Date: 20090507
Docket: IMM-3680-08
Citation: 2009 FC 471
Ottawa, Ontario, May 7, 2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
MUHAMMAD
SHAHID NAZIM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Muhammad Shahid Nazim seeks judicial review of a decision rejecting his
application for permanent residence as a member of the Spouse in Canada class.
In rejecting the application, the immigration officer found that Mr. Nazim had
misrepresented a material fact in relation to his application.
[2]
Mr. Nazim says that the officer’s decision was unreasonable, as he had
corrected his application for permanent residence prior to a decision having
been rendered in relation to the application. As a result, he says that any
misrepresentation that he may have made could not have been material or
relevant to his application, nor could it have induced an error in the
administration of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[3]
For the reasons that follow, I do not accept Mr. Nazim’s submissions.
As a consequence, the application for judicial review will be dismissed.
The Redactions from the Record
[4]
As a preliminary matter, it should be noted that the certified tribunal
record provided to Mr. Nazim contained several redactions. A motion for
non-disclosure was brought by the respondent in accordance with the provisions
of section 87 of the Immigration and Refugee Protection Act.
[5]
Mr. Nazim consented to the matter proceeding on the basis of the
redacted record, and an order issued by the Chief Justice adjourning the
section 87 motion sine die notes that the expurgated information was
either irrelevant to Mr. Nazim’s application for judicial review, or had been
substantially disclosed to him elsewhere in the Tribunal record.
Background
[6]
Mr. Nazim is a citizen of Pakistan. He came to Canada in 1997. Once in
Canada, Mr. Nazim made a refugee claim based on his alleged fear of
persecution in Pakistan as a result of his membership in the Mohajir (or
Muttahida) Quami Movement (or “MQM”). Mr. Nazim claimed that he was wanted by
both the police and the army in Pakistan because of his activities with the
MQM.
[7]
The Board rejected Mr. Nazim’s refugee claim, finding that his evidence
was neither credible nor trustworthy. Not only did the Board not accept that
Mr. Nazim had ever worked for the MQM, it found that his entire story of
involvement with the MQM had been fabricated in order to support his refugee
claim. Leave to appeal that decision was denied by this Court.
[8]
Mr. Nazim made an application for a Humanitarian and Compassionate
exemption in 2001, which was refused. A second such application was filed in 2005.
In both applications, Mr. Nazim claimed to have been a member of the MQM.
[9]
In 2008, Mr. Nazim married a Canadian citizen. He then discontinued his
second H&C application, and filed his application for permanent residency
as part of the Spouse in Canada class. In this application, Mr. Nazim once
again claimed to be a member of, or associated with, the MQM.
[10]
In 2006, Mr. Nazim was called in for an interview with the Canadian
Security Intelligence Service. He was advised that the interview related to
“security matters contained [in] section 34(1) of the Immigration and
Refugee Protection Act ”. Subsection 34(1) provides that individuals may
be inadmissible to Canada on security grounds for engaging in various types of
activities, including being a member of an organization for which there are
reasonable grounds to believe has engaged in activities such as terrorism or
subversion.
[11]
During questioning by CSIS officials, Mr. Nazim changed his story, and
claimed that he had never in fact been a member of the MQM. He now claimed
that his only involvement with the organization had been to pass out MQM flyers
a few times during election campaigns. Mr. Nazim claimed that an immigration
consultant had counselled him to provide the fabricated story of MQM membership
and persecution by Pakistani forces in order to support his refugee claim.
[12]
When Mr. Nazim was later interviewed by representatives of Citizenship
and Immigration Canada, he repeated his new story. At CIC’s request, Mr. Nazim
provided CIC with a revised application form that made no mention of either
membership in, or association with, the MQM.
[13]
An immigration officer subsequently found Mr. Nazim to be inadmissible
to Canada pursuant to section 40(1)(a) of the Immigration and Refugee
Protection Act, for having misrepresented or withheld material facts in
connection with his application for permanent residency.
[14]
Mr. Nazim now says that he provided false information in his application
because he did not want there to be any “discrepancies” as between his various
immigration-related applications.
Mr. Nazim’s Criminal Conviction
[15]
In his revised application for permanent residency, Mr. Nazim noted that
he had been convicted of a criminal offence, advising that the conviction was
under appeal. At the hearing of this application, counsel for the respondent
provided the Court with a copy of the Reasons for Judgment of Justice
Fairgrieve of the Ontario Court of Justice, wherein he finds Mr. Nazim guilty
of sexual exploitation, contrary to section 153(1)(b) of the Criminal Code,
R.S.C. 1985, c. C-46. Counsel for Mr. Nazim
objected to the filing of Justice Fairgrieve’s reasons on the grounds that they
were not before the immigration officer when the decision under review was
made.
[16]
I agree that Justice Fairgrieve’s decision is not properly part of the
record on this application, as it was not before the officer when the decision in
issue was made, and no consideration will be given to the document.
Analysis
[17]
Mr. Nazim argues that the immigration officer erred in finding that he
had misrepresented a material fact relevant to his applications that could have
induced an error in the administration of the Act, given that he had clarified
the situation prior to a decision having actually been made in relation to his
application for permanent residence.
[18]
This issue involves the application of statutory provisions to the facts
of this case. As such, the immigration officer’s decision should be reviewed
against the standard of reasonableness: see Dunsmuir v. New Brunswick,
2008 SCC 9.
[19]
In reviewing a decision against the reasonableness standard, the Court
must consider the justification, transparency and intelligibility of the
decision-making process, and whether the decision falls within a range of
possible acceptable outcomes which are defensible in light of the facts and the
law: see Dunsmuir,
at paragraph 47.
[20]
Section 16(1) of IRPA requires that a person making an
application under the Act truthfully answer all questions that may be put to
them. Section 40(1)(a) of the Act provides that a foreign national will be
inadmissible to Canada for misrepresentation 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”.
[21]
This case is somewhat unusual in that rather than enhancing his application
for permanent residency, the misrepresentation made by Mr. Nazim could actually
have led to him having been found to be inadmissible to Canada on security
grounds. As such, it was clearly material to his application. It appears,
however, that Mr. Nazim only came to understand the potential implications of
his misrepresentation in the course of his CSIS interview. It was at this
point that he changed his story, and denied ever having been a member of the
MQM.
[22]
Mr. Nazim again admitted having misrepresented the nature and extent of
his involvement with the MQM in his interview with the immigration officer.
[23]
Counsel for Mr. Nazim now argues that there was in fact no
misrepresentation in his application for permanent residency. Even though Mr.
Nazim may never have formally joined the MQM, his actual involvement with the
organization, albeit much more limited than originally claimed, could
nevertheless qualify as “membership”.
[24]
The difficulty with this submission is that it does not accord with what
actually occurred in this case. Mr. Nazim did not represent himself as being a
member of, or associated with, the MQM in his application for permanent
residency in order to truthfully reflect his peripheral involvement with the
organization. Rather, he represented that he was a member of the MQM so that
there would be no discrepancies between his application for permanent
residency, and the admittedly fabricated story that he had told the Immigration
and Refugee Board.
[25]
That is, in the interests of consistency, Mr. Nazim was clearly trying
to perpetuate the deception of the Canadian immigration system that had begun
with his refugee claim, had continued with his two H&C applications, and
culminated with his application for permanent residency. It was only when Mr.
Nazim came to realize that it was no longer to his advantage to continue with
his misrepresentation that he changed his story so as to now minimize his
involvement with the MQM.
[26]
Moreover, the contention that Mr. Nazim’s peripheral activities could
qualify as “membership” is at odds with his revised application for permanent
residency which disavows any membership or association with the MQM.
[27]
Mr. Nazim also relies on the decision in Kaur v.
Canada (Minister of
Citizenship and Immigration), 2007 FC 268, as
authority for the proposition that a misrepresentation that has been withdrawn
cannot form the basis of an inadmissibility finding under section 40 of IRPA. However, a review of that decision discloses that the case is readily
distinguishable from the present situation.
[28]
In Kaur, the applicant had made misrepresentations
in connection with her refugee claim. Her subsequent application for permanent
residence accurately reflected the true state of affairs. In those
circumstances, the Court quite properly found that the applicant’s earlier
misrepresentations could not have induced an error in relation to the
application for permanent residence. That is not the situation here.
[29]
The misrepresentation made by Mr. Nazim in this
case was made not only in relation to his refugee claim and H&C
applications, but was repeated by him in the context of the application for
permanent residence that was under consideration by the immigration officer.
In such circumstances, the fact that Mr. Nazim’s misrepresentation may have
been disclosed by him prior to a final decision having been taken in relation
to his application does not assist him. Indeed, this Court specifically
rejected this argument in Khan v. Canada (Minister of Citizenship and Immigration),
2008 FC 512, at paras. 27-29.
[30]
That is, the Court held in Khan that such an
interpretation would lead to situations where individuals could knowingly
misrepresent their circumstances, but nevertheless escape an inadmissibility
finding, as long as they disclosed the misrepresentation right before a
decision was made. Not only would such an interpretation encourage the abuse
of the Act, it also ignores the requirement to provide truthful information in
applications under the Act.
[31]
The Court’s concerns in Khan are borne out
by the facts of this case, where Mr. Nazim only acknowledged the true state of
affairs with respect to his involvement with the MQM once he realized that his
lie could render him inadmissible to Canada.
[32]
As a consequence, I am satisfied that the officer’s
conclusion that Mr. Nazim had misrepresented a material fact relating to a
relevant matter that could have induced an error in the administration of the
Act was one that was reasonably available to the officer on the record.
Conclusion
[33]
For these reasons, the application for judicial review is dismissed.
Question for Certification
[34]
The respondent proposed a question for certification with respect to the
ability of the officer to base a finding of misrepresentation for the purposes
of section 40 of IRPA on a misrepresentation that had been made in a
previous immigration proceeding.
[35]
In my view, this is not an appropriate question for certification. The
misrepresentation at issue in this case was made not only in the context of Mr.
Nazim’s applications for refugee protection and H&C exemptions, but was
repeated by him in the application for permanent residency under consideration
by the immigration officer.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2.
No serious question of general importance is certified.
“Anne
Mactavish”
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