Docket: IMM-6591-13
Citation:
2015 FC 625
Vancouver, British Columbia, May 12, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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NITHARSHANA THAVARASA
AND RAVINATH RATNASINGAM
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicants, Ms Nitharshana Thavarasa, and
her husband, Mr Ravinath Ratnasingam, seek to overturn a ruling of the
Immigration Appeal Division (IAD). Ms Thavarasa, a Canadian citizen, wished to
sponsor her husband, a citizen of Sri Lanka, for permanent residence in Canada. The couple married in 2008.
[2]
The IAD upheld a visa officer’s decision denying
Mr Ratnasingam’s permanent residence application. It also denied the applicants
humanitarian and compassionate relief (H&C).
[3]
The applicants contend that the IAD unreasonably
concluded that Mr Ratnasingam had made a material misrepresentation in his
application that should attract a statutory two-year period of inadmissibility
to Canada pursuant to ss 40(1)(a) and 40(2)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] (statutory references are
set out in an Annex). The applicants also assert that the IAD unreasonably
denied their request for H&C relief. They ask me to quash the IAD’s
decision and order a new hearing before a different panel.
[4]
I can find no grounds for overturning the IAD’s
decision. The IAD reasonably found that Mr Ratnasingam had made a material
misrepresentation that attracted a two-year period of inadmissibility under IRPA.
Further, the panel weighed the relevant evidence and arrived at a reasonable
conclusion that the applicants did not merit H&C relief. Therefore, I must
dismiss this application for judicial review.
[5]
There are two issues:
1.
Did the IAD err by imposing a two-year period of
inadmissibility?
2.
Was the IAD’s assessment of H&C factors
unreasonable?
II.
The IAD’s Decision
[6]
In his application, Mr Ratnasingam failed to
disclose his travels between 2000 and 2008 to France, St Martin, and Guadeloupe, and the time he spent in custody in the latter two countries. Nor did he
mention that he made the trip from France to St Martin on a false Canadian
passport.
[7]
During his interview with a visa officer at the
Canadian High Commission in Colombo, Mr Ratnasingam originally denied having
made those trips but, when confronted with evidence to the contrary, he
admitted the truth. The officer found that Mr Ratnasingam had withheld or
misrepresented material facts that could have induced errors in the
administration of IRPA.
[8]
The IAD upheld the officer’s decision, finding
that Mr Ratnasingam’s misrepresentations had prevented the officer from fully
assessing his application, including matters relating to criminality and
security, and the genuineness of his marriage to Ms Thavarasa. Therefore, in
the IAD’s view, the misrepresentations were material. In addition, while Ms
Thavarasa was originally unaware of her husband’s travel history, she did not
seek to correct his application once she did find out about it.
[9]
Given this misrepresentation, the IAD found that
a higher threshold would have to be met in order to merit H&C relief.
Further, it concluded that the applicants lacked remorse for their actions. On
the other hand, in their favour, the couple appeared to be close and genuinely
cared for one another. However, on balance, the IAD found that the applicants
were not entitled to H&C relief.
[10]
At the hearing before the IAD, counsel for the
Minister asserted that Ms Thavarasa could re-sponsor her husband right away,
since the two-year period of inadmissibility expired two years after the
officer’s decision in November 2010. The hearing before the IAD took place in
April 2013.
[11]
However, the IAD disagreed with the Minister’s
submission on that point and concluded that the two-year period of
inadmissibility ran, not from the date of the officer’s ruling, but from the
date of the IAD’s decision (September 19, 2013).
III.
Issue One – Did the IAD err by imposing a
two-year period of inadmissibility?
[12]
The applicants argue that the IAD unreasonably
imposed a period of two years’ inadmissibility on Mr Ratnasingam based on
misrepresentation, commencing on the date of its decision. They say that the
two-year time-frame should run from the date of the officer’s decision.
Further, the applicants contend that the IAD treated them unfairly by imposing
the two-year inadmissibility period without notice to them. Indeed, at the
hearing before the IAD, counsel for the Minister submitted that the two-year
period should run from the date of the officer’s decision, not the IAD’s. The
applicants contend that they did not have a chance to argue against the
position ultimately adopted by the IAD.
[13]
I disagree. The applicants had an opportunity to
present to the IAD their own interpretation of when the two-year period of
inadmissibility should commence. Therefore, they were not treated unfairly.
Further, the IAD’s decision accords with the language of s 40(2)(a) of
IRPA.
[14]
Paragraph 40(2)(a) of IRPA provides that,
in respect of a decision made outside Canada, a foreign national is
inadmissible to Canada for misrepresentation for a period of two years
following a final determination of inadmissibility. In my view, in
circumstances such as these, a final determination of inadmissibility is a
decision made by the IAD, not a visa officer. Therefore, the period of
inadmissibility runs from the date of the IAD’s decision, not the officer’s.
[15]
Further, I cannot see any unfairness in the
IAD’s approach. True, the applicants were unaware of the interpretation that
the IAD would ultimately give to s 40(2)(a) of IRPA. However, they were
aware that this was a live issue and had ample opportunity to make submissions
on the point. While counsel for the Minister made submissions to the IAD
supporting the applicants’ interpretation of IRPA, there was no guarantee that
the IAD would accept those submissions. The applicants did not request an
adjournment or an opportunity to make further submissions on the point.
IV.
Issue Two – Was the IAD’s assessment of H&C
factors unreasonable?
[16]
The applicants argue that the IAD improperly
discounted factors in their favour, and unreasonably found that they were not
remorseful for their lack of candour.
[17]
I disagree.
[18]
The IAD took the applicants’ misrepresentation
into account when evaluating the personal impact that denying their application
would have on them. It found that the circumstances, in effect, increased the
burden on the applicants to present evidence that would justify granting
H&C relief. In addition, the IAD found that the applicants lacked remorse
for their failure to be candid because they did not reveal their
misrepresentations until confronted with contrary evidence.
[19]
In my view, these findings were reasonable on
the evidence.
[20]
It is natural that an applicant would have to
meet a higher threshold on an H&C application in a case where there has been
misrepresentation than in a case where there has not. In effect, the IAD was
simply noting that there was a serious factor negating H&C relief that
would have to be off-set by equal or greater positive factors (see Qureshi v
Canada (Minister of Citizenship and Immigration), 2012 FC 238 at paras
19-21). I see no error in that approach.
[21]
The applicants also contend that the IAD erred
by discounting positive factors in their favour on the basis that there was a serious
negative factor, misrepresentation, against them. This is similar, they say, to
cases where an applicant’s establishment in Canada was improperly discounted
because it was achieved through misrepresentation (Jiang v Canada (Minister
of Public Safety and Emergency Preparedness), 2013 FC 413; Lin v Canada
(Minister of Citizenship and Immigration), IMM-8219-12).
[22]
I disagree. Here, as I see it, the IAD did not
discredit the positive factors supporting the applicants’ request for H&C
relief simply because there had been misrepresentation. Rather, it weighed the
positive and negative circumstances and arrived at an overall assessment of
H&C factors. It did not diminish the value of positive aspects of the
applicants’ circumstances simply because of misrepresentation.
[23]
Further, the IAD reasonably found that the
applicants lacked remorse. Mr Ratnasingam admitted to misrepresentation only
after he was confronted by the officer with contradictory evidence. Similarly,
Ms Thavarasa stated that she decided to wait to see if the false information in
her husband’s application was going to be a problem. In my view, this evidence
supported the IAD’s conclusion that the applicants were not remorseful about
their misrepresentations.
V.
Conclusion and Disposition
[24]
In my view, the IAD properly concluded that Mr
Ratnasingam was subject to a two-year period of inadmissibility, beginning on
the date it rendered its decision. Further, the IAD weighed the relevant factors
and evidence in concluding that H&C relief was not appropriate in the
circumstances. Therefore, I must dismiss this application for judicial review.
Neither party proposed a question of general importance for me to certify, and
none is stated.
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