Khorasgani v. Canada (Minister of Citizenship and
Immigration)
Between
Mohammadreza Fatemi Khorasgani, Maryam Tajmir Riahi, Ali
Fatemi Khorasgani and Mehdi Fatemi Khorasgani, Applicants, and
The Minister of Citizenship and Immigration, Respondent
Fatemi Khorasgani and Mehdi Fatemi Khorasgani, Applicants, and
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 1260
2012 FC 1177
Docket IMM-2090-12
Federal Court
Montréal, Quebec
Martineau J.
Heard: October 2, 2012.
Judgment: October 9, 2012.
Docket IMM-2090-12
Federal Court
Montréal, Quebec
Martineau J.
Heard: October 2, 2012.
Judgment: October 9, 2012.
(22 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MARTINEAU J.:-- The issue in this judicial
review application is whether the visa officer made a reviewable error in
dismissing the applicants' application for permanent residence [the
application] on the basis of misrepresentation under paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC
2001, c 27, as amended [Act].
2 The
applicants are citizens of Iran. The principal applicant, Dr. Khorasgani, is a
pediatrician who wants to be admitted in the Federal Skilled Worker Class. In 2005,
the principal applicant hired an immigration consultant to help prepare and
submit the application. According to the Computer Assisted Immigration
Processing System [CAIPS], the application was received on or before January 3,
2006 at the Canadian Embassy in Damascus.
3 Section
79 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] sets out the language test requirements
for a permanent residency application made by a skilled worker:
(1) A skilled worker
must specify in their application for a permanent resident visa which language
-- English or French -- is to be considered their first official language in
Canada and which is to be considered their second official language in Canada
and must have their proficiency in those languages assessed by an organization
or institution designated under subsection (3).
· ...
The Minister may
designate organizations or institutions to assess language proficiency for the
purposes of this section and shall, for the purpose of correlating the results
of such an assessment by a particular designated organization or institution with
the benchmarks referred to in subsection (2), establish the minimum test result
required to be awarded for each ability and each level of proficiency in the
course of an assessment of language proficiency by that organization or
institution in order to meet those benchmarks.
The results of an
assessment of the language proficiency of a skilled worker by a designated
organization or institution and the correlation of those results with the
benchmarks in accordance with subsection (3) are conclusive evidence of the
skilled worker's proficiency in the official languages of Canada for the
purposes of subsections (1) and 76(1).
* * *
(1) Le travailleur
qualifié indique dans sa demande de visa de résident permanent la langue --
français ou anglais -- qui doit être considérée comme sa première langue
officielle au Canada et celle qui doit être considérée comme sa deuxième langue
officielle au Canada et fait évaluer ses compétences dans ces langues par une
institution ou organisation désignée aux termes du paragraphe (3).
· ...
Le ministre peut
désigner les institutions ou organisations chargées d'évaluer la compétence
linguistique pour l'application du présent article et, en vue d'établir des
équivalences entre les résultats de l'évaluation fournis par une institution ou
organisation désignée et les standards mentionnés au paragraphe (2), il fixe le
résultat de test minimal qui doit être attribué pour chaque aptitude et chaque
niveau de compétence lors de l'évaluation de la compétence linguistique par
cette institution ou organisation pour satisfaire à ces standards.
Les résultats de
l'examen de langue administré par une institution ou organisation désignée et
les équivalences établies en vertu du paragraphe (3) constituent une preuve
concluante de la compétence du travailleur qualifié dans les langues
officielles du Canada pour l'application des paragraphes (1) et 76(1).
4 The
application included the results of the principal applicant's English language
proficiency test: listening 6.5, reading 6.5, writing 6.0, speaking 5.5, and
overall band score 6.0. These results, on their face, appeared to have been issued
by the International English Language Testing System [IELTS], an organization
approved by the Canadian government. Indeed, the Test Report Form dated
December 1, 2005 and bearing the number 021R1234745QL6790L (the 2005 test
report), which is certified as a true copy by the Justice Administrator,
features logos of the British Council, the IELTS Australia and the University
of Cambridge.
5 The
principal applicant was apparently examined on October 5, 2005. However, when
reviewing the applicants' file, the visa officer had concerns about the
authenticity of the 2005 test report. On June 27, 2011, a procedural fairness
email was sent to the principal applicant expressing the concerns of the visa
officer. The principal applicant confirmed that he had never taken an English
test before 2006. Be that as it may, the principal applicant had since then
passed IELTS tests (see reports of July 22, 2006, July 4, 2009, and December 5,
2009).
6 The
visa officer found that the applicants had submitted fraudulent English test results,
which could have induced an error in the administration of the Act, and found
the applicants inadmissible for misrepresentation for a period of two years:
· The misrepresentation or withholding of these material facts induced
or could have induced errors in the administration of the Act. You have
submitted IELTS test results indicating that you were a "very good
user" of the English language.
· Without establishing your abilities in the English language, your
application would not receive sufficient points at selection to meet the points
total required by the Immigration and Refugee Protection Regulations and your
application would not have met immigration requirements.
7 The
applicants now challenge the visa officer's finding that the fraudulent test
scores constitute a material
misrepresentation. In the impugned decision, reference is made to a test report
form dated December 5, 2009, but it appears this is a clerical error. Indeed,
in the fairness letter (emailed by the visa officer on June 27, 2011) reference
is made to the 2005 test report. In this respect, the applicants submit that
the visa officer should not have considered the forged 2005 test document, but
only the most recent language tests (December 2009), and which conclusively establish
the English language proficiency of the principal applicant. Accordingly, the
determination made by the visa officer that the application would not receive
sufficient points at selection is unreasonable.
8 According
to the case law, the finding of misrepresentation and its qualification by the
visa officer as material misrepresentation, are reviewable under the standard
of reasonableness, while alleged breaches to procedural fairness are reviewable
under the standard of correctness.
9 The
present application for judicial review must fail.
10 At
the hearing before the Court, applicants' counsel did not pursue procedural
fairness issues originally raised, if any, in the pleadings. Indeed, the
fairness letter sent to the principal applicant on June 27, 2011 clearly
outlines the officer's concerns with respect to the authenticity of the 2005
test report. Moreover, the applicants' counsel also readily admitted that in
view of the case law and wording of paragraph 40(1)(a) of the Act, the principal
applicant cannot blame the immigration consultant for his forgery. In passing,
I note that on November 22, 2006 the visa officer attempted to notify the
principal applicant that he had hired an unauthorized representative. However,
the email address provided by the immigration consultant was incorrect and the
principal applicant did not receive the message. A letter with the same
information was resent on January 15, 2009.
11 As
per subsection 11(1) of the Act, the visa officer must be satisfied that the
applicants are not inadmissible. In order to find inadmissibility pursuant to
paragraph 40(1)(a) of the Act, two elements must coexist: (1) a
misrepresentation (direct or indirect); and (2) same must be material (in that
it induces or could induce an error in the administration of the Act).
Paragraph 40(1)(a) is broadly worded to encompass misrepresentations even if
made by another party, without the knowledge of the applicant. This provision
reads as follows:
(1) A permanent resident
or a foreign national is inadmissible for misrepresentation
for directly or
indirectly misrepresenting or withholding material facts relating to a relevant
matter that induces or could induce an error in the administration of this
Act;
* * *
(1) Emportent
interdiction de territoire pour fausses déclarations les faits suivants :
directement ou
indirectement, faire une présentation erronée sur un fait important quant à un
objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque
d'entraîner une erreur dans l'application de la présente loi;
12 It
is not challenged that the 2005 test report is a forged document
misrepresenting the fact that the principal applicant had been positively
tested on October 3, 2005. The finding of misrepresentation made by the visa
officer that the fraudulent test scores induced or could have induced an error
in the administration of the Act, constitutes an acceptable outcome which is
defensible in respect of the facts and the law since the scores obtained on the
language test can influence the total points required for a permanent residency
application to be granted.
13 Once
it is understood that a misrepresentation is material, a person seeking entry
as a permanent resident should not be able to benefit from subsequent delays in
the processing of their application. As generally observed by Justice Shore in Omgba v Canada (Public Safety and Emergency Preparedness), 2011 FC 748 at para 1, "[t]he reward of the truth, once
understood, is an openness to the interpretation of immigration laws that
provide access to the improvements regarding the precarious human condition
intended by Parliament; on the other hand, lies bar
access to undeserved settlement opportunities to preserve the integrity of the
immigration system." [Emphasis added]
14 At
the time of the application, there was clearly a misrepresentation made by the
applicants on a relevant fact. The wording of paragraph 40(1)(a) of the Act
does not support the restrictive interpretation advanced by the applicants. It
is not that the fraudulent test results necessarily induced an error in the
administration of the Act, but instead as the Act clearly states, it is that
the results could have induced
an error. The intent of these provisions being to deter misrepresentation and
maintain the integrity of the immigration process - to accomplish this
objective the onus is placed on the applicant to ensure the completeness and
accuracy of his or her application. The fact that the applicants subsequently
filed bona fide reports did not
create any legitimate expectation that their application would receive
sufficient points at selection.
15 In
April 2012, my colleague, Madam Justice Danielle Tremblay-Lamer rendered nine
nearly identical decisions based on cases that are all substantially the same
as the present case. All applicants were citizens of Iran who had hired the
same immigration consultant as the principal applicant in this case. All their
applications for permanent resident were refused after the visa officer
concluded that their IELTS results were false. The respective applicants in
each of the nine cases presented arguments that were also substantially similar
to those presented by the applicant in the case at bar, and all were
additionally represented by the same counsel as the present applicants. The
learned judge arrived at the same conclusion in each of the cases and dismissed
all nine applications for judicial review. See Goudarzi
v Canada (Minister of Citizenship and Immigration), 2012
FC 425, [2012] FCJ No 474 [Goudarzi]; Afzal v Canada (Minister of Citizenship and
Immigration), 2012 FC 426, [2012] FCJ No 475; Khoei v Canada (Minister of Citizenship and Immigration), 2012 FC 421; [2012] FCJ No 470; Masoud v
Canada (Minister of Citizenship and Immigration), 2012
FC 422, [2012] FCJ No 471; Oloumi v Canada (Minister of
Citizenship and Immigration), 2012 FC 428, [2012] FCJ No
477; Sayedi v Canada (Minister of Citizenship and
Immigration), 2012 FC 420, [2012] FCJ No 469; Sedeh v Canada (Minister of Citizenship and Immigration), 2012 FC 424, [2012] FCJ No 473; Shahin v
Canada (Minister of Citizenship and Immigration), 2012
FC 423, [2012] FCJ No 472; Tofangchi v Canada (Minister
of Citizenship and Immigration), 2012 FC 427, [2012] FCJ
No 476.
16 I
agree with the respondent that this is an instance where the doctrine of
judicial comity applies (see Cina v Canada (Minister of
Citizenship and Immigration), 2011 FC 635 at paras
34-35, [2011] FCJ No 817). The applicants have simply failed to convince me
that this case comes within a recognized exception mentioned in Almrei v Canada (Minister of Citizenship and Immigration), 2007 FC 1025 at paras 61-62, [2007] FCJ No 1292, that is: the two
cases have a different factual or evidentiary basis; the issues at bar are
different in each case; there is legislation or binding authorities that the
prior decision did not consider that would lead to a different result; and
where injustice would result from following the other decision.
17 The
applicants notably argue that the 2005 test report was not presented as an
original document, which would mean that there was no "material
misrepresentation" since the document should not have been accepted in the
first place. This contradictory position was also advanced by applicants'
counsel before Justice Tremblay-Lamer and I am unable to find any reason not to
follow the approach taken by my colleague. Let us just say that, if the test
results were not intended to represent valid test results, then the application
would have been deemed incomplete and returned since it was missing a requisite
element. This means that submission of the fraudulent test results did affect the process and was material. The
submitting of the 2005 test report conferred a relative advantage to the
applicants who were falsely claiming that the principal applicant had been
positively tested in October 2005.
18 The
fact that the immigration consultant hired by the applicants was not an
"authorized representative" within the meaning of the Regulations was
also considered by Justice Tremblay-Lamer. This did not prevent the principal
applicant from verifying the veracity of their application and the authenticity
of supporting documentation submitted with the application (including the
forged 2005 test report). Indeed, the application, containing the fraudulent
test scores as well as the incorrect email address, was apparently signed by
the applicant.
19 The
visa officer owed no duty of care to the applicants and the applicants were
subject to a duty of candour, which they did not satisfy in this case.
Subsection 16(1) of the Act provides:
(1) A person who makes
an application must answer truthfully all questions put to them for the purpose
of the examination and must produce a visa and all relevant evidence and
documents that the officer reasonably requires. 16. (1) L'auteur d'une demande
au titre de la présente loi doit répondre véridiquement aux questions qui lui
sont posées lors du contrôle, donner les renseignements et tous éléments de
preuve pertinents et présenter les visa et documents requis.
Accordingly, the purpose of the misrepresented
document or statement should be considered when assessing whether the
misrepresentation meets the materiality threshold.
20 Again,
in addressing the other nine cases mentioned above, Justice Tremblay-Lamer
writes in Goudarzi at paras 17,
27, 40, 49 and 50:
· The Court agrees with the respondent that the False Document
constitutes a misrepresentation: an examination of its physical appearance
reveals that it is clearly designed to imitate the appearance of an IELTS Test
Report. There is no other plausible purpose behind the submission of the False
Document other than to mislead the immigration authorities into thinking that
the file was complete and that the principal applicant had satisfied the
language requirements. An official doing an initial completeness review of the
file would not necessarily notice that it was fraudulent. I do not accept that
any reasonable person would say that the purpose of this document was anything
other than to mislead. It was thus wholly reasonable for the counsellor to
conclude that it was intended to mislead the authorities to believe it to be an
authentic test result.
· ...
· The fact that the misrepresentation was caught before the final
assessment of the application does not assist the applicants. The materiality
analysis is not limited to a particular point in time in the processing of the
application -- the fact that the principal applicant had submitted more recent
language test results does not render the earlier misrepresentation immaterial.
Such a result would reflect a narrow understanding of materiality that is
contrary to the wording and purpose of section 40(1)(a) of the Act. The False
Document was submitted and it was material.
· ...
· In keeping with this duty of candour, there is, in my opinion, a duty
for the applicant to make sure that when making an application, the documents
are complete and accurate. It is too easy to later claim innocence and blame a
third party when, as in the present case, the application form clearly stated
that language results were to be attached, and the form was signed by the
applicants. It is only in exceptional cases where an applicant can demonstrate
that they honestly and reasonably believed that they were not withholding
material information, where "the knowledge of which was beyond their
control", that an applicant may be able to take advantage of an exception
to the application of section 40(1)(a).
· ...
· The concept of a duty of care does not apply in this context -- the
applicants were subject to a duty of candour, which they did not satisfy. The
initial screening officer was simply tasked with undertaking a
"completeness" check of the application file. He owed no "duty
of care" to the applicants.
· The requirements of procedural fairness -- which did exist -- were in
fact satisfied. When the visa officer later examined the False Document, he
noted several problems with it (likely including the fact that it was evidently
a copy), which led him to conclude it was fraudulent. The visa officer's
obligation at that point was to advise the applicants that they were
potentially inadmissible for misrepresentation. He discharged this obligation
by sending the Fairness Letter and thus satisfied the requirements of
procedural fairness.
21 In
the case at bar, the misrepresentation made by the applicants did not arise as
a result of a bona fide error or
excusable misunderstanding of what was required by the Regulations. That said,
nothing will prevent the applicants from making a fresh application for
permanent residence at the expiry of the inadmissibility period provided for in
paragraph 49(2)(a) of the Act.
22 For
these reasons, the impugned decision must stand. Accordingly, the present
application for judicial review shall be dismissed. Neither party proposed a
question for certification and in my view there is none.
JUDGMENT
THIS COURT'S JUDGMENT is that the present application for judicial review is dismissed. No
question of general importance is certified.
MARTINEAU J
