Ottawa, Ontario, July 28, 2006
Present: The Honourable Paul U.C. Rouleau
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] Although the respondent did not appear before the Court on Monday, July 24, 2006, he insisted that the Court issue reasons for judgment in this matter.
[2] This is an application for judicial review filed by the Minister of Citizenship and Immigration of a decision by the Immigration Appeal Division of the Immigration and Refugee Board (IAD) dated October 27, 2005.
[3] Before the IAD, the respondent appealed the decision dated January 6, 2004, by the visa officer denying the application for landing in Canada submitted by his daughter, Lucia Venegas, a citizen of Argentina, in the family class as a “dependent child”.
[4] The respondent, Alberto C. Venegas, is a Canadian citizen who was born in Argentina on September 7, 1955. Lucia Venegas was born in Argentina in December 1980, and is the respondent’s daughter. The respondent filed an application to sponsor and undertaking regarding Lucia Venegas. She then submitted an application for permanent residence in Canada, signed on October 2, 2003, in the family class as a “dependent child”.
[5] In a decision dated January 6, 2004, the visa officer denied Lucia Venegas’ application for permanent residence because she was 22 years old and had not attended school since 2000. Therefore, she was not a “dependent child” under subsection 117(1) and section 2 of the Immigration and Refugee Protection Regulations (IRPR).
[6] After reviewing all the evidence in the application to sponsor, the visa officer had concluded that Lucia Venegas was not a member of the family class because she was not a “dependent child” as defined in section 2 and subsection 117(1) of the IRPR. The respondent appealed that decision to the IAD under subsection 63(1) of the Immigration and Refugee Protection Act (IRPA).
[7] On appeal, the member determined that the main issue was the student status of Lucia Venegas and whether she was a full-time student as defined by the IRPR. After hearing all the evidence, both oral and written, the IAD allowed the appeal. That decision is the subject of this application for judicial review.
[8] A priori, the applicant argues that, at his hearing before the IAD, the respondent filed new evidence that had not been presented to the visa officer. According to this evidence, Lucia Venegas attended a hairdressing school from January 22 to February 2, 2004. Moreover, it was on the basis of these documents that the IAD set aside the decision of the visa officer and concluded that the daughter was a member of the family class, and that she was entitled to be sponsored by her father.
[9] After the hearing, the documents confirming the daughter’s school attendance were sent to the visa officer in Buenos Aires so she could verify their authenticity. Following these investigations, the applicant maintains that the documents confirming Lucia Venegas’ school attendance were fraudulent, and that the evidence based on these documents was, therefore, also false.
[10] According to the applicant, the IAD made an error in fact and in law by finding that the daughter is a “dependent child” under section 2 and subsection 117(1) of the IRPR because at the time of the hearing on September 26, 2005, Lucia Venegas had not attended school since
February 2, 2004.
[11] The IAD noted that an appeal before it is a de novo hearing. Therefore, the IAD had to determine the appeal based on the evidence before it at that time, and had to analyze the definition of “dependent child” at the time the matter was heard.
[12] On January 13, 2006, counsel for the respondent, Annie Kenane, filed a motion to be removed from the record because she felt she could no longer properly represent the respondent. On February 6, 2006, Prothonotary Morneau granted Ms. Kenane’s motion.
[13] It appears from the docket that the respondent did not retain another lawyer, and that he would represent himself. It should be noted that the respondent did not file a memorandum of fact and law or reply to the applicant’s memorandum on this application for judicial review.
[14] Given the above-noted facts, this Court has three issues to decide. A priori, the Court must determine the standard of review applicable to the decision of the IAD. Second, the Court must determine whether the IAD failed to act because the documents confirming Lucia Venegas’ school attendance were fraudulent. Finally, the Court must decide whether the IAD made an error in fact and in law by finding that Lucia Venegas is a “dependent child”.
[15] Mr. Justice Blanchard clearly specified at paragraph 27 of Avalos v. Canada (Minister of Citizenship and Immigration), 2005 FC 830, [2005] F.C.J. No. 1035 that the Court must accord great deference to decisions of the IAD on findings of fact. Mr. Justice Noël stated at paragraph 16 of Hermas v. Canada (Minister of Citizenship and Immigration), 2005 FC 1649, [2005] F.C.J. No. 2020 (QL) that “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”.
[16] With respect to an interpretation of law by the IAD, this Court would like to refer to the comments of Mr. Justice Beaudry at paragraph 10 of Yen v. Canada (Minister of Citizenship and Immigration), 2005 FC 1236, [2005] F.C.J. No 1501:
¶10 The appropriate standard of review for questions of interpretation of law is correctness (Medovarski v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 366 (F.C.A.) (QL), at paragraph 18, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982). The standard of review for questions of mixed law and fact should be reviewed only if unreasonable (unreasonableness simpliciter) (Ly v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 658 (T.D.); Collier v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1445 (T.D.) (QL)).
[17] On an appeal of an application to sponsor a “dependent child”, the IAD must take into account the following legislation:
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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 |
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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(a) the sponsor's spouse, common-law partner or conjugal partner; |
a) son époux, conjoint de fait ou partenaire conjugal; |
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(b) a dependent child of the sponsor; |
b) ses enfants à charge; |
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(c) the sponsor's mother or father; |
c) ses parents; |
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(d) the mother or father of the sponsor's mother or father; |
d) les parents de l’un ou l’autre de ses parents; |
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(e) [Repealed, SOR/2005-61, s. 3] |
e) [Abrogé, DORS/2005-61, art. 3] |
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(f) a person whose parents are deceased, who is under 18 years of age, who is not a spouse or common-law partner and who is |
f) s’ils sont âgés de moins de dix-huit ans, si leurs parents sont décédés et s’ils n’ont pas d’époux ni de conjoint de fait: |
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(i) a child of the sponsor's mother or father, |
(i) les enfants de l’un ou l’autre des parents du répondant, |
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(ii) a child of a child of the sponsor's mother or father, or |
(ii) les enfants des enfants de l’un ou l’autre de ses parents, |
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(iii) a child of the sponsor's child;
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(iii) les enfants de ses enfants; |
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dependent child”, in respect of a parent, means a child who |
enfant à charge » L’enfant qui: |
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(a) has one of the following relationships with the parent, namely, |
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 |
(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 |
(ii) soit en est l’enfant adoptif; |
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(b) is in one of the following situations of dependency, namely, |
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, |
(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 |
(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 |
(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 |
(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. (enfant à charge) |
(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. (dependent child)
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[18] There is no doubt that the IAD has the authority to assess the value or the weight of the evidence submitted to it; see 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. It is also true that an appeal before the IAD is a de novo hearing. Therefore, it is completely acceptable that the IAD considered the new evidence that had not been presented to the visa officer, i.e. the fact that Lucia Venegas attended a hairdressing school from January 22 to February 2, 2004.
[19] However, the problem in this case is that after the hearing, the applicant discovered letters stating that the documents confirming Lucia Venegas’ attendance at school from January 22 to February 2, 2004, were fraudulent. These letters were included as documentary evidence in the application for judicial review. In such a context, the Court cannot disregard evidence that led to an erroneous decision by the IAD.
[20] Although this Court must consider the evidence that was before the decision-maker, i.e. the IAD, it is just as important for this Court to analyze additional evidence that would have influenced that decision. In Association des crabiers acadiens v. Canada (Attorney General), 2006 FC 222, [2006] F.C.J. No. 294 (QL), Mr. Justice Harrington dealt with a motion for an order requiring the respondent (respondent on the motion) to provide additional documents to the applicants (moving parties). Although this motion within an application for judicial review was not based on a sponsorship application for a “dependent child”, his comments at paragraphs 13 and 14 are very relevant to this case:
¶ 13 As to the fact that the documents were not before the decision‑maker, the filing thereof cannot be avoided by failing to supply them to the decision-maker. As indicated in Tremblay v. Canada (Attorney General) 2005 FC 339, [2005] F.C.J. No. 421 (QL), the issue is not only whether the documents were before the decision-maker but whether they should have been before him.
¶ 14 Irrespective of the time of creation of the documents, they are directly related to the decision nevertheless and in such circumstances cannot be ignored. The documents in question still flow directly from what was decided, whether on March 30 or April 4, 2005.
[21] The documents attesting to the authenticity of Lucia Venegas’ studies in Argentina were not before the IAD, but are “directly related to the decision nevertheless and . . . cannot be ignored”. Since the documentary evidence provided by the applicant indicates that the documents are fraudulent, and since the respondent did not respond in any way to this allegation, this Court cannot in good conscience find that the decision of the IAD is reasonable.
[22] Because the application for judicial review is allowed for the foregoing reasons, this Court does not have to decide the third issue, i.e. whether the IAD made an error in fact and in law by finding that Lucia Venegas is a “dependant child”.
JUDGMENT
- The application for judicial review is allowed and is sent back for redetermination by another member of the IAD; and
- There is no serious question of general importance for certification.
Deputy Judge
Certified true translation
Mary Jo Egan, LL.B
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7095-05
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION v. ALBERTO C. VENEGAS
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 24, 2006
REASONS FOR ORDER: ROULEAU D.J.
APPEARANCES:
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Claudia Gagnon
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FOR THE APPLICANT |
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No Appearance
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Claudia Gagnon – Federal Department of Justice - Montréal
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FOR THE APPLICANT |
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M. Alberto C. Venegas – representing himself - Montréal
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FOR THE RESPONDENT |