Date: 20040130
Docket: IMM-1947-02
Citation: 2004 FC 165
OTTAWA, ONTARIO, THE 30TH DAY OF JANUARY 2004
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
SHAMSUN NAHER BEGUM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] At the hearing of this application for judicial review, counsel for the Minister conceded the visa officer breached a requirement of procedural fairness by failing, at the interview of the applicant and her son, to make known his concerns about the school and university documentation previously provided by them so as to give the applicant and her son an opportunity to explain that documentation. Afterwards the visa officer gave those documents no weight because they were true copies of originals attested to subsequent to the date of the decision to immigrate and because, in his view, attestations are "easily purchased from corrupt notaries and officials". (See visa officer's July 15, 2002 affidavit).
[2] In my view, counsel for the Minister was correct in making this concession in the light of the Court's decision in Tran v. Canada (Minister of Citizenship and Immigration), [2001] F.C.T. 919, rendered by Justice Rothstein, sitting as a member of the then Trial Division.
[3] The decision the visa officer had to make was whether the applicant's son was a dependent son whom she could include in her application for permanent residence in Canada.
[4] He was older than nineteen years old and, therefore, had to satisfy the visa officer he had been continuously enrolled and in attendance as a full time student at a university, college or other educational institution.
[5] After the receipt of the application for permanent residence, the Canadian High Commission in Singapore (the "High Commission") was concerned about a gap in his education between 1996 and 1998 and on May 25, 2001 requested additional supporting documentation including a written explanation from Mr. Amzadur Rahman Chowdhury's (the "dependent son") activities from December 1996 to January 1998.
[6] The requested supporting documentation was sent to the High Commission by the applicant's solicitor on August 8, 2001.
[7] As noted, the visa officer interviewed the applicant and her son in Dhaka on February 20, 2002. For the purposes of this decision, I need not expand upon nor resolve the conflicting versions of what transpired during the interview.
[8] On February 26, 2002, the visa officer sent a letter to the applicant advising her that her son was not eligible to be included in her application for permanent residence because he did not meet the definition of dependent son. He stated "your son does not meet this definition because your son admitted to me from 1996 to 1998 he did nothing. He said he simply sat at home".
[9] In my view, the visa officer reached the conclusion Mr. Chowdhury did not fit the definition of dependent son partly on the basis of the interview he had with him and partly on the basis of giving no weight to Mr. Chowdhury's personal university documents and his written statement.
[10] Justice Rothstein's decision in Tran is persuasive. That case also involved a visa officer casting aside personal documents, namely, school certificates because "many Vietnamese documents such as household registry or school certificates, are fraudulent, incorrect, and generally unreliable". Moreover, in that case, no interview had been conducted. This is what Justice Rothstein wrote:
¶ 6 As to the authenticity of the documentary evidence submitted, it is not unreasonable for a Visa Officer to rely on experience of a high level of fraud at a visa post to raise suspicions about the authenticity of documents. Generally, this would suggest that documents be more closely reviewed than might otherwise be the case. See for example, Mina v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1735 per Dawson J. In Mina, the Visa Officer rejected the authenticity of documents because the documents submitted were not in the original and were issued many years after the fact.
¶ 7 I do not think a Visa Officer may simply reject the authenticity of specific documents because of a high level of fraud experienced at a visa post. At least there must be some examination of the actual documents submitted.
¶ 8 There is no indication that occurred in this case. The Visa Officer gave no indication he examined the documents submitted to determine their authenticity. A review of the record does not indicate whether the Vietnamese documents submitted were originals or copies. Nor is it obvious when the documents were issued.
[11] Notwithstanding his acknowledgement of a breach of procedural fairness, counsel for the respondent urged upon me the visa officer's decision should stand because a review of the record clearly shows the documentation provided by the applicant's son is unreliable and that his written account of time spent between December 96 and January 98 contradicts what he told the visa officer during the interview. He invoked the Federal Court of Appeal's decision in Stelco Inc. v. British Steel Canada Inc., [2000] 3 F.C. 282.
[12] I do not find Stelco useful in the circumstances before me. Stelco stands for the proposition that even if the tribunal committed a reviewable error on some of its findings of fact, its decision will be upheld if there were other facts on which it could reasonably base its ultimate conclusion. In Stelco, the Canadian International Trade Tribunal had made findings of fact; here, counsel for the respondent is asking me to make new findings of fact. To do so, in my view, would overstep the court's rule on judicial review.
[13] More to the point, is, however, the Supreme Court of Canada's decision in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 which stands for the proposition that a breach of natural justice or procedural fairness may be disregarded where the merits of the claim are such that it would be hopeless in any event.
[14] I do not think Mobil Oil, supra, supports the Minister's request that I should not disturb the visa officer's decision. In that case, the Supreme Court of Canada refused to quash a decision reached in breach of procedural fairness because the results of its decision on cross-appeal made certiorari without purpose. That cross-appeal was determined as a matter of law and did not involve the Supreme Court of Canada making findings of fact.
O R D E R
[15] For all of these reasons, this judicial review application is allowed, the visa officer's decision of February 26, 2002 is set aside and the matter is remitted to a different visa officer for redetermination, based upon a more thorough assessment of the documents that are in the record and such further documents as the applicant may submit and, if deemed necessary or desirable by the visa officer, an interview of the applicant and her son. No certified question was proposed.
" François Lemieux "
__________________________________
J U D G E
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1947-02
STYLE OF CAUSE: SHAMSUN NAHER BEGUM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY JANUARY 22, 2004
REASONS FOR ORDER
AND ORDER BY: LEMIEX, J.
APPEARANCES BY: Mr. Ian R. J. Wong
For the Applicant
Mr. Robert Bafaro
For the Respondent
SOLICITORS OF RECORD: Ian R. J. Wong
Barrister and Solicitor
Suite 710 - 6 Adelaide Street East
Toronto, Ontario
M5C 1H6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent