Date: 20110316
Docket: IMM-4333-10
Citation: 2011 FC 315
Ottawa, Ontario, March 16, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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MD AZIZUL HAQUE, SAMINA
AZIZ,
ARIFUL HAQUE, NOWSHIN HAQUE,
NAZIFA HAQUE and NAFISA HAQUE
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Applicants
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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
principal applicant, Md Azizul Haque, was found inadmissible to Canada under
paragraph 40(1) (a), of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (“IRPA”) for having omitted and misrepresented certain information
in his application for permanent residence pertaining to his prior studies,
residency and work history. He seeks judicial review of the decision refusing
his application made on May 28, 2010 by the Immigration Program Manager of the
High Commission of Canada in Singapore. For the reasons that
follow, the application is dismissed.
BACKGROUND
[2]
Mr.
Haque is a 33-year old citizen of Bangladesh. He submitted his
application for permanent residence under the investor class in March 2010. His
application failed to disclose that he had formerly lived and studied in the United
States
for over one year. He also omitted or misrepresented details with respect to
his places of residence, his education and his employment history.
[3]
In
a letter from the Immigration Section of the High Commission of Canada in Singapore dated April
12, 2010, Mr. Haque was asked to clarify why he withheld such information. His
consultant replied on the applicant’s behalf saying Mr. Haque assumed that
because it was a short stay in the United States, he was not required to
declare it. Mr. Haque denied this explanation in a phone conversation with a
Visa Officer on May 26, 2010. Instead, he said he had disclosed all information
to his consultant and it was the consultant who had made the error. In that
same phone call, Mr. Haque was also asked to explain the discrepancies related
to his employment history and residential addresses in Bangladesh. He was
unable to sufficiently clarify these questions to satisfy the Officer with
respect to concerns regarding the overall application.
DECISION UNDER REVIEW
[4]
Mr.
Haque was found inadmissible for permanent residence under paragraph 40(1) (a)
of the IRPA for failing to disclose and for misrepresenting information that
was relevant to his application. Such information was deemed to form an
important part of his admissibility assessment.
ISSUES
[5]
Was
the Visa Officer’s inadmissibility finding reasonable?
RELEVANT LEGISLATION
[6]
Section
40 of the IRPA deals with inadmissibility due to misrepresentation. Paragraph
40(1)(a) reads as follows:
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40. (1)
A permanent resident or a foreign national is inadmissible for
misrepresentation
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40.
(1) Emportent
interdiction de territoire pour fausses déclarations les faits suivants :
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(a) 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;
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a) directement ou indirectement,
faire une présentation erronée sur un fait important quant à un objet
pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque
d’entraîner une erreur dans l’application de la présente loi;
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[7]
Subsection
16(1) of the Act imposes an obligation on applicants to be
truthful :
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16. (1)
A person who makes an application must answer truthfully all questions put to
them for the purpose of the examination and must produce a visa and all
relevant evidence and documents that the officer reasonably requires.
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16.
(1) L’auteur d’une demande au titre de la présente loi doit répondre
véridiquement aux questions qui lui sont posées lors du contrôle, donner les
renseignements et tous éléments de preuve pertinents et présenter les visa et
documents requis.
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ANALYSIS
[8]
The
facts in this case are largely not disputed. It is acknowledged by both parties
that the applicant omitted certain information in his permanent residence
application, namely the fact that he attended school in the United
States
for three semesters (from November 1997 to December 1998). This was only
discovered by the Visa Officer in his review of the Field Operational Support
System (FOSS). FOSS contained information about the applicant’s previous visits
to Canada while he was
in the United
States.
[9]
In
their written submissions, the applicants argue that the misrepresentations
were not intentional, that it was the consultant who erred in properly filling
out the application and that regardless, because Mr. Haque was applying as an
investor, his visits to the United States were not relevant to
the selection criteria for that category. Nor were the discrepancies regarding
his residential addresses in Bangladesh. He disclosed his stays
in the United
States
in his Temporary Resident Visa (“TRV”) applications of 2003 and 2006.
[10]
The
applicants rely on several decisions to support their claim that according to
paragraph 40(1) of the IRPA, misrepresentations must be material or relevant
and could actually induce an error in the administration of the Act: Baseer
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1005 at para. 12; Kaur v.
Canada (Minister of Citizenship and Immigration), 2007 FC 268; Bellido
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 452 at para. 30; Maruquin v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1349 at para. 17; Ali v. Canada (Minister of
Citizenship and Immigration), 2008 FC 166 at paras. 2-4.
[11]
A
foreign national seeking to enter Canada has a “duty of candour”
which requires disclosure of material facts. I agree with the respondent that
Mr. Haque did not disclose information that, had it not been discovered, could
have resulted in a visa being issued without the required police and conduct
certificates from the United States. This information was
material to the application and without it, an investigation would have been
foregone that could have had the effect of inducing an error in the
administration of the Act. If the information was deliberately omitted
to avoid a delay in conducting such inquiries, it was a costly mistake.
[12]
The
applicant never “corrected” or “rectified” the misrepresentations, as he
submits. They were only revealed when his previous TRV applications made some
years ago were compared with the information provided in his permanent
residence application. In any event, this Court
has rejected the argument that paragraph 40(1) (a) is inapplicable where the
misrepresentation is “corrected”: Khan v. Canada (Minister of
Citizenship and Immigration), 2008 FC 512 at paras. 25, 27 and 29.
[13]
Reading
sections 40 and 16 of the IRPA together, I agree with the respondent that
foreign nationals seeking to enter Canada have a “duty of
candour” which requires disclosure of material facts: Bodine v. Canada (Minister of
Citizenship and Immigration), 2008 FC 848, 331 F.T.R. 200 at paras.
41-42; Baro v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1299 at para. 15. Indeed, the
Canadian immigration system relies on the fact that all persons applying under
the Act will provide truthful and complete information: Cao v. Canada (Minister of
Citizenship and Immigration), 2010 FC 450, 367 F.T.R. 153 at para. 28. Mr.
Haque’s omission concerning his year-long study period in the United
States,
discrepancies in home addresses and work history are material and relevant
facts needed in order to properly assess admissibility.
[14]
Section
3 of the IRPA points to a number of immigration objectives that should
be kept in mind when administering the Act. Among others, these
objectives include enriching and developing the country through social,
economic and cultural means while ensuring the protection and security of
Canadians living here. In order to adequately protect Canada’s borders,
determining admissibility necessarily rests in large part on the ability of
immigration officers to verify the information applicants submit in their
applications. The omission or misrepresentation of information risks inducing
an error in the Act’s administration.
[15]
Mr.
Haque has attempted to attribute blame to his consultant for improperly filling
out his application. Nonetheless, he signed the application and so cannot be
absolved of his personal duty to ensure the information he provided was true
and complete. This was expressed succinctly by Justice Robert Mainville at
para. 31 of Cao, supra:
The Applicant signed her temporary
residence application and consequently must be held personally accountable for
the information provided in that application. It is as simple as that.
[16]
The
applicant was in Bangladesh at the time the updated application was
submitted. He admitted during the phone conversation on May 26th
that he “could have signed the blank form for the consultant”. The new form had
further discrepancies. The applicant apparently chose to rely on the consultant
to submit the required information without personally verifying that it was
accurate.
[17]
The
applicants’ argument that Mr. Haque corrected his misrepresentations does not
stand. Although paragraph 40(1)(a) is written broadly, it should not be read
to mean that that it applies in all situations where a misrepresentation is
clarified prior to a decision being rendered: Khan, supra at
para. 25; Cabrera
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 709, 372 F.T.R. 211 at para. 40. Thus, the
attempted clarifications in this case do not change the reasonableness of the
Officer’s finding.
[18]
Finally,
the jurisprudence relied upon by the applicant has no bearing on the case at
bar. In Baseer, above, the Officer was found to have committed a
reviewable error by refusing permanent resident visas on the basis of bone age
tests. These tests were not accurate and thus it was unreasonable for the
Officer to conclude that the applicant made material misrepresentations. Kaur
involved a situation where past misrepresentations were not held to be
relevant to the application for permanent residence status. Bellido upheld
the Visa Officer’s conclusions, finding that misrepresentations pursuant to
s.40 had indeed occurred. Maruquin was a “special circumstance”
involving the disclosure of the birth of a baby prior to the visas being
issued. And Ali concerned a case where the Computer Assisted Immigration
Processing System (“CAIPS”) notes did not reflect an analysis of the materiality
of the misrepresentations in question.
[19]
The
application is dismissed. No serious questions of general importance were
proposed.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application is dismissed.
There are no certified questions.
“Richard
G. Mosley”
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