Ottawa, Ontario, the 5th day of December 2005
PRESENT: THE HONOURABLE MR. JUSTICE NOËL
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
NOËL J.
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act S.C. 2001, c. 27 (IRPA) of a decision by the Immigration Appeal Division (the Appeal Division) dated January 25, 2005, confirming the decision by the immigration officer at the Canadian embassy in Israel denying the permanent residence applications of the applicant's four brothers and sisters as "dependent children" within the meaning of subsection 2(1) of the Immigration and Refugee Protection Regulations (SOR/2002-227) (the Regulations).
ISSUE
[2] Did the Appeal Division err in law in finding that the four brothers and sisters were not "dependent children" within the meaning of subsection 2(1) of the Regulations?
CONCLUSION
[3] For the reasons stated below, the answer to this question is negative. As a result, the application for judicial review is dismissed.
BACKGROUND
[4] The applicant, a Palestinian, was born in Jordan in 1971. He came to Canada in 1991 and obtained permanent resident status in 1995.
[5] In 2001, the applicant sponsored the permanent residence applications of his parents and his eight brothers and sisters, as dependent children of his parents.
[6] This application involves his brother Nael, born on July 1, 1973, his brother Nader, born on February 2, 1978, his sister Rania, born on August 11, 1974, and his sister Suzan born on October 8, 1976.
[7] The applications of the applicant's parents have been allowed and so have those of four of his brothers and sisters. However, the applications made by Nael, Rania, Suzan and Nader were denied on July 23, 2003, by an immigration officer of the Canadian embassy in Israel. The immigration officer determined that they failed to satisfy the requirements of a "dependent child" because they were not enrolled in and attending a post-secondary institution accredited by the government authority, pursuing a course of academic, professional or vocational training on a full-time basis since before the age of 22 years old.
[8] The applicant appealed the immigration officer's decision. The Appeal Division dismissed his appeal.
IMPUGNED DECISION
[9] The Appeal Division noted that the applicant's four brothers and sisters were over 22 years of age when the application as members of the family class was submitted, and that they had pursued courses at various educational institutions in Palestine.
[10] The Appeal Division found that Nael was not a "dependent child" within the meaning of the Regulations because he had been employed for a year in 1995 and because, moreover, he pursued hairdressing courses between 1996 and 1997.
[11] The Appeal Division also found that Rania was not a "dependent child" within the meaning of the Regulations because, although she had pursued courses at several institutions since turning 22, the evidence regarding the accreditation of these institutions by the Palestinian Department of Education was insufficient. The Appeal Division found that the only evidence submitted related to the Feras Educational Center, and that the certification issued by the Palestinian Authority contained spelling mistakes that undermined its probative value.
[12] As for Nader, the Appeal Section found that he was not a "dependent child" within the meaning of the Regulations. In his case as well, the Appeal Division's decision is based on the number of spelling mistakes contained in the certifications from two of the institutions attended, namely the Feras Educational Center and Alpha Land Center.
[13] Finally, the Appeal Division made the same determination in the case of Suzan. As in the case of Rania, the certification from the Feras Educational Center was not considered probative. Accordingly, she was denied "dependent child" status.
ANALYSIS
[14] The relevant provision of the IRPA read as follows:
| 12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident. |
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12. (1) La sélection des étrangers de la catégorie « regroupement familial » se fait en fonction de la relation qu'ils ont avec un citoyen canadien ou un résident permanent, à titre d'époux, de conjoint de fait, d'enfant ou de père ou mère ou à titre d'autre membre de la famille prévu par règlement.
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| 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.
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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. |
| 72. (1) Judicial review by the Federal Court with respect to any matter -- a decision, determination or order made, a measure taken or a question raised -- under this Act is commenced by making an application for leave to the Court.
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72. (1) Le contrôle judiciaire par la Cour fédérale de toute mesure -- décision, ordonnance, question ou affaire -- prise dans le cadre de la présente loi est subordonné au dépôt d'une demande d'autorisation.
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| (2) The following provisions govern an application under subsection (1):
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(2) Les dispositions suivantes s'appliquent à la demande d'autorisation :
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| . . .
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[...]
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| (d) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance; and
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d) il est statué sur la demande à bref délai et selon la procédure sommaire et, sauf autorisation d'un juge de la Cour, sans comparution en personne;
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| (e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment. |
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e) le jugement sur la demande et toute décision interlocutoire ne sont pas susceptibles d'appel. |
[15] The relevant provisions of the Regulations read as follows:
| 2. (1) . . . |
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2. (1) [...] |
| "dependent child", in respect of a parent, means a child who
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« enfant à charge » L'enfant qui : |
| (a) has one of the following relationships with the parent, namely,
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a) d'une part, par rapport à l'un ou l'autre de ses parents :
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| (i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or
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(i) soit en est l'enfant biologique et n'a pas été adopté par une personne autre que son époux ou conjoint de fait,
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| (ii) is the adopted child of the parent; and
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(ii) soit en est l'enfant adoptif;
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| (b) is in one of the following situations of dependency, namely,
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b) d'autre part, remplit l'une des conditions suivantes :
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| (B) actively pursuing a course of academic, professional or vocational training on a full-time basis, or
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(B) y suit activement à temps plein des cours de formation générale, théorique ou professionnelle,
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| . . .
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[...]
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| (iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition. (enfant à charge) |
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(iii) il est âgé de vingt-deux ans ou plus, n'a pas cessé de dépendre, pour l'essentiel, du soutien financier de l'un ou l'autre de ses parents à compter du moment où il a atteint l'âge de vingt-deux ans et ne peut subvenir à ses besoins du fait de son état physique ou mental.
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| 117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
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117. (1) Appartiennent à la catégorie du regroupement familial du fait de la relation qu'ils ont avec le répondant les étrangers suivants :
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| . . .
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[...]
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| (b) a dependent child of the sponsor; |
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b) ses enfants à charge; |
[16] The standard of review applicable to the decision by the Appeal Division on the issue of whether a person is a "dependent child" is that of patent unreasonableness.
[17] The applicant made no submission to refute the Appeal Division's finding to the effect that Nael did not satisfy the requirements of a 'dependent child' within the meaning of the Regulations. Nael, now 32 years old, has not attended a post-secondary institution on a full-time basis since before the age of 22. He stopped studying in 1995 in order to work. Accordingly, there is no basis for reviewing this finding by the Appeal Division, which is not patently unreasonable.
[18] The applicant attached to his affidavit dated March 5, 2005, an English translation as well as the originals of letters that, prima facie, were issued by the Palestinian Authority. Since these documents were not in Appeal Division's record, the respondent correctly argued that they were not admissible before this Court. At the judicial review stage, only the evidence on which the decision under review was based may be considered, unless otherwise provided (See Smith v. Canada, 2001 FCA 86, [2001] F.C.J. No. 450 and Grundy v. Canada, 2005 FC 1312, [2005] F.C.J. No. 1593).
[19] The Appeal Division refused to consider Rania, Nader and Suzan as dependent children on the basis that the certifications submitted as evidence in relation to some of the institutions attended were not probative because of spelling errors in the certifications of some of the institutions attended. These certifications were drafted in English.
[20] The applicant argues that the official language of Palestine is Arabic and that he should not be held indirectly responsible for the errors contained in the documents issued to him by the educational institutions. He further argues that the Appeal Division unduly favoured the form of these documents over their substance.
[21] It is up to the Appeal Division to determine the probative value or weight of the evidence submitted to it (Mahendran v. Canada, [1991] F.C.J. No. 549, at paragraph 10 (F.C.A.); Rani v. Canada (Department of Citizenship and Immigration), 2002 FCT 1002, [2002] F.C.J. No. 1337, at paragraph 21).
[22] The applicant submits that the Appeal Division failed to consider the documents issued by the educational institutions attended by Nael, Rania, Nader and Suzan. He further argues that the Appeal Division did not make due allowance for the [TRANSLATION] ". . . reality of the social and socio-political conditions in Palestine . . . ". The applicants adduced no evidence on these issues. Yet, the decision-makers are presumed to have considered all of the evidence before them, even if they do not refer to each document in the record (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.); Lewis v. Canada, 2004 FC 1195, [2004] F.C.J. No. 1436, at paragraph 19 (F.C.)). In absence of evidence to the contrary, I must assume that the Appeal Division considered the matter as a whole, including the documents issued by the educational institutions and the hearings held with the applicant present.
[23] Although this Court would have preferred a more detailed decision regarding the notion of "dependent child" and of " . . . actively pursuing a course . . . on a full-time basis", the Appeal Division did not make a patently unreasonable error in finding that, in light of the evidence, the certifications did not have sufficient probative value to determine that Rania, Nader and Suzan were dependent children within the meaning of the Regulations.
[24] For the above reasons, the application for judicial review is dismissed.
[25] The parties were invited to submit a question for certification. However, they declined to do so.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review be dismissed and that no question be certified.
"Simon Noël"
Judge
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-939-05
STYLE OF CAUSE: WAEL AHMAD HERMAS v. MCI
PLACE OF HEARING: OTTAWA
DATE OF HEARING: DECEMBER 5, 2005
REASONS FOR JUDGMENT BY: NOËL J.
DATED: DECEMBER 5, 2005
APPEARANCES:
S. NDEMA-MOUSSA FOR THE APPLICANT
S. BARRETTE FOR THE RESPONDENT
SOLICITORS OF RECORD:
S. NDEMA-MOUSSA FOR THE APPLICANT
OTTAWA
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA