Date:
20130528
Docket:
IMM-7045-12
Citation:
2013 FC 556
Ottawa, Ontario,
May 28, 2013
PRESENT: The
Honourable Madam Justice Mactavish
BETWEEN:
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RAJINDER SINGH DHATT
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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
[1]
The
applicant, Rajinder Singh Dhatt, seeks judicial review of a May 23, 2012
decision by a Citizenship and Immigration Canada [CIC] officer. The officer
refused Mr. Dhatt’s application for permanent residence on the basis that he was
inadmissible for misrepresentation pursuant to section 40 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 7 [the Act].
[2]
For
the reasons that follow, this application for judicial review will be granted.
Facts
[3]
Mr.
Dhatt is a citizen of India. He is married and has two biological children (his
sons Mandeep and Sukhdeep) and one adopted daughter, Kirandeep Kaur Dhatt, who
was born in 1992.
[4]
Mr.
Dhatt states that he adopted Kirandeep in 1999 through a religious ceremony in
his village. He states that he and his wife adopted Kirandeep with her parents’
agreement, due to difficult conditions in her household and because he had no
daughter. Mr. Dhatt states that even before the ceremony, Kirandeep spent a lot
of time at his family’s home.
[5]
In
August of 2004, Mr. Dhatt obtained a birth certificate for Kirandeep from the
Indian authorities. The birth certificate indicated his and his wife’s names in
the spaces for “Name of Father” and “Name of Mother”.
[6]
At
this point in time the applicant’s son, Mandeep, had already applied for
permanent residence in Canada. In his application form, he had identified
Kirandeep as his sister.
[7]
Mr.
Dhatt states that prior to his son Mandeep’s departure for Canada, the family discussed the possibility of Mandeep sponsoring them. On the advice of a lawyer
in India who suggested that the Canadian immigration authorities would not
recognize the religious ceremony held in 1999 as a valid adoption, Mr. Dhatt
and his wife obtained a formal deed of adoption from the Indian authorities.
The adoption ceremony was held on February 24, 2005, and the deed of adoption
was executed on April 5, 2005.
[8]
Four
days after the adoption ceremony, on February 28, 2005, Mandeep landed in Canada as a permanent resident.
[9]
Following
Mandeep’s sponsorship application, Mr. Dhatt was asked to attend an interview
at the Canadian High Commission in New Delhi. The ensuing decision is the
subject of this application for judicial review.
Decision under
Review
[10]
In
the Computer
Assisted Immigration Processing System [CAIPS] entry dated October 10, 2011, the
officer noted the existence of the deed of adoption for Kirandeep and observed
that her birth was registered in August of 2004. The officer also noted that
the birth certificate “lists [the] name of her adoptive parents”.
[11]
The
officer added that an interview was required “to determine whether Kirandeep’s
adoption comply [sic] with all the requirements of Hindu adoptions”. Mr.
Dhatt was therefore interviewed on May 7, 2012.
[12]
At
the beginning of the interview, Mr. Dhatt told the officer that Kirandeep was
adopted, named her natural parents, and explained that she was adopted because
her natural father was ill and her parents would fight a lot. Mr. Dhatt also
explained that he and his wife did not have a daughter. The officer noted that
it was “unusual” that Kirandeep would be adopted at age 12.
[13]
The
officer also asked Mr. Dhatt about the timing of the adoption (four days before
Mandeep landed in Canada) and the fact that Mandeep indicated that Kirandeep
was his sister before the formal adoption had taken place. The officer found
that the applicant’s answers did not allay his concerns.
[14]
The
officer then confronted the applicant about the fact that Kirandeep’s birth
certificate must have been obtained fraudulently because it indicates that the
applicant and his wife are Kirandeep’s “natural parents”. The officer further
took issue with the fact that although the birth certificate was issued in
August of 2004, allegedly in the context of a passport application, Kirandeep’s
passport was not issued until 2009.
[15]
The
applicant admitted during the interview that Kirandeep’s birth certificate had
been obtained by providing false information to the Indian authorities because
they were “getting the paperwork ready for [the] future”.
[16]
The
officer also noted that “the adoption appears to have been an adoption of
convenience” given Kirandeep’s age at the time of the formal ceremony and the
fact that it was unlikely that her parents would have given her up simply
because Mr. Dhatt and his wife did not have a daughter. The officer added that
he did not find Mr. Dhatt credible as he refused to answer questions regarding
the adoption.
[17]
The
officer concluded that, on a balance of probabilities, Mr. Dhatt had made a
material misrepresentation by submitting a fraudulent birth certificate, and
that this could have led to an error in the administration of the Act.
[18]
By
letter dated May 23, 2012, the officer advised Mr. Dhatt that he was inadmissible
for misrepresentation pursuant to section 40 of the Act and essentially
reiterated the concerns expressed in the CAIPS notes.
Issue
[19]
The
issue is whether the officer reasonably concluded that Mr. Dhatt made a
material misrepresentation by providing the fraudulent birth certificate,
thereby rendering him inadmissible pursuant to section 40 of the Act.
Standard of
Review
[20]
A
reviewing court need not undertake a full standard of review analysis when the
proper standard is well-settled by prior jurisprudence: Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 62.
[21]
This
Court has held that a visa officer’s conclusion that an applicant has made a
material misrepresentation is a question of mixed fact and law, reviewable for
reasonableness: Karami v. Canada (Minister of Citizenship and Immigration),
2009 FC 788, [2009] F.C.J. No. 912 at para. 14; Goudarzi v. Canada (Minister of Citizenship and Immigration), 2012 FC 425, [2012] F.C.J. No. 474 at
para. 13.
[22]
To
be reasonable, the officer’s decision must be justified, transparent and
intelligible, and it must fall “within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law”: Dunsmuir, above,
at para. 47. Moreover, in assessing the reasonableness of a decision, the
reasons must be read as a whole, together with the outcome: Newfoundland and Labrador
Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708 at para. 14.
Analysis
i. Legal Framework
[23]
The
officer’s conclusion that the applicant was inadmissible for misrepresentation
was based upon section 40 of the Act, the relevant portions of which
read as follows:
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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;
[…]
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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;
[…]
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[24]
Two
elements must be present for a finding of inadmissibility pursuant to section
40 of the Act. First, there must be a misrepresentation. Second, the
misrepresentation must be material, in that it induces or could induce an error
in the administration of the Act, or otherwise affects the process: Bellido
v. Canada (Minister of Citizenship and Immigration), 2005 FC 452, [2005]
F.C.J. No. 572 at para. 27; Sayedi v. Canada (Minister of Citizenship and
Immigration), 2012 FC 420, [2012] F.C.J. No. 469 at paras. 22, 26.
[25]
This
Court has held that section 40 of the Act is to be interpreted broadly
and that applicants have a “duty of candour”, which is required to maintain the
integrity of the immigration system: Bodine v. Canada (Minister of
Citizenship and Immigration), 2008 FC 848, [2008] F.C.J. No. 1069 at paras.
41-42; Kobrosli v. Canada (Minister of Citizenship and Immigration),
2012 FC 757, [2012] F.C.J. No. 737 at para. 46; Sayedi, above, at
para.24.
[26]
Section
40 of the Act also applies to applicants who make an initial
misrepresentation, even if it is subsequently clarified prior to a decision
being made: Khan v. Canada (Minister of Citizenship and Immigration),
2008 FC 512, [2008] F.C.J. No. 648 at para. 25; Kobrosli, above, at
para. 59.
[27]
An
exception to this rule applies where an applicant “honestly and reasonably
believed they were not misrepresenting a material fact”: Sayedi, above,
at para. 33; see also Baro v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1299, [2007] F.C.J. No. 1667 at para. 15; Medel
v. Canada (Minister of Employment and Immigration), [1990]
2 F.C. 345, [1990] F.C.J. No. 318 (FCA).
[28]
Misrepresentation
under section 40 of the Act is also addressed in the ENF 2 –
Evaluating Inadmissibility guidelines published by Citizenship and
Immigration Canada (“the CIC Guidelines”). Although not binding, this Court has
found that these Guidelines “are a good indication in a judicial review
proceeding of what an immigration official might reasonably find to constitute
misrepresentation of a material fact related to a relevant issue”: Mai v.
Canada (Minister of Citizenship and Immigration), 2011 FC 101, [2011]
F.C.J. No. 127 at para. 20.
[29]
The
CIC Guidelines indicate that the purpose of section 40 of the Act is to
ensure that those applying for entry into Canada provide “complete, honest and
truthful information in every manner”. The Guidelines also indicate, however,
that the misrepresentation provisions must be applied with “good judgment to
support the objectives of the Act and ensure fair and just decision-making”:
section 9.1.
[30]
Importantly,
the CIC Guidelines state that the discovery of fraudulent documents “does not
automatically lead to inadmissibility” because such documents “may not be
material and/or…may not induce an error in the administration of the Act”. The
guidelines also instruct officers to consider, amongst other things, whether
the fraudulent document was provided for the purpose of making a
misrepresentation: section 9.6.
ii.
Application
to the Present Case
[31]
The
issue in the present case is whether the officer reasonably found that Mr.
Dhatt made a material misrepresentation by submitting a fraudulently-obtained
birth certificate for his adopted daughter, Kirandeep.
[32]
For
the reasons that follow, and having regard to the broad interpretation that
must be given to section 40 of the Act (see Sayedi, above, at
para. 24), I find that the officer’s decision was unreasonable. Simply stated,
the material fact that Kirandeep was adopted was never concealed or otherwise
misrepresented to the Canadian authorities.
[33]
Indeed,
the deed of adoption indicating that Kirandeep had been adopted was provided to
CIC at the very beginning of the application process. The information was thus
available to the officer throughout the entire course of the application; there
was no attempt to conceal the fact that Kirandeep was adopted: Koo v. Canada (Minister of Citizenship and Immigration), 2008 FC 931, [2008] F.C.J. No. 1152
at para. 23. Nor was there an initial misrepresentation that Mr. Dhatt later
attempted to rectify: Khan, above, at para. 25; Kobrosli, above,
at para. 59.
[34]
I
also note that the birth certificate, though it was obtained fraudulently
from the Indian authorities, does not specify that Mr. Dhatt and his wife are
Kirandeep’s biological parents. Rather, it merely lists their names under “Name
of Father” and “Name of Mother”.
[35]
Moreover,
nothing suggests that the birth certificate was provided to the Canadian
authorities for the purposes of misrepresenting his relationship with
Kirandeep, or that Mr. Dhatt knew or believed he was misrepresenting material
information: CIC Guidelines, section 9.6; Sayedi, above, at para. 33; Baro,
above, at para. 15; Medel, above.
[36]
Indeed,
had Mr. Dhatt been attempting to conceal the fact that Kirandeep was adopted,
logic dictates that he would not have submitted the deed of adoption as part of
the application package.
[37]
A
review of the CAIPS notes further indicates that during the interview, Mr.
Dhatt clearly stated that Kirandeep was adopted. Notwithstanding the concerns
the officer may have had regarding the circumstances or genuineness of the
adoption, it cannot be said that Mr. Dhatt attempted to pass Kirandeep off as
his biological daughter.
[38]
Counsel
for the respondent submitted that the decision is reasonable in light of the
officer’s doubts as to the validity of the adoption and the fact that these
doubts were the impetus for the interview to begin with.
[39]
As
noted by the respondent, the officer’s doubts are expressed throughout the
decision. The officer finds it “unusual” that Kirandeep would have been adopted
at the age of 12 and states that “the adoption appears to have been an adoption
of convenience”. The officer further notes that “[e]ven if you had genuinely
adopted Kirandeep her birth certificate would include the name of her
natural parents” (my emphasis). This phrasing suggests that the officer doubted
the genuineness of the adoption. Finally, the officer goes so far as to state:
“I do not find you [Mr. Dhatt] a credible person as you refused to answers [sic]
questions regarding the adoption of the child”.
[40]
Despite
the respondent’s able submissions, this argument must fail. While the concerns
noted by the officer might have provided a valid basis for refusing the
application, they were not the basis for the officer’s decision in this case.
Rather, the decision was based solely on a finding that the fraudulent birth
certificate constituted a material misrepresentation.
[41]
It
is also noteworthy that although the stated purpose of the interview was to
verify whether the adoption complied with Hindu requirements, nowhere in the
CAIPS notes or decision does the officer meaningfully engage with this issue.
[42]
As
set out in section 9.6 of the CIC Guidelines, the mere fact that the birth
certificate was obtained fraudulently does not, on its own, automatically lead
to a finding of inadmissibility.
[43]
Considering
all of the circumstances of this case, it was unreasonable for the officer to
conclude that Mr. Dhatt misrepresented his relationship with Kirandeep, since
there was no attempt to conceal the fact that she was adopted. The officer’s
finding to the contrary thus falls outside the range of possible, acceptable
outcomes and must therefore be quashed: Dunsmuir, above, at para. 47, Newfoundland Nurses, above, at para. 14.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES
that:
1.
This
application for judicial review is allowed, and the matter is remitted to a
different
immigration officer for re-determination in accordance with these reasons.
“Anne L. Mactavish”
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