Docket: IMM-2995-11
Citation: 2012 FC 421
Ottawa, Ontario, April 13,
2012
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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MITRA KHOEI
MOHAMADREZA ALAVI TABATABAEI
GHAZAL ALAVI TABATABAEI
BABAK ALAVI TABATABAEI
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Applicants
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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 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, although the date is erroneously printed as November 23, 2009. The
counsellor 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, Mitra Khoei, Mohamadreza Alavi Tabatabaei, Ghazal Alavi Tabatabaei,
and Babak Alavi Tabatabaei are a family from Iran. Ms. Mitra
Khoei (the principal applicant) applied as a member of the federal skilled
worker class as a pharmacist and her husband and children applied as
accompanying family members.
[3]
In
2006, the principal applicant hired an immigration consultant, Arash Rahmatian,
to assist her in the preparation of her family’s application. The consultant
was not an authorized immigration consultant or lawyer. He prepared the
application and translated it into English. The application was filed at the
Canadian Embassy in Tehran on March 2, 2006.
[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). The principal applicant 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
within six months after the applications were filed. The principal applicant
then wrote an IELTS examination on July 22, 2006 and gave the result to Mr.
Rahmatian. The legitimate IELTS examination result was received by the Canadian
Embassy in Damascus on August
22, 2006.
[5]
The
applicants claim that at no point did they see or sign their application, and
that they were 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 dated January 21, 2009 that the consultant they had
retained was not an authorized representative.
[7]
On
April 27, 2010, the application was transferred to the Canadian Embassy in Warsaw as part of
backlog reduction. On August 26, 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, but requested that the IELTS results submitted on August 22, 2006
be used because the principal applicant could not get a testing appointment in
the required time period. Canadian officials confirmed that new test results
were not required at that point and agreed to consider the earlier submissions.
[8]
On
November 22, 2010, Immigration Officer P. Maryszczak (the officer) sent the
principal applicant a letter detailing their 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, 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 22, 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.
[10]
On
January 19, 2011, the new immigration consultant sent another letter to the
Canadian Embassy in Warsaw requesting that the principal applicant’s
situation be given special consideration because she was a victim of a scam.
Canadian officials did not respond to this letter.
[11]
On
March 8, 2011, after learning that she had been found inadmissible, the
principal applicant contacted Canadian officials to dispute the finding
regarding the False Document. Canadian officials responded that they would not
reconsider the earlier determination.
APPLICABLE LAW
[12]
Section
40(1)(a) of the Act states:
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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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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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PRELIMINARY QUESTION
Can the Court consider the evidence
submitted by the applicants that was not before the decision-maker?
[13]
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
[14]
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
[15]
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.
[16]
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?
[17]
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.
[18]
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.
[19]
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 principle 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?
[20]
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.
[21]
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.
[22]
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.
[23]
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.
[24]
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.
[25]
In
determining whether a misrepresentation is material, regard must be had for the
wording of the provision, and its underlying purpose.
[26]
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.
[27]
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.
[28]
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.
[29]
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.
[30]
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.
[31]
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?
[32]
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.
[33]
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).
[34]
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.
[35]
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.
[36]
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.
[37]
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.)
[38]
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.
[39]
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:
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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.
[40]
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.”
[41]
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.
[42]
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.
[43]
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).
[44]
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 principal 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.
[45]
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.
[46]
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.
[47]
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] FCJ 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.
[48]
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.
[49]
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
before signing the application to make sure that what the consultant said was
accurate.
[50]
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.
[51]
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.
[52]
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.
[53]
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.
[54]
The
application must therefore be dismissed.
Certified Question
[55]
The
applicant have 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?
[56]
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?
[57]
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”
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