Date: 20100823
Docket: IMM-6186-09
Citation: 2010 FC 836
Ottawa, Ontario, August 23,
2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
JOSEPH
STEPHEN DE LARA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Joseph
Stephen de Lara applies to this Court pursuant to section 72 of the Immigration
and Refugee Protection Act, (2001, c. 27) (IRPA) for judicial review
of an exclusion order made against him November 19, 2009 by the Immigration
Division of the Immigration and Refugee Board.
[2]
Mr. de
Lara is from the Philippines and applied in 2005 for a
work permit authorizing him to work in Canada as a live-in caregiver for a family
member. He applied for an extension of this work permit in 2008, which was
granted. One month after this work permit was granted he applied to change his
employer, which was also approved.
[3]
On return
from a visit to the Philippines in 2009, Mr. de Lara was interviewed by an
immigration officer at the Vancouver
Airport. During this interview he
admitted he was married to his latest employer. He did not disclose his
marriage when he applied to change the employer listed on his work permit in
2008.
[4]
The
airport immigration officer filed an inadmissibility report pursuant to
paragraph 44(1) of IRPA. The report was reviewed by the Minister’s
Delegate who conducted a further interview of Mr. de Lara. Upon Mr. de Lara’s
confirmation that he had been married to his prospective employer, the
Minister’s Delegate referred the matter for an admissibility hearing before a
member of the Immigration Division as provided by section 44(2) of IRPA.
[5]
An
admissibility hearing was held on November 19, 2009. The Member found Mr. de
Lara was inadmissible to Canada for misrepresentation, as set out in paragraph
40(1)(a) of IRPA, and issued an exclusion report against Mr. de Lara as
provided in paragraph 45(d) of the Act.
[6]
Mr. de
Lara applies for judicial review of Member’s decision.
Background
[7]
Mr. de Lara
first applied to work in Canada as a caregiver for his sister
in 2005. This familial arrangement was disclosed and accepted by the Canadian
Immigration Centre (CIC). Mr. de Lara began and continued to work under the
auspices of the work permit as a Live-in Caregiver from May 2007 to July 2008.
[8]
Mr. de
Lara married Dorothy Mandonahan in Pasig City, Philippines on March 2, 2007. They had two children
together, one born in November 2007 and the other born in September 2008. Ms.
Mandonahan also has two older children from a previous marriage.
[9]
On
February 25, 2008 Mr. de Lara applied for an extension of his work permit. On
this application Mr. de Lara put a check in the application box marked “Never
Married” and did not list having any family members in spite of being married
to Ms. Mandonahan and having one child with her at that time. This extension
application was granted.
[10]
On March
22, 2008 Mr. de Lara applied to change the employer listed on his work permit
from his sister to Ms. Dorothy Mandonahan. He again indicated he was “Never
Married”. His request in this application was:
“TO CHANGE MY EMPLOYER FROM MR. AND MRS.
MANUEL AND IRENE TULENTINO TO MS. DOROTHY MANDONAHAN.”
[11]
The
immigration officer who issued the work permit did not know that the proposed
new employer, Ms. Mandonahan, was Mr. de Lara’s wife. In her declaration the
officer deposes she would have referred the case to a more senior officer for
further consideration, had she known about the relationship.
[12]
This
employer/spousal relationship was not discovered until September 29, 2009 when
Mr. de Lara returned from visiting family in the Philippines and was questioned by an immigration
officer at the Vancouver
Airport about
the details of his work permit. At that time Mr. De Lara acknowledged being
married to Ms. Mandonahan.
[13]
Officer
Liang, who interviewed Mr. de Lara, filed a paragraph 44(1) IRPA report
alleging the Applicant breached the Act by misrepresentation and
referred the matter for review by the Minister’s Delegate.
[14]
In the
Minister’s Delegate review, another immigration officer interviewed Mr. de
Lara. The interview included the following exchanges:
Q: What is your relationship with Dorothy
Mandonahan?
A: She is my wife.
And
Q: Why did you not disclose
your relationship with your employer when you applied for your work permit?
A: I only continued with
what I had when I started with. I was single when I first applied, I didn’t
know how to change it. It was my intention when I changed it for 24 months to
ask the agency how to do it. I didn’t know what agency to ask. I applied fro
[sic] my new work permit in July 2008, I am not very sure.
And
in response to being presented with the airport immigration officer’s report:
Q: … Do you understand this
report?
A: Yes, I misrepresented myself.
I have a question, who should I have given this information to?
[15]
This
exchange led to an admissibility hearing at the Immigration Division to further
examine the allegation that Mr. de Lara misrepresented himself and to decide if
an order for his exclusion from Canada
should be made.
[16]
The
admissibility hearing was held on November 19, 2009 in Vancouver, where the presiding member decided Mr.
de Lara was inadmissible to Canada and ordered his exclusion.
Decision
Under Review
[17]
The
Member’s decision and reasons are recorded in the transcript of the hearing and
reads as follows:
I have reviewed the materials and I have
heard the submissions of both parties. It’s quite clear, Mr. De Lara, that you
are inadmissible to Canada for misrepresentation. The
law requires that I make an exclusion order against you and I so order. I’ll
explain my reasons to you.
You were married in March of 2007 and the
person that you married was, until recently, your current employer. After being
married, you signed two different applications. One was signed on the 25th
of February, 2008; the second was signed on the 25th of May, 2008.
The first one I believe was simply to extend your employment with a past
employer and the one signed on May 25th, 2008, was to apply to
change your employer from your previous employer to a person who is now your
wife.
Clearly your marital status at that time
would have been of interest to the person who was deciding whether or not to
issue a work permit. And we have a statement on page 8 form the person who
issued the work permit to you saying that had she known that you were married
to Dorothy Mandonahan, she would not have issued a work permit to you at that
time.
So you made a misrepresentation and that
misrepresentation certainly was one that induced or could have induced an error
in the administration of the Act because a work permit was issued to you in a
situation where a work permit would not have been issued to you. That makes
this a material misrepresentation and accordingly, you are inadmissible for
misrepresentation.
Legislation
Immigration
and Refugee Protection Act,
(2001, c. 27)
|
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;
…
44.
(1) An officer who is of the opinion that a permanent resident or a
foreign national who is in Canada is inadmissible may prepare a report setting out the relevant
facts, which report shall be transmitted to the Minister.
(2)
If the Minister is of the opinion that the report is well-founded, the
Minister may refer the report to the Immigration Division for an
admissibility hearing, except in the case of a permanent resident who is
inadmissible solely on the grounds that they have failed to comply with the
residency obligation under section 28 and except, in the circumstances
prescribed by the regulations, in the case of a foreign national. In those
cases, the Minister may make a removal order.
…
45.
The Immigration Division, at the conclusion of an admissibility
hearing, shall make one of the following decisions:
…
(d)
make the applicable removal order against a foreign national who has
not been authorized to enter Canada, if it is not satisfied that the foreign
national is not inadmissible, or against a foreign national who has been
authorized to enter Canada or a permanent resident, if
it is satisfied that the foreign national or the permanent resident is
inadmissible.
(emphasis
added)
|
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;
…
44.
(1) S’il estime que le résident permanent ou l’étranger qui se trouve au
Canada est interdit de territoire, l’agent peut établir un rapport
circonstancié, qu’il transmet au ministre.
Suivi
(2)
S’il estime le rapport bien fondé, le ministre peut déférer l’affaire à la
Section de l’immigration pour enquête, sauf s’il s’agit d’un résident
permanent interdit de territoire pour le seul motif qu’il n’a pas respecté
l’obligation de résidence ou, dans les circonstances visées par les
règlements, d’un étranger; il peut alors prendre une mesure de renvoi.
…
45.
Après avoir procédé à une enquête, la Section de l’immigration rend telle des
décisions suivantes :
…
d)
prendre la mesure de renvoi applicable contre l’étranger non autorisé à
entrer au Canada et dont il n’est pas prouvé qu’il n’est pas interdit de
territoire, ou contre l’étranger autorisé à y entrer ou le résident permanent
sur preuve qu’il est interdit de territoire.
|
Issue
[18]
The
Applicant focuses his submissions on the way the first two immigration officers
conducted their inquiries into his misrepresentation. He argues the immigration
officials breached their duty of procedural fairness.
[19]
I do not
agree that an issue of procedural fairness arises in the circumstances of this
matter. When an applicant believes that there has been a breach of procedural
fairness, he is expected to object at the earliest opportunity: Uppal v. Canada (Minister of Citizenship and
Immigration),
2006 FC 338 at paras. 49-55 (Uppal). The Applicant had the
opportunity to address any perceived procedural unfairness during the review by
the Minister’s Delegate and again during the admissibility hearing by the
Member of the Immigration Board. The Applicant did not raise the issue of
procedural fairness earlier and is precluded from doing so now.
[20]
In my
view, the only issue before me is whether the Member committed a reviewable
error in coming to his decision either in regards to his finding of a material
misrepresentation or in the issuance of the exclusion order.
Standard of Review
[21]
Since Dunsmuir
v. New
Brunswick,
2008 SCC 9, two standards of review are recognized at common law:
reasonableness and correctness. The Supreme Court provides that a standard of
review analysis is not required on judicial review where the appropriate
standard is well settled in the jurisprudence.
[22]
Other
cases involving similar questions as in this judicial review have reviewed
decisions on the standard of reasonableness. Those include Karami v. Canada (Minister of Citizenship and
Immigration),
2009 FC 788, Iamkhong v. Canada (Minister of Public Safety and Emergency
Preparedness), 2008 FC 1349 and Canada (Minister of Citizenship and Immigration)
v. Deol, 2009
FC 990.
[23]
Accordingly,
I will proceed on the basis that the standard of review is reasonableness.
Analysis
[24]
The
Applicant’s approach at the admissibility hearing was to admit to the
misrepresentation and ask for consideration for a stay of removal on
humanitarian and compassionate grounds, relating to the best interests of his
children, and to hardship for his wife and for the family as a whole.
[25]
The
Applicant submits the Member erred in law in failing to have regard for procedural
fairness on the part of the immigration officer’s at the airport interview and the
Minister’s Delegate’s review.
[26]
As I have
said, the Applicant did not raise this issue earlier and may not do so now. In Uppal,
the Court found that the applicant had waived his right to challenge procedural
fairness with respect to the paragraph 44(1) report since he had not objected
before or at the Immigration Division where he was represented by counsel. Uppal
has application here and I draw the same conclusion. The Applicant admitted his
misrepresentation three times and cannot withdraw that admission now.
[27]
The
Applicant submits the Board erred by failing to consider that his mistake was
innocent and that it had no material effect on the issuance of a caregiver work
permit to the Applicant. The Applicant submitted during oral submission that
the Member erred in law when he commented on the fact the Applicant worked as a
live-in caregiver stating: “I don’t understand how the arrangement could be
characterized as one of employee-employer.”
[28]
I consider
the Member’s comment quoted above as arising in the course of the hearing and
not carried into his decision. The Member clearly considers the statutory
definition set out in paragraph 40(1)(a) defining a misrepresentation as one
which “directly …
misrepresents … material facts relating to a relevant matter that induces … an
error in the administration of IRPA.” The Member refers to evidence before him,
the affidavit of the immigration officer which indicated that had she known of
the marriage to the prospective employer she would not approved the application
to change employers and referred it to a senior officer for evaluation. The
Member did not err in coming to the conclusion the misrepresentation was
material.
[29]
The
Member’s decision falls squarely into the range of possible, acceptable
outcomes that are defensible with respect to the facts and law (Dunsmuir,
para. 47).
[30]
The
Applicant argues the Member gave no weight to his attempt to correct an
“innocent mistake”, that he failed to consider the humanitarian and
compassionate submissions, and that he ignored the objectives of the Live-in
Caregiver Program.
[31]
All three
of these arguments fall outside of the Member’s mandate pursuant to paragraph
45 of IRPA. The Member was concerned with one question alone: Was there a
misrepresentation as understood by section 40(1)(a)? If so, section 45(d) of
the Act required the Member to make an exclusion order, which he did.
[32]
The
Applicant proposes five questions of general importance for certification, all
of which I find unsuitable for certification.
[33]
The first
two questions posed by the Applicant relate to the duty of the airport
immigration officer and the Minister’s Delegate. However, the sole issue
before the Court on this judicial review relates to the decision of the Member
of the Immigration Division. In that respect, the Applicant seeks to pose
hypothetical questions not relevant to this judicial review.
[34]
In the
remaining three questions posed, the Applicant raises issues of whether the
Member is obligated to conduct a hearing into the merits of the report by the
Minister’s Delegate or obtain further information either with respect to the bona
fides of the employment contract or the Applicant having an honest and
reasonable belief he was not withholding material information. The short answer
is that it is for the Applicant or his counsel to provide evidence to support
the Applicant’s position. It is the Member’s role to assess, not marshal, the
evidence.
[35]
In result,
I consider the Applicant’s proposed questions unsuitable for certification.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The application for
judicial review is dismissed.
2.
No question of
general importance is certified.
“Leonard
S. Mandamin”
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