Ottawa, Ontario, August 1, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JAGROOP KAUR SANDHU
SURMEET SINGH SANDHU
AMANDEEP SINGH SANDHU
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is the judicial review of a denial of permanent residence made by a visa officer. This case raises issues about the conduct of officials of the Respondent in respect of this judicial review proceeding.
II. Background
[2] The principal Applicant, a citizen of India, was sponsored for permanent residence by her daughter in Canada. The Applicant included in her permanent residence application her dependent children.
[3] In April 2005, the Applicant was interviewed by an immigration officer (Immigration Officer) in New Delhi. The Immigration Officer expressed concerns about the application because two of the children did not have birth certificates and, in addition, supporting letters issued by the particular public school had, in the past, been found to be fraudulent.
[4] Following the interview, the Applicant wrote to the Canadian High Commission responding to the concerns raised by the Immigration Officer regarding the school certificates. Attached to the correspondence was documentary evidence corroborating that the school documents provided were genuine. These documents were received by the Canadian High Commission on May 10, 2005, a crucial fact in this case.
[5] The Immigration Officer allegedly reviewed all the information in the file, including the post-interview information, and in June 2005 sent the file to the Canadian High Commission Visa Section with her recommendation that the application for permanent residence be refused on the grounds that the Applicant had misrepresented or withheld material facts. A visa officer (Visa Officer), holding the delegated authority to make the final determination of admissibility, refused the application for those same reasons.
[6] In the letter decision from the Visa Officer, the grounds for refusal were:
On April 18, 2005, you misrepresented or withheld the following material facts:
- You submitted school certificates from Dashmesh Residential Public School that purported to establish the age and relationship of Jagroop Kaur Sandhu and Amandeep Singh Sandhu.
[7] There is no mention of the post-interview documents filed with the Canadian High Commission in early May.
[8] In the Leave for Judicial Review proceeding, the Respondent took the position that the Applicant had misaddressed the correspondence and post-interview documents and therefore had not proven that the Canadian High Commission ever received those post-interview documents. The purport of the submission was that the Applicant was entirely responsible for this failure and that leave should not be granted because the Visa Officer could not be expected to consider documents which were never received.
[9] Fortunately for the Applicant, Justice O’Keefe granted leave. It was during the subsequent judicial review proceedings, including the necessary cross-examination of the Respondent’s representations, that the Respondent admitted that it had had the documents from the very time that the Applicant had claimed – May 10, 2005.
[10] The Respondent, having been “caught out”, turned its argument around and through evidence and submission claimed that the documents were considered and given no weight. The Immigration Officer now claimed that she had read the documents and gave them no weight – the Visa Officer could not recall the evidence but said that it would have made no difference to his decision.
III. Analysis
[11] As to the substance of this judicial review, it falls squarely within the principle enunciated in Menon v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1548 (QL), 2005 FC 1273 where the failure to mention in the CAIPS Notes that supplementary material had been filed was held to be a breach of fairness because it denied the Visa Officer an opportunity to fulfil his responsibilities to consider all relevant material.
[12] In this instance there can be no assurance that the evidence was considered at all. The subsequent affidavits of both officers, particularly given the initial position taken by the Respondent that the post-interview documents had not been received, do little to establish that the Applicant’s evidence was properly considered. The failure to cite this material in the decision letter counters any weight that might be given to the officers’ evidence.
[13] For this reason alone, this judicial review must be granted. The Applicant has also asked for costs because of the Respondent’s conduct of this matter.
[14] The initial position of the Respondent was that the Applicant had not proven that the post-interview documents had been received by the Respondent’s officials. It was a disingenuous submission devoid of any truth. It was made at a time when there was no doubt that the Respondent had received the material; and if the Respondent’s evidence is to be believed, the material had been considered and rejected.
[15] It is evident that the submission was designed to cast blame on the Applicant where there was none and to cause the Court to dismiss the application for judicial review. If it had had that effect, it would have misled the Court; if the submission had been supported by evidence, there would have been the most serious consequences to those who had been involved in making blatantly misleading submissions.
[16] The Court has not pursued the issue of responsibility and leaves that to senior officials in the relevant organizations. Suffice it to say that this Court relies on the underlying honesty of submissions and the forthright conduct of Crown officers involved in proceedings in this Court. The Court assumes, as indicated in argument, that counsel would not have made these submissions without information and instructions from the client department. If so, counsel was also misled.
[17] The egregious nature of this matter is underscored by the fact that it was not until after affidavits and cross-examination that the Respondent advised the Applicant, on May 23, 2006, that it was abandoning its leave arguments of lack of receipt of the supplementary materials. It was a concession which ought to have been made at the first opportunity – not the last.
[18] In a nutshell, the Respondent’s conduct was misleading to the Applicant and to the Court. It is simply unacceptable.
[19] Therefore, I find that “special reasons” under Rule 22 of the Federal Courts Immigration and Refugee Protection Rules have been shown which justify an award of costs. The Applicant shall have solicitor-client costs of the whole of this matter. If the parties cannot agree as to costs, the matter may be returned to me for determination.
IV. Conclusion
[20] This judicial review will be granted, and the decision of the Visa Officer will be quashed. The matter will be remitted for a new decision by a different officer. No official involved in the initial determination shall be involved in this new determination. The Applicant shall have its fees and disbursements on a solicitor-client basis.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is granted, and the decision of the Visa Officer is quashed. The matter is remitted for a new decision by a different officer. No official involved in the initial determination shall be involved in this new determination. The Applicant shall have its fees and disbursements on a solicitor-client basis.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5004-05
STYLE OF CAUSE: JUGRAJ KAUR SANDHU
JAGROOP KAUR SANDHU
SURMEET SINGH SANDHU
AMANDEEP SINGH SANDHU
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
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Mr. Lorne Waldman
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Ms. A. Leena Jaakkimainen
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SOLICITORS OF RECORD:
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WALDMAN & ASSOCIATES Barristers & Solicitors Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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