Date: 20110128
Docket: IMM-2367-10
Citation: 2011 FC 101
Montréal, Quebec, January 28, 2011
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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TAN DO MAI
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant challenges the legality of a decision made by the Immigration Appeal
Division, Immigration and Refugee Board (the Tribunal), to uphold the removal
order issued by the Immigration Division (ID) for misrepresentation.
[2]
The
applicant was born in Vietnam on May 3, 1982. He
applied for a permanent resident visa on May 7, 2003, under the family class,
as an unmarried dependent of his father who lived in Canada and acted as
sponsor. He obtained his visa and arrived in Canada on March 22,
2005. However, in the interim, the applicant married his pregnant girlfriend
in a Catholic ceremony on August 17, 2004. The marriage was not registered at
the time with the Vietnamese Government. Their child was born on September 18,
2004. The birth was not registered at the time with the Vietnamese Government
either.
[3]
The
applicant did not report either his marriage or the birth of his child to the
Immigration officials during the processing of his application, nor upon
receipt of his permanent resident visa, nor upon his arrival to Canada. In fact, it
is only in 2006 that the existence of the applicant’s marriage and the
applicant’s child became known to the immigration officials. This time, the
applicant had decided to sponsor his wife and child and in the application for
sponsorship, he indicated that they were married August 17, 2004, and that
their son was born September 18, 2004. Furthermore, the applicant’s wife
indicated that they had lived together from 2000 to 2004.
[4]
As
per paragraph 117(9)(d) of the Immigration and Refugee Protection
Regulations SOR/2002-227, as amended (the Regulations), the wife and the
child were found not to belong to the family class and, consequently, the
sponsorship application was rejected. The applicant appealed this decision to
the tribunal, on the basis that he had not declared his wife and child because
he does not speak English or French. His appeal was rejected on May 27, 2008. That
decision is not contested before the Court.
[5]
This
now brings us to the subject matter of this proceeding. As per paragraph
40(1)(a) of the Immigration and Refugee Protection Act (the Act), a
permanent resident or a foreign national is inadmissible 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 the Act”.
[6]
Indeed,
pursuant to subsection 16(1) of the Act, the applicant had the duty to answer
truthfully all questions that were asked by the officer who examined him at the
port of entry. More particularly, section 51 of the Regulations requires that
the foreign national who holds a permanent residence visa report any changes
with respect to his or her family situation:
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51.
A foreign national who holds a permanent resident visa and is seeking to
become a permanent resident must, at the time of their examination,
(a)
inform the officer if
(i)
the foreign national has become a spouse or common-law partner or has ceased
to be a spouse, common-law partner or conjugal partner after the visa was
issued, or
(ii)
material facts relevant to the issuance of the visa have changed since the
visa was issued or were not divulged when it was issued; and
(b)
establish that they and their family members, whether accompanying or not,
meet the requirements of the Act and these Regulations.
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51.
L’étranger titulaire d’un visa de résident permanent qui cherche à devenir un
résident permanent doit, lors du contrôle :
a)
le cas échéant, faire part à l’agent de ce qui suit :
(i)
il est devenu un époux ou conjoint de fait ou il a cessé d’être un époux, un
conjoint de fait ou un partenaire conjugal après la délivrance du visa,
(ii)
tout fait important influant sur la délivrance du visa qui a changé depuis la
délivrance ou n’a pas été révélé au moment de celle-ci;
b)
établir que lui et les membres de sa famille, qu’ils l’accompagnent ou non,
satisfont aux exigences de la Loi et du présent règlement.
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[7]
On
April 21, 2008, the Minister issued a report as per section 44 of the Act
according to which the applicant would be inadmissible in Canada due to
“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” (paragraph 40(1)(a) of the Act). The report was
submitted to the ID for investigation. One year later, the ID concluded that
the applicant had made misrepresentations in the sense of paragraph 40(1)(a) of
the Act. A removal order was thus issued on April 20, 2009. The applicant
appealed the removal order before the Tribunal as per subsection 63(3) of the
Act and asked that the humanitarian and compassionate reasons in the file be
taken into account, as per paragraph 67(1)(c) of the Act.
[8]
On
March 31, 2010, the Tribunal rejected his appeal, finding that the removal
order was justified and that the humanitarian reasons claimed by the applicant
were insufficient to justify granting the special relief outlined in paragraph 67(1)(c)
of the Act. It is the decision to uphold the removal order that is the subject
of the application for judicial review today. The Tribunal’s rejection of the
humanitarian reasons claimed by the applicant is not contested before this
Court.
[9]
At
issue are two misrepresentations: one regarding the applicant’s “marriage” in
2004 and one regarding the birth of his child in 2004. The applicant does not
dispute the misrepresentations themselves. However, he does dispute that his
intention was to mislead the immigration officials. Moreover, he submits that the
misrepresentations were not material, as they would not have changed the
outcome of the applicant’s permanent residence application.
[10]
Both
before the Tribunal and this Court, the applicant has argued that as his
marriage was not legal in the eyes of the Vietnamese Government because it had
not been yet registered at the time of his application and entry in Canada. It
follows that he was under no obligation to report it (Definition of “marriage”,
section 2, Regulations). He thus made no misrepresentation of a material
fact relating to a relevant matter, as per paragraph 40(1)(a) of the Act.
[11]
Second,
as for the misrepresentation regarding his child, the applicant argues that as
the child was not registered with the Vietnamese Government, he also had no
obligation to report the child. In any case, the applicant’s having a child
does not disqualify him from obtaining permanent residence as a dependent on
his father, so it is not a misrepresentation in the sense of paragraph 40(1)(a)
of the Act.
[12]
Thirdly,
the applicant submits that he had no intention to mislead the immigration
authorities and that the Tribunal’s failure to give sufficient weight to the
absence of such an intention renders the impugned decision unreasonable.
[13]
All
these grounds of attack are challenged by the defendant who relies on the
findings of fact made by the Tribunal and on the applicable provisions of the
Act and Regulations. Indeed, the impugned decision is reasonable and accords with
the principles derived from the relevant case law. See Mohammed v. Canada (Minister of
Citizenship and Immigration), [1997] 3 F.C. 299 (Mohammed); Azizi
v. Canada (Minister of Citizenship and Immigration), 2005 CAF 406; Baro
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1299 (Baro); Bodine v.
Canada (Minister of Citizenship and Immigration), 2008 FC 848; Ekici
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1133.
[14]
The
Court finds that the appropriate standard of review in this case is
reasonableness. The decision made by the Tribunal relies on the application of
paragraph 40(1)(a) of the Act to the facts in evidence. It is therefore a
question of mixed fact and law and the Court will only intervene if the decision
of the Tribunal does not fall within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir v. New
Brunswick,
2008 SCC 9, at paragraph 47; Ali v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1354, at paragraph 20).
[15]
For
the reasons that follow, while sympathizing with the applicant and his family,
the Court finds the Tribunal’s decision reasonable in light of the facts and
the applicable law.
[16]
There
is nothing inherently unreasonable about the general conclusion reached by the
Tribunal. Material facts are not restricted to facts directly leading to
inadmissible grounds, but are broader. When relevant information affects the
process undertaken or the final decision, it becomes material (Koo v. Canada (Minister of
Citizenship and Immigration), 2008 FC 931, at paragraph 19). The
applicant’s failure to mention his wife and child prevented immigration
officials from investigating them and their relationship to the applicant. The
misrepresentation thus affected the process undertaken.
[17]
The
Tribunal has found that whether the marriage was technically legal or not in Vietnam, it was
still a material fact. This finding is reasonable in the circumstances. The
definition of “dependent child” in the Regulations includes a category of a
married child who remains financially dependent on the parent, and marital
status of the applicant is clearly relevant to the applicant’s belonging to
that category. In not declaring his marriage in Vietnam, he
prevented the immigration agent from undertaking an investigation to ensure
that he was admissible under the category of family reunification.
[18]
As
for the applicant’s child, the Tribunal reasoned that this also prevented the
immigration agent from investigating the child. This would prevent the
applicant from sponsoring his wife and child in the future under the category
of family reunification. It must be remembered that paragraph 40(1)(a) of the
Act refers notably to the “withholding [of] material facts relating to a
relevant matter that induces or could induce an error in the
administration of [the] Act” (my underlining). Therefore, it was not necessary
for the Tribunal to make a finding of an actual error caused by the
misrepresentation.
[19]
Furthermore,
the Tribunal’s decision fits quite well with the examples of what generally
constitutes misrepresentation as per paragraph 40(1)(a) of the Act, listed in
section 9.10 of the ENF2: Evaluating Inadmissibility guidelines,
published by the Ministry of Citizenship and Immigration. Two specific examples
relevant to the present case are “An applicant for a visa fails to disclose the
existence of family members, even if the family members could satisfy the
requirements of the Act [R117(9)(d)]” and “Failure to disclose changes in
marital status or changes in material facts since visa issuance abroad”.
[20]
The
guidelines are of course not binding on the Tribunal or any other body involved
in the process, but they are a good indication in a judicial review proceeding of
what an immigration official might reasonably find to constitute
misrepresentation of a material fact related to a relevant issue is. Besides
the reference above to the ENF2: Evaluating Inadmissibility guidelines,
see also, paragraphs 5.10, 5.11 and 10.5 of OP 2 – Processing Members of the
Family Class.
[21]
The
applicant also argues that he honestly believed that his religious marriage was
not required to be reported, and as such, he should not be punished by making
an inadvertent error. The applicant cites Baro, above, at paragraph 15,
in support of the claim that if the misrepresentation was truly innocent and
inadvertent, then an exception can be made and paragraph 40(1)(a) of the Act need
not be applied (Medel v. Canada (Ministre de l’emploi
et de l’immigration), [1990] 2 C.F. 345, [1990] A.C.F. No. 318
(C.A.F) (QL) (Medel).
[22]
This
issue was canvassed by my colleague Justice MacKay in Mohammed, above, under
a similar provision found in the old Immigration Act (i.e. paragraph
27(1)(e)). With respect to the comments made by Justice MacGuigan of the
Federal Court of Appeal in Medel, above, Justice MacKay writes at
paragraph 40:
In my opinion, the principle which arises
from the above comments of MacGuigan J.A. in Medel is that the duty of candour
owed by the applicant depends on the materiality of the information withheld. A
change in marital status has repeatedly been held to constitute a
"material fact" for the purposes of paragraph 27(1)(e) of the Act, in
so far as the failure to disclose it, as stated in Brooks, supra, [at page 873]
may reasonably have "the effect of foreclosing or averting further
inquiries".10 In the present case, the information failed to be disclosed
by the applicant, his change in marital status, was clearly
"material" information in that it potentially would have had a direct
or inducing influence on whether or not he was granted landing in Canada.
[23]
For
the purposes of the Act, “family member” includes, as the case may be, the
spouse or “common-law partner”, that is defined in the latter case as “an individual
who is cohabiting with the person in a conjugal relationship, having so
cohabited for a period of at least one year” (paragraphs 1(1) and (3) of the
Regulations).
[24]
In
the case at bar, the facts do not allow the conclusion that the applicant was
completely unaware that common law or conjugal history was relevant. When one
examines the application for permanent residence form that the applicant
completed, one sees that the applicant was expressly asked whether he was in a
common-law relationship. He responded that he was not, which could very well
have been true in 2003, although even that possibility is in doubt, given the
applicant’s wife’s application made in 2006 that they had lived together from
2000 to 2004. The truthfulness of that statement is ultimately immaterial,
however, given that the same application form required an undertaking that the
applicant would inform the immigration authorities should any information
therein changed. The applicant thus had the obligation to report any change in
his common law relationship status.
[25]
While
the general argument could be made that common law marriages can often be
difficult to define or prove, this is patently not the case. Even if the
applicant believed that his religious marriage was not a real marriage in the
eyes of the Vietnamese and Canadian governments, he repeatedly stated that he
viewed the marriage as valid, as per his Catholic faith. Indeed, the applicant
and his wife supposedly underwent the religious ceremony in 2004 in order to
save their families from the shame of an illegitimate child. Furthermore, when
the applicant’s wife applied for permanent residence in 2006, she indicated
that she and the applicant had married in 2004, and had been living together
since 2000. Given the facts in evidence, the applicant’s relationship with his
wife clearly qualifies as, at the very least, a common-law marriage. The
applicant was thus obligated to report that his spousal or conjugal status had
changed, which he did not do.
[26]
For
these reasons, the Tribunal’s decision is thus reasonable and the Court has no
grounds to interfere.
[27]
The
applicant has proposed the following question for certification:
Does
a marriage that does not satisfy the definition of marriage according to the
IRPA constitute a material fact and a fact relating to a relevant matter, in
the sense of inducing a misrepresentation?
[28]
The
test for certification is set out at paragraph 74(d) of the Act and section
18(1) of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22.
The test states that a question may only be certified if it is a serious
question of general importance which would be dispositive of an appeal (Zazai
v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 89, 318 N.R. 365 at paragraph 11).
[29]
This
standard is not met in the present case.
[30]
The
first criterion is that the question transcends the particular fact context in
which it has arisen. The question must lend itself to a generic approach
leading to an answer of general application (Boni v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 68, 357 N.R. 326 at paragraph 6). While
the issue is one of significance, the obligation to disclose a marriage that
does not satisfy the definition of marriage according to the Act is fact-specific.
[31]
In
view thereof, it is not necessary to decide whether the proposed question for
certification satisfies the second criterion, which is that the question must
be dispositive of an appeal. Moreover, even if it were necessary, the question
as phrased is not consistent with the obligation to disclose all material facts
relating to a relevant matter that induces or could induce an error in the
administration of the Act, as per paragraph 40(1)(a) of the Act. The question
as phrased is thus not dispositive of an appeal.
[32]
For
these reasons, the Court declines to certify the proposed question.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review be dismissed and no question is certified.
“Luc
Martineau”
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