Date: 20101117
Docket: IMM-611-10
Citation: 2010 FC 1112
Ottawa, Ontario, this 17th
day of November 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
PARAMESWARY SIVAYOGARAJA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of a Visa Officer of the
Immigration Section of the Canadian High Commission in Colombo, Sri Lanka, pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, (the “Act”) by Parameswary Sivayogaraja and her son Mohanathas
Sivayogaraja (the “applicants”). The Visa Officer determined that there were
reasonable grounds to believe that the applicants were members of the
inadmissible class of persons based on alleged misrepresentation as described
in paragraph 40(1)(a) of the Act, and therefore that they do not meet
the requirements for permanent residence.
[2]
The
applicants are Sri Lankan citizens, living in the Jaffna region in northern Sri Lanka. The principal
applicant’s husband left the family in 1989. The applicant has two other grown
children in Jaffna, a son in the United Kingdom, and a daughter,
Mathivathani Vairavanathan, who is a Canadian citizen, and who is acting as
sponsor for the applicants.
[3]
The
principal applicant is a housewife in Jaffna. Her son attended secondary school, and has
obtained certificates at various Sri Lankan technical colleges.
[4]
The
applicants were both interviewed by Visa Officers of the Immigration Section of
the Canadian High Commission in Colombo, on July 14, 2008, and again on November 5,
2009. On December 19, 2009, the applicants received the decision letter
rejecting their application for permanent residence.
* * * * * * * *
[5]
The
Visa Officer found that he was unable to determine the living history of the
applicants due to the inconsistency of the information provided at the
interview on November 5, 2009. He found that he did not have a complete picture
of the background of the applicant and her son, and was not satisfied that they
were not inadmissible to Canada, as the information
presented lacked credibility due to internal discrepancies in the testimonies.
[6]
The
misrepresentations found by the Visa Officer relate to the details of the
places in which the applicants had resided, and the details of where the son
had been schooled, and on which dates. The Visa Officer found that the
misrepresentation or withholding of these facts could have induced incorrect
decisions on the admissibility of the applicants.
* * * * * * * *
[7]
There
appear to be two issues in this application:
a.
Was the Visa
Officer’s finding that the applicants misrepresented or withheld information
unreasonable with regard to the evidence presented?
b.
Did the Visa Officer
breach procedural fairness by failing to provide the applicants with an
opportunity to address the credibility concerns?
[8]
Both
parties agree that the standard of review with respect to a Visa Officer’s
assessment of an application for permanent residence is reasonableness, as per
Justice Michel Beaudry in Wang et al. v. Minister of Citizenship and
Immigration, 2008 FC 798, at paragraph 11.
[9]
The
parties did not address the standard of review with regard to procedural
fairness. Wang, above, states that it is trite law that the applicable
standard of review is correctness (paragraph 13).
* * * * * * * *
A. Was the
finding of misrepresentation reasonable?
[10]
The
applicant acknowledges that her son struggled in the interviews with the Visa
Officer, and that both applicants had areas of inconsistency in their
testimonies. The Computer Assisted Immigration Processing System (“CAIPS”)
notes show that the son was inconsistent or failed to answer questions about:
the length of time he spent in secondary school; when he left secondary school;
the length of time he studied at ComTec; the length of time he studied at
Athetheran Technical Centre of Electricity; and, the number of primary and
secondary schools he attended. The principal applicant’s testimony as to the
amount of time for which the family was displaced to Meesalai did not match the
documentary evidence.
[11]
The
applicant argues that conflicting information does not automatically constitute
misrepresentation, and that the Officer should have taken into account cultural
differences, sophistication, education, intelligence and translation when
considering the inconsistencies. The applicant argues, without being specific,
that the Officer’s finding that it was implausible that the applicants could
not provide the relevant information ignored the cultural background of the
applicants’ situation. The applicant notes that the Officer was told that her
son was forgetful and too scared to answer the questions truthfully. The
applicant relies on the case of Divsalar v. Minister of Citizenship and
Immigration, 2002 FCT 653, where Justice Edmond Blanchard stated at paragraph 24
that “it is accepted that a tribunal rendering a decision based on a lack of
plausibility must proceed with caution”. In context, this statement referred to
an Officer’s determination that certain events in the applicant’s narrative
were implausible, rather than to the implausibility of an applicant’s failure
to remember certain information.
[12]
The
CAIPS notes show that the Colombo Visa Officers confirmed the applicant son’s
birth certificate as well as several school certificates, but were unable to
locate others. The applicants allege that such extrinsic evidence should have
been put to the applicants, as it formed part of the decision-maker’s decision.
In my view, the Officer in this case was merely attempting to confirm the
applicants’ story, and was not researching truly extrinsic considerations. I
agree with the respondent’s contention that the only evidence on which the
Officer based his decision was the applicants’ own contradictory testimony.
[13]
The
applicants argue that the Officer failed to demonstrate how and why concerns
regarding residence and schooling were relevant to potential issues of security
and overall admissibility. While it is true that the Visa Officer is not very
specific as to what facts he believes the applicants may be withholding, in my
opinion his conclusion that he did not obtain a complete picture of the
applicants’ background due to the continued inconsistencies in their testimony
is a reasonable one. The information that the Visa Officer states that he was
trying to obtain was a complete picture of the applicants’ living history and
their activities, and it was on both of these points that the applicants failed
to provide consistent, reliable information.
B. Did
the Officer fail to provide an opportunity for the applicants to address the
inconsistencies?
[14]
The
applicants assert that the Visa Officer breached procedural fairness by not
advising them of his concerns or providing them with the opportunity to
disabuse him of these concerns, and they cite in support of this argument Rukmangathan
v. Canada (Minister of Citizenship and Immigration), 2004 FC 284, at paragraphs
22 and 23, per Justice Richard Mosley. However, I think that the Rukmangathan
case is distinguishable, as it was in the context of extrinsic evidence being
relied upon by a Visa Officer without allowing the applicants to comment upon
it. Furthermore, as the respondent notes, the Court explicitly stated in Rukmangathan
that the Visa Officer is not required to “provide an applicant with a ‘running
score’ of the weaknesses in their application” (paragraph 23).
[15]
In Liao
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.
1926, at paragraph 17, Justice Pierre Blais held that an Officer’s duty to
inform an applicant of his or her concerns will be fulfilled if the Visa
Officer adopts an appropriate line of questioning or makes reasonable inquiries
that give the applicant the opportunity to respond to the Visa Officer’s
concerns.
[16]
I
agree with the respondent that the Officer’s line of questioning in this case
clearly showed his concerns with the inconsistencies in the applicants’
testimony. Each time the applicants gave inconsistent information the Officer
voiced his concerns over credibility and misrepresentation, and provided a
chance for the applicants to explain their testimony. In my opinion the
applicants had numerous opportunities to respond to these concerns, and there
was therefore no breach of procedural fairness.
C. Other
considerations
[17]
It
should be noted that the applicants raise the argument that their sponsor
should have been offered the opportunity to provide an explanation for the
applicants’ contradictory testimony. I agree with the respondent that no right
belonging to the sponsor was at issue in this case, and that there was no
requirement that she be offered an opportunity to testify.
[18]
It
should also be noted that the applicants raise a concern that the CAIPS notes
were not entered contemporaneously during the July 14, 2008 interview, as the
notes resume after a break, under the date heading “16-OCT-2009”. However, the
affidavit of Brian Hudson, the Visa Officer, explains that the date stamp on
CAIPS notes is found at the bottom of the entry (in this case, “14-JUL-2008”),
and that a glitch in the labeling process resulted in the break in the notes.
This appears to me to be an adequate explanation for the appearance of the
notes.
* * * * * * * *
[19]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[20]
No
question is certified.
JUDGMENT
The application for judicial
review of the November 26, 2009 decision of Brian Hudson, a Visa Officer of the
Immigration Section of the Canadian High Commission in Colombo, Sri Lanka,
is dismissed.
“Yvon
Pinard”
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