Docket:
IMM-1462-13
Citation: 2013 FC 1023
Ottawa, Ontario, this 10th day of October 2013
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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Kuldeep KAUR
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Applicant
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And
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THE MINISTER OF CITIZENSHIP
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AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision of an Immigration Officer (the “officer”), dated January 28, 2013,
declaring the applicant inadmissible by reason of misrepresentation pursuant to
section 40 of the Immigration and Refugee Protection Act, SC 2001, c 27
(the “Act”).
[2]
The evidence consists of documents concerning
the applicant’s son, which were submitted as part of her application for
permanent residence. The application for permanent residence includes the son
as a dependent child. The officer concluded that the Matriculation and Senior Secondary
certificates of her son were fraudulent. As a result, he concluded that the
applicant is inadmissible. I have come to the conclusion that the decision of
the officer is not reasonable under the circumstances. Furthermore, the
peculiar circumstances of this case are such that I conclude that procedural
fairness was not afforded. Hence the matter must be remitted to a different
officer for a redetermination. Here are my reasons for reaching that
conclusion.
Facts
[3]
The applicant wishes to qualify for the issuance
of a permanent resident visa to Canada. She is sponsored by her daughter who is
a permanent resident of Canada. On or about November 11, 2010, the applicant
filed her application for permanent residence, with supporting documents, to
the Canadian High Commission in New Delhi, India. It appears that in the two
years that followed, the processing of the application involved various
requests for information or updates.
[4]
On or about November 9, 2012, the High
Commission in New Delhi sent a letter to the applicant expressing forcefully some
concerns about some of the documentation already provided. The so-called “fairness
letter” states:
In support of your
application for permanent residence in Canada, you submitted educational
documents of your son Sukhjeet Singh. Your son’s High School and Senior
Secondary certificates have been verified to be fraudulent.
[5]
It has been alleged by the applicant that the
fairness letter did not disclose sufficient details for the purpose of
providing a response. I have concluded that such is not the case. The documents
referred to in the letter comprise just a few pages and, although some
precision could have been helpful, it was not difficult on the face of the
documents to see where the problem resided. A more significant difficulty is
that the letter gave the applicant 30 days from the date of the letter for a
response to be provided.
[6]
It is not disputed by the respondent that the
November 9 letter did not reach the applicant until December 3, 2012. At the
very least, the respondent cannot contradict the affidavit of the applicant to
the effect that she received the letter on that day.
[7]
An extension of time was requested by the
applicant’s then counsel on December 11, 2012. No explanation is provided
for why it took eight days for the applicant to seek the extension. Be that as
it may, it can hardly be disputed that the respondent received such e-mail
because it sought an authorization for counsel to act on behalf of the
applicant, in view of the fact that someone else appeared to have been acting
on behalf of the applicant before that date.
[8]
On January 7, 2013, the same counsel reiterated
his request for an extension of time and provided at the same time the
respondent with the form confirming that he was representing the applicant.
[9]
It is not disputed that the respondent never
provided a response as to whether or not time was extended in order to respond
to the fairness letter of November 9, 2012. Conversely, the applicant did not
show diligence in addressing the concerns that were explicit in the
November 9, 2012 letter.
[10]
Just over two weeks after having received the
confirmation of the change in representative of the applicant, the respondent tersely
rejected the application for permanent residence in Canada. The applicant was
declared to be inadmissible, pursuant to section 40 of the Act, and the reason
given reads as follows:
On your application
for permanent residence in Canada, you included Sukhjeet Singh as your
dependent child. In support of Sukhjeet Singh’s application, you submitted his
Matriculation and Senior Secondary certificates issued by the Punjab School Education
Board. Upon verification, we were advised by the Punjab School Education Board
that Sukhjeet Singh’s Matriculation and Senior Secondary certificates were
fraudulent. We advised you of this finding by letter dated November 9, 2012,
but have not received your response so far. I conclude that you submitted
fraudulent educational certificates for Sukhjeet Singh to establish that he
meets the definition of “dependent child” in the Immigration and Refugee
Protections [sic] Regulations.
Analysis
[11]
The only evidence before the Court comes from
the Computer Assisted Immigration Processing System (CAIPS) notes maintained by
the respondent. The notes do not tend to support the broad statement found in
the letter of January 28, 2013. In an entry made on October 4, 2012, one can
read:
I called up the Khalsa Amarjit Sr. Sec. School, Domali Kapurthala, details mentioned on the matric and
senior secondary cert. I provided the details of both the certificates, the
Principal of the school checked her records and confirmed that no record found
in their records neither by name nor by the roll no and registration number for
class 10-march 2004 and class – 12-senior secondary 2006.
[12]
As can be readily seen, there is no evidence
that the School Education Board was contacted. It is the Board that issued the
certificates. Furthermore, there was no confirmation that the certificates were
fraudulent. It appears to be the conclusion reached by the officer because no
records were found by the Principal.
[13]
Indeed, in the CAIPS notes of January 28, 2013,
an entry reads:
I have reviewed all
of the facts of this case and note that the applicant has not responded to our
procedural fairness efforts. On the balance of probabilities, it is indeed more
probable that the applicant has misrepresented facts that are material to a
determination under the IRPA. . . .
I would have
thought that the statement is not completely accurate. Although the comments
had not yet been made by the applicant, she had already asked twice for an
extension of time without getting a response from the respondent. There had
been a response to the “procedural fairness efforts”, although it was not the
fulsome response. Such a statement leaves the impression that the applicant has
remained silent since November 9, 2012. The statement lacks in precision and
may convey an inaccurate perception. That leads to the conclusion that the
balance of probabilities favours misrepresentation given the lack of response.
Evidently, the decision to declare the applicant inadmissible by reason of
misrepresentation was influenced by the lack of response to the procedural
fairness efforts.
[14]
The telephone call to the Khalsa Amarjit Senior Secondary School took place in early October 2012. The fairness letter was
issued more than a month later, suggesting that there was no urgency. There is
no evidence on the record to contradict that the said letter was received by
the applicant merely a few days before the 30-day period for responding was to
expire. However there were in December 2012 and January 2013 communications
coming from the applicant which clearly suggested that a response to the
concern would be forthcoming. In spite of that, the respondent concluded the
matter by a letter on January 28 based on the reason that no response to
the fairness letter of November 9, 2012 had been received at that date.
One is hard-pressed to understand why the respondent was in a hurry to conclude
in a case that had started in November of 2010 by the filing of an application
for permanent residence.
[15]
What is more is that the letter of January 28 is
silent as to why the documents submitted qualify under paragraph 40(1)(a)
of the Act. The paragraph reads 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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[16]
Here, the record shows that other documents, which are part of
the record, would tend to support the contention that the applicant’s son was a
student in university, which would suggest that high school had been completed.
Yet, the respondent considers that the misrepresentation concerns material
facts that relate to a relevant matter that could have induced an error in the
administration of this Act.
[17]
It is unclear to me why the respondent proceeded
precipitously and sent the letter of January 28, 2013 after two requests
for an extension of time had been filed, without a response. In fairness, the
applicant could have been more diligent. Not only were the two requests for an
extension of time separated by one month, but it would have been in the best
interests of the applicant to supply information, even if partial information,
to support her contention that the respondent’s misgivings were not appropriate,
if not altogether unfounded. Nothing of the sort took place.
[18]
In my view, the decision is problematic on two
fronts. First the process followed is defective. Second, the decision lacks in
demonstrating why it is reasonable in the circumstances to conclude that the
misrepresentation, if any, is material and satisfies the test of section 40 of
the Act.
[19]
In this case, after reviewing the application
for two years, the respondent provided a “fairness letter” allowing for 30 days
to answer, yet it appears that it is received only 24 days later. Although the
evidence would suggest that the two requests for an extension of time were
received by the respondent, no response is given. And then, suddenly, a final
determination is made.
[20]
As stated by Brown and Evans in their Judicial
Review of Administrative Action in Canada (Toronto: Canvasback Publishing
Inc., 2013), about procedural fairness, at paragraph 7:3110:
. . . Its principal purpose is to
provide a meaningful opportunity for those interested to bring evidence and
arguments that are relevant to the decision to be made to the attention of the
decision-maker, and correlatively, to ensure that the decision-maker fairly and
impartially considers them.
I am of course
conscious of the fact that the fair opportunity to participate is not an open-ended
proposition. It is tempered by, in the words of Brown and Evans, “the public
interest in effective, expeditious and efficient decision-making . . .” (at
paragraph 7-1100). It seems to me that if fairness commands that the applicant
be advised of admittedly legitimate concerns, it follows that a fair
opportunity to respond must be given. In the particular circumstances of this
case the precipitation of the respondent remains unexplained, as well as the
fact that it did not communicate with the applicant’s representative in due
course. Efficient decision-making cannot obviate the need to allow for
representations to be made. In the particular circumstances of this case, I
believe a proper response was not given.
[21]
The standard of review in matters of procedural
fairness is correctness (Sketchley v Canada (Attorney General), 2005 FCA
404, [2006] 3 FCR 392). Here, the respondent did not allow the applicant to be
heard. That would suffice to dispose of the matter.
[22]
However, there is more. In my view, the decision
in itself suffers from a defect that would be deserving of this Court’s
intervention.
[23]
In Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, the Court states that:
[47] .
. . . In judicial review, reasonableness is concerned mostly with the existence
of justification, transparency and intelligibility within the decision-making
process.
In a case where
the reasons are not completely accurate and where it is unclear how the alleged
misrepresentation vitiates the process so much that it could induce an error in
the administration of the Act, there is no other conclusion possible but to
find the reasons as being deficient.
[24]
Perfection in the reasons given by
decision-makers is not the standard to which they are held. Indeed, the
adequacy of reasons is not, on its own, a basis to quash a decision (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 at paragraph 14). Moreover, reasons do not have
to be extensive or seek to include all arguments.
[25]
However, and respectfully submitted, the reasons
once read together with the outcome in this case do not allow the reviewing
judge to ascertain that the decision falls within a range of possible
acceptable outcomes and thus is reasonable. That is the standard that has to be
met (Newfoundland and Labrador Nurses’ Union, supra, at paragraph
16). Merely repeating what the statute says is simply not enough.
Conclusion
[26]
As a result, the matter is returned for a
redetermination by a different officer. The new officer will have to allow the
applicant time in order to make submissions in relation to the concerns raised
in the fairness letter of November 9, 2012. A period of forty-five (45) days
following the issuance of this judgment should suffice for the representations
to be made.
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