Date:
20121123
Docket:
IMM-1582-12
Citation:
2012 FC 1354
Ottawa, Ontario,
November 23, 2012
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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ONOME JOSEPH IKEDE
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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]
Mr.
Onome Joseph Ikede [the Applicant] is seeking judicial review pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of the decision of Mark Giralt, immigration counsellor for
the High Commission of Canada Immigration Section in Ghana [Officer], dated
December 12, 2011, in which the Officer concluded that the Applicant is
inadmissible for permanent residence in Canada for a period of two years, for a
misrepresentation related to being the parent of two children in his visa
application. The Applicant seeks an order setting aside the Officer’s decision.
I. Background
[2]
The
Applicant is a citizen of Nigeria who applied for permanent residence as a
provincial nominee in May 2008, at which point he paid the processing fee for
himself, his spouse at the time and his two dependent children born in 1985 and
1986, the latter three of whom are living in Canada.
[3]
In
January 2009, the Applicant advised the immigration office that he had been
separated from his spouse since July 2008; she was removed from his application
in June 2010.
[4]
In
March 2011, the Applicant asked that his two children living in Canada be removed from his application. The immigration office requested updated
information to ascertain the Applicant’s current situation.
[5]
In
April 2011, the immigration office received an updated application which
reflected the separation from his former spouse and the removal of his two
children from his application.
[6]
In
June 2011, the Applicant asked to have his infant daughters; Onanefe and Oniefe
born September 14, 2008 and April 5, 2010 respectively as well as his partner
Enite (their mother) born February 8, 1983, accompany him to Canada.
[7]
The
Officer reviewing the file noted some discrepancies in the Applicant’s file and
sent a procedural fairness letter on June 13, 2011 asking for clarification as
to the omission of the two infant children up until that point.
[8]
The
Officer reviewed the Applicant’s response received in August 2011 and found the
explanation not to be credible, as it was inconsistent with the message that
the Applicant had sent in his correspondence in June 2011; specifically, there
was no mention of any paternity concerns with respect to Onanefe Miriam Ikede
and Oniefe Lisa Marie Ikede, which, was the Applicant’s justification for
failure to include the children in his submitted in the August 2011 letter.
[9]
The
case was referred for consideration of refusal, for misrepresentation
concerning the children, and the application was refused on December 12, 2011.
The Officer stated that the misrepresentation or withholding of this fact
induced or could have induced errors in the administration of the IRPA
because reliance on this information could have led to the conclusion that the
Applicant had declared all his family members – a requirement in the assessment
of admissibility for permanent residence.
[10]
The
decision turned on subsection 40(1)(a) of the IRPA, which states that a
foreign national is inadmissible for permanent residence for misrepresentation
if he or she directly or indirectly misrepresents or withholds material facts
that induce or could induce an error in the administration of the IRPA.
II. Issues
[11]
The
Applicant raises the following issues in the application for judicial review:
a.
Did
the Officer err in his assessment of section 117 (9)(d) of the Immigration
and Refugee Protection Rules [IRPR]?
b.
Did
the Officer reach a conclusion before fully examining the Applicant’s
application for permanent residence?
c.
Did
the Officer breach the Applicant’s right to a fair hearing and/or principles of
natural justice?
d.
Did
the Officer fail to consider the objective as set out in the IRPA?
[12]
Having
read the Applicant’s factum, the two main issues, as rephrased, are:
a.
Did
the Officer err in his assessment of the evidence particularly in respect to
his finding of lack of credibility?
b.
Did
the Officer breach the Applicant’s rights to a fair hearing and the principles
of natural justice?
III. Standard of Review
[13]
Counsel
for the Applicant and the Respondent agree that the applicable standard of
review is reasonableness for the issue of the Board’s assessment of the
evidence (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para
47 [Dunsmuir]) and correctness for the issue of procedural fairness (Malik
v Canada (Minister of Citizenship and Immigration), 2009 FC 1283, [2009]
FCJ No 1643 at para 23; Khan v Canada (Minister of Citizenship and
Immigration), 2009 FC 302, [2009] FCJ No 676 at para 11).
[14]
When reviewing a decision on the standard of
reasonableness, the Court is concerned with "the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, above,
at para 47; and Canada (Minister of Citizenship and
Immigration) v Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339 at para 59).
The Court should only intervene if it finds that the impugned decision is
unreasonable and falls outside the range of possible, acceptable outcomes.
IV. Analysis
A. Did the Officer Err in
his Assessment of the Evidence?
[15]
The
Applicant submitted that the Officer erred in stating that the information
provided by the Applicant would have induced an error in the administration of
the IRPA, by failing to update the information concerning his being the
father of two children and at the timing of finally advising the office of this
fact, such that the Applicant’s explanation was not credible.
[16]
The
Computer Assisted Immigration Processing notes [CAIP notes] indicate that the
Applicant did not include his children Onanefe Miriam Ikede and Oniefe Lisa
Ikede and their mother in the IMM008 form completed by the Applicant in April
2011, notwithstanding one of the children was born September 14, 2008 and the
second child was born in 2010. The Applicant first acknowledged the children
and their mother in a letter dated June 11, 2011 after receiving a procedural
fairness letter.
[17]
The
Applicant explained in an email dated August 1, 2011 that he had not previously
disclosed the two children and his partner given that the children’s mother and
he were not married, and that he did not accept parentage when the children
were born because he had paternity reservations given he and the mother did not
reside together (even though they had a sexual relationship). Further, the
Officer found that it appeared that the Applicant had misrepresented his
family’s composition by failing to declare his older daughter Miriam Ikede in
his family information form submitted and dated April 8, 2009, notwithstanding
the daughter’s date of birth was earlier, having been born in 2008.
[18]
The
Officer concluded that the information was material as it could have induced an
error in the administration of the IRPA, as without the knowledge of the
existence of both daughters, he would not have examined all family members in
the application and would not have been able to make an accurate decision
concerning inadmissibility.
[19]
Counsel
agreed that the “time of the application”, as stated in section 117(9)(d) of
the IRPR, refers to the time the applicant submits his
application for visa and continues until the time the applicant is granted a
right to enter Canada as a permanent resident at the port of entry (see dela
Fuente v Canada (MCI), 2006 FCA 186, [2006] FCJ 774). Accordingly, changes
made by the Applicant with respect to his family composition were provided
within that time, not after the Applicant was granted permanent resident status.
In essence, counsel for the Applicant has argued that the Officer’s credibility
findings were flawed because the Officer failed to account for the Applicant’s
reasonable explanations for delays in acknowledging his two children and
partner. Secondly, even if Applicant’s credibility was undermined, the Officer
had an obligation to allow the Applicant to further explain the delay in
acknowledging his children and the mother by way of an oral hearing.
[20]
As has been noted, the Officer’s credibility findings
are entitled to the most deferential standard of review, that of reasonableness
as this Court has found the Board has well-established expertise in the
determination of questions of fact, particularly in the evaluation of the
credibility (see Rahaman v Canada (Minister of Citizenship and Immigration),[2000]
FCJ No 1800, 101 ACWS (3d) 140 at para 38 (QL) (TD);
and Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998]
FCJ No 1425, 157 FTR 35 at para 14). In
this case, the Officer’s credibility findings were supported by the evidence
before it, and are therefore reasonable. Moreover, it is open to the Officer to
reject the Applicant’s explanation therefore, as stated above, the Applicant’s
failure to put his best foot forward when given the opportunity to do so and
not only acknowledge his children, but also explain why he had not included
them earlier on his application, renders the Officer’s findings reasonable.
[21]
Moreover, as set out in Baker v Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] SCJ No 39, an
oral hearing is not always necessary, and even under the duty of procedural
fairness, there is no unqualified right to an oral hearing, or issue from a
procedural fairness perspective. The question is whether an oral hearing is
necessary to provide a reasonable opportunity for the parties to effectively
make their case. In this case, it was not necessary.
B. Did the Officer Breach
the Applicant’s Right to a Fair Hearing and/or Principles of Natural Justice?
[22]
The
Applicant submits that the Officer acted unfairly or unreasonably by not
alerting the Applicant about his reservations or concerns that negated the
Applicant’s case, in finding that he lacked credibility concerning his two
children and partner given the timing of disclosure of the same. While there is
no question that an Officer should give an opportunity to respond to any
credibility concerns, either by conducting an interview or by sending the Applicant
a letter setting out his concerns so those concerns could be addressed, in this
case the Applicant was given such an opportunity by the Officer.
[23]
Given
that the explanation provided was found not to be credible, there was no
further obligation to provide another or further opportunity to explain or respond
to the Officer’s concerns; the burden is on the Applicant to establish that
show that he was not inadmissible (see Shi v Canada (Minister
of Citizenship and Immigration), 2005 FC 1224, [2005]
FCJ No 1490 at para 16). As no convincing evidence was put
forth by the Applicant in response to the procedural fairness letter, there was
no breach of procedural fairness by the Officer.
[24]
Neither
party proposed a question for certification although Applicant’s counsel asked
the Court to consider a possible question under reserve, namely:
When there is a credibility issue with respect to a
visa applicant’s application, is the applicant entitled to an oral hearing?
[25]
This
question has been answered in the negative in many cases before this Court, and
therefore I do not consider it appropriate to certify.
JUDGMENT
THIS
COURT’S JUDGMENT is that the Applicant’s judicial review
application is dismissed.
"Michael D.
Manson"
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