Date: 20080418
Docket: IMM-5195-06
Citation: 2008 FC 512
Ottawa, Ontario, April
18, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ABU
FAISAL KHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Ac, S.C. 2001, c. 27 (the Act), of a decision of a
visa officer (the officer) dated August 21, 2006 refusing the applicant’s
application for a permanent resident visa as a skilled worker and finding the
applicant inadmissible on the basis of misrepresentation pursuant to section 40
of the Act.
[2]
The
applicant requests that the application for judicial review be granted.
Background
[3]
Mr.
Abu Faisal Khan (the applicant) is a citizen of Bangladesh. In 2004,
the applicant applied for permanent residence under the skilled worker category
as a user support technician and computer programmer. The applicant used the
assistance of a consultant in preparing and filing his application. The
applicant’s application stated that he had been employed as a user support
technician from March 1996 to April 1998 and as a computer programmer from
October 2002 to the present (time of the application).
[4]
In
a letter dated May 17, 2006, the applicant was notified that he was required to
attend a personal interview on August 21, 2006 in order to assess his
qualifications and experiences as claimed in his application. The letter also
requested that the applicant bring the documents requested as per the attached
document list. Within the list provided to the applicant, he was asked to bring
original evidence of all paid employment in the form of W2 or T4 income
statements, pay stubs, record of employment, income tax returns/receipts and
letters from employers.
[5]
On
August 21, 2006, the applicant attended an immigration interview in Detroit. During the
interview, the officer asked the applicant for his employment documentation and
he presented the officer with a letter from one of his employers. No further
employment documentation was given. The officer made inquiries into why no
further documents were provided as requested in the letter dated May 17, 2006.
The officer then proceeded to question the applicant about the work category
under which he was applying, and his relevant past work experiences.
[6]
Towards
the end of the interview, the officer questioned the applicant concerning his
more recent work experience; specifically, concerning the submission on his
application that he had worked as a computer programmer from October 2002
onward. The officer asked the applicant to explain his job duties. The
applicant did so. The officer asked the applicant what the name of the company
was that he worked for. The applicant responded that it was a company in Bangladesh. The officer
asked for the name of the company and the earnings. The applicant responded
that he had never worked as a computer programmer during this period.
[7]
In
a letter dated August 21, 2006, the officer informed the applicant that his
application for a permanent resident visa as a skilled worker had been refused
and that he had been found to be inadmissible on the basis of misrepresentation
pursuant to paragraph 40(1)(a) of the Act. This is the judicial review of that
decision.
Reasons for
Decision
[8]
The
officer refused the applicant’s application on the basis that he did not meet
the requirements for immigration to Canada under subsection 75(2) of the Immigration
and Refugee Protection Regulations, S.O.R. 2002-227 (the Regulations). The
officer also found that the applicant was inadmissible for misrepresentation as
per paragraph 40(1)(a) of the Act. The following is the portion of the
officer’s decision that is relevant to the finding of misrepresentation:
[Paragraph] 40(1)(a) of the Immigration
and Refugee Protection Act 2001 states that a foreign national is inadmissible
for misrepresentation 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. Paragraph 40(2)(a) specifies that the
foreign national continues to be inadmissible for misrepresentation for a
period of two years following, in the case of determination outside Canada, a
final determination of inadmissibility under subsection (1). You stated on your
application that you had been employed as a computer programmer from 10/02 to
present. You were questioned at interview regarding this specific work
experience. You admitted at interview that you had never been employed during
this period as a computer programmer. You misrepresented a material fact that
could have induced an error in the administration of the Act in that you could
have been awarding points for paid work experience which you did not possess.
As a result, you are inadmissible to Canada
for a period of two years from the date of this letter.
Issues
[9]
The
applicant submitted the following issue for consideration:
1. Did
the officer err in law in concluding that the applicant was inadmissible on
grounds of misrepresentation?
[10]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the officer make a reviewable error in interpreting the paragraph 40(1)(a) to
include situations where the applicant adopts a misrepresentation, but then clarifies
it prior to a decision being rendered on the application?
3. If
not, did the officer err in finding that paragraph 40(1)(a) applied to the
facts in this case?
Applicant’s
Submissions
[11]
The
applicant submitted that the officer erred in concluding that the applicant was
inadmissible on grounds of misrepresentation. The applicant submitted that
while paragraph 40(1)(a) of the Act is broadly written, it can only apply with
respect to a misrepresentation that is not clarified by the applicant. The
applicant submitted that there is no jurisprudence indicating that a person who
makes a misrepresentation, but clarifies it prior to it being relied upon is
inadmissible. A person is only inadmissible on the ground of not answering
truthfully if the person continued to maintain the falsehood (see Kang v.
Canada (Minister of
Employment and Immigration), 1981 FCJ 50). The applicant also
submitted that the misrepresentation must continue until the time a decision is
rendered.
[12]
The
applicant further argued that the interpretation rules in section 33 do not
apply to paragraph 40(1)(a) and as such, the section must be interpreted in
light of its clear wording. The applicant submitted that the wording requires
that the misrepresentation induce or could induce (in the future) an error in
the administration of the Act. In the case at hand, the applicant submitted
that he corrected the misrepresentation and as such, it was not and could not
in any way be relied on by the officer in making their determination.
[13]
The
applicant also noted that in the case at bar, the misrepresentation was the
result of a mistake by the consultant. The applicant submitted that he had
instructed the consultant to correct it but he had not done so. The applicant
only became aware of the error at the interview as his consultant did not give
him a copy of the application. The applicant submitted that where inadvertent
mistakes are committed, they cannot be the basis for an adverse finding. The
applicant requested the application for judicial review be allowed.
Respondent’s
Submissions
[14]
The
respondent submitted that in any case where an inadmissibility provision is
being applied, three issues may arise: (1) the officer’s interpretation of
paragraph 40(1)(a) is a question of law and the correctness standard applies,
(2) the officer’s assessment of the evidence of the misrepresentation is a
question of fact and subject to a standard of patent unreasonableness, and (3)
the officer’s consideration of the facts against the legal criteria applicable
is a question of mixed law and fact and the standard of reasonableness simpliciter
applies. The respondent submitted that the issues in this application relate to
the assessment of the evidence and whether the criteria for making an
inadmissibility finding are met. The respondent submitted that insofar as the
issues here turn on the meaning of paragraph 40(1)(a), those questions are
subject to the correctness standard (Chamberlain v. Surrey District
School Board, [2002] 4 S.C.R. 710 at paragraph 6).
[15]
The
respondent submitted that the applicant’s argument cannot succeed for three
reasons. Firstly, the respondent submitted that the applicant cannot assert
that he corrected the wrong information at the first available opportunity. The
respondent submitted that he, not his consultant, bore the burden of ensuring
the information provided was correct. The respondent also submitted that the
first opportunity to clarify was when the visa officer began to question him
about his job duties. The respondent submitted that instead of correcting the officer,
the applicant adopted the falsehood for his benefit, explaining his job duties
and what company that he work for. The respondent submitted that it was only when
the extent of the misrepresentation came to light that the applicant admitted
it. The respondent submitted that to accept the applicant’s argument would be
to suggest that an applicant need not face the consequences of their falsehoods
if they, at the end of the day, after making the falsehood and testing it would
slip by, are caught and then admit their misrepresentation.
[16]
Secondly,
the respondent submitted that the applicant is incorrect in suggesting that
paragraph 40(1)(a) only applies when falsehood is continued until a final
decision is rendered. The respondent submitted that as per Re Rizzo and
Rizzo Shoes Limited, [1998] 1 S.C.R. 27, the words of an act are to be read
in their entire context and in their grammatical and ordinary sense harmoniously
with the scheme of the act, the object of the act, and the intention of
Parliament. The respondent submitted that paragraph 40(1)(a) renders a person
inadmissible for making a misrepresentation that “induces or could induce” an
error in the administration of the Act. The respondent submitted that this
phrasing captures situation such as the one in this case. Furthermore, the
respondent submitted that the applicant’s interpretation is inconsistent with
the requirement in the Act to provide truthful information. Moreover, the
respondent submitted that the applicant’s interpretation is also inconsistent
with the context within which the provision is found as the Act requires that a
person advise of material changes in their circumstances pertinent to their immigration
applications as those changes occur. Finally, the respondent submitted that the
applicant’s interpretation cannot hold as it creates an absurdity.
[17]
The
respondent’s third point of submission was that the applicant cannot simply
blame his immigration consultant. The respondent submitted that while it may be
true that the consultant made the error in the first place, the fact is that he
adopted it and tried to employ the misrepresentation to his advantage. The
respondent also submitted that the applicant is bound by the actions of his
consultant.
[18]
Lastly,
the respondent submitted that when one considers the purpose of the paragraph
40(1)(a) provision, its scope, and the length of the disqualification, it is
apparent that the officer’s finding on inadmissibility was reasonable.
Applicant’s
Reply
[19]
The
applicant submitted that until the respondent has entered evidence that
contradicts that of the applicant, the applicant’s evidence must be accepted
and no adverse inference is justified. The applicant indicated in his affidavit
that he was unaware that his consultant had filed inaccurate information until
his interview. The applicant submitted that the fact that the applicant did not
provide this information to the officer during the interview, and only provided
it in his affidavit for this application, does not permit the Court to draw a
negative inference.
[20]
With
regards to the standard of review, the applicant submitted that this matter
involves a question of mixed fact and law, and therefore, the standard of
review is reasonableness simpliciter.
[21]
Furthermore,
the applicant submitted that while an applicant could be held responsible for
the action of their consultant, there must be some limits to the degree of
responsibility. Where the consultant engages in something that is unauthorized
by the applicant and where the applicant subsequently becomes aware of this,
the applicant cannot be held responsible for the unauthorized and illegal
actions of his consultant.
Analysis and
Decision
[22]
Issue
1
What is the
appropriate standard of review?
In my
opinion, the issue of whether or not paragraph 40(1)(a) includes situations
whereby an applicant adopts a misrepresentation, but clarifies it prior to a
decision being rendered on the application is a question of pure statutory
interpretation. The appropriate standard of review for questions of statutory
interpretation is correctness. If the officer’s interpretation was correct,
then a second issue follows: does paragraph 40(1)(a) apply to the facts of this
case? This section issue is a question of mixed fact and law and is reviewable
on a standard of reasonableness.
[23]
Issue
2
Did the officer make a
reviewable error in interpreting the paragraph 40(1)(a) to include situations
where the applicant adopts a misrepresentation, but clarifies it prior to a
decision being rendered on the application?
Before I
consider this issue, I feel it necessary to note that the applicant does not
take issue with the ultimate refusal of the application, but yet with the
finding of misrepresentation under paragraph 40(1)(a). The applicant submitted
that paragraph 40(1)(a) does not apply to situations where the
misrepresentation is corrected before a decision on the application was made.
The respondent submitted that paragraph 40(1)(a) applies to misrepresentations
even if it is clarified by the applicant before the decision is rendered. Thus,
the question is whether the correct interpretation of paragraph 40(1)(a) of the
Act applies to situations where a misrepresentation in an application is
clarified before a decision on the matter is rendered.
[24]
The
Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re),
above at paragraphs 21 to 23 held:
Although much has been written about the
interpretation of legislation (see, e.g., Ruth Sullivan, Statutory
Interpretation (1997); Ruth Sullivan, Driedger on the Construction of
Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”);
Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed.
1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best
encapsulates the approach upon which I prefer to rely. He recognizes that
statutory interpretation cannot be founded on the wording of the legislation
alone. At p. 87 he states:
Today there is only one principle or approach,
namely, the words of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of Parliament.
Recent cases which have cited the above
passage with approval include: R. v. Hydro-Québec, 1997 CanLII
318 (S.C.C.), [1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow
Electric Corp., 1997 CanLII 377 (S.C.C.), [1997] 1 S.C.R. 411; Verdun
v. Toronto-Dominion Bank, 1996 CanLII 186 (S.C.C.), [1996] 3 S.C.R. 550;
Friesen v. Canada, 1995 CanLII 62 (S.C.C.), [1995] 3 S.C.R. 103.
I also rely upon s. 10 of the Interpretation
Act, R.S.O. 1980, c. 219, which provides that every Act “shall be deemed to
be remedial” and directs that every Act shall “receive such fair, large and
liberal construction and interpretation as will best ensure the attainment of
the object of the Act according to its true intent, meaning and spirit”.
[25]
Paragraph
40(1)(a) is written very broadly in that it applies to any misrepresentation,
whether direct or indirect, relating to a relevant matter that induces or could
induce an error in the administration of the Act. I am of the opinion that this
Court must respect the wording of the Act and give it the broad interpretation
its wording demands. There is nothing in the wording of the paragraph
indicating that it should not apply to a situation where a misrepresentation is
adopted, but clarified prior to a decision being rendered.
[26]
The
applicant submitted that to adopt the respondent’s interpretation would result
in an absurdity as individuals who made an innocent mistake in their
application would be inadmissible for two years on the basis of
misrepresentation. I need not deal with this argument as the applicant in this
case continued the misrepresentation in his interview with the officer until
the officer was able to get him to admit that he had not been employed as
stated.
[27]
I
acknowledge that this case presents a unique situation as the misrepresentation
was clarified before the decision was rendered. However, to adopt the
applicant’s interpretation would lead to a situation whereby individuals could
knowingly make a misrepresentation, but not be found inadmissible under
paragraph 40(1)(a) so long as they clarified the misrepresentation right before
a decision was rendered. I agree with the respondent that such an
interpretation could result in a situation whereby only misrepresentations
“caught” by the visa officer during an interview would be clarified; therefore,
leaving a high potential for abuse of the Act.
[28]
In
Wang v. Canada (Minister of Citizenship and Immigration), [2005]
F.C.J. No.1309 at paragraph 57, this Court noted Parliament’s intent regarding
misrepresentation as per the explanatory clause-by-clause analysis of Bill C-11
(the Act) which reads:
This section is similar to provisions of
the current act concerning misrepresentation by either permanent or temporary
residents but modifies those provisions to enhance enforcement tools designed
to eliminate abuse.
[29]
Moreover,
to accept the applicant’s interpretation would be to disregard the requirement
to provide truthful information under the Act. In light of these findings, I am
of the opinion that the visa officer correctly interpreted section 40.
[30]
Issue
3
If not, did the officer err
in finding that paragraph 40(1)(a) applied to the facts in this case?
In my opinion, having correctly
interpreted the legislation, the officer’s application of section 40 to the
facts of this case was reasonable. There is no denying that the applicant
adopted the misrepresentation to his benefit, but then clarified once the
officer pressed for further information.
[31]
The
application for judicial review is therefore denied.
[32]
There
is no proposed question of general importance for my consideration for
certification as the respondent only wished to propose a question if I adopted
the applicant’s interpretation of paragraph 40(1)(a). The applicant did not
submit a question.
JUDGMENT
[33]
IT
IS ORDERED that the application for judicial review is denied.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Ac, S.C. 2001, c. 27:
|
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.
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