Ali v. Canada (Citizenship and Immigration), 2008 FC 166

Date: 20080207

Docket: IMM-1981-07

Citation: 2008 FC 166

Toronto, Ontario, February 7, 2008

PRESENT:     The Honourable Mr. Justice Campbell

BETWEEN:

ANWAR ALI

                                                                                                                                            Applicant

                                                                           and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

REASONS FOR ORDER AND ORDER

[1]               The present Application concerns a decision of a Visa Officer in which a dependent of a Convention Refugee from Bangladesh is ruled to be inadmissible for landing in Canada due to misrepresentation under s.40(1)a of the Immigration and Refugee Protection Act S.C. 2001, c. 27 (IRPA).

[2]               The Visa Officer’s CAIPS notes disclose that, prior to the misrepresentation being detected, there was no outstanding issue with respect to the Applicant’s age or his family relationships. The misrepresentation issue arising thereafter was due to the fact that the Applicant submitted a fraudulent school record.  The Applicant subsequently filed a further school record and stated that the misrepresentation was made without his knowledge.

[3]               In order for an applicant to be inadmissible due to misrepresentation, s.40(1)a of IRPA requires that the misrepresented facts be material to the application. Therefore, by Citizenship and Immigration Canada’s policy guidelines with respect to evaluating whether a misrepresentation will render an applicant inadmissible, the materiality of the misrepresentation must first be determined (see ENF 2, Evaluating Admissibility, s. 9.3, Applicant’s Application Record, p. 97). The CAIPS notes do not reflect any analysis by the Visa Officer on the issue of the materiality of the misrepresentation under consideration. However, the rejection letter sent to the Applicant gives the following reason for finding that the Applicant is inadmissible:

Because such documents are used as evidence of age, identity, and relationship to the family member in Canada, the submission of fraudulent school documents could induce an error in the administration of the Immigration and Refugee Protection Act.

(Tribunal Record, p.14)

[4]               As mentioned above, in the evaluation of the Applicant’s admissibility, his age, identity, and family relationships were not in doubt prior to the detection of the misrepresentation. As a result, I find that the reasons given in the rejection letter do not constitute an analysis of materiality warranting the Applicant’s rejection. On this basis I find that the Visa Officer’s decision is not in accordance with s. 40(1)a of IRPA, and further, is factually erroneous.

[5]               As a result, I find that the Visa Officer’s decision was rendered in reviewable error.

ORDER

            Accordingly, I set aside the Visa Officer’s decision and refer the matter back for re-determination before a differently visa officer.

“Douglas R. Campbell”

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-1981-07

STYLE OF CAUSE:                          ANWAR ALI v.  THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

PLACE OF HEARING:                    TORONTO, ONTARIO

DATE OF HEARING:                      FEBRUARY 7, 2008

REASONS FOR ORDER

AND ORDER BY:                            CAMPBELL J.

DATED:                                             FEBRUARY 7, 2008  

APPEARANCES:

RICHARD WAZANA                                                             FOR THE APPLICANT

BERNARD ASSAN                                                                FOR THE RESPONDENT                 

SOLICITORS OF RECORD:

RICHARD WAZANA                                                            

Barrister and Solicitor

Toronto, Ontario                                                                      FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada                                        

Toronto, Ontario                                                                      FOR THE RESPONDENT