Date: 20080731
Docket: IMM-3813-07
Citation: 2008
FC 931
Ottawa, Ontario, July 31, 2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
DAO-MIN
KOO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of an immigration officer’s decision, dated
July 25, 2007, which refused the applicant’s permanent residence visa application
under the skilled worker category. The scope of this application is limited to
the officer’s finding that the applicant was inadmissible to Canada on the
basis that he had misrepresented or withheld material facts within the meaning
of section 40(1)(a) of the Immigration and Refugee Protection Act (2001,
c. 27 ) (the “Act”). The officer’s determination that the applicant did
not meet the necessary requirements in order to be granted permanent residence
in Canada as a skilled worker is not in
dispute.
I. Facts
[2]
The
applicant was born in Calcutta, India, on December 29, 1966 but
is now a citizen of Taiwan. He submitted an application
for permanent residence as a skilled worker to the Canadian High Commission in London, England, which was refused. At the
time, the applicant’s legal name was Chi-Sing Koo.
[3]
On June
17, 2003, the applicant legally changed his name from Chi-Sing Koo to Dao-Min
Koo. He also uses the name Sidney Koo as his “Canadian” name. He decided to
change his name after a fortune teller told him that he would not have any
success or good luck if he kept the name of Chi-Sing Koo.
[4]
The
applicant came to Canada in March 2005 on a valid work
permit, the validity of which has been extended to March 2009. He is currently
working as a cook at the Szechuan Gourmet Restaurant in Toronto. He learned his craft as a
cook through practical training at the Pacific Business Club. After
successfully completing an examination administered by the government of Taiwan, the applicant was granted a
Certificate of Technician in Chinese Cuisine Cookery in 2003.
[5]
In October
2005, the applicant submitted an application for permanent residence as a
Skilled Worker to the Canadian Consulate General in Buffalo. He retained the services of a
consultant to prepare and submit that application on his behalf. He attended
an interview on July 25, 2007, where he found out that the immigration officer
had some concerns with his application. His 1995 application for permanent
residence had not been disclosed, his previous name had not been included on
one of the forms and there seemed to be a problem with his representative’s
assessment of his educational credentials.
[6]
At the
conclusion of the interview, the officer informed the applicant that she had
decided to refuse his application for permanent residence and provided him with
a letter reflecting that decision. The officer refused the applicant’s
application for permanent residence because she determined that he did not meet
the necessary points required to be granted permanent residence in Canada and because she had found
that the applicant had misrepresented or withheld material facts which could
have induced errors in the administration of the Act.
II. The impugned decision
[7]
With
respect to the awarding of points, the officer refused the applicant’s
application on the following grounds: 1) She determined that his English
proficiency was not sufficient based on his English language test results; 2)
She determined that his highest level of education was a secondary diploma; 3)
She found that the applicant could not be awarded points for arranged
employment because his employer had not specifically stated that he was being
offered indeterminate employment.
[8]
The
immigration officer also concluded that the applicant was inadmissible for a
two-year period for the following reasons:
Subsection 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 a determination outside Canada, a
final determination of inadmissibility under subsection (1).
You did not admit to having previously
applied for and refused permanent residence in Canada. You did not admit to having previously
used another name. You stated on your application that your highest level of education
was a trade/apprenticeship credential when in fact your highest level of
education was a secondary diploma. The misrepresentation or withholding of
these material facts could have induced errors in the administration of the Act
because you could have been awarded additional points which you did not qualify
for. In addition, security and criminal background clearances would not have
been accurate since they would not have been conducted in the names you have
used. As a result, you are inadmissible to Canada for a period of two years from the date
of this letter.
[9]
Following
his interview and the refusal of his application for permanent residence, the
applicant spoke with his former representative who was very concerned about the
finding of misrepresentation particularly because some of these findings were
related to errors on his part. He therefore decided to attempt to rectify the
situation and drafted a letter to the officer in an attempt to explain the
misunderstandings. The first draft was dated July 30, 2007. The applicant
reviewed that letter and found errors included in it which he brought to the
attention of his former representative. His former representative therefore
drafted a second letter, dated August 1, 2007, which he provided to the
applicant.
[10]
The
applicant decided not to have his former representative send the letter to the
officer, but instead retained the services of his current counsel. Current
counsel submitted a letter addressing the finding of misrepresentation to the
Consulate General of Canada in Detroit (where the applicant’s file
had been transferred), and enclosed the two letters from the applicant’s former
representative among other supporting documents.
[11]
Raymond
Gabin, Immigration Program Manager at the Consulate General of Canada in Detroit responded to the letter and
supporting documentation submitted by the applicant’s current counsel in a
letter dated September 11, 2007. That letter stated that Mr. Gabin reviewed
the applicant’s file and further submissions from the applicant’s current
counsel and determined that the finding of misrepresentation stood.
III. The issue
[12]
The only
issue raised by this application can be stated in the following terms: Did the
officer err in determining that the applicant was inadmissible to Canada on the
basis that he had misrepresented or withheld material facts within the meaning
of section 40(1)(a) of the Act?
IV. Preliminary matter
[13]
At the
outset of the hearing, counsel for the applicant raised a procedural issue. The
respondent failed to file any legal argument prior to the hearing, and only filed
an affidavit from Raymond Gabin, the immigration officer who found Mr. Koo
inadmissible for misrepresentation. Counsel for the applicant submitted that
her client was prejudiced, since she had been unable to properly prepare for
the respondent’s legal arguments.
[14]
Counsel
for the respondent acknowledged his error of judgment, and explained his
failure to file a written argument by personal circumstances, inadvertence and
client discussions. He argued, however, that the affidavit submitted clearly
states the respondent’s position, and requested that he be allowed to make oral
argument that logically follows from reasons and facts set out in the affidavit
of the officer and respond to the direct argument of the applicant.
[15]
Rule 11 of
the Federal Court Immigration Rules, 1993, SOR/93-22, requires a
respondent who opposes an application to serve on the other party a memorandum
of argument. It is a serious matter for a party to fail to comply with the
requirements of the rules of this Court with respect to the filing of
documents. That being said, the Court may dispense with compliance of a rule
in special circumstances. Because I am of the view that justice will best be
served if the respondent is given leave to make representations, I indicated at
the hearing that I would allow counsel for the respondent to make oral
submissions in direct response to the arguments raised by the applicant. But
in order to ensure that the applicant would not be prejudiced, I also directed
that counsel for the applicant be allowed to respond in writing to the
respondent’s late submissions.
[16]
Counsel
for the applicant seized that opportunity and did submit further written
representations May 30, 2008. These further representations were taken into
account in reaching the following decision.
V. The relevant legislation
[17]
Section
40(1)(a) of the Act sets out the parameters for inadmissibility with
respect to the misrepresentation of facts generally. That 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;
|
[18]
Section
40(2) lays out the consequences for a determination of inadmissibility pursuant
to section 40(1). It reads:
|
Application
(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.
|
Application
(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.
|
VI. Analysis
[19]
Chapter 2
of the Enforcement Manual (Manual) published by Citizenship and Immigration
Canada states the policy intent surrounding misrepresentation under the Act.
The Manual outlines certain principles that are intended to apply to a
determination of inadmissibility on the grounds of misrepresentation. With
respect to procedural fairness, the Manual indicates that an individual should
always be given the opportunity to respond to concerns about a possible
misrepresentation. The Manual also indicates that officers should be aware
that honest errors and misunderstandings sometimes occur in completing
application forms and responding to questions. We also know that material
facts are not restricted to facts directly leading to inadmissible grounds and
that there are varying degrees of materiality. Only when relevant information
affects the process undertaken or the final decision does it become material.
Officers are directed to apply fairness in assessing each situation.
[20]
In Bellido
v. Canada (MCI), 2005 FC 452, 138 A.C.W.S. (3d) 728, Madam Justice
Snider dealt with the issue of inadmissibility pursuant to s. 40(1) of the Act.
She held that there were two essential elements to a finding of
inadmissibility, namely that the misrepresentations must have been made by the
applicant and the misrepresentations must be material in that they could have
induced an error in the administration of the Act. She also determined
that the standard of review for the first portion of the test was patent
unreasonableness, whereas the standard for the second part was reasonableness simpliciter.
As a result of the decision reached by the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9, 329 N.B.R. (2d)
1, I believe the standard of review for both legs of the test must now be
reasonableness. As a result, this Court shall intervene only if the decision
does not fall “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, par. 47).
[21]
In his
affidavit sworn on April 4, 2008, the applicant stated that he believed both
his previous and current name had been provided on the forms included with his
application for permanent residence submitted by his former representative. It
was not until he reviewed the Tribunal Record, dated March 12, 2008, that he
understood the forms included with his application for permanent residence had
not listed both of his names.
[22]
Despite
the fact that both of the applicant’s names had not been disclosed on the forms
as he had believed, the officer should have found his previous legal name as it
appears throughout the supporting documentation. The Tribunal Record
demonstrates that an extensive number of supporting documents were submitted in
the applicant’s previous name of Chi-Sing Koo. Further, during his interview
of July 25, 2007, the Computer Assisted Immigration Processing System (CAIPS)
notes showed that the applicant provided numerous supporting documents with the
name Chi-Sing Koo. This, in my view, is clear evidence that the applicant did
not mislead Citizenship and Immigration authorities regarding his identity.
[23]
It is
trite law that the officer has an obligation to consider the totality of the
information before her. The Application for Permanent Residence is comprised
of the required forms, any verbal information and any supporting documentation
submitted for the officer’s consideration. The applicant’s previous name was
available to the officer from the supporting documentation submitted with the
initial application. This information was available for the officer’s review
and consideration throughout the entire application process, and there was
therefore no attempt by the applicant to conceal his change of name.
[24]
Indeed,
the CAIPS notes reflect that the officer reviewed the additional documentation
provided by the applicant prior to the interview. She noted that some of those
documents were issued in his former name, Chi-Sing Koo, and she was therefore
aware of the applicant’s previous name prior to conducting the interview. She
subsequently conducted a search of the name Chi-Sing Koo within the Field
Operations Support System (FOSS).
[25]
At his
interview, the applicant advised the officer that he had not thoroughly read
the completed application forms before signing them. In light of this
explanation and the fact that the applicant had clearly not attempted to
conceal his previous name because he had provided numerous supporting documents
in his previous name and had also disclosed his previous name at his interview,
it was unreasonable for the officer to conclude that the failure to include his
previous name on the application forms was not simply a human error in
transcription, as his former representative recognized, and did rise to the
level of misrepresentation under section 40(1)(a) of Act.
[26]
Moreover,
the officer failed to conduct the proper analysis to determine if the name
change was or was not material in the case at bar. At the hearing, counsel for
the respondent submitted that the name change could have induced an error as
the officer would have only conducted criminal and security checks under the
applicant’s current name and not with the birth name. But the correct
information was on record for approximately two years and thus, available to
the officer for her consideration. She could have completed the necessary
checks required, as she did indeed within the FOSS system, and therefore the
information provided could not have induced an error in the administration of
the Act even if the applicant’s former name did not appear on the
application form.
[27]
I shall
now turn to the alleged misrepresentation with respect to the applicant’s
previous application for permanent residence. The error occurred when the
applicant check off the “yes” box to the question whether he had “previously
sought refugee status in Canada or applied for a Canadian immigrant or
permanent resident visa or visitor or temporary resident visa”, but check off
the “no” box to the following question as to whether he had been refused such a
status. The applicant has stated that this was an oversight on both the part
of himself and his former representative and was in no way intentional.
Further, when the applicant was asked at interview about whether he had
previously submitted any immigration applications, the CAIPS notes reflect that
he advised the officer that he had previously submitted an application for
permanent residence in Canada, which was refused in 1995.
[28]
Not only
do the CAIPS notes indicate that the existence of the applicant’s previous
application for permanent residence was known to Citizenship and Immigration
despite the applicant’s change of name, but they also demonstrate that the
applicant had previously disclosed his 1995 application for permanent residence
when applying for a Work Permit. The applicant’s previous disclosure supports
the applicant’s claim that he misread the question on the application form and
inadvertently ticked off the wrong box.
[29]
Moreover,
no assessment of the materiality of the inadvertent failure to disclose that
the applicant had previously applied for permanent residence was conducted.
Such an assessment is necessary in order to properly evaluate whether a
misrepresentation was material in accordance with section 40(1)(a) of the Act.
The officer’s failure to conduct such an assessment constitutes a reviewable
error.
[30]
Although
an inadvertent error was made on the applicant’s forms by his representative
with respect to a previous application for permanent residence, this
information, although relevant, was not material to the matter at hand.
Regardless of whether or not the applicant had previously applied for permanent
residence in Canada, the officer was required to
conduct an assessment of the current application before her.
[31]
Counsel
for the respondent submitted that the applicant’s previous application in 1995
was refused due to his lack of formal training and education. As the applicant
knew the previous reason for refusal, the respondent submitted that he knew
that his most recent application for permanent resident status in Canada would fail for similar
reasons, and thus, this knowledge is the reason that the applicant
misrepresented these facts.
[32]
It must be
stressed that the applicant’s first application for permanent resident status
was submitted in or about July 1995, thirteen years ago. In this application,
the applicant was assessed under the former legislation, the Immigration Act,
R.S.C. 1985, c. I-2. Considering the significant changes in the legislation,
the accompanying Regulations, and in immigration policy, it is unreasonable for
the respondent to purport that the applicant knew that his current application
would fail for the same reasons that it did before, and thus, he misrepresented
his education and did not tick the proper box pertaining to previous
applications.
[33]
Furthermore,
the applicant received his Certificate of Technician in Chinese Cuisine Cookery
in August 2003, he obtained a significant amount of cooking experience in
recent years, and had worked in Canada
as a cook on a valid Work Permit, all of which demonstrates that the
applicant’s credentials had significantly changed over the years. It is
therefore reasonable to believe that the applicant honestly believed he would
qualify for immigration to Canada.
[34]
In light
of all these facts, the respondent has failed to demonstrate how the alleged
non-disclosure of the previous application is material in the application of
the Act. Although the previous application for landing almost 13 years
ago is relevant, it is not material because the officer was required to make a
fresh determination on the application that was before her in 2005. Therefore,
the alleged failure to disclose the previous application for landing does not
come within the scope of section 40 of the Act.
[35]
Finally,
the officer’s finding that a misrepresentation was made with respect to the
applicant’s education credentials also constitutes a reviewable error. The
applicant’s former representative interpreted the applicant’s experience and
training to have constituted an apprenticeship level of education. While this
may have been an inaccurate interpretation, it is not an entirely unreasonable
conclusion given the fact that the applicant had undergone a significant amount
of practical training and had been accredited by the government of Taiwan in the field of Chinese
Cuisine as the result of successfully completing a government administered
examination.
[36]
The
characterization of the applicant’s education credential as an apprenticeship
and the former representative’s subsequent request that the applicant be
awarded 20 points for his education level do not constitute misrepresentation
on the part of the applicant. The awarding of points was a matter to be
evaluated by the officer and the officer did just that. She questioned the
applicant about his education and he answered her honestly and openly. It is
as a result of her review of his educational documentation, the information
provided by the applicant himself at interview and her subsequent analysis that
she came to the conclusion that the applicant should not be awarded the points
requested by his former representative. This is the role of a Visa Officer and
it is the work they conduct on a daily basis.
[37]
In
conclusion, it is fair to say that there were some human errors in the
application forms, some of which the consultant himself has taken
responsibility for. Regardless of these errors, the supporting material and
the information obtained at interview ensured that accurate and honest
information was provided to the officer before she rendered her decision. The
CAIPS notes reflect that the applicant answered truthfully when he was
questioned by the officer, and the discussion described in those notes in no
way constitutes a “confession” as characterized by Raymond Gabin in his
affidavit.
[38]
The
inadvertent errors made by the applicant and his consultant do not in any way
meet the threshold of section 40 of the Act. Not only were they not
misrepresentations, but they were not material either. As a matter of fact,
the officer failed to conduct the proper analysis as to the materiality of the
alleged misrepresentations, which is also a reviewable error. Finally, the
officer had a duty to consider the totality of the information that was in the
applicant’s file with immigration for almost two years, which she did not do.
[39]
For all these
reasons, this application for judicial review is granted. No question of
general importance was submitted.
ORDER
THIS COURT ORDERS that this application for judicial
review is granted. No question of general importance is certified.
"Yves
de Montigny"
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