Docket: IMM-5459-14
Citation:
2015 FC 377
Ottawa, Ontario, March 25, 2015
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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MAKHAN SINGH
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Applicant
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and
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GOVERNMENT OF CANADA
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondents
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s. 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 for judicial review of the
decision of a visa officer [Officer], dated May 16, 2014 [Decision], which
refused the Applicant’s application for a temporary resident visa.
II.
BACKGROUND
[2]
The Applicant applied to the Saskatchewan
Immigrant Nominee Program [SINP] under the Farmer Entrepreneur Category.
Through this application process, the SINP invited the Applicant to visit the Province of Saskatchewan.
[3]
The Applicant applied for a temporary resident
visa on March 28, 2014.
[4]
In a letter sent April 4, 2014, the Officer
advised the Applicant that she was not satisfied he had complied with s. 16 of
the Act which requires applicants to answer all questions truthfully. The
letter states:
In response to the question “Have you ever
been refused any kind of visa, admission, or been ordered to leave Canada or any other country?” you did not disclose that you have been previously ordered to leave
the USA[.]
Please note that if it is found that you
have engaged in misrepresentation in submitting your application, you may be
found to be inadmissible under section 40(1)(a) of the Immigration and
Refugee Protection Act. A finding of such inadmissibility would render you
inadmissible to Canada for a period of two years according to section 40(2)(a)…
[Emphasis in original]
[5]
The Applicant was provided thirty days to make
representations regarding the Officer’s concerns.
[6]
In response, the Applicant asked the Officer to
consider the fact that the removal was a result of his overstaying his time in
the United States following a failed refugee claim and not due to criminal or
medical inadmissibility. The Applicant also said that had he declared the
removal, it would not have resulted in a refusal of admittance to Canada.
III.
DECISION UNDER REVIEW
[7]
The application for a temporary resident visa
was refused on May 16, 2014. The Decision states:
On the application you submitted on March
31, 2014 you misrepresented or withheld the following material fact: Background
information – previous USA refugee claim and removal[.]
The misrepresentation or withholding of this
material fact induced or could have induced errors in the administration of the
Act by creating the incorrect impression that you were a bonafide [sic]
visitor to Canada.
IV.
ISSUES
[8]
The Applicant raises the following issues in
this application:
- Did the Officer err in determining that the Applicant
misrepresented information in the Application for Temporary Resident Visa?
- If the Applicant misrepresented information in the Application
for Temporary Resident Visa, did the Officer err in determining that the
misrepresentation was material to the Applicant’s application?
- Did the Officer breach the rules of procedural fairness?
- Did the Officer err in failing to provide adequate reasons?
V.
STANDARD OF REVIEW
[9]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis
need not be conducted in every instance. Instead, where the standard of review
applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[10]
The Applicant submits that the standard of
review as to whether s. 40(1)(a) of the Act applies is correctness: Khan v Canada (Citizenship and Immigration), 2008 FC 512 at para 22 [Khan]. If s.
40(1)(a) applies, then its application is reviewable on a standard of
reasonableness: Khan, above; Goburdhun v Canada (Citizenship and
Immigration), 2013 FC 971 at para 19 [Goburdhun]; Oloumi v Canada (Citizenship and Immigration), 2012 FC 428 at para 12. The Applicant says the
Officer’s interpretation of question 2(c) is a question of statutory
interpretation and is reviewable on a standard of correctness: Khan,
above, at para 22. The adequacy of the reasons is reviewable on a standard of
reasonableness: Kotanyan v Canada (Citizenship and Immigration), 2014 FC
507 at para 26.
[11]
The Respondent submits that a finding under s.
40 of the Act is reviewable on a standard of reasonableness: Jiang v Canada (Citizenship and Immigration), 2011 FC 942 at para 19 [Jiang]. The
adequacy of reasons is also reviewable on a standard of reasonableness. Issues
of procedural fairness are reviewed on a standard of correctness: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa].
[12]
The Officer’s determination under s. 40 of the
Act involves findings of fact and is reviewable on a standard of
reasonableness: Jiang, above, at para 19. Questions of procedural
fairness are reviewed on a standard of correctness: Mission Institution v
Khela, 2014 SCC 24 at para 79; Exeter v Canada (Attorney General), 2014 FCA 251 at para 31. The adequacy of the reasons will be reviewed
as part of the review of the reasonableness of the Decision: Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paras 15-16 [Newfoundland Nurses].
[13]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: see Dunsmuir, above, at para 47; Khosa,
above, at para 59. Put another way, the Court should intervene only if the
Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[14]
The following provisions of the Act were in
force when the Decision was made and are applicable in this proceeding:
Misrepresentation
|
Fausses
déclarations
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40. (1) A
permanent resident or a foreign national is inadmissible for
misrepresentation
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40. (1)
Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
|
(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;
|
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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[…]
|
Application
|
Application
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(2) The
following provisions govern subsection (1):
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(2) Les
dispositions suivantes s’appliquent au paragraphe (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
|
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;
|
[…]
|
[…]
|
VII.
ARGUMENT
A.
Applicant
[15]
The Applicant submits that a finding of
inadmissibility under s. 40 of the Act requires a material misrepresentation: Singh
Dhatt v Canada (Citizenship and Immigration), 2013 FC 556 at para 24 [Dhatt].
There is no misrepresentation when an applicant honestly and reasonably
believes that he or she is not misrepresenting a material fact: Dhatt,
above, at para 27; Sayedi v Canada (Citizenship and Immigration), 2012
FC 420 at para 33; Osisanwo v Canada (Citizenship and Immigration), 2011
FC 1126.
[16]
The Officer erred in finding that the Applicant
answered “no” to question 2(b). The Applicant says that his travel agent mistakenly
answered “no” but that he corrected the mistake and submitted another
application which indicated “yes.”
[17]
The Applicant says the Officer erred in
determining that question 2(c) is sufficiently clear that the Applicant should
have provided information regarding a failed refugee claim in the United States from 1995 in his answer. Question 2(c) instructs applicants to “please
provide details” if they have answered “yes” to questions 2(a) or 2(b). The
Applicant submits that the question is unclear, ambiguous and lacks
specificity. He points to the fact that other questions are quite detailed in
describing the type of information being requested. He says he did not
understand that the question required him to provide information regarding the failed
refugee claim because it was from the United States, from nineteen years earlier,
and he had travelled to Canada from India many times in the years between.
[18]
The Officer erred in finding that the
Applicant’s misrepresentation induced or could have induced errors in the
administration of the Act by creating the incorrect impression that the
Applicant was a bona fide visitor to Canada. A misrepresentation is
material if it induces or could induce an error in the administration of the
Act: Dhatt, above, at para 24. The failed refugee claim is immaterial to
the issue of whether the Applicant is a bona fide visitor to Canada. He has travelled to Canada and returned to India many times since the failed
refugee claim. He was also invited to Canada by the SINP. In addition, the Agreement
Between the Government of Canada and the Government of the United States of
America for the Sharing of Visa and Immigration Information, Treaty
E105246, December 13, 2012 [Treaty] means that the United States automatically
provides information regarding whether an applicant to Canada has previously
been refused a visa or removed from the United States. As a result, no
misrepresentation by the Applicant regarding a failed refugee claim in the United States could induce any error in the administration of the Act.
[19]
The Applicant submits that the Officer breached
procedural fairness in determining that he had misrepresented a material fact.
He relies on the facts that: the Decision will have significant consequences on
his application for immigration to Canada; the Officer should have considered
that the failed refugee claim occurred nineteen years ago; the wording of
question 2(c) is unclear and ambiguous; and the Applicant did not intentionally
conceal his refugee claim in the United States.
[20]
The Applicant submits that the reasons for the
Decision are inadequate: Sidhu v Canada (Citizenship and Immigration),
2014 FC 176 [Sidhu]. The reasons provide no explanation for the
Officer’s conclusion that the Applicant’s misrepresentation creates the “incorrect impression” that the Applicant is a bona
fide visitor to Canada. The Global Case Management System [GCMS] notes
provide no more explanation than the above conclusion. They also fail to
acknowledge the fact that the Applicant has travelled to Canada and returned to India several times, and the fact that the Applicant wishes to visit pursuant
to an invitation from the SINP. The GCMS notes are also incorrect in that they
indicate the Applicant selected “no” to question 2(b).
B.
Respondent
[21]
The Respondent submits that visa applicants owe
a duty of candour. There is a narrow exception which applies “for truly exceptional circumstances, where the applicant
honestly and reasonably believed they were not misrepresenting a material fact”:
Goudarzi v Canada (Citizenship and Immigration), 2012 FC 425 at para 24
[Goudarzi]; Medel v Canada (Minister of Employment and Immigration),
[1990] 2 FC 345 (CA); Mohammed v Canada (Minister of Citizenship and
Immigration), [1997] 3 FC 299 at para 41 (TD) [Mohammed].
[22]
The Respondent submits that there is no merit to
the Applicant’s claim that he honestly and reasonably believed he was not
misrepresenting information given the vague wording of question 2(c). Question
2(c) clearly states that details are to be provided regarding whether an
applicant has been “refused any kind of visa,
admission, or been ordered to leave Canada or any other country.” It is
clear on any reasonable interpretation of question 2(c) that it required the
Applicant to disclose that he had been ordered to leave the United States. The level of detail required may be up for debate but there is no doubt that the
Applicant was required to reference the failed refugee claim and removal.
Whether the Applicant’s failure to provide full disclosure was intentional, it
was not reasonable and does not justify an exception to the duty of an
applicant to not withhold any material facts.
[23]
The Officer’s finding that the Applicant’s
misrepresentation was material is reasonable. Whether a temporary resident will
leave is a factor for consideration and a prior failure to leave is relevant to
that assessment. The Respondent submits that the Treaty is irrelevant as to whether
or not Citizenship and Immigration Canada has the ability to catch the
misrepresentation; the question is whether the misrepresentation induced or
could have induced such an error: Goburdhun, above, at para 43.
[24]
The Respondent submits that the Officer
satisfied the duty of procedural fairness. The Officer sent the Applicant a
letter providing him the opportunity to respond to the Officer’s concern
regarding the misrepresentation. The Applicant’s response was considered by the
Officer and this satisfied the duty of procedural fairness.
[25]
The Respondent submits that an applicant has the
duty to request reasons from a tribunal before seeking judicial review on the
grounds of failure to provide reasons: Liang v Canada (Minister of
Citizenship and Immigration), [1999] FCJ no 1301 at para 31 (TD); Marine
Atlantic Inc v Canadian Merchant Service Guild (2000), 258 NR 112 (FCA).
There is no evidence that the Applicant sought further reasons and so this
ground of review is unavailable to him: Hayama v Canada (Minister of
Citizenship and Immigration), 2003 FC 1305 at para 15; Singh v Canada
(Minister of Citizenship and Immigration), 2006 FC 315 at para 23.
[26]
In the alternative, the Respondent submits that
adequate reasons were provided. Adequate reasons “allow
the individual to understand why the decision was made and allow the reviewing
court to assess the validity of the decision”: Sidhu, above, at
para 20, quoting Canada (Minister of Citizenship and Immigration) v
Jeizan, 2010 FC 323 at para 17; see also Newfoundland Nurses, above,
at para 16. The GCMS notes form part of the Officer’s reasons and clearly
articulate the reason that the non-disclosure was found to be a material
misrepresentation: De Hoedt Daniel v Canada (Citizenship and Immigration),
2012 FC 1391 at para 51 [De Hoedt Daniel].
C.
Applicant’s Reply
[27]
In reply, the Applicant says that there is no
requirement that he request further reasons from the Officer. The Officer had
the opportunity to provide adequate reasons in the documentation that she
submitted to the Applicant. Further, the Court has examined the adequacy of
visa officers’ reasons without requiring that an applicant request additional
explanations: see Ahmed v Canada (Citizenship and Immigration), 2013 FC
1083.
D.
Applicant’s Further Submissions
[28]
The Applicant further submits that the purpose
of Carol McKinney’s affidavit in these proceedings is unclear. The affidavit
offers no insight into the Respondent’s determination that the Applicant
misrepresented material information. It also offers no or little explanation
regarding the Respondent’s error in determining that the Applicant answered
“no” to question 2(b). Ms. McKinney concedes that another officer incorrectly
noted that the Applicant answered “no” to question 2(b). However, Ms. McKinney
does not indicate whether or not she relied on the error in reaching her
decision.
[29]
If the affidavit is submitted to suggest that no
consideration should be given to the error because the final decision was made
by Ms. McKinney, the Applicant complains that the Respondent is asking the
Court to disregard an officer’s error while upholding the Respondent’s decision
regarding the Applicant’s error.
E.
Respondent’s Further Submissions
[30]
The Respondent further submits that the purpose
of the affidavit is to show that the error was made by an assistant, not the
Officer. There is no indication in the Officer’s notes that she misunderstood
the Applicant’s answer. The error was not made by the decision-maker and is
immaterial to the Officer’s determination regarding the Applicant’s
misrepresentation: Mansoori v Canada (Minister of Citizenship and
Immigration), 2003 FCT 559 at para 6.
VIII.
ANALYSIS
[31]
From the Applicant’s perspective, this looks
like a very harsh and unreasonable Decision, and Applicant’s counsel did a very
good job of explaining why at the hearing before me. I have no reason to think
that the Applicant was in any way dishonest. As counsel put it, he just did not
think that something that occurred in the United States over nineteen years ago
was relevant to his visa application, given the intervening connection he has established
with Canada.
[32]
But the Decision is not really about
culpability. It is about the integrity of the visa process and what is required
to maintain that integrity. To put it bluntly, it is not for the Applicant, or
any other visa applicant, to decide what is relevant. Applicants are required
to make full disclosure and it is the role of the officer who examines the
application to decide what is relevant and what weight to give to any
particular fact that is disclosed. The system simply could not work if
applicants, no matter how honest, were allowed to decide what is relevant for
their application. If full disclosure is made, and an applicant believes that a
visa has been unreasonably denied, then there is recourse before this Court.
But the problem with misrepresentations is that they do not allow decisions to
be made on the full facts by officers who have been fixed by Parliament with
the power to make those decisions. That is precisely the problem in this application.
[33]
It is clear there was a misrepresentation in
this case. The Applicant failed to disclose in his application that he had
overstayed in the United States following his failed refugee application and
had been removed back to India. The Applicant knew this had occurred, but he
chose not to reveal it, notwithstanding the clear instructions on the form he
completed that he had to disclose it, and notwithstanding his sworn statement
that he had truthfully completed the form. This meant that the Applicant had
decided that the United States information should not be a factor for
consideration in his visa application. If this was acceptable, the system would
fail because applicants would not disclose what they thought should not be
considered, and this would seriously undermine the decision-making powers that
Parliament has vested in visa officers. This is why s. 40 exists and why the
jurisprudence is clear that a misrepresentation – even if honest – can only be
excused in truly exceptional circumstances.
[34]
I am satisfied from Ms. McKinney’s affidavit,
and the record generally, that the GCMS entry of Ms. Kaur dated May 1, 2014 was
an error, but it played no role in Ms. McKinney’s Decision to refuse the visa
application. Ms. McKinney’s Decision, as the GCMS notes, the fairness letter
and the refusal letter of May 16, 2014 make clear, was based solely upon the Applicant’s
failure to disclose, in 2(c) on the form, his previous failed refugee claim in
the United States and his removal to India. The refusal letter and the GCMS
notes make clear that the Officer concluded that this omission was material and
rendered the Applicant inadmissible under s. 40(1) of the Act because it could
have induced an error in the administration of the Act in that it could have
impacted an assessment of the true purpose for the Applicant’s coming to Canada
and whether he was a genuine temporary visitor. It also denied the Officer the
chance to examine any other inadmissibilities he may have acquired while in the
United States.
[35]
The Applicant points to the lapse of time (nineteen
years) since he was removed from the United States and the number of times he
has entered and left Canada in the interim. But this misses the point. It is
not whether the visa would have been refused had full disclosure been made. The
point is that it could have induced an error because it could have impacted the
Officer’s Decision on whether the Applicant would leave at the end of the visa
period, and it could have induced an error if there were other
inadmissibilities. I have no reason to think that the Applicant is other than
an entirely honest man who made a genuine mistake. But this does not mean that
the failure to disclose could not have induced an error. The Applicant clearly
had knowledge of the failed refugee claim and his removal from the United States, so he cannot be said to fall within the narrow range of exceptions where
applicants are truly subjectively unaware of what the form requires them to
disclose. See Mohammed, above.
[36]
The Applicant has raised several points as to
why the Decision should be regarded as unreasonable and returned for
reconsideration. None of them are persuasive, notwithstanding counsel’s able
arguments before me.
A.
Failure to Understand
[37]
The Applicant says he did not intentionally
conceal his failed refugee claim and his removal from the United States, and that he did not believe that it was required to be disclosed in question 2(c) of
the form. Given the clear and specific questions and instructions on the form (“Have you ever been refused any kind of visa,
admission, or been ordered to leave Canada or any other country?”
[emphasis added] and if yes, then “please
provide details”) it is not possible to accept this point. The
Applicant’s failure to understand clear wording cannot be used to avoid the
consequences of misrepresentation. There is no reason why the Applicant should
not have understood these clear instructions. The Applicant certainly
understood sufficiently to indicate that he had been refused a visa application
in Canada.
B.
Innocent Misrepresentation
[38]
The Applicant was aware of what had happened in
the United States, and the wording on the form is clear that this had to be
disclosed. Yet the Applicant decided not to disclose it, even though he swore
a declaration that “the information contained on this
document is complete, accurate and factual.” This does not look particularly
innocent, but there is no evidence to establish dishonesty. However, this does not
matter. Innocent misrepresentation is only excluded from s. 40 of the Act in
exceptional cases. The Applicant relies upon Justice Mactavish’s decision in Dhatt,
above, but in that case, Justice Mactavish decided that there had been no
misrepresentation.
[39]
Justice MacKay in Mohammed, above,
explained how narrow the exception is:
[41] The present circumstances may also
be distinguished from those in Medel on the basis that the information
which the applicant failed to disclose was not information regarding which he
was truly subjectively unaware. The applicant in the present case was not
unaware that he was married. Nor was it information, as in Medel, the
knowledge of which was beyond his control. This was not information which had
been concealed from him or about which he had been misled by Embassy officials.
The applicant's alleged ignorance regarding the requirement to report such a
material change in his marital status and his inability to communicate this
information to an immigration officer upon arrival does not, in my opinion,
constitute "subjective unawareness" of the material information as
contemplated in Medel.
[40]
In the present case, the Applicant has not
denied that he was fully aware of his failed refugee claim in the United States and his removal to India. This was information of which he was subjectively aware and
it was entirely within his control.
[41]
Justice Tremblay-Lamer provided the following
guidance on point in Goudarzi, above:
[33] I find that the decision in Osisanwo
is not of assistance to the applicants in this case. That decision was
dependent on a highly unusual set of facts, and cannot be relied upon for the
general proposition that a misrepresentation must always require subjective
knowledge. Rather, the general rule is that a misrepresentation can occur
without the applicant's knowledge, as noted by Justice Russell in Jiang,
above, at paragraph 35:
[35] With respect to
inadmissibility based on misrepresentation, this Court has already given
section 40 a broad and robust interpretation. In Khan, above, Justice
O'Keefe held that the wording of the Act must be respected and section 40
should be given the broad interpretation that its wording demands. He went on
to hold that section 40 applies where an applicant adopts a misrepresentation
but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40
applies to an applicant where the misrepresentation was made by another party
to the application and the applicant had no knowledge of it. The Court
stated that an initial reading of section 40 would not support this
interpretation but that the section should be interpreted in this manner to
prevent an absurd result. (Emphasis added.)
A few cases have carved out a narrow
exception to this rule, but this will only apply for truly exceptional
circumstances, where the applicant honestly and reasonably believed
they were not misrepresenting a material fact.
[34] In Osisanwo, Justice Hughes
cites the decision of Justice Harrington in Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 378. In that case, the
applicant was found inadmissible for misrepresentation because he had failed to
disclose the existence of a child that the Board found he reasonably should
have suspected was his own. (Notably, like the applicants in the case before
me, this applicant was found to not be credible.) Justice Harrington considered
certifying a question similar to that in Osisanwo, above, but concluded
that the decision was unreasonable on other grounds.
[35] The passage of Singh
referred to by Justice Hughes contains an oft-cited portion of Justice
O'Reilly's judgment in Baro v Canada (Minister of Citizenship and
Immigration), 2007 FC 1299:
[15] Under s. 40(1)(a) of IRPA, a
person is inadmissible to Canada if he or she "withholds material facts
relating to a relevant matter that induces or could induce an error in the
administration" of the Act. In general terms, an applicant for permanent
residence has a "duty of candour" which requires disclosure of
material facts. This duty extends to variations in his or her personal
circumstances, including a change of marital status: Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299 (F.C.T.D.) (QL).
Even an innocent failure to provide material information can result in a
finding of inadmissibility; for example, an applicant who fails to include all
of her children in her application may be inadmissible: Bickin v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.1495 (F.C.T.D.)
(QL). An exception arises where applicants can show that they honestly and
reasonably believed that they were not withholding material information: Medel
v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 345,
[1990] F.C.J. No. 318 (F.C.A.) (QL). (Emphasis added.)
[36] Despite being frequently cited,
the "exception" referred to in this passage has received limited
application. Its originating case, Medel, above, involved an unusual set
of facts: the applicant was being sponsored by her husband, but unbeknownst to
her the husband withdrew his sponsorship. Canadian officials then misled the
applicant by asking her to return the visa because they claimed it contained an
error. They implied it would be returned to her, corrected. The applicant had
English-speaking relatives inspect the visa and, after they assured her that
nothing was wrong with it, she used it to enter Canada. The Immigration Appeal
Board found her to be a person described in section 27(1)(e) of the former Immigration
Act, 1976, SC 1976-77, c 52 [now RSC 1985, c I-2)], i.e. that she had been
"granted landing... by reason of any fraudulent or improper means".
This finding was set aside by the Federal Court of Appeal because the applicant
had "reasonably believed" that she was not withholding information
relevant to her admission.
[37] When considered within its factual
context, therefore, the exception in Medel is relatively narrow. As
Justice MacKay noted while distinguishing the case before him in Mohammed v Canada (Minister of Citizenship & Immigration), [1997] 3 FC 299:
[41] The present circumstances
may also be distinguished from those in Medel on the basis that the information
which the applicant failed to disclose was not information regarding which he
was truly subjectively unaware. The applicant in the present case was not
unaware that he was married. Nor was it information, as in Medel, the
knowledge of which was beyond his control. This was not information which
had been concealed from him or about which he had been misled by Embassy
officials. The applicant's alleged ignorance regarding the requirement to
report such a material change in his marital status and his inability to
communicate this information to an immigration officer upon arrival does not,
in my opinion, constitute "subjective unawareness" of the material
information as contemplated in Medel. (Emphasis added)
Furthermore, I emphasize that a determinative
factor in the Medel case was that the applicant had reasonably
believed that she was not withholding information from Canadian
authorities. In contrast, in the case before this Court the applicants did not
act reasonably -- the principal applicant failed to review her application to
ensure its accuracy.
[38] It must be kept in mind that
foreign nationals seeking to enter Canada have a duty of candour: Bodine v Canada (Minister of Citizenship and Immigration), 2008 FC 848, at paragraph 41; Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at paragraph 15. Section
16(1) of the Act reads that "[a] person who makes an application must
answer truthfully all questions put to them for the purpose of the examination
and must produce a visa and all relevant evidence and documents that the
officer reasonably requires."
[39] As noted in Bodine (at
paragraph 44):
...The purpose of section 40(1)(a) of
the Act is to ensure that applicants provide complete, honest and truthful
information in every manner when applying for entry into Canada (see De
Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436
(F.C.T.D.), Khan v. Canada (Minister of Citizenship and Immigration),
2008 FC 512 (F.C.T.D.), Wang v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1059 (F.C.T.D.), aff'd on other grounds, 2006 FCA 345
(F.C.A.)). In some situations, even silence can be a misrepresentation (see Mohammed
v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299) and
the present facts went well beyond mere silence.
[40] In keeping with this duty of
candour, there is, in my opinion, a duty for an applicant to make sure that
when making an application, the documents are complete and accurate. It is too
easy to later claim innocence and blame a third party when, as in the present
case, the application form clearly stated that language results were to
be attached, and the form was signed by the applicants. It is only in
exceptional cases where an applicant can demonstrate that they honestly and reasonably
believed that they were not withholding material information, where "the
knowledge of which was beyond their control", that an applicant may be
able to take advantage of an exception to the application of section 40(1)(a).
This is not such a case.
[Emphasis in original]
[42]
In the present situation, and given the clear
questions and instructions on the form, it was not reasonable for the Applicant
to believe that he was not misrepresenting a material fact when he decided to
omit information about his refugee claim and removal from the United States, information of which he was fully aware. He does not fall within the narrow exception
to the general rule.
C.
Materiality
[43]
The Applicant says that, if a misrepresentation
did occur, it was not material to his visa application.
[44]
The meaning of materiality in this context was
set out in Goburdhun, above:
[37] As noted above, in determining
whether a misrepresentation is material, regard must be had for the wording of
the provision and its underlying purpose. To be material, a misrepresentation
need not be decisive or determinative. It will be material if it is important
enough to affect the process. The wording of section 40 confirms that a
misrepresentation does not actually have to induce an error, it is enough that
it could do so (IRPA, subsection 40(1)(a); Oloumi, above, at paras 22
and 25; Haque, above, at para 11; Mai v Canada (Minister of Public
Safety and Emergency Preparedness), 2011 FC 101 at para 18; Nazim v
Canada (Minister of Citizenship and Immigration), 2009 FC 471)).
[38] In Haque, above, the
applicant failed to disclose that he had formerly lived and studied in the United States and omitted or misrepresented details with respect to his place of residence,
education and employment history. The deciding officer discovered the omission
upon a review of CIC’s records. This Court held that the withheld information
was material to the application as, without it, a visa could have been issued
to the applicant without the required police and conduct certificates from the United States, thereby precluding a necessary investigation and inducing an error in the
administration of the IRPA.
[39] In Oloumi, above, a
fraudulent English test was submitted as part of an application for permanent
residence in the Federal Skilled Worker class. This Court held that the
misrepresented fact was material because federal skilled workers must
demonstrate language proficiency to be accepted. The false document could have
induced an error in the administration of the IRPA because it could have been
relied upon by a decision-maker to conclude that the applicant had demonstrated
language proficiency.
[45]
The materiality of the misrepresentation in the
present case is explained by the Officer in the GCMS notes (Certified Tribunal
Record at 2-3):
… Had the Officer know [sic] that Mr.
Singh saw himself in need of protection and had previously failed to observe
the immiration [sic] laws of the USA indeed he would have been refused.
By not providing truthful information as to background information the
applicant withheld a material fact related to a relevant matter that could have
induced an error in the administration of the IRPA. … Specifically: - the
applicant is applying for a visa to Canada. By not providing truthful
information regarding applicant’s background the officer is unable to assess
the true purpose of travel and whether or not the applicant is a genuine
temporary visitor who would leave Canada before the end of the period
authorized for the stay. In addition by failing to disclose his long stay in
the USA he denied the officer a chance to examine any other inadmissibilities
he may have acquired while in the United States. The applicant is inadmissible
under A40(1) of the IRPA. Refused on bonafides [sic] and for
misrepresentation.
[46]
Even though the United States removal occurred
over nineteen years ago and the Applicant had travelled to Canada and returned to India since that time, it cannot be said that there is anything unreasonable
with these reasons. The misrepresentation was clearly material to the decision
that had to be made.
[47]
The Applicant notes the following in written
argument:
44. The Applicant notes further that the
Government of Canada and the United States of America signed an immigration information
sharing treaty on December 13, 2012. In its Backgrounder regarding the said
treaty, the Government of Canada provides the following comments:
When a third-country national applies
to Canada for a visa or a permit, or claims asylum, Canada will send an
automated request for data to the United States. The request will contain
limited information, such as name and date of birth in the case of biographic
sharing, or an anonymous fingerprint in the case of biometric sharing. If the
identify matches that on a previous application, immigration information may be
shared, such as whether the person has previously been refused a visa or
removed from the other country.
45. The visa officer determined that
the Applicant had misrepresented a material fact that induced or could have
induced errors in the administration of the Act by failing to provide
details of the Applicant’s failed refugee claim in the USA. We submit that, given the Information Sharing Treaty in which Canada sends an automated request
for data to the USA, a misrepresentation by the Applicant with respect to his
failed refugee claim in the USA could not induce an error in the administration
of the Act. The information sharing arrangement specifically safeguards
against such errors in the administration of the Act.
[Footnotes
omitted]
[48]
Justice Strickland has already dealt with this
argument in Goburdhun, above:
[43] I also cannot accept the
Applicant’s submission made when appearing before me that, because CIC has
access to the whole of his immigration history, an incorrect answer in his
application is not material. His submission was that the incorrect answer did
not affect the process because it was caught by CIC before a decision was
rendered. This reasoning is contrary to the object, intent and provisions of
the IRPA which require applicants for temporary residency visas to answer all
questions truthfully. The penalty for failing to do so is that an applicant
may be found to be inadmissible to Canada if the misrepresentation induces or
could induce an error in the administration of the Act. It matters not that
CIC may have the ability to catch, or catches, the misrepresentation. What
matters is whether the misrepresentation induced or could have induced such an
error. Accordingly, applicants who take the risk of making a misrepresentation
in their application in the hope that they will not be caught but, if they are,
that they can escape penalty on the premise of materiality, do so at their
peril.
D.
Procedural Fairness
[49]
The Applicant also argues that the Officer
breached the rules of procedural fairness in determining that the Applicant had
misrepresented a material fact. What the Applicant appears to mean by this
assertion is that, given his circumstances, the Decision is unreasonable. This
is not a procedural fairness issue and there is nothing in the evidence before
me to suggest anything approaching material unfairness.
E.
Inadequate Reasons
[50]
The Applicant says that the reasons are
inadequate. However, when the Decision is read in conjunction with the GCMS
notes, there is a clear and precise assessment of the facts and the issues, and
a clear line of reasoning for the misrepresentation finding. The Applicant says
that it is not fully explained why the “misrepresentation
or withholding of this material fact induced or could have induced errors in
the administration of the Act by creating the incorrect impression that you
were a bonafide [sic] visitor to Canada.” I think the GCMS notes make
the meaning of this phrase in the Decision very clear. The information
concerning the Applicant’s removal from the United States, and the Officer’s
inability to examine other inadmissibilities that the Applicant may have
acquired in the United States, could lead to an error as to whether the
Applicant will leave Canada at the end of the visa period.
[51]
The test for the adequacy of reasons was set out
by Justice Shore in Sidhu, above:
[20] The test of adequacy of reasons
has been articulated by this Court numerous times, including recently in Canada (Minister of Citizenship and Immigration) v Jeizan, 2010 FC 323, 386
FTR 1:
[17] Reasons for decisions are
adequate when they are clear, precise and intelligible and when they state why
the decision was reached. Adequate reasons show a grasp of the issues raised by
the evidence, allow the individual to understand why the decision was made
and allow the reviewing court to assess the validity of the decision: see Lake
v. Canada (Minister of Justice), 2008 SCC 23, [2008] S.C.J. No. 23 at para.
46; Mehterian v. Canada (Minister of Employment and Immigration), [1992]
F.C.J. No. 545 (F.C.A.); VIA Rail Canada Inc. v. National Transportation
Agency, [2001] 2 F.C. 25 (F.C.A.), [2001] 2 F.C. 25 (C.A.), at para. 22; Arastu,
above, at paras. 35-36. [Emphasis added.]
[21] While there is no question that an
officer's reasons can be brief, they must serve the functions for which the
duty to provide them is imposed – they must inform the Applicant of the
underlying rationale for the decision (VIA Rail Canada Inc v National
Transportation Agency, [2001] 2 FC 25 at para 21-22 (CA)).
[Emphasis in original]
[52]
The GCMS notes are part of the reasons (see De
Hoedt Daniel, above, at para 51) and the quotation from the notes cited
above clearly explains why the non-disclosure was found to be a material
misrepresentation.
IX.
Conclusion
[53]
All in all, I cannot see any grounds for
reviewable error in this Decision. The Applicant sees the result as harsh and,
in all the circumstances, unreasonable, and it may be that another officer
might have overlooked the misrepresentation. But that does not mean that this
Officer was unreasonable, particularly when the needs of the visa system are
taken into account and the requirement of full and accurate disclosure is
understood.