Docket:
IMM-2375-11
Citation:
2012 FC 427
Ottawa, Ontario, April 13, 2012
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
|
|
BITA TOFANGCHI
SEYED YOUSEF AGHAALAIE
SAMAR AGHAALAIE
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [the
Act] of a decision of Immigration Counsellor A. Luhowy [the counsellor] made on
December 23, 2010, where he determined that the applicants are inadmissible
pursuant to section 40(1)(a) of the Act, due to misrepresentation of a material
fact in their application for permanent residence.
BACKGROUND FACTS
[2]
The
applicants, Bita Tofangchi, Seyed Yousef Aghaalaie, and Samar Aghaalaie, are
citizens of Iran. In 2005, Ms. Bita Tofangchi [the principal applicant], filed an
application for permanent residence in the Federal Skilled Worker class and her
spouse and daughter
applied as accompanying family members. She is a pharmacist.
[3]
In
2005, the principal applicant hired an immigration consultant, Mr. Arash
Rahmatian [Mr. Rahmatian] of Queen Consultants Corporation to assist her in the
preparation of her application for permanent residence in Canada. The consultant was not an authorized immigration consultant or lawyer. He prepared
the application and translated it into English. The Computer Assisted
Immigration Processing System notes [CAIPS notes] indicate that the application
was received on November 21, 2005 by the Canadian Embassy in Damascus.
[4]
The
principal applicant states that, unbeknownst to her, Mr. Rahmatian included an
International English Language Testing System [IELTS] test result that turned
out to be fraudulent [the False Document]. She claims to have specifically
asked Mr. Rahmatian about the requirement to take an IELTS test as part of her
application, but was told that she could write the test at some point in the
future, as the processing of her application could take several years.
[5]
The
principal applicant denies having signed her application form (however the
application for does contain a signature) and alleges that she was never given
a copy of what was submitted by Mr. Rahmatian.
[6]
The
application did not progress for several years until the applicants were
notified in a letter sent by email on January 21, 2009 that the consultant they
had retained was not an authorized representative.
[7]
On
April 28, 2010, the application was transferred to the Canadian Embassy in Warsaw as part of backlog reduction. On July 21, 2010, Canadian officials contacted the
applicants to request updated information, as the processing of their
application was set to begin. The applicants responded with updated submissions
on October 20, 2010, including 2010 IELTS results for the principal
applicant.
[8]
On
October 22, 2010, Immigration Officer M. Maryszczak [the officer] sent the
principal applicant a letter detailing his concerns with her application [the
Fairness Letter]. The Fairness Letter notified her that the officer had been
unable to verify the authenticity of the False Document, and as a result, he
was considering a finding that she was inadmissible for misrepresentation
pursuant to subsection 40(1)(a) of the Act. Another consultant the applicants
had retained by that time responded on December 19, 2010, stating that the
principal applicant was unaware of the False Document and had been the victim
of a fraudulent immigration consultant, and asked that she not be penalized for
Mr. Rahmatian’s actions.
[9]
The
officer rejected the explanation that the principal applicant was not aware of
the False Document as not credible since the application clearly indicated that
an English language test was required to be submitted with the application. On
December 23, 2010, the counsellor accepted the recommendation that the
principal applicant be found to be inadmissible for misrepresentation under
subsection 40(1)(a) of the Act.
APPLICABLE LAW
[10]
Section
40(1)(a) of the Act states:
|
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;
|
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;
|
PRELIMINARY
QUESTION
Can the Court consider the
evidence submitted by the applicants that was not before the decision-maker?
[11]
The respondent submits that the applicants have filed evidence
that was not before the counsellor in his decision. The respondent submits that
the applicants are not entitled to adduce fresh evidence upon judicial review,
except to resolve issues of procedural fairness or jurisdiction: Vong v Canada (Minister of Citizenship and Immigration), 2006 FC 1480 at paragraphs 35-36, 38; Alabadleh
v Canada (Minister of Citizenship and Immigration), 2006 FC 716 at
paragraph 6. The respondent submits that these exceptions do not apply in this
case, and therefore the evidence should be struck from the application record.
I agree and thus the Court will not rely on this additional evidence.
ISSUES
[12]
The
issues in this application are:
1) Was it reasonable for
the counsellor to conclude that there was a misrepresentation?
2) If so, was it
reasonable for the counsellor to conclude that this misrepresentation was
material?
3) Does section 40(1)(a)
require the applicants’ knowledge of the misrepresentation?
STANDARD OF
REVIEW
[13]
Misrepresentation
is an issue of mixed fact and law and is therefore reviewable on the
reasonableness standard: Karami v Canada (Minister of Citizenship and
Immigration), 2009 FC 788, 349 FTR 96 at paragraph 14.
[14]
The
questions of whether section 40(1)(a) includes a knowledge component is a
question of law related to the interpretation of the officer’s home statute and
will thus also be reviewed on a reasonableness standard: Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61 at paragraphs 46 and 48:
[46] At para. 22 of Canada (Canadian Human Rights Commission), LeBel and Cromwell JJ. state:
On the other hand, our Court has
reaffirmed that general questions of law that are both of central
importance to the legal system as a whole and outside the adjudicator’s
specialized area of expertise, must still be reviewed on a standard of
correctness, in order to safeguard a basic consistency in the fundamental legal
order of our country. [Emphasis added.]
In other words, since Dunsmuir, for the correctness
standard to apply, the question has to not only be one of central importance to
the legal system but also outside the adjudicator’s specialized area of
expertise.
[…]
[48] The
Commissioner’s interpretation of s. 50(5) PIPA relates to the interpretation of
his own statute, is within his expertise and does not raise issues of general
legal importance or true jurisdiction. His decision that an inquiry does not
automatically terminate as a result of his extending the 90-day period only
after the expiry of that period is therefore reviewable on the
reasonableness standard.
(Emphasis added.)
ANALYSIS
Issue No. 1 Was it
reasonable for the counsellor to conclude that there was a misrepresentation?
[15]
The
applicants submit that there was no misrepresentation, because the False
Document was clearly not a test result. While the document mimics the
appearance of an IELTS Test Report, it states that it is “just a domestic
document”. Thus, no reasonable person could conclude that it was an IELTS Test
Report, and there is no misrepresentation.
[16]
The
respondent submits that the False Document was clearly designed to mislead the
immigration authorities to believe it was an IELTS Test Report. Thus, the
respondent submits there clearly was a misrepresentation.
[17]
The
Court agrees with the respondent that the False Document constitutes a
misrepresentation: an examination of its physical appearance reveals that it is
clearly designed to imitate the appearance of an IELTS Test Report. There is
no other plausible purpose behind the submission of the False Document other
than to mislead the immigration authorities into thinking that the file was
complete and that the principal applicant had satisfied the language
requirements. An official doing an initial completeness review of the file
would not necessarily notice that it was fraudulent. I do not accept that any
reasonable person would say that the purpose of this document was anything
other than to mislead. It was thus wholly reasonable for the counsellor to
conclude that it was intended to mislead the authorities to believe it to be an
authentic test result.
Issue No. 2 Was it
reasonable for the counsellor to conclude that the misrepresentation was
material?
[18]
The
applicants submit in the alternative that if there was a misrepresentation, it
was not material. The applicants rely on the CIC Enforcement Manual ENF 2, Evaluating
Inadmissibility, which states that a misrepresentation should only be
considered material if it affects the process. Since only the most recent
language test results are to be considered, the False Document could not have
affected the process.
[19]
The
applicants rely on Ali v Canada (Minister of Citizenship and Immigration),
2008 FC 166, in which the applicant committed a misrepresentation by submitting
a fraudulent document, but the Court found the misrepresentation to be
immaterial.
[20]
The
applicants submit that this case is similar to Zaib v Canada (Minister of Citizenship and Immigration), 2010 FC 769, and Medel v Canada (Minister of Employment and Immigration), [1990] 2 FC 345 (CA): in those cases, the visa
officer misinformed the applicants regarding the basis for the concerns about
misrepresentation. The applicants assert that the officer misled them in the Fairness
Letter, stating that they had submitted an unverifiable IELTS Test Report—since
the False Document was clearly not a test result, this was inaccurate
information.
[21]
The
applicants also submit that the officer erred by finding their response to the Fairness
Letter implausible—since their consultant was so unscrupulous as to falsify a
language test result, it was unreasonable to conclude that the consultant would
not also falsify the form on which the applicants are purported to have
acknowledged submitting those results.
[22]
The
respondent submits that the applicants’ submissions on materiality are contrary
to the wording of section 40(1)(a) of the Act—when the False Document was
submitted, it was the only evidence of the principal applicant’s language
proficiency. Had it not been submitted, the application would have been deemed
incomplete and returned. Thus, the misrepresentation affected the process, and
was material: Guan v Canada (Minister of Citizenship and Immigration),
2009 FC 274. I agree for the following reasons.
[23]
In
determining whether a misrepresentation is material, regard must be had for the
wording of the provision, and its underlying purpose.
[24]
Section
40(1)(a) is to be given a broad interpretation in order to promote its
underlying purpose: Khan v Canada (Minister of Citizenship and Immigration),
2008 FC 512 at paragraph 25. The objective of this provision is to deter
misrepresentation and maintain the integrity of the immigration process— to
accomplish this objective the onus is placed on the applicant to ensure the
completeness and accuracy of his or her application. Section 40(1)(a) is
broadly worded to encompass misrepresentations even if made by another party,
without the knowledge of the applicant: Jiang v Canada (Minister of
Citizenship and Immigration), 2011 FC 942, at paragraph 35; Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at paragraphs 55-56. The
applicant cannot misrepresent or withhold any material facts that could induce
an error in the administration of the Act.
[25]
In
this case, the misrepresented fact was whether the principal applicant had
passed an IELTS language test. There is no doubt this fact was material to her
application—federal skilled worker applicants must demonstrate language
proficiency to be accepted. As soon as the False Document was submitted, it
could have induced an error in the administration of the Act, because a
decision-maker could have relied upon it to conclude that the principal applicant
had demonstrated language proficiency.
[26]
I
agree with the respondent that to be material, a misrepresentation need not be
decisive or determinative. It will be material if it is important enough to
affect the process. The False Document was thus clearly material because the
application could not have been processed without it.
[27]
The
fact that the misrepresentation was caught before the final assessment of the
application does not assist the applicants. The materiality analysis is not
limited to a particular point in time in the processing of the application—the
fact that the principal applicant had submitted more recent language test
results does not render the earlier misrepresentation immaterial. Such a result
would reflect a narrow understanding of materiality that is contrary to the
wording and purpose of section 40(1)(a) of the Act. The False Document was
submitted and it was material.
[28]
This
case is distinguishable from Ali, above: there, the fraudulent document
was irrelevant to the determination of the application. Here, language test
results are clearly relevant to the application at issue. The decision in Zaib
is also distinguishable: the officer in that case was mistakenly informed that
a letter confirming the applicant’s degree was forged—further evidence proved
that the degree itself was authentic. Here, the ‘test’ for which the False
Document purports to provide results never occurred, and thus the reasoning
from that case does not apply.
[29]
Therefore,
I find that the visa officer was reasonable to conclude that the False Document
constituted a material misrepresentation pursuant to section 40(1)(a) of the
Act.
Issue No. 3 Does section
40(1)(a) require the applicants’ knowledge of the misrepresentation?
[30]
The
applicants suggest that in order to be found inadmissible pursuant to section
40(1)(a) of the Act, a party must have acted with subjective intent, i.e. knowledge
of the misrepresentation.
[31]
The
applicants cite the recent decision of Justice Hughes, in Osisanwo et al v Canada (Minister of Citizenship and Immigration), 2011 FC 1126 (Osisanwo), which
considered this question. In Osisanwo, the applicant was found
inadmissible under section 40(1)(a) by Citizenship and Immigration Canada (CIC)
because she had listed her husband as the father of her two children, when in
fact he was only the biological child of one. The couple had briefly separately
almost 30 years prior, and during that separation the applicant had had a
one-time affair with another man. The couple then reconciled and neither
suspected that the husband was not the father of the child in question. This
fact only came to light when an official at CIC ordered DNA testing. Despite
the lack of knowledge on the part of the applicant, she was declared
inadmissible for misrepresentation pursuant to section 40(1)(a).
[32]
In
conducting the judicial review of this decision, Justice Hughes surveyed cases
in which a misrepresentation finding was upheld, and noted that they all
contained an element of mens rea, or subjective intent. He concluded
that, because the applicants in the decision under review had no reason to
believe they were misrepresenting a material fact, it was unreasonable to find
them inadmissible for misrepresentation. He certified a question on the issue,
but the respondent did not pursue an appeal.
[33]
I
find that the decision in Osisanwo is not of assistance to the
applicants in this case. That decision was dependent on a highly unusual set of
facts, and cannot be relied upon for the general proposition that a
misrepresentation must always require subjective knowledge. Rather, the general
rule is that a misrepresentation can occur without the applicant’s knowledge,
as noted by Justice Russell in Jiang, above, at
paragraph 35:
[35] With respect to inadmissibility based
on misrepresentation, this Court has already given section 40 a broad and
robust interpretation. In Khan, above, Justice O’Keefe held that the
wording of the Act must be respected and section 40 should be given the broad
interpretation that its wording demands. He went on to hold that section 40
applies where an applicant adopts a misrepresentation but then clarifies it
prior to a decision. In Wang v Canada (Minister of Citizenship and
Immigration), 2005 FC 1059, this Court held that section 40 applies to an
applicant where the misrepresentation was made by another party to the
application and the applicant had no knowledge of it. The Court stated that
an initial reading of section 40 would not support this interpretation but that
the section should be interpreted in this manner to prevent an absurd result.
(Emphasis added.)
A few cases have carved out a
narrow exception to this rule, but this will only apply for truly
exceptional circumstances, where the applicant honestly and reasonably
believed they were not misrepresenting a material fact.
[34]
In
Osisanwo, Justice Hughes cites the decision of Justice Harrington in Singh
v Canada (Minister of Citizenship and Immigration), 2010 FC 378. In that case,
the applicant was found inadmissible for misrepresentation because he had
failed to disclose the existence of a child that the Board found he reasonably
should have suspected was his own. (Notably, like the applicants in the case
before me, this applicant was found to not be credible.) Justice Harrington
considered certifying a question similar to that in Osisanwo, above, but
concluded that the decision was unreasonable on other grounds.
[35]
The
passage of Singh referred to by Justice Hughes contains an oft-cited
portion of Justice O’Reilly’s judgment in Baro v Canada (Minister of
Citizenship and Immigration), 2007 FC 1299:
[15]
Under s. 40(1)(a) of IRPA, a person is
inadmissible to Canada if he or she “withholds material facts relating to a
relevant matter that induces or could induce an error in the administration” of
the Act. In general terms, an applicant for permanent residence has a “duty of
candour” which requires disclosure of material facts. This duty extends to
variations in his or her personal circumstances, including a change of marital
status: Mohammed v. Canada (Minister of Citizenship and
Immigration), [1997] 3 F.C. 299 (F.C.T.D.) (QL). Even an innocent failure
to provide material information can result in a finding of inadmissibility; for
example, an applicant who fails to include all of her children in her
application may be inadmissible: Bickin v. Canada (Minister of Citizenship
and Immigration), [2000] F.C.J. No.1495 (F.C.T.D.) (QL). An exception
arises where applicants can show that they honestly and reasonably believed
that they were not withholding material information: Medel v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 345, [1990]
F.C.J. No. 318 (F.C.A.) (QL). (Emphasis added.)
[36]
Despite
being frequently cited, the “exception” referred to in this passage has
received limited application. Its originating case, Medel, above, involved an
unusual set of facts: the applicant was being sponsored by her husband, but
unbeknownst to her the husband withdrew his sponsorship. Canadian officials
then misled the applicant by asking her to return the visa because they claimed
it contained an error. They implied it would be returned to her, corrected.
The applicant had English-speaking relatives inspect the visa and, after they
assured her that nothing was wrong with it, she used it to enter Canada. The Immigration Appeal Board found her to be a person described in section
27(1)(e) of the former Immigration Act, 1976, SC 1976-77, c 52
[now RSC 1985, c I-2)], i.e. that she had been “granted landing… by reason of
any fraudulent or improper means”. This finding was set aside by the Federal
Court of Appeal because the applicant had “reasonably believed” that she was
not withholding information relevant to her admission.
[37]
When
considered within its factual context, therefore, the exception in Medel
is relatively narrow. As Justice MacKay noted while distinguishing the case
before him in Mohammed v Canada (Minister of Citizenship & Immigration),
[1997] 3 FC 299:
41
The present circumstances may also be distinguished from those in Medel on the
basis that the information which the applicant failed to disclose was not
information regarding which he was truly subjectively unaware. The applicant in
the present case was not unaware that he was married. Nor was it
information, as in Medel, the knowledge of which was beyond his control.
This was not information which had been concealed from him or about which he
had been misled by Embassy officials. The applicant's alleged ignorance
regarding the requirement to report such a material change in his marital
status and his inability to communicate this information to an immigration
officer upon arrival does not, in my opinion, constitute “subjective
unawareness” of the material information as contemplated in Medel. (Emphasis
added)
Furthermore, I emphasize that a
determinative factor in the Medel case was that the applicant had reasonably
believed that she was not withholding information from Canadian
authorities. In contrast, in the case before this Court the applicants did not
act reasonably—the principal applicant failed to review her application to
ensure its accuracy.
[38]
It
must be kept in mind that foreign nationals seeking to enter Canada have a duty of candour: Bodine v Canada (Minister of Citizenship and Immigration),
2008 FC 848, at paragraph 41; Baro v Canada (Minister of Citizenship and
Immigration), 2007 FC 1299 at paragraph 15. Section 16(1) of the Act reads
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.”
[39]
As
noted in Bodine (at paragraph 44):
…The
purpose of section 40(1)(a) of the Act is to ensure that applicants
provide complete, honest and truthful information in every manner when applying
for entry into Canada (see De Guzman v. Canada (Minister of Citizenship and
Immigration), 2005 FCA 436 (F.C.T.D.), Khan v. Canada (Minister of
Citizenship and Immigration), 2008 FC 512 (F.C.T.D.), Wang v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1059 (F.C.T.D.), aff’d
on other grounds, 2006 FCA 345 (F.C.A.)). In some situations, even silence can
be a misrepresentation (see Mohammed v. Canada (Minister of Citizenship and
Immigration), [1997] 3 F.C. 299) and the present facts went well beyond
mere silence.
[40]
In
keeping with this duty of candour, there is, in my opinion, a duty for an
applicant to make sure that when making an application, the documents are
complete and accurate. It is too easy to later claim innocence and blame a
third party when, as in the present case, the application form clearly
stated that language results were to be attached, and the form required
signature by the applicants. It is only in exceptional cases where an
applicant can demonstrate that they honestly and reasonably believed
that they were not withholding material information, where “the knowledge of
which was beyond their control”, that an applicant may be able to
take advantage of an exception to the application of section 40(1)(a). This is
not such a case.
[41]
The
applicants allege that they had no knowledge of the misrepresentation and wish
to exonerate themselves by blaming their immigration consultant. Indeed, they
claim to have not even signed their application forms. As a result, they
submit that the fraudulence of their immigration consultant should serve as a
defence to the application of section 40(1)(a).
[42]
In
response to this submission, I find the comments of Justice Mosley in Haque
v Canada (Minister of Citizenship and Immigration), 2011 FC 315 at
paragraph 16 to be instructive::
[16] The applicant was in Bangladesh at the time the updated application was submitted. He admitted during the phone
conversation on May 26th that he “could have signed the blank form for the
consultant”. The new form had further discrepancies. The applicant apparently
chose to rely on the consultant to submit the required information without
personally verifying that it was accurate.
The applicants in this case chose
to rely on their consultant. The principal applicant claims to have neither
signed nor reviewed it. It would be contrary to the applicant’s duty of
candour to permit the applicant to rely now on her failure to review her own
application. It was her responsibility to ensure her application was truthful
and complete—she was negligent in performing this duty.
[43]
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.
[44]
I
additionally do not find that there is any relevant defence under the common
law. The applicants were entitled to procedural fairness, but that entitlement
was minimal and it was satisfied in this case: the applicants received the
Fairness Letter advising them of the officer’s concerns about the False Document,
and giving them 30 days to respond. The applicants’ response to the Fairness
Letter was a brief email from their new consultant, stating they were duped by
their earlier consultant, and asking that they not be punished for his actions.
[45]
As
demonstrated by the CAIPS notes, the officer considered this response, but
found it not credible since the application form clearly stated that language
results were attached and that form was signed by the applicants. The Court
finds that it was reasonably open to the officer to reach this conclusion,
faced with no more than the bald assertion by the applicants that they were
duped. The applicants provided no supporting evidence of their claim to have
been innocent in the misrepresentation, and the officer is not required to make
further inquiries if the applicants’ response to the Fairness Letter was
deficient: Pan v Canada (Minister of Citizenship and Immigration), 2010
FC 838 at paragraph 28. As stated by Justice Crampton (as he then was), “To impose such
an obligation on a visa officer would be akin to requiring a visa officer to
give advance notice of a negative decision, an obligation that has been
expressly rejected. (Ahmed v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 940 (QL); Sharma, above)” (ibid at
paragraph 28).
There is no further entitlement to now try again to prove that they were
defrauded and therefore should not be found inadmissible.
[46]
The
applicants seek to rely on the decision in Doe v Canada (Citizenship and
Immigration), 2010 FC 284 at paragraph 28, for the proposition that the
negligence of counsel (or in this case, fraudulence of a consultant) should not
cause an applicant who has acted with care to suffer. However, as already
discussed, the applicants in this case did not act with care—they failed to
take responsibility for the contents of their application, and review it before
it was submitted. Similarly, I do not accept that the applicants could
reasonably not have realized that they needed to sign their applications. Virtually
all applications of any import require signatures, and a cursory glance at the
application form would have revealed a signature line. It is an applicant’s
responsibility to verify the accuracy and completeness of the required
information before signing it. It is not sufficient to not exercise diligence
and then plead ignorance when caught. Therefore, the applicants cannot rely on
the reasoning from this case to claim a defence to the finding of
misrepresentation.
[47]
Furthermore,
it seems to me that when a consultant, like in the present case, provides
information that does not coincide with the instructions provided with an
application, an applicant should be alerted to the possibility that the
consultant’s advice may not be accurate and should inquire with officials to
make sure that what the consultant said was accurate.
[48]
The
applicants submit that the visa officer had failed meet the duty of care
required in the situation. They suggest that the False Document should have
been immediately returned when it was received, because it was clearly a copy
and not an original. The applicants’ argument seems to be an attempt to
separate the fraudulent aspect of the False Document from its other
deficiencies—i.e. that the visa officer should have first realized the False
Document was a copy and not an original, and then, rather than inspect it any
further, immediately return it to the applicants and ask for an original
instead.
[49]
The
concept of a duty of care does not apply in this context—the applicants
were subject to a duty of candour, which they did not satisfy. The initial
screening officer was simply tasked with undertaking a “completeness” check of
the application file. He owed no “duty of care” to the applicants.
[50]
The
requirements of procedural fairness—which did exist—were in fact satisfied.
When the visa officer later examined the False Document, he noted several
problems with it (likely including the fact that it was evidently a copy),
which led him to conclude it was fraudulent. The visa officer’s obligation at
that point was to advise the applicants that they were potentially inadmissible
for misrepresentation. He discharged this obligation by sending the
Fairness Letter and thus satisfied the requirements of procedural fairness.
[51]
The
Court acknowledges that the problem of fraudulent immigration consultants is a
serious one. However, this problem does not amount to a defence against
the operation of section 40(1)(a). Furthermore, subject to the narrow exception
discussed above, this Court has consistently found that an applicant can be
inadmissible under section 40(1)(a) for misrepresentations made by another
without the applicant’s knowledge. There can thus clearly be no subjective
intent or knowledge requirement to section 40: this would be contrary to the
broad interpretation that the wording and purpose of the provision requires.
[52]
The
application must therefore be dismissed.
Certified
Question
[53]
The
applicant has submitted the following question for the Court’s certification:
Is a foreign national inadmissible for
misrepresenting a material fact if at the time of filing his/her application
for permanent residence or at the time of granting permanent residence he/she
had no knowledge of the material fact that constituted such misrepresentation?
[54]
The
respondent submits that no question should be certified in this case as too
many factual conclusions would have to be presumed in the applicants’ favour.
However, if the Court disagrees with its submissions on this point, the
respondent submits that the following question should be certified:
Where supporting documentation is submitted with a
signed application form for permanent residence in Canada, but the applicant
later states that he or she had no knowledge of the documentation submitted or
part thereof, is the applicant still responsible for the veracity of all the
supporting documentation for the purposes of the application of paragraph
40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27, as
amended?
[55]
In
order for a question to be certified, it must arise from the case before the
Court and raise a question of law of general importance that has not already
been determined by the Federal Court: Hyunh v R, [1995] 1 FC 633, 88 FTR
60. Based on my reasoning above, I find that the answer to this question is
already well-settled in this Court’s jurisprudence and thus decline to certify
the question.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is dismissed; and
2.
No
question of general importance is certified.
“Danièle
Tremblay-Lamer”
Email this Content