Date:
20130312
Docket:
IMM-1149-12
Citation:
2013 FC 225
Ottawa, Ontario,
March 12, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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PEYMAN BORAZJANI
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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 AND JUDGMENT
I. Overview
[1]
Mr
Peyman Borazjani, a citizen of Iran, applied for permanent residence in Canada as a skilled worker. A visa officer in Warsaw denied his application and concluded
that he was inadmissible to Canada for having filed a fraudulent document with
his application.
[2]
Included
with Mr Borazjani’s application was a test result form (TRF) showing his
competence in the English language as measured by the International English
Language Testing System (IELTS). On his original 2006 application, Mr Borazjani
provided a photocopy of his 2001 TRF. He subsequently provided an updated,
original version of his 2010 TRF.
[3]
In
2011, a visa officer in Warsaw informed Mr Borazjani that the 2001 TRF could
not be verified and warned him that he could be found inadmissible to Canada for misrepresentation. Mr Borazjani responded by letter, explaining that the TRF was
genuine. He no longer had an original copy of the TRF so any problems with the
document could be explained by the poor photocopy he had supplied. Further,
since the TRF was more than two years old, the IELTS could not verify its
contents.
[4]
Mr
Borazjani subsequently attended an interview where the authenticity of the TRF
was discussed, but the officer’s concerns were not alleviated by Mr Borazjani’s
answers. Mr Borazjani’s application was denied and he was found inadmissible to
Canada for misrepresentation under s 40(1)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27, [IRPA] (see Annex).
[5]
Mr
Borazjani argues that the deciding officer treated him unfairly, failed to
provide adequate reasons, and rendered an unreasonable decision. He asks me to
quash the officer’s decision and order another officer to reconsider his
application.
[6]
I
am satisfied that the officer’s decision was unreasonable because there was
insufficient evidence to justify her conclusion. Therefore, I will allow this
application for judicial review on that basis. It is unnecessary to consider
the other issues raised by Mr Borazjani.
II. The officer’s
decision
[7]
An
immigration officer reviewing Mr Borazjani’s application noted a number of
irregularities in his TRF – poor quality of the photocopy, extraneous words,
and irregular format. A program manager agreed with the officer’s observations
and concluded that the document was not genuine. She refused Mr Borazjani’s
application on the basis of misrepresentation; however, in her letter to Mr
Borazjani, she raised concerns about the 2010 TRF, not the 2001 TRF. It seems
clear that this was an inadvertent error as all the concerns reflected in the
record and conveyed to Mr Borazjani related to the 2001 TRF.
III. Was the officer’s
decision unreasonable?
[8]
The
Minister argues that the officer correctly noted a number of problems with the
2001 TRF, for which Mr Borazjani did not have a satisfactory explanation.
Moreover, the issue of language proficiency was material to Mr Borazjani’s
application and the impugned document could have induced an error in the assessment
of his application. I should, therefore, defer to the officer’s conclusion that
Mr Borazjani is inadmissible to Canada on the basis of misrepresentation.
[9]
I
agree that Mr Borazjani supplied a poor copy of his 2001 TRF. However, I cannot
see how this, in itself, led to the conclusion that he had tried to
misrepresent his language skills. The officer believed that parts of the
document were scanned, while other parts were photocopied. The reasons do not
disclose how the officer came to that conclusion. Further, the officer was
concerned that the “test report form number” was improperly formatted; however,
the 2001 TRF does not bear a “test report form number” (although the 2010 TRF
does). Further, the appearance of a strange watermark on the photocopy of the
TRF does not, in itself, suggest that the document was fraudulent; it may have
been a feature of the paper on which the copy was made.
[10]
Mr
Borazjani’s application was otherwise in order and he had filed an updated
original of his 2010 TRF, whose authenticity was not questioned. He was not
required to provide a TRF with his application; he did so voluntarily. The
program manager had some training in false documents but did not have any
significant experience with IELTS documents from 2001.
[11]
Therefore,
in the circumstances, I agree with Mr Borazjani that there was no reasonable
basis to conclude that he had misrepresented his language skills by way of a
fake TRF. A finding of misrepresentation can be made only where there is “clear
and convincing evidence” to support it: Xu v Canada (Minister of Citizenship
and Immigration), 2011 FC 784 at para 16. The evidence before the officer
here did not meet that threshold.
IV. Conclusion and
Disposition
[12]
The
officer had no reasonable basis for concluding that Mr Borazjani filed a fraudulent
document showing his English language skills. That conclusion did not fall
within the range of defensible outcomes based on the facts and the law and,
therefore, was unreasonable. I must, therefore, allow this application for
judicial review and order another officer to reconsider Mr Borazjani’s
application. Neither party proposed a question of general importance for me to
certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial is allowed and the matter is referred back to a
different officer for reconsideration.
2.
No
question of general importance is stated.
“James W. O’Reilly”
Annex “A”
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Immigration and Refugee
Protection Act,
SC 2001, c 27
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;
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Loi sur l’immigration et la
protection des réfugiés,
LC 2001, ch 27
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;
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