FAILURE TO DISCLOSE MARRIAGE CANCELS VISA

See  reported case below. Many applicants, either intentionally or without proper legal advice, get married after obtaining permanent residency but before landing. This Is a very serious error, as marital status is a "material fact" and its changes must be reported before landing, they affect the visa process in that all dependants and family members must be medically examined and are subject to security background checks. In the case below, the applicant attempted to be "creative" and even "cute" in his arguments, all of which failed pretty quickly in court, as per the language of the decision below. Note that the applicant initially contacted CIC to discuss his options, which is a mistake. Applicants are cautioned to obtain the appropriate legal advice before taking any steps that may affect the validity of their visas.

Samiullah v. Canada (Minister of Citizenship and Immigration)

Between
Mohammed Samiullah, Applicant, and
Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 899

2013 FC 836

Docket IMM-11198-12

Federal Court
Edmonton, Alberta

Rennie J.

Heard: June 25, 2013.
Judgment: July 31, 2013.

(23 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     RENNIE J.:-- The applicant seeks to set aside an August 27, 2012 decision of a Citizenship and Immigration Canada (CIC) service delivery agent to return his application for permanent residence as a Federal Skilled Worker in Canada without processing. For the reasons that follow, the application is dismissed.

Background

2     In 2004, the applicant applied for permanent residence in Canada as a Federal Skilled Worker (FSW). The Canadian visa office in Buffalo, New York issued him a permanent resident visa on July 5, 2006. At the time he was unmarried. Before entering Canada the applicant married his wife in India. He was denied landing at Toronto in February of 2007 due to the change in his marital status. He was allowed to enter Canada as a visitor only.

3     On June 21, 2007, the Buffalo visa office sent the applicant a letter stating his visa was cancelled and his file had been closed. The letter advised him to re-apply for immigration.

4     The applicant was subsequently found inadmissible under section 41(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). An exclusion order was issued in April 2009 based on his failure to report his marriage prior to landing, which was a violation of one of the conditions of his visa. He successfully appealed to the Immigration Appeal Division (IAD) based on humanitarian and compassionate (H&C) considerations. The IAD rendered its decision on May 11, 2010, setting aside the exclusion order. By this time the applicant was living in India.

5     The applicant received conflicting information from CIC as to whether a new application was required, as opposed to updated application materials. In an email dated September 1, 2011, the Canadian High Commission in New Delhi advised him to submit a new application. In a letter dated May 17, 2012, the Canadian High Commission advised him to apply to the Centralized Intake Unit in Nova Scotia.

6     The applicant submitted a new visa application. Two days before it was received Ministerial Instruction 5 (MI-5) came into effect, which put a temporary pause on the acceptance of new FSW applications, other than those with an arranged employment offer or in the Doctor of Philosophy academic stream. The operation and legal effect of the Ministerial Instructions has been considered in previous decisions of this Court in Liang v Canada (Minister of Citizenship and Immigration), 2012 FC 758 and Tabingo v Canada (Minister of Citizenship and Immigration), 2013 FC 377.

Framing the Issue

7     On August 27, 2012, a CIC agent decided that the application could not be accepted in accordance with MI-5. The respondent says that this is the only decision under review.

8     The applicant characterizes the matter differently. He contends that the IAD appeal was an interruption or detour away from the landing interview, which was in process on February 27, 2007. Put otherwise, the landing process was effectively adjourned pending the appeal from the inadmissibly decision. In order for the IAD decision to have any effect or purpose, the remedy is for this Court to remit the matter back to the Immigration Officer to continue with the landing interview and to grant permanent residence.

9     The applicant undertook several measures to re-start the landing process. He engaged counsel. Letters were written. He also sought leave to commence judicial review for an order setting aside the decision dated June 21, 2007, advising him that his visa was cancelled, and mandamus to compel the continued processing of his application for permanent residence. That application for leave to commence judicial review was dismissed on December 2, 2008.

10     The applicant also wrote to the IAD seeking a variation of the order so as to remit the matter to the Visa Officer for continued processing consistent with the IAD decision. In a letter dated December 30, 2011, the IAD acknowledges that the exclusion order was set aside. However, in response to the applicant's request that the processing of his application for permanent residence be resumed, he was advised that "The jurisdiction of the Division does not extend further."

11     Section 67 of the IRPA grants the IAD a general power to remit matters for redetermination. Counsel pointed to several IAD decisions where the Division directed that the file be remitted to an officer for redetermination or reconsideration in light of the IAD decision: see for example, Ivanov v Canada (Citizenship and Immigration), 2006 CanLII 52285 (IRB). I do note, however, that the authority of officers to continue processing is contingent on the existence of an extant application. In Ivanov, the Member stated that the applicant's visa had expired, and that it was "not clear" how, in the absence of a new application, the applicant could get back to Canada.

12     This is the very question posed by this application. The applicant contends that his first FSW application, which was accepted, remains extant and is a foundation on which a remedial order could be predicated.

Analysis

13     In my view, the expiry date of the applicant's visa was not suspended or altered by the successful appeal to the IAD. The applicant had no vested right to permanent resident status; the applicant's entitlement was contingent on compliance with all the terms and conditions of his visa. Should non-compliance with the conditions become an issue, as here, the pursuit of their resolution does not suspend the ticking of the clock. Were this not the case, the legal regime applicable to the applicant would also be frozen as of the date that the exclusion order was issued.

14     The applicant further submits that the effect of the IAD decision was that his 2006 visa did not become invalid due to his marriage. That is incorrect. The IAD allowed the appeal from his exclusion order on H&C grounds. Its decision did nothing to alter or extend the longevity of the visa. The visa was time limited, expiring on March 3, 2007, three years before his successful appeal. This chronology further indicates that a new application was necessary.

15     In consequence, the only decision before this Court is the decision to return his second visa application without processing, in accordance with MI-5. There is no reviewable error in the application of the Ministerial Instructions to the applicant.

16     The Minister's authority to issue Ministerial Instructions stems from section 87.3 of the IRPA. MI-5 was published in the Canada Gazette, Vol. 146, No 26 on June 30, 2012 and came into effect July 1, 2012.

17     As the Minister predicated one of his two main arguments on the refusal of the Court to grant leave to commence judicial review from the June 21, 2007 decision, the hearing was adjourned to allow the parties to review the record of proceeding in respect of that judicial review and to provide this Court with the decision letter and supporting reasons.

18     The Minister has now provided those documents.

19     The June 21, 2007 letter states:

·       Please be advised that your visa is now cancelled. Your application at this office is now closed. You will need to re-apply for immigration to Canada and meet the requirements which are in effect at the time you apply. 

20     On July 8, 2008, a judge of this Court ordered that the Canadian Consulate General in New York issue written reasons for that decision.

21     CIC responded in a letter dated July 21, 2008, stating that the June 21, 2007 letter did not "cancel" the applicant's visa as the file had already been closed well before the letter was sent. CIC also included the Computer Assisted Immigration Processing System (CAIPS) notes relating to the applicant. The CAIPS notes confirm that on February 22, 2007 the New York visa office provided its position that, "We are unable to add his wife to his immigrant file as his case was concluded with the issuance of a permanent resident visa. He will have to submit a new application and processing fees for himself and his wife to the appropriate office."

22     As previously mentioned, the application for leave to seek judicial review of this decision was dismissed by this Court on December 2, 2008. The applicant may not challenge this decision again in the present judicial review.

23     As the applicant's file was closed, and his visa expired, he was required to submit a new application. MI-5 explicitly applies to pause the acceptance of any new applications, with two exceptions inapplicable to the applicant. Accordingly, I see no error in the decision to return his application without processing.

JUDGMENT

THIS COURT'S JUDGMENT is that the application is dismissed. There is no question for certification.

RENNIE J.

INCOMPLETE ANSWER TO A VISA OFFICER CANNOT RESULT IN POSITIVE REVIEW

In the case below, an applicant appears to have been somewhat casual in his reply to a concern raised by a visa officer. The court held, in somewhat colorful language, that the applicant cannot allege that he was not aware that a more complete reply was necessary at the appropriate time.

Reznitski v. Canada (Minister of Citizenship and Immigration)
Between

Leonid Reznitski, Applicant, and

The Minister of Citizenship and Immigration, Respondent

[2011] F.C.J. No. 111

2011 FC 93
Docket IMM-1006-10
Federal Court

Toronto, Ontario
Shore J.
Heard: January 20, 2011.

Judgment: January 26, 2011.

(22 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT

SHORE J.:--



• I. Overview

1 When is a reply, a full reply, or a final reply? If an answer is given in response to a question without a statement to the effect that more of a reply will be forthcoming, or that more may be forthcoming, within an allotted time period, it would be unreasonable to assume that the answer is not final. If that was not the case, transactions would be left hanging without conclusion, unless the end of a prescribed time period would have been reached.

2 Thus, as the counsel for the Respondent, Mr. Lorne McClenaghan, succinctly stated in his oral pleadings: "Is an applicant's response to a visa officer an answer? The answer is yes!" The Court considers the answer to be implicit and explicit.
• II. Introduction

3 This is an application for judicial review, pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of an Immigration Officer refusing the Applicant's application for a Permanent Resident Visa.


• III. Facts

4 The Applicant, Mr. Leonid Reznitski, applied for permanent residence as a skilled worker. In his application, he indicated that he was unemployed from 1996 to 2001.

5 As part of the assessment process, the Applicant was asked for further information on January 14, 2010 and given 30 days to respond. In particular, the Applicant was asked to forward copies of passports; for details of his military service and to further account for his activities during the years 1996 to 2001.

6 On January 26, 2010, the Applicant responded to the January 14, 2010 letter. The Applicant provided copies of his and his family members' passports and provided details of his military service; however, with respect to the inquiry concerning his activities between 1996 and 2001, the Applicant elected to answer the inquiry by tersely restating information he had already given and simply indicated that he was unemployed ('je n'ai pas travaillé').

7 The Officer reviewed the Applicant's response and concluded that he was not satisfied that the Applicant met the criteria for admission since there was a serious gap in the information about the Applicant and his activities. The Officer noted section 16 of the IRPA, which provides that applicants must truthfully answer all questions put to them for the purpose of examination. The Officer noted that the Applicant was not asked if he was working but to provide an account of his activities during the period. Based on the Applicant's lack of candour, the Officer was unable to find that he was admissible and the Officer accordingly refused the application.

8 After receiving the rejection letter, the Applicant purported to supply further details, and embellished his initial response.



• III. Issue

9 Did the Immigration Officer err in principle or render a decision in bad faith?



• IV. Standard of Review

10 The standard of review of decisions of visa officers was recently reiterated by Justice Yves de Montigny:
• [15] ... This Court has consistently held that the particular expertise of visa officers dictates a deferential approach when reviewing their decisions. There is no doubt in my mind that the assessment of an Applicant for permanent residence under the Federal Skilled Worker Class is an exercise of discretion that should be given a high degree of deference. To the extent that this assessment has been done in good faith, in accordance with the principles of natural justice applicable, and without relying on irrelevant or extraneous considerations, the decision of the visa officer should be reviewed on the standard of patent unreasonableness: Postolati v. Canada (M.C.I.), 2003 FCT 251; Singh v. Canada (M.C.I.), 2003 FCT 312; Nehme v. Canada (M.C.I.), 2004 FC 64; Bellido v. Canada (M.C.I.), 2005 FC 452, [2005] F.C.J. No. 572 (QL).

(Kniazeva v Canada (Minister of Citizenship and Immigration), 2006 FC 268, 288 FTR 282).

11 This equates to a standard of review of discretionary decisions of visa officers previously referred to as reasonableness simplicitor. Where the statutory discretion has been exercised in good faith, with fairness, and without reliance on irrelevant or extraneous considerations, the Court will not interfere (Liu v Canada (Minister of Citizenship and Immigration), 2001 FCT 751, 2008 FTR 99, at par 26; Benammar v Canada (Minister of Citizenship and Immigration), 2001 FCT 1176, 112 ACWS (3d) 137, at para 27). Now the Dunsmuir decision standard is one of reasonableness which clearly embodies that which it connotes and denotes (Dunsmuir v New-Brunswick, 2008 SCC 9, [2008] 1 SCR 190).

• V. Analysis

12 The Court agrees with the position of the Respondent.

13 The Applicant elected not to answer the Officer's question and declined to account for his activities during a five year period. The fact that the Applicant supplemented his response after he obtained the refusal is his own tacit acknowledgement that the initial response was not sufficient. The Officer was clearly entitled to also find that it was insufficient and to refuse the application on that basis.

14 The Applicant argues that a decision was made on the file before 30 days after the date of the January 14, 2010 letter had expired. The Officer gave the Applicant 30 days to provide the information; the reason the decision was made before the expiry of 30 days is that the Applicant provided his response in less time. The Applicant's response is clearly his full response and does not indicate that anything else is either outstanding or forthcoming. In the circumstances, the Officer is not required to keep the file open for the full 30 days. The Applicant's response is abundantly clear in that it is his complete ('non') response and he does not indicate that any further response is coming.

15 The facts also do not support the Applicant's claim in his affidavit that he had 'not yet finished gathering information (Application Record at p 14). He had no information to gather for the purposes of answering the question; he simply declined to answer it. The Applicant did not need any time to 'gather' information on his activities, all he needed to do was disclose, but he simply decided that he was not going to share that information. The notion that the Applicant was working on a further reply is a claim that is simply unworthy of belief. The Applicant's February 1, 2010 letter was provoked by the refusal letter and the refusal letter alone. The Applicant's January 26, 2010 letter was his complete response.

16 The facts also run directly contrary to the Applicant's self serving argument at paragraph 26 that he was 'clearly not attempting to avoid providing information'. Avoiding answering the question was precisely what the Applicant was doing. An application for leave based on argument unmoored from the actual facts does not give rise to any serious issues.

17 As for the fairness argument, the argument is also bereft of merit. The Officer was not required to warn the Applicant that his answer was deficient. It is manifestly deficient and the Applicant deliberately provided the same information that he had previously provided and by so doing, declined to answer the Officer's question. The Applicant was not complying with the requirement to answer questions. The Applicant had an opportunity to fill in the details and he declined to do so. The Officer was not required to inform the Applicant of the obvious, that his 'wasn't working' answer is insufficient. The step taken by the Officer in the face of the Applicant's refusal to answer was the only step open to the Officer and there was no need to warn the Applicant of the obvious outcome of his failure to answer the question (Moreau-Berube v New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 SCR 249).

18 As the Applicant's argument is predicated on his claim that his non-responsive response was 'not unreasonable or outside the realm of acceptability', the argument is unfounded: the Applicant's response merely repeated information the Officer already held.

19 As the Applicant provided further details on February 1, 2010 (which the Applicant claims he was working on providing all the while), the Applicant himself must be taken to be acknowledging that his January 26, 2010 response was deficient, which it clearly was. The Applicant's argument that he was unaware that further details were required does not easily co-exist with his evidence that he was all the while working on providing a more fulsome response to the Officer's inquiry.


• VI. Conclusion

20 It is trite law that on an application for judicial review this Court is not to substitute its decision for that of the first-instance tribunal. In any judicial review of the factual determinations, the primary question to be asked is whether the finding was one that could reasonably have been made on the evidence before the tribunal. If the finding is reasonable, it must stand and review must only take place where the findings of fact may be construed as perverse, capricious or made without regard to the material before it (Federal Courts Act, RSC 1985, c. F-7, at para 18.1(4)(d)).

21 The Applicant has not met this test. The Officer's determination that the Applicant had failed to satisfy her that he had experience in the intended occupations was reasonably open to the officer on the face of the record.

22 For all of the above reasons, the Applicant's application for judicial review is dismissed.

JUDGMENT

THIS COURT'S JUDGMENT is that the Applicant's application for judicial review be dismissed. No question for certification.

SHORE J.