STUDENT MISREPRESENTED BY FAILING TO DISCLOSE VISA REFUSAL

The case below is an excellent summary of the current state of affairs with regards to the interpretation of misrepresentation in the immigration process. In this case, a foreign student who applied for a Temporary Resident Visa (TRV) failed to disclose a prior refusal. The Federal Court held that the misrepresentation was material. Despite the fact that the applicant sought to blame his consultant, the court held that he was responsible for the contents of the application.

Goburdhun v. Canada (Minister of Citizenship and Immigration)

Between
Lochandath Goburdhun, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 1235

2013 FC 971

Docket IMM-674-13

 Federal Court
Edmonton, Alberta

Strickland J.

Heard: August 27, 2013.
Judgment: September 23, 2013.

(53 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     STRICKLAND J.:-- This is an application for judicial review of a decision of an officer of Citizenship and Immigration Canada (the Officer) denying the Applicant's application for a temporary resident visa and determining that the Applicant engaged in misrepresentation with the result, pursuant to subsection 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the IRPA), that he is inadmissible to Canada for a period of two years. The application is brought pursuant to subsection 72(1) of the IRPA.

Background

2     The Applicant is a citizen of Mauritius. He was granted a study permit for the period December 24, 2006 to January 31, 2008. This was renewed for the period January 4, 2008 to September 27, 2008 and he was issued a work permit on April 4, 2008, also valid to September 27, 2008 which permitted him to work up to 20 hours a week during regular academic sessions and full time during scheduled breaks. The work permit is referred to by Citizenship and Immigration Canada (CIC) as an off-campus work permit (OCWP). His study permit was again renewed for the period September 15, 2008 to April 30, 2009 and an OCWP on the same terms was issued on October 15, 2008 also valid to April 30, 2009. A final study permit and OCWP were issued on April 24, 2009 valid to May 16, 2012.

3     From January 2010 to December 2010, the Applicant attended the Northern Alberta Institute of Technology (NAIT) and successfully completed a full-time, one year Water and Waste Technician Program. While attending the NAIT, he held a part time practicum position at IVIS Inc., from May 2010 to September 2010, as permitted by the OCWP.

4     Upon graduation, the Applicant commenced full time employment with IVIS Inc., as of December 20, 2010 and continuing to September 2012. He was no longer a student and did not obtain an alternate work permit until June 1, 2012.

5     On November 3, 2011, the Applicant was refused a temporary resident visa by the CIC office in Los Angeles.

6     The Applicant applied for, and on June 1, 2012 was issued, a work permit valid to June 1, 2014, permitting the Applicant to work at IVIS Inc.

7     The Applicant again applied for a temporary residency visa on October 11, 2012 at the CIC Seattle office. In that application, in reply to the question "Have you ever been refused any kind of visa, admission, or been ordered to leave Canada or any other country." He responded "no" and did not disclose the November 3, 2011 temporary residency visa refusal in Los Angeles.

8     On October 31, 2012, the Officer sent the Applicant a "fairness letter" pointing out that the Applicant had failed to disclose the prior temporary residency visa refusal in Los Angeles. This stated, in part:

·        It is difficult to escape the conclusion that your failure to disclose the previous refused TRV application in your application to this office was a deliberate attempt to conceal both the refusals themselves and the reasons for them. Immigration records in Canada together with the information and evidence submitted in your application indicate that you engaged in unauthorized full-time employment whilst you were the holder of an off-campus work permit. The record shows that you were requested to surrender the document but failed to comply. This was the primary reason for the refusal of your application by the Los Angeles office. Your failure to disclose the refusal of your application in that office, therefore, could have induced an error in the administration of the Act and regulations. 

9     The letter also referred to subsection 40(1)(a) of the IRPA which states that a foreign national is inadmissible due to misrepresentation as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. The Applicant was given an opportunity to provide an explanation or documentary evidence to address this issue.

10     In response, the Applicant submitted a Statutory Declaration in which he stated that a clerical error had been made by the immigration consultant who helped him with his application with the result that he had answered "no" to the question, "Have you ever been refused any kind of visa, admission, or been ordered to leave Canada or any other country?" when the correct answer was "yes". He stated that this was not an intentional mistake, and, that he had never engaged in any unauthorized full-time employment while he was the holder of an OCWP and had never received any request from any immigration office to surrender any document. He attached all of the study and work permits he had received.

11     The Applicant also submitted a statutory declaration by Mr. Randy McDonald who identified himself as an administrative assistant at Canwrx Group Ltd., the immigration consultant that had acted as the Applicant's representative in making the October 2012 temporary residency visa application. Mr. McDonald confirmed that he had made the clerical error described above.

12     By letter dated January 8, 2013, the Officer advised the Applicant that he did not meet the requirements for a temporary resident visa.

Decision Under Review

13     In the January 8, 2013 letter, the Officer stated that he was not satisfied that the Applicant met the requirements of the IRPA and the Immigration and Refugee Protection Regulations, SOR/2002-22 (the IRPA Regulations) and that the Officer was, therefore, refusing his application.

14     The basis for the refusal was that the Officer was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary resident as he had contravened the conditions of admission on a previous stay in Canada and as he had not answered all of the questions in his application truthfully as required by subsection 16(1) of the IRPA. Specifically, the Applicant had denied previously being refused a visa when, in fact, he had been refused by the CIC Los Angeles office. Further, that the Applicant had denied engaging in unauthorized employment whereas the record and his own application indicated otherwise. The letter also stated that the Applicant had no authority to work after he completed his studies at the NAIT. As it had been determined that the Applicant had engaged in misrepresentation pursuant to subsection 40(1)(a) of the IPRA, the Applicant was inadmissible to Canada for a period of two years.

Applicable Law and Policy

15     The relevant provisions of the IRPA are as follows:

PART 1

IMMIGRATION TO CANADA

DIVISION 1 REQUIREMENTS AND SELECTION

·        Requirements

·        11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 

·        [...] 

·        Obligation -- answer

·        Truthfully

·        16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. 

·        [...] 

·        Misrepresentation

·        40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation 

·        (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; and 

[...]

* * *

PARTIE 1

IMMIGRATION AU CANADA

SECTION 1

FORMALITÉS ET SÉLECTION

·        Formalités

·        11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi. 

·        [...] 

·        Obligation du

·        Demandeur

·        16. (1) L'auteur d'une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, 

·        [...] 

·        Fausses déclarations

·        40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants : 

·        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; 

[...]

16     The relevant provisions of the IRPA Regulations state:

PART 9

TEMPORARY RESIDENTS

DIVISION 1

TEMPORARY RESIDENT VISA

·        179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national 

·        (a) 

has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class; 

·        (b) 

will leave Canada by the end of the period authorized for their stay under Division 2; 

·        (c) 

holds a passport or other document that they may use to enter the country that issued it or another country; 

·        (d) 

meets the requirements applicable to that class; 

·        (e) 

is not inadmissible; and 

·        (f) 

meets the requirements of subsections 30(2) and (3), if they must submit to a medical examination under paragraph 16(2)(b) of the Act. 

* * *

PARTIE 9

RÉSIDENTS TEMPORAIRES

SECTION 1

VISA DE RÉSIDENT TEMPORAIRE

·        179. L'agent délivre un visa de résident temporaire à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis: 

·        a) 

l'étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants; 

·        b) 

il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2; 

·        c) 

il est titulaire d'un passeport ou autre document qui lui permet d'entrer dans le pays qui l'a délivré ou dans un autre pays; 

·        d) 

il se conforme aux exigences applicables à cette catégorie; 

·        e) 

il n'est pas interdit de territoire; 

·        f) 

s'il est tenu de se soumettre à une visite médicale en application du paragraphe 16(2) de la Loi, il satisfait aux exigences prévues aux paragraphes 30(2) et (3). 

17     CIC has also produced a policy document entitled ENF 2 - Evaluating Inadmissibility (ENF 2) which is intended to assist visa offices in assessing misrepresentation. While such guidelines or operational manuals do not have the force of law, they have been recognized by this Court as valuable guidelines to immigration officers in carrying out their duties (Canada (Minister of Public Safety and Emergency Preparedness) v Martinez-Brito, 2012 FC 438 at para 46; Baker v Canada (Minister of Citizenship and Immigration), [1991] 2 S.C.R. 817 [Baker]; Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at para 85).

18     ENF 2 states that the purpose of the misrepresentation provisions is to ensure that applicants provide complete, honest and truthful information in every manner when applying for entry into Canada (section 9.1) and that persons who misrepresent or withhold material facts, either directly or indirectly, relating to a relevant matter that induces or could induce an error in the administration of the Act are inadmissible to Canada pursuant to subsection 40(1)(a) of the IRPA. Misrepresentation and withholding are defined as direct and indirect misrepresentation (section 9.2). The document also describes the principles applicable to relevancy as well as materiality and provides examples of these (section 9.4). It also addresses errors in the administration of the IRPA (section 9.5).

Issues

19     I would frame the issue in this matter as being whether it was reasonable for the Officer to conclude that there was a material misrepresentation.

Standard of Review

20     The majority of the Supreme Court has held that "[a]n exhaustive analysis is not required in every case to determine the proper standard of review." Courts must first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a decision-maker with regard to a particular category of question (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras 57 and 62 [Dunsmuir]; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 53 [Khosa]).

21     This Court has previously held that the standard of review to be applied when determining whether an immigration officer made a reviewable error in concluding that an applicant made a material misrepresentation pursuant to subsection 40(1)(a) of the IRPA is reasonableness. Misrepresentation is an issue of mixed fact and law and is therefore reviewable on the reasonableness standard (Oloumi v Canada (Minister of Citizenship and Immigration), 2012 FC 428 at para 12 [Oloumi]; Karami v Canada (Minister of Citizenship and Immigration), 2009 FC 788 at para 14).

22     When reviewing a decision on the standard of reasonableness, the analysis will be concerned with "the existence of justification, transparency and intelligibility of the decision-making process and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law" (Dunsmuir, above, at para 47; Khosa, above at para 59).

Positions of the Parties

The Applicant

23     The Applicant's position is that there was no misrepresentation but, even if there was, it was not material.

24     The Applicant submits that he brought the error to the attention of the immigration consultant who was assisting him and that he believed that the error would be corrected before the consultant submitted the application. He was not dishonest and did not knowingly misrepresent his immigration history. He reasonably and honestly believed at the time the application was made that he was not withholding material information. In this regard he relies on Medel v Canada, [1990] F.C.J. No. 318 (CA)(QL) [Medel] and distinguishes Oloumi, above, and Haque v Canada (Minister of Citizenship and Immigration), 2011 FC 315 [Haque] on their facts. He also submits that he responded to the fairness letter in an effort to explain the error and provided copies of his study visas and his work permits.

25     Further, the Applicant submits that only if information affects the process undertaken or the final decision will it be considered to be material (ENF 2; Ali v Canada (Minister of Citizenship and Immigration), 2008 FC 166 [Ali]). Here the answer to the question of whether he had previously been denied a visa was not material to the process because the application was complete and could be processed regardless of the answer provided. Nor did his answer put into doubt other important information about himself.

The Respondent

26     The Respondent submits that the Applicant's failure to disclose the previous temporary resident visa application constituted a material misrepresentation.

27     The Respondent refers to the requirements of the IRPA, the IRPA Regulations as well as ENF 2 and concludes that the Officer properly applied these provisions which required the Applicant to provide complete and truthful information. The failure to disclose the previous temporary residency visa refusal was a relevant matter to weigh when considering the Applicant's subsequent application and could have induced an error in the administration of the IRPA. Accordingly, the failure to disclose this matter renders the Applicant inadmissible by virtue of section 40 of the IRPA and the Decision is therefore, reasonable. The Respondent relies on Oloumi and Haque, both above, in support of its position.

28     The Respondent submits that the Applicant was aware of the error in his application and, while he may have brought this to the attention of his immigration consultant, he himself signed and declared the application to contain truthful answers. Accordingly, this error was not beyond his control, he was alive to it and could and should have reviewed the application prior to signing it to ensure that the error had been rectified and that the application was accurate. Therefore, the Applicant cannot now claim that he honestly and reasonably believed in the veracity of the answers (Oloumi, above, Khorasgani v Canada (Minister of Citizenship and Immigration), 2012 FC 1177 at paras 14-18). The Respondent submits that the Applicant's reliance on Medel, above is misplaced in the circumstances of this case.

29     Further, in response to the fairness letter, the Applicant provided a statutory declaration stating that he had never engaged in any unauthorized full time employment while a holder of an OCWP and that he had never received a request from an immigration officer to surrender his OCWP. The Officer examined the file and determined that this contradicted the Applicant's own application, the CIC record and other evidence. Accordingly, it was open for the Officer to conclude that the Applicant had continued to be dishonest. This indicated a pattern of providing untruthful information in breach of the Applicant's statutory duty of candour and therefore justified the Officer's decision.

Analysis

30     In Oloumi, above, Justice Tremblay-Lamar describes general principles arising from this Court's treatment of section 40 of the IRPA which are summarized below together with other such principles arising from the jurisprudence:

·        - 

Section 40 is to be given a broad interpretation in order to promote its underlying purpose (Khan v Canada (Minister of Citizenship and Immigration), 2008 FC 512 at para 25 [Khan]); 

·        - 

Section 40 is broadly worded to encompasses misrepresentations even if made by another party, including an immigration consultant, without the knowledge of the applicant (Jiang v Canada (Minister of Citizenship and Immigration), 2011 FC 942 at para 35 [Jiang]; Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at paras 55-56 [Wang]); 

·        - 

The exception to this rule is narrow and applies only to truly extraordinary circumstances where an applicant honestly and reasonably believed that they were not misrepresenting a material fact and knowledge of the misrepresentation was beyond the applicant's control (Medel, above); 

·        - 

The objective of section 40 is to deter misrepresentation and maintain the integrity of the immigration process. To accomplish this, the onus is placed on the applicant to ensure the completeness and accuracy of their application (Jiang, above, at para 35;Wang, above, at paras 55-56); 

·        - 

An applicant has a duty of candour to provide complete, honest and truthful information in every manner when applying for entry into Canada (Bodine v Canada (Minister of Citizenship and Immigration), 2008 FC 848 at para 41; Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at para 15); 

·        - 

As the applicant is responsible for the content of an application which they sign, the applicant's belief that he or she was not misrepresenting a material fact is not reasonable where they fail to review their application and ensure the completeness and veracity of the document before signing it (Haque, above, at para 16; Cao v Canada (Minister of Citizenship and Immigration), 2010 FC 450 at para 31 [Cao]);

·        - 

In determining whether a misrepresentation is material, regard must be had for the wording of the provision and its underlying purpose (Oloumi, above, at para 22); 

·        - 

A misrepresentation need not be decisive or determinative. It is material if it is important enough to affect the process (Oloumi, above, at para 25); 

·        - 

An applicant may not take advantage of the fact that the misrepresentation is caught by the immigration authorities before the final assessment of the application. The materiality analysis is not limited to a particular point in time in the processing of the application. (Haque, above, at paras 12 and 17; Khan, above, at paras 25, 27 and 29; Shahin v Canada (Minister of Citizenship and Immigration), 2012 FC 423 at para 29 [Shahin]); 

31     Here, the Applicant submits that he had no knowledge of the misrepresentation which was caused by his immigration consultant's failure to correct a clerical error. The Applicants submits that he instructed the consultant to change the answer of "no" to "yes" in response to the question "Have you ever been refused any kind of visa, admission or been ordered to leave Canada or another country?"However, that the consultant failed to do so before submitting the application.

32     As noted above, subsection 40(1)(a) is broadly worded as to include misrepresentations even if made by another party without the knowledge of the applicant, the general rule being that a misrepresentation can occur without the applicant's knowledge (Jiang, above, at para 35; Cao; above, at para 31; Haque, above, at para 15;Wang, above, at paras 55-56; Shahin, above, at para 26).

33     While an exception to this principle arises where an applicant can show that he or she honestly and reasonably believed that they were not withholding material information (Medel, above), this exception is narrow. As the court stated in Oloumi, above:

·        [35] Despite being frequently cited, the "exception" referred to in this passage has received limited application. Its originating case, Medel, above, involved an unusual set of facts: the applicant was being sponsored by her husband, but unbeknownst to her the husband withdrew his sponsorship. Canadian officials then misled the applicant by asking her to return the visa because they claimed it contained an error. They implied it would be returned to her, corrected. The applicant had English-speaking relatives inspect the visa and, after they assured her that nothing was wrong with it, she used it to enter Canada. The Immigration Appeal Board found her to be a person described in section 27(1)(e) of the former Immigration Act, 1976, SC 1976-77, c 52 [now R.S.C. 1985, c I-2)], i.e. that she had been "granted landing... by reason of any fraudulent or improper means". This finding was set aside by the Federal Court of Appeal because the applicant had "reasonably believed" that she was not withholding information relevant to her admission. 

·        [36] When considered within its factual context, therefore, the exception in Medel is relatively narrow. As Justice MacKay noted while distinguishing the case before him in Mohammed v Canada (Minister of Citizenship & Immigration), 1997 CanLII 5084 (FC), [1997] 3 F.C. 299: 

·        41 The present circumstances may also be distinguished from those in Medel on the basis that the information which the applicant failed to disclose was not information regarding which he was truly subjectively unaware. The applicant in the present case was not unaware that he was married. Nor was it information, as in Medel, the knowledge of which was beyond his control. This was not information which had been concealed from him or about which he had been misled by Embassy officials. The applicant's alleged ignorance regarding the requirement to report such a material change in his marital status and his inability to communicate this information to an immigration officer upon arrival does not, in my opinion, constitute "subjective unawareness" of the material information as contemplated in Medel. 

·        Furthermore, I emphasize that a determinative factor in the Medel case was that the applicant had reasonably believed that she was not withholding information from Canadian authorities. In contrast, in the case before this Court the applicants did not act reasonably -- the principal applicant failed to review his application to ensure its accuracy. 

34     In Haque, above, the applicants therein similarly argued that the misrepresentations were not intentional and that it was their consultant who erred in filling out the application. Justice Mosley rejected this argument and stated the following:

·        [15] [...] Nonetheless, he signed the application and so cannot be absolved of his personal duty to ensure the information he provided was true and complete. This was expressed succinctly by Justice Robert Mainville at para 31 of Cao, supra: 

·        The Applicant signed her temporary residence application and consequently must be held personally accountable for the information provided in that application. It is as simple as that. 

35     The present case is also factually very similar to Diwalpitiye v Canada (Minister of Citizenship and Immigration), 2012 FC 885 [Diwalpitiye]. The applicant therein indicated on his application form that he had never applied for, or been refused, immigration status in Canada. When the officer raised this as a concern in a fairness letter, the applicant responded by explaining that he had previously applied for a temporary resident visa, which was refused, but a subsequent application was successful. While he admitted this error in completing the application form, he requested that his application be processed because the error was merely an oversight. Justice Rennie found that the applicant had not persuaded the Court that it was unreasonable for the officer to find this to be a material misrepresentation.

36     In my view, the Applicant in this case clearly made a misrepresentation by failing to disclose the prior CIC Los Angeles refusal to issue a temporary residency visa in his October 2012 application. He was aware of the error in his application and was responsible for ensuring that, when submitted, his application was accurate and truthful. However, he failed to review the application before it was submitted. Further, the fact of the prior refusal and of the identified clerical error in his application and whether or not it had been corrected was information that was within his control. The Applicant therefore failed to demonstrate that he honestly and reasonably believed that he was not withholding potentially material information. This situation does not, therefore, fall within the narrow exception found in Medel, above. It was reasonable for the Officer to conclude that the Applicant had not answered all of the questions in his application truthfully as required by subsection 16(1) of the IRPA and had misrepresented that fact.

37     This leaves only the question of whether the misrepresentation was material.

38     Subsection 40(1)(a) of the IRPA states that a foreign national is inadmissible for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. ENF 2 gives as an example of a situation constituting misrepresentation, one where an applicant fails to disclose that they recently applied for a visa to Canada.

39     As noted above, in determining whether a misrepresentation is material, regard must be had for the wording of the provision and its underlying purpose. To be material, a misrepresentation need not be decisive or determinative. It will be material if it is important enough to affect the process. The wording of section 40 confirms that a misrepresentation does not actually have to induce an error, it is enough that it could do so (IRPA, subsection 40(1)(a); Oloumi, above, at paras 22 and 25; Haque, above, at para 11; Mai v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 101 at para 18; Nazim v Canada (Minister of Citizenship and Immigration), 2009 FC 471)).

40     In Haque, above, the applicant failed to disclose that he had formerly lived and studied in the United States and omitted or misrepresented details with respect to his place of residence, education and employment history. The deciding officer discovered the omission upon a review of CIC's records. This Court held that the withheld information was material to the application as, without it, a visa could have been issued to the applicant without the required police and conduct certificates from the United States, thereby precluding a necessary investigation and inducing an error in the administration of the IRPA.

41     In Oloumi, above, a fraudulent English test was submitted as part of an application for permanent residence in the Federal Skilled Worker class. This Court held that the misrepresented fact was material because federal skilled workers must demonstrate language proficiency to be accepted. The false document could have induced an error in the administration of the IRPA because it could have been relied upon by a decision-maker to conclude that the applicant had demonstrated language proficiency.

42     In the present case, the Respondent submits that the Officer could have been prevented from undertaking an appropriate investigation and verification process and, therefore, could have erroneously determined that the Applicant met all the requirements of the IRPA had the Officer relied on the Applicants denial of a prior visa refusal. The misrepresentation was therefore material as it could have affected the process.

43     In my view, the misrepresentation in this case was material.

44     The Officer does not specify what investigation and verification process potentially could have been bypassed as a result of the misrepresentation. However, section 9.5 of ENF 2 states that officers are required to be satisfied that a person meets the requirements of the IRPA and is not inadmissible. To make these determinations officers decide what procedures, including investigations, interviews and verifications are required. Some procedures are required by law, others are administrative. Given this discretion, and although it would have been preferable for the Officer to have been more specific, the failure to do so is not fatal. In any event, had he relied solely on the application which did not disclose the prior visa refusal, this could have induced an error in the administration of the IRPA as he could have erroneously issued a visa to the Applicant.

45     I also cannot accept the Applicant's submission made when appearing before me that, because CIC has access to the whole of his immigration history, an incorrect answer in his application is not material. His submission was that the incorrect answer did not affect the process because it was caught by CIC before a decision was rendered. This reasoning is contrary to the object, intent and provisions of the IRPA which require applicants for temporary residency visas to answer all questions truthfully. The penalty for failing to do so is that an applicant may be found to be inadmissible to Canada if the misrepresentation induces or could induce an error in the administration of the Act. It matters not that CIC may have the ability to catch, or catches, the misrepresentation. What matters is whether the misrepresentation induced or could have induced such an error. Accordingly, applicants who take the risk of making a misrepresentation in their application in the hope that they will not be caught but, if they are, that they can escape penalty on the premise of materiality, do so at their peril.

46     Nor was the misrepresentation cured by the Applicant's response to the fairness letter. In this regard Justice Mosley in Haque, above, stated that "this Court has rejected the argument that paragraph 40(1)(a) is inapplicable where the misrepresentation is "corrected": (Khan v. Canada (Minister of Citizenship and Immigration), 2008 FC 512 at paras 25, 27 and 29)."

47     At the hearing before me the Applicant also submitted that because, between the time when the temporary residency visa was refused in Los Angeles and the time of the refusal in Seattle he was issued a work permit, this rendered the first refusal immaterial as the immigration authorities were clearly satisfied with his subsequent application. I cannot accept this reasoning. First, the refused applications were both for temporary residency visas, the work permit was a distinct application. Secondly, it is not known if the Applicant was requested to or did disclose the refused temporary residency when he applied for the work permit as neither the Applicant nor the Respondent led evidence on this point. And finally, the question asked on the temporary visa application was whether the Applicant had ever been refused any kind of visa, thus it was incumbent upon him to disclose the prior refusal regardless of the subsequent issuance of the work permit.

48     In addition to the failure to disclose the refusal, which was his statutory and duty of candour, the Applicant stated in his Statutory Declaration that he had never engaged in any unauthorized full time employment while holding an OCWP. However, this is contradicted by Attachment A of his October 11, 2012 application and the September 7, 2012 letter from IVIS Inc., which states that when the Applicant completed his education at NAIT, he started full time work on December 20, 2012 with IVIS Inc. This means that from December 20, 2010 until he was issued a work permit on June 1, 2012, he was working full time while not a student and holding only an OCWP thereby contravening the conditions of his prior admission to Canada. Accordingly, the Officer's finding that he was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary residence based on the prior contravention was reasonable..

49     It should be noted, however, that the Officer's assertion in the fairness letter that the Applicant was requested to surrender his OCWP but failed to comply and that this was the primary reason for the refusal of his Los Angeles application, is not supported by the CTR.

50     The Respondent filed an affidavit of Ms. Leah Gabretensae, Admissions Unit Supervisor at CIC in response to the subject application. It attaches as an exhibit an email dated July 12, 2013 from Ms. Gabretensae to counsel for the Respondent stating that she had spoken to Rachel, no last name, at Norquest who confirmed that the Applicant was enrolled there from 2007 to April 24, 2009 taking upgrading courses with the intent of then entering the practical nursing program. He did not continue there beyond April 2009. The affidavit also attaches as an exhibit an email dated July 13, 2013 from Ms. Kathy Galloway to Ms. Gabretensae and counsel for the Respondent stating that NAIT had checked its records and advised her that the Applicant began his studies there in January 2010 and completed the one year Water and Waste Management Technician program in December 2010 with honours. The affidavit goes on to state that the designated institutional representative (DIR) "at the post-secondary educational institution where the Applicant was enrolled at that time [when the April 24, 2009 OCWP was issued] would have informed the Applicant that the Applicant was required to surrender the Work Permit to the nearest CIC office once he no longer met the eligibility criteria". The affidavit states that it (the affidavit) was made for the purpose of opposing the Applicant's application for judicial review.

51     It appears that the purpose of the affidavit was to bolster the CTR which contains no record supporting the finding by the Officer that the Applicant was actually asked, but refused, to surrender his OCWP nor explaining why he was not in compliance with the OCWP at some time before a February 1, 2012 GMCS entry which stated this to be the case but at which time the Applicant was enrolled full time at NAIT. The affidavit evidence as to the general responsibilities of DIR's in administering OCWP's, including informing students of the surrender requirements, is not evidence that the Applicant was requested to and refused to surrender same. Moreover, it is trite law that new evidence is only admissible on judicial review to resolve issues of procedural fairness or jurisdiction which exceptions have no application in this case (Oloumi, above, at para 10; Alabadleh v Canada (Minister of Citizenship and Immigration), 2006 FC 716 at para 6; Albajjali v Canada (Minister of Citizenship and Immigration), 2013 FC 660 at para 12).

52     However, even in the absence of an evidentiary basis for the assertion that the Applicant was requested to and refused to surrender the OCWP and that this was the primary reason for the Los Angeles refusal, there was, as set out above, a sufficient evidentiary basis in the record before the Officer to support the fact that the Applicant worked full time while holding only a OCWP, after graduation from NAIT, from December 20, 2010 to June 1, 2012.

53     The Applicant contravened the conditions of his admission to Canada on a prior occasion by working full time when not authorized to do so and he misrepresented this in his statutory declaration. He also misrepresented his prior temporary resident visa refusal. In my view, both misrepresentations were material. Accordingly, the Officer's finding that he was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary resident and that he had made material misrepresentations pursuant to subsection 40(1)(a) of the IRPA was reasonable and defensible in respect to the facts and the law.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question of general importance for certification was proposed and none arises.

STRICKLAND J.

RISK OF TRAVEL DUE TO ILL HEALTH MUST BE CONSIDERED

This is a very interesting and unusual case. Under normal circumstances, the issuance of a TRP is highly discretionary, bu tin this case, there are appears to have been some reasonable expectation that it would be issued to the applicants, based on the risk of travel posed by the ill health of one spouse. In addition, the reasons for refusal appear to have been unclear because the applicants obtained a TRP on a prior occasion on the same grounds. The officer erred in not giving sufficient reasons for the refusal, which seems to have been at odds with the recommendation of another officer involved in the case. This case, however, appears to be quite unique in its facts.

Beyer v. Canada (Minister of Citizenship and Immigration)

Between
Martin Gottfrie Beyer and Malle Reintamm Beyer, Applicants,and
The Minister of Citizenship and Immigration, Respondent

[2009] F.C.J. No. 936
[2009] A.C.F. no 936
2009 FC 823Docket IMM-5589-08

Federal CourtQuébec, Quebec
Teitelbaum D.J.
Heard: July 15, 2009.
Judgment: August 12, 2009.
(84 paras.)


REASONS FOR JUDGMENT AND JUDGMENT

1 TEITELBAUM D.J.:-- This is a judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of the decision of Citizenship and Immigration Canada officer Huguette Samson (also referred to as "the Minister's delegate") dated November 26, 2008, refusing to extend a temporary resident permit (TRP) on the basis of insufficient grounds.
2 The applicants are of Swedish origin and are both 79 years old.
3 The applicant Malle Reintamm Beyer (Ms. Beyer) arrived in Canada in April 2001, and the applicant Martin Gottfrie Beyer (Mr. Beyer) arrived in May 2001.
4 Ms. Beyer is morbidly obese and is bedridden all day. According to her physician, her movements remain very limited and even walking poses a major risk of falling. She does not leave her home. Her other medical conditions have been stable since the last medical report submitted to the respondent. In addition, Ms. Beyer requires constant assistance from her husband, Mr. Beyer.
5 Ms. Beyer has a medical condition that makes any travel or transportation hazardous. She weighs 130-140 kilograms, has been bedridden for roughly six years, and her physician, Dr. Poupart, makes house calls to treat her. Mr. Beyer feeds her, washes her and attends to her needs, all while she remains in bed.
6 The applicants have health insurance, which covers the medical costs.
7 The applicants are completely independent financially and more than able to meet their needs. They bought their residence in 1993. The residence, a vacation home, is located in St-Urbain. The applicants emphasize that they did not buy the residence with the aim of settling permanently in Canada.
8 On February 27, 2006, the applicants submitted a request to the respondent for permanent resident status based on humanitarian and compassionate considerations under subsection 25(1) of the IRPA, in light of Ms. Beyer's health. The request was denied. Instead of granting the applicants permanent resident status, the respondent issued a TRP valid from March 21, 2006, to March 21, 2008.
9 It appears that Ms. Samson, the officer, issued a two-year TRP in March 2006 to enable the applicants to prepare to leave the country. However, the applicants vigorously deny this and add that they were never notified of this condition, which does not appear in any of the official documents adduced in evidence.
10 When their TRPs expired, the applicants filed a new request, dated April 9, 2008, on the same grounds as the previous request, since there had been no significant change other than a deterioration of Ms. Beyer's mobility.
11 The applicants argue that, in theory, such travel would be very difficult and expensive, would require very complex organization for a roughly 15-hour trip from the Charlevoix region to Sweden, and would cost approximately $60,000, all because of Ms. Beyer's serious physical condition. Only one air ambulance company offers this service in Canada. It has not been verified recently whether Ms. Beyer's medical condition could even allow her to make such a long trip. Her condition has deteriorated. Moreover, Dr. Poupart's medical opinion dated July 15, 2004, stated that air travel would be very difficult for her.
12 The impugned decision is contained in a three-paragraph letter that the applicants received and which reads as follows:
[TRANSLATION]
This is further to your request dated April 9, 2008, for an extension of your temporary resident permit status.
Your case has been considered in order to determine the possibility of extending your temporary resident permit. After careful and empathetic consideration, it has been determined that there are insufficient grounds to extend the permit in your case.
Our records indicate that your authorization to remain in Canada is valid until March 21, 2008. If you leave Canada voluntarily, please contact the officer responsible for your file at the Canada Border Services Agency in order to notify him or her of the arrangements that you will be making for your departure.
13 After filing this application for judicial review, the applicants also obtained certified copies of the record prepared in accordance with section 17 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22. The record is essentially a summary of the facts or a history of the applicants' matter.
14 The provisions relevant to this case are as follows:
Application for Judicial Review
72.
(1) Judicial review by the Federal Court with respect to any matter -- a decision, determination or order made, a measure taken or a question raised -- under this Act is commenced by making an application for leave to the Court.
Application
(2)
The following provisions govern an application under subsection (1):
(a)
the application may not be made until any right of appeal that may be provided by this Act is exhausted;
(b)
subject to paragraph 169(f), notice of the application shall be served on the other party and the application shall be filed in the Registry of the Federal Court ("the Court") within 15 days, in the case of a matter arising in Canada, or within 60 days, in the case of a matter arising outside Canada, after the day on which the applicant is notified of or otherwise becomes aware of the matter;
(c)
a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice;
(d)
a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance; and
(e)
no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.
2001, c. 27, s. 72; 2002, c. 8, s. 194
Temporary Resident Permit
24.
(1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
Exception
(2)
A foreign national referred to in subsection (1) to whom an officer issues a temporary resident permit outside Canada does not become a temporary resident until they have been examined upon arrival in Canada.
Instructions of Minister
(3)
In applying subsection (1), the officer shall act in accordance with any instructions that the Minister may make.
* * *
Demande d'autorisation
72.
(1) Le contrôle judiciaire par la Cour fédérale de toute mesure -- décision, ordonnance, question ou affaire -- prise dans le cadre de la présente loi est subordonné au dépôt d'une demande d'autorisation.
Application
(2)
Les dispositions suivantes s'appliquent à la demande d'autorisation :
a)
elle ne peut être présentée tant que les voies d'appel ne sont pas épuisées;
b)
elle doit être signifiée à l'autre partie puis déposée au greffe de la Cour fédérale -- la Cour -- dans les quinze ou soixante jours, selon que la mesure attaquée a été rendue au Canada ou non, suivant, sous réserve de l'alinéa 169f), la date où le demandeur en est avisé ou en a eu connaissance;
c)
le délai peut toutefois être prorogé, pour motifs valables, par un juge de la Cour;
d)
il est statué sur la demande à bref délai et selon la procédure sommaire et, sauf autorisation d'un juge de la Cour, sans comparution en personne;
e)
le jugement sur la demande et toute décision interlocutoire ne sont pas susceptibles d'appel.
2001, ch. 27, art. 72; 2002, ch. 8, art. 194.
Permis de séjour temporaire
24.
(1) Devient résident temporaire l'étranger, dont l'agent estime qu'il est interdit de territoire ou ne se conforme pas à la présente loi, à qui il délivre, s'il estime que les circonstances le justifient, un permis de séjour temporaire -- titre révocable en tout temps.
Cas particulier
(2)
L'étranger visé au paragraphe (1) à qui l'agent délivre hors du Canada un permis de séjour temporaire ne devient résident temporaire qu'après s'être soumis au contrôle à son arrivée au Canada.
Instructions
(3)
L'agent est tenu de se conformer aux instructions que le ministre peut donner pour l'application du paragraphe (1).
15 The applicants submit that the standard of review that applies to this case is patent unreasonableness, as held in Ramzi Kamel Farhat v. Minister of Citizenship and Immigration, 2006 FC 1275.
16 The applicants submit that the decision of officer Huguette Samson, dated November 26, 2008, is patently unreasonable on its face and arbitrary because Ms. Beyer's state of health has either remained the same or deteriorated. The applicants submit that Ms. Samson, who was in charge of examining the TRP request, clearly erred in failing to take into account the facts and documents attached to the letters submitted with the request.
17 The applicants allege that on November 10, 2008, Éric Lacombe, an employee of Citizenship and Immigration Canada, after examining the file, recommended that a TRP be issued to the applicant Mr. Beyer. Mr. Lacombe cited Ms. Beyer's state of health and her lack of mobility for travel. He claimed that the risks would be reduced if the Canada Border Services Agency (CBSA) did not carry out the removal. Mr. Lacombe noted that the applicants have medical insurance from the United Nations, which covers all medical expenses, including medication and hospital costs. According to Mr. Lacombe, the insurance proves that the applicants do not depend directly on the Canadian government to cover their medical expenses. Mr. Lacombe submitted that the applicants pose no risk to Canadian society and have no criminal record. Moreover, the applicants are not eligible for a restoration of their status. Mr. Lacombe pointed out that the applicants have owned a house in the La Malbaie area since 1993 and contribute to their area's economy. The applicants have no financial debts to Canada and are fully able to meet their own needs. Mr. Lacombe submitted that the applicants' situation has remained unchanged since the issuance of the TRP on May 21, 2006.
18 The applicants submit that the Minister's delegate's decision is also patently unreasonable and arbitrary because it provides no specific reason or ground for refusing to renew the TRP. The applicants submit that they were entitled to know the specific grounds that could have warranted the negative decision concerning them.
19 The applicants submit that Ms. Samson, who had personally issued the TRPs in March 2006, was acting inconsistently when she rendered the decision of November 26, 2008, in which she refused to extend the TRPs but gave no express reasons.
20 The applicants argue that they are entitled to know the specific reasons for the decision, especially since Éric Lacombe also recommended that the applicants be issued TRPs.
21 The applicants note that the duty to provide reasons for a decision has been held to exist even where the legislation does not provide for it, as stated by the author Sara Blake in Administrative Law in Canada, where the reasons for this requirement are explained.
22 In this case, the applicants submit that the reason given by the immigration officer, namely that [TRANSLATION] "there are insufficient grounds to extend the permit in your case" cannot possibly be justified because the applicants' situation has not changed in any way since the issuance of the first permit, other than a deterioration of Ms. Beyer's mobility.
23 The applicants argue that the onus on the government must be higher where a permit has already been issued and the matter merely involves a renewal and where the additional supporting documents required by the government have been provided.
24 The applicants submit that, given the significant amount of documentation they provided, if additional evidence was required or questions needed to be answered, the Minister's delegate should have notified them or their lawyer that there were insufficient grounds to extend the permit.
25 The applicants claim that the principle of deference in judicial review does not prevent this honourable Court from condemning the respondent's conduct toward the applicants.
26 Thus, the applicants ask that the decision of Citizenship and Immigration Canada officer Huguette Samson, dated November 26, 2008, be set aside, and that the respondent be ordered either to issue each applicant a TRP valid for two years commencing on the date of the decision, or, in the alternative, to refer the request back for reconsideration by a different Minister's delegate so that the applicants' request can be processed in accordance with the law, with costs.
27 The respondent submits that the applicants are attempting to obtain equitable relief from this honourable Court. However, he submits that there are significant gaps in the file they submitted with respect to their initial entry to Canada, several past or present irregularities in their immigration file since their arrival, and finally Ms. Beyer's health problems.
28 The respondent submits that despite the expiry of their temporary resident status under their first permit, the applicants remained in Canada beyond the authorized period. They did not notify the Canadian authorities of this irregularity, even though they knew that they were in Canada without status. Thus, the respondent submits that the applicants did not renew their temporary status within the appropriate time.
29 The respondent submits that the applicants attracted the immigration authorities' attention in 2003 when they tried to clear personal property through customs. At that time, Mr. Beyer's status had expired six months earlier, and Ms. Beyer's status had expired 24 months earlier.
30 The respondent submits that the nature of the goods that the applicants tried to clear through customs confirms that they intended to settle permanently in Canada from the moment of their arrival, even though they had no status in Canada.
31 The respondent submits that an exclusion order was made against the applicants but was never enforced because the enforcement officer deferred the removal to enable the applicants to exhaust their remedies.
32 The respondent submits that in 2006 the applicants filed a request to renew the TRP, and that the request was granted for a two-year period.
33 The respondent submits that in 2008 the applicants filed a request to renew the TRP. The request was refused and this refusal is the subject of this application for judicial review.
34 The respondent submits that in Dunsmuir the Supreme Court abolished the "patently unreasonable" standard of review. Since that decision, the appropriate standard of review for decisions to refuse the issuance of a TRP under subsection 24(1) of the IRPA is reasonableness. However, this Court understands that it must show a great deal of judicial deference when examining such a decision. The respondent cites Farhat, above, which the applicants cited earlier.
35 The respondent submits that in Farhat, this Court stated, at paragraph 15 of its decision, that the issuance of a TRP is a highly discretionary decision. In the past, the standard of review for decisions regarding TRPs was "patent unreasonableness". The applicants admit this principle.
36 The respondent submits that TRPs are issued under section 24 of the Act.
37 The respondent submits that, in Farhat, this honourable Court confirmed the exceptional nature of a TRP:
Temporary resident permits (TRP) formerly known as Minister's permits under former subsections 19(3) and 37 of the Immigration Act (Repealed), R.S.C. 1985, c. I-2, constitute an exceptional regime. They allow a foreign national who is inadmissible to Canada or does not meet the requirements of IRPA or Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) to become a temporary resident "if an officer is of the opinion that it is justified in the circumstances." (Subsection 24(1) of IRPA.)
38 The holder of a TRP is entitled to obtain permanent residence status after three years (or in some cases five years) of residency in Canada under the permit.
39 The respondent submits that sections 64 and 65 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR) specify that TRP holders may become permanent residents if they have continuously resided in Canada for a period of three years under the permit even if they are foreign nationals who are inadmissible on health grounds.
40 The respondent submits that, under sections 22 and 20(1)(b) of IRPA, persons seeking to obtain a TRP must show that they intend to leave Canada at the end of the period authorized for their stay.
41 The respondent submits that the applicants do not intend to leave Canada and that they are seeking to obtain a status that will enable them to remain in Canada permanently.
42 The applicants raise several arguments in support of their challenge.
43 First, the respondent notes that the applicants state in their memorandum that in 2006, [TRANSLATION] "it was established to the Canadian immigration authorities' satisfaction that the applicant Ms. Beyer had a medical condition that made travel and transportation hazardous". The respondent argues that this allegation is erroneous. He submits that the first TRP could have been issued for several reasons, none of which necessarily had anything to do with Ms. Beyer's health. In 2006, the immigration authorities chose to regularize the applicants' status temporarily. The respondent submits that one cannot infer from this that the Minister was satisfied that removal could not take place.
44 The respondent submits that there is evidence contradicting the applicants' allegation, namely an opinion given by one of the respondent's physicians, who never saw Ms. Beyer, and who concluded that she was able to travel. This opinion was given in 2003. The respondent submits that, as a result, it must be presumed that the Canadian authorities knew full well from 2003 onward that it would not imperil Ms. Beyer's life and health to remove her. The respondent submits that, under administrative law, the granting of a request is never a guarantee that it will be renewed.
45 The respondent submits that the applicants allege that they have health insurance and therefore do not place excessive demands on society.
46 The respondent submits that this allegation is unfounded. He submits that the Federal Court of Appeal has already confirmed that the expression "excessive demands" includes both the cost and the availability of health services. The ability and willingness to pay for medical services are immaterial if the care required by Ms. Beyer constitutes excessive demands on society: Deol v. MCI, 2002 FCA 271, at paragraphs 23, 24, and 45.
47 In addition, the respondent submits that the renewal of the TRP may give the applicants the right to obtain permanent resident status, which would automatically make them "insured persons" within the meaning of Quebec's Health Insurance Act, R.S.Q., c. A-29, and qualify them for unrestricted coverage under the province's public health plan. This would render the existence of medical insurance irrelevant.
48 In the respondent's submission, the applicants are asserting that the respondent issued a TRP instead of granting them permanent resident status. The respondent submits that the applicants filed a request for permanent residence with an exemption on humanitarian and compassionate considerations under section 25 of the IRPA on February 27, 2006.
49 The respondent submits that the applicants appear to believe that an officer can grant permanent resident status based on a mere letter. The respondent submits that an application for permanent residence based on humanitarian and compassionate considerations must be filed in proper form, which means that the form and the evidence required for this type of application must be submitted. Indeed, section 10 of the IRPR leaves no doubt on this point: a foreign national who makes such an application must submit the appropriate form and pay the applicable fees.
50 Consequently, the applicants could not expect an immigration officer to examine their permanent residence request on his or her own initiative.
51 The respondent submits that the applicants are alleging that Ms. Beyer is unable to leave Canada because of her health.
52 In the respondent's submission, it is premature to raise issues concerning removal because the applicants are not challenging the decision of a law enforcement officer, but, rather, the decision of a Minister's delegate. The applicants are not yet at the removal stage.
53 Travel-related difficulties are a factor that the law enforcement officer, Éric Lacombe, not the Minister's delegate, Huguette Samson, must take into account.
54 Mr. Lacombe is the law enforcement officer, and he works for the CBSA, which is under the authority of the Department of Public Safety. In his affidavit dated June 10, 2009, he asserts that, before removing the applicants, he will obtain a medical opinion from a Government of Canada physician so that the removal is carried out in accordance with the arrangements recommended by the physician.
55 The removal officer can ensure that a physician or nurse accompanies the applicants throughout their trip.
56 In the respondent's submission, the applicants will have the opportunity to challenge the removal arrangements if they feel that officer Lacombe does not intend to carry out the removal in accordance with acceptable standards.
57 Thus, the respondent submits that the arguments related to removal are not relevant at this stage of the process.
58 Contrary to the applicants' allegations, Mr. Lacombe does not work for the Minister of Citizenship and Immigration. The Minister's delegate, Huguette Samson, was the decision-maker who dealt with the renewal request and the decision was hers alone. In the respondent's submission, Ms. Samson was free to reject Mr. Lacombe's recommendation. The respondent submits that there is no administrative law principle that would require a decision-maker to follow a third party's recommendation.
59 The respondent submits that the decision-maker called upon the medical expertise of his physicians, who, unlike Ms. Beyer's own physician, concluded that Ms. Beyer was able to travel. The organization tasked with the removal will obtain a more recent medical opinion.
60 The applicants argue that the decision-maker's reasons are insufficient. The respondent submits that, upon reading Ms. Samson's reasons, the Court will agree that they are sufficiently detailed for a reader to understand the grounds of the decision and to follow the decision-maker's reasoning.
61 For example, in Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.), the Federal Court of Appeal had to answer the following question:
4.
Does the failure to provide reasons for a determination under subsection 70(5) that a person constitutes a danger to the public in Canada, in the context of the procedure being used, breach the requirements of natural justice or procedural fairness?
I believe it is fair to assume that the requirements of "natural justice" are subsumed under the general category of "fairness", particularly in respect of an administrative decision such as this. It is beyond debate that the requirements of fairness depend on the seriousness of the decision being taken. In my view, as expressed above, the consequence of this decision is not an order of deportation but rather the withdrawal of a discretionary power to exempt Williams from lawful deportation, such discretion instead being limited thereafter to exercise by the Minister. It also substitutes the possibility of a discretionary stay for an automatic statutory stay. The decision making authorized by subsection 70(5) is not judicial or quasi-judicial in nature involving the application of pre-existing legal principles to specific factual determinations, but rather the formation of an opinion in good faith drawn from the probabilities as perceived by the Minister from an examination of relevant material and an assessment as to the acceptability of the probable risk. In such circumstances the requirements of fairness are minimal and have surely been met for the same reasons as I have concluded that requirements of fundamental justice, if applicable, have been met.
62 According to the respondent, the Federal Court of Appeal held that no reasons need be given for an agent's decision that a person constitutes a danger to Canada. A fortiori, the reasons for a refusal to renew a TRP (a decision whose consequences are less serious) need not be given either.
63 The respondent submits that the applicants are complaining that the officer did not disclose her notes and reasons prior to the application for leave and judicial review. However, after being notified of the negative decision, the applicants did not ask for the reasons supporting it.
64 According to the respondent, the applicants did receive the reasons and had the opportunity to make all the arguments in their further memorandum. He submits that the alleged failure has not caused any prejudice: Iamkhong v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 1349, at paragraphs 25 and 26; and Abdeli v. Canada (Minister of Public Safety and Emergency Preparedness), [2006] F.C.J. No. 1322 (QL).
65 The applicants seek costs. The respondent submits that section 22 of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22, specifies that no costs shall be awarded to or payable by any party in respect of an application for judicial review in an immigration matter unless the Court, for special reasons, so orders. The applicants have not shown that there are special reasons that would justify awarding costs.
66 In conclusion, the applicants demand that the immigration authorities exercise a highly discretionary power in their favour and grant them exceptional status. However, the respondent submits that the applicants breached their duty of good faith from the outset by remaining in Canada without status and by trying to settle in Canada permanently despite the refusal of the Canadian Consulate in Buffalo.
67 In light of the preceding arguments, the respondent respectfully asks that this Court dismiss this application for judicial review.
68 The issue is whether the Minister's delegate erred in refusing to renew the applicants' TRP.
69 The applicable standard of review is reasonableness, as described by the respondent, and not patent unreasonableness, as submitted by the applicants. However, as stated at paragraphs 7 and 8 of Justice Snider's decision in Voluntad v. Canada (Citizenship and Immigration), 2008 FC 1361, this Court is not required to show deference to officer Samson's decision if she breached procedural fairness:
[7] Both parties agree that the decision of the Officer is reviewable on a standard of reasonableness, meaning that the task of the Court is to determine "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47). It is also important to note that, on this standard of review, the Court ought not to substitute its discretion for that of the Officer, even if the Court might have drawn different inferences or reached a different conclusion.
[8] This standard does not apply to the alleged insufficiency of the reasons for the TRP decision; no deference is owed for a breach of procedural fairness.
70 I am of the opinion that the application for judicial review must be allowed for the following reasons.
71 First and by way of clarification, the applicants will not necessarily obtain permanent residence solely as a result of the passage of time after three or five years of continuous residence. Section 65.1 of the IRPR states that, in order to obtain permanent residence, a foreign national must hold a medical certificate indicating that their health condition is not reasonably expected to cause excessive demand. Thus, the applicants will probably not be granted permanent residence. Section 65.1 of the IRPR provides:
65.1 (1) A foreign national in Canada who is a permit holder and a member of the permit holder class becomes a permanent resident if, following an examination, it is established that
(a) they have applied to remain in Canada as a permanent resident as a member of that class;
(b) they are in Canada to establish permanent residence;
(c) they meet the selection criteria and other requirements applicable to that class;
(d) they hold
(i)
subject to subsection (4), a document described in any of paragraphs 50(1)(a) to (h), and
(ii)
a medical certificate, based on the most recent medical examination to which they were required to submit under these Regulations within the previous 12 months, that indicates that their health condition is not likely to be a danger to public health or public safety and is not reasonably expected to cause excessive demand; and
(e) they and their family members, whether accompanying or not, are not inadmissible on any ground other than the grounds on which an officer, at the time the permit was issued, formed the opinion that the foreign national was inadmissible.
* * *
65.1 (1) L'étranger au Canada qui est un titulaire de permis et qui fait partie de la catégorie des titulaires de permis devient résident permanent si, à l'issue d'un contrôle, les éléments suivants sont établis :
a)
il en a fait la demande au titre de cette catégorie;
b)
il est au Canada pour s'y établir en permanence;
c)
il satisfait aux critères de sélection et autres exigences applicables à cette catégorie;
d)
il est titulaire, à la fois :
(i)
sous réserve du paragraphe (4), de l'un des documents visés aux alinéas 50(1)a) à h),
(ii)
d'un certificat médical attestant, sur le fondement de la plus récente visite médicale à laquelle il a été requis de se soumettre aux termes du présent règlement dans les douze mois qui précèdent, que son état de santé ne constitue vraisemblablement pas un danger pour la santé ou la sécurité publiques et ne risque pas d'entraîner un fardeau excessif;
e)
ni lui ni les membres de sa famille -- qu'ils l'accompagnent ou non -- ne sont interdits de territoire pour tout motif autre que celui pour lequel l'agent a, au moment de la délivrance du permis, estimé qu'il était interdit de territoire.
72 As for the decision itself, the reasons are not sufficiently detailed.
73 The letter setting out the decision does not sufficiently state the reasons for the decision. The notes taken for the purpose of making the decision were disclosed only after the application for leave and judicial review was filed. The notes do not specifically mention on what ground the decision was made to refuse the TRP. The notes are in fact a history of the applicants' situation. It is clear from the decision and the notes that they contain no written reasons.
74 As stated in Figueroa v. Canada (Minister of Citizenship and Immigration), 2003 FC 1339, at paragraph 15, one must refer to Baker v. Canada, [1999] 2 S.C.R. 817, to determine the content of procedural fairness owed in a given context. The Court must take into account the nature of the decision and the process followed in making it (the closer it is to a judicial process, the higher the content of fairness owed), the nature of the statutory scheme (for example, greater procedural protections are required when there is no provision for appeal procedures in the statute), the importance of the decision for the individuals affected (a significant factor), the legitimate expectations of the person challenging the decision, and the choice of procedure made by the agency itself.
75 In my opinion, the factor that most concerns the applicants is the importance of the decision for the individuals affected -- in this instance, the applicants.
76 The respondent's decision to issue a TRP is highly discretionary, but the exercise of that discretion is governed by guidelines which are available online and which even specify that the officer must explain why he or she is not granting the TRP:
If the officer considered recommending or issuing a permit to overcome the inadmissibility, they must also explain why a permit is not being issued. Officers must be especially careful to respect procedural fairness (see OP 1) in drafting this part of the letter.
77 Moreover, there is evidence that the applicants legitimately expected a positive decision in view of several factors:
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Ms. Beyer's health has not changed, and it is even the opinion of the applicants' physician that the situation has worsened.
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The hazards and costs of the trip.
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Mr. Lacombe's recommendation that the permit be extended.
78 As for the choice of procedure made by the agency, this factor was not raised.
79 The negative decision will have grave consequences for the applicants because they will have to leave the country if they do not have a TRP. The trip from Canada to Sweden could result in serious complications and pose risks for the health of Ms. Beyer, who suffers from morbid obesity, is bedridden all day and does not leave home.
80 According to the respondent, the Minister's delegate, Huguette Samson, made a reasonable decision. The respondent submits that the applicants do not intend to leave Canada and that this justifies, among other things, the refusal to extend the temporary permit.
81 However, in light of the circumstances and the facts of this case, the absence of written reasons in the Minister's delegate's decision to refuse to extend the TRPs gives the appearance of an arbitrary decision.
82 The facts brought to light in this case raise a doubt as to whether the applicants were treated fairly. They must be given the benefit of this doubt. The application for judicial review is allowed and the matter is referred back to the respondent or his authorized representative, as the case may be, for a reconsideration of the applicants' request.
83 At the end of the hearing, the applicants submitted the following question for certification:
[TRANSLATION]
"What is the extent of a Minister's delegate's duty to provide reasons for a decision concerning a temporary residence permit and its renewal?"
84 Since I have allowed the application for judicial review, there is no need to certify the question.

JUDGMENT

THE COURT ORDERS AND ADJUDGES that the application for judicial review be allowed and the matter referred back to the respondent or his authorized representative, as the case may be, for a reconsideration of the applicants' request.