Date: 20100426
Docket: IMM-3493-09
Citation: 2010 FC 450
Ottawa, Ontario, April 26,
2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
qianghua
cao
chugang wu
zhimin wu
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
concerns an application submitted pursuant to sections 72 and following of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) by Qianghua Cao
(the “principal Applicant”), her husband Chugang (or Chuguang) Wu, and her son
Zhimin Wu, all citizens of the People's Republic of China, seeking judicial review
of a decision dated June 23, 2009 of Susan Burrows, Consul (Immigration) at the
Canadian Consulate General in Hong Kong (the “Senior Officer”) rejecting,
pursuant to paragraph 40(1)(a) of the Act, the principal Applicant’s
application for permanent residence in Canada on the ground of
misrepresentation.
[2]
This
application for judicial review shall be dismissed for the reasons set out
below.
Background
[3]
The
principal Applicant submitted an application dated April 30, 2007 for permanent
residence in Canada as a
business immigrant. In this application, she describes herself as “Board
Chairman & General Manager” (at page 163 of the Tribunal Record).
[4]
In
her background declaration dated October 26, 2008, the principal Applicant mentioned,
with respect to her educational achievements, studies at Guangzhou Radio School and
part-time studies in economic management. She did not mention any training, curriculum,
degree or certificate in law. The principal Applicant also mentioned that she
had been employed, since 1994, as “Legal Representative, President and General
Manager” by the Guangzhou Haizhu District Xinda Real Estate Consultant Service Center
(“Xinda”) (at page 167 of the Tribunal Record). She did not mention any
employment or association with a law firm.
[5]
In
a document attached to her application and dated October 28, 2008, the
principal Applicant claims to hold 67% of the shares of Xinda. She states that Xinda
is active “mainly in analysis and consultancy on investment project (sic) of
real estate, supplementary service for real estate exchange, legal consultancy
service, etc.” and she states that she is employed in Xinda as “legal
representative and concurrently general manager” (at page 174 of the Tribunal
Record).
[6]
Numerous
documents setting out the principal Applicant’s experience and education were
attached to her application for permanent residence, but none concerning any
legal training or any association with a law firm. Some of these documents appear
to be official registrations for Xinda in which the principal Applicant is
described as Xinda’s legal representative, and the corporate purposes of Xinda
are said to include real estate information consulting.
[7]
An
organizational chart of Xinda was also submitted with the application, and it designates
the principal Applicant as the General Manager of the business responsible for
three departments, namely Finance, Personnel and Marketing. A distinct Deputy
General Manager position is also set out in this chart responsible for “Law
Consulting Service” and “Information Service” (at page 123 of the Application
Record).
[8]
While
her application for permanent residence was being processed, the principal
Applicant also submitted to Canadian immigration authorities an application
signed August 11, 2008 to obtain the required authorization for the purpose of
temporary travel plans to Canada. In this temporary residence application,
the principal Applicant stated that she was employed as a “lawyer” by “Everwin
Law Office” in Quangzhou where she was a “partner” (at pages 154-55 of the Tribunal
Record). Moreover, the principal Applicant made no mention whatsoever of Xinda
in her temporary residence application.
[9]
The
officer reviewing her permanent residence application eventually took note of
the discrepancies, and a letter dated March 17, 2009 (the “fairness letter”)
was sent to the principal Applicant informing her of the apparent misrepresentation,
and asking her for information or documents which might clarify the situation.
[10]
The
principal Applicant responded on April 9, 2009 stating that she had always been
the “Legal Representative and General Manager” of Xinda since 1994. However,
since Xinda is active in real estate consulting, the types of legal problems
the business encounters are manifold. This was said to explain why she obtained
a lawyer’s licence after two years of self-study, and passed the National
Lawyer Qualification Examination to become a lawyer in June of 1997. However,
she claims that in order to be able to practice law, she needed to register her
license and join a licensed law firm. Consequently, she claims that she
registered as a part-time lawyer with the Everwin Law Office (“Everwin”) in
1998. She states that she only works as an in-house lawyer for Xinda and thus provides
legal advice to Xinda’s clients and never does any work for Everwin. In sum, the
Applicant asserts that her arrangement with Everwin is simply one of
convenience.
[11]
In
her April 9, 2009 response, the principal Applicant explained as mistakes by
her travel agency the statements in her temporary visa application concerning
her employment as a lawyer for, and a partner of, Everwin. She claims she gave
that agency all required documents, including Xinda’s documents and her
lawyer’s license. She adds that it was the travel agency that prepared the
application and made the mistakes. She thus blames her travel agency for the
inclusion of the wrong information in the temporary residence application.
[12]
As
to the absence of any mention of Everwin in her permanent residence
application, the Applicant explains this omission as follows: “I might not
mention much about my part time job as a lawyer with “Everwin” because I don’t
have to deal with them at all and I never have to report duty to them, that
sometimes makes me forget about them.”
The impugned decision
[13]
The
notes in the record dated June 19, 2009 from the Senior Officer set out the
details of her decision to deny the application for permanent residence on the ground
of misrepresentation:
It is clear to me that the applicant
misrepresented material facts related to her work experience. Such facts could
have led to an error in the administration of the act as we may have omitted
crucial backgrounds checks related to her admissibility. Her explanation of blaming
discrepancies on an agency that completed her forms is a common one but not a
credible one. She is responsible for ensuring that her applications are
complete and truthful. She was given an opportunity to explain her omissions
and did not provide a credible explanation. By my authority, I am refusing this
application as per section A40 and sending a refusal letter to that effect.
This renders her inadmissible to CDA for all purposes for two years.
Relevant provisions of
the Act
[14]
The
relevant provisions of the Act are subsection 16(1) and paragraphs 40(1)(a) and
40(2)(a), which read as follows:
|
16. (1) A person who makes an application must answer truthfully all
questions put to them for the purpose of the examination and must produce a
visa and all relevant evidence and documents that the officer reasonably
requires.
40. (1) A permanent resident or a foreign
national is inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding
material facts relating to a relevant matter that induces or could induce an
error in the administration of this Act;
[…]
(2) The following provisions govern subsection (1):
(a) the permanent resident or the foreign national continues to
be inadmissible for misrepresentation for a period of two years following, in
the case of a determination outside Canada, a final determination of
inadmissibility under subsection (1) or, in the case of a determination in
Canada, the date the removal order is enforced; […]
|
16. (1) L’auteur d’une demande au titre de la présente loi
doit répondre véridiquement aux questions qui lui sont posées lors du
contrôle, donner les renseignements et tous éléments de preuve pertinents et
présenter les visa et documents requis.
40. (1)
Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
a) directement ou indirectement, faire une présentation
erronée sur un fait important quant à un objet pertinent, ou une réticence
sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans
l’application de la présente loi;
[…]
(2) Les dispositions
suivantes s’appliquent au paragraphe (1):
a) l’interdiction de territoire court pour les deux ans
suivant la décision la constatant en dernier ressort, si le résident
permanent ou l’étranger n’est pas au pays, ou suivant l’exécution de la
mesure de renvoi; […]
|
Position of the principal
Applicant
[15]
The
principal Applicant submits that no issue of misrepresentation is raised in
this case. Specifically, the principal Applicant argues that in assessing
misrepresentation, it was not open to the Senior Officer to consider the
temporary residence application, since that application was unrelated to the permanent
residence application at issue in these proceedings. Consequently, the real issue
to be addressed by this Court is rather whether the principal Applicant withheld
material facts relating to a relevant matter that induced or could induce an
error in the administration of the Act in relation to her permanent residence
application.
[16]
The
principal Applicant further argues that the Court cannot find that she withheld
information under paragraph 40(1)(a) of the Act, unless she was expected to
provide the information because specific questions had been asked or she had
been otherwise made aware that she had to disclose a relevant fact. Applicants should
not be exposed to the risk of being declared inadmissible for having
unintentionally withheld information.
[17]
Consequently,
the principal Applicant submits that she answered correctly the questions on
her work experience in her permanent residence application by advising the
authorities of her activities since 1994. She asserts that all the information
provided was correct, she disclosed that she was the legal representative and
general manager of Xinda and that this enterprise supplied legal services
related to real estate consultancy work. Moreover, she had no duty to disclose
her registration with Everwin since this relationship was entered into as a
mere formality that enabled her to provide advice to Xinda.
[18]
The
principal Applicant further submits that even if this Court were to find that
she did withhold information, it did not concern material facts relating
to a relevant matter that induced or could induce an error in the
administration of the Act. Her registration with Everwin was simply pro
forma, and could have no influence on her application for permanent
residence as a business immigrant. The information withheld must be shown to
have led to an error in the administration of the Act, and this has not been shown
in this case. The Senior Officer does not explain why the principal Applicant,
who applied for permanent residence as a successful businesswoman and manager
of a real estate company, would have required less scrutiny than she would now
require given that it was revealed that in addition to these functions, she was
also a part-time lawyer providing legal advice to the same company.
[19]
Moreover, the principal Applicant corrected the information
supplied after receiving her fairness letter; hence, it is submitted by the
principal Applicant that under paragraph 40(1)(a), an applicant is not barred
from correcting a misrepresentation or providing withheld information as long
as no official has acted on the basis of flawed information.
Position of the Minister
[20]
The
Minister first submits that the applicable standard of review in this case is
that of reasonableness.
[21]
The
Minister is of the view that the principal Applicant did not provide complete,
honest and truthful information both when she submitted her application for
permanent residence and subsequently submitted her application for temporary
residence. Both applications are clearly contradictory; therefore, there has
been a misrepresentation on the part of the principal Applicant. These
misrepresentations were material and directly or indirectly induced or could
have induced an error in the administration of the Act.
[22]
The
Senior Officer considered the explanations given by the principal Applicant concerning
these discrepancies and found them not to be credible. Such a decision was
reasonable in the circumstances, was based on the evidence, and was open to the
Senior Officer to make. Consequently, this Court should not disturb this
finding.
Standard
of review
[23]
The
decision of the Senior Officer in this case raises essentially questions of
fact: did the principal Applicant make misrepresentations or withhold
information? If the answer is affirmative, were those misrepresentations or
withheld information material in that they could have induced an error in the
administration of the Act?
[24]
As
noted in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (“Dunsmuir”)
at paragraph 53, decisions from administrative bodies concerning issues of fact
usually attract a standard of reasonableness in judicial review proceedings.
This is the standard applicable in this case to the determinations of facts made
by the Senior Officer.
[25]
However,
the decision is also being challenged by the Applicant on the basis that the Senior
Officer misapplied or misconstrued paragraph 40(1)(a) of the Act. The interpretation of that
provision is a question of law. In addition, it was stated by the Supreme Court
in Dunsmuir (at paragraph 54) that a standard of reasonableness may also
apply where a tribunal is interpreting its own statute or statutes closely
connected to its function, with which it will have particular familiarity.
However this is not always the case. Here, a consideration of various factors
leads me to conclude that the Senior Officer’s decision must be reviewed on a
standard of correctness if the interpretation of paragraph 40(1)(a) of the Act
is at issue.
[26]
I
come to this conclusion in view of a number of factors; in particular, the Senior
Officer is not an administrative tribunal but rather an officer of the Crown
entrusted with a non-adjudicative function; the Senior Officer’s decision is
not covered by a privative clause; the Senior Officer holds no special expertise
in the interpretation of the Act and, in view of the general scheme of
paragraph 40(1)(a), no deference is due to the Senior Officer on questions of
law raised in a determination of misrepresentation.
[27]
In
addition, the approach described above is consistent with the pre-Dunsmuir case
law of this Court. It was held in Khan v. Canada (Minister of
Citizenship and Immigration), 2008 FC 512, [2008] F.C.J. 648 (QL) (at
paragraph 22) that questions of statutory interpretation related to paragraph
40(1)(a) of the Act are subject to a standard of correctness. It has also been
held that determinations of misrepresentations under that paragraph call for deference
in judicial review proceedings, since they are factual in nature: Baseer v.
Canada (Minister of Citizenship and Immigration), 2004 FC 1005, [2004]
F.C.J. 1239 (QL) at paragraph 3 and Bellido v. Canada (Minister of
Citizenship and Immigration), 2005 FC 452, [2005] F.C.J. 572 (QL) at
paragraph 27.
Analysis
[28]
Under
paragraph 40(1)(a) of the Act, the Applicant is inadmissible to Canada if she
has misrepresented or withheld material facts on a relevant matter that induces
or could induce an error in the administration of the Act. I conclude that this
provision, read in combination with paragraph 16(1) of the Act, imposes a
general and broad duty on the Applicant to disclose all facts which may be
material to her application for permanent residence. The Canadian immigration
system rests on the premise that all persons applying under the Act will
provide truthful and complete information on the basis of which decisions
regarding their eventual admission into Canada will be made. The integrity and credibility of
that system requires that this duty be taken seriously by all those concerned,
including in this case the Applicant.
[29]
In the
light of these principles, I disagree with the Applicant, who submits that her
temporary visa application cannot be taken into account in determining whether
she misrepresented information or withheld information in her permanent residence
application. The temporary visa application is a proper document for the Senior
Officer to consider, and the argument that a misrepresentation in the temporary
residence application cannot attract the application of paragraph 40(1)(a) is
not cogent.
[30]
The
information provided by the Applicant in her temporary residence application is
clearly inconsistent with the information she provided in her permanent
residence application. In one application she claims to be a lawyer and a partner
of the law firm of Everwin, while in the other she claims to be a senior
manager and majority shareholder of Xinda. Obviously the Applicant has made a
misrepresentation in at least one of these applications, and this in and of
itself sufficient to attract the application of paragraph 40(1)(a) of the Act.
[31]
The
Applicant admits to the misrepresentation in her temporary residence
application, but argues that this was an error of her travel agent. Again, that
does not bar the application of paragraph 40(1)(a) of the Act. The Applicant
signed her temporary residence application and consequently must be held
personally accountable for the information provided in that application. It is
as simple as that.
[32]
The
Applicant denies having withheld information in her permanent residence application,
and rather attributes her omission to mention her legal training and
certification and her association with Everwin as facts that simply slipped from
her mind. The Senior Officer did not find this explanation credible and this
finding is clearly reasonable in the circumstances. It indeed defies belief
that a difficult legal training leading to certification as a lawyer would have
been forgotten by the Applicant in submitting her permanent residence
application. In addition, the Applicant's claim lacks credibility in the light
of her own admission that she viewed this information as relevant for the
purposes of her temporary residence application. If it was relevant for the
latter purposes, it follows logically that it was relevant for the purposes of
her permanent residence visa application.
[33]
The
Applicant further asserts that her association with Everwin is purely one of
convenience since she simply acts as legal counsel to Xinda. However the
organizational structure of Xinda provided by the Applicant rather shows that
the Deputy General Manager of Xinda, and not the Applicant, is responsible for
Xinda’s legal department.
[34]
Finally,
the Applicant argues that the misrepresentation or withholding was subsequently
cured when she provided the information after she received the fairness letter.
I disagree. When the Minister uncovers the fact that a misrepresentation has
been made or that information has been withheld, a simple subsequent correction
of the record or the communication of the information in question will not
normally act as a bar to the application of paragraph 40(1)(a): Khan v.
Canada (Minister of Citizenship and Immigration), supra at paragraph
25.
[35]
I
turn now to the question of the relevance and materiality of her misrepresentations.
The Senior Officer found that those misrepresentations or omissions could have
led to an error in the administration of the Act in that crucial background
checks related to the Applicant’s admissibility may not have been carried out.
This is a finding of fact closely related to the procedures and policies
applied by the immigration authorities working out of the Hong Kong office. Deference
is owed by this Court in reviewing this finding. Unless it can be demonstrated
that this finding is unreasonable, it should not be overturned in a judicial
review proceeding.
[36]
The
Senior Officer noted at paragraph 11 of the affidavit she signed in the context
of this judicial review proceeding that certain occupations, such as that of
lawyer, could be subjected to background checks. This affidavit was not
challenged by the Applicant, and no evidence was presented to me to show that
such background checks were not carried out by the Hong Kong office for lawyers
seeking permanent residence in Canada. Consequently, the Applicant has failed to
convince me that the finding of the Senior Officer on this matter was
unreasonable or otherwise flawed.
Conclusion
[37]
This
application for judicial review is dismissed.
[38]
This
case raises no question to be certified pursuant to paragraph 74(d) of the Act.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application for judicial
review is dismissed.
"Robert
M. Mainville"
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