Date:
20120713
Docket:
IMM-8232-11
Citation:
2012 FC 885
Ottawa, Ontario,
July 13, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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REV. JEEWANANDA
THERO DIWALPITIYE
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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]
The
applicant seeks judicial review of a decision of Immigration Counsellor B.
Hudson (Counsellor Hudson), dated April 5, 2011, which found the applicant
inadmissible for misrepresentation pursuant to section 40(1)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA),
and therefore refused his application for permanent residence as a skilled
worker. For the reasons that follow the application is dismissed.
Facts
[2]
The
applicant, Rev. Jeewananda Thero Diwlapitiye, is a citizen of Sri Lanka and a Buddhist priest. He is currently “stationed” at a Buddhist monastery in Toronto where he conducts religious services and provides spiritual and moral guidance to
members. He submitted an application for permanent residence in 2009 under the
federal skilled worker class as a priest.
[3]
On
the form IMM0008 (Schedule 1, Background/Declaration), the applicant indicated
in Question 9 that he had never applied for, or been refused, immigration
status in Canada. However, the applicant had in fact applied for temporary
resident visas on several previous occasions and was refused on one occasion. As
a result, Officer N. Piyatissa sent the applicant a letter on February 24,
2011, advising him that he may be inadmissible for misrepresentation, and
providing him an opportunity to respond.
[4]
The
applicant responded by letter explaining that he had previously applied for a
temporary resident visa, which was refused, but a subsequent application was
successful. He admitted his error in completing the application form,
explaining that it was merely an oversight and asking that his application be
processed.
[5]
As
indicated in the Computer Assisted Immigration Processing System (CAIPS) notes,
Officer Piyatissa reviewed the applicant’s response and recommended not finding
him inadmissible for misrepresentation. The relevant portion of the CAIPS
notes state:
I DO NOT CONSIDER PA’S ACTIONS /OMISSONS [sic]
TO BE SUFFICIENT [sic] SERIOUS ENOUGH TO WARRANT A REFUSAL UNDER
MIS-REP.
[6]
However,
Counsellor Hudson reviewed the file and determined that the applicant was
inadmissible for misrepresentation. In the CAIPS notes he noted that the applicant
had strong English skills and was assisted by a consultant in completing the
application. He found it implausible for the applicant to have forgotten to
mention seferal previous visa applications, and further found that this
omission could have induced an error because it was relevant to the applicant’s
eligibility and admissibility. The officer therefore found the applicant
inadmissible and refused his application for permanent residence.
Issue
[7]
The
issue raised by this application is whether the officer’s decision was
reasonable.
Analysis
[8]
The
applicant acknowledges that he erroneously ticked “No” in the question about
having made previous applications for visas to Canada; however, he argues that
this was not a material misrepresentation and that it was merely an oversight,
since there was nothing to be gained by omitting his past applications.
[9]
Counsellor
Hudson found that this misrepresentation could have induced an error in the
administration and the IRPA, which is one of the criteria referenced in
section 40(1)(a) of the IRPA. He reached this conclusion because the
application being reviewed was based on work experience in Canada, and thus the omission of his immigration history affected the analysis of both
admissibility and eligibility. While the decision tests the limits of
reasonableness the applicant has not persuaded the Court that it was
unreasonable to find this to be a material misrepresentation. This decision is
consistent with the standard of review governing review of a decision of visa
officer.
[10]
The
applicant had advanced several arguments regarding the existence of an
exception to section 40(1)(a) in the case of an innocent mistake. However, in
my view it is unnecessary to address those arguments because the CAIPS notes
demonstrate that Counsellor Hudson found this not to have been an innocent
mistake. He noted that the applicant speaks English well and that he was
assisted by a consultant. He also expressed scepticism that the applicant
could have forgotten to mention several previous applications. Since there
were two separate questions regarding past applications and the applicant gave
an untruthful answer to both of them, it was reasonable for Counsellor Hudson
to conclude that this was not a mere oversight and therefore find the applicant
inadmissible.
[11]
The
question proposed for certification does not satisfy the criteria set forth in
section 74(d) of the IRPA and as articulated by the Court of Appeal in Varela
v Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1
FCR 129. The proposed question is premised on findings of fact that have not
been established; namely that the representation was both innocent and
immaterial. An affirmative answer to the question would not, therefore, be
dispositive of the case. Secondly, the degree of mens rea required
under section 40(1)(a) has previously been considered by this Court; Tan
Gatue v Canada (Citizenship and Immigration), 2012 FC 730; Sayedi v Canada (Citizenship and Immigration), 2012 FC 420.
[12]
I
am not satisfied that special circumstances as required by Rule 22 of the Federal
Courts Immigration and Refugee Protection Rules (SOR/93-22) have been
demonstrated to warrant an award of costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review be
and is hereby dismissed. There is no question for certification.
"Donald J.
Rennie"
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