Brhane v. Canada (Citizenship and Immigration), 2018 FC 220 : Federal Court Reviews Family Class Refusal After Officer Failed to Provide Promised DNA Testing

The Federal Court reviewed the refusal of Yonas Kidane Brhane’s application for permanent residence as the overseas dependent child of Nebiat Weldeghiorghis Zeru, a protected person in Canada. The officer doubted Mr. Brhane’s claimed age and whether Ms. Zeru was his mother. The Court granted judicial review because the officer failed to provide promised DNA testing, denied a meaningful opportunity to answer identity and parentage concerns, and made a factual finding contradicted by the record.

Key Principle

Where an officer promises an immigration applicant an opportunity to undergo DNA testing and departmental guidelines contemplate DNA testing when documentary proof of parentage is insufficient, the doctrine of legitimate expectations may require the promised procedure to be provided. Even with a relatively low duty of fairness, an overseas applicant must be informed of specific concerns and given a meaningful opportunity to respond.

 Background

Mr. Brhane claimed he was born in Eritrea in February 1996. Ms. Zeru entered Canada in 2013, claimed refugee protection and included him as an overseas dependent child in her permanent residence application.

IRCC requested his birth certificate, photographs, evidence of financial support, and correspondence. Ms. Zeru provided a birth certificate and photographs. Mr. Brhane later fled Eritrea for a refugee camp in Sudan and attended an interview at the Canadian Embassy in Khartoum in 2017.

The officer refused the application, finding that Mr. Brhane appeared substantially older than 20, that his 2012 birth certificate was unverifiable, and that insufficient evidence established Ms. Zeru as his mother. The officer also stated that Mr. Brhane had never been listed as her family member in her immigration forms.

Court Findings

• Promised DNA Testing Created a Legitimate Expectation

Mr. Brhane’s uncontradicted evidence was that the officer told him at the interview that he would have an opportunity to undergo DNA testing because his birth certificate could not be verified. IRCC guidelines also contemplated DNA testing where satisfactory documentary evidence was unavailable. The Court held that the representation and guidelines triggered legitimate expectations. Failing to provide the promised opportunity breached procedural fairness.

• Applicant Was Not Given a Meaningful Opportunity to Respond

Concerns about Mr. Brhane’s identity, age, birth certificate, and relationship with Ms. Zeru existed before the interview. Yet the interview invitation only required identity documents and updated photographs. He was not told beforehand about the specific concerns and was not invited to make further submissions afterward. This was particularly significant once the promised DNA testing was not provided.

• Officer Made a Material Factual Error

The officer stated that Mr. Brhane had never been identified as one of Ms. Zeru’s children in her immigration records. The record showed otherwise: he was listed as a dependant in her 2013 refugee application and as her son in her Basis of Claim form. The Court found this conclusion unsupported by the evidence and unreasonable. Because it affected the overall analysis, it independently supported setting aside the refusal.

Outcome

The Federal Court granted judicial review, set aside the refusal, and remitted the application to a different visa officer for reconsideration. The Court declined the requested $3,000 costs award, finding no special reasons for costs. No question was certified.

Case Citation:

Brhane v. Canada (Citizenship and Immigration), 2018 FC 220 (CanLII)