Sometimes people play games with the meaning of questions and try to twist them to their advantage. The problem is that the legislation makes it clear that misrepresentations are problematic in immigration applications. The court in the case below was not persuaded by the applicant's attempt to "explain his explanation", so to speak.
Bundhel v. Canada (Minister of Citizenship and
Immigration)
Between Yograj Singh Bundhel, Applicant, and Minister of Citizenship and Immigration Canada, Respondent
[2014] F.C.J. No. 1219
2014 FC 1147
Docket: IMM-3146-14
Federal Court Vancouver, British Columbia
Barnes J.
Heard: November 17, 2014. Judgment: November 28, 2014.
(10 paras.)
REASONS
1 BARNES
J.:-- The Applicant, Yograj Singh Bundhel, challenges a decision made on April
3, 2014, denying his application for a temporary work permit. Mr. Bundhel is an
actor who sought to enter Canada to work on the set of a movie production. The
basis of the decision was a finding that Mr. Bundhel had misrepresented his
background, pertaining specifically to two serious criminal charges in India.
2 Mr.
Bundhel's visa application included the following question: "Have you ever
committed, been arrested for, been charged with or convicted of any criminal
offence in any country?"
3 If
the applicant provides an affirmative response to this question he is required
to provide details. Mr. Bundhel answered in the negative. This was inaccurate.
Mr. Bundhel had faced charges in India in connection with a reckless driving case
and for harbouring a fugitive accused of murder. Although his convictions were
later overturned on appeal, it is beyond doubt that Mr. Bundhel had been
arrested and charged in connection with both matters.
4 The
Officer provided Mr. Bundhel with an opportunity to explain the discrepancy.
The excuse he offered was that his answer was merely a "clerical
mistake"; because he was ultimately acquitted of the criminal charges, he
did not believe the details needed to be mentioned.
5 The
Officer was not satisfied with Mr. Bundhel's explanation and found that a
misrepresentation had occurred. Her reasons were stated as follows:
·I have considered this response in the spirit of the way we have
phrased our question on the application form. Clearly we wish to know about
prior arrests and charges even if they do not eventually result in conviction
or we would not ask the question. By concealing his prior arrest and conviction
even if it did end in acquittal the applicant could have induced an error in
the administration of the Immigration and Refugee Protection Act. Specifically:
the applicant is applying for a work permit and temporary resident visa to
visit Canada. By not providing truthful information regarding his background
the officer would not have had the information necessary to determine whether
or not he would fall into A36(1)(c) having committed an offence outside of
Canada causing arrest and charged with an offence which would equate to Section
221 of the Criminal Code of Canada. I do not accept that this was a clerical
error as the way the question is worded makes it abundantly clear we are
concerned with charges and arrests as well as convictions. Applicant has failed
in his requirement to answer all questions truthfully as per A16(1). As such
the applicant is inadmissible under A40(1) of the IRPA. Refused on bonafides
and for misrepresentation.
6 Mr.
Bundhel argues that this decision was unreasonable because his explanation was
"at least plausible on its face" and it therefore demanded that the
Officer explain why it was not accepted. He also argues that he corrected the
factual record at the first opportunity and some consideration of that
mitigating factor ought to have been applied. Finally, he points to the serious
consequences that the misrepresentation finding will have for his future
overseas travel.
7 None
of these arguments has merit. The Officer reasonably concluded that Mr. Bundhel
had deliberately concealed the facts of his criminal arrests and prosecutions.
The question that he was asked does not allow for ambiguity. Mr. Bundhel knew
full well that he had been arrested and charged in connection with two serious
criminal matters and the Officer found that he deliberately withheld that information
on his application. His response to the Officer failed to explain how he could
have plausibly misunderstood those parts of the criminality question. There
was, accordingly, no basis for the Officer to make a finding other than the
obvious one -- that is, Mr. Bundhel was being dishonest when he withheld the
true facts, knowing that a truthful answer could create admissibility problems.
8 Mr.
Bundhel's complaint that the Officer should have considered the fact that he
owned-up to the problem at the first available opportunity is also unjustified.
Mr. Bundhel only acknowledged the true facts when he was confronted with them.
This is not equivalent to a situation where an applicant owns-up to a mistake
before it is brought to light or where the file already contains the correct
information. In such a case, a favourable inference is more likely to be drawn
because it is suggestive of an innocent mistake and not a wilful omission. The
same point is made in Uppal v Canada (Minister of
Citizenship and Immigration), 2009 FC 445, where Justice
Anne Mactavish stated the following:
·30 The misrepresentations in this case were made in the context of
the applications for permanent residence that were under consideration by the
officer. In such circumstances, the fact that the misrepresentations were
disclosed by the applicants prior to a final decision having actually been
taken in relation to their applications does not assist them. Indeed, this
Court specifically rejected this argument in Khan v.
Canada (Minister of Citizenship & Immigration), 2008
FC 512 at paras. 27-29.
·31 That is, the Court held in Khan that such an interpretation would lead to situations where
individuals could knowingly misrepresent their circumstances, but nevertheless
escape an inadmissibility finding, as long as they disclosed the
misrepresentation right before a decision was made. Not only would such an
interpretation encourage the abuse of the Act, it also ignores the requirement
to provide truthful information in applications under the Act.
·32 The Court's concerns in Khan are amply illustrated by the facts of this case, where the
applicants only came forward with their "clarification" once they
knew that their lies were about to be uncovered through genetic testing.
·33 As a consequence, I am satisfied that the officer's conclusion
that the applicants had misrepresented material facts relating to a relevant
matter that could have induced an error in the administration of the Act was
one that was reasonably open to him on the record before him.
9 The
fact is, our system of immigration control relies heavily on the truthfulness
of those who apply to come here. Those who misrepresent their histories or
withhold material information with a view to enhancing their chances for entry
are undeserving of special consideration. The consequences for Mr. Bundhel are
undoubtedly serious but they result from his failure to disclose material
information. The integrity of Canada's control over its borders demands nothing
less than scrupulous honesty from applicants and the rigid enforcement of that
obligation. The Officer's decision fulfills this principle and is in all
respects reasonable.
10 This application is accordingly dismissed.
Neither party proposed a certified question and no issue of general importance
arises on this record.
See case below. In this case, the issue was whether the driver knew that the passenger's identity was false. Luckily for the driver, there was reasonable doubt in the case, partly as a result of CBSA mishandling the examination. Others are not so lucky. Driving across the border with passengers you do not know intimately can be a dangerous thing.
R. v. Aderbigbe
Between Her Majesty the Queen, and Adeyinka Aderbigbe
[2012] O.J. No. 6553
2012 ONCJ 858
Information No. S12-0973 x 2
Ontario Court of Justice St. Catharines, Ontario
D.A. Harris J.
Oral judgment: November 8, 2012.
(25 paras.)
REASONS FOR JUDGMENT
1 D.A. HARRIS J. (orally):-- Adeyinka Aderbigbe
faces charges that on or about March 10, 2012, at the Town of
Niagara-on-the-Lake, he did knowingly misrepresent or withhold material facts
relating to a relevant matter that could have induced an error in the
administration of the Immigration and Refugee Protection
Act, to wit, by identifying Wasiu Ilumoka to the Canada
Border Services officers as Adeyinka Adeniyi, contrary to S. 127(a) of the said
Act, thereby committing an
offense pursuant to S. 128(a) of the said Act.
2 He
is further charged that on or about the same date and place, he did knowingly
attempt to aid and abet Wasiu Ilumoka to contravene S. 122(1)(b) of the Immigration and Refugee Protection Act,
thereby committing an offense pursuant to S. 131 of the Immigration
and Refugee Protection Act.
3 There
is no dispute that Mr. Aderbigbe and Wasiu Ilumoka attempted to enter Canada
together at the Queenston/Lewiston Bridge entry point, and that Wasiu Ilumoka
attempted to falsely identify himself as Adeyinka Adeniyi.
4 The
issue is whether Mr. Aderbigbe knew what Mr. Ilumoka was doing and knowingly
misrepresented or withheld this information or knowingly attempted to assist
Mr. Ilumoka in his deception.
5 In
my effort to resolve this question I note that everyone agrees with the
following facts:
6 On
March 10, 2012, Mr. Aderbigbe drove a motor vehicle up to the Canada Customs
primary inspection booth at the Queenston/Lewiston Bridge in
Niagara-on-the-Lake. Wasiu Ilumoka was a passenger in that motor vehicle. Mr.
Aderbigbe presented his valid United States passport card to Canada Border
Services Officer Susanna Rossi. Mr. Ilumoka passed a U.S. permanent resident
card in the name of Adeyinka Adeniyi to Mr. Aderbigbe who passed it on to
Officer Rossi. When asked for further identification, Mr. Aderbigbe presented
his driver's license. Mr. Ilumoka presented a bank card. This latter piece of
identification did not contain a photograph and Officer Rossi returned it to
Mr. Ilumoka. She then directed both men to proceed to the secondary inspection
station. There, Officer Samantha Collee spoke to both men. Mr. Aderbigbe
presented his United States passport card. Mr. Ilumoka presented the United
States permanent resident card. It was not his permanent resident card.
7 Mr.
Aderbigbe testified in his own defense. He agreed with the above facts. He
said, however, that he only became aware that Mr. Ilumoka was using someone
else's permanent resident card when the two men were going from the primary
inspection station to the secondary inspection station. He had known Mr.
Ilumoka for a number of years. He did not know that Mr. Ilumoka had no legal
status in the United States. He did not know that Mr. Ilumoka had
identification belonging to Mr. Adeniyi. Mr. Aderbigbe also knew Mr. Adeniyi.
Mr. Adeniyi and Mr. Ilumoka did not look alike. The picture of Mr. Adeniyi on
the permanent resident card did not look like Mr. Ilumoka.
8 Mr.
Aderbigbe said that he was shocked when he discovered what Mr. Ilumoka was
doing and he did not knowingly do anything to assist Mr. Ilumoka in entering
Canada illegally.
9 The
prosecution argued that I should not believe Mr. Aderbigbe. The first issue
here then is one of credibility.
10 As
in any criminal case, if I believe Mr. Aderbigbe in his statement that he did
not commit the offense as charged, I must find him not guilty. Even if I do not
believe him, if it leaves me with a reasonable doubt about his guilt, I must
find him not guilty. Even if his evidence does not leave me with a reasonable
doubt about his guilt, if after considering all of the evidence that I do
accept I am not satisfied beyond a reasonable doubt of his guilt, I must acquit
him.
11 In
going through the process to make those determinations I must remember that Mr.
Aderbigbe, like every other person charged with a crime, is presumed to be
innocent unless and until the Crown has proven his guilt beyond a reasonable
doubt. Mr. Aderbigbe does not have to present evidence or prove anything. It is
not enough for me to believe that he is probably or likely guilty. Proof of
probable or likely guilt is not proof of guilt beyond a reasonable doubt. I am
aware that it is nearly impossible to prove anything with absolute certainty
and the Crown is not required to do this. Absolute certainty is a standard of
proof that does not exist in law.
12 However,
I must remember the warning from the Supreme Court of Canada in R. v. Starr (2000), 147 C.C.C. (3d) 449 (SCC)
at page 545, where they state, "The reasonable doubt standard falls much
closer to absolute certainty than to proof on a balance of probabilities."
13 This
is a tough standard, and is so tough for very good reason. As Justice Cory said
in R. v. Lifchus (1997), 118
C.C.C. (3d) 1 (SCC) at page 6, "The onus resting upon the Crown to prove
the guilt of the accused beyond a reasonable doubt is one of the principal
safeguards which seeks to ensure that no innocent person is convicted."
14 I
cannot say that I absolutely believe everything that Mr. Aderbigbe said. But I
cannot say that I disbelieve him either.
15 The
prosecutor argued that his evidence could not reasonably be true. I disagree.
Mr. Aderbigbe, apparently, did most of the talking at both the primary and
secondary inspection points.
16 That,
however, seems reasonable to me. He was the driver, and as such he was the one
closest to Officer Rossi at the primary inspection point. Common sense dictates
that he would be taking the lead in answering her questions.
17 I
also note that Mr. Aderbigbe was using his own perfectly valid United States
passport card.
18 Mr.
Ilumoka, on the other hand, was the passenger on the side of the vehicle
farther away from Officer Rossi. He was also the one using false
identification. He was the one with the reason to say very little and avoid
attracting attention to himself at either inspection point. So I do not attach
so much significance to the fact that Mr. Aderbigbe did most of the talking. I
certainly do not read so much into it as to disbelieve his testimony.
19 Similarly,
I found it reasonable for the two men to have agreed to share expenses, with
each of them assuming ultimate responsibility for certain costs. In some cases
this would require Mr. Ilumoka to reimburse Mr. Aderbigbe for some things that
Mr. Aderbigbe had prepaid, such as the car rental or the hotel. There was
nothing about this aspect of Mr. Aderbigbe's testimony that caused me to doubt
his truthfulness.
20 There
were some discrepancies between what Mr. Aderbigbe said in court and what
Inspector Michele Axe-Scott said that he told her. I found, however, that I
cannot rely on her evidence in that regard. To my great surprise, she testified
that she did not make either a video or audio recording of her interview with
Mr. Aderbigbe. She did not even purport to write out each question and answer
verbatim. She did not ask Mr. Aderbigbe to read over her notes and acknowledge
them as being accurate. I would normally expect such an important interview to
be recorded using either audio or, better yet, video equipment. This is not a
difficult process. The police do it regularly. There is no reason why the
Canada Border Services Agency cannot do so too. Their investigations into
possible offenses are certainly important enough to warrant this. Such a
recording would provide me with an accurate record of exactly what was said to
Mr. Aderbigbe. It would determine beyond any doubt whether any threats or
inducements were made in order to obtain his statements. That was not the issue
here where counsel for Mr. Aderbigbe admitted on his behalf that the statement
was made voluntary. However, such a recording would have provided me with an
accurate recording of exactly what was said by Mr. Aderbigbe. Instead, I
received a summary of what Inspector Axe-Scott thought that Mr. Aderbigbe had
said.
21 When
Mr. Aderbigbe gave his evidence in court, I found his accent to be so heavy,
that I frequently had trouble understanding him. I had sufficient difficulty in
this regard, that I certainly questioned Inspector Axe-Scott's statement that
she had no problems at all with his accent. On the contrary, I am far from
satisfied that she understood correctly what Mr. Aderbigbe had said, let alone
understood the subtle nuances of his statements. It would certainly have been
possible for her to have heard "we" when Mr. Aderbigbe had said
"he", a mistake that Mr. Aderbigbe specifically claimed was found in
her written notes. This issue would not have come up had the interview been
recorded properly.
22 In
the absence of such a recording, I am not prepared to give Inspector
Axe-Scott's interpretation of what Mr. Aderbigbe had to say sufficient weight
to cause me to disbelieve what he had to say in court.
23 Officer
Collee stated that Mr. Aderbigbe was pleasant the whole time he was with her,
and laughing. However, when she asked Mr. Ilumoka if he was the person on the
permanent resident card, Mr. Aderbigbe became very silent and looked away. His
smile disappeared and he then had a sad look. This corroborates to some degree
Mr. Aderbigbe's testimony as to his reaction once he realized that his friend,
Mr. Ilumoka, had lied to the Canadian authorities and that Mr. Ilumoka might be
about to continue to lie.
24 I
note, also, that not one of the Canada Border Services Agency people testified
that Mr. Aderbigbe ever referred to Mr. Ilumoka as Adeyinka Adeniyi, nor did
Mr. Aderbigbe say that Mr. Ilumoka was the person shown in the photograph on
the permanent resident card.
25 After
considering all of the evidence, I find that I have a very real doubt as to
whether Mr. Aderbigbe knowingly misrepresented or withheld material facts, or
that he knowingly attempted to aid and abet Mr. Ilumoka in the contravention of
the Act. Accordingly, I find him not guilty and the charges are dismissed.
The case below is an illustration of a spousal sponsorship refusal based on the contradictory evidence and conduct of the applicant.
Cauia v. Canada (Minister of Citizenship and
Immigration)
Between Olga Cauia, Applicant, and The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No.
1227
2013 FC 1125
Docket IMM-824-13
Federal Court Montréal, Quebec
Tremblay-Lamer J.
Heard: October 17, 2013. Judgment: November 6, 2013.
(21 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application
for judicial review pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27
[the Act] of a decision of an immigration officer on January 16, 2013. The
officer denied the applicant's sponsored application for permanent residence
under the spouse or common-law partner in Canada class as she was not satisfied
that the common-law partnership was genuine and not entered into primarily for
the purpose of acquiring status or privilege as stated in subsection 4(1) of
the Immigration and Refugee Protection Regulations, SOR/2002-226, as amended [Regulations].
FACTS
2 The
applicant is a 30-year-old citizen of Moldova. Between 1998 and 2008 she
studied in Romania, though her Romanian diploma is not recognized by the
Moldovan government.
3 The
applicant arrived in Canada on a visitor's visa on June 23, 2008. She claimed
refugee status on June 12, 2009 after a protest and violent government
crackdown (which the applicant alleges targets students who have studied in
Romania) took place in Moldova following an election. Her claim was rejected by
the Refugee Protection Division of the Immigration and Refugee Board [the
Board] on February 17, 2012.
4 On
June 6, 2012, the applicant filed an application for permanent residence in the
spouse or common-law partner in Canada class under section 12 of the Act,
sponsored by Volvick Edouard [the sponsor].
5 In
support of her application for permanent residence through sponsorship, the
applicant alleges the following facts:
·i.
she was introduced to
her sponsor by a French classmate around November 2009;
·ii.
she started taking
dance lessons with the sponsor at his dance studio;
·iii.
she began to participate
in ballroom dancing competitions with her sponsor;
·iv.
the sponsor officially
moved in with her in February 2011 when he signed a lease renewal, leaving his
former apartment where he lived with his brother;
·v.
she is often at the
sponsor's dance studio where she not only dances but also teaches and manages
the business by paying bills, organizing the office, verifying income, and
doing all of the office work;
·vi.
she and the sponsor
share their lives; they live together, share the same accountant, love each
other, and she cooks food for him every night;
·vii.
the sponsor has two
children aged eleven and four with his ex-wife, from whom he is separated;
and
·viii.
the sponsor has a
sister living in New York and a niece and nephew, aged 21 and 17. The niece and
nephew came to visit the sponsor in the summer of 2011 and stayed with the
sponsor's brother. The niece and nephew were often at the dance studio and that
the sponsor organized a weekend in a country house in Victoriaville for the
entire group, including the applicant. The applicant also claims that she went
out to eat with the sponsor's niece and nephew without him being there.
6 The
Québec government issued a Québec Selection Certificate to the applicant on
January 10, 2013.
7 The
applicant and the sponsor were each called to an interview with the officer on
January 16, 2013. The officer's decision was rendered on January 17, 2013.
THE DECISION UNDER REVIEW
8 The
officer found that the applicant undermined her credibility by deliberately
misrepresenting herself to Canadian immigration officials by claiming that she
would return to Moldova and to her fiancée in Romania on her initial
application for a temporary resident permit for entry into Canada. When
questioned by the officer, the applicant stated that she wished to stay in
Canada to help her sister with her baby and that there was political unrest and
she could not go back home.
9 The
officer also noted several inconsistencies in the answers the applicant and the
sponsor gave in their interviews.
10 The
officer was not satisfied by the explanations provided by the couple to justify
the inconsistencies apparent throughout their testimonials. She found that the
couple's answers were evasive and non-committal, further demonstrating the
couple possesses limited knowledge of one another.
11 The
applicant does not appear to be involved with the sponsor on an emotional level
and does not share her life with him beyond the help she offers in the
management of his dance studio. Her lack of knowledge of the sponsor's
financial situation and custodial arrangement of his children provide little
indication of emotional involvement and investment on her behalf. The applicant
appears to be minimally implicated in the sponsor's family life.
12 Finally,
the officer concluded that the documentation provided by the couple does not
sufficiently demonstrate evidence of a genuine common-law relationship.
Moreover, the applicant's life insurance policy designates the sponsor as a
beneficiary at fifty percent and her sister at fifty percent, a division that
the applicant could not explain when asked. The sponsor has also provided
evidence of his life insurance, where he names his daughter Terry as sole
beneficiary at one hundred percent.
13 The
officer stated that based on the interviews conducted and answers obtained from
the testimonials, she is not satisfied of the bona fides of the relationship. The numerous discrepancies in their answers
make the authenticity of the union questionable. The officer concluded that the
relationship is one of convenience and entered into primarily for the purpose
of acquiring status or privilege as stated in section 4 of the Regulations.
STANDARD OF REVIEW
14 It
is well recognized that the finding that a marriage or common-law partner
relationship is not genuine is reviewable on a standard of reasonableness (Gangurean v Canada (Minister of Citizenship and Immigration), 2012 FC 286 at para 9 [Gangurean]; Essaidi v Canada (Minister of Citizenship
and Immigration), 2011 FC 411 at para 10 [Essaidi]; and Bustamante
v Canada (Minister of Citizenship and Immigration),
2011 FC 1198 at para 20).
ANALYSIS
15 At
the outset, in response to the applicant's arguments about the standard of
proof applied by the officer, I am not persuaded that the mere use of the word
"convinced" demonstrates that the officer applied a higher standard
of proof than what was required. The remainder of the reasons are in line with
the application of a "balance of probabilities" standard and there
exists no other evidence apart from this word choice to indicate that the
officer applied an incorrect burden of proof.
16 The
applicant suggests that the officer ignored documentary evidence and chose to
focus only on the eight discrepancies that she found in the testimonies of the
applicant and the sponsor. I do not agree with this characterization of the
decision. The officer did indeed consider the documentary evidence,
acknowledging that the applicant and sponsor live together and are dance
partners. She was not convinced, however, that this demonstrated a genuine
common-law relationship. The officer also made direct reference to the evidence
submitted regarding the insurance policies of the applicant and her sponsor,
though she drew a negative inference from the fact that the sponsor did not
name the applicant as beneficiary and the sponsor was only a fifty percent
beneficiary for the applicant. I further note that there exists a presumption
that the officer considered all of the evidence before her even if she did not
make specific reference to each piece of evidence (see Florea
v Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 598).
17 The
officer found several discrepancies in the applicant and sponsor's testimonies.
When she gave the couple an opportunity to explain these inconsistencies, she
was not convinced by their justifications. More particularly, it was reasonable
for the officer to draw a negative inference from the lack of knowledge of the
applicant about the sponsor's finances in the period after they claim to have
become a couple.
18 It
was also open to the officer to draw a negative inference from the fact that
the applicant did not seem to be involved in the sponsor's family life. Given
that the sponsor seems to play an important role in the life of his children,
it was open to the officer to draw a negative inference from the fact that the
applicant and the sponsor did not discuss his children.
19 While
the inconsistencies identified by the officer relating to the baptism party and
the video rental may seem inconsequential, they are important in assessing the
daily life of the couple (Gangurean, above, at para 13), particularly when this may very well have been
the last weekend that the couple would spend together, as the applicant was
facing a removal order. The applicant did not know the whereabouts of the
sponsor, while the sponsor did not know that the applicant would be meeting
with her lawyer that night. Given that these events occurred only a few days
before the interview, they cannot be explained by a lapse in memory.
20 When
reviewing a decision on the standard of reasonableness, this Court may not
substitute its own evaluation of the evidence, but rather must show deference
to the findings of the decision maker and focus on the justification,
transparency and intelligibility of the decision (Canada
(Minister of Citizenship and Immigration) v Khosa, 2009
SCC 12, at para 59). The officer considered and made reference to the body of
evidence before her and drew the reasonable inference that when considered as a
whole, the inconsistencies in the testimonies were enough to conclude that the
common-law relationship was not genuine (Essaidi, above, at para 18). As such, the decision that the relationship of
the applicant and the sponsor was not bona fide as set out in section 4 of the Regulations falls within the range
of possible, acceptable outcomes which are defensible in respect of the facts
and law, and therefore does not warrant this Court's intervention (Dunsmuirv New
Brunswick, 2008 SCC 9, at para 47).
21 For
these reasons, this application is dismissed.
JUDGMENT
THIS COURT'S JUDGMENT is that:
This application for judicial review is
dismissed.
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.
In the case below, the applicants appear to have misrepresented the fact that they have obtained status in the United States and tried to obtain Canadian citizenship even though they did not meet the residency requirements. Applicants are cautioned never to misrepresent their status or make false declarations in any application.
Gavriluta v. Canada (Minister of Citizenship and
Immigration)
BetweenDragos Ovidiu Gavriluta, Applicant, and The Minister of Citizenship and Immigration, Respondent And between Claudia Gavriluta, Applicant, and The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 770
2013 FC 705
Dockets T-946-12, T-947-12
Federal Court Toronto, Ontario
Heneghan J.
Heard: November 29, 2012. Further submissions, received post hearing: December 13, 18 and 21, 2012. Judgment: June 25, 2013.
(40 paras.)
Counsel:
REASONS FOR JUDGMENT
HENEGHAN J.:--
I. Introduction
1 Mr.
Dragos Ovidiu Gavriluta and his wife Mrs. Claudia Gavriluta (collectively
"the Applicants") appeal from a decision of Citizenship Judge Aris
Babikian (the "Citizenship Judge") denying their applications for
citizenship. The appeal is brought pursuant to subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29 (the
"Act"). The applications for citizenship were denied on the basis
that the Citizenship Judge was not satisfied that the Applicants had presented
credible evidence to show that they had satisfied the residency requirements of
the Act.
2 Pursuant
to section 21 of the Federal Courts Act, R.S.C., 1985, c. F-7, appeals under the Act proceed as applications
governed by Part 5 of the Federal Courts Rules, SOR/98-106. The Applicants commenced individual applications but in
view of the overlap of the facts and arguments in these two appeals, I will
review the background facts of both applications together.
II. Background
3 The
Applicants are citizens of Romania.
4 The
male Applicant claims that he began employment with Clariant Corporation in
Minneapolis, Minnesota in August 2001. He says that he first entered Canada in
November 2004, upon a work permit, for a business trip. He also claims
that he was promoted to General Manager at Clariant (Canada) Inc. in January
2005. On August 14, 2005, he became a "permanent resident" of Canada
within the meaning of that term in the Immigration and
Refugee Protection Act, S.C. 2001, c. 27. His wife
entered Canada in February 2005 and became a permanent resident on August 17,
2005.
5 On
December 29, 2008, a "non-computer based entry" was made in the Field
Operation Support System ("FOSS") as follows:
·Received call from Officer
Smith, Customs & Border Control at Windsor Ambassador Bridge stating that
she is currently interviewing the subject who is re-entering the USA after
being in Canada for work for the last 2 weeks. Subject is employed by Clariant
USA. Subject stated to Officer Smith that he has only lived in the USA
(Minnesota) since 2004 and has never lived in Canada. Subject is a permanent
resident in the USA A#097-963-928.
6 On
March 8, 2009, the Applicants submitted applications for Canadian citizenship.
They were required to meet the statutory residence requirements as set out in
subsection 5(1) of the Act as follows:
·5.
(1) The Minister shall
grant citizenship to any person who
·(a)
makes application for
citizenship;
·(b)
is eighteen years of age
or over;
·(c)
is a permanent resident
within the meaning of subsection 2(1) of the Immigration and Refugee Protection
Act, and has, within the four years immediately preceding the date of his or
her application, accumulated at least three years of residence in Canada
calculated in the following manner:
·(i)
for every day during
which the person was resident in Canada before his lawful admission to Canada
for permanent residence the person shall be deemed to have accumulated one-half
of a day of residence, and
·(ii)
for every day during
which the person was resident in Canada after his lawful admission to Canada
for permanent residence the person shall be deemed to have accumulated one day
of residence;
·(d)
has an adequate knowledge
of one of the official languages of Canada;
·(e)
has an adequate
knowledge of Canada and of the responsibilities and privileges of citizenship;
and
·(f)
is not under a removal
order and is not the subject of a declaration by the Governor in Council made
pursuant to section 20.
* * *
·5.
(1) Le ministre attribue
la citoyenneté à toute personne qui, à la fois :
·a)
en fait la
demande;
·b)
est âgée d'au moins
dix-huit ans;
·c)
est un résident
permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la
protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa
demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa
résidence étant calculée de la manière suivante :
·(i)
un demi-jour pour
chaque jour de résidence au Canada avant son admission à titre de résident
permanent,
·(ii)
un jour pour chaque
jour de résidence au Canada après son admission à titre de résident
permanent;
·d)
a une connaissance
suffisante de l'une des langues officielles du Canada;
·e)
a une connaissance
suffisante du Canada et des responsabilités et avantages conférés par la
citoyenneté;
·f)
n'est pas sous le coup
d'une mesure de renvoi et n'est pas visée par une déclaration du gouverneur en
conseil faite en application de l'article 20.
7 In
his application for citizenship the male Applicant said that he had been
present in Canada for 1,214 days during the relevant period, that is the four
years immediately preceding the date of his application for citizenship. He
said he had been absent for 166.5 days.
8 The
female Applicant declared physical presence in Canada of 1,298 days and an
absence of 73 days.
9 Each
Applicant, in their citizenship applications, also declared that they did not
have permanent resident status in any other country.
10 On
August 10, 2010, the Applicants completed a citizenship test. They were
interviewed at that time by a citizenship officer. They were issued residence
questionnaires which they returned approximately two weeks later, together with
copies of other documents.
11 The
Applicants' file was reviewed by another citizenship officer in or around
November 2011. This Officer, in examining copies of the Applicants' passports,
noticed that many stamps in the passports were imprinted "ARC",
sometimes with a number. This Officer formed the opinion that "ARC"
meant "Alien Registration Card". The Officer was also aware of the December
2008 FOSS notes referred to above.
12 As
a result, on November 5, 2011, the Officer telephoned the male Applicant to
discuss his residence status in the United States. According to the Global Case
Management System notes, the Officer initially advised the male Applicant only
about the 2008 FOSS notes. According to the Officer, the male Applicant replied
that he was not a resident of the United States and that there had been a
misunderstanding, but that it had been clarified.
13 When
asked by the Officer if he knew the meaning of the "ARC" stamps in
his passport, the male Applicant replied in the negative. When the Officer said
that she believed "ARC" to stand for "Alien Registration
Card", the male Applicant admitted that he held a U.S. Green Card. The
Officer then informed the male Applicant that he needed to obtain a letter from
the American authorities stating that he is not a U.S. resident. The Officer
provided her contact information. However, the male Applicant did not subsequently
contact the Officer or provide the requested information.
14 The
Officer decided that a hearing would be necessary in order to verify the period
of the Applicants' residency in Canada. On December 28, 2011, the Applicants
appeared before the Citizenship Judge for their residence hearing.
15 Following
the hearing, the Applicants were afforded further time to provide additional
information. They submitted further documents throughout February 2012. The
Citizenship Judge delivered his decision on April 10, 2012.
16 In
his decision, the Citizenship Judge reviewed the conflicting evidence as to the
male Applicant's resident status in the United States. Page 2 of the decision
provides, in part, as follows:
·On page 2 of the Canadian
Citizenship Application (CIT 0002), and in response to Question 7(d) of that
form which asks "Do you have permanent resident status in any other
country," the Applicant ticked the "No" box.
·Yet, in Port of Entry (FOSS)
notes, NCB #Z011511300, created on Dec. 29, 2008, a Canadian officer received
the following information from a US counterpart and noted:
·"Received call from Officer
Smith, Customs & Border Control at Windsor Ambassador Bridge stating that
she is currently interviewing the subject [Mr. Gavriluta] who is reentering the
USA after being in Canada for work for the last 2 weeks. Subject is employed by
Clariant USA. Subject stated to Officer Smith that he has only lived in the USA
(Minnesota) since 2004 and has never lived in Canada. Subject is a permanent
resident in the USA A#097-963-928."
·The Applicant's Romanian
passport has many USA entry stamps with a hand-written imprint of
"ARC." The imprint "ARC" means Alien Registration
Card." Also, under some of these stamps the serial number A #097-963-928 is
written. The serial number is identical to the number referred to in the FOSS
notes mentioned above. [Emphasis in original]
17 The
Citizenship Judge then commented upon the examination of the male Applicant at
the hearing of December 28, 2011, as follows:
·At the Dec. 28, 2011 hearing, I
raised the Green Card issue with the Applicant and his response to Question
7(d) on Page 2 of the Canadian Citizenship Application (CIT 0002). He
stated:
·"The way I interpreted is
that when it says 'resident' it means that where I reside. I have also Romanian
passport but I do not reside there. It was misunderstanding.
·When I read him Question 7(d) on
page 2 of the Citizenship Application and stated that the question is very
clear about the issue of having permanent residency status in any other
country, he replied:
·"That's how I understood
it; it is misunderstanding."
·I asked him about the US Custom
and Border Patrol Officer's comments in the FOSS note. To this query he said,
"It was misunderstanding." I asked him if he still has his Green Card
and if the US authorities are aware that he has permanent residency status in
Canada. He replied "Yes" to both questions. I asked him to provide me
a letter from the US authorities stating that they are aware that he is a
permanent resident holder in the US and Canada simultaneously and then
requested an outline of the policy on retaining the Green Card. He stated
"I will go and ask them."
·After interviewing Mr. and Ms.
Gavriluta separately, I called them back together to my office to give them the
new Residency Checklist to submit the missing supporting documents which they
failed to submit with the Aug. 10, 2010 [residency questionnaire] request. I
also asked them to provide to me their US Green Card applications and a letter
from US authorities stating that they are aware that the Applicants are
permanent residents of Canada and stating the US policy vis-à-vis Green Card
Holders who reside in Canada.
·To this request, Ms. Gavriluta
turned to her husband and said to him: "You will lose your Green
Card." Mr. Gavriluta then said to me, "We will consult our
lawyer." This response indicates that Ms. Gavriluta had an awareness that
holding permanent residence status in two countries might raise red flags for
immigration and citizenship officials in both countries.
·At the hearing the Applicant
stated that he "files income tax in the US but he doesn't pay." This
raises the question as to why would someone who is living, working, and filing
income tax in Canada has to file US income tax unless they have residence
status in the US.
·The above observation leads me
to conclude that Mr. Gavriluta has US residence status and this puts into
question his physical presence in Canada, and the number of days he claims that
he resided in Canada during the relevant period.
18 The
Citizenship Judge also noted that two re-entries to Canada could be seen in the
male Applicant's Integrated Customs Enforcement System ("ICES")
Travel History and three in the female Applicant's travel history, none of
which were declared by the Applicants in either their citizenship applications
or their residency questionnaires. In the case of the male Applicant the
undeclared re-entry dates were March 21, 2006, and November 25, 2007. In the
case of his wife, the undeclared re-entry dates were March 4, June 17, and
November 25, 2007.
19 By
a letter dated February 10, 2012, the Applicants' lawyer acknowledged these
dates after receiving a copy of the ICES Travel History and advised that
"Mr. and Ms. Gavriluta advised that these are 1-day return trips to the US
as they are not stamped on their passport." However, without documentary
evidence to confirm that statement, the Citizenship Judge found that the
departure dates, and the true length of the trips, could not be established.
20 After
noting other minor inconsistencies in the travel dates given by the Applicants,
the Citizenship Judge then reviewed the Applicants' Ontario Health Insurance
Plan ("OHIP") usage history by examining their OHIP claims. He noted
a break of approximately two years, that is from February 2006 to January 2008,
in the male Applicant's usage history. There was a thirteen month gap, that is
from September 2006 to October 2007, in the female Applicant's usage history. The
Citizenship Judge expressed the view that these breaks were inconsistent with
the Applicants' otherwise "extensive utilization of the medical system in
Ontario."
21 The
Citizenship Judge then considered that the Applicants had not obtained the
information and documents that they had been requested to obtain from the
American authorities. The Citizenship Judge did not accept their lawyer's
statement that the requested information and materials "were not
available".
22 The
Citizenship Judge then proceeded to review other documents that had been
provided by the Applicants, including Canada Revenue Agency Assessments,
mortgage statements, municipal tax bills, and joint bank account statements.
The Citizenship Judge characterized these documents as "passive
indicia" of residency. Overall, the Citizenship Judge was not satisfied
that the Applicants had submitted credible evidence or that they had discharged
their burden of proving, on a balance of probabilities, that they had met the
residency requirements of the Act as set out in subsection 5(1) of the Act.
III. Issues
23 The
within proceeding raises the following issues:
·i)
What is the applicable
standard of review;
·ii)
Did the Citizenship
Judge err in selecting the wrong test for residency under paragraph 5(1)(c) of
the Act;
·iii)
Did the Citizenship
Judge err in his assessment of credibility; and
·iv)
Did the Citizenship
Judge err in calculating the time for the purposes of establishing
residency?
IV. Discussion and Disposition
24 The
first issue to be addressed is the applicable standard of review. According to
the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, there are only two standards of review in the
domain of administrative law, that is correctness for issues of law and
procedural fairness, and reasonableness for questions of fact and mixed fact
and law.
25 The
Applicants argue that the Citizenship Judge's selection of the applicable test
for residency is correctness, referring to several decisions including El Ocla v. Canada (Minister of Citizenship and Immigration) (2011), 389 F.T.R. 241 at para. 14, and Dedaj
v. Canada (Minister of Citizenship and Immigration)
(2010), 372 F.T.R. 61.
26 The
Respondent submits that it remains within the discretion of the Citizenship
Judge to decide which test to apply and that as long as one of these tests is
correctly applied there will be no error on that basis alone; see the decisions
in El-Khader v. Canada (Minister of Citizenship and
Immigration) (2011), 386 F.T.R. 142 at para. 10 and Balta v. Canada (Minister of Citizenship and Immigration) (2011), 403 F.T.R. 134 at para. 10.
27 In
my opinion, since the jurisprudence allows for a choice among the tests for the
purpose of establishing residency, the choice of test is a question of
discretion for the Citizenship Judge; see the decision in Lam v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 177. Discretionary decisions are subject to
deference; see Dunsmuir, supra, at para. 53. It follows that both the
choice of the residency test and its application are reviewable on the standard
of reasonableness.
28 The
Citizenship Judge chose to apply the residency test set out in Pourghasemi, Re (1993), 62 F.T.R. 122. This
test relies upon a strict count of days, as opposed to the "centralized
mode of living" test as per Re Papadogiorgakis, [1978] 2 F.C. 208 at page 214, or the test of "substantial
connection" as set out in Koo, Re (1992), 59 F.T.R. 27 at para. 10.
29 The
Citizenship Judge was allowed to choose one of the three tests. The next
question is whether he reasonably applied the test chosen, that is, did the
Citizenship Judge reasonably conclude that the Applicants had failed to
establish their physical presence in Canada for 1,095 days, in order to satisfy
the requirements of the Act?
30 In
addressing this issue, I must necessarily look at the manner in which the
Citizenship Judge assessed the credibility of the Applicants, as well as his
assessment of the reliability of the various documents that were submitted.
31 In
my opinion, the Citizenship Judge's concerns about the Applicants' credibility
were well-founded. The most obvious matter is the FOSS note entry, reproduced
above, which shows that the male Applicant was not forthright about the history
of his residence in both Canada and the United States. The male Applicant did
not give a clear answer as to why he told the Canadian immigration officer that
he had never lived in Canada and had been living in the United States since
2004. According to the reasons of the Citizenship Judge, the male Applicant
dismissed this statement as a "misunderstanding". The Citizenship
Judge reasonably found that there were serious grounds to disbelieve the male
Applicant.
32 There
is a further related serious concern about the Applicants' truthfulness and
credibility, arising from the Applicants' answer to question 7(d) on the
citizenship application, that is the question "Do you have permanent
resident status in any other country?" The Applicants gave a negative
answer. Both Applicants were examined on this issue, separately, according to
the reasons of the Citizenship Judge. He concluded that the Applicants had
misrepresented the facts in giving negative answers to this question. He did
not accept their explanation that the negative answers were a result of a
misunderstanding.
33 The
Citizenship Judge made a reasonable finding that the Applicants had
misrepresented their status in the United States.
34 The
Applicants' arguments about the "materiality" of their
misrepresentation cannot succeed. They submit that the "damage"
arising from the missing re-entry data can be limited to a certain range of
dates, based on the "undisputed" re-entry dates entered in the
record. However, even if those particular re-entry dates can be limited by the
previously recorded re-entry dates in the ICES travel history, there is no
means of verifying the accuracy of the departure dates.
35 In
these circumstances, the entire travel history of the Applicants is in doubt.
No independent confirmation of their claim has been provided. I am satisfied
that the Citizenship Judge considered the materiality of the Applicants'
misrepresentation and reasonably found that misrepresentation to be relevant to
all their claims. The Citizenship Judge acted reasonably in rejecting the
Applicants' claim to Canadian citizenship on the basis of the evidence before
him.
36 Although
the Citizenship Judge erred in setting out the relevant time period for
determining residency, a point addressed by Counsel in post-hearing
submissions, this error does not affect the ultimate decision and disposition of
these appeals.
37 The
Citizenship Judge found that the relevant period for assessing the residency
required for the male Applicant was August 14, 2005, to March 8, 2009. This was
wrong; the relevant period was March 8, 2005, to March 8, 2009. In my opinion,
the error is immaterial since it is clear from the decision that the
Citizenship Judge was applying the physical presence test and given the
problems with the evidence submitted by the Applicants, he could not determine
if the Applicants had met the threshold of 1,095 days of residency.
38 In
conclusion, the Applicants have failed to show that the Citizenship Judge
committed any reviewable error or that the decision fails to meet the standard
of reasonableness. The decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and the law.
39 These
reasons will be filed in cause number T-946-12 and placed on the file in cause
number T-947-12.
40 The
appeals will be dismissed. Since the Respondent did not seek costs, none will
be awarded.
