Goburdhun v. Canada (Minister of Citizenship and Immigration)
Between
Lochandath Goburdhun, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Lochandath Goburdhun, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 1235
2013 FC 971
Docket IMM-674-13
Federal Court
Edmonton, Alberta
Strickland J.
Heard: August 27, 2013.
Judgment: September 23, 2013.
Docket IMM-674-13
Federal Court
Edmonton, Alberta
Strickland J.
Heard: August 27, 2013.
Judgment: September 23, 2013.
(53 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 STRICKLAND J.:-- This is an application for
judicial review of a decision of an officer of Citizenship and Immigration
Canada (the Officer) denying the Applicant's application for a temporary
resident visa and determining that the Applicant engaged in misrepresentation
with the result, pursuant to subsection 40(1)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the IRPA),
that he is inadmissible to Canada for a period of two years. The application is
brought pursuant to subsection 72(1) of the IRPA.
Background
2 The
Applicant is a citizen of Mauritius. He was granted a study permit for the
period December 24, 2006 to January 31, 2008. This was renewed for the period
January 4, 2008 to September 27, 2008 and he was issued a work permit on
April 4, 2008, also valid to September 27, 2008 which permitted him to work up
to 20 hours a week during regular academic sessions and full time during
scheduled breaks. The work permit is referred to by Citizenship and
Immigration Canada (CIC) as an off-campus work permit (OCWP). His study permit
was again renewed for the period September 15, 2008 to April 30, 2009 and an
OCWP on the same terms was issued on October 15, 2008 also valid to April 30,
2009. A final study permit and OCWP were issued on April 24, 2009 valid to May
16, 2012.
3 From
January 2010 to December 2010, the Applicant attended the Northern Alberta
Institute of Technology (NAIT) and successfully completed a full-time, one year
Water and Waste Technician Program. While attending the NAIT, he held a part
time practicum position at IVIS Inc., from May 2010 to September 2010, as
permitted by the OCWP.
4 Upon
graduation, the Applicant commenced full time employment with IVIS Inc., as of
December 20, 2010 and continuing to September 2012. He was no longer a student
and did not obtain an alternate work permit until June 1, 2012.
5 On
November 3, 2011, the Applicant was refused a temporary resident visa by the
CIC office in Los Angeles.
6 The
Applicant applied for, and on June 1, 2012 was issued, a work permit valid
to June 1, 2014, permitting the Applicant to work at IVIS Inc.
7 The
Applicant again applied for a temporary residency visa on October 11, 2012 at
the CIC Seattle office. In that application, in reply to the question
"Have you ever been refused any kind of visa, admission, or been ordered
to leave Canada or any other country." He responded "no" and did
not disclose the November 3, 2011 temporary residency visa refusal in Los
Angeles.
8 On
October 31, 2012, the Officer sent the Applicant a "fairness letter"
pointing out that the Applicant had failed to disclose the prior temporary
residency visa refusal in Los Angeles. This stated, in part:
·
It is difficult to escape the
conclusion that your failure to disclose the previous refused TRV application
in your application to this office was a deliberate attempt to conceal both the
refusals themselves and the reasons for them. Immigration records in Canada
together with the information and evidence submitted in your application
indicate that you engaged in unauthorized full-time employment whilst you were
the holder of an off-campus work permit. The record shows that you were
requested to surrender the document but failed to comply. This was the primary
reason for the refusal of your application by the Los Angeles office. Your
failure to disclose the refusal of your application in that office, therefore,
could have induced an error in the administration of the Act and
regulations.
9 The
letter also referred to subsection 40(1)(a) of the IRPA which states that a
foreign national is inadmissible due to misrepresentation as a result of
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 IRPA. The Applicant was given an opportunity to provide
an explanation or documentary evidence to address this issue.
10 In
response, the Applicant submitted a Statutory Declaration in which he stated
that a clerical error had been made by the immigration consultant who helped
him with his application with the result that he had answered "no" to
the question, "Have you ever been refused any kind of visa, admission, or
been ordered to leave Canada or any other country?" when the correct
answer was "yes". He stated that this was not an intentional mistake,
and, that he had never engaged in any unauthorized full-time employment while
he was the holder of an OCWP and had never received any request from any
immigration office to surrender any document. He attached all of the study and
work permits he had received.
11 The
Applicant also submitted a statutory declaration by Mr. Randy McDonald who
identified himself as an administrative assistant at Canwrx Group Ltd., the
immigration consultant that had acted as the Applicant's representative in
making the October 2012 temporary residency visa application. Mr. McDonald
confirmed that he had made the clerical error described above.
12 By
letter dated January 8, 2013, the Officer advised the Applicant that he did not
meet the requirements for a temporary resident visa.
Decision Under Review
13 In
the January 8, 2013 letter, the Officer stated that he was not satisfied that
the Applicant met the requirements of the IRPA and the Immigration
and Refugee Protection Regulations, SOR/2002-22 (the
IRPA Regulations) and that the Officer was, therefore, refusing his
application.
14 The
basis for the refusal was that the Officer was not satisfied that the Applicant
would leave Canada at the end of his stay as a temporary resident as he had
contravened the conditions of admission on a previous stay in Canada and as he
had not answered all of the questions in his application truthfully as required
by subsection 16(1) of the IRPA. Specifically, the Applicant had denied
previously being refused a visa when, in fact, he had been refused by the CIC
Los Angeles office. Further, that the Applicant had denied engaging in
unauthorized employment whereas the record and his own application indicated
otherwise. The letter also stated that the Applicant had no authority to work
after he completed his studies at the NAIT. As it had been determined that the
Applicant had engaged in misrepresentation pursuant to subsection 40(1)(a) of
the IPRA, the Applicant was inadmissible to Canada for a period of two years.
Applicable Law and Policy
15 The
relevant provisions of the IRPA are as follows:
PART 1
IMMIGRATION TO CANADA
DIVISION 1 REQUIREMENTS AND SELECTION
·
Requirements
·
11. (1) A
foreign national must, before entering Canada, apply to an officer for a visa
or for any other document required by the regulations. The visa or document may
be issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this
Act.
·
[...]
·
Obligation -- answer
·
Truthfully
·
16. (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.
·
[...]
·
Misrepresentation
·
40. (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;
[...]
The following provisions
govern subsection (1):
the permanent resident
or the foreign national continues to be inadmissible for misrepresentation for
a period of two years following, in the case of a determination outside Canada,
a final determination of inadmissibility under subsection (1) or, in the case
of a determination in Canada, the date the removal order is enforced; and
[...]
* * *
PARTIE 1
IMMIGRATION AU CANADA
SECTION 1
FORMALITÉS ET SÉLECTION
·
Formalités
·
11. (1)
L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les
visa et autres documents requis par règlement. L'agent peut les délivrer sur
preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de
territoire et se conforme à la présente loi.
·
[...]
·
Obligation du
·
Demandeur
·
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,
·
[...]
·
Fausses déclarations
·
40. (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;
·
[...]
Les dispositions
suivantes s'appliquent au paragraphe (1):
l'interdiction de
territoire court pour les deux ans suivant la décision la constatant en dernier
ressort, si le résident permanent ou l'étranger n'est pas au pays, ou suivant
l'exécution de la mesure de renvoi;
[...]
16 The
relevant provisions of the IRPA Regulations state:
PART 9
TEMPORARY RESIDENTS
DIVISION 1
TEMPORARY RESIDENT VISA
·
179. An
officer shall issue a temporary resident visa to a foreign national if,
following an examination, it is established that the foreign national
has applied in
accordance with these Regulations for a temporary resident visa as a member of
the visitor, worker or student class;
will leave Canada by the
end of the period authorized for their stay under Division 2;
holds a passport or
other document that they may use to enter the country that issued it or another
country;
meets the requirements
applicable to that class;
is not inadmissible;
and
meets the requirements
of subsections 30(2) and (3), if they must submit to a medical examination
under paragraph 16(2)(b) of the Act.
* * *
PARTIE 9
RÉSIDENTS TEMPORAIRES
SECTION 1
VISA DE RÉSIDENT TEMPORAIRE
·
179.
L'agent délivre un visa de résident temporaire à l'étranger si, à l'issue d'un
contrôle, les éléments suivants sont établis:
l'étranger en a fait,
conformément au présent règlement, la demande au titre de la catégorie des
visiteurs, des travailleurs ou des étudiants;
il quittera le Canada à
la fin de la période de séjour autorisée qui lui est applicable au titre de la
section 2;
il est titulaire d'un
passeport ou autre document qui lui permet d'entrer dans le pays qui l'a
délivré ou dans un autre pays;
il se conforme aux
exigences applicables à cette catégorie;
il n'est pas interdit de
territoire;
s'il est tenu de se
soumettre à une visite médicale en application du paragraphe 16(2) de la Loi,
il satisfait aux exigences prévues aux paragraphes 30(2) et (3).
17 CIC
has also produced a policy document entitled ENF 2 - Evaluating Inadmissibility
(ENF 2) which is intended to assist visa offices in assessing
misrepresentation. While such guidelines or operational manuals do not have the
force of law, they have been recognized by this Court as valuable guidelines to
immigration officers in carrying out their duties (Canada
(Minister of Public Safety and Emergency Preparedness) v Martinez-Brito, 2012 FC 438 at para 46; Baker v Canada
(Minister of Citizenship and Immigration), [1991] 2
S.C.R. 817 [Baker]; Agraira v Canada (Minister of Public Safety and Emergency
Preparedness), 2013 SCC 36 at para 85).
18 ENF
2 states that the purpose of the misrepresentation provisions is to ensure that
applicants provide complete, honest and truthful information in every manner
when applying for entry into Canada (section 9.1) and that persons who
misrepresent or withhold material facts, either directly or indirectly,
relating to a relevant matter that induces or could induce an error in the
administration of the Act are inadmissible to Canada pursuant to subsection 40(1)(a)
of the IRPA. Misrepresentation and withholding are defined as direct and
indirect misrepresentation (section 9.2). The document also describes the
principles applicable to relevancy as well as materiality and provides examples
of these (section 9.4). It also addresses errors in the administration of the
IRPA (section 9.5).
Issues
19 I
would frame the issue in this matter as being whether it was reasonable for the
Officer to conclude that there was a material misrepresentation.
Standard of Review
20 The
majority of the Supreme Court has held that "[a]n exhaustive analysis is
not required in every case to determine the proper standard of review."
Courts must first ascertain whether the jurisprudence has already determined in
a satisfactory manner the degree of deference to be accorded to a
decision-maker with regard to a particular category of question (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at paras 57 and 62 [Dunsmuir]; Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 53 [Khosa]).
21 This
Court has previously held that the standard of review to be applied when
determining whether an immigration officer made a reviewable error in
concluding that an applicant made a material misrepresentation pursuant to
subsection 40(1)(a) of the IRPA is reasonableness. Misrepresentation is an
issue of mixed fact and law and is therefore reviewable on the reasonableness
standard (Oloumi v Canada (Minister of Citizenship and
Immigration), 2012 FC 428 at para 12 [Oloumi]; Karami v
Canada (Minister of Citizenship and Immigration), 2009
FC 788 at para 14).
22 When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with "the existence of justification, transparency and intelligibility
of the decision-making process and also with whether the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and the law" (Dunsmuir,
above, at para 47; Khosa, above
at para 59).
Positions of the Parties
The Applicant
23 The
Applicant's position is that there was no misrepresentation but, even if there
was, it was not material.
24 The
Applicant submits that he brought the error to the attention of the immigration
consultant who was assisting him and that he believed that the error would be
corrected before the consultant submitted the application. He was not dishonest
and did not knowingly misrepresent his immigration history. He reasonably and
honestly believed at the time the application was made that he was not
withholding material information. In this regard he relies on Medel v Canada, [1990] F.C.J. No. 318 (CA)(QL)
[Medel] and distinguishes Oloumi, above, and Haque
v Canada (Minister of
Citizenship and Immigration), 2011 FC 315 [Haque] on their facts. He also submits that he
responded to the fairness letter in an effort to explain the error and provided
copies of his study visas and his work permits.
25 Further,
the Applicant submits that only if information affects the process undertaken
or the final decision will it be considered to be material (ENF 2; Ali v Canada (Minister of Citizenship and Immigration), 2008 FC 166 [Ali]).
Here the answer to the question of whether he had previously been denied a visa
was not material to the process because the application was complete and could
be processed regardless of the answer provided. Nor did his answer put into
doubt other important information about himself.
The Respondent
26 The
Respondent submits that the Applicant's failure to disclose the previous
temporary resident visa application constituted a material misrepresentation.
27 The
Respondent refers to the requirements of the IRPA, the IRPA Regulations as well
as ENF 2 and concludes that the Officer properly applied these provisions which
required the Applicant to provide complete and truthful information. The
failure to disclose the previous temporary residency visa refusal was a
relevant matter to weigh when considering the Applicant's subsequent
application and could have induced an error in the administration of the IRPA.
Accordingly, the failure to disclose this matter renders the Applicant
inadmissible by virtue of section 40 of the IRPA and the Decision is therefore,
reasonable. The Respondent relies on Oloumi and Haque, both above,
in support of its position.
28 The
Respondent submits that the Applicant was aware of the error in his application
and, while he may have brought this to the attention of his immigration
consultant, he himself signed and declared the application to contain truthful
answers. Accordingly, this error was not beyond his control, he was alive to it
and could and should have reviewed the application prior to signing it to
ensure that the error had been rectified and that the application was accurate.
Therefore, the Applicant cannot now claim that he honestly and reasonably
believed in the veracity of the answers (Oloumi, above, Khorasgani v Canada (Minister of
Citizenship and Immigration), 2012 FC 1177 at paras
14-18). The Respondent submits that the Applicant's reliance on Medel, above is misplaced in the circumstances
of this case.
29 Further,
in response to the fairness letter, the Applicant provided a statutory
declaration stating that he had never engaged in any unauthorized full time
employment while a holder of an OCWP and that he had never received a request
from an immigration officer to surrender his OCWP. The Officer examined the
file and determined that this contradicted the Applicant's own application, the
CIC record and other evidence. Accordingly, it was open for the Officer to
conclude that the Applicant had continued to be dishonest. This indicated a
pattern of providing untruthful information in breach of the Applicant's
statutory duty of candour and therefore justified the Officer's decision.
Analysis
30 In
Oloumi, above, Justice
Tremblay-Lamar describes general principles arising from this Court's treatment
of section 40 of the IRPA which are summarized below together with other such
principles arising from the jurisprudence:
Section 40 is to be
given a broad interpretation in order to promote its underlying purpose (Khan v Canada (Minister of Citizenship and Immigration), 2008 FC 512 at para 25 [Khan]);
Section 40 is broadly
worded to encompasses misrepresentations even if made by another party,
including an immigration consultant, without the knowledge of the applicant (Jiang v Canada (Minister of Citizenship and Immigration), 2011 FC 942 at para 35 [Jiang]; Wang v Canada (Minister of Citizenship and
Immigration), 2005 FC 1059 at paras 55-56 [Wang]);
The exception to this
rule is narrow and applies only to truly extraordinary circumstances where an
applicant honestly and reasonably believed that they were not misrepresenting a
material fact and knowledge of the misrepresentation was beyond the applicant's
control (Medel, above);
The objective of section
40 is to deter misrepresentation and maintain the integrity of the immigration
process. To accomplish this, the onus is placed on the applicant to ensure the
completeness and accuracy of their application (Jiang, above, at para 35;Wang, above, at paras 55-56);
An applicant has a duty
of candour to provide complete, honest and truthful information in every manner
when applying for entry into Canada (Bodine v Canada
(Minister of Citizenship and Immigration), 2008 FC 848
at para 41; Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at para 15);
As the applicant is
responsible for the content of an application which they sign, the applicant's
belief that he or she was not misrepresenting a material fact is not reasonable
where they fail to review their application and ensure the completeness and
veracity of the document before signing it (Haque, above, at para 16; Cao v Canada (Minister of
Citizenship and Immigration), 2010 FC 450 at para 31 [Cao]);
In determining whether a
misrepresentation is material, regard must be had for the wording of the
provision and its underlying purpose (Oloumi, above, at para 22);
A misrepresentation need
not be decisive or determinative. It is material if it is important enough to
affect the process (Oloumi,
above, at para 25);
An applicant may not
take advantage of the fact that the misrepresentation is caught by the
immigration authorities before the final assessment of the application. The
materiality analysis is not limited to a particular point in time in the
processing of the application. (Haque, above, at paras 12 and 17; Khan, above, at paras 25, 27 and 29; Shahin v
Canada (Minister of Citizenship and Immigration), 2012
FC 423 at para 29 [Shahin]);
31 Here,
the Applicant submits that he had no knowledge of the misrepresentation which
was caused by his immigration consultant's failure to correct a clerical error.
The Applicants submits that he instructed the consultant to change the answer
of "no" to "yes" in response to the question "Have you
ever been refused any kind of visa, admission or been ordered to leave Canada
or another country?"However, that the consultant failed to do so before
submitting the application.
32 As
noted above, subsection 40(1)(a) is broadly worded as to include
misrepresentations even if made by another party without the knowledge of the
applicant, the general rule being that a misrepresentation can occur without
the applicant's knowledge (Jiang,
above, at para 35; Cao; above, at
para 31; Haque, above, at para
15;Wang, above, at paras 55-56; Shahin, above, at para 26).
33 While
an exception to this principle arises where an applicant can show that he or
she honestly and reasonably believed that they were not withholding material
information (Medel, above), this
exception is narrow. As the court stated in Oloumi, above:
·
[35] Despite being frequently
cited, the "exception" referred to in this passage has received
limited application. Its originating case, Medel, above, involved an unusual set of facts: the applicant was being
sponsored by her husband, but unbeknownst to her the husband withdrew his
sponsorship. Canadian officials then misled the applicant by asking her to
return the visa because they claimed it contained an error. They implied it
would be returned to her, corrected. The applicant had English-speaking
relatives inspect the visa and, after they assured her that nothing was wrong
with it, she used it to enter Canada. The Immigration Appeal Board found her to
be a person described in section 27(1)(e) of the former Immigration
Act, 1976, SC 1976-77, c 52 [now R.S.C. 1985, c I-2)],
i.e. that she had been "granted landing... by reason of any fraudulent or
improper means". This finding was set aside by the Federal Court of Appeal
because the applicant had "reasonably believed" that she was not
withholding information relevant to her admission.
·
[36] When considered within its
factual context, therefore, the exception in Medel is relatively narrow. As Justice MacKay noted while distinguishing
the case before him in Mohammed v Canada (Minister of
Citizenship & Immigration), 1997 CanLII 5084 (FC),
[1997] 3 F.C. 299:
·
41 The present circumstances may
also be distinguished from those in Medel on the basis that the information
which the applicant failed to disclose was not information regarding which he
was truly subjectively unaware. The applicant in the present case was not
unaware that he was married. Nor was it information, as in Medel, the knowledge
of which was beyond his control. This was not information which had been
concealed from him or about which he had been misled by Embassy officials. The
applicant's alleged ignorance regarding the requirement to report such a
material change in his marital status and his inability to communicate this
information to an immigration officer upon arrival does not, in my opinion,
constitute "subjective unawareness" of the material information as
contemplated in Medel.
·
Furthermore, I emphasize that a
determinative factor in the Medel
case was that the applicant had reasonably believed that she was not withholding information from Canadian authorities.
In contrast, in the case before this Court the applicants did not act
reasonably -- the principal applicant failed to review his application to
ensure its accuracy.
34 In
Haque, above, the applicants
therein similarly argued that the misrepresentations were not intentional and
that it was their consultant who erred in filling out the application. Justice
Mosley rejected this argument and stated the following:
·
[15] [...] Nonetheless, he
signed the application and so cannot be absolved of his personal duty to ensure
the information he provided was true and complete. This was expressed
succinctly by Justice Robert Mainville at para 31 of Cao, supra:
·
The Applicant signed her
temporary residence application and consequently must be held personally
accountable for the information provided in that application. It is as simple
as that.
35 The
present case is also factually very similar to Diwalpitiye
v Canada (Minister of Citizenship and Immigration), 2012
FC 885 [Diwalpitiye]. The
applicant therein indicated on his application form that he had never applied
for, or been refused, immigration status in Canada. When the officer raised
this as a concern in a fairness letter, the applicant responded by explaining
that he had previously applied for a temporary resident visa, which was
refused, but a subsequent application was successful. While he admitted this
error in completing the application form, he requested that his application be
processed because the error was merely an oversight. Justice Rennie found that
the applicant had not persuaded the Court that it was unreasonable for the
officer to find this to be a material misrepresentation.
36 In
my view, the Applicant in this case clearly made a misrepresentation by failing
to disclose the prior CIC Los Angeles refusal to issue a temporary residency
visa in his October 2012 application. He was aware of the error in his
application and was responsible for ensuring that, when submitted, his
application was accurate and truthful. However, he failed to review the
application before it was submitted. Further, the fact of the prior refusal and
of the identified clerical error in his application and whether or not it had
been corrected was information that was within his control. The Applicant
therefore failed to demonstrate that he honestly and reasonably believed that
he was not withholding potentially material information. This situation does
not, therefore, fall within the narrow exception found in Medel, above. It was reasonable for the
Officer to conclude that the Applicant had not answered all of the questions in
his application truthfully as required by subsection 16(1) of the IRPA and had
misrepresented that fact.
37 This
leaves only the question of whether the misrepresentation was material.
38 Subsection
40(1)(a) of the IRPA states that 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 the IRPA. ENF 2 gives as an example of a
situation constituting misrepresentation, one where an applicant fails to
disclose that they recently applied for a visa to Canada.
39 As
noted above, in determining whether a misrepresentation is material, regard
must be had for the wording of the provision and its underlying purpose. To be
material, a misrepresentation need not be decisive or determinative. It will be
material if it is important enough to affect the process. The wording of
section 40 confirms that a misrepresentation does not actually have to induce
an error, it is enough that it could do so (IRPA, subsection 40(1)(a); Oloumi, above, at paras 22 and 25; Haque, above, at para 11; Mai v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 101 at para 18; Nazim v Canada
(Minister of Citizenship and Immigration), 2009 FC
471)).
40 In
Haque, above, the applicant
failed to disclose that he had formerly lived and studied in the United States
and omitted or misrepresented details with respect to his place of residence,
education and employment history. The deciding officer discovered the omission
upon a review of CIC's records. This Court held that the withheld information
was material to the application as, without it, a visa could have been issued
to the applicant without the required police and conduct certificates from the
United States, thereby precluding a necessary investigation and inducing an
error in the administration of the IRPA.
41 In
Oloumi, above, a fraudulent
English test was submitted as part of an application for permanent residence in
the Federal Skilled Worker class. This Court held that the misrepresented fact
was material because federal skilled workers must demonstrate language
proficiency to be accepted. The false document could have induced an error in
the administration of the IRPA because it could have been relied upon by a
decision-maker to conclude that the applicant had demonstrated language
proficiency.
42 In
the present case, the Respondent submits that the Officer could have been
prevented from undertaking an appropriate investigation and verification
process and, therefore, could have erroneously determined that the Applicant
met all the requirements of the IRPA had the Officer relied on the Applicants
denial of a prior visa refusal. The misrepresentation was therefore material as
it could have affected the process.
43 In
my view, the misrepresentation in this case was material.
44 The
Officer does not specify what investigation and verification process
potentially could have been bypassed as a result of the misrepresentation.
However, section 9.5 of ENF 2 states that officers are required to be satisfied
that a person meets the requirements of the IRPA and is not inadmissible. To
make these determinations officers decide what procedures, including
investigations, interviews and verifications are required. Some procedures are
required by law, others are administrative. Given this discretion, and although
it would have been preferable for the Officer to have been more specific, the
failure to do so is not fatal. In any event, had he relied solely on the
application which did not disclose the prior visa refusal, this could have
induced an error in the administration of the IRPA as he could have erroneously
issued a visa to the Applicant.
45 I
also cannot accept the Applicant's submission made when appearing before me
that, because CIC has access to the whole of his immigration history, an
incorrect answer in his application is not material. His submission was that
the incorrect answer did not affect the process because it was caught by CIC
before a decision was rendered. This reasoning is contrary to the object,
intent and provisions of the IRPA which require applicants for temporary
residency visas to answer all questions truthfully. The penalty for failing to
do so is that an applicant may be found to be inadmissible to Canada if the
misrepresentation induces or could induce an error in the administration of the
Act. It matters not that CIC may have the ability to catch, or catches, the
misrepresentation. What matters is whether the misrepresentation induced or
could have induced such an error. Accordingly, applicants who take the risk of
making a misrepresentation in their application in the hope that they will not
be caught but, if they are, that they can escape penalty on the premise of
materiality, do so at their peril.
46 Nor
was the misrepresentation cured by the Applicant's response to the fairness
letter. In this regard Justice Mosley in Haque, above, stated that "this Court has rejected the argument that
paragraph 40(1)(a) is inapplicable where the misrepresentation is
"corrected": (Khan v. Canada (Minister of
Citizenship and Immigration), 2008 FC 512 at paras 25,
27 and 29)."
47 At
the hearing before me the Applicant also submitted that because, between the
time when the temporary residency visa was refused in Los Angeles and the time
of the refusal in Seattle he was issued a work permit, this rendered the
first refusal immaterial as the immigration authorities were clearly satisfied
with his subsequent application. I cannot accept this reasoning. First, the
refused applications were both for temporary residency visas, the work permit
was a distinct application. Secondly, it is not known if the Applicant was
requested to or did disclose the refused temporary residency when he applied
for the work permit as neither the Applicant nor the Respondent led
evidence on this point. And finally, the question asked on the temporary visa
application was whether the Applicant had ever been refused any kind of visa,
thus it was incumbent upon him to disclose the prior refusal regardless of the
subsequent issuance of the work permit.
48 In
addition to the failure to disclose the refusal, which was his statutory and
duty of candour, the Applicant stated in his Statutory Declaration that he had
never engaged in any unauthorized full time employment while holding an OCWP.
However, this is contradicted by Attachment A of his October 11, 2012
application and the September 7, 2012 letter from IVIS Inc., which states that
when the Applicant completed his education at NAIT, he started full time work
on December 20, 2012 with IVIS Inc. This means that from December 20, 2010
until he was issued a work permit on June 1, 2012, he was working full
time while not a student and holding only an OCWP thereby contravening the
conditions of his prior admission to Canada. Accordingly, the Officer's finding
that he was not satisfied that the Applicant would leave Canada at the end of
his stay as a temporary residence based on the prior contravention was
reasonable..
49 It
should be noted, however, that the Officer's assertion in the fairness letter
that the Applicant was requested to surrender his OCWP but failed to comply and
that this was the primary reason for the refusal of his Los Angeles
application, is not supported by the CTR.
50 The
Respondent filed an affidavit of Ms. Leah Gabretensae, Admissions Unit Supervisor
at CIC in response to the subject application. It attaches as an exhibit an
email dated July 12, 2013 from Ms. Gabretensae to counsel for the Respondent
stating that she had spoken to Rachel, no last name, at Norquest who confirmed
that the Applicant was enrolled there from 2007 to April 24, 2009 taking
upgrading courses with the intent of then entering the practical nursing
program. He did not continue there beyond April 2009. The affidavit also
attaches as an exhibit an email dated July 13, 2013 from Ms. Kathy Galloway to
Ms. Gabretensae and counsel for the Respondent stating that NAIT had checked
its records and advised her that the Applicant began his studies there in
January 2010 and completed the one year Water and Waste Management Technician program
in December 2010 with honours. The affidavit goes on to state that the
designated institutional representative (DIR) "at the post-secondary
educational institution where the Applicant was enrolled at that time [when the
April 24, 2009 OCWP was issued] would have informed the Applicant that the
Applicant was required to surrender the Work Permit to the nearest CIC
office once he no longer met the eligibility criteria". The affidavit
states that it (the affidavit) was made for the purpose of opposing the
Applicant's application for judicial review.
51 It
appears that the purpose of the affidavit was to bolster the CTR which contains
no record supporting the finding by the Officer that the Applicant was actually
asked, but refused, to surrender his OCWP nor explaining why he was not in
compliance with the OCWP at some time before a February 1, 2012 GMCS entry
which stated this to be the case but at which time the Applicant was enrolled
full time at NAIT. The affidavit evidence as to the general responsibilities of
DIR's in administering OCWP's, including informing students of the surrender
requirements, is not evidence that the Applicant was requested to and refused
to surrender same. Moreover, it is trite law that new evidence is only
admissible on judicial review to resolve issues of procedural fairness or
jurisdiction which exceptions have no application in this case (Oloumi, above, at para 10; Alabadleh v Canada (Minister of Citizenship and Immigration), 2006 FC 716 at para 6; Albajjali v Canada
(Minister of Citizenship and Immigration), 2013 FC 660
at para 12).
52 However,
even in the absence of an evidentiary basis for the assertion that the
Applicant was requested to and refused to surrender the OCWP and that this was
the primary reason for the Los Angeles refusal, there was, as set out above, a
sufficient evidentiary basis in the record before the Officer to support the
fact that the Applicant worked full time while holding only a OCWP, after
graduation from NAIT, from December 20, 2010 to June 1, 2012.
53 The
Applicant contravened the conditions of his admission to Canada on a prior
occasion by working full time when not authorized to do so and he
misrepresented this in his statutory declaration. He also misrepresented his
prior temporary resident visa refusal. In my view, both misrepresentations were
material. Accordingly, the Officer's finding that he was not satisfied that the
Applicant would leave Canada at the end of his stay as a temporary resident and
that he had made material misrepresentations pursuant to subsection 40(1)(a) of
the IRPA was reasonable and defensible in respect to the facts and the law.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question of
general importance for certification was proposed and none arises.
STRICKLAND J.
1 comment:
Great story. Was the student dismissed from canada eventually? I would like to know the outcome
Post a Comment