must first determine for itself the status of the foreign national before it may take into account any H&C considerations pursuant to paragraph 67(1)(c).
28 That being said, section 65 does not preclude the IAD from considering any remaining arguments based on an error in law or fact or mixed law and fact (paragraph 67(1)(a) of the IRPA) or any arguments concerning whether a principle of natural justice was not observed (paragraph 67(1)(b)) when such arguments have a direct bearing on the finding that the foreign national is not a member of the family class. The reason for this requirement is quite simple: if either the error in law or fact or the breach of natural justice is irrelevant to the finding that the foreign national is not a member of the family class, the appeal would evidently fail because a foreign national who is not a member of the family class cannot be sponsored for permanent residency under subsection 13(1) of the IRPA. But where, as in the case at bar, the applicant successfully raises an issue of natural justice that goes to the finding that they are not a member of the family class, there is no question that the IAD has jurisdiction to hear such an argument under subsections 63(1) and 67(1) and to determine for itself whether this impacts on the final outcome of the decision under appeal.
29 The IAD acknowledged this very possibility in its letter of December 30, 2010 where it explained how the respondent's appeal would be considered (TR at 181):
• If the member of the IAD decides that the sponsored foreign national is not a member of the family class, the member may dismiss the appeal because the decision to refuse a permanent resident visa would be correct [...] If the member does not dismiss the appeal, the parties will be advised in writing and the IAD will continue with the regular process in considering the appeal. [Emphasis added.]
30 By disputing the mandatory obligation to conduct DNA testing, the respondent raised an issue of natural justice which could be considered under paragraph 67(1)(b). Accordingly, this Court disagrees with the minister's allegation that the IAD ignored the "member of the family class" provisions in the IRPA and IRPR and instead crafted itself an appellate jurisdiction by making a finding on an issue of natural justice. Considering the general principles of statutory interpretation repeated in Canada Trustco and seeking to read the provisions of the IRPA as a harmonious whole, this Court finds that the application of the ordinary meaning of the precise and unequivocal wording of sections 63, 65, and 67 is reasonable in these circumstances and leads to the conclusion that the IAD remains free to consider whether any principle of natural justice had not been observed by the visa officer and whether it was directly linked to the determination that Luilly was not a member of the family class.
31 After hearing from both parties on this issue, the IAD determined there had indeed been a breach of natural justice and so it ordered the results of the DNA testing and any other evidence that had arisen from it to be excluded. Accordingly, whether Luilly was a member of the family class remained a live issue and the IAD was free to continue the regular appeal process. Under subsection 67(2) of the IRPA, the IAD had the jurisdiction to hear the evidence from both parties, set aside the officer's original decision, and substitute its own determination. If the IAD had instead concluded that the DNA testing did not constitute a breach of natural justice or that it did not impact the finding that Luilly was not the respondent's biological son, it could have agreed that based on the DNA evidence, Luilly was not a member of the family class and thus excluded from the possibility of sponsorship under subsection 13(1) of the IRPA.
32 The minister has interpreted section 65 of the IRPA as having an impact on the IAD's jurisdiction to hear an appeal as set out in subsection 63(1). A reading of both provisions makes clear that section 65 does not limit the right of appeal under subsection 63(1), but rather the grounds that may be considered under section 67. Aside from two exceptions set out in subsections 64(1) and 64(2) (where the foreign national or sponsor has been deemed inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, or where the foreign national in question has been deemed inadmissible for misrepresentation and is not the sponsor's spouse, common-law partner or child), the IAD will continue to have jurisdiction under subsection 63(1) to hear an appeal of a decision not to issue a foreign national a permanent resident visa. However, where there was a finding that the foreign national was not a member of the family class, the IAD has jurisdiction to hear any argument as to whether an error in law or fact or a breach of natural justice directly impacts this finding. In the absence of such arguments, the appeal cannot continue as the foreign national will not qualify under subsection 13(1) regardless of any other issues raised in the appeal. The following case law from this Court and the IAD, which was raised by the minister, supports the above interpretation of the IRPA.
33 The minister cited paragraph 32 of Bui, above, which reads as follows:
• When the tribunal finds that a spouse is not a "member of the family class" within the meaning of the Act, it is entitled to refuse to undertake consideration of the second part of s. 77(3). The tribunal can only make a ruling in equity when the refusal is of a non-jurisdictional kind, such as for medical reasons. However, when the refusal is jurisdictional in nature it must dismiss the appeal for want of jurisdiction and so has no power to grant special relief in equity. [Emphasis added.]
To clarify, the second part of subsection 77(3) of the old Immigration Act mentioned above sets out that a sponsor may appeal to the IAD on the ground that there exist H&C considerations that warrant the granting of special relief. As a result, Justice Lemieux ruled in Bui that before the IAD could proceed with H&C considerations, it had to determine whether the sponsored spouse had entered into the marriage in good faith, thereby first confirming his status as a member of the family class. The decision in Bui thus reflects precisely what is established by section 65 of the IRPA: when examining an appeal under subsection 63(1) of the IRPA, the IAD must first confirm that the foreign national is a member of the family before it may examine any H&C considerations.
34 It should also be mentioned that Justice Lemieux confirmed in Bui that the hearing before the IAD as to whether the marriage was entered into in good faith was an appeal de novo, that the IAD was not required to simply review the officer's decision, and that the plaintiff could present new evidence to the IAD (Bui, above, at paras 19, 24 and 27). The same procedure was correctly applied in the case at bar, where the IAD accepted arguments from both parties and once it accepted the argument concerning natural justice, it considered de novo the issue of Luilly's relationship with the respondent and allowed both parties to make submissions.
35 The minister also cited paragraph 11 of Samra, above, which reads as follows:
• Once a determination as to membership in the family class has been made, the jurisdictional issue of the Immigration Appeal Division must be considered. As the Appeal Division can hear only those family class appeals where the applicants are found to be within the provided definition, if the applicant is determined to be outside that category, the Appeal Division has no jurisdiction to make a determination regarding the application for landing. This is demonstrated in the decisions of Blais, J. in Chattat v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 813, (May 26, 1999, IMM-5220-98) and Reed, J. in Chow v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1131, (July 29, 1998, IMM-5200-97).
In Samra, both the immigration officer and the Appeal Division refused the applications for permanent residence on the grounds that the applicants had not been adopted in accordance with the Immigration Regulations and Indian law. As the respondent rightfully points out, Justice Muldoon found in this decision that the IAD will have no jurisdiction to make a determination regarding the application for landing when the IAD itself (and not an earlier decision-maker) determines that the foreign national is not a member of the family class. In his reasons, Justice Muldoon stated clearly that the IAD refused the applications for permanent residence only after it found the applicants were not members of the family class (Samra, above, at para 2). There is no indication in these reasons that the parties raised any arguments regarding errors of fact or law or breaches of natural justice directly related to the finding of non-membership in the family class.
36 Similar conclusions were made in the two decisions referred to by Justice Muldoon. In Chattat v Canada (Minister of Citizenship and Immigration) (1999), 91 ACWS (3d) 804, [1999] F.C.J. No. 813, Justice Blais confirmed that the Appeal Division examined the evidence before it and determined for itself that the applicant and appellant did not have a husband-and-wife relationship. Only then did it determine that it did not have jurisdiction to proceed further. Meanwhile in Chow v Canada (Minister of Citizenship and Immigration) (1998), 153 FTR 236, [1998] F.C.J. No. 1131 [Chow], the appellant commenced an appeal to the IAD in a case where her brother had not been admitted. However, siblings did not fall under the definition of family member under the provisions of the IRPR. Hence on its face the application could not be allowed as it was not in dispute that the foreign national sponsored in the application did not meet the definition of family member as set out in the IRPR.
37 In the same way, the three IAD decisions referred to by the minister confirm this reasoning. First, in both Watson and Green, the IAD did not question its jurisdiction to determine whether the appellant was a member of the family class. Meanwhile in Guerre, a one-page decision where the appellant failed to even respond to the minister's argument regarding jurisdiction, the appellant had attempted to directly sponsor a cousin, but cousins also do not fall under the definition of a member of the family class. Thus just as in Chow, above, it was clear from the outset that the foreign national did not qualify as a member of the family class and no arguments alleging an error in fact or law or breach of natural justice was raised in this regard.
38 Finally, in referring to this Court's decision in Bistayan, above, the minister attempts to draw a parallel with paragraph 117(9)(d) of the IRPR. This provision sets out that a foreign national shall not be considered a member of the family class if the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined (with one exception provided for in cases where an officer had determined the foreign national was not required to be examined).
39 The minister argues that the Federal Court has consistently found the IAD not to have jurisdiction to hear appeals where paragraph 117(9)(d) has come into play, but as Justice Shore rightfully points out in Bistayan, first "the IAD had to assess if Ms. Bistayan was a person described in paragraph 117(9)(d) of the Regulations before deciding if it had jurisdiction or not" (Bistayan, above, at para 26). The IAD thus had to determine for itself whether the foreign national fell under paragraph 117(9)(d) and the appellant had a right to make submissions on this issue. In fact, Justice Shore points out that the IAD did not dismiss the appellant's appeal for lack of jurisdiction, but rather that it considered the appeal, but found that the appellant's son was a person described in paragraph 117(9)(d) and so it did not have jurisdiction to consider H&C grounds pursuant to section 65 of the IRPA (Bistayan, above, at paras 31-33). Once again, this is precisely the interpretation given in these reasons to paragraph 63(1) and section 65 of the IRPA.
40 Having determined that the IAD had jurisdiction to determine for itself Luilly's status and also to hear any arguments concerning natural justice raised by the respondent in that regard, it also bears repeating the following warning raised by the respondent when considering the validity of the minister's argument that the IAD should have no jurisdiction to consider the respondent's appeal (respondent's Supplementary Memorandum at paras 20-25):
• Moreover, the [IAD] would be unable to condemn a breach of natural justice from the moment that proof obtained by such breach had a material effect on the qualification of an Applicant as a member of the family class;
• It seems unlikely that the legislator would have wanted to reward breaches of natural justice, shielding officers from an Appeal whenever proof obtained illegally is probing;
• It is especially so given the fact that the [IAD] was clearly given jurisdiction in breaches of natural justice at [section] 67 of the IRPA;
• Applicant's logic deprives article 67 of any meaning;
• If one were to follow Applicant's logic, the IAD would only have jurisdiction on a natural justice issue when the result of such a breach is immaterial to the file;
• An Appeal on a question of natural justice would thus become an illusory recourse; [...]
This Court agrees with the respondent's concerns that if the IAD were not to have jurisdiction to consider this matter, then an appellant in a similar situation could very well find him or herself with no recourse despite an apparent breach of natural justice which impacts on the qualification to be made. The respondent points out that such an outcome would clearly contradict the Supreme Court's recognition that: "[...] there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual" (Cardinal v Kent Institution, [1985] 2 SCR 643 at para 14, [1985] SCJ 78).
41 Finally, it is worth mentioning that this Court has ruled in similar cases that where sponsors proceeded immediately with an application for judicial review, they had not exhausted their right of appeal to the IAD (Li v Canada (Minister of Citizenship and Immigration), 2006 FC 1109 at para 20, [2006] F.C.J. No. 1409 and Landaeta v Canada (Minister of Citizenship and Immigration), 2012 FC 219 at para 24, [2012] F.C.J. No. 258).
• B.
Did the IAD err in finding that the visa officer contravened the principles of natural justice when he requested that the respondent complete a DNA test?
42 In determining that the officer had contravened the principles of natural justice, the IAD relied predominantly on this Court's decision in MAO, above, where Justice Heneghan examined a case that shares many parallels with the matter before us. Among her conclusions, Justice Heneghan determined that the IAD had committed an error in law by interpreting the former Act as requiring a visa officer to demand that the applicant provide DNA evidence and also by failing to inquire as to whether the visa officer erred in requesting the DNA evidence from the applicant (MAO, above, at para 78).
43 Of particular importance to Justice Heneghan was the fact that the officer in that case had requested the DNA tests from the applicant in a manner that left no choice but to undergo the testing: "Failure to undergo a DNA blood test will likely lead to the refusal of an application [...] If we do not hear from you within 3 months of the date of this letter we will assume that there is no interest in doing the test and we will proceed accordingly with the refusal of the application" (MAO, above, at para 81). In strikingly similar fashion, the officer in the present case also left the respondent no choice: "If you wish to proceed with this application, Luilly and Luilivin will be required to undergo DNA testing to establish the relationship [...] If I do not receive word [...] within the next [two] months, stating that you will be proceeding with the DNA testing, I will assume that you are no longer interested in pursuing the sponsorship and will close the file" (TR at 67).
44 In light of the fact the former Act contained no requirement that an applicant undergo DNA testing when other traditional forms of documentation were not available (and the minister has given no indication the IRPA or IRPR now contains such a requirement), Justice Heneghan considered the letter from the officer to be "[...] improper and unfair. While in some circumstances DNA evidence may be considered necessary by the deciding officer, in the present case, the visa officer did not consider whether the applicant could provide other evidence" (MAO, above, at para 83). In the present case it is apparent the officer also treated DNA testing as if it were the only option available to confirm the respondent's paternity, failing to even raise the possibility that other evidence could be provided. Yet Justice Heneghan warned against precisely this type of behaviour (MAO, above, at paras 83-84):
• 83 In my opinion, the visa officer's letter requesting the DNA evidence, stating that if it was not provided the application would "likely" be refused, was improper and unfair. While in some circumstances DNA evidence may be considered necessary by the deciding officer, in the present case, the visa officer did not consider whether the Applicant could provide other evidence.
• 84 [...] The intrusion into an individual's privacy that occurs with DNA testing means that it is a tool that must be carefully and selectively utilized. The visa officer acted as if this evidence was the only way under the former Act that the Applicant could prove his relationship to his children, instead of regarding it as one of several ways that the Applicant could establish his familial relationship to his children. In this manner, the officer fettered his discretion. [Emphasis added.]
Justice Heneghan determined that the only appropriate relief in that case was to send the matter back for redetermination and to order that the DNA evidence form no part of the IAD's decision upon rehearing the matter.
45 Should there be any doubt as to whether Justice Heneghan's views are still applicable today, almost a decade later, Citizenship and Immigration Canada's [CIC] operation manuals are certainly enlightening in this case. Section 5.10 of operating manual OP 1 - Procedures advises immigration officers of the following: "5.10 When is a DNA test appropriate? A DNA test to prove relationship is a last resort. When documentary submissions are not satisfactory evidence of a bona fide relationship, officers may advise applicants that positive results of DNA tests by a laboratory listed in Appendix E are an acceptable substitute for documents." Also of note is the suggested sample letter for requesting DNA tests provided in Appendix D, which includes the following excerpts that reveal important differences between it and the letter sent by the officer:
• [...]
• Since the documentary evidence you have provided does not enable us to establish parentage between you and the child, and you are unable to obtain other documentary evidence, in place of documentary evidence we will accept the results of a DNA analysis carried out by a laboratory accredited by the Standards Council of Canada for DNA testing.
• [...]
• DNA tests are not mandatory.
• If we are not advised within 90 days by a laboratory that you will undergo DNA testing, we will assume that you are no longer interested in providing a DNA test result and will render a decision based on the information available to us at that time.
• [Emphasis added.]
46 The officer in the case at bar appears never to have considered - let alone suggested - any alternative to DNA testing. Instead, without analyzing the evidence already submitted, basing himself solely on the fact the respondent had not registered his children until 2001, and without giving an opportunity to explain this omission or to provide any other documentary evidence, the officer simply demanded that the respondent and his sons undergo DNA testing or the file would be closed (see CAIPS notes in TR at 32-33). In doing so, the officer completely disregarded this Court's warning that DNA testing is "a tool that must be carefully and selectively utilized" (MAO, above, at para 84) and ignored the CIC's operation manual which makes clear that DNA testing "is a last resort." While not law and not binding, these manuals have been recognized by this Court as valuable guidelines to the immigration officers in carrying out their duties (Frank v Canada (Minister of Citizenship and Immigration), 2010 FC 270 at para 21, [2010] F.C.J. No. 304 and John v Canada (Minister of Citizenship and Immigration), 2010 FC 85 at para 7, [2010] F.C.J. No. 100).
47 Many of the considerations which explain why officers should not consider DNA testing as the only means to determine filiation were set out by the IAD in Jabir, above, at paragraph 33:
• A request for DNA testing should be limited generally to those relatively rare cases where viable alternatives to such testing do not exist. The reason for this relates to the intrusive nature of such testing, the high costs involved in undertaking the same, the accompanying delays in the immigration process in obtaining such testing, and religious and philosophical reasons for refusing or being reluctant to undertake such testing. The concern is ultimately a question of whether it is reasonable to obtain such testing in the context on the one hand of practical considerations such as efficiency and the like and on the other hand in the context of personal considerations involving such concerns as cultural and religious categorical imperatives. It involves in part a balancing process with a view to achieving a meaningful and fair disposition of the issue involved.
48 In spite of this, the minister submits that the officer's request to conduct a DNA test did not constitute a violation of natural justice as there were concerns raised by the late registration of Luilly's birth more than six years after it occurred. The minister invokes section 55 of the Dominican Civil Code, which requires that births in the country be registered within 5 or 15 days of the birth of a child depending on the circumstances (TR at 169-171). While the minister blames the IAD for not mentioning this law in its reasons, there is also no mention of it in the CAIPS notes and so no evidence that the law was of any concern to the officer. The respondent also adds that there is no proof the law was in place at the time of Luilly's birth nor is there any evidence that the law was ever enforced by authorities.
49 The minister points to events that followed the officer's decision, including certain contradictions found in the respondent's testimony, as raising further questions and concerns as to the delay to register Luilly's birth. However, as the respondent rightfully points out, these subsequent events have no role to play in determining whether the officer's initial decision to order DNA tests constituted a breach of natural justice.
50 The applicant's attempt to distinguish MAO, above, by emphasizing Justice Heneghan's remarks that she was dealing with a unique factual situation fail to sway this Court. As previously established, the same factors that led Justice Heneghan to her decision (the fact that the officer completely disregarded alternatives to DNA testing and left the applicants with no choice but to proceed with it) were present in this case and lead this Court to draw the same conclusion. As a result, this Court finds the IAD's determination that a breach of natural justice had occurred to be correct.
51 Regarding the decision to exclude the DNA evidence, the respondent refers this Court to the following statement made by the Supreme Court in R v G (B), [1999] 2 SCR 475 at para 33, [1999] SCJ 29, arguing there is no reason not to apply this ruling to the present procedure:
• To reintroduce an involuntary statement in this way would run counter to the most fundamental aspect of trial fairness. In many cases, as here, the guilt of the accused will depend solely on his or her credibility and on that of the other witnesses. To allow the statement to be used, even for the limited purpose of undermining the credibility of the accused, could lead to abuse and serious injustice. That is why the traditional rule, which is still in force in Canadian law, must be interpreted in such a way that no use may be made of an inadmissible statement at any stage whatsoever of the trial.
The minister did not raise any argument concerning whether exclusion of the DNA evidence was the appropriate remedy in these circumstances and this Court sees no reason to question the IAD's decision, which is consistent with what was ordered in MAO, above.
• C.
Did the IAD err in finding that Luilly is the respondent's biological son and thus a dependent child and member of the family class under the IRPR?
52 The minister submits that it was unreasonable for the IAD to conclude that the respondent had established that he was Luilly's biological father and that it ignored or failed to consider "the most significant evidence in this case" (ASM at para 67). The minister refers for example to the respondent's written submissions sent in response to the IAD's preliminary letter of December 30, 2010, in which the respondent acknowledges that only one of his two children is his biological child (TR at 235 and 606). A similar admission is made in the Notice of Constitutional Question filed by the respondent (TR at 183). Finally, the minister highlights the respondent's affidavit of January 26, 2011, in which the respondent alludes to the DNA test results (TR at 260 and 262), and the transcript of the hearing, which shows that the respondent is fully aware that he is not Luilly's biological father (TR at 613-614).
53 This Court rejects the minister's arguments and agrees with the respondent that the order to exclude the DNA evidence also excludes not only the arguments or declarations made in order to obtain that exclusion, but also any evidence that is attributable only to the DNA test. To do otherwise would justify the breach of natural justice. Consequently the issue is whether, after having excluded any evidence that arose directly from the DNA testing, the respondent was able to establish on a balance of probabilities that he was the biological father of Luilly. In light of the testimonial and documentary evidence in this case, this Court finds that the IAD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law as called for by Dunsmuir, above, at paragraph 47.
54 The parties were invited to submit questions for certification and the minister submitted the following:
• Under section 63(1) of the Immigration and Refugee Protection Act, does the Immigration Appeal Division have jurisdiction to hear an appeal when the foreign national who filed an application for permanent residence is not, in relation to his sponsor, his biological or adopted child pursuant to the definitions of "dependent child" and "member of the family class" at sections 2(1) and 117(1)b) of the Immigration and Refugee Protection Regulations?
55 For its part, the respondent submitted three questions for certification, of which the first reiterates the minister's question with the underlined addition:
• 1.
Under section 63(1) of the Immigration and Refugee Protection Act, does the Immigration Appeal Division have jurisdiction to hear an appeal when the foreign national who filed an application for permanent residence is not, as deemed by the minister acting through its local representative in a Canadian visa office, in relation to his sponsor, his biological or adopted child pursuant to the definitions of "dependent child" and "member of the family class" at sections 2(1) and 117(1)b) of the Immigration and Refugee Protection Regulations?
• 2.
Does the Immigration Appeal Division have jurisdiction to determine whether or not there has been a breach of natural justice with respect to a decision made by the Minister acting through its local representative in a Canadian visa office, as to whether or not a foreign national who filed an application for permanent residence in the prescribed manner is, in relation to his sponsor, his biological or adopted child?
• 3.
If a genetic test of paternity is conducted in violation of the basic rights of an applicant for permanent residence as a sponsored person in the family class, in the category of a "dependent child," and is set aside for this reason by the Immigration Appeal Division, can the Immigration Appeal Division render a fresh decision on paternity on such other evidence that may be available in the file?
[Emphasis added.]
56 This Court agrees with the minister's submission that the second and third questions raise an argument as to the scope of the jurisdiction of the IAD that need not be raised as stand-alone questions and may already be addressed within the confines of the first question.
57 With regard to the first question, the minister submits that the first question should not assume that the application was filed in the "prescribed manner," but this Court disagrees with the minister's assertion that the addition to the question proposed by the respondent lacks neutrality. In this case, it is not in dispute that the determination Luilly was not a member of the family class was a determination made by the minister acting through its local representative in a Canadian visa office. The question remains whether in such cases, the IAD has jurisdiction to hear an appeal of this type of decision and on what grounds. Accordingly, the question will be certified as follows:
• Under section 63(1) of the Immigration and Refugee Protection Act, does the Immigration Appeal Division have jurisdiction to hear an appeal when the foreign national who filed an application for permanent residence is not, in relation to his sponsor, his biological or adopted child pursuant to the definitions of "dependent child" and "member of the family class" at sections 2(1) and 117(1)b) of the Immigration and Refugee Protection Regulations, as deemed by the minister acting through its local representative in a Canadian visa office?
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed and the following question is certified:
• Under section 63(1) of the Immigration and Refugee Protection Act, does the Immigration Appeal Division have jurisdiction to hear an appeal when the foreign national who filed an application for permanent residence is not, in relation to his sponsor, his biological or adopted child pursuant to the definitions of "dependent child" and "member of the family class" at sections 2(1) and 117(1)b) of the Immigration and Refugee Protection Regulations, as deemed by the minister acting through its local representative in a Canadian visa office?
NOËL J.
Labels:
Canada immigration,
Canada immigration criminality IAD appeal rights,
child,
DNA testing,
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