Here is a fairly common occurrence: an applicant begin sponsored by a Canadian spouse tries to "beat" a late change of heart by a sponsor and flies to Canada to try to become a permanent resident, even after the local visa post tries to stop the process. Thai happens quite often. What is interesting is that CBSA at the Port of Entry does not appear to have been aware of the Embassy's attempts to stop the applicant from using her visa. In most cases, however, a visa post would enter information in the GCMS ( Global Case Management ) system to alert CBSA of the problem.
Canada (Minister of Public Safety and Emergency
Preparedness)
v. Abdallah
Between
The Minister of Public Safety and Emergency Preparedness,
Applicant, and
Tamam Abdallah, Respondent
[2013] F.C.J. No.
1134
2013 FC 1053
Docket: IMM-1818-13
Federal Court
Edmonton, Alberta
Zinn J.
Heard: October 15, 2013.
Judgment: October 21, 2013.
(39 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 ZINN J.:-- Tamam Abdallah, a citizen of
Lebanon, married Mohammad Ayache on January 9, 2009, in Lebanon, approximately
one month after they met. The marriage was arranged by their fathers who knew
each other. Following their wedding, Mr. Ayache returned to Canada but Ms.
Abdallah stayed in Lebanon and applied for permanent residence, sponsored by
Mr. Ayache. Ms. Abdallah was interviewed by staff at the Embassy in Damascus,
Syria, on June 9, 2009 and received her permanent resident visa late that day.
The Computer Assisted Immigration Processing System [CAIPS] has an entry dated
June 10, 2009, reflecting that she was handed the visa and Confirmation of
Permanent Residence. It is clear from the documents themselves that they were
dated June 9th and both the Immigration Division of the Immigration and Refugee
Board [ID] and the Immigration Appeal Division of the Immigration and Refugee
Board [IAD] accepted Ms. Abdallah's evidence that she picked up the documents late
on June 9, 2009.
2 On
June 8, 2009, the day before her interview with the Embassy, Ms. Abdallah and
Mr. Ayache had an argument during a telephone conversation which appears to
have led Mr. Ayache to reconsider his sponsorship of his wife. Unknown to Ms.
Abdallah, he sent a handwritten note by fax on June 18, 2009, to the Embassy
stating that he wished to withdraw his sponsorship of Ms. Abdallah.
·
I request to have my
application for Tamam Abdallah withdrawn. I no longer wish to sponsor her
because I feel she is using me, just to come to Canada. I have strong concern
that she will leave me once she arrives her [sic ].
3 That
same day, the Embassy tried to phone Ms. Abdallah but was unable to reach her.
Ms. Abdallah was aware of these missed calls which showed up on her call-display.
She testified that although she returned the calls, there was no answer or she
received merely a recorded message from the Embassy. Two days later, on June
20, 2009, Ms. Abdallah purchased an airline ticket to Canada, departing on June
22, 2009.
4 On
June 21, 2009, the Embassy phoned Ms. Abdallah and told her that her
sponsorship had been withdrawn and that she had to return her visa [the June 21
Call]. Ms. Abdallah testified on March 24, 2011 at the ID that she was asked
only to return the visa because it was cancelled but was not told why. When
confronted with her previous declaration attesting that she was told that the
sponsorship was withdrawn, she said "Well I've been in Canada for two
years now. I can't say for sure, no and I cannot deny that I have said
that." Her declaration, dated seven months before this testimony, on June
23, 2010, reads, in part:
·
On June 21, 2009 I received a
phone call from someone who said they were from the Canadian Embassy in
Damascus. They told me that I needed to return my immigration papers, which
were issued to me on June 10, 2009, as the sponsorship was withdrawn. I did not
know what to think about this information as was confused because I received my
permanent resident papers on June 9, 2009. Further, no one from my husband's
family had contacted me or any members of my family to tell me this and I
thought it must be an error or a prank.
·
I told the person on the other
end of the phone that I would return the papers. I subsequently discussed the
situation with my travel agent and he told me that if there was a problem with
my papers, I would not be allowed on the plane in Beirut. I therefore decided
not to go back to the Visa Office as in addition to the error regarding the
dates, my in-laws and my husband had not informed me that the sponsorship had
been withdrawn or that the relationship was over. I received absolutely no
indication from my husband or his family that he wanted to terminate our
relationship. I suspected that his parents might be interfering, but based upon
our relationship history I thought that Mohamed and I could convince them once
we were together. I therefore decided to come to Canada as soon as
possible.
5 In
her testimony before the IAD she is clear that she was told that
"Mohammed, who - who had sponsored me, cancelled his sponsorship."
6 Despite
her attestation that she had "received absolutely no indication from my
husband ... that he wanted to terminate our relationship" Ms. Abdallah
admitted that they argued during the June 8, 2009 telephone conversation and,
despite her efforts to reach him, that Mr. Ayache never spoke to her again.
This was a remarkable change in behaviour given her evidence that before the
argument they spoke every day or two.
7 Ms.
Aabdallah did not return the visa, as promised; rather, she flew to Canada on
June 22, 2009, and was granted permanent residence. She did not mention the
June 21 Call to the port of entry officer.
8 Ms.
Abdallah has not lived with Mr. Ayache since her arrival in Canada and they
were officially divorced on November 14, 2011. Furthermore, and despite her
saying otherwise to the visa officer on June 8, 2009, she now admits that she
never cohabitated or was intimate with Mr. Ayache.
9 Because
of Ms. Abdallah's failure to disclose the information imparted to her during
the June 21 Call, she was reported as being inadmissible to Canada for
misrepresentation pursuant to paragraph 40(1)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27, which
provides that "a permanent resident or 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."
10 The
ID found her to be inadmissible, as alleged by the Minister. In reaching that
conclusion, the Member found Ms. Abdallah not to be credible in her explanation
as to what she thought of the June 21 Call and why she failed to disclose it to
the port of entry officer:
·
I find Ms. Abdallah's evidence
about what she thought of the telephone call is not credible. In the
circumstances under which she had received the call, I do not believe she
thought it was an error or a prank. Although Mr. Ayache had not told her
directly that he was withdrawing his sponsorship, shortly before she received
the call from the Embassy Mr. Ayache and Ms. Abdullah [sic] had an argument
over the telephone. After that argument Mr. Ayache had refused to take her
calls or to call her back when requested by her family. Ms. Abdullah [sic] was
aware that the Embassy had been trying to reach her after her argument with Mr.
Ayache because she had observed the Embassy telephone number on her call
display on June 18, 2009.
·
Furthermore, when Ms. Abdallah
was interviewed by the immigration officer on December 14, 2009, Ms. Abdallah
stated that the last time she had spoken to her husband was on June 9, 2009.
When the officer asked why she came to Canada even though the relationship had
broken down, Ms. Abdallah said she thought if he saw her they could work it
out. That statement is not consistent with her claimed disbelief when the
Embassy advised her that Mr. Ayache wanted to withdraw his sponsorship.
11 On
appeal, the IAD overturned the inadmissibility finding. The IAD found that the
statement in the June 21 Call that the sponsorship had been withdrawn "was
not an accurate representation because the request to withdraw had not yet been
approved by [the Case Processing Centre]." Accordingly, the IAD held as
follows:
·
The duty of candour to disclose
the telephone call of June 21, 2009 to port of entry officials would exist if
the call from the Embassy could reasonably be characterized as notice to the
appellant that her sponsorship was withdrawn. The fact
that the officer referred to the sponsorship being 'withdrawn' does not make it
so and the June 21, 2009 reference to a withdrawal is an incorrect statement of
the sponsorship status at the time of that call.
·
The most accurate
characterization of the Embassy's June 21, 2009 telephone call is that it
conveyed to the appellant that there might be issues in her marital
relationship that needed to be resolved. (emphasis added)
12 The
IAD further, and in the alternative, found that the appeal ought to be allowed
on humanitarian and compassionate grounds [H&C considerations]. In so
holding, it held that "even if the appellant's non-disclosure at the port
of entry was found to be a misrepresentation, it would, in my view, be
relatively innocent given the circumstances in which she was informed of the
'withdrawal'."
13 For
the reasons that follow, this application is allowed.
Issues
14 The
Minister submits that:
·
1.
The IAD erred in its
interpretation of the law regarding the "duty of candour" of those
seeking entry into Canada, and specifically in its interpretation of the
exception described in Medel v Canada (Minister of
Employment and Immigration), [1990] 2 FC 345 (FCA) [Medel ];
·
2.
The IAD's application
of the exception in Medel was
unreasonable on the facts of this case;
·
3.
The IAD made
unreasonable findings of fact regarding Ms. Abdallah's subjective belief that
she was not withholding material information in failing to disclose the June 21
Call; and
·
4.
These unreasonable
findings of fact undermined the decision of the IAD to allow the appeal based
on H&C considerations.
Analysis
15 Foreign
nationals seeking to enter Canada have a positive duty of candour: Bodine v Canada (Minister of Citizenship and Immigration), 2008 FC 848 at paras 41-42. Subsection 16(1) of the Act provides
that "[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." (emphasis added)
16 Paragraph
40(1)(a) of the Act provides the consequences of a failure to be candid:
"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."
17 This
provision is drafted broadly and encompasses misrepresentations even if made by
a third party without the applicant's knowledge: LBJ v
Canada (Minister of Citizenship and Immigration), 2011
FC 942, at para 35. It also encompasses innocent failures to provide material
information: Baro v Canada (Minister of Citizenship and
Immigration), 2007 FC 1299 at para 15. In short, the
scope of this provision is very wide and any exception is to be interpreted
narrowly.
18 A
narrow exception to the general duty of candour was set out by the Appeal
Division of the Federal Court of Canada in Medel. In Medel, the
applicant had been sponsored by her husband for permanent residency. Before she
came to Canada, her husband withdrew his sponsorship and did not notify her of
the withdrawal. The Embassy sent her a telegram stating that she had to return
her visa to correct a clerical error before she could use it, implying that it
would be returned after the correction was made. In fact, the Embassy was
misrepresenting the real reason that the visa had to be returned (that her
husband had withdrawn sponsorship).
19 Several
months prior to receiving this telegram, the applicant had her visa checked by
the Canadian Consulate and was advised that her documents were in order. After
receiving the telegram, she had her uncle and a friend who were fluent in
English check over the visa and they also concluded that there were no defects
on its face. She was called again by the Embassy and notified that she would
not be able to use the visa in its current state and again instructed to return
it. She advised that she would return it. After a second consultation with her
uncle and friend, she decided that nothing was wrong with the visa and instead
of returning it, used it to travel to Canada. She did not inform the port of
entry officer about the telegram or the telephone call.
20 The
Court held that the applicant was subjectively unaware that she was withholding
information. Furthermore, having been told only that there was a clerical error, and having been advised by both
her family members and the Canadian Consulate that there were no errors in her
documents, this subjective unawareness was reasonable. She had no knowledge of
her husband's withdrawal of sponsorship. The Court also noted that had the Embassy
told the applicant of the real reason she had to return the visa, she may have
fallen within the scope of the misrepresentation provision, but since she was
misled, she subjectively believed she was not withholding any information.
21 The
"subjective unawareness" exception as set out in Medel has been interpreted narrowly since its
creation: See for example, Mohammed v Canada (Minister
of Citizenship & Immigration), [1997] 3 FC 299.
22 The
Minister submits that the IAD incorrectly interpreted the exception to the
general "duty of candour" set out in Medel. Specifically, the exception in Medel was not dependent on the Embassy providing an inaccurate reason for
returning the visa per se.
Rather, the Embassy tried to deceive the applicant and, when it was
independently verified that no defect existed, the applicant subjectively
believed that there was no material information to be withheld, and this belief
was reasonable.
23 The
Minister submits that by interpreting Medel as opening up an exception whenever there is any type of inaccuracy
in a communication from the Embassy to an applicant, the IAD committed an error
of law that is reviewable on a standard of correctness: Dunsmuir
v New Brunswick, 2008 SCC 9 [Dunsmuir ]. The IAD, it is submitted, essentially misunderstood the holding
of the Medel case.
24 I
agree.
25 The
IAD did correctly state that in order for the Medel exception to apply, an applicant must "honestly and
reasonably" believe that she is not withholding material information.
However, the IAD misinterpreted the significance of the inaccuracy of
statements made by the Embassy. The IAD held that the Embassy's reference to a
withdrawal in the June 21 Call "is an incorrect statement of the
sponsorship status at the time of that call," which negates the duty of
candour. That interpretation of Medel is misguided.
26 The
IAD incorrectly understood Medel
as saying that inaccurate statements by the Embassy make it objectively reasonable
to withhold information from port of entry officials. However, the inaccuracy
of the statement in Medel was
only significant because the statements were calculated to deceive and there
was independent confirmation by the Canadian Consulate and the applicant's
family members that nothing was wrong with the visa. It was this combination of
deception in failing to advise the applicant of the real reason the Embassy
wanted the visa returned -- namely the withdrawal of the sponsorship -- and
independent confirmation that made the applicant's belief that she was not
withholding any material information objectively reasonable. The inaccuracy of
the Embassy's statement has no significance to the subjective belief of the
applicant or the reasonableness of that belief in and of itself.
27 The
IAD concluded that Ms. Abdallah had not withheld any material information
because the statement made by the Embassy did not convey the fact that
sponsorship had not yet formally been withdrawn. However, the IAD came to this
conclusion prematurely by not determining how the inaccuracy of the Embassy's
statement would have affected the applicant's subjective belief of whether or
not she was withholding information that may have been material to the
determination of her application. The IAD therefore erred by not completing the
analysis.
28 The
Minister correctly points out that the true status of the sponsorship
withdrawal could not have affected Ms. Abdallah's subjective belief as to
whether or not she was withholding relevant information. Nor would it have
affected the reasonableness of that belief. Even if Ms. Abdallah disbelieved
that her sponsorship had been withdrawn, she knew or ought reasonably to have
known that such information (true or not) would be material to the
determination of her permanent resident application. She therefore had a duty
to disclose the fact that she had been told that sponsorship had been
withdrawn, regardless of the actual truth of that statement and regardless of
her belief as to its truth.
29 Apart
from the legal analysis, in circumstances where the applicant's husband has
stopped communicating with her despite her best efforts to reach him, where she
knows that the Embassy has been trying to reach her, and where she is told by the
Embassy in the June 21 Call that she must return the visa because her husband
has withdrawn the sponsorship (and she agrees to do so), it is quite simply
unreasonable for the IAD to conclude that the applicant's subjective belief was
merely that there "might be issues in her marital relationship."
30 Therefore,
I find that the IAD misapplied the facts to the test in Medel. Although the IAD found that Ms. Abdallah subjectively believed
that her sponsorship had not been withdrawn and that this belief was
objectively reasonable, these findings are irrelevant, even if true. What the
IAD had to find was whether or not she "reasonably believed that at the
border she was withholding nothing relevant to her admission:" Medel at para 12. Without question, information
related to the status of her sponsorship (whether it was true or not) was
material to her admission to Canada. Accordingly, the IAD did not apply the
legal test to the facts correctly.
31 The
IAD held that the appeal should be allowed not only because Ms. Abdallah's case
fell within the Medel exception,
but also on H&C considerations. Therefore, to succeed in setting the IAD
decision aside, the Minister must also show that its findings with respect to
H&C considerations were unreasonable. I find that the Minister has
discharged this burden.
32 Relying
on Deol v Canada (Minister of Citizenship and
Immigration), 2009 FC 990, wherein the Court set out
the factors referenced in Ribic v Canada (Minister of
Employment and Immigration) (IAB T84-9623) [Ribic ], the IAD held that the appeal should
be allowed on H&C considerations because:
·
1.
The misrepresentation
was "relatively innocent given the circumstances in which [Ms. Abdallah]
was informed of the 'withdrawal';"
·
2.
Ms. Abdallah had
established herself in Canada in terms of relationships, employment, and
community in that she furthered her education and volunteered in various
capacities and she has ties to her extended family in Canada having"lived
with her sister in law and family and cared for the family's children for
several years;" and
·
3.
Returning to Lebanon
now would not be returning her to the same situation as before since she made
significant life changes to come to Canada and her status as a divorcee would
cause hardship in terms of employment and social acceptance.
33 The
Minister takes issue with the way in which the factors were applied to the
facts of this case. Specifically, it is submitted that the IAD's finding that
the misrepresentation was "relatively innocent" was factually
inaccurate and coloured its assessment of the H&C considerations.
34 One
of the factors that must be considered in determining whether a removal order
should be stayed on H&C considerations is the "seriousness of the misrepresentation
and the circumstances surrounding it:" Deol at para 7. In its assessment, the IAD determined that the
misrepresentation fell on the low end of the spectrum and was "relatively
innocent given the circumstances in which she was informed of the
'withdrawal'." The IAD does not set out precisely what those
"circumstances" are that lead it to this conclusion. However, based
on the record before the Court, they include the following:
·
1.
She was aware for some
time that after their argument, her husband no longer communicated with
her;
·
2.
She was aware after the
argument that the Embassy had been trying to contact her; and
·
3.
In the June 21 Call,
she was told by the Embassy that her husband had withdrawn her sponsorship and
that she was to return her visa.
35 The
IAD seems to put considerable weight on the fact that the only source of
information as to the withdrawal of the sponsorship was from the Embassy and
not directly from Mr. Ayache. That fact, it is suggested, makes it reasonable
for her to think that her sponsorship had not been withdrawn. In my view, given
that it was the Embassy that had issued the visa and given that Mr. Ayache
refused to speak to Ms. Abdallah after their argument, the fact that he
communicated only with the provider of the visa, the Embassy, and not with Ms.
Abdallah, does not seem at all surprising.
36 I
have previously found that it was unreasonable for the IAD to conclude that no
misrepresentation was made. I further find it unreasonable to conclude that the
misrepresentation made was innocent. Whether accurate or not, Ms. Abdullah had
been told that the sponsorship had been withdrawn and that the visa was to be
returned. She knew that if she returned it she could not enter Canada. She knew
or ought to have known that if she informed the port of entry that she had been
told that the sponsorship had been withdrawn and that she had been asked and
consented to return the visa, it was likely that she would not be permitted to
enter Canada. Notwithstanding that knowledge, she boarded a plane and failed to
disclose very relevant facts that, had they been disclosed, may have resulted
in her being returned to Lebanon forthwith.
37 In
my view, the seriousness of the misrepresentation must reasonably be said to be
at the high end of the scale.
38 Additionally,
the IAD failed to consider one of the relevant factors referenced in Ribic, namely, whether the applicant is
remorseful. Given the IAD's mischaracterization of the misrepresentation and
its seriousness, and its failure to consider whether the applicant was
remorseful when weighing the other factors, it is unclear whether it would have
reached the same conclusion on the H&C considerations. It is not within the
scope of Dunsmuir for the Court
to do that weighing. That must be determined by the IAD after a full and
complete rehearing of Ms. Abdallah's appeal, or if the parties consent, based
on the record before this Court.
39 For
the reasons set out above, the application is allowed.
JUDGMENT
THIS COURT'S JUDGMENT is that this application is allowed, the decision of the IAD is set aside,
and the Respondent's appeal is to be re-determined by a different member of the
IAD.
ZINN J.
