Date: 20110407
Docket: IMM-3373-07
Citation: 2011 FC 433
Ottawa, Ontario, April 7, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
|
|
RASHID MAHMOOD
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision of Counsellor
(Immigration), Georges Ménard, (the Officer) of the Canadian High Commission
(CHC) in Islamabad, Pakistan, dated June 18, 2007, wherein the Officer refused
the Applicant’s mother’s application for permanent residence in Canada on the
grounds that she was inadmissible due to misrepresentation of material facts in
her application for permanent residence in Canada.
[2]
Based
on the reasons below, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicant, Mahmood Rashid, is a Canadian citizen. He applied to sponsor his
mother, Fatima Bashir, for permanent residence in Canada. The application was
received at the visa post on October 22, 2002 and included the Applicant’s
sister, Munazza Aslam, who at the time was 22 years old and a dependent of
Ms. Bashir.
[4]
Ms.
Bashir provided supporting documentation concerning herself and her daughter.
When the application was reviewed, concerns were raised regarding the
authenticity of Ms. Aslam’s educational documents. Copies of the educational
certificates were sent to the Controller of Examinations, Board of Intermediate
& Secondary Education of Lahore for verification.
[5]
On
January 30, 2007 the visa post received confirmation from the authorities in Lahore that the educational
certificates were counterfeit. The visa post sent Ms. Bashir a fairness letter
dated May 5, 2007 informing her of this fact and alerting her that
she may be found inadmissible to Canada for misrepresentation. Ms. Bashir was
given 30 days to respond to the concerns of the visa post.
[6]
Ms. Bashir
wrote to the visa post explaining that her daughter was an established doctor
in Pakistan and was shocked to
learn that her educational documents were counterfeit. Ms. Bashir also
explained that her daughter was no longer interested in immigrating to Canada. The letter concluded
with Ms. Bashir expressing her desire to go and live with her son in Canada.
B. Impugned
Decision
[7]
The
file was forwarded to the Officer for his review. The Officer was satisfied
that the educational documents were counterfeit and remarked that Ms. Bashir
had not addressed this issue in her letter. The Officer concluded that
Ms. Bashir’s misrepresentation was material in that it could induce an
error in the administration of the Act. By letter dated June 18, 2007
Ms. Bashir was informed that her application was refused due to
misrepresentation pursuant to subsection 40(1)(a) of the Immigration and
Refugee Protection Act, RS 2001, c 27 [IRPA] and that she was inadmissible
for a period of two years pursuant to paragraph 40(2)(a).
II. Issues
[8]
The
Applicant raises the following issues:
(a) Did
the Officer err in finding that Ms. Bashir misrepresented the education of her
dependent daughter, Ms. Aslam?
(b) Did
the Officer breach the duty of fairness owed to Ms. Bashir by failing to
provide the details of what he considered to be misrepresentations and by
failing to give Ms. Bashir an opportunity to disabuse him of his concerns
pertaining to the educational documents of the dependent daughter?
(c) Is the decision of the Officer
reasonable?
[9]
These
issues can be summarized as:
(a) Was the
Officer’s decision reasonable?
(b) Did the Officer breach the duty of
procedural fairness?
[10]
The
Respondent also raises the preliminary issue of standing, asserting that the
Applicant has no standing to bring this application.
III. Standard
of Review
[11]
The
appropriate standard of review to apply to an Officer’s decision to refuse an
application for permanent residence on the grounds of misrepresentation is
reasonableness (Lu v Canada (Minister of Citizenship and Immigration), 2008 FC 625, 167 ACWS
(3d) 978 at para 12). Judicial deference to the decision is appropriate
where the decision making process demonstrates justification, transparency and
intelligibility and the decision falls within a range of possible, acceptable
outcomes defensible on the facts and in law (Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190 at para 47).
[12]
On
issues of procedural fairness, this Court will show no deference to the
Officer, and will intervene if a breach is found (Sketchley v Canada (Attorney General), 2005 FCA 404, [2006] 3 FCR
392).
IV. Argument
and Analysis
A. Does
the Applicant Have Standing?
[13]
The
Respondent submits that the Applicant, as the sponsor of Ms. Bashir, has no
standing to challenge the refusal of the application since he is not “directly
affected” by the decision as required by subsection 18.1(1) of the Federal
Courts Act (RS, 1985, c F-7). The jurisprudence of this Court
supports this position. The Respondent cites Carson v Canada (Minister of
Citizenship and Immigration) (1995), 95 FTR 137 at para 4:
[4] While Mrs. Carson has an interest
in this proceeding, in that she is Mr. Carson's sponsor for landing in Canada and she was interviewed as part of the marriage interview
involving the H&C determination, these facts are insufficient to give her
standing in this judicial review. Mrs. Carson is a Canadian citizen and does
not require any exemption whatsoever from the Immigration Act or regulations.
Moreover, whether she has standing or not has no impact whatsoever on the
ultimate issue in this matter. Accordingly, with respect to this proceeding,
the applicant, Tonya Carson, is struck as a party.
(see also Wu v Canada (Minister of
Citizenship and Immigration) (2000), 183 FTR 309, 4 Imm LR (3d) 145 at para
15).
[14]
The
Respondent submits that this application for judicial review should be dismissed
on this basis alone.
[15]
I
have had the benefit of reading my colleague, Justice Luc Martineau’s recent
decision, Huot v Canada (Minister of Citizenship and Immigration), 2011 FC 180. He
determined that the statements made in Carson and Wu, “made at another
time…under the former Immigration Act” were not binding and
determinative, and that the facts of the case before the Court would need to be
considered in exercising the Court’s discretion to grant standing to a party
(at para 20). In the present matter, I would like to echo the sentiment
expressed by Justice Martineau at paras 14 and 15:
[14] […] the hearing before the
judge on the application for review must not become an arena where a party can
present yet again each and every possible preliminary motion and objection that
has not previously been decided or heard.
[15] The
Court must be able to control the proceedings that are before it so as to
prevent abuse. In this regard, a party's lack of status should normally have
been decided prior to the hearing on the merits by means of a motion to strike,
if necessary. […]
[16]
In
the interests of justice, I am of the view that this preliminary objection on
the part of the Respondent at this late stage should be dismissed. However, if
I am wrong, given my conclusion with respect to whether the Officer’s decision
was reasonable there is no need to make a finding with respect to the standing
of the Applicant.
B. Was
the Officer’s Decision Reasonable?
[17]
The
Applicant submits that any alleged misrepresentation was not “material” in that
it was relevant only to the admissibility of Ms. Aslam, and not to the
admissibility of Ms. Bashir herself. The Applicant also submits that the
decision was unreasonable because the Officer assumed that Ms. Bashir
knowingly presented counterfeit documents when in fact, there was no evidence
to support this presumption.
[18]
The
Respondent submits that the Officer considered all of the evidence before
coming to the conclusion that Ms. Aslam misrepresented her educational
background. The Officer had the verification from the authorities stating that
the documents were counterfeit, and Ms. Bashir provided no evidence to refute
this in her letter. The decision was not based on an erroneous finding of
fact, or in a perverse or capricious manner without regard for the material
before the Officer.
[19]
The
Respondent submits that, despite the Applicant’s contention to the contrary, a
misrepresentation made in respect of a dependent child is relevant to the
admissibility of the principal applicant. I share the view of the Respondent.
Section 42 of the IRPA provides that a foreign national is inadmissible if any
accompanying family member is inadmissible. Section 42 of the IRPA reads:
|
Inadmissible
family member
42. A foreign
national, other than a protected person, is inadmissible on grounds of an
inadmissible
family member if
(a)
their accompanying family member or, in prescribed circumstances, their
non-accompanying family member is inadmissible;
[…]
|
Inadmissibilité
familiale
42.
Emportent, sauf pour le résident permanent ou une personne protégée,
interdiction
de
territoire pour inadmissibilité familiale les faits suivants :
a) l’interdiction de territoire
frappant tout membre de sa famille qui l’accompagne ou qui, dans les cas
réglementaires, ne l’accompagne pas;
[…]
|
[20]
In
the present case, the misrepresentation prevented the Officer from being
satisfied that the daughter was not inadmissible and resultantly, prevented the
Officer from determining that Ms. Bashir was admissible.
[21]
Regarding
the intentionality of the misrepresentation, as the Respondent submits, this
Court has held that the misrepresentation provisions of paragraph 40(1)(a) of
the IRPA are not dependent on whether the misrepresentation was intentional (Lu,
above). The section reads:
|
Misrepresentation
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;
|
Fausses
déclarations
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;
|
[22]
This
section catches misrepresentations that may be fraudulent, negligent or
innocent (Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 378, 89 Imm LR
(3d) 36 at paras 16 and 18). As such, the fact that Ms. Bashir claims to
have been unaware that the documents were fraudulent does not bring to light a
reviewable error on the part of the Officer.
[23]
The
Applicant has failed to show that the Officer’s decision was unreasonable in
any way. There is no basis on which this Court should disturb the Officer’s
decision.
C. Did
the Officer Violate the Duty of Procedural Fairness Owed to Ms. Bashir?
[24]
The
Applicant submits that the Officer failed to give the Applicant adequate
details regarding his concerns and failed to give her a proper opportunity to
respond to those concerns. The Applicant argues that the Officer erred in
not indicating in the fairness letter the scope of the type of response he was
looking for and in not inviting Ms. Bashir and Ms. Aslam to come in for an
interview.
[25]
The
Respondent takes the position that the fairness letter sent to Ms. Bashir
fulfilled the duty of fairness the Officer owed Ms. Bashir. The letter
identified which documents were believed to be fraudulent, alerted her to the
possible misrepresentation finding, and invited her to respond to the Officer’s
concerns.
[26]
Again,
I agree with the Respondent’s submissions. The content of the duty of fairness
varies depending on the facts of each case (Ha v Canada (Minister of
Citizenship and Immigration), 2004 FCA 49, [2004] 3 FCR 195 at para 40). In
Khwaja v Canada (Minister of Citizenship and Immigration), 2006 FC 522,
148 ACWS (3d) 307 at para 17, Justice Edmond Blanchard stated that the duty of fairness
requires:
[17] […]
that an applicant be given notice of the particular concerns of the visa
officer and be granted a reasonable opportunity to respond by way of producing
evidence to refute those concerns.[…]
[27]
An
oral hearing is not always required in order for a visa officer to fulfill his
duty of procedural fairness (Ghasemzadeh v Canada (Minister of
Citizenship and Immigration), 2010 FC 716, 372 FTR 247 at para
27). As Justice François Lemieux wrote in Ghasemzadeh at para 27:
[27] […] What the duty requires is
that the applicant be afforded a meaningful opportunity to present the various
types of evidence relevant to his or her case and have it fully and fairly
considered. Generally, where there are credibility issues, a person is entitled
an opportunity to address the issues which may form a credibility finding in
some meaningful way (Mukamutara v Canada
(Minister of Citizenship and Immigration), 2008 FC 451, [2008] FCJ No 573 at para 24).[…]
[28]
In
some instances it might be difficult to parse credibility concerns from the
mere fact or substance of an alleged misrepresentation. However, in the
present matter I find that Ms. Bashir was given a reasonable opportunity
to present evidence to refute the Officer’s concerns. She was unable to do
so. Like in Ghasemzadeh, above, the Officer based his decision not on
an adverse credibility finding, but on the mere fact of the misrepresentation -
that counterfeit documents were presented. Given an appropriately meaningful
opportunity to explain why counterfeit documents were provided, Ms. Bashir
failed to do so. I cannot find support for the Applicant’s argument that the
Officer was in error in not detailing the scope of the response desired. It is
clear from the fairness letter that the Officer sought an explanation for the
provision of fraudulent documents beyond a bald expression of shock.
[29]
As
the Respondent submits, the duty of fairness does not relieve an applicant from
having to discharge the onus to satisfy the Officer that she has met all of the
requirements of the IRPA and is entitled to a visa (Baybazarov v Canada
(Minister of Citizenship and Immigration), 2010 FC 665, at para 11).
Again, there is no basis on which the Officer’s decision should be set aside.
V. Conclusion
[30]
No
question was proposed for certification and none arises.
[31]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is
that this application for judicial review is dismissed.
“ D. G. Near ”
Email this Content