APPLICANT FOR CITIZENSHIP HIT WITH COSTS

It is very unusual for the Federal Court to order costs in citizenship cases. In fact, it is very rare. eh applicant below got hit with a costs order against him after losing the judicial review application. in a case where he apparently was  less than forthcoming about his absences from Canada.

 Irani v. Canada (Minister of Citizenship and Immigration)

Between
Shaker Irani, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 1393

2013 FC 1273

Docket T-642-13

 Federal Court
Vancouver, British Columbia

Zinn J.

Heard: December 5, 2013.
Judgment: December 19, 2013.

(18 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     ZINN J.:-- This is an appeal pursuant to subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 [Act], of a decision of Citizenship Judge Wong, dated February 18, 2013, refusing Mr. Irani's application for Canadian citizenship on the basis that he did not meet the residency requirement in paragraph 5(1)(c) of the Act.

2     Mr. Irani is a citizen of Iran. He moved to Canada on July 20, 2004, and was granted permanent resident status on June 24, 2006, after being sponsored by his wife. He applied for Canadian citizenship on August 7, 2009; this makes the "relevant period" for calculating physical presence in Canada, August 7, 2005 to August 7, 2009.

3     Mr. Irani submits that factual errors led the Judge to believe that he misrepresented facts, and coupled with a failure to put his concerns to Mr. Irani, led the Judge to apply the physical presence test rather than the qualitative test set out in Koo (Re), [1993] 1 F.C. 286, [1992] F.C.J. No. 1107 [Koo].

Evidence of Absences from Canada

4     In his citizenship application, Mr. Irani declared two trips outside Canada for a total absence of 305 days - leaving him 995 days of physical presence in Canada - 100 days short of the statutory minimum of 1,095 days.

5     In the Residence Questionnaire he was later asked to provide, Mr. Irani declared four trips outside Canada for a total absence of 378 days - leaving him 922 days of physical presence in Canada - 173 days short of the statutory minimum of 1,095 days.

6     The Judge interviewed Mr. Irani and concluded, based on the documentation and the interview that he was not satisfied "on a balance of probabilities, that the declarations on either the original declaration or Residence Questionnaire accurately reflects the number of days you were, in fact, physically present in Canada." He found that Mr. Irani was not forthcoming as to his absences from Canada.

7     The Judge stated that Mr. Irani's "failure to declare absences from Canada, when the contrary is shown on your passport and other documents such as credit card statements during the relevant period cast significant doubt on the veracity of your application which has not been dispelled by documentary evidence." He observes that in Canada (Minister of Citizenship and Immigration) v Dhaliwal, 2008 FC 797, "misrepresentation by an applicant for citizenship puts into question their credibility and has the potential to impact the weight given to their evidence." The Judge then states: "In the circumstances, I find that it is appropriate to hold you strictly to the test articulated by Mr. Justice Muldoon and I find that you have been unable to demonstrate, on a balance of probabilities, that you were physically present in Canada for at least 1,095 [days] during the relevant period."

8     In this appeal, Mr. Irani now admits that according to the stamps in his passport he was actually outside Canada 160 days before he became a permanent resident and 456 days since he became a permanent resident. Pursuant to paragraph 5(1)(c)(ii) of the Act, a person gets credit for only one-half day of residence for each full day of residence prior to being granted permanent resident status. According to the Respondent, with this admission of absences, Mr. Irani was physically present in Canada only 764.5 days and was thus 330.5 days short of the minimum under the Act.

Issues

9     Mr. Irani submits that he was denied procedural fairness because the Judge failed to put to him, and ask him to explain the additional absences the Judge (apparently mistakenly) found. He also says that the errors led the Judge to impose the "punitive" strict count test, rather than the more permissive Koo test.

Analysis

10     I agree with Mr. Irani that the Judge erred in his interpretation of the dates of the stamps in his passport. The Judge interpreted an entry stamp to Amsterdam which read "06.04.07" as an entry on April 6, 2007, but then re-read the same stamp as another entry on June 4, 2007. The Judge similarly interpreted an exit stamp from Amsterdam which read "09.04.07" as an exit on September 4, 2007, when in fact, Mr. Irani had left Amsterdam on April 9, 2007.

11     The Judge suspected that in October 2006, Mr. Irani was in the United States but had not disclosed this trip in his application. The Judge noted that on one of Mr. Irani's credit card statements, there was a charge on October 16, 2006 from a restaurant in Dallas, Texas. Mr. Irani explained in his affidavit filed in this appeal that his friend owned the restaurant, had borrowed money from him, and the easiest way to pay Mr. Irani back was to charge his credit card. Mr. Irani says that he was not actually physically present at the restaurant to incur the charge. I am prepared to give Mr. Irani the benefit of the doubt.

12     Finally, the Judge was concerned about the declaration in Mr. Irani's expired Iranian passport that his residence was in the United States. Mr. Irani may well have been able to provide an explanation to address the Judge's concerns, had the Judge put his concern to Mr. Irani.

13     Nonetheless, although the Judge may have erred in his calculation of the days of absence, Mr. Irani now admits that he misrepresented his absences in both the initial application and in the Residence Questionnaire. On the evidence of Mr. Irani, he misrepresented his days present in Canada at least twice - although he says they were innocent and not deliberate attempts to mislead. Accordingly, the Judge's observation that he "found it challenging to determine the exact number of days you were physically present during the relevant period because of your undeclared absences in your passport" is apt, even though he referenced absences other than those Mr. Irani now acknowledges.

14     It was the misrepresentation by Mr. Irani that led the Judge to use the strict count test, as he was entitled to do. In such circumstances, the facts before the Judge were identical to those in Dhaliwal which he cited for the proposition that misrepresentation goes to weight of the evidence and credibility. In any event, "a citizenship judge does not have to justify her choice of test" (Idahosa v Canada (Citizenship and Immigration), 2013 FC 739, para 14). A Citizenship Judge only needs to apply the test consistently. Further, I agree with Justice Crampton's observation in Huang v Canada (Minister of Citizenship and Immigration), 2013 FC 576, that "it is particularly appropriate that deference be accorded to a citizenship judge's decision to apply any of the three tests that have a long and rich heritage in this Court's jurisprudence" given the divided state of the jurisprudence on this issue (para 25, emphasis added).

15     I can find no reversible error in the Judge applying the strict count test in these circumstances.

16     Further, on Mr. Irani's current accounting of the number of days spent in Canada, he actually has a greater shortfall than what the Judge had estimated.

17     To summarize, I find that the Judge erred by not putting to Mr. Irani, his concerns regarding Mr. Irani's passport stamps, the credit card entry, and the country of residence declaration in his Iranian passport. Having not been made aware of these concerns, Mr. Irani was not given an opportunity to disabuse the Judge of those concerns. However, despite these errors, at the end of the day, they were errors that were not material because Mr. Irani has now admitted that his previous two calculations in his citizenship application and his Residence Questionnaire were inaccurate and, by his own admission and his present account of his absences in this application, is still short of the statutorily required number of days. Therefore, in my view, the breaches of procedural fairness would not have resulted in a different decision being rendered by the Judge.

18     This appeal is dismissed. The Respondent is entitled to its costs which I fix at the sum agreed upon by the parties - $2,000.00.

JUDGMENT

THIS COURT'S JUDGMENT is that this appeal is dismissed and the Respondent is awarded its costs, fixed at $2,000.00.

ZINN J.

FAILURE TO DISCLOSE CHILDREN LEADS TO VISA REFUAL AND FINDING OF MISREPRESENTATION

A common misconception amongst applicants is that they do not need to dsclose children where they have no custody, or when they are from another relationship. That is incorrect.

Ikede v. Canada (Minister of Citizenship and Immigration)

Between Onome Joseph Ikede, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1463

2012 FC 1354

Docket IMM-1582-12

 Federal Court
Toronto, Ontario

Manson J.

Heard: November 20, 2012.
Judgment: November 23, 2012.

(25 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     MANSON J.:-- Mr. Onome Joseph Ikede [the Applicant] is seeking judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of the decision of Mark Giralt, immigration counsellor for the High Commission of Canada Immigration Section in Ghana [Officer], dated December 12, 2011, in which the Officer concluded that the Applicant is inadmissible for permanent residence in Canada for a period of two years, for a misrepresentation related to being the parent of two children in his visa application. The Applicant seeks an order setting aside the Officer's decision.

 

·       I. 

Background

2     The Applicant is a citizen of Nigeria who applied for permanent residence as a provincial nominee in May 2008, at which point he paid the processing fee for himself, his spouse at the time and his two dependent children born in 1985 and 1986, the latter three of whom are living in Canada.

3     In January 2009, the Applicant advised the immigration office that he had been separated from his spouse since July 2008; she was removed from his application in June 2010.

4     In March 2011, the Applicant asked that his two children living in Canada be removed from his application. The immigration office requested updated information to ascertain the Applicant's current situation.

5     In April 2011, the immigration office received an updated application which reflected the separation from his former spouse and the removal of his two children from his application.

6     In June 2011, the Applicant asked to have his infant daughters; Onanefe and Oniefe born September 14, 2008 and April 5, 2010 respectively as well as his partner Enite (their mother) born February 8, 1983, accompany him to Canada.

7     The Officer reviewing the file noted some discrepancies in the Applicant's file and sent a procedural fairness letter on June 13, 2011 asking for clarification as to the omission of the two infant children up until that point.

8     The Officer reviewed the Applicant's response received in August 2011 and found the explanation not to be credible, as it was inconsistent with the message that the Applicant had sent in his correspondence in June 2011; specifically, there was no mention of any paternity concerns with respect to Onanefe Miriam Ikede and Oniefe Lisa Marie Ikede, which, was the Applicant's justification for failure to include the children in his submitted in the August 2011 letter.

9     The case was referred for consideration of refusal, for misrepresentation concerning the children, and the application was refused on December 12, 2011. The Officer stated that the misrepresentation or withholding of this fact induced or could have induced errors in the administration of the IRPA because reliance on this information could have led to the conclusion that the Applicant had declared all his family members - a requirement in the assessment of admissibility for permanent residence.

10     The decision turned on subsection 40(1)(a) of the IRPA, which states that a foreign national is inadmissible for permanent residence for misrepresentation if he or she directly or indirectly misrepresents or withholds material facts that induce or could induce an error in the administration of the IRPA.

 

·       II. 

Issues

11     The Applicant raises the following issues in the application for judicial review:

 

·       a. 

Did the Officer err in his assessment of section 117 (9)(d) of the Immigration and Refugee Protection Rules [IRPR]? 

·       b. 

Did the Officer reach a conclusion before fully examining the Applicant's application for permanent residence? 

·       c. 

Did the Officer breach the Applicant's right to a fair hearing and/or principles of natural justice? 

·       d. 

Did the Officer fail to consider the objective as set out in the IRPA? 

12     Having read the Applicant's factum, the two main issues, as rephrased, are:

 

·       a. 

Did the Officer err in his assessment of the evidence particularly in respect to his finding of lack of credibility? 

·       b. 

Did the Officer breach the Applicant's rights to a fair hearing and the principles of natural justice? 

 

·       III. 

Standard of Review

13     Counsel for the Applicant and the Respondent agree that the applicable standard of review is reasonableness for the issue of the Board's assessment of the evidence (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]) and correctness for the issue of procedural fairness (Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283, [2009] F.C.J. No. 1643 at para 23; Khan v Canada (Minister of Citizenship and Immigration), 2009 FC 302, [2009] F.C.J. No. 676 at para 11).

14     When reviewing a decision on the standard of reasonableness, the Court is concerned with "the existence of justification, transparency and intelligibility within 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 law" (Dunsmuir, above, at para 47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59). The Court should only intervene if it finds that the impugned decision is unreasonable and falls outside the range of possible, acceptable outcomes.

 

·       IV. 

Analysis

A. Did the Officer Err in his Assessment of the Evidence?

15     The Applicant submitted that the Officer erred in stating that the information provided by the Applicant would have induced an error in the administration of the IRPA, by failing to update the information concerning his being the father of two children and at the timing of finally advising the office of this fact, such that the Applicant's explanation was not credible.

16     The Computer Assisted Immigration Processing notes [CAIP notes] indicate that the Applicant did not include his children Onanefe Miriam Ikede and Oniefe Lisa Ikede and their mother in the IMM008 form completed by the Applicant in April 2011, notwithstanding one of the children was born September 14, 2008 and the second child was born in 2010. The Applicant first acknowledged the children and their mother in a letter dated June 11, 2011 after receiving a procedural fairness letter.

17     The Applicant explained in an email dated August 1, 2011 that he had not previously disclosed the two children and his partner given that the children's mother and he were not married, and that he did not accept parentage when the children were born because he had paternity reservations given he and the mother did not reside together (even though they had a sexual relationship). Further, the Officer found that it appeared that the Applicant had misrepresented his family's composition by failing to declare his older daughter Miriam Ikede in his family information form submitted and dated April 8, 2009, notwithstanding the daughter's date of birth was earlier, having been born in 2008.

18     The Officer concluded that the information was material as it could have induced an error in the administration of the IRPA, as without the knowledge of the existence of both daughters, he would not have examined all family members in the application and would not have been able to make an accurate decision concerning inadmissibility.

19     Counsel agreed that the "time of the application", as stated in section 117(9)(d) of the IRPR, refers to the time the applicant submits his application for visa and continues until the time the applicant is granted a right to enter Canada as a permanent resident at the port of entry (see dela Fuente v Canada (MCI), 2006 FCA 186, [2006] F.C.J. No. 774). Accordingly, changes made by the Applicant with respect to his family composition were provided within that time, not after the Applicant was granted permanent resident status. In essence, counsel for the Applicant has argued that the Officer's credibility findings were flawed because the Officer failed to account for the Applicant's reasonable explanations for delays in acknowledging his two children and partner. Secondly, even if Applicant's credibility was undermined, the Officer had an obligation to allow the Applicant to further explain the delay in acknowledging his children and the mother by way of an oral hearing.

20     As has been noted, the Officer's credibility findings are entitled to the most deferential standard of review, that of reasonableness as this Court has found the Board has well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility (see Rahaman v Canada (Minister of Citizenship and Immigration),[2000] F.C.J. No. 1800, 101 ACWS (3d) 140 at para 38 (QL) (TD); and Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, 157 FTR 35 at para 14). In this case, the Officer's credibility findings were supported by the evidence before it, and are therefore reasonable. Moreover, it is open to the Officer to reject the Applicant's explanation therefore, as stated above, the Applicant's failure to put his best foot forward when given the opportunity to do so and not only acknowledge his children, but also explain why he had not included them earlier on his application, renders the Officer's findings reasonable.

21     Moreover, as set out in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, an oral hearing is not always necessary, and even under the duty of procedural fairness, there is no unqualified right to an oral hearing, or issue from a procedural fairness perspective. The question is whether an oral hearing is necessary to provide a reasonable opportunity for the parties to effectively make their case. In this case, it was not necessary.

B. Did the Officer Breach the Applicant's Right to a Fair Hearing and/or Principles of Natural Justice?

22     The Applicant submits that the Officer acted unfairly or unreasonably by not alerting the Applicant about his reservations or concerns that negated the Applicant's case, in finding that he lacked credibility concerning his two children and partner given the timing of disclosure of the same. While there is no question that an Officer should give an opportunity to respond to any credibility concerns, either by conducting an interview or by sending the Applicant a letter setting out his concerns so those concerns could be addressed, in this case the Applicant was given such an opportunity by the Officer.

23     Given that the explanation provided was found not to be credible, there was no further obligation to provide another or further opportunity to explain or respond to the Officer's concerns; the burden is on the Applicant to establish that show that he was not inadmissible (see Shi v Canada (Minister of Citizenship and Immigration), 2005 FC 1224, [2005] F.C.J. No. 1490 at para 16). As no convincing evidence was put forth by the Applicant in response to the procedural fairness letter, there was no breach of procedural fairness by the Officer.

24     Neither party proposed a question for certification although Applicant's counsel asked the Court to consider a possible question under reserve, namely:

 

·       When there is a credibility issue with respect to a visa applicant's application, is the applicant entitled to an oral hearing? 

25     This question has been answered in the negative in many cases before this Court, and therefore I do not consider it appropriate to certify.

JUDGMENT

THIS COURT'S JUDGMENT is that the Applicant's judicial review application is dismissed.

MANSON J.

MISREPRESENTATION, LIES, RESULT IN JAIL TIME

This is a somewhat unusual result, bu ta cautionary note for those considering lying to obtain status. Just because some people get away with it, it doe snot mean that the consequences can be sever if caught. Do not misrepresent!

Russian man gets 45 days in jail for lying on immigration form - Front - TheChronicleHerald.ca


Russian man gets 45 days in jail for lying on immigration form

By STEVE BRUCE Court Reporter
Mon, Apr 25 - 3:22 PM

A Russian man who jumped ship in Halifax back in 1992 has been given 45 days in jail for forging his ex-wife’s signature on his application for permanent resident status in Canada.

Ruslan Tikhomirov, 42, was sentenced in Halifax provincial court last week on an Immigration and Refugee Protection Act charge of misrepresenting the facts.

The Crown proceeded by indictment against the Halifax man, which meant the maximum penalty for the offence was five years in prison or a $100,000 fine.

The prosecutor asked that Tikhomirov be jailed for 90 days, while defence lawyer Geoff Newton proposed a period of probation or a fine.

Judge Bill Digby said incarceration was necessary in this case to send a message of deterrence to the public and to immigrants considering lying on their applications.

Tikhomirov, whose claim for refugee status after he jumped ship was unsuccessful, has been fighting a deportation order from Citizenship and Immigration Canada since the 1990s. He married a Canadian woman in 1995 but they separated in 1999.

Court was told that the Russian pretended he was still married to the woman when he filed new immigration documents a few years ago. Because of some discrepancies in the forms, the application was referred to immigration officers for further investigation.

Those officers, after detecting the fraudulent behaviour, passed the matter on to the Canada Border Services Agency, which pressed charges.

Blair MacDonald, an investigator with the agency, said the government treats this kind of offence seriously.

“There’s a process for foreign nationals to become permanent residents of Canada,” MacDonald said.

“Their truthfulness is essential and an integral part of the process.”

The deportation order against Tikhomirov remains in place, the court was told.

RELIGIOUS MARRIAGE MATERIAL IN MISREPRESENTATION EVEN IF NOT REGISTERED

In this recent case, a person misrepresented her status, failing to disclose that he was married in a religious ceremony in Vietnam, and that he had a child of the marriage, in order to obtain residency in Canada. He argued that the marriage was not valid because it was not registered. The court rejected the argument. This is unusual, because most persons wish to argue that a common law relationship or marriage is in fact valid, but in this case the failure to disclose a material fact proved fatal to the argument. Applicants are cautioned to consult legal counsel before making applications for residency, to ensure that no misrepresentations are made inadvertently.

Mai v. Canada (Minister of Public Safety and Emergency Preparedness)

Between

Tan Do Mai, Applicant, and

The Minister of Public Safety and Emergency Preparedness,

Respondent

[2011] F.C.J. No. 127

[2011] A.C.F. no 127

2011 FC 101
Docket IMM-2367-10
Federal Court

Montréal, Quebec
Martineau J.
Heard: December 2, 2010.

Judgment: January 28, 2011.

(32 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT

1 MARTINEAU J.:-- The applicant challenges the legality of a decision made by the Immigration Appeal Division, Immigration and Refugee Board (the Tribunal), to uphold the removal order issued by the Immigration Division (ID) for misrepresentation.

2 The applicant was born in Vietnam on May 3, 1982. He applied for a permanent resident visa on May 7, 2003, under the family class, as an unmarried dependent of his father who lived in Canada and acted as sponsor. He obtained his visa and arrived in Canada on March 22, 2005. However, in the interim, the applicant married his pregnant girlfriend in a Catholic ceremony on August 17, 2004. The marriage was not registered at the time with the Vietnamese Government. Their child was born on September 18, 2004. The birth was not registered at the time with the Vietnamese Government either.

3 The applicant did not report either his marriage or the birth of his child to the Immigration officials during the processing of his application, nor upon receipt of his permanent resident visa, nor upon his arrival to Canada. In fact, it is only in 2006 that the existence of the applicant's marriage and the applicant's child became known to the immigration officials. This time, the applicant had decided to sponsor his wife and child and in the application for sponsorship, he indicated that they were married August 17, 2004, and that their son was born September 18, 2004. Furthermore, the applicant's wife indicated that they had lived together from 2000 to 2004.

4 As per paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations SOR/2002-227, as amended (the Regulations), the wife and the child were found not to belong to the family class and, consequently, the sponsorship application was rejected. The applicant appealed this decision to the tribunal, on the basis that he had not declared his wife and child because he does not speak English or French. His appeal was rejected on May 27, 2008. That decision is not contested before the Court.

5 This now brings us to the subject matter of this proceeding. As per paragraph 40(1)(a) of the Immigration and Refugee Protection Act (the Act), 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 the Act".

6 Indeed, pursuant to subsection 16(1) of the Act, the applicant had the duty to answer truthfully all questions that were asked by the officer who examined him at the port of entry. More particularly, section 51 of the Regulations requires that the foreign national who holds a permanent residence visa report any changes with respect to his or her family situation:



• 51. A foreign national who holds a permanent resident visa and is seeking to become a permanent resident must, at the time of their examination,
• (a) inform the officer if
• (i) the foreign national has become a spouse or common-law partner or has ceased to be a spouse, common-law partner or conjugal partner after the visa was issued, or

• (ii) material facts relevant to the issuance of the visa have changed since the visa was issued or were not divulged when it was issued; and



• (b) establish that they and their family members, whether accompanying or not, meet the requirements of the Act and these Regulations.

* * *
• 51. L'étranger titulaire d'un visa de résident permanent qui cherche à devenir un résident permanent doit, lors du contrôle :
• a) le cas échéant, faire part à l'agent de ce qui suit :
• (i) il est devenu un époux ou conjoint de fait ou il a cessé d'être un époux, un conjoint de fait ou un partenaire conjugal après la délivrance du visa,

• (ii) tout fait important influant sur la délivrance du visa qui a changé depuis la délivrance ou n'a pas été révélé au moment de celle-ci;

• b) établir que lui et les membres de sa famille, qu'ils l'accompagnent ou non, satisfont aux exigences de la Loi et du présent règlement.

7 On April 21, 2008, the Minister issued a report as per section 44 of the Act according to which the applicant would be inadmissible in Canada due to "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" (paragraph 40(1)(a) of the Act). The report was submitted to the ID for investigation. One year later, the ID concluded that the applicant had made misrepresentations in the sense of paragraph 40(1)(a) of the Act. A removal order was thus issued on April 20, 2009. The applicant appealed the removal order before the Tribunal as per subsection 63(3) of the Act and asked that the humanitarian and compassionate reasons in the file be taken into account, as per paragraph 67(1)(c) of the Act.

8 On March 31, 2010, the Tribunal rejected his appeal, finding that the removal order was justified and that the humanitarian reasons claimed by the applicant were insufficient to justify granting the special relief outlined in paragraph 67(1)(c) of the Act. It is the decision to uphold the removal order that is the subject of the application for judicial review today. The Tribunal's rejection of the humanitarian reasons claimed by the applicant is not contested before this Court.

9 At issue are two misrepresentations: one regarding the applicant's "marriage" in 2004 and one regarding the birth of his child in 2004. The applicant does not dispute the misrepresentations themselves. However, he does dispute that his intention was to mislead the immigration officials. Moreover, he submits that the misrepresentations were not material, as they would not have changed the outcome of the applicant's permanent residence application.

10 Both before the Tribunal and this Court, the applicant has argued that as his marriage was not legal in the eyes of the Vietnamese Government because it had not been yet registered at the time of his application and entry in Canada. It follows that he was under no obligation to report it (Definition of "marriage", section 2, Regulations). He thus made no misrepresentation of a material fact relating to a relevant matter, as per paragraph 40(1)(a) of the Act.

11 Second, as for the misrepresentation regarding his child, the applicant argues that as the child was not registered with the Vietnamese Government, he also had no obligation to report the child. In any case, the applicant's having a child does not disqualify him from obtaining permanent residence as a dependent on his father, so it is not a misrepresentation in the sense of paragraph 40(1)(a) of the Act.

12 Thirdly, the applicant submits that he had no intention to mislead the immigration authorities and that the Tribunal's failure to give sufficient weight to the absence of such an intention renders the impugned decision unreasonable.

13 All these grounds of attack are challenged by the defendant who relies on the findings of fact made by the Tribunal and on the applicable provisions of the Act and Regulations. Indeed, the impugned decision is reasonable and accords with the principles derived from the relevant case law. See Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299 (Mohammed); Azizi v. Canada (Minister of Citizenship and Immigration), 2005 CAF 406; Baro v. Canada (Minister of Citizenship and Immigration), 2007 FC 1299 (Baro); Bodine v. Canada (Minister of Citizenship and Immigration), 2008 FC 848; Ekici v. Canada (Minister of Citizenship and Immigration), 2009 FC 1133.

14 The Court finds that the appropriate standard of review in this case is reasonableness. The decision made by the Tribunal relies on the application of paragraph 40(1)(a) of the Act to the facts in evidence. It is therefore a question of mixed fact and law and the Court will only intervene if the decision of the Tribunal does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 47; Ali v. Canada (Minister of Citizenship and Immigration), 2008 FC 1354, at paragraph 20).

15 For the reasons that follow, while sympathizing with the applicant and his family, the Court finds the Tribunal's decision reasonable in light of the facts and the applicable law.

16 There is nothing inherently unreasonable about the general conclusion reached by the Tribunal. Material facts are not restricted to facts directly leading to inadmissible grounds, but are broader. When relevant information affects the process undertaken or the final decision, it becomes material (Koo v. Canada (Minister of Citizenship and Immigration), 2008 FC 931, at paragraph 19). The applicant's failure to mention his wife and child prevented immigration officials from investigating them and their relationship to the applicant. The misrepresentation thus affected the process undertaken.

17 The Tribunal has found that whether the marriage was technically legal or not in Vietnam, it was still a material fact. This finding is reasonable in the circumstances. The definition of "dependent child" in the Regulations includes a category of a married child who remains financially dependent on the parent, and marital status of the applicant is clearly relevant to the applicant's belonging to that category. In not declaring his marriage in Vietnam, he prevented the immigration agent from undertaking an investigation to ensure that he was admissible under the category of family reunification.

18 As for the applicant's child, the Tribunal reasoned that this also prevented the immigration agent from investigating the child. This would prevent the applicant from sponsoring his wife and child in the future under the category of family reunification. It must be remembered that paragraph 40(1)(a) of the Act refers notably to the "withholding [of] material facts relating to a relevant matter that induces or could induce an error in the administration of [the] Act" (my underlining). Therefore, it was not necessary for the Tribunal to make a finding of an actual error caused by the misrepresentation.

19 Furthermore, the Tribunal's decision fits quite well with the examples of what generally constitutes misrepresentation as per paragraph 40(1)(a) of the Act, listed in section 9.10 of the ENF2: Evaluating Inadmissibility guidelines, published by the Ministry of Citizenship and Immigration. Two specific examples relevant to the present case are "An applicant for a visa fails to disclose the existence of family members, even if the family members could satisfy the requirements of the Act [R117(9)(d)]" and "Failure to disclose changes in marital status or changes in material facts since visa issuance abroad".

20 The guidelines are of course not binding on the Tribunal or any other body involved in the process, but they are a good indication in a judicial review proceeding of what an immigration official might reasonably find to constitute misrepresentation of a material fact related to a relevant issue is. Besides the reference above to the ENF2: Evaluating Inadmissibility guidelines, see also, paragraphs 5.10, 5.11 and 10.5 of OP 2 - Processing Members of the Family Class.

21 The applicant also argues that he honestly believed that his religious marriage was not required to be reported, and as such, he should not be punished by making an inadvertent error. The applicant cites Baro, above, at paragraph 15, in support of the claim that if the misrepresentation was truly innocent and inadvertent, then an exception can be made and paragraph 40(1)(a) of the Act need not be applied (Medel v. Canada (Ministre de l'emploi et de l'immigration), [1990] 2 C.F. 345, [1990] A.C.F. No. 318 (C.A.F) (QL) (Medel).

22 This issue was canvassed by my colleague Justice MacKay in Mohammed, above, under a similar provision found in the old Immigration Act (i.e. paragraph 27(1)(e)). With respect to the comments made by Justice MacGuigan of the Federal Court of Appeal in Medel, above, Justice MacKay writes at paragraph 40:



• In my opinion, the principle which arises from the above comments of MacGuigan J.A. in Medel is that the duty of candour owed by the applicant depends on the materiality of the information withheld. A change in marital status has repeatedly been held to constitute a "material fact" for the purposes of paragraph 27(1)(e) of the Act, in so far as the failure to disclose it, as stated in Brooks, supra, [at page 873] may reasonably have "the effect of foreclosing or averting further inquiries".10 In the present case, the information failed to be disclosed by the applicant, his change in marital status, was clearly "material" information in that it potentially would have had a direct or inducing influence on whether or not he was granted landing in Canada.

23 For the purposes of the Act, "family member" includes, as the case may be, the spouse or "common-law partner", that is defined in the latter case as "an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year" (paragraphs 1(1) and (3) of the Regulations).

24 In the case at bar, the facts do not allow the conclusion that the applicant was completely unaware that common law or conjugal history was relevant. When one examines the application for permanent residence form that the applicant completed, one sees that the applicant was expressly asked whether he was in a common-law relationship. He responded that he was not, which could very well have been true in 2003, although even that possibility is in doubt, given the applicant's wife's application made in 2006 that they had lived together from 2000 to 2004. The truthfulness of that statement is ultimately immaterial, however, given that the same application form required an undertaking that the applicant would inform the immigration authorities should any information therein changed. The applicant thus had the obligation to report any change in his common law relationship status.

25 While the general argument could be made that common law marriages can often be difficult to define or prove, this is patently not the case. Even if the applicant believed that his religious marriage was not a real marriage in the eyes of the Vietnamese and Canadian governments, he repeatedly stated that he viewed the marriage as valid, as per his Catholic faith. Indeed, the applicant and his wife supposedly underwent the religious ceremony in 2004 in order to save their families from the shame of an illegitimate child. Furthermore, when the applicant's wife applied for permanent residence in 2006, she indicated that she and the applicant had married in 2004, and had been living together since 2000. Given the facts in evidence, the applicant's relationship with his wife clearly qualifies as, at the very least, a common-law marriage. The applicant was thus obligated to report that his spousal or conjugal status had changed, which he did not do.

26 For these reasons, the Tribunal's decision is thus reasonable and the Court has no grounds to interfere.

27 The applicant has proposed the following question for certification:



• Does a marriage that does not satisfy the definition of marriage according to the IRPA constitute a material fact and a fact relating to a relevant matter, in the sense of inducing a misrepresentation?

28 The test for certification is set out at paragraph 74(d) of the Act and section 18(1) of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22. The test states that a question may only be certified if it is a serious question of general importance which would be dispositive of an appeal (Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, 318 N.R. 365 at paragraph 11).

29 This standard is not met in the present case.

30 The first criterion is that the question transcends the particular fact context in which it has arisen. The question must lend itself to a generic approach leading to an answer of general application (Boni v. Canada (Minister of Citizenship and Immigration), 2006 FCA 68, 357 N.R. 326 at paragraph 6). While the issue is one of significance, the obligation to disclose a marriage that does not satisfy the definition of marriage according to the Act is fact-specific.

31 In view thereof, it is not necessary to decide whether the proposed question for certification satisfies the second criterion, which is that the question must be dispositive of an appeal. Moreover, even if it were necessary, the question as phrased is not consistent with the obligation to disclose all material facts relating to a relevant matter that induces or could induce an error in the administration of the Act, as per paragraph 40(1)(a) of the Act. The question as phrased is thus not dispositive of an appeal.

32 For these reasons, the Court declines to certify the proposed question.

JUDGMENT

THIS COURT ORDERS AND ADJUDGES that the application for judicial review be dismissed and no question is certified.

MARTINEAU J.

DISCREPANCIES IN APPLICATION LEAD TO MISREPRESENTATION FINDING

This case is an example of how a careless handling of an application, and the provision of contradictory information, may result in serious s consequences. The applicant apparently enlisted a "travel agency" to obtain a visitors visa to Canada, after she filed the immigration application on her own. She should have hired a lawyer...

Cao v. Canada (Minister of Citizenship and Immigration)

Between
Qianghua Cao, Chugang Wu and Zhimin Wu, Applicants,
and
The Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 537
2010 FC 450Docket IMM-3493-09 Federal CourtToronto, OntarioMainville J.Heard: March 25, 2010.Judgment: April 26, 2010.
(38 paras.)

REASONS FOR JUDGMENT AND JUDGMENT

1 MAINVILLE J.:-- This concerns an application submitted pursuant to sections 72 and following of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") by Qianghua Cao (the "principal Applicant"), her husband Chugang (or Chuguang) Wu, and her son Zhimin Wu, all citizens of the People's Republic of China, seeking judicial review of a decision dated June 23, 2009 of Susan Burrows, Consul (Immigration) at the Canadian Consulate General in Hong Kong (the "Senior Officer") rejecting, pursuant to paragraph 40(1)(a) of the Act, the principal Applicant's application for permanent residence in Canada on the ground of misrepresentation.
2 This application for judicial review shall be dismissed for the reasons set out below.

Background

3 The principal Applicant submitted an application dated April 30, 2007 for permanent residence in Canada as a business immigrant. In this application, she describes herself as "Board Chairman & General Manager" (at page 163 of the Tribunal Record).
4 In her background declaration dated October 26, 2008, the principal Applicant mentioned, with respect to her educational achievements, studies at Guangzhou Radio School and part-time studies in economic management. She did not mention any training, curriculum, degree or certificate in law. The principal Applicant also mentioned that she had been employed, since 1994, as "Legal Representative, President and General Manager" by the Guangzhou Haizhu District Xinda Real Estate Consultant Service Center ("Xinda") (at page 167 of the Tribunal Record). She did not mention any employment or association with a law firm.
5 In a document attached to her application and dated October 28, 2008, the principal Applicant claims to hold 67% of the shares of Xinda. She states that Xinda is active "mainly in analysis and consultancy on investment project (sic) of real estate, supplementary service for real estate exchange, legal consultancy service, etc." and she states that she is employed in Xinda as "legal representative and concurrently general manager" (at page 174 of the Tribunal Record).
6 Numerous documents setting out the principal Applicant's experience and education were attached to her application for permanent residence, but none concerning any legal training or any association with a law firm. Some of these documents appear to be official registrations for Xinda in which the principal Applicant is described as Xinda's legal representative, and the corporate purposes of Xinda are said to include real estate information consulting.
7 An organizational chart of Xinda was also submitted with the application, and it designates the principal Applicant as the General Manager of the business responsible for three departments, namely Finance, Personnel and Marketing. A distinct Deputy General Manager position is also set out in this chart responsible for "Law Consulting Service" and "Information Service" (at page 123 of the Application Record).
8 While her application for permanent residence was being processed, the principal Applicant also submitted to Canadian immigration authorities an application signed August 11, 2008 to obtain the required authorization for the purpose of temporary travel plans to Canada. In this temporary residence application, the principal Applicant stated that she was employed as a "lawyer" by "Everwin Law Office" in Quangzhou where she was a "partner" (at pages 154-55 of the Tribunal Record). Moreover, the principal Applicant made no mention whatsoever of Xinda in her temporary residence application.
9 The officer reviewing her permanent residence application eventually took note of the discrepancies, and a letter dated March 17, 2009 (the "fairness letter") was sent to the principal Applicant informing her of the apparent misrepresentation, and asking her for information or documents which might clarify the situation.
10 The principal Applicant responded on April 9, 2009 stating that she had always been the "Legal Representative and General Manager" of Xinda since 1994. However, since Xinda is active in real estate consulting, the types of legal problems the business encounters are manifold. This was said to explain why she obtained a lawyer's licence after two years of self-study, and passed the National Lawyer Qualification Examination to become a lawyer in June of 1997. However, she claims that in order to be able to practice law, she needed to register her license and join a licensed law firm. Consequently, she claims that she registered as a part-time lawyer with the Everwin Law Office ("Everwin") in 1998. She states that she only works as an in-house lawyer for Xinda and thus provides legal advice to Xinda's clients and never does any work for Everwin. In sum, the Applicant asserts that her arrangement with Everwin is simply one of convenience.
11 In her April 9, 2009 response, the principal Applicant explained as mistakes by her travel agency the statements in her temporary visa application concerning her employment as a lawyer for, and a partner of, Everwin. She claims she gave that agency all required documents, including Xinda's documents and her lawyer's license. She adds that it was the travel agency that prepared the application and made the mistakes. She thus blames her travel agency for the inclusion of the wrong information in the temporary residence application.
12 As to the absence of any mention of Everwin in her permanent residence application, the Applicant explains this omission as follows: "I might not mention much about my part time job as a lawyer with "Everwin" because I don't have to deal with them at all and I never have to report duty to them, that sometimes makes me forget about them."
The impugned decision
13 The notes in the record dated June 19, 2009 from the Senior Officer set out the details of her decision to deny the application for permanent residence on the ground of misrepresentation:
It is clear to me that the applicant misrepresented material facts related to her work experience. Such facts could have led to an error in the administration of the act as we may have omitted crucial backgrounds checks related to her admissibility. Her explanation of blaming discrepancies on an agency that completed her forms is a common one but not a credible one. She is responsible for ensuring that her applications are complete and truthful. She was given an opportunity to explain her omissions and did not provide a credible explanation. By my authority, I am refusing this application as per section A40 and sending a refusal letter to that effect. This renders her inadmissible to CDA for all purposes for two years.
Relevant provisions of the Act
14 The relevant provisions of the Act are subsection 16(1) and paragraphs 40(1)(a) and 40(2)(a), which read as follows:
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.
40. (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;
[...]
(2)
The following provisions govern subsection (1):
(a) 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; [...]
* * *
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.
40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants :
a) 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;
[...]
(2)
Les dispositions suivantes s'appliquent au paragraphe (1):
a) 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; [...]
Position of the principal Applicant
15 The principal Applicant submits that no issue of misrepresentation is raised in this case. Specifically, the principal Applicant argues that in assessing misrepresentation, it was not open to the Senior Officer to consider the temporary residence application, since that application was unrelated to the permanent residence application at issue in these proceedings. Consequently, the real issue to be addressed by this Court is rather whether the principal Applicant withheld material facts relating to a relevant matter that induced or could induce an error in the administration of the Act in relation to her permanent residence application.
16 The principal Applicant further argues that the Court cannot find that she withheld information under paragraph 40(1)(a) of the Act, unless she was expected to provide the information because specific questions had been asked or she had been otherwise made aware that she had to disclose a relevant fact. Applicants should not be exposed to the risk of being declared inadmissible for having unintentionally withheld information.
17 Consequently, the principal Applicant submits that she answered correctly the questions on her work experience in her permanent residence application by advising the authorities of her activities since 1994. She asserts that all the information provided was correct, she disclosed that she was the legal representative and general manager of Xinda and that this enterprise supplied legal services related to real estate consultancy work. Moreover, she had no duty to disclose her registration with Everwin since this relationship was entered into as a mere formality that enabled her to provide advice to Xinda.
18 The principal Applicant further submits that even if this Court were to find that she did withhold information, it did not concern material facts relating to a relevant matter that induced or could induce an error in the administration of the Act. Her registration with Everwin was simply pro forma, and could have no influence on her application for permanent residence as a business immigrant. The information withheld must be shown to have led to an error in the administration of the Act, and this has not been shown in this case. The Senior Officer does not explain why the principal Applicant, who applied for permanent residence as a successful businesswoman and manager of a real estate company, would have required less scrutiny than she would now require given that it was revealed that in addition to these functions, she was also a part-time lawyer providing legal advice to the same company.
19 Moreover, the principal Applicant corrected the information supplied after receiving her fairness letter; hence, it is submitted by the principal Applicant that under paragraph 40(1)(a), an applicant is not barred from correcting a misrepresentation or providing withheld information as long as no official has acted on the basis of flawed information.
Position of the Minister
20 The Minister first submits that the applicable standard of review in this case is that of reasonableness.
21 The Minister is of the view that the principal Applicant did not provide complete, honest and truthful information both when she submitted her application for permanent residence and subsequently submitted her application for temporary residence. Both applications are clearly contradictory; therefore, there has been a misrepresentation on the part of the principal Applicant. These misrepresentations were material and directly or indirectly induced or could have induced an error in the administration of the Act.
22 The Senior Officer considered the explanations given by the principal Applicant concerning these discrepancies and found them not to be credible. Such a decision was reasonable in the circumstances, was based on the evidence, and was open to the Senior Officer to make. Consequently, this Court should not disturb this finding.
Standard of review
23 The decision of the Senior Officer in this case raises essentially questions of fact: did the principal Applicant make misrepresentations or withhold information? If the answer is affirmative, were those misrepresentations or withheld information material in that they could have induced an error in the administration of the Act?
24 As noted in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 ("Dunsmuir") at paragraph 53, decisions from administrative bodies concerning issues of fact usually attract a standard of reasonableness in judicial review proceedings. This is the standard applicable in this case to the determinations of facts made by the Senior Officer.
25 However, the decision is also being challenged by the Applicant on the basis that the Senior Officer misapplied or misconstrued paragraph 40(1)(a) of the Act. The interpretation of that provision is a question of law. In addition, it was stated by the Supreme Court in Dunsmuir (at paragraph 54) that a standard of reasonableness may also apply where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity. However this is not always the case. Here, a consideration of various factors leads me to conclude that the Senior Officer's decision must be reviewed on a standard of correctness if the interpretation of paragraph 40(1)(a) of the Act is at issue.
26 I come to this conclusion in view of a number of factors; in particular, the Senior Officer is not an administrative tribunal but rather an officer of the Crown entrusted with a non-adjudicative function; the Senior Officer's decision is not covered by a privative clause; the Senior Officer holds no special expertise in the interpretation of the Act and, in view of the general scheme of paragraph 40(1)(a), no deference is due to the Senior Officer on questions of law raised in a determination of misrepresentation.
27 In addition, the approach described above is consistent with the pre-Dunsmuir case law of this Court. It was held in Khan v. Canada (Minister of Citizenship and Immigration), 2008 FC 512, [2008] F.C.J. 648 (QL) (at paragraph 22) that questions of statutory interpretation related to paragraph 40(1)(a) of the Act are subject to a standard of correctness. It has also been held that determinations of misrepresentations under that paragraph call for deference in judicial review proceedings, since they are factual in nature: Baseer v. Canada (Minister of Citizenship and Immigration), 2004 FC 1005, [2004] F.C.J. 1239 (QL) at paragraph 3 and Bellido v. Canada (Minister of Citizenship and Immigration), 2005 FC 452, [2005] F.C.J. 572 (QL) at paragraph 27.

Analysis

28 Under paragraph 40(1)(a) of the Act, the Applicant is inadmissible to Canada if she has misrepresented or withheld material facts on a relevant matter that induces or could induce an error in the administration of the Act. I conclude that this provision, read in combination with paragraph 16(1) of the Act, imposes a general and broad duty on the Applicant to disclose all facts which may be material to her application for permanent residence. The Canadian immigration system rests on the premise that all persons applying under the Act will provide truthful and complete information on the basis of which decisions regarding their eventual admission into Canada will be made. The integrity and credibility of that system requires that this duty be taken seriously by all those concerned, including in this case the Applicant.
29 In the light of these principles, I disagree with the Applicant, who submits that her temporary visa application cannot be taken into account in determining whether she misrepresented information or withheld information in her permanent residence application. The temporary visa application is a proper document for the Senior Officer to consider, and the argument that a misrepresentation in the temporary residence application cannot attract the application of paragraph 40(1)(a) is not cogent.
30 The information provided by the Applicant in her temporary residence application is clearly inconsistent with the information she provided in her permanent residence application. In one application she claims to be a lawyer and a partner of the law firm of Everwin, while in the other she claims to be a senior manager and majority shareholder of Xinda. Obviously the Applicant has made a misrepresentation in at least one of these applications, and this in and of itself sufficient to attract the application of paragraph 40(1)(a) of the Act.
31 The Applicant admits to the misrepresentation in her temporary residence application, but argues that this was an error of her travel agent. Again, that does not bar the application of paragraph 40(1)(a) of the Act. 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.
32 The Applicant denies having withheld information in her permanent residence application, and rather attributes her omission to mention her legal training and certification and her association with Everwin as facts that simply slipped from her mind. The Senior Officer did not find this explanation credible and this finding is clearly reasonable in the circumstances. It indeed defies belief that a difficult legal training leading to certification as a lawyer would have been forgotten by the Applicant in submitting her permanent residence application. In addition, the Applicant's claim lacks credibility in the light of her own admission that she viewed this information as relevant for the purposes of her temporary residence application. If it was relevant for the latter purposes, it follows logically that it was relevant for the purposes of her permanent residence visa application.
33 The Applicant further asserts that her association with Everwin is purely one of convenience since she simply acts as legal counsel to Xinda. However the organizational structure of Xinda provided by the Applicant rather shows that the Deputy General Manager of Xinda, and not the Applicant, is responsible for Xinda's legal department.
34 Finally, the Applicant argues that the misrepresentation or withholding was subsequently cured when she provided the information after she received the fairness letter. I disagree. When the Minister uncovers the fact that a misrepresentation has been made or that information has been withheld, a simple subsequent correction of the record or the communication of the information in question will not normally act as a bar to the application of paragraph 40(1)(a): Khan v. Canada (Minister of Citizenship and Immigration), supra at paragraph 25.
35 I turn now to the question of the relevance and materiality of her misrepresentations. The Senior Officer found that those misrepresentations or omissions could have led to an error in the administration of the Act in that crucial background checks related to the Applicant's admissibility may not have been carried out. This is a finding of fact closely related to the procedures and policies applied by the immigration authorities working out of the Hong Kong office. Deference is owed by this Court in reviewing this finding. Unless it can be demonstrated that this finding is unreasonable, it should not be overturned in a judicial review proceeding.
36 The Senior Officer noted at paragraph 11 of the affidavit she signed in the context of this judicial review proceeding that certain occupations, such as that of lawyer, could be subjected to background checks. This affidavit was not challenged by the Applicant, and no evidence was presented to me to show that such background checks were not carried out by the Hong Kong office for lawyers seeking permanent residence in Canada. Consequently, the Applicant has failed to convince me that the finding of the Senior Officer on this matter was unreasonable or otherwise flawed.

Conclusion

37 This application for judicial review is dismissed.
38 This case raises no question to be certified pursuant to paragraph 74(d) of the Act.

JUDGMENT

THIS COURT ORDERS AND ADJUDGES that this application for judicial review is dismissed.

MAINVILLE J.