Date:
20121130
Docket:
IMM-3292-12
Citation:
2012 FC 1397
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, November 30, 2012
PRESENT:
The Honourable Mr. Justice Simon Noël
BETWEEN:
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AKREM KHEDRI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision of the
Immigration Division (ID) of the Immigration and Refugee Board of Canada
rendered on March 22, 2012. The Panel concluded that Akrem Khedri is
inadmissible pursuant to paragraph 40(1)(a) of the IRPA.
I. Facts
[2]
The
applicant is Tunisian. He applied for a student visa at the Canadian Embassy in
Tunisia, which was issued on December 28, 2010. He arrived in Canada on January
1, 2011, and was granted at the time a study permit valid until March 31, 2012.
[3]
In
support of his visa application, he submitted a bank statement from the Société
tunisienne de Banque Bank (STD Bank) in Tunis.
[4]
On
January 10, 2011, an official from the Canadian Embassy in Tunisia contacted
the STD Bank to verify the authenticity of a number of bank statements from Tunisian
students, including that of the applicant. The STD Bank confirmed that only
three of all the bank statements provided were authentic. That of the applicant
was not mentioned.
[5]
On
December 7, 2012, an immigration officer met with the applicant for an
explanation on the bank statement in question. According to the immigration
officer’s report, the applicant stated that his father obtained the bank
statement and that he was not, therefore, responsible for submitting a
fraudulent document.
[6]
A
hearing before the ID was held on March 13, 2012. In its decision, the ID issued
an exclusion order against the applicant, pursuant to paragraph 229(1)(h)
of the Immigration and Refugee Protection Regulations, SOR/2002-227, as
it concluded that the applicant’s misrepresentation induced an error in the
administration of the Act, within the meaning of paragraph 40(1)(a) of
the IRPA.
II. Impugned
decision
[7]
The
ID confirmed the Minister’s position that the bank statement was fraudulent, based
on the evidence before the Panel, on a balance of probabilities.
[8]
In
fact, the ID found that it was probable that the applicant’s bank statement was
included in the statements sent to the STD Bank for verification on January 10,
2011, despite the fact that a list of names of persons whose bank statement was
verified was not included. Moreover, the CAIPS notes on the applicant’s record
confirm that information.
[9]
The
ID rejected the applicant’s explanation that he honestly believed that the
statement was authentic, as his father, who had taken the steps to obtain it, confirmed
to him that this was indeed the case. The applicant provided as evidence an
e-mail from his father confirming all of this, but the ID gave little probative
value to it.
[10]
Furthermore,
the ID noted that there was no evidence that the applicant took any steps with
the STD Bank to clarify the situation. Such evidence would have proven useful considering
that it was the bank who was in the best position to rectify the situation. Thus,
the decision-maker considered the applicant as being not credible given his
choice not to act, especially when he alleges that he feared he would not be
able to finish his academic year.
[11]
Finally,
the decision-maker rejected the applicant’s argument that there had to be an
intentional element for paragraph 40(1)(a) to apply.
[12]
Thus,
the analysis of the evidence as a whole led the Panel to conclude, on a balance
of probabilities, that the applicant’s bank statement was fraudulent and that
this element of fraud was material to his application, namely, his financial capability
to support himself while studying in Canada. The ID was, therefore, of the view
that it was reasonable to believe that this misrepresentation induced an error
in the application of the IRPA.
III. Applicant’s
position
[13]
The
applicant submits that the ID should have considered the fact that he was unaware
that the document was falsified and that, therefore, it erred in concluding
that it is not necessary to prove the intent of the applicant to mislead.
[14]
In
the alternative, the applicant submits that the ID arrived at an unreasonable conclusion
in determining that the document was falsified. Moreover, he alleges that the ID
unduely reversed the burden of proof in the circumstances by imposing on the applicant
the burden of proving the authenticity of the document.
IV. Respondent’s
position
[15]
The
respondent submits that the decision-maker must assess the evidence as a whole
based on a balance of probabilities. In this context, the applicant had to
substantiate his submission that the bank statement was authentic on the basis
of probative evidence. Furthermore, the applicant cannot be exempted from the
law on the sole basis that he was unaware that the statement had been falsified.
V. Issue
[16]
Did
the ID err in concluding that “mens rea” is not required for
misrepresentation under paragraph 40(1)(a) of the IRPA?
[17]
Did
the Panel err in concluding that the bank statement submitted in support of his
student visa application was falsified?
VI. Standard
of review
[18]
The standard of review applicable to the first issue, namely,
whether paragraph 40(1)(a) requires an element of “mens rea,” is
the standard of reasonableness, as it is a question of law related to the interpretation
of the officer’s home statute (Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654). The second issue requires the application
of the reasonableness standard, as it is a question of mixed fact and law
(Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraphs 164-166, [2008] 1 S.C.R. 190).
VII. Relevant
legislation
[19]
Paragraph 40(1)(a) of the IRPA reads as follows:
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Immigration
and Refugee Protection Act, SC 2001, c 27
Misrepresentation
40. (1) A
permanent resident or a foreign national is inadmissible for misrepresentation
(a) for
directly or indirectly misrepresenting or withholding material facts relating
to a relevant matter that induces or could induce an error in the
administration of this Act;
. . .
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Fausses
déclarations
40.
(1) Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
a)
directement ou indirectement, faire une présentation erronée sur un fait
important quant à un objet pertinent, ou une réticence sur ce fait, ce qui
entraîne ou risque d'entraîner une erreur dans l'application de la présente
loi;
.
. .
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VIII. Analysis
[20]
The
conclusion that the applicant provided a fraudulent document in support of his visa
application and that he must therefore be subject to an exclusion order is reasonable.
[21]
Paragraph
40(1)(a) is clearly written. It states that misrepresentation can be
made “directly or indirectly” and no intent is required on the part of the
person making the allegedly fraudulent statement. Indeed, if this is what
Parliament had intended, the section would clearly reflect the need for a
misrepresentation to be made with intent. Moreover, in the guide “ENF 2:
Evaluating Inadmissibility,” under Tab 9.2, which deals with the nature of
misrepresentation, explicit reference is made to two elements. First, “indirect misrepresentation is where a third party makes a
misrepresentation.” Second, “the misrepresentation need not be willful or intentional—it can also be
unintentional.”
[22]
This
Court has on a number of occasions addressed the issue of the application of paragraph
40(1)(a) of the IRPA to situations where the applicant alleges that
misrepresentation occurred without his or her knowledge. Sayedi v Canada
(Minister of Citizenship and Immigration), 2012 FC 420, 2012 CarswellNat
1125 (Sayedi) summarizes the position of the case law on the matter. In Sayedi,
supra, at paragraph 43, it was decided that applicants cannot shirk their
duty of candour on the basis that they were unaware that their immigration
consultant had submitted false documents in support of their application:
. . . The
applicants in this case chose to rely on their consultant. The principal
applicant acknowledges having signed his application. It would be contrary to
the applicant's duty of candour to permit the applicant to rely now on his
failure to review his own application. It was his responsibility to ensure his
application was truthful and complete -- he was negligent in performing this
duty.
[23]
As
for the possibility of relying on a “defence” when there is a finding of
misrepresentation on the part of the applicant, the Court established that such
a possibility is not open to applicants (Sayedi, supra, at paragraph
44):
[44]
Furthermore, in order for the applicants to rely on a 'defence' to
the finding of misrepresentation, that defence must be grounded either in
statute or common law. In my view, there is no such defence under the Act: the
wording of section 40(1)(a) is broad enough to encompass misrepresentations made
by another party, of which the applicant was unaware: Wang,
above at paragraphs 55-56. Furthermore, in Haque v Canada
(Minister of Citizenship and Immigration), 2011 FC 315, the Court held
that the fact that an immigration consultant was to blame for the misrepresentation
was no defence. As already discussed, the applicants cannot avail themselves of
the exception for an innocent mistake.
[24]
The
applicant cannot, therefore, argue that he was unaware that the bank statement
sought by his father was fraudulent to be exempted from the application of paragraph
40(1)(a) of the IRPA. In fact, the case law is clear: where a person
misrepresents through a third party, paragraph 40(1)(a) of the IRPA
continues to apply (Wang v Canada (Minister of Citizenship and Immigration), 2005 FC
1059, at paragraph 56, 47 Imm LR (3d) 299). Furthermore, the obligation to provide
truthful information and to ensure that his or her application is consistent
with legislation lies with the applicant (Haque v Canada (Minister of Citizenship and Immigration),
2011 FC 315, at paragraphs 13-14, 2011 CarswellNat 1638).
[25]
The
applicant alleges that the ID should have followed the line of authority
established in Osisanwo v Canada (Minister of Citizenship and Immigration), 2011 FC 1126,
3 Imm LR (4th) 52 (Osisanwo) and Baro v Canada (Minister of Citizenship and Immigration),
2007 FC 1299, 2007 CarswellNat 4369 (Baro). The ID took it into consideration,
but did not follow it.
[26]
As
for the applicant’s argument that the principle in Osisanwo, supra,
should be followed, it cannot be upheld. This Court established in Sayedi,
supra, that the facts in Osisanwo, supra, were highly
unusual. In fact, the applicants honestly and reasonably believed the child they had was born of their union, as indicated
on the birth certificate. Rather, the general rule is
that a misrepresentation can occur without the applicant’s knowledge and that the principle established in Osisanwo,
supra, should not be interpreted as supporting the general proposition that a misrepresentation must always
require subjective knowledge for paragraph 40(1)(a) of the IRPA to
apply.
[27]
Moreover,
the facts before us make it impossible for the applicant to even attempt to justify
the non-application of paragraph 40(1)(a) of the IRPA on the basis of an honest and reasonable belief. In fact, since it is the applicant’s father
who made arrangements with the STD Bank to obtain the statement, the onus was
on him to verify its truthfulness. Thus, he cannot avail
himself of the exception provided for in 40(1)(a) of the IRPA for
his negligence.
[28]
To
conclude, the ID fairly interpreted paragraph 40(1)(a) of the IRPA. In fact,
it considered the two lines of authority that deal with the element of intent
in the administration of paragraph 40(1)(a) and concluded that the facts
arising from the applicant’s situation were not analogous to those in Osisanwo,
supra, and Baro, supra.
[29]
Finally,
as for the applicant’s
alternative argument, it cannot be accepted by this Court. In fact, the decision-maker
considered the fact that the STD Bank stated that some statements were
falsified and it is likely, therefore, that the STD Bank’s response to the
Embassy’s question pertained to the applicant’s bank statement. For his part, the applicant submits
as evidence only the fact that his father assured him that the statement was
truthful to support his submission. He did not make any attempt to verify its
accuracy with the STD Bank to try to rectify the situation.
[30]
The
ID reasonably concluded, therefore, based on a balance of probabilities, that
the bank statement was not authentic. In fact, the ID assessed the respondent’s
evidence that a number of bank statements were verified with the STD Bank and
that the bank’s response regarding the valid bank statements did not include
that of the applicant. It also considered the evidence submitted by the applicant,
which included a letter from his father attesting to the truthfulness of the
bank statement. It properly noted that the evidence submitted by the applicant was
not consistent with the best evidence rule, as the applicant’s father cannot attest
to the truthfulness of a letter issued by a third party. It was fair, in the
circumstances, to expect that the applicant submit more probative evidence to
rebut the evidence submitted by the respondent.
[31]
To
conclude, the ID did not reverse the burden of proof. It, therefore, committed
no error with respect to the applicable burden of proof (see Zhang v Canada (Minister of Citizenship and Immigration), 2005 FC 1313,
at paragraph 16, 281 FTR 35) and it validly found that it was more likely that the
bank statement was falsified, considering the weakness of the evidence
submitted by the applicant.
IX. Question
for certification
[32]
A
question for certification was submitted by the applicant. The nature of the
question is the same as that certified in Osisanwo, supra; the
applicant states, however, that a question may concern applications other than an
application for permanent residence. The question is as follows:
Is a foreign national inadmissible
for misrepresenting a material fact if at the time of filing his/her
application for permanent residence, or work permit or student visa, he/she
had no knowledge of the material fact that constituted such misrepresentation?
[33]
The
respondent is of the view that the question proposed by the applicant should
not be certified, as the wording suggests that the Court found that the ID rendered
an unreasonable decision in determining that the applicant was not necessarily aware
that the bank statement was fraudulent. As mentioned earlier, the facts of this
case differ from the facts of Osisanwo, supra.
[34]
The
Federal Court of Appeal ruled in Huynh v Canada (Minister of Citizenship and Immigration), 134 DLR (4th) 612,
36 CRR (2d) 93 (FCA), that for a question to be certified, it is necessary that
it raise a
question of law of general importance. This Court
finds that it is not appropriate to certify a question in this application for
judicial review, as the facts of this case are not suitable for certification. In
Sayedi, supra, at paragraph 56, Justice Tremblay-Lamer declined to
certify a question of the same nature as that submitted by the applicant on the
ground that the answer to this question is already
well-settled. This Court agrees with this finding.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES THAT:
1.
This
application for judicial review is dismissed.
2.
No
question will be certified.
“Simon Noël”
___________________________
Judge
Certified
true translation
Daniela
Guglietta, Translator
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