Date: 20110510
Docket: IMM-6087-10
Citation: 2011 FC 536
Ottawa, Ontario, May 10, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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THISOKLAL GNANAGURU AND GNANAGURU
VELUMMYLUM
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Background
[1]
Mr.
Thisoklal Gnagaguru, one of the Applicants in this matter, wishes to sponsor
his father, Mr. Velummylum Gnanaguru (the Father), and his Father’s family to
come to Canada from Sri Lanka. In a
decision dated September 27, 2010, a visa officer (Officer) in the High
Commission of Canada in Sri Lanka refused the sponsored application for
permanent residence for the Father, on the basis that the Father was
inadmissible to Canada. The Officer concluded that the Father was
inadmissible, pursuant to s. 40(1)(a) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) for misrepresenting or
withholding material facts. Moreover, the Officer determined that humanitarian
and compassionate (H&C) factors did not justify granting the Father
permanent residence status or any exemption from any obligation under IRPA. The
Applicants seek to overturn the Officer’s decision.
II. Issues
[2]
The
issues raised by this application are the following:
1.
What
is the appropriate standard of review?
2.
Did
the Officer err in concluding that the Father was inadmissible?
3.
Did
the Officer err in considering the H&C factors without proper notice to the
Applicants?
4.
Should
special relief be awarded in this case?
[3]
For
the reasons that follow, I conclude that the inadmissibility determination was
not unreasonable. However, I also find that the H&C determination was made
without proper notice to the Applicants and should be re-considered.
II. Statutory
Provisions
[4]
The
applicable statutory provisions are as follows:
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Immigration and
Refugee Protection Act
(S.C. 2001, c. 27)
11. (1) A foreign national must,
before entering Canada, apply to an officer for a visa or for any other
document required by the regulations. The visa or document may be issued if,
following an examination, the officer is satisfied that the foreign national
is not inadmissible and meets the requirements of this Act.
40. (1) A permanent resident or
a foreign national is inadmissible for misrepresentation
(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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Loi sur
l’immigration et la protection des réfugiés
(L.C. 2001, ch. 27)
11. (1) L’étranger doit, préalablement à son entrée au Canada,
demander à l’agent les visa et autres documents requis par règlement. L’agent
peut les délivrer sur preuve, à la suite d’un contrôle, que l’étranger n’est
pas interdit de territoire et se conforme à la présente loi.
40. (1) Emportent interdiction de territoire pour fausses
déclarations les faits suivants :
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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III. Analysis
A. Issue
#1: What is the appropriate standard of review?
[5]
The
two substantive issues in this application for judicial review are with respect
to the Officer’s decision that (a) the Applicant was inadmissible due to
material misrepresentation, and (b) H&C factors did not warrant relief.
[6]
The
decision of a visa officer as to whether an applicant is inadmissible should be
afforded deference by the Court and, thus, reviewed on a standard of
reasonableness (see, for example, Kumarasekaram v Canada (Minister of
Citizenship and Immigration), 2010 FC 1311; Karami v Canada (Minister of
Citizenship and Immigration), 2009 FC 788). In addition, since the Supreme
Court’s decision in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, it
has been well-established that the standard of review applicable to H&C
decisions made by visa officers is reasonableness.
[7]
On
this standard of review, the Court should not intervene unless the decision
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, [2008] 1 S.C.R. 190 at para. 47).
[8]
The
issue of whether the Applicants were given proper notice that the Officer would
conduct an H&C assessment is a question of procedural fairness, reviewable
on a standard of correctness.
B. Issue #2: Did the
Officer err in concluding that the Father was inadmissible?
[9]
As
reflected in the decision letter, the Officer found three areas of material
misrepresentation in the Father’s evidence: details of his employment or past
activities; details of his detention; and his address history. In a letter
dated August 25, 2010 (Fairness Letter), the Officer provided the Father with
notice of these concerns and gave him an opportunity to reply. The Father
provided written responses to the Fairness Letter. The Applicants argue that
the Officer erred in each of the three findings.
(1) Cumulative
[10]
A
preliminary argument made by the Applicants is that the three findings are
“cumulative”, meaning that, if the Officer erred with respect to one of the
three findings, the entire decision must be set aside. This is not correct.
[11]
In
this case, the Officer made three separate findings of material
misrepresentation. In general, any one material misrepresentation, on its own
and if not made in error, is a sufficient basis for a conclusion that an
applicant has misrepresented material facts and is inadmissible. It follows
that, unless all three findings with respect to the Father were made in error,
the decision of inadmissibility should not be disturbed.
[12]
The
Applicants rely on two cases: Kozman v Canada (Minister of Citizenship
and Immigration), 2002 FCT 714 and Peng v Canada (Minister of
Employment and Immigration), [1993] FCJ No 119 (CA). In my view, neither of
these cases assists the Applicants.
[13]
In Kozman,
the issue was a question of the effect of an inappropriate line of questioning
on the part of a tribunal member. The tribunal had asked the applicant numerous
questions regarding why she had chosen to take a solemn affirmation instead of
an oath on the Bible when she was a religious person. The Court allowed the
application for judicial review because it was impossible to tell on the record
the effect that this line of questioning may have had on the Board’s
consideration of the evidence. This is clearly different from the present case.
[14]
In Peng,
the tribunal had come to the erroneous conclusion that the applicant was not a
resident of Canton, but rather, it was
likely she came from Hong Kong. The Court found that it could not tell whether
this error caused the Board to come to a different conclusion. Once again that
is not the situation before me.
(2) Addresses
[15]
The
Officer noted that the Father’s submissions on his “address history” were
inconsistent. In the Fairness Letter, the Officer outlined his concern as
follows:
Your
address history changes considerably according to what information source I
review. Your new application now includes new information such as displacement
in Dec. 1995 and a return to Jaffna in Jan. 1997. Dates from locations in
both Jaffna and Trincomalee differ by some 6 months
in comparison to previous applications. I need to understand the truth of your
historical locations and why information provided by you would vary to such a
degree. I note that the addresses of your spouse have changed as well.
[16]
In
his response, dated September 11, 2010, the Father provided only one reason for
the different addresses. He blamed an interpreter who, in 2005, did not include
all of his addresses.
[17]
As
demonstrated by the CAIPS notes (CTR 24), the Officer considered the Father’s
(referred to as the “PI” in the CAIPS notes) explanation and rejected it as
follows:
The
PI tells us that variations in his applications in respect to locations and
dates are because an earlier application was filled out by [an] interpreter who
did not complete it accurately. The PI does not acknowledge that he was
responsible for the accuracy of submitted information. In December of 2008, the
PI in the course of an interview signed a declaration that this same 2005
application is truthful, complete and correct. He made no statements at that
time that errors could be or were present. I am of the view that the PI
misrepresented his location history as a result.
[18]
What
is also clear from the CAIPS notes is that the Officer considered this to be a
material misrepresentation. Whether a fact is material is certainly a matter
within the competence of the Officer.
[19]
The
Applicants have tried to shift the blame to the interpreter, despite the
Father’s signing of the declaration that the information was true and accurate.
The Applicants have also asserted that the Father did not intend to
misrepresent his addresses, as evidenced by the fact that he later clarified
the addresses. A review of the record shows that this was not a simple
misstatement of one address. Rather, the residence history of the Father is
replete with contradictions and inconsistencies, not all of which could
possibly be blamed on the interpreter.
[20]
In
sum, it was reasonably open to the Officer to reject the Father’s explanation
that it was the fault of the interpreter and to find that this was a
misrepresentation of a material fact.
(3) Employment
history
[21]
The
Officer also found material misrepresentations with respect to the Father’s
employment history. The Officer’s concern was disclosed in the Fairness Letter.
In that letter, the Officer noted that the Father had only stated on his
application that he was a fisherman, and that he disclosed later on that he ran
a textile shop, and had then provided different dates regarding the closing of
the shop. The Officer further noted that the Father could not provide any
evidence supporting his assertion that he ran a shop, such as a business
license, which the Officer found would have been required at that time. Nor
could the Officer find evidence to support the Father’s assertion that he was a
fisherman (other than a fisherman’s ID card issued for 2003), such as a boat
registration, a government issued document indicating his occupation, or adequate
evidence of participation in a co-op. Moreover, the fisherman’s identity
document that was produced showed a different address in 2003 than was set out
in the Father’s application.
[22]
In
his September 11, 2010 response, the Father attempted to provide some information
to address these concerns. These responses were considered by the Officer and
found to be insufficient to address the concerns raised.
[23]
Contrary
to the submissions of the Applicants, I do not find that the Officer was
relying on pure speculation as to what documentation would have been available.
The problem was the almost complete lack of corroborating or supporting
documentation throughout 35 years of fishing and membership in a co-operative.
[24]
In
my view, it was reasonably open to the Officer to conclude that the Father had
misrepresented his employment history and that such misrepresentation was
material.
(4) Detention
[25]
The
Applicants submit that the Officer erred in concluding that the Father had
misrepresented his history by failing to include his detention – on at least
three occasions – by LTTE forces. The Father acknowledges that he was detained
by the LTTE but asserts that he did not include these detentions because he
assumed that the application form was asking only about arrests or detentions
by government agents. In his view, the LTTE was never a legal government. The
argument appears to be that only agents of the official government of Sri Lanka could arrest and detain
individuals. Thus, the Applicants argue, the Father was never detained within
the meaning of the application. The Officer did not accept this explanation.
Nor do I.
[26]
In
my view, the forms completed by the Father did not limit the term “detention”
to detention by the Sri Lankan government forces. For example, Question 11 on
the form completed in 2005 directs an applicant to “Give details of what you
have been doing during the past 10 years or since age 18 . . . include jobs
held, periods of unemployment, periods of study and any other . . . stays in
hospitals, prisons or other places of confinement . . .” (emphasis
added). The Question also cautions the Applicant: “You must not leave gaps”.
The Father did not list his confinements (or detentions) by the LTTE, in clear
contravention of the directions. If in doubt, the Father would have been
well-advised to include the LTTE detentions with an explanation. The fact that
he failed to do so raises a question about what he may be trying to hide.
[27]
With
respect to whether the LTTE formed a “government”, I further observe that the Father’s
explanation does not accord with Mr. Thisoklal Gnagaguru’s (his son and sponsor)
view of the role of the LTTE within Sri Lanka. In 2008, Mr. Thisoklal Gnagaguru, in his personal
information form (PIF) submitted as part of his refugee claim in Canada, made the following
statement (CTR 196):
The LTTE took money from my father who
was a businessman, time to time. Whenever my father hesitated to give money to
the LTTE he was hit, threatened with arrest and mistreated by the LTTE.
We could not do anything to prevent this injustice because the LTTE
controlled our area and carried out the civil administration. [Emphasis
added]
[28]
In
the same document, the son refers to the fact that his Father “was arrested and
detained by the LTTE”. This document makes it clear that the LTTE was perceived
by the Applicants as an administrative entity with effective control of its
territory and the ability to arrest and detain persons. Whether it was a
“legal” government is not the question.
[29]
On
the basis of the evidence before him, the Officer was justified in concluding
that the Father had intentionally omitted reference to his detentions by the
LTTE. I am further persuaded that it was not unreasonable for the Officer to
conclude that this misrepresentation was material.
(5) Conclusion
on Admissibility
[30]
In
sum, I am not persuaded that the Officer erred in his assessment of the
Father’s admissibility. It was not unreasonable for the Officer to find, as he
did, that:
You
have misrepresented your historical activities, addresses and detainment
history. These elements are crucial to a determination of admissibility.
Without credible, clear and factual information, I cannot determine that you
are not inadmissible. The misrepresentation or withholding of these material
facts induced or could have induced errors in the administration of the Act
because we could have made incorrect decisions determining your admissibility.
D. Issue #4: Did the
Officer err in dismissing the H&C request?
[31]
Having
concluded that the Father was inadmissible due to misrepresentation, the
Officer turned his mind to whether an exemption was warranted from this finding
based on H&C considerations, pursuant to s. 25(1) of IRPA. The
Officer concluded that the H&C factors were not so significant to warrant
the putting aside of IRPA requirements or to overcome the safety and
security as determined by the requirement to demonstrate that one is not
inadmissible.
[32]
The
Applicants’ main argument is that the Officer assessed the H&C factors
without any notice that H&C factors were going to be considered.
[33]
The
Applicants did not request the Officer to carry out an H&C assessment.
Indeed, the Applicants thought that the Father and his family had received
H&C approval as part of the tsunami disaster response. This is reflected in
an entry in the CAIPS notes in the Certified Tribunal Record:
PURSUANT
TO CIC’s RESPONSE TO THE TSUNAMI DISASTER THE APPLICANT HAS BEEN ACCEPTED ON
HUMANITARIAN AND COMPASSIONATE GROUNDS AND IS TO BE PROCESSED ON A PRIORITY
BASIS (CTR, p. 4)
[34]
The
Applicants submit that, if they had known that the Officer was going to
consider H&C factors and whether they outweighed any inadmissibility
concerns, they should have been given notice and an opportunity to make
submissions and provide further evidence. On the unique facts of this case, I
agree.
[35]
This
case is extremely unusual. The Father was apparently assessed as part of Canada’s tsunami disaster
response and, in 2005, granted “pre-approval” as a victim of the disaster. The
approval was still subject to finalization based on background checks and other
statutory criteria, one of which was the admissibility determination. It was
not unreasonable for the Applicants to assume that the Officer’s review was
limited to making a finding on admissibility. Further, the Fairness Letter does
not identify that the Officer would be making a decision with respect to
H&C considerations.
[36]
In
sum, I am satisfied that, on the unique facts of this case, the Father ought to
have been provided with an opportunity to make further submissions on H&C
factors. By failing to do so, the Officer breached the rules of procedural
fairness. On this narrow issue, the application for judicial review will be
allowed.
V. Conclusion
and Remedies
[37]
In
conclusion, the Applicants will be successful with respect to the aspect of the
Officer’s decision that addressed the H&C consideration.
[38]
The
Applicants seek a number of remedies. I will address these individually:
1.
that
the decision be set aside. I will set aside only that portion of the
decision by which the Officer, pursuant to s. 25(1) of IRPA, decided that
H&C considerations did not justify granting the Father permanent residence
or an exemption from any applicable criteria or obligation of IRPA.
2.
that
the Court direct the Respondent, the Minister of Citizenship and Immigration,
to accept the Father and his family as permanent residents of Canada. I will not
so direct. Nor would I even if I had found the entire decision unreasonable;
this is not an appropriate case for a directed decision, where the Court would
be, in effect, taking on the duties and responsibilities of a visa officer.
3.
that,
if the Court is not prepared to direct a decision, that the matter be referred
to the Respondent’s, the Minister of Citizenship and Immigration’s, National
Headquarters (NHQ) for a decision within 30 days of the Court’s order. The
circumstances of this case are unusual in that the decision under review is the
second to be made on the same application and the Officer, on this second
review, was a senior counsellor in the Embassy in Colombo. In my view,
to avoid any further allegation of unfairness, it would be preferable to have
the matter referred to NHQ for the re-consideration of the H&C
determination. In light of the fact that, as requested by the Applicants, the
re-consideration will be carried out at NHQ and that the Applicants will be
permitted to make further submissions, the review will unavoidably take longer
than 30 days. Accordingly, I am not prepared to set any time limits. However, I
expect that the matter will be dealt with expeditiously.
4.
that
costs be awarded on a solicitor-client basis. There are no special
reasons to award costs on this application for judicial review.
[39]
Finally I wish to
emphasize that my decision that this matter should be considered at NHQ should,
in no way, be interpreted as a criticism of the Officer. In my view, the
attacks by the Applicants on this Officer, as set out in their submissions,
were unwarranted and not founded on any evidence beyond the fact that the
application was, for a second time, refused. The administration of justice is
not well-served by such attacks on the reputation and integrity of one of Canada’s public
servants.
[40]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that :
1.
the decision of the
Officer with respect to ss. 11(1) and 40(1)(a) of IRPA is affirmed;
2.
the decision of the
Officer with respect to s. 25(1) of IRPA is quashed and the matter referred to
a different officer of CIC located at National Headquarters of the Respondent,
the Minister of Citizenship and Immigration, for re-consideration;
3.
the Applicants will
be permitted to make further submissions with respect to the s. 25(1)
claim;
4.
the Respondent, the
Minister of Citizenship and Immigration, will assess the s. 25(1) claim as soon
as reasonably practicable after receiving the further submissions of the
Applicants or of being advised that no further submissions are to be made; and
5.
there is no question
of general importance for certification.
“Judith A. Snider”
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