Date: 20050829
Ottawa, Ontario, August 29, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), against a decision by the visa officer, Mr. Kivuvani, of the High Commission in Nairobi, Kenya, dated November 4, 2003, dismissing the applications of his two brothers, Abdi and Kahin, as dependants included in the sponsorship application of the applicant’s mother.
FACTUAL BACKGROUND
[2] The applicant, a permanent resident, filed an application to sponsor his mother, Hasno Duale Dowel, as well as her two children (i.e. the applicant’s two brothers), Abdi and Kahin, as dependant children. They were all citizens of Somalia. The two sons were allegedly 16 and 18 years old at the time of the sponsorship application. Somalian birth certificates were filed as evidence of their age.
[3] Ms. Dowel and her two sons were asked to submit to a series of medical exams. Specifically, the Canadian High Commission in Nairobi wrote to Dr. N. Georgialis on January 13, 2005, to ask him for the following: (1) A Tanner stage of development (including a history of the female applicant’s first menarches and cycle); (2) Dental age by eruption or not of the third maxillary and mandibulary third molar; (3) Bone age using the (a) knee for assessment of the onset and completion of fusion of tibial tuberosity, (b) clavicle for the assessment of the onset and completion of fusion of the clavicle; (4) Hematocrit (percentage) for male applicants only; (5) Serum alkaline phosphatase (IU/L); (6) Review of maternal obstetrical history; (7) Physical review of the applicant: what is your overall impression of the applicant’s age?
[4] The applicant’s mother then received a permanent resident visa. However, the visa officer decided that the two sons were not members of the family class. Based on the fact that the bone age test results indicated that they were “more than” 25 years old, they could not be considered dependant children, who are defined as being less than 22 years old.
THE APPLICABLE STANDARD OF REVIEW
[5] Relying on the bone age tests, the visa officer decided that the applicant’s brothers were not less than 22 years old and that they did not belong to any of the classes under the definition of “dependant child”[1]. Accordingly, pursuant to subsection 117(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations)[2], the visa officer determined that the applicant’s two brothers could not be considered members of the family class.
[6] The standard of review applicable to the visa officer’s decision, in my opinion, is that of patent unreasonableness. In Sharief v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 386 (F.C.T.D.), Dawson J. applied this standard when, exactly as in this case, the age of the alleged dependant children was at issue. She relied on Jang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1575 (C.A.), in which Malone J.A. stated:
12 An application to be admitted to Canada as an immigrant gives rise to a discretionary decision on the part of a visa officer, which is required to be made on the basis of specific statutory criteria. Where that statutory discretion has been exercised in good faith and in accordance with the principles of natural justice and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, courts should not interfere (Maple Lodge Farms Limited v. Government of Canada et al [1982] 2 S.C.R. 2 at pages 7-8; To v. Canada, [1996] F.C.J. No. 696 (F.C.A.).
[7] Similarly, in another decision where the circumstances closely mirrored those of this case – the age of two sons (established by bone age tests) was at issue – O’Reilly J. decided that the standard was that of a patent unreasonableness: see Baseer v. Canada (Minister of Citizenship and Immigration, [2004] F.C.J. No. 1239.
WAS THE DECISION BY THE VISA OFFICER PATENTLY UNREASONABLE?
[8] The applicant argues that the visa officer erred in refusing to recognize the validity of the Somalian birth certificates filed into evidence with regard to the age of his brothers.
[9] In Sharief, supra, the Court determined that the visa officer had not made a reviewable error in preferring the opinions of qualified physicians over the Iraqi identity cards for the purposes of establishing age, based on the fact that the reliability of the Iraqi documentation was unknown.
[10] In this case, the officer’s decision to rely on the medical evidence rather than on the Somalian birth certificates was not simply a question of preference, but of practice, since Canadian immigration authorities consider the reliability of Somalian documents as disputable given the absence of a centralized government in that country. Accordingly, discounting the Somalian birth certificates cannot amount to a reviewable error, in my opinion.
[11] It is true that when the decision was made, the visa officer did not have any information on the relative accuracy of the bone age tests. That lack of information troubled O’Reilly J. in Baseer, supra, where it was decided that the visa officer’s decision was patently unreasonable.
[12] However, I believe that the factual circumstances of that matter differ from the facts of this case. In Baseer, supra, the dependant children in question were allegedly 17.5 and 16 years old, and the bone age tests determined that they were 18 years old or older. The visa officer nevertheless dismissed their application for permanent residence as members of the family class for having made a significant misrepresentation, contrary to paragraph 40(1)(a) of the Act. Obviously, this difference could have been explained by a degree of error which could have been inherent to bone age tests. And, in any event, the two children in Baseer, supra, could have been admissible based on the fact that they were less than 22 years of age, as O’Reilly J. pointed out, had it not been for the finding that a significant misrepresentation had been made.
[13] However, the difference in the alleged age of the purported dependant children in this case and their age according to the bone age tests is much greater. The boys professed to be 16 and 18 years old when the bone age tests indicate that both were more than 25 years old.
[14] In short, the visa officer appears to have based his decision on the best available evidence of the age of the alleged dependant children. Therefore, I am not persuaded that the decision by the visa officer in this matter was patently unreasonable, that it was, in other words, “clearly irrational” or “ so flawed that no amount of curial deference can justify letting it stand”: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R.247, at paragraph 52.
WERE THE PROCEDURAL FAIRNESS REQUIREMENTS SATISFIED?
[15] After determining that the visa officer’s decision does not contravene the applicable standard of review, the only remaining issue involves natural justice. On that point, there is no standard of review that comes into play; procedural fairness literally involves the process followed to arrive at a decision bearing on the decision itself: C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R.539, and Moreau-Bérubé v New Brunswick (Judicial Council), [2002] 1 S.C.R. 249.
[16] The applicant claims that he was not clearly notified that the Somalian birth certificates were insufficient evidence of the age of his brothers, which amounts to a breach of natural justice.
[17] This argument is inconsistent with the facts of this case. First, in a letter from the Canadian High Commission dated August 29, 2003, addressed to the applicant and to his mother, it is clearly indicated that the birth documents submitted are not adequate to establish that there is a blood relation. Further, another letter from the Canadian High Commission dated January 13, 2003, requires a medical exam for the two brothers with a request for an age exam. It is difficult to understand what other explanation the High Commission could have given. The applicant cannot claim that he was taken by surprise since it was clear from the correspondence that the medical exam was required to determine the age of his two brothers.
[18] The applicant also contends that the visa officer did not observe procedural fairness because the negative results of the bone mass tests were sent to Mr. Miele at the office of the Honourable Stéphane Dion (who had been mandated by the applicant to do the follow-up) without mentioning that it was a final decision and giving him time to submit other documentation. The applicant acknowledges, however, that Mr. Miele had verbally informed him on September 9, 2003. Yet, two months went by before the visa officer made his final decision; that was ample time for the applicant to be able to challenge the exam results relating to the bone age tests and/or to file other evidence to establish that the boys were in fact less than 22 years old, which he did not do.
[19] I cannot agree with the proposition to the effect that the procedural fairness requirements were not met.
[20] This application for judicial review is therefore dismissed.
[21] The applicant’s counsel asked that the following question be certified:
May intergovernmental correspondence between the High Commission and a deputy be considered a negative notice of intent if the correspondence does not indicate that it is not a final decision and does not give a deadline to respond to it and that, further, the applicant is not authorized to receive a copy?
[22] That question is relevant only to this matter. It does not transcend the interests of the parties to the litigation. It is therefore not a serious question of general importance. The question will not be certified.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
JUDGE
Certified true translation
Kelley A. Harvey, BCL, LLB
Annex A
Section 2 of Immigration and Refugee Protection Regulations defines a “dependent child” as follows:
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“dependent child”, in respect of a parent, means a child who
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« enfant à charge » L'enfant qui:
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(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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(i) is less than 22 years of age and not a spouse or common-law partner,
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(i) il est âgé de moins de vingt‑deux ans et n'est pas un époux ou conjoint de fait,
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(ii) has depended substantially on the financial support of the parent since before the age of 22 -- or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner -- and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student
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(ii) il est un étudiant âgé qui 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 ou est devenu, avant cet âge, un époux ou conjoint de fait et qui, à la fois:
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(A) continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and
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(A) n'a pas cessé d'être inscrit à un établissement d'enseignement postsecondaire accrédité par les autorités gouvernementales compétentes et de fréquenter celui-ci,
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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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(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.
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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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The relevant section of subsection 117(1) of Immigration and Refugee Protection Regulations reads as follows:
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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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(e) a person described in subparagraph (b)(i), (ii) or (iii) of the definition “dependent child” in section 2 and in respect of whom the sponsor became the guardian while the person was under the age of 18, if
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e) la personne qui satisfait à l'une des conditions prévues aux sous-alinéas b)(i), (ii) ou (iii) de la définition de « enfant à charge » à l'article 2 et dont le répondant est devenu tuteur alors qu'elle était âgée de moins de dix-huit ans, si les conditions suivantes sont réunies:
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(i) the person's parents are deceased or the person has been declared, by a competent authority in the country where the person resides, to be abandoned,
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(i) ses parents sont décédés ou elle a été déclarée abandonnée par les autorités compétentes du pays où elle réside,
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(ii) it is not possible for the person to be adopted in the country where they reside,
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(ii) elle ne peut être adoptée dans le pays où elle réside,
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(iii) the competent authority of the country where the person resides has authorized the person in writing to leave the country in the company of the sponsor or a person authorized by the sponsor, and
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(iii) les autorités compétentes du pays où elle réside l'ont autorisée par écrit à quitter celui-ci en compagnie du répondant ou de la personne autorisée par ce dernier,
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(iv) the sponsor resided in Canada at the time they became the person's guardian and the competent authority of the person's province of intended destination has issued a written statement confirming that it does not oppose the guardianship and that the guardianship will be recognized for the purposes of provincial law;
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(iv) le répondant résidait au Canada au moment où il est devenu tuteur de la personne et les autorités compétentes de la province de destination ont déclaré par écrit qu'elles ne s'opposaient pas à la tutelle et qu'elles reconnaissaient celle-ci pour l'application du droit provincial;
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… |
[…]
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-752-05
STYLE OF CAUSE: SULEIMAN DUALE ABDILAHI
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF REASONS: August 23, 2005
REASONS FOR ORDER: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATE OF REASONS: August 29, 2005
APPEARANCES:
Claudia Andrea Molina FOR THE APPLICANT
Diane Lemery FOR THE RESPONDENT
SOLICITORS OF RECORD:
Claudia Andrea Molina
1434 Ste-Catherine West
Suite200
Montréal, Quebec
H3G 1R4 FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Montréal, Quebec FOR THE RESPONDENT