Date: 20110415
Docket: IMM-4753-10
Citation: 2011 FC 462
BETWEEN:
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NOEL MESCALLADO
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Applicant
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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
PHELAN
J.
I. INTRODUCTION
[1]
This
judicial review raises issues about the applicability of s. 16 and s. 40-41 of
the Immigration and Refugee Protection Act (Act) in relation to the
obligation to answer truthfully, inadmissibility for misrepresentation and
failure to comply with the Act. The Applicant was said to have lied on his
application for permanent resident status. However, this judicial review is ultimately
determined on the reasonableness of a decision to deny an application for a permanent
resident visa.
II. FACTUAL
BACKGROUND
[2]
The
Applicant applied to the Canadian Embassy in the Philippines for a permanent
resident visa under the Skilled Worker criteria. There is some question about
whether he had earned the requisite 67 points but that is not the basis upon which
the application was denied. That denial was based on finding that the Applicant
had breached s. 16 of the Act by answering that he had no criminal charges
outstanding against him.
Section 16
reads as follows:
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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.
(2) In the case of a foreign national,
(a) the
relevant evidence referred to in subsection (1) includes photographic and
fingerprint evidence; and
(b) the
foreign national must submit to a medical examination on request.
(3) An officer may require or obtain from a permanent resident
or a foreign national who is arrested, detained or subject to a removal
order, any evidence — photographic, fingerprint or otherwise — that may be
used to establish their identity or compliance with this Act.
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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.
(2) S’agissant de l’étranger, les éléments de preuve pertinents
visent notamment la photographie et la dactyloscopie et il est tenu de se
soumettre, sur demande, à une visite médicale.
(3) L’agent peut exiger ou obtenir du résident permanent ou de
l’étranger qui fait l’objet d’une arrestation, d’une mise en détention, d’un
contrôle ou d’une mesure de renvoi tous éléments, dont la photographie et la
dactyloscopie, en vue d’établir son identité et vérifier s’il se conforme à
la présente loi.
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[3]
The
visa application form asked:
Have you, or if you are the principal
applicant, any of your family members listed in your application for permanent
residence in Canada, ever: … been convicted of, or are you currently charged
with, on trial for, or party to a crime or offence or subject of any criminal
proceeding in any country.
The Applicant had checked off the box “No”.
[4]
The
Respondent’s official (the Officer) proceeded to investigate the answer and
determined that the Applicant had had a charge for “Slight Physical Injuries”
dismissed because the private complainant had failed to appear. The prosecutor
had no objection to dismissal of the charge so long as it was dismissed
“provisionally”. The charge was ordered “PROVISIONALLY DISMISSED”. This
dismissal occurred in 2004.
[5]
In
June 2009 the Applicant applied for and obtained a permanent dismissal of the
charge.
[6]
The
Officer concluded that the Applicant had failed to answer truthfully by failing
to disclose a fact that is material and relevant to his admissibility to Canada by not
disclosing that he had a current charge outstanding.
[7]
The
Officer did not accept the Applicant’s explanation that he had been told in
2004 by his lawyer that he no longer had to go to court because the case was
dismissed. Nor did the Officer accept that in June 2009 the Applicant had met
his lawyer who had suggested that the Applicant should ask the court for a
permanent dismissal.
[8]
It
appears from the Tribunal Record that the assault charge was related in some
way to the Applicant’s claim against a Mr. Chan for passing a bad cheque and
failing to pay a debt – a criminal matter in the Philippines. It was Mr.
Chan who failed to appear at the Applicant’s trial for assault.
[9]
The
Officer rejected the permanent resident visa for failure to meet the
requirements of the Act in that the Applicant had contravened the s. 16 obligation
to answer truthfully all questions put to him.
III. LEGAL
ANALYSIS
A. Standard
of Review
[10]
The
Applicant contends that the Officer followed incorrect procedure because s. 16
cannot form the basis of an inadmissibility conclusion; that conclusion must be
based on s. 40.
Section 40
reads:
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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;
(b) for
being or having been sponsored by a person who is determined to be
inadmissible for misrepresentation;
(c) on
a final determination to vacate a decision to allow the claim for refugee
protection by the permanent resident or the foreign national; or
(d) on
ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship
Act, in the circumstances set out in subsection 10(2) of that 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
(b) paragraph
(1)(b) does not apply unless the Minister is satisfied that the
facts of the case justify the inadmissibility.
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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;
b) être ou avoir été parrainé par un répondant dont il a été
statué qu’il est interdit de territoire pour fausses déclarations;
c) l’annulation en dernier ressort de la décision ayant accueilli
la demande d’asile;
d) la perte de la citoyenneté au titre de l’alinéa 10(1)a)
de la Loi sur la citoyenneté dans le cas visé au paragraphe 10(2) de
cette 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;
b) l’alinéa (1)b) ne s’applique que si le ministre est
convaincu que les faits en cause justifient l’interdiction.
(Emphasis added by Court)
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[11]
The
Applicant also argues that the decision is unreasonable because the Officer did
not understand the effect of the law that the charges were dismissed but
subject to a motion by the complainant to reopen the case within some unknown
timeframe.
[12]
The
Respondent argued that the only real issue was the reasonableness of the
decision.
[13]
The
standard of review in this case varies depending on which issue is being
addressed. On the issue of whether the Officer misapplied or misconstrued s.
16, I adopt the reasoning of Mainville J. (as he then was) in Cao v
Canada (Minister of Citizenship and Immigration), 2010 FC 450 at paragraphs
25-27, which discussed the same issue in relation to s. 40.
25 However,
the decision is also being challenged by the Applicant on the basis that the
Senior Officer misapplied or misconstrued paragraph 40(1)(a) of the Act.
The interpretation of that provision is a question of law. In addition, it was
stated by the Supreme Court in Dunsmuir (at paragraph
54) that a standard of reasonableness may also apply where a tribunal is
interpreting its own statute or statutes closely connected to its function,
with which it will have particular familiarity. However this is not always the
case. Here, a consideration of various factors leads me to conclude that the
Senior Officer's decision must be reviewed on a standard of correctness if the
interpretation of paragraph 40(1)(a) of the Act is at issue.
26 I
come to this conclusion in view of a number of factors; in particular, the
Senior Officer is not an administrative tribunal but rather an officer of the
Crown entrusted with a non-adjudicative function; the Senior Officer's decision
is not covered by a privative clause; the Senior Officer holds no special expertise
in the interpretation of the Act and, in view of the general scheme of
paragraph 40(1)(a), no deference is due to the Senior Officer on
questions of law raised in a determination of misrepresentation.
27 In addition,
the approach described above is consistent with the pre-Dunsmuir case law of this Court. It was held
in Khan v. Canada (Minister of Citizenship and
Immigration), 2008 FC 512, [2008] F.C.J. 648 (QL) (at paragraph
22) that questions of statutory interpretation related to paragraph 40(1)(a)
of the Act are subject to a standard of correctness. It has also been held that
determinations of misrepresentations under that paragraph call for deference in
judicial review proceedings, since they are factual in nature: Baseer v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1005, [2004] F.C.J. 1239
(QL) at paragraph 3 and Bellido
v. Canada (Minister of Citizenship and Immigration), 2005 FC 452,
[2005] F.C.J. 572 (QL) at paragraph 27.
[14]
Therefore,
on the application or interpretation of s. 16, the standard of review is
correctness. On the matter of the Officer’s conclusion that the Applicant had
not answered truthfully, the standard is reasonableness because it is largely a
factual inquiry (Dunsmuir v New Brunswick, 2008 SCC
9).
B. Interpretation
and Application of Section 16
[15]
The
Applicant’s submission is both factually incorrect and leads to rendering s. 16
redundant. It is his position that where there is a failure to answer any
question upon an examination (which includes documentary and oral examination),
the Officer is required to move to a s. 40 analysis of the criteria of
materiality and to render an inadmissibility decision.
[16]
While
both s. 16 and s. 40 have the purpose of ensuring truthfulness, they approach
that issue in much different ways and with significantly different
consequences.
[17]
Section
16 speaks to truthfulness in the sense of accuracy and completeness. It does
not address or impose a materiality threshold although relevance is always a
requirement.
[18]
Section
40(1), on the other hand, defines a “misrepresentation” in specific terms.
Clause (a) identifies the term as a material misrepresentation that
induces or could induce an error in the administration of the Act. Other
clauses define misrepresentation in terms of a state of being, e.g. clause (d)
where ceasing to be a citizen constitutes misrepresentation.
Therefore,
there are different criteria at play as between s. 16 and s. 40(1).
[19]
There
is also significant divergence in the consequences which flow from a breach of
these provisions. In the case of s. 16, the application can be refused under s.
11(1) for not meeting the requirements of the Act.
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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.
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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.
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In the case
of s. 40(1) misrepresentation, the person becomes inadmissible and s. 40(2) extends
that admissibility status for two years.
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40. (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
(b) paragraph
(1)(b) does not apply unless the Minister is satisfied that the
facts of the case justify the inadmissibility.
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40. (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;
b) l’alinéa (1)b) ne s’applique que si le ministre est
convaincu que les faits en cause justifient l’interdiction.
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[20]
A
breach of s. 16 does not, as argued by the Applicant, cascade into a s. 40(1)
or s. 41 situation nor does it activate a two-year bar under s. 40(2).
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41. A person is inadmissible for failing to comply with this Act
(a) in
the case of a foreign national, through an act or omission which contravenes,
directly or indirectly, a provision of this Act; and
(b) in
the case of a permanent resident, through failing to comply with subsection
27(2) or section 28.
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41. S’agissant
de l’étranger, emportent interdiction de territoire pour manquement à la
présente loi tout fait — acte ou omission — commis directement ou
indirectement en contravention avec la présente loi et, s’agissant du
résident permanent, le manquement à l’obligation de résidence et aux
conditions imposées.
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[21]
Section
16 stands on its own criteria and consequences. In this case there was no
conclusion that the Applicant was inadmissible. The application was simply
denied. Such a denial does not preclude an immediate refiling.
[22]
Therefore,
there was no error in the Respondent invoking s. 16 and not s. 40(1). Section
16 is a discretionary provision and the issue remains whether the decision was
reasonable such as to justify denial of a permanent resident visa.
C. Reasonableness
of Decision
[23]
This
case turns, in its final analysis, on whether the Officer’s finding of
untruthfulness was reasonable regardless of whether the matter was considered
under s. 16 or s. 40.
[24]
The
Officer held that a provisional dismissal of the charge still constituted a
pending charge. There is no real equivalent Canadian provision where an accused
person’s charges are dismissed subject to being revived on motion. It is
unclear whether it is the prosecutor’s or complainant’s motion.
[25]
The
Officer failed to obtain any advice or indeed inquire into the legal quality of
a provisional dismissal under Philippine law. He failed to consider the
circumstances of the dismissal which was based upon the failure of the complainant
to appear at the trial, which may be relevant to any motion to reopen. The
Applicant’s answer is only untrue or inaccurate if a provisional dismissal is
not a dismissal.
[26]
Under
these circumstances the Officer had an obligation to inquire further as to the
legal nature of the provisional dismissal. However, the Tribunal Record does
show that absent what is similar to a motion to reopen, the Applicant was under
no legal impediment and under no pending legal process.
[27]
The
Officer’s refusal to accept the Applicant’s explanation, that his lawyer had
advised him in 2004 that the charge had been dismissed and that he did not have
to go to court, was made without any basis. There are no reasons articulated
for this credibility finding nor was there any evidence that could refute this
explanation.
[28]
Likewise,
there is no evidence or basis upon which to find non-credible the Applicant’s
explanation of meeting his lawyer years later at which time the suggestion was
made to essentially close out the provisional discharge by obtaining a
permanent dismissal.
[29]
The
Court finds that the Officer’s conclusions were unreasonable as they lack
transparency and a proper factual foundation.
[30]
The
Officer’s exercise of discretion in dismissing the application without advising
the Applicant as to concerns about the legal quality of a provisional discharge
was unfair and a disproportional response to the issue.
IV. CONCLUSION
[31]
The
Applicant has abandoned his claim for costs; an appropriate position to take.
However, the Applicant is concerned that any success on this judicial review
would be hollow because any reconsideration would place him at the end of the queue
for permanent resident visas – it had taken five years to get as far as he did.
[32]
The
Court is reluctant to make any ancillary order which would impose time limits
on that process. However, the Court will fashion an order that will require the
Respondent to place the Applicant’s file at the head of any waiting list and to
require expeditious reconsideration. The Court expects full and complete
compliance with both the letter and spirit of any such order.
[33]
The
parties have asked that they be given an opportunity, after the issuance of
these reasons but before issuance of the final order, to make submissions on a
certified question. Therefore, the parties shall have seven (7) days from the
issuance of these Reasons to serve and file any such submissions.
“Michael
L. Phelan”
Ottawa,
Ontario
April
15, 2011
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