Docket: IMM-6326-11
Citation: 2012 FC 730
Ottawa, Ontario, June 12, 2012
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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FLORENDO CESAR TAN GATUE
VILMA TAN GATUE
CZARINA JOY TAN GATUE
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of a
decision rendered by the Immigration Division of the Immigration and Refugee
Board (the Board) dated August 25, 2011, wherein the Board determined that the
applicants were not admissible to Canada pursuant to paragraph 40(1)(a)
of the Act.
Factual Background
[2]
The
applicants, Mr. Florendo Cesar Gatue (the father), Mrs. Vilma Tan Gatue (the
mother) and Ms. Czarina Joy Tan Gatue (the daughter), are all citizens of the Philippines.
[3]
The
applicants were sponsored for permanent residency in Canada by their
daughter and sister (respectively), Ms. Christine De Lima. The applicants
signed their applications for permanent residence on April 4, 2008 or June 16,
2008.
[4]
The
daughter gave birth to her first child on October 16, 2008.
[5]
On
January 19, 2010, the daughter signed a declaration in support of her
application for permanent residence which required her to immediately inform
the Canadian visa post of any changes in the information or the answers
provided in her application.
[6]
The
father and mother were issued visas on August 29, 2010, by the Canadian visa
post in Manila,
Philippines.
[7]
The
daughter subsequently gave birth to her second child on September 24, 2010. The
daughter was issued her visa on October 8, 2010.
[8]
The
applicants arrived in Vancouver on January 14, 2011, in
possession of their confirmations of permanent residence and permanent resident
visas. A report was issued under subsection 44(1) of the Act, dated the same
day as their arrival, which stated that the applicants had directly or indirectly
misrepresented or withheld material information by failing to disclose
dependents not included in the application for permanent residence. As a
result, the report concluded that an avenue of investigation had been
foreclosed by the applicants’ misrepresentation.
[9]
On
February 26, 2011, a request for an Admissibility Hearing was made pursuant to
subsection 44(2) of the Act in order to determine if the applicants
were persons described in paragraph 40(1)(a) of the Act.
[10]
The
applicants’ Admissibility Hearing before the Board took place on May 16, 2011.
Decision under Review
[11]
The
Board concluded that the applicants were persons described in paragraph 40(1)(a)
of the Act due to the fact that they had misrepresented material facts relating
to a relevant matter by failing to disclose the daughter’s two minor children
on their application for permanent residence.
[12]
The
Board found that the father’s testimony revealed that he had never personally
disclosed the birth of his grandchildren. The father claimed that he did not
know that he was required to do so. The Board also noted that the mother
testified that the daughter had completed a form when she attended the medical
examination in the Philippines in 2008 which indicated that she had given
birth to a child. The Board also noted that the daughter acknowledged that she
had not disclosed her children on her application for permanent residence as it
had been submitted before she had children. Although the daughter claimed to
have notified the Visa office that she had one child when she completed the
required medical forms in 2008, the Board outlined that she acknowledged that
she never made any attempt to disclose her second child to immigration
authorities prior to her arrival in Canada.
[13]
While
the Board noted that it found the applicants to be generally credible, the
Board observed that they had not produced any documentary evidence to establish
the existence and contents of the form completed by the daughter in 2008. The
Board noted that the applicants had testified that they were unable to obtain
the missing form. Though the applicants alleged that they had informed the
medical examination doctor of the birth of the daughter’s first child, the
Board was not satisfied that this constituted disclosure of this information to
immigration officials. However, the Board noted that even if it had accepted
that the daughter had disclosed her first child, the Board found that it was
indisputable that she had failed to disclose her second child prior to
receiving her permanent residence visa and arriving in Canada. Though the
daughter explained that she did not know that she had to disclose this
information, the Board affirmed that this requirement was clearly outlined in
the application.
[14]
The
Board also observed that the CIC Medical Report in the file indicated that the
daughter had given “vaginal delivery 2008” (Tribunal Record, p 69). However,
the Board concluded that this was not sufficient to establish that she had a
dependent child in her care. The Board affirmed that the child in question
could have died or been adopted and thus this document did not constitute
sufficient disclosure of her first child.
[15]
The
Board held that “by not being forthcoming with immigration officials regarding
the birth of her children, she closed off an avenue of investigation that may
or may not have affected her application”… “…this failure to disclose was a
material fact as it relates to the analysis that must be undertaken with
respect to the definition of “family” under the family class” (Board’s reasons,
para 23). The Board observed that the mother and the
father had not been explicitly asked to disclose the existence of grandchildren,
however, the Board declared that they were captured in the inadmissibility as
they were subject to the same requirements of duty and candour to disclose
information changes for persons included in the application. Thus, the Board
held that they had become “complicit in the misrepresentation that occurred” (Board’s
reasons, para 24).
Issues
[16]
The
issue raised in this case is the following:
Did the Board err in its conclusion that the applicants were
excluded from Canada on the
basis of a misrepresentation in breach of section 40 of the Act?
Statutory Provision
[17]
The
following provision of the Immigration and Refugee Protection Act is
applicable in these proceedings:
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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;
(b)
for being or having been sponsored by a person who is determined to be
inadmissible for misrepresentation;
(c)
on a final determination to vacate a decision to allow the claim for refugee
protection by the permanent resident or the foreign national; or
(d)
on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship
Act, in the circumstances set out in subsection 10(2) of that Act.
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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;
b) être ou avoir été parrainé
par un répondant dont il a été statué qu’il est interdit de territoire pour
fausses déclarations;
c) l’annulation en dernier
ressort de la décision ayant accueilli la demande d’asile;
d) la perte de la citoyenneté au
titre de l’alinéa 10(1)a) de la Loi sur la citoyenneté dans le cas
visé au paragraphe 10(2) de cette loi.
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Standard of Review
[18]
The
applicable case law has established that an assessment of a misrepresentation
decision under section 40 of the Act involves questions of mixed fact and law,
which are reviewable according to the standard of reasonableness (Berlin v Canada (Minister of Citizenship and Immigration), 2011 FC
1117 at para 10,
[2011] FCJ No 1372 [Berlin]; Ghasemzadeh v Canada (Minister of Citizenship and Immigration), 2010 FC 716 at para 18, 372 FTR 247). The Court is in
agreement with the respondent in that the credibility findings made by the
Board are also reviewable according to the standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190; Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 4,
59, [2009] 1 S.C.R. 339).
Analysis
[19]
In
the present case, the applicants take issue with the Board’s credibility
findings and its treatment of the evidence, specifically a CIC Medical Report.
As well, the applicants argue that there was no evidence to
demonstrate that they had deliberately misrepresented. The applicants submit that the
Board also failed to conduct a mens rea analysis.
[20]
After
consideration of the Board’s decision, the documentary evidence and the
applicants’ testimony, the Court cannot agree with the applicants’ arguments.
Rather, the Court concludes as to the reasonableness of the Board’s findings in
light of the facts of the case and the principles of the applicable
jurisprudence. It was reasonable for the Board to conclude that the
misrepresentations of the applicants in the present case could not be viewed as
innocent or inadvertent.
[21]
With
respect to the first child born in 2008, the applicants argued that the Board
erred in its analysis of the CIC Medical Report. The applicants state that the
CIC Medical Report did disclose the fact that the daughter had given birth to a
child in 2008. The applicants maintain that the Report clearly shows that the
Visa office received it on February 11, 2010, and therefore the Officer had to
know that the daughter had given birth before it issued the permanent resident
visas to the applicants. On that basis, the applicants advance that the “door
was open to them to investigate: it was open to them to ask if the child was
still living and was the child still with her”. However, and despite the
arguments by the applicants, the Court recalls that the onus was on the
daughter to advise the Minister of the fact that she had two children which she
failed to do in this case.
[22]
The
applicants also argue that the daughter disclosed the fact that she had two
children by informing the Port of Entry Officer at the airport in Vancouver. Thus, the
applicants state that both disclosures occurred during the processing of the
permanent residency application, not after.
[23]
While the Court is assessing without deciding and is prepared
to admit that there can be ambiguity over whether the daughter had disclosed
the birth of her first child during her medical examination on the face of the
Medical Report (Tribunal Record, pp 68 and 69), the Court finds that it is
uncontested that the daughter had never reported the birth of her second child
(September 24, 2010) prior to arriving in Canada, more precisely in Vancouver
(January 14, 2011). The Court also rejects the applicants’ argument that the
daughter needed not to report the second child and that the declaration of this
second child at the Port of Entry (POE) sufficed in and of itself. The Court
cannot accept the applicants’ reasoning and logic whereby a declaration could
always be made at the POE. To the contrary, the applicants were
required to disclose such information as per the undertaking that they signed
in their application form and the immigration system relied on their “duty of
candour”. The Officer cannot be expected to guess and investigate the
applicants’ situations on the basis of the information contained in a Medical
Report (Tribunal Record, p 69) as argued by the applicants. It was incumbent upon
the applicants to reveal material and relevant facts and the existence of two
children can undoubtedly be qualified as such. There is nothing on the face of
the record that would allow the Court to conclude that the failure to disclose
was innocent or inadvertent.
[24]
The Board’s comments at para 21 of its decision are relevant
in that regard:
On this very same Declaration clearly
states “This declaration covers the information I have provided on this forma
and all the information submitted in my application for permanent residence as
well as in the attached schedules and accompanying documents”. It also states,
“I will immediately inform the Canadian visa office where I submitted my
application if any of the information or the answers provided in my application
forms change”. Therefore, by signing this application, Ms. Tan Gatue declared
recognition that all information provided to immigration officials that formed
part of the immigration application, including the “Additional Family
Information” form that was completed in June 2008 and specifically asked about
children in “Section B” was part of the immigration record. By signing the
“Declaration”, she also acknowledged her responsibility to advise immigration
officials immediately of any changes to her answers.”
(Emphasis added)
(Footnotes
omitted).
[25]
As
such, the Court is of the view that the fact that the daughter disclosed the
existence of her two children upon arrival in Vancouver does not amount to
proper disclosure (Haque v Canada (Minister of
Citizenship and Immigration), 2011 FC 315, [2011] FCJ No 394 [Haque]; Cabrera v Canada (Minister of
Citizenship and Immigration), 2010 FC 709, [2010] FCJ No 864 [Cabrera]; Uppal v Canada (Minister of
Citizenship and Immigration), 2009 FC 445, [2009] FCJ No 557 [Uppal]; Khan
v Canada (Minister of Citizenship and Immigration),
2008 FC 512, [2008] FCJ No 648 [Khan]). In the circumstances,
the Court is of the opinion that it was reasonable for the Board to conclude
that the daughter had not been forthcoming with immigration officials.
[26]
The
Court notes that a similar situation was presented in the case of Mai v
Canada (Public Safety and Emergency Preparedness), 2011 FC 101, [2011] FCJ
No 127, cited by the Board in its reasons, where the applicant in
question did not report his marriage or the birth of his child to immigration
authorities during the processing of his application or after his arrival in
Canada. The applicant argued that his misrepresentations were not deliberate or
intentional and that he honestly believed that he was not required to report
the changes in question. However, the Board rejected the applicant’s arguments
and concluded that the applicant had made misrepresentations
in the sense of paragraph 40(1)(a) of the Act. Justice Martineau
concluded as to the reasonableness of the Board’s decision.
[27]
Furthermore,
in the case of Haque, above, the principal applicant was
found to be inadmissible to Canada under paragraph 40(1)(a)
of the Act for having omitted and misrepresented certain facts in his
application for permanent residence pertaining to his prior studies, residency
and work history. Though the applicants argued that the misrepresentations were
not intentional, Justice Mosley dismissed the application for judicial review
and made the following comments which apply mutatis mutandis in the case
at bar:
[13] Reading sections 40
and 16 of the IRPA together, I agree with the respondent that foreign nationals
seeking to enter Canada have a "duty of candour" which requires
disclosure of material facts: Bodine v. Canada (Minister of
Citizenship and Immigration), 2008 FC 848, 331 F.T.R. 200 at paras. 41-42; Baro v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1299 at para. 15. Indeed, the Canadian
immigration system relies on the fact that all persons applying under the Act
will provide truthful and complete information: Cao v. Canada (Minister of
Citizenship and Immigration), 2010 FC 450, 367 F.T.R. 153 at para. 28. Mr. Haque's
omission concerning his year-long study period in the United States, discrepancies in
home addresses and work history are material and relevant facts needed in order
to properly assess admissibility.
[14] Section 3 of the IRPA
points to a number of immigration objectives that should be kept in mind when
administering the Act. Among others, these objectives include enriching
and developing the country through social, economic and cultural means while
ensuring the protection and security of Canadians living here. In order to
adequately protect Canada's borders, determining admissibility necessarily rests in
large part on the ability of immigration officers to verify the information
applicants submit in their applications. The omission or misrepresentation of
information risks inducing an error in the Act's administration.
[28]
In
addition, the Court agrees with the respondent’s comments regarding the case of
Maruquin v Canada (Minister of Citizenship and Immigration) 2007 FC
1349, [2007] FCJ No 1739, in that it presented “special circumstances” where
the change (the birth of a son) was disclosed before the permanent
residence visas had been issued. Consequently, this case does not find
application in the matter at hand.
[29]
The
applicants also argued that the Panel erred in law in failing to provide a mens
rea analysis in its decision.
[30]
The
issue of mens rea was mentioned in the case of Osisanwo
v Canada (Minister of Citizenship and
Immigration), 2011 FC 1126, [2011] FCJ No. 1386, referred to by the
applicants. The case of Osisanwo involved an application for judicial
review of an immigration officer's dismissal of an application for permanent
residence on the basis that the applicant made a material misrepresentation
with regard to the paternity of her son. However, the applicant in Osisanwo
was not aware that her husband was not the biological father of her son, which
was only revealed after DNA testing. In his reasons, Justice Hughes stated the
following with regards to the element of mens rea:
[8] The essential question
is whether one takes an "objective" or "subjective" view as
to whether what was done was "misleading'. Stated another way, is mens
rea an essential ingredient?
[9] A review of some of
the earlier case law is helpful. In Hilario v Canada (Minister of Manpower
and Immigration) (1977), 18 NR 529 (FCA), the Federal Court of Appeal
considered a situation where information had been withheld. Justice Heald for
the Court said at the end of the first paragraph at page 530:
To
withhold truthful, relevant and pertinent information may very well have the
effect of "misleading" just as much as to provide, positively,
incorrect information.
[10] This statement carries
with it the implication of "withholding" and "providing",
which is to say, mens rea is involved.
[31]
Ultimately, Justice Hughes determined that the
misrepresentations in question were entirely inadvertent and that there was
no reasonable basis for concluding that there was any mens rea to
mislead. However, the Court finds that the case of Osisanwo, above, is
wholly distinguishable from the case at hand, as the daughter, mother and
father all had knowledge of the material fact that constitute the
misrepresentation (the children’s births) and withheld that information.
[32]
Pursuant
to the aforementioned jurisprudence, the Court finds the Board’s decision to be
reasonable, as the misrepresentations committed by the applicants cannot be
viewed as honest or reasonable mistakes or misunderstandings (see Medel v Canada (Minister of Employment and Immigration) (CA), [1990] 2 FC 345, [1990] FCJ No 318; Baro v Canada (Minister of Citizenship and Immigration),
2007 FC 1299, [2007] FCJ No 1667; Berlin,
above).
[33]
Rather,
the Court finds that, on the basis of the evidence on record, the applicants
were not forthright in their dealings with immigration authorities and thereby
did not fulfill their “duty of candour”. Consequently, the Court concludes that
the Board’s decision is reasonable and the application for judicial
review will be dismissed.
The Proposed Questions
for Certification
[34]
The applicants
proposed the following questions for certification:
1.
Is a foreign national
inadmissible for withholding a material fact pursuant to paragraph 40(1)(a)
of IRPA if they have disclosed a material fact to a visa office that opens a
door for investigation by the visa office?
2.
Is a foreign national
inadmissible for withholding a material fact before visa issuance but
disclosing that before the permanent resident application process has been
completed?
3.
Is it incumbent upon
a decision maker, making a paragraph 40(1)(a) of IRPA misrepresentation
finding to first conduct a mens rea analysis?
4.
Once a foreign
national discloses a material fact to a visa office does the onus shift from
the foreign national to the visa office to investigate?
[35]
The
Federal Court of Appeal stated the necessary criteria for certifying a question of
general importance in Canada (Minister of Citizenship and Immigration) v Liyanagamage
(FCA), [1994] FCJ No 1637, 176 NR 4. The proposed questions must transcend the
interests of the immediate parties to the litigation, contemplate issues of
broad significance or general application and be determinative of the appeal.
In the Court’s view, the questions formulated by the applicant do not satisfy
these criteria.
[36]
With
respect to the first question, the Court agrees with the respondent that it is
not of broad significance or general application as it essentially restates the
issue which was before the Court to be determined on its particular facts. More
particularly, when a misrepresentation prevents an officer from making a proper
determination of one’s application in Canada, it equates a material representation (Bodine
v Canada (Minister of
Citizenship and Immigration), 2008 FC 848, [2008] FCJ No 1069).
[37]
Concerning
the second question, the Court has decided that a misrepresentation of
material facts is not cured simply because it is corrected before the decision
is rendered (Haque, above, at para 17; Cabrera, above, at para 40; Uppal,
above, at paras 30-31; Khan, above, at para 25). Moreover, in this
case, the Court found that there was no attempt to inform the visa post of the
birth of the children (clearly the second child) before a decision was made to
issue the applicants visa.
[38]
The
third question is not relevant in order to dispose of this case.
Indeed, and the Court agrees with the respondent, that the Board asked the
applicants to explain why the existence of the children was not disclosed to
the Canadian visa post, it analyzed the explanation and reasonably concluded
that it was not an innocent misrepresentation.
[39]
Finally,
it is trite law that the applicants have a duty of candour to disclose all
material facts both before and after a visa is issued (Ghasemzadeth v Canada (Minister of
Citizenship and Immigration), 2010 FC 716, [2010] FCJ No 875, and, in this case, the
Court found that the second child was clearly not disclosed.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is dismissed;
2.
There
is no question for certification.
“Richard
Boivin”
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