It seams that some individuals assume that they can succeed no matter how they deal with the system. Perhaps it is time to consider the imposition of financial costs on some misrepresenting applicants to recover the time and expenditure by taxpayers in entertaining their stories? In civil courts, costs are often awarded against the losing party, and in criminal courts, those found guilty are often subject to cost-recovery fees. On the other hand, costs could also prevent unreasonable opposition by government representatives to cases that are glaringly and wrongly decided by visa posts. Costs measures cut both ways.
Asghar v. Canada (Minister of Citizenship and Immigration)
Noreen Asghar, appellant, and
Minister of Citizenship and Immigration, respondent
[2010] I.A.D.D. No. 528
[2010] D.S.A.I. no 528
No. TA8-17434
Immigration and Refugee Board of Canada
Immigration Appeal Division
Toronto, Ontario
Panel: William T. Short
Heard: March 11, 2010.
Decision: April 19, 2010.
(27 paras.)
________________________________________
Sponsorship
Reasons for Decision
1 Noreen ASGHAR (the appellant) sponsored her husband, Nazir AHMAD (the applicant) to Canada. Her husband's application for a permanent resident visa was refused by a visa officer at the Canadian High Commission in Islamabad, Pakistan. The visa officer found that the applicant is inadmissible to Canada pursuant to subsection 40(1)(a) of the Immigration and Refugee Protection Act (IRPA). Subsection 40(1)(a) of IRPA reads as follows:
40(1) Misrepresentation - A permanent resident or
a foreign national is inadmissible for misrepresentation
• (a) 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 the Act.
2 The visa officer found that the applicant had previously made an immigration application through the Canadian Consulate in Buffalo, New York, U.S.A. The consulate received an immigration application from an individual with the same name and date of birth as the applicant. That application disclosed that the individual concerned was married (to someone other than the appellant) and that he had two children.
3 Furthermore, the visa officer was of the view that by virtue of subsection 117(9) of the Immigration and Refugee Protection Regulations (Regulations) the applicant could not be considered the appellant's spouse because he was married to another at the time of his marriage to the appellant.
4 The appellant and applicant contend that the applicant's marriage to the appellant is his first and only marriage, that he has no children and that he is not one and the same as the individual who had previously applied through the consulate in Buffalo.
5 At the hearing the appellant testified in person through an Urdu interpreter, while the applicant testified via teleconference from Pakistan through the same interpreter. Both parties understood the interpreter.
Issue
6 The sole issue to be decided in this matter is narrow and factual. On a balance of probabilities is the applicant one and the same as the individual who had previously made an immigration application through the consulate in Buffalo? The evidentiary onus lies upon the appellant and the applicant to prove that the applicant has not previously applied for immigration though the consulate in Buffalo.
Decision
7 On the evidence presented, I have, for the reasons outlined below, concluded that it is more probable than not that the applicant is one and the same as the individual who had previously applied for an immigration visa through the consulate in Buffalo and the appeal should, therefore, be dismissed.
Background
8 The appellant is a 33-year-old woman who was born in Pakistan. She applied for Convention refugee status in Canada in 2003 and was granted permanent residence status in 2005. She is presently employed as a sales representative.
9 The applicant is 40 years of age and is a citizen and resident of Pakistan. He claims that his marriage to the appellant is his very first marriage.
10 The appellant and applicant claim that they have known each other since childhood and went through a proxy marriage on March 15, 2005.
11 The appellant has sponsored the applicant to Canada.
Analysis and Finding of Fact
12 When the applicant was interviewed at the High Commission in Islamabad on May 8, 2005 the applicant was informed by the visa officer that the visa post had been informed by the Canadian Consulate in Buffalo, New York, U.S.A. that they had record of an immigration application under the skilled worker category in 2001 which had been refused.1 That individual had the same name and date of birth as the applicant. It also showed that he had a wife, Nasreen and sons, Adeel and Nabeel.2
13 The applicant denied any knowledge of the other individual, who had applied through Buffalo, and said that this was his first marriage.
14 Unfortunately it was not possible for the Buffalo consulate to retrieve the previous immigration file, but the data as well as the applicant's photograph were retained. The photograph of the previous applicant was scanned and sent by the consulate in Buffalo to the visa post in Islamabad.
15 The Computer Assisted Immigration Processing System (CAIPS) notes contain the following:3
(showed the fn the scanned image)
Who is this
Me
Do you know where I got this pic
No
From your immigration file, in USA
I did not file any application in the USA
Are you sure
Yes
16 On December 26, 2005 the applicant wrote a letter to the visa post4 in which he claimed that in anticipation of travelling to Saudi Arabia to assist pilgrims, he had given all of his personal documents, including his photograph, identity documents and passport to his co-worker. The appellant said that after the interview at the visa post he had confronted his co-worker, who had sent these documents to his brother in the United States for the purposes of people trafficking.
17 In support of this contention, the appellant has entered into evidence an enlarged copy of a photograph of the applicant as well as a copy a document from the State of New Mexico Motor Vehicle Division.5
18 The material from New Mexico shows an individual with the same name and date of birth as the applicant. The photograph accompanying this information is clearly that of an individual who is not the applicant.
19 I am of the view that all that this material proves is that there is in New Mexico an individual with the same name and date of birth as the applicant. If the photograph had been the same, the applicant's point would have been made, but it is not.
20 I think what really tips the scales against the applicant in this matter is the fact that the individual who applied through the consulate in Buffalo filed the applicant's photograph, a scanned copy of which was sent by the Buffalo Consulate to the visa post6 and which was readily identified by the applicant as his.
21 I agree with Mr. Marinelli's submission that it would make no sense for an impostor to steal the applicant's identity and to nevertheless file the applicant's photograph. There would be no advantage. Sooner or later the impostor would be required to appear for an interview or other personal scrutiny at an immigration check point and it would become obvious that the impostor was not the individual who he purported to be.
22 In my own experience as a member of this Board, I have had occasion to deal with fraudulent passports and documents. Where an identity is stolen, the personal details of the bona fide owner of the document are retained, but the photograph of the impostor is substituted. In fact, these documents are very often referred to as "photo substituted." I have seen photograph substituted fraudulent passports, photograph substituted driver's licences and photograph substituted citizenship cards. I have never come across an instance where a document was used fraudulently which retained the photograph of the rightful holder of that document for the simple reason that the subterfuge would be obvious and be very easily and quickly discovered.
23 Moreover I am not persuaded of the truth of the applicant's explanation that his identity was stolen. No hard probative evidence has been provided by the applicant to show that his identity was in fact stolen.
24 The applicant only went to the police in April 2006, after being advised to do so by the visa post in March and has not followed up with the police, saying only that the police in Pakistan are unreliable.
25 At this point I wish to say that I am mindful of the applicant's sworn testimony that he has never been married before and that he does not have two sons named Adeel and Nabeel, or that he applied to immigrate to Canada through the consulate in Buffalo. That fact notwithstanding, I am without any alternative reasonable explanation as to how the applicant's photograph was filed with the previous immigration application at the consulate in Buffalo other than to conclude that the applicant did indeed file a previous immigration application through the consulate in Buffalo and I so find.
Conclusion
26 On the evidence before me I conclude that it is more probable than not and I so find that the applicant did apply for immigration to Canada through the consulate in Buffalo in 2001 and he is accordingly inadmissible to Canada through the operation of section 40(1) of IRPA for failing to disclose this fact when he applied for immigration through the visa post at the Canadian High Commission in Islamabad.
27 There is not enough evidence before me (nor was it argued) to conclude that the applicant is not a member of the family class through the operation of section 117(9) of the Regulations and I make no such finding.
NOTICE OF DECISION
The appeal is dismissed.
"William T. Short"
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