Date: 20120918
Docket: IMM-6016-11
Citation: 2012 FC 1092
Ottawa, Ontario, September 18, 2012
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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BALASUBRAMANIYAM
SINNACHAMY
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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, Mr. Balasubramaniyam Sinnachamy, a Tamil
citizen of Sri Lanka, wishes to come to Canada to join his son. In 2009, he
applied for permanent residence through sponsorship by his son (Son) who came
to Canada as a refugee claimant in December 1996 and is now a Canadian citizen.
The Applicant applied on behalf of himself and his wife and two dependent
daughters.
[2]
In a decision dated August 2, 2012, an immigration officer
(the Officer) denied the application. The Officer found that, under s. 11(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
the Applicant was inadmissible to Canada on two grounds. First the Officer
concluded that the Applicant provided incomplete and inconsistent background
information and did not discharge his burden to demonstrate that he was not
inadmissible. Secondly, the Officer determined that the Applicant was
inadmissible for two years under s. 40(1)(a) of the IRPA on the
basis of misrepresenting or withholding facts regarding “[d]etails of arrests,
detentions and residence histories”. In the Officer’s view, the
misrepresentation or withholding of these facts induced or could have induced
errors in the processing of the Applicant’s application for permanent residence
which could have led to an incorrect decision.
[3]
The Applicant seeks to overturn the decision, raising the
following issues:
1.
Did the Officer err in finding that the Applicant had
misrepresented or withheld information because the Applicant provided the
information through documents that were part of the application and provided
all of the details that the Officer alleged were withheld?
2.
Did the Officer err in finding that there was a
misrepresentation given that the Applicant clearly provided the information in
a timely fashion?
3.
Did the Officer fail to properly consider the explanations
and exercise his discretion as to whether or not there should be a finding of
misrepresentation?
4.
Did the officer err in his finding under s. 11 of the IRPA?
[4]
The determinative issue in the application is whether the
Officer’s decision that there had been misrepresentation, within the meaning of
s. 40(1) of the IRPA, was reasonable. If the Officer’s conclusion that
there was misrepresentation is reasonable, it follows that the Applicant had
not met his burden of demonstrating that he was not inadmissible as required by
s. 11 of the IRPA.
[5]
The parties agree that the decision is reviewable on a
standard of reasonableness (see, for example, Berlin v Canada (Minister of
Citizenship and Immigration), 2011 FC 1117 at para 10, 397 FTR 205 [Berlin];
Sivayogaraja v Canada (Minister of Citizenship and Immigration), 2010 FC
1112 at para 9, [2010] FCJ No 1466; Osisanwo v Canada (Minister of
Citizenship and Immigration), 2011 FC 1126 at paras 14-15, 398 FTR 55 [Osisanwo]).
The role of the court on review of a decision on a reasonableness standard is
to determine of whether “the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190
[Dunsmuir]).
[6]
The Applicant agrees that, in his application form and that
of his wife, the Applicant failed to list his various times of detention by the
Liberation Tigers of Tamil Eelam (LTTE) or other forces. Similarly, neither the
Applicant nor his wife listed, as residences, their stays with the LTTE, with
durations of up to three months. The question is whether, on the facts before
the Officer, these omissions amount to misrepresentation.
[7]
From a review of the Computer Assisted Immigration
Processing System (CAIPS) notes on the Certified Tribunal Record (CTR), it
appears that review of the application began around March 2010. On June 25,
2010, a letter was sent to the Applicant asking him to provide certain
information, including the Personal Information Form (PIF) with Narrative that
the Son had submitted when he arrived to Canada. The Applicant provided the
Son’s PIF in August 2010. The PIF Narrative included somewhat general reference
to detentions of his mother and father (the Applicant) by the LTTE.
[8]
It is clear from the CAIPS notes that the PIF raised
concerns on the part of the reviewing officer; as written in the CAIPS notes,
“Son’s PIF relates problems with the LTTE”. A further letter was sent to the
Applicant on March 22, 2011 seeking further information. By letter dated April
19, 2011, the Applicant provided more information on his history with the LTTE,
admitting that “My wife and I were arrested and detained by LTTE in many
situations” and that he and his family “were detained in a [refugee] camp for
three months” by the SLA in 1997..
[9]
The Applicant’s key argument is that he disclosed all the
information about his detentions and changes of addresses prior to any concerns
being communicated to him. Moreover, the Applicant interpreted the question of
whether he had ever “been detained or put in jail” as applying only to arrests
by government forces. In the Applicant’s submission, the information in the PIF
regarding the detentions of the Applicant and his wife was entirely consistent
with the information subsequently and voluntarily given by the Applicant, in his
letters dated April 19, 2011 and June 9, 2011. On these facts, the Applicant
asserts that his failure to disclose his detentions by the LTTE was entirely
innocent.
[10]
I do not agree.
[11]
The first point to make in response to the Applicant’s
arguments is that, contrary to the submissions of the Applicant, the
information about the detentions was not always part of his application. The
Son’s PIF was not disclosed voluntarily; it was produced only after a specific
request was made by immigration officials who were reviewing the file. It
appears that, later on in the process, the Applicant was forthcoming with
information that appears to be consistent with the information in the PIF.
However, had the Applicant not been forced to provide the PIF and further
information, the LTTE detentions might not have been discovered.
[12]
The concerns of the Officer are clearly set out in the
CAIPS notes. Based on that concern, the letter of March 22, 2011 was sent. Only
after this letter, did the Applicant provide a more detailed history of his
detentions by the LTTE.
[13]
In sum, the record shows that the Applicant was not
forthcoming about his involvement with the LTTE. The information was only
provided after the concerns were expressed through: (a) the request for the
Son’s PIF; and (b) the request of March 22, 2011.
[14]
Without question, the Applicant’s history with the LTTE, a
designated terrorist organization, is highly material to a permanent residence
application. As stated by the Officer in the CAIPS notes:
the information [of detentions
and residences] is critical to a determination of admissibility. They come from
an area and a time of active war, bribery, human rights abuses, terrorism and a
host of other serious problems. The information that someone tells us in their
application determines our course of investigation and assessment. If the
information is not true, our determination of admissibility will suffer.
[15]
It is reasonable to believe that the Applicant was well
aware that any involvement with the LTTE would be scrutinized with care during
the review of his application. I conclude – as did the Officer, it appears –
that the Applicant likely knew that detentions by the LTTE should have been
included in his application form and took the deliberate step of omitting them.
[16]
The Applicant cites a number of cases where omissions from
permanent residence application forms were not misrepresentations (Osisanwo,
above; Koo v. Canada (Minister of Citizenship and Immigration), 2008 FC
931, [2009] 3 FCR 446; Berlin,
above). These cases are distinguishable. In Osisanwo, the
Applicant honestly believed the allegedly misrepresented information regarding the
paternity of a child, supported by the child’s birth certificate. In Koo,
the omissions were not material, the officer failed to conduct a materiality
analysis and the Applicant provided some of the information in supporting documentation
included with original application. Similarly, in Berlin, the Applicant
submitted the information allegedly withheld with his original application.
[17]
The Applicant argues that he provided a reasonable
explanation for not including the detentions or residences on his application
form and that the Officer erred by failing to consider the explanation. With
respect to detention, in his letter of June 9, 2011, the Applicant stated that
the arrests/detainments were not declared because they were not “by any
government forces for any violations of [the] country’s law”. In addition, the
Applicant explained that he withheld information “to avoid confusion”. In my
view there was no error. There is no duty on the Officer to accept every
explanation or excuse. In this case, the explanations are simply not credible
given the history of the Sri Lanka conflict. The Officer did not ignore the
excuses; they simply were not enough to persuade the Officer that the Applicant
made an honest mistake or innocently misunderstood the questions asked.
Further, given the seriousness of the misrepresentation, the Officer did not
err in failing to exercise his discretion to overlook the omissions.
[18]
In sum, the record provides ample support for the Officer’s
conclusion that the Applicant had directly or indirectly misrepresented or
withheld material facts related to a relevant matter that induces or could
induce an error in the administration of justice.
[19]
Neither party proposes a question for certification. None
will be certified.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith
A. Snider”
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