Date: 20030306
Docket: IMM-423-01
Neutral citation: 2003 FCT 278
Ottawa, Ontario, Thursday the 6th day of March 2003
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
KAHKIJA SHARIEF
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Kahkija Sharief is a citizen of Iraq of Kurdish ethnicity who, together with four of her children, sought admission to Canada as members of the country of asylum class under the Humanitarian Designated Classes Regulations, SOR/97-183 ("Regulations"). The application was supported by a sponsorship undertaking filed by another son of Ms. Sharief, who lives in Canada, together with four other individuals.
[2] Ms. Sharief attended an interview at the Canadian Embassy in Damascus on November 24, 1998. During the interview Ms. Sharief provided original Iraqi identity cards that were issued in 1997 for each child. Among other things, the identity cards recorded each child's date of birth. The CAIPS notes record that, at the conclusion of the interview, the visa officer who interviewed the family was satisfied that they had a compelling claim and that they met the definition of "member of the country of asylum class". The family was therefore counselled on the medical examinations which were required in order to further process their application.
[3] As a result of those medical examinations concern arose that the four children were older than indicated on their Iraqi identity cards. Ultimately, the visa officer concluded that while two of the children, Kasim and Monirah, met the definition of dependent child, the two other children, Ahlam and Jasim, did not. The officer went on to conclude that Ms. Sharief had misrepresented the ages of her children, and that by doing so she had failed to answer truthfully all questions put to her as required by subsection 9(3) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act"). On that basis, the officer refused the request for admission to Canada.
[4] On this application for judicial review the Court is asked to set aside that determination.
[5] On Ms. Sharief's behalf it is argued that the visa officer erred:
i) in having regard at all to the ages of the children;
ii) in finding that any misrepresentation was made; and
iii) in rejecting the application in its totality.
Were the ages of the children relevant?
[6] Two arguments are advanced as to why the officer erred in considering the ages of the children. First, it is argued that the sponsorship undertaking sponsored each family member, so that what was before the officer was in effect five applications. It is said that in consequence, there was no need for any child to be considered a dependent. Second, it is argued that if the children were dependents, on a proper construction of subsection 4(4) of the Regulations the children should not have been excluded by virtue of their ages.
[7] Respectfully, I find no merit in either submission. Only one application form for permanent residence was filed. In it Ms. Sharief applied as, and described herself to be, a principal applicant. Her four children were listed in the application as dependents. There is therefore no substance in the evidence to support the submission that there were five applications before the visa officer.
[8] As to the proper construction of subsection 4(4) of the Regulations, that provision at the material time was as follows:
| 4 (4) A visa officer shall not issue an immigrant visa to an accompanying dependant of a person referred to in subsection (1) unless
(a) at the time the application for admission is received by a visa officer, the accompanying dependant, except if the dependant is the person's spouse, meets the criteria set out in paragraph (a), (b) or (c) of the definition "dependent son" or "dependent daughter" in subsection 2(1) of the Immigration Regulations, 1978, as the case may be; and (b) at the time the visa is issued, the accompanying dependant, except if the dependant is the person's spouse, meets the criteria referred to in paragraph (a), except for the one respecting age set out in paragraph (a) of the definition "dependent son" or "dependent daughter" in subsection 2(1) of the Immigration Regulations, 1978, as the case may be.
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4 (4) L'agent des visas ne peut délivrer un visa d'immigrant à la personne à charge qui accompagne la personne visée au paragraphe (1) que si : a) d'une part, au moment où un agent des visas reçoit la demande d'admission, cette personne à charge, autre que le conjoint, répond aux critères énoncés aux alinéas a), ou c) des définitions de « _fils à charge_ » , selon le cas, au paragraphe 2(1) du Règlement sur l'immigration de 1978;
b) d'autre part, au moment où le visa est délivré, cette personne à charge, autre que le conjoint, répond aux critères visés à l'alinéa a), sauf celui concernant l'âge énoncé à l'alinéa a) des définitions de « _fils à charge_ » , selon le cas, au paragraphe 2(1) du Règlement sur l'immigration de 1978. |
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[9] The definition of "dependent daughter" then found in subsection 2(1) of the Immigration Regulations, 1978 was:
| "dependent daughter" means a daughter who (a) is less than 19 years of age and unmarried, (b) is enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college or other educational institution and (i) has been continuously enrolled and in attendance in such a program since attaining 19 years of age or, if married before 19 years of age, the time of her marriage, and(ii) is determined by an immigration officer, on the basis of information received by the immigration officer, to be wholly or substantially financially supported by her parents since attaining 19 years of age or, if married before 19 years of age, the time of her marriage, or (c) is wholly or substantially financially supported by her parents and (i) is determined by a medical officer to be suffering from a physical or mental disability, and (ii) is determined by an immigration officer, on the basis of information received by the immigration officer, including information from the medical officer referred to in subparagraph (i), to be incapable of supporting herself by reason of such disability.
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« _fille à charge_ » Fille : a) soit qui est âgée de moins de 19 ans et n'est pas mariée; b) soit qui est inscrite à une université, un collège ou un autre établissement d'enseignement et y suit à temps plein des cours de formation générale, théorique ou professionnelle, et qui : (i) d'une part, y a été inscrite et y a suivi sans interruption ce genre de cours depuis la date de ses 19 ans ou, si elle était déjà mariée à cette date, depuis la date de son mariage, (ii) d'autre part, selon l'agent d'immigration qui fonde son opinion sur les renseignements qu'il a reçus, a été entièrement ou en grande partie à la charge financière de ses parents depuis la date de ses 19 ans ou, si elle était déjà mariée à cette date, depuis la date de son mariage; c) soit qui est entièrement ou en grande partie à la charge financière de ses parents et qui : (i) d'une part, selon un médecin agréé, souffre d'une incapacité de nature physique ou mentale, (ii) d'autre part, selon l'agent d'immigration qui fonde son opinion sur les renseignements qu'il a reçus, y compris les renseignements reçus du médecin agréé visé au sous-alinéa (i), est incapable de subvenir à ses besoins en raison de cette incapacité. |
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[10] A parallel definition existed for "dependent son".
[11] Reading the words used in subsection 4(4) of the Regulations and the definitions of dependent son and daughter in their entire context and in their grammatical and ordinary sense, I am satisfied that subsection 4(4)(a) required a visa officer to decline to issue an immigrant visa to an accompanying dependent daughter or son unless, at the time the application for admission was received, the dependent son or daughter met the criteria set out at paragraphs (a), (b), or (c) of the definition of "dependent son" or "dependent daughter" in subsection 1(1) of the Regulations. Subsection 4(4)(b) required that at the time the visa was issued (after the application was made) the accompanying dependent daughter or son met the criteria referred to in paragraph (a) of subsection 1(1) of the Regulations, except for the age requirement of being under the age of 19 years.
[12] It was therefore relevant for the visa officer to consider whether the four accompanying children met the criteria that they were less than 19 years of age at the time the application for admission was received in order to be admitted into Canada under the Regulations.
Did the visa officer reasonably conclude that Ms. Sharief had misrepresented the ages of her children?
[13] In order to determine if the visa officer committed a reviewable error in finding that Ms. Sharief had misrepresented the ages of the children, it is necessary to consider the evidence before the officer.
[14] After the concerns as to the ages of the children were raised, the Minister's doctors in Paris requested that tests be carried out to determine the ages of the children. Radiographs were taken and a radiologist reported that, on the basis of those radiographs, the children's ages were as follows:
Ahlam - over 25 years of age
Jasim - over 25 years of age
Kasim - around 16 years of age
Monirah - around 18 years of age
[15] Learning this, the sponsoring son in Canada provided two further medical reports. One was a generic report on trauma and aging to which the visa officer gave little weight, as I believe she was entitled to do. The second was a report from the Chair and Chief of the Department of Diagnostic Radiology of the London (Ontario) Health Sciences Center, who provided information regarding the ability of radiographs to determine aging. He noted that:
Aging of the skeleton by radiography is generally performed by assessing the development and fusion of the growing ends of the bones - the epiphyses.
[...]
There is always a variability in time of occurrence of epiphyseal fusion which may be affected by many things which affect growth generally, or by disease.
From the report of the radiographs of Jasim Yasin, it would appear likely that all the visualized epiphyses have fused, giving rise to the report that the skeletal age is over 25 years. However as you can see this is not necessarily an exact figure, the findings likely seen on the radiographs could by in keeping with a chronological age as low as 16 years.
A person of a chronological age at the lower extreme limit of acceptable skeletal age would indeed be most unusual.
[16] The doctor specifically noted that he could not verify the reading of the original radiographs, nor the correct identification of them.
[17] Subsequently, the sponsoring son agreed to obtain three independent tests for each of his siblings. That was done. New x-rays were taken and read by a radiologist with the X-Ray Diagnostic Center in Damascus. He estimated the ages to be as follows:
Ahlam - 18.5 years old
Jasim - 17 years old
Kasim - 13.5 years old
Monirah - 12.5 years old
[18] Two doctors, described to be specialists in endocrinology and diabetes, examined each child and considered the degree of cartilage fusion. They respectively opined as follows with respect to the children's ages:
Ahlam - between 17 and 20 years of age; between 17 and 20 years of age;
Jasim - between 16 and 18 years of age; between 16 and 18 years of age;
Kasim - between 13 and 16 years of age; between 13 and 16 years of age; and
Monirah - between 13 and 15 years of age; 12.5 years of age.
[19] After receiving this evidence the Minister's medical officers concluded that the new bone age tests were totally different from the first ones they had received. All of the x-rays were then sent to Ottawa for evaluation by a specialist.
[20] The Ottawa expert's conclusions as to age were:
Ahlam: Skeletally mature. The minimum age for such maturity is 18. Ahlam could however be as old as 28 years of age
Jasim: Skeletally mature. The minimum age for that is 18 years of age. Combined radiographs show a skeletal age closest to 19 years of age for Jasim.
Kasim: Closest to 15_years of age with a possible age range from 14 years and 1 month to 15 years and 11 months.
Monirah: Closest to 16 years of age with a possible age range from 15 years and 1 month to 16 years and 11 months.
[21] The claimed ages of the children as of the date of the radiographs done in 2000 were respectively 18 years 1 month for Ahlam, 16 years 10 months for Jasim, 13 years 3 months for Kasim, and 11 years 2 months for Monirah.
[22] Turning now to the visa officer's conclusion that Ms. Sharief had misrepresented the ages of her children, it is to be remembered that where a visa officer exercises his or her discretion under the Act in good faith and in accordance with the principles of natural justice, and does not rely on extraneous or irrelevant considerations, a court sitting on judicial review should not interfere. See: Jang v. Canada (Minister of Citizenship in Immigration), 2001 FCA 312; [2001] F.C.J. No. 1575 at paragraph 12.
[23] In the present case: (a) there was no medical evidence which supported the contention that Monirah was 11 years and 2 months as she claimed to be when the x-rays were taken in January 2000. The Ottawa specialist concluded that her skeletal age was closest to 16 years of age. (b) Two of the three radiologists concluded that Kasim was not 13 years of age as claimed, but rather was around 15 or 16 years of age. This was within the range suggested by the endocrinologists. (c) Two of the three radiologists who reviewed the x-rays of Jasim concluded that he was in excess of his claimed age of 16 years 10 months in January 2000. The first radiologist had concluded that the 1999 x-ray showed him to be over 25 years of age, while the Ottawa radiologist found the combined radiographs to be in keeping with a skeletal age of 19 years. Jasim's pelvis showed a skeletal maturity that could be reached between the ages of 18 and 30 years of age. (d) While Ahlam could be a minimum of 18 years of age as she claimed, she could equally have been as old as 28 years of age on the basis of the x-rays in the view of the Ottawa radiologist. One radiologist concluded she was over 25 years of age.
[24] On that evidence, I cannot conclude that the visa officer's conclusion that the ages were misrepresented was based upon irrelevant or extraneous considerations. The decision was supported by evidence before the officer, and it is not asserted that the decision was made in bad faith or in breach of the principles of natural justice. While due to the disparity of the opinions the visa officer could well have concluded that the ages were not misrepresented, there was evidence to support the officer's conclusion, and I have not been persuaded that the officer committed a reviewable error in finding the ages to have been misrepresented.
[25] In so concluding, I have considered the submissions ably presented on Ms. Sharief's behalf that, in any event, no representation was made as to age, and that the officer committed a reviewable error in ignoring the fact that the children's birth dates were established by their Iraqi identity cards. With respect to the first submission, in my view the effect of submitting identity documents is to represent the accuracy of the information contained in those documents. If relevant information known to be false or inaccurate is contained in the documents presented to the visa post there is an obligation to correct the information. Ms. Sharief also repeated the information as to the children's birth dates in the application for permanent residence which she signed. Thus, I find that she did make a statement or representation as to the ages of the children.
[26] In the absence of evidence before me as to the reliability of Iraqi documentation, I do not find it to be a reviewable error for the visa officer to have relied upon the opinion of qualified medical practitioners in preference to the information contained in the identity cards. While a decision-maker is, as a matter of law, obliged to consider evidence which directly contradicts his or her findings, without evidence respecting the reliability of the Iraqi documentation I cannot conclude that the documentation provided such cogent evidence of age that it was an error for the officer to have failed to expressly consider in her decision the effect of the documents. It is settled law that a decision-maker is not obliged to specifically refer to each piece of evidence before the decision-maker.
Did the visa officer err in rejecting the application in its totality?
[27] The visa officer concluded that Kasim and Monirah met the definition of accompanying dependent. Ms. Sharief's age was not relevant to her application. The only stated basis for refusing her application and that of the two dependent children was that, by misrepresenting the ages of her children, Ms. Sharief failed to meet the requirements of subsection 9(3) of the Act. That subsection provided:
| 9 (3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
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9 (3) Toute personne doit répondre franchement aux questions de l'agent des visas et produire toutes les pièces qu'exige celui-ci pour établir que son admission ne contreviendrait pas à la présente loi ni à ses règlements. |
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[28] The Federal Court of Appeal has held that a violation of subsection 9(3) of the Act may justify a decision not to grant a visa, but that such a violation does not have the automatic effect of making an applicant inadmissible. See: Kang v. Canada (Minister of Employment and Immigration), [1981] 2 F.C. 807.
[29] In Mundi v. Canada (Minister of Employment and Immigration), [1986] 1 F.C. 82 the Federal Court of Appeal considered the result which should flow where an applicant for landing provided a false document to prove the age of his son, whose name was Balwinder. The majority of the Court wrote:
I also agree that the applicant must accept the responsibility for having submitted a bogus document and bear whatever legal consequences flow from his having submitted the document in question as proof of his son's age.
[...]
The failure to satisfy the visa officer with respect to Balwinder's age could not, however, in my opinion, affect the admissibility of the applicant or his wife and daughters unless the providing of the bogus certificate respecting Balwinder's age was relevant to his own admissibility.
In this respect the only provision cited by the visa officer or by counsel in the course of argument as rendering the applicant inadmissible as a member of the class described in paragraph 19(2)(d) was subsection 9(3). It reads:
9. ...
(3) Every person shall answer truthfully all questions put to him by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
The appellant was said to have failed to comply with that provision by presenting the bogus certificate. But, even assuming that the applicant knew when presenting it that the certificate was bogus, it appears to me that it was relevant only to Balwinder's admissibility as a dependant of the applicant and had no bearing whatever on whether the admission of the applicant himself would be contrary to the Act or the Regulations. Moreover, it is at the stage when admissibility is being determined that subsection 19(2) applies. See Kang v. Minister of Employment and Immigration. [[1981] 2 F.C. 807 (C.A.).] I do not think therefore that the refusal is sustainable on the basis of the reason expressed in the refusal letter. [underlining added]
[30] Applying those principles to the facts before me, any misrepresentation as to the age of Ahlam and Jasim was relevant to their admissibility, but not relevant to the admissibility of Ms. Sharief, Kasim and Monirah. As in Mundi, it follows that the refusal of Ms. Sharief's application was not sustainable on the basis of the reasons given by the visa officer.
[31] This is distinguishable from the case of Manigat v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1052 (T.D.) relied upon by the Minister, where a wife was found to be inadmissible because she had failed to satisfy the visa officer of her own admissibility by showing that she and all her dependents were not part of an inadmissible class. In the present case, no question arose as to the admissibility of Ms. Sharief and her two youngest children apart from the effect of the misrepresentation.
[32] It follows that the visa officer erred in rejecting the application in its totality on the ground given by the officer. The application should therefore be remitted for redetermination by a different officer.
[33] Counsel posed no question for certification, and in my view no question arises for certification on this record.
ORDER
[34] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed, and the decision of the visa officer dated January 8, 2001 is hereby set aside.
2. The matter is remitted for redetermination by a different visa officer.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-423-01
STYLE OF CAUSE: KAHKIJA SHARIEF
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, JANUARY 30, 2003
REASONS FOR ORDER:
AND ORDER: HON. MADAM JUSTICE DAWSON
DATED: MARCH 6, 2003
APPEARANCES:
Mr. Mendel Green
FOR THE APPLICANT
Ms. Alexis Singer
FOR THE RESPONDENT
SOLICITORS OF RECORD: Mr. Mendel Green
Green and Spiegel
Barristers and Solicitors
390 Bay Street
Suite 2800
Toronto, Ontario, M5H 2Y2
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT