Date: 20110627
Docket: IMM-6142-10
Citation: 2011 FC 781
Ottawa, Ontario, June 27, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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AJESHNI KUMAR
SANJAY NAND
SARWAN KUMAR
PRAKESH WATI
SUMIT KUMAR
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of an immigration officer, wherein the officer determined that the
applicants are inadmissible to Canada for misrepresentation pursuant to
paragraph 40(1)(a) of the Act.
[2]
The applicants request:
1. that
the decision be set aside and the claim remitted for redetermination by a different
member of the Board; and
2. costs.
Background
[3]
Ajeshni
Kumar is a permanent resident of Canada who applied in 2006 to
sponsor her family under the family class pursuant to section 117 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
[4]
The
applicants, Sarwan Kumar (her father), Prakash Wati (her mother) and their
dependant son, Sumit Kumar (her brother) were included in the application for
permanent residence and are citizens of Fiji.
[5]
As
part of the application process, in 2009, the Consulate General of Canada in Australia (the
Consulate) sent Sumit Kumar an IMM5406 form with instructions to fully complete
and return the form. In the signed IMM5406 form, Sumit Kumar declared NA under
the section B headed children.
[6]
The
Consulate twice requested a statutory declaration from Sumit Kumar verifying
his marital status in March and April 2010.
[7]
On
May 23, 2010, Ajeshni Kumar sent an email to the Consulate advising that her
brother Sumit Kumar:
…would like to declare that he is engaged
to his girlfriend and they have a daughter together. […] Sumit was unaware of
the area to make such a declaration and wanted your honourable consulate to
have these facts to avoid any future confusion.
[8]
On
May 27, 2010, the officer received a letter dated April 28, 2010 from Sumit
Kumar with the note at the bottom, “yes I am currently engaged to my
girlfriend.”
[9]
The
Consulate requested on June 3, 2010, that Sumit Kumar provide a birth certificate
for his daughter and complete a family class questionnaire form among others.
[10]
The
officer sent out a fairness letter to Ajeshni Kumar on July 14, 2010 stating
that because the applicants failed to declare the existence of a child at the
time of applying for permanent residence, the officer had come to the
conclusion that Sumit Kumar misrepresented himself and that all of the
applicants could possibly be inadmissible for permanent residence.
[11]
The
officer gave the applicants an opportunity to respond to the letter.
[12]
Ajeshni
Kumar responded for her brother through a letter dated August 17, 2010, stating
that Sumit Kumar had not been in touch with his ex-girlfriend for four years
and only became aware of the child after November 2009.
Officer’s Decision
[13]
On
August 19, 2010, the officer found that the applicant, Sumit Kumar had
misrepresented or withheld material facts contrary to paragraph 40(1)(a) of the
Act and that pursuant to paragraph 40(2)(a), he and the other persons included
in the sponsorship application were inadmissible to Canada for two years.
[14]
The
officer reached this conclusion because in the application for permanent
residence dated September 8, 2009, the applicant, Sumit Kumar indicated “NA Not
Available” under the heading children. In the family class questionnaire form
submitted by Sumit Kumar, the officer became aware that Sumit Kumar had been in
constant contact with his daughter since her birth and was aware of her
existence at the time he completed his permanent residence application.
Issues
[15]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Was the officer’s
decision reasonable?
3. Did the officer
breach the applicants’ right to procedural fairness?
Applicants’ Written
Submissions
[16]
The
applicants submit that because the applicant, Sumit Kumar disclosed the
existence of his child and the fact that he is engaged before the officer made
a decision, there was no possibility for inducing an error in the
administration of the Act under paragraph 40(1)(a). The applicants rely on Kaur
v Canada (Minister of
Citizenship and Immigration), 2007 FC 268, in which they submit Madam Justice
Johanne Gauthier held that Parliament did not intend to punish the withdrawal
of inaccurate statements through the application of section 40 of the Act.
[17]
The
applicants further submit that the officer breached procedural fairness by not
convoking an interview. Since Sumit Kumar’s credibility was at stake as he
stated he did not know of the existence of his daughter until November 2009,
the officer was obligated to convoke an interview and put his concerns directly
to Sumit Kumar.
Respondent’s Written Submissions
[18]
The
respondent submits that there was more than sufficient evidence before the
officer to reasonably determine that the applicant is inadmissible 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” as per paragraph 40(1)(a) of the Act. This provision
must be understood as including misrepresentation which could induce, as well
as does induce, an error in the administration of the Act. The respondent
submits that this includes situations where an applicant misrepresents himself
and then later retracts or rectifies the misrepresentation.
[19]
The
respondent further argues that the officer was not required to hold an
interview. The existence of a child was an essential and material fact that was
required to be disclosed in the application itself. Nevertheless, the officer
followed up on more than one occasion requesting clarification from the
applicant, Sumit Kumar. It was only then that the existence of his fiancé and
daughter were revealed.
Analysis and Decision
[20]
Issue
1
What is the appropriate standard
of review?
Where previous jurisprudence has
determined the standard of review applicable to a particular issue, the
reviewing court may adopt that standard (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 57).
[21]
The
standard of review which applies to the findings of fact made by an immigration
officer is that of reasonableness (see Dunsmuir above, at paragraphs 47 and 53; De Luna v Canada (Minister of
Citizenship and Immigration), 2010 FC 726 at
paragraph 12). However, any
issues of procedural fairness, including the right to be heard, will be
reviewed on the correctness standard (see Khosa v Canada (Minister of
Citizenship and Immigration), 2009 SCC 12 at paragraph 43).
[22]
Issue 2
Was
the officer’s decision reasonable?
I find that the officer’s decision
was reasonable for the following reasons.
[23]
Form
IMM5406 “Additional Family Information”, which the applicant, Sumit Kumar was
required to fill out, indicates in Section B, “CHILDREN (include ALL sons and
daughters, including ALL adopted and step-children, regardless of age or place
of residence).”
[24]
Sumit
Kumar did not disclose that he had a daughter when he signed the permanent
residence application form in September 2009. Rather, he wrote “NA Not
Available”.
[25]
Following
an exchange between the officer and Sumit Kumar concerning his marital status,
the officer determined that Sumit Kumar had known about the existence of his
child from the family class questionnaire that he and his fiancé filled out and
signed on June 29, 2010.
[26]
This
questionnaire states:
4. When did you begin dating and how long
did you date before deciding to get married?
6 yrs but not married yet, engaged to be
married in the future.
5. Who proposed marriage?
Sumit propose when the child was born.
a) When and where did the proposal take
place?
At his home.
[…]
8. Have you met your partner’s parents?
Yes [circled]
a) Briefly describe your first meeting
with your partner’s parents:
When the child was born.
[…]
12. Are you in regular contact with your
partner? Yes [circled]
a) If yes, by what means (i.e.
telephone/letters/email) and how frequently?
Everyday visit each other with our child.
[27]
The
words of section 40 of the Act must be given their ordinary meaning and the
provision must be interpreted harmoniously with the purpose of the Act (see Thomson
v Canada (Department
of Agriculture), [1992] 1 S.C.R. 385). Paragraph 40(1)(a) clearly indicates
that withholding material facts which could induce an error in the
administration of the Act is misrepresentation. Contrary to the applicants’
submission, the Act does not require that an error has been induced. Rather,
withholding a material fact which could induce an error is sufficient
for misrepresentation.
[28]
Given
the applicant Sumit Kumar’s answers to this questionnaire, it was reasonable
for the officer to conclude that Sumit Kumar’s withholding of the fact that he
had a daughter on the original application for permanent residence amounted to
misrepresentation under paragraph 40(1)(a) because it could have induced an
error in the administration of the Act. I would also note that there was no
satisfactory explanation given for the withholding of the information.
[29]
Issue
3
Did the officer breach the
applicants’ right to procedural fairness?
The officer did not breach the
applicants’ right to procedural fairness.
[30]
The
officer gave the applicant, Sumit Kumar, several opportunities to correct the
problems with his marital status and to explain the discrepancy between the
original permanent residence application and the declaration that he had a
child with his girlfriend.
[31]
The
officer was under no obligation to convoke an interview.
[32]
The
jurisprudence indicates that an officer is not under a duty to inform the
applicant about any concerns regarding the application which arise directly
from the requirements of the legislation or regulations (see Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283 at paragraphs 23 and 24).
[33]
The
Regulations provide at subsection 10(2) that:
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10. . . .
(2) The
application shall, unless otherwise provided by these Regulations,
(a) contain
the name, birth date, address, nationality and immigration status of the
applicant and of all family members of the applicant, whether accompanying
or not, and a statement whether the applicant or any of the family
members is the spouse, common-law partner or conjugal partner of another
person;
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10.
. . .
(2) La
demande comporte, sauf disposition contraire du présent règlement, les
éléments suivants :
a) les
nom, date de naissance, adresse, nationalité et statut d’immigration du
demandeur et de chacun des membres de sa famille, que ceux-ci
l’accompagnent ou non, ainsi que la mention du fait que le demandeur ou
l’un ou l’autre des membres de sa famille est l’époux, le conjoint de fait ou
le partenaire conjugal d’une autre personne;
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[Emphasis added]
[34]
As
such, the existence of a child of Sumit Kumar was a material fact that the
Regulations required to be included in the application for permanent residence.
The officer did not err by not convoking an interview.
[35]
The
applicants did not wish to submit a proposed serious question of general
importance for my consideration for certification. Because of my findings, I
need not give the respondent time to submit a proposed question as the
respondent only wished an opportunity to submit a question if my decision did
not recognize the words, could induce, in paragraph 40(1)(a) of the Act.
[36]
As a
result, I would dismiss the application for judicial review.
JUDGMENT
[37]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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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;
. . .
(2) The
following provisions govern subsection (1):
(a) the
permanent resident or the foreign national continues to be inadmissible for
misrepresentation for a period of two years following, in the case of a
determination outside Canada, a final determination of inadmissibility under
subsection (1) or, in the case of a determination in Canada, the date the
removal order is enforced; and
. . .
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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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;
. . .
(2) Les
dispositions suivantes s’appliquent au paragraphe (1) :
a) l’interdiction
de territoire court pour les deux ans suivant la décision la constatant en
dernier ressort, si le résident permanent ou l’étranger n’est pas au pays, ou
suivant l’exécution de la mesure de renvoi;
. . .
72. (1) Le contrôle judiciaire
par la Cour fédérale de toute mesure — décision, ordonnance, question ou affaire
— prise dans le cadre de la présente loi est subordonné au dépôt d’une
demande d’autorisation.
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Immigration
and Refugee Protection Regulations, SOR/2002-227
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10. . . .
(2) The
application shall, unless otherwise provided by these Regulations,
(a) contain
the name, birth date, address, nationality and immigration status of the
applicant and of all family members of the applicant, whether accompanying or
not, and a statement whether the applicant or any of the family members is
the spouse, common-law partner or conjugal partner of another person;
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10.
. . .
(2) La
demande comporte, sauf disposition contraire du présent règlement, les
éléments suivants :
a) les
nom, date de naissance, adresse, nationalité et statut d’immigration du
demandeur et de chacun des membres de sa famille, que ceux-ci l’accompagnent
ou non, ainsi que la mention du fait que le demandeur ou l’un ou l’autre des
membres de sa famille est l’époux, le conjoint de fait ou le partenaire
conjugal d’une autre personne;
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