Khedri v. Canada (Minister of Citizenship and
Immigration)
Between
Akrem Khedri, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1509
[2012] A.C.F. no 1509
2012 FC 1397
Docket IMM-3292-12
Docket IMM-3292-12
Federal Court
Montréal, Quebec
Noël J.
Heard: November 15, 2012.
Judgment: November 30, 2012.
Montréal, Quebec
Noël J.
Heard: November 15, 2012.
Judgment: November 30, 2012.
(34 paras.)
·
REASONS FOR JUDGMENT AND
JUDGMENT
1 NOËL J.:-- This is an application for
judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a
decision of the Immigration Division (ID) of the Immigration and Refugee Board
of Canada rendered on March 22, 2012. The Panel concluded that Akrem Khedri is
inadmissible pursuant to paragraph 40(1)(a) of the IRPA.
I. Facts
2 The
applicant is Tunisian. He applied for a student visa at the Canadian Embassy in
Tunisia, which was issued on December 28, 2010. He arrived in Canada on January
1, 2011, and was granted at the time a study permit valid until March 31, 2012.
3 In
support of his visa application, he submitted a bank statement from the Société
tunisienne de Banque Bank (STD Bank) in Tunis.
4 On
January 10, 2011, an official from the Canadian Embassy in Tunisia contacted
the STD Bank to verify the authenticity of a number of bank statements from
Tunisian students, including that of the applicant. The STD Bank confirmed that
only three of all the bank statements provided were authentic. That of the
applicant was not mentioned.
5 On
December 7, 2012, an immigration officer met with the applicant for an
explanation on the bank statement in question. According to the immigration
officer's report, the applicant stated that his father obtained the bank
statement and that he was not, therefore, responsible for submitting a
fraudulent document.
6 A
hearing before the ID was held on March 13, 2012. In its decision, the ID
issued an exclusion order against the applicant, pursuant to paragraph 229(1)(h) of the Immigration
and Refugee Protection Regulations, SOR/2002-227, as it
concluded that the applicant's misrepresentation induced an error in the
administration of the Act, within the meaning of paragraph 40(1)(a) of the IRPA.
II. Impugned decision
7 The
ID confirmed the Minister's position that the bank statement was fraudulent,
based on the evidence before the Panel, on a balance of probabilities.
8 In
fact, the ID found that it was probable that the applicant's bank statement was
included in the statements sent to the STD Bank for verification on January 10,
2011, despite the fact that a list of names of persons whose bank statement was
verified was not included. Moreover, the CAIPS notes on the applicant's record
confirm that information.
9 The
ID rejected the applicant's explanation that he honestly believed that the
statement was authentic, as his father, who had taken the steps to obtain it,
confirmed to him that this was indeed the case. The applicant provided as
evidence an e-mail from his father confirming all of this, but the ID gave
little probative value to it.
10 Furthermore,
the ID noted that there was no evidence that the applicant took any steps with
the STD Bank to clarify the situation. Such evidence would have proven useful
considering that it was the bank who was in the best position to rectify the
situation. Thus, the decision-maker considered the applicant as being not
credible given his choice not to act, especially when he alleges that he feared
he would not be able to finish his academic year.
11 Finally,
the decision-maker rejected the applicant's argument that there had to be an
intentional element for paragraph 40(1)(a) to apply.
12 Thus,
the analysis of the evidence as a whole led the Panel to conclude, on a balance
of probabilities, that the applicant's bank statement was fraudulent and that
this element of fraud was material to his application, namely, his financial
capability to support himself while studying in Canada. The ID was, therefore,
of the view that it was reasonable to believe that this misrepresentation
induced an error in the application of the IRPA.
III. Applicant's position
13 The
applicant submits that the ID should have considered the fact that he was
unaware that the document was falsified and that, therefore, it erred in
concluding that it is not necessary to prove the intent of the applicant to
mislead.
14 In
the alternative, the applicant submits that the ID arrived at an unreasonable
conclusion in determining that the document was falsified. Moreover, he alleges
that the ID unduely reversed the burden of proof in the circumstances by
imposing on the applicant the burden of proving the authenticity of the
document.
IV. Respondent's position
15 The
respondent submits that the decision-maker must assess the evidence as a whole
based on a balance of probabilities. In this context, the applicant had to
substantiate his submission that the bank statement was authentic on the basis
of probative evidence. Furthermore, the applicant cannot be exempted from the
law on the sole basis that he was unaware that the statement had been
falsified.
V. Issue
16 Did
the ID err in concluding that "mens rea" is not required for misrepresentation under paragraph 40(1)(a) of the IRPA?
17 Did
the Panel err in concluding that the bank statement submitted in support of his
student visa application was falsified?
VI. Standard of review
18 The
standard of review applicable to the first issue, namely, whether paragraph
40(1)(a) requires an element of
"mens rea," is the
standard of reasonableness, as it is a question of law related to the
interpretation of the officer's home statute (Alberta
(Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61, [2011] 3 SCR 654). The second issue requires the
application of the reasonableness standard, as it is a question of mixed fact
and law (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraphs 164-166, [2008] 1 SCR 190).
VII. Relevant legislation
19 Paragraph
40(1)(a) of the IRPA reads as
follows:
·
Immigration and Refugee
Protection Act, SC 2001, c 27
·
Misrepresentation
(1) 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 this Act;
·
...
* * *
·
Loi sur l'immigration et la
protection des réfugiés, LC 2001, ch 27
·
Fausses déclarations
(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;
...
VIII. Analysis
20 The
conclusion that the applicant provided a fraudulent document in support of his
visa application and that he must therefore be subject to an exclusion order is
reasonable.
21 Paragraph
40(1)(a) is clearly written. It
states that misrepresentation can be made "directly or indirectly"
and no intent is required on the part of the person making the allegedly
fraudulent statement. Indeed, if this is what Parliament had intended, the section
would clearly reflect the need for a misrepresentation to be made with intent.
Moreover, in the guide "ENF 2: Evaluating Inadmissibility," under Tab
9.2, which deals with the nature of misrepresentation, explicit reference is
made to two elements. First, "indirect misrepresentation is where a third
party makes a misrepresentation." Second, "the misrepresentation need
not be willful or intentional -- it can also be unintentional."
22 This
Court has on a number of occasions addressed the issue of the application of
paragraph 40(1)(a) of the IRPA
to situations where the applicant alleges that misrepresentation occurred
without his or her knowledge. Sayedi v Canada (Minister
of Citizenship and Immigration), 2012 FC 420, 2012
CarswellNat 1125 (Sayedi)
summarizes the position of the case law on the matter. In Sayedi, supra, at paragraph 43, it was decided that applicants cannot shirk their
duty of candour on the basis that they were unaware that their immigration
consultant had submitted false documents in support of their application:
·
... The applicants in this case
chose to rely on their consultant. The principal applicant acknowledges having
signed his application. It would be contrary to the applicant's duty of candour
to permit the applicant to rely now on his failure to review his own
application. It was his responsibility to ensure his application was truthful
and complete -- he was negligent in performing this duty.
23 As
for the possibility of relying on a "defence" when there is a finding
of misrepresentation on the part of the applicant, the Court established that
such a possibility is not open to applicants (Sayedi, supra, at paragraph
44):
·
[44] Furthermore, in order for
the applicants to rely on a 'defence' to the finding of misrepresentation, that
defence must be grounded either in statute or common law. In my view, there is
no such defence under the Act: the wording of section 40(1)(a) is broad enough
to encompass misrepresentations made by another party, of which the applicant
was unaware: Wang, above at paragraphs 55-56. Furthermore, in Haque v Canada
(Minister of Citizenship and Immigration), 2011 FC 315, the Court held that the
fact that an immigration consultant was to blame for the misrepresentation was
no defence. As already discussed, the applicants cannot avail themselves of the
exception for an innocent mistake.
24 The
applicant cannot, therefore, argue that he was unaware that the bank statement
sought by his father was fraudulent to be exempted from the application of
paragraph 40(1)(a) of the IRPA.
In fact, the case law is clear: where a person misrepresents through a third
party, paragraph 40(1)(a) of the
IRPA continues to apply (Wang v Canada (Minister of
Citizenship and Immigration), 2005 FC 1059, at
paragraph 56, 47 Imm LR (3d) 299). Furthermore, the obligation to provide
truthful information and to ensure that his or her application is consistent
with legislation lies with the applicant (Haque v Canada
(Minister of Citizenship and Immigration), 2011 FC 315,
at paragraphs 13-14, 2011 CarswellNat 1638).
25 The
applicant alleges that the ID should have followed the line of authority
established in Osisanwo v Canada (Minister of
Citizenship and Immigration), 2011 FC 1126, 3 Imm LR
(4th) 52 (Osisanwo) and Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299, 2007 CarswellNat 4369 (Baro). The ID took it into consideration, but did not follow it.
26 As
for the applicant's argument that the principle in Osisanwo, supra, should be
followed, it cannot be upheld. This Court established in Sayedi, supra, that the facts in Osisanwo, supra, were highly
unusual. In fact, the applicants honestly and reasonably believed the child
they had was born of their union, as indicated on the birth certificate.
Rather, the general rule is that a misrepresentation can occur without the
applicant's knowledge and that the principle established in Osisanwo, supra, should not be interpreted as supporting the general proposition
that a misrepresentation must always require subjective knowledge for paragraph
40(1)(a) of the IRPA to apply.
27 Moreover,
the facts before us make it impossible for the applicant to even attempt to
justify the non-application of paragraph 40(1)(a) of the IRPA on the basis of an honest and reasonable belief. In fact,
since it is the applicant's father who made arrangements with the STD Bank to
obtain the statement, the onus was on him to verify its truthfulness. Thus, he
cannot avail himself of the exception provided for in 40(1)(a) of the IRPA for his negligence.
28 To
conclude, the ID fairly interpreted paragraph 40(1)(a) of the IRPA. In fact, it considered the two lines of authority
that deal with the element of intent in the administration of paragraph 40(1)(a) and concluded that the facts arising from
the applicant's situation were not analogous to those in Osisanwo, supra, and Baro, supra.
29 Finally,
as for the applicant's alternative argument, it cannot be accepted by this
Court. In fact, the decision-maker considered the fact that the STD Bank stated
that some statements were falsified and it is likely, therefore, that the STD
Bank's response to the Embassy's question pertained to the applicant's bank
statement. For his part, the applicant submits as evidence only the fact that
his father assured him that the statement was truthful to support his
submission. He did not make any attempt to verify its accuracy with the STD
Bank to try to rectify the situation.
30 The
ID reasonably concluded, therefore, based on a balance of probabilities, that
the bank statement was not authentic. In fact, the ID assessed the respondent's
evidence that a number of bank statements were verified with the STD Bank and
that the bank's response regarding the valid bank statements did not include
that of the applicant. It also considered the evidence submitted by the
applicant, which included a letter from his father attesting to the
truthfulness of the bank statement. It properly noted that the evidence
submitted by the applicant was not consistent with the best evidence rule, as
the applicant's father cannot attest to the truthfulness of a letter issued by
a third party. It was fair, in the circumstances, to expect that the applicant
submit more probative evidence to rebut the evidence submitted by the
respondent.
31 To
conclude, the ID did not reverse the burden of proof. It, therefore, committed
no error with respect to the applicable burden of proof (see Zhang v Canada (Minister of Citizenship and Immigration), 2005 FC 1313, at paragraph 16, 281 FTR 35) and it validly found
that it was more likely that the bank statement was falsified, considering the
weakness of the evidence submitted by the applicant.
IX. Question for
certification
32 A
question for certification was submitted by the applicant. The nature of the
question is the same as that certified in Osisanwo, supra; the
applicant states, however, that a question may concern applications other than
an application for permanent residence. The question is as follows:
·
Is a foreign national
inadmissible for misrepresenting a material fact if at the time of filing
his/her application for permanent residence, or work permit or student visa,
he/she had no knowledge of the material fact that constituted such
misrepresentation?
33 The
respondent is of the view that the question proposed by the applicant should
not be certified, as the wording suggests that the Court found that the ID
rendered an unreasonable decision in determining that the applicant was not
necessarily aware that the bank statement was fraudulent. As mentioned earlier,
the facts of this case differ from the facts of Osisanwo, supra.
34 The
Federal Court of Appeal ruled in Huynh v Canada
(Minister of Citizenship and Immigration), 134 DLR
(4th) 612, 36 CRR (2d) 93 (FCA), that for a question to be certified, it is
necessary that it raise a question of law of general importance. This Court
finds that it is not appropriate to certify a question in this application for
judicial review, as the facts of this case are not suitable for certification.
In Sayedi, supra, at paragraph 56, Justice
Tremblay-Lamer declined to certify a question of the same nature as that
submitted by the applicant on the ground that the answer to this question is
already well-settled. This Court agrees with this finding.
JUDGMENT
THE COURT ORDERS AND ADJUDGES THAT:
This application for
judicial review is dismissed.
No question will be
certified.
Certified true translation: Daniela Guglietta,
Translator
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