Docket: IMM-2435-15
Citation:
2016 FC 38
Vancouver, British Columbia, January 12, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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OMID SERAJ
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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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JUDGMENT AND REASONS
I.
Overview
[1]
Findings of misrepresentation must not be taken
lightly. They must be supported by compelling evidence of misrepresentation
occurred by an applicant; thereby, an applicant faces important and long
lasting consequences in addition to having his/her application rejected.
II.
Background
[2]
This is an application for judicial review by
the Applicant pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] of a decision by an immigration
officer [Officer] dated April 10, 2015, wherein the Officer rejected the
Applicant’s permanent residence application under the Federal Skilled Worker
class and held that the Applicant is inadmissible to Canada for
misrepresentation under paragraph 40(1)(a) of the IRPA.
[3]
The Applicant, Omid Seraj (age 35), is a
geophysicist and citizen of Iran.
[4]
The Applicant applied for permanent residence
status under the Federal Skilled Worker class (NOC 2113) in May 2014. In a
letter dated November 6, 2014, the Officer requested more information from
the Applicant as the Officer had concerns about the Applicant’s work experience
in geophysics [Letter of Concern]:
I have concerns that you may not have valid
work experience as a geophysicist.
- Please provide description of activities
of the Baran Artistic and Cultural Institute.
- Copy of registration record of the Baran
Artistic and Cultural Institute in the Official Gazette of Iran.
- Explanation as to why the Baran Artistic
and Cultural Institute requires a geophysicist and how your duties from 2007-present
correspond to the main responsibilities as described in your employment letter.
(Officer’s Record at p 8)
[5]
The Applicant’s representative, Mr. Mir Jamil
Azimzadeh responded to the Officer’s letter, on December 2, 2014, by
submitting supporting documents, including: a supplementary letter from the
Baran Artistic and Cultural Institute [BACI] (Applicant’s employer) dated
November 15, 2014 [Supplementary Employment Letter]; and, English
translation of BACI’s corporate documents.
[6]
On February 11, 2015, the Applicant was
convoked to an interview to be conducted on March 10, 2015. On
March 31, 2015, the Applicant was informed, in a letter undersigned by a
Deputy Program Manager that his application did not meet the requirements of
the IRPA; and, that the Applicant misrepresented or withheld material facts
which induced or could have induced errors in the administration of the IRPA.
As a result, pursuant to paragraph 40(2)(a) of the IRPA, the Applicant
is inadmissible to Canada for a period of five years from the date of the
letter.
[7]
In a subsequent letter dated April 10,
2015, the Applicant was informed of the requirements of paragraph 11(1) of the
IRPA (requirements before entering Canada); and, that he was inadmissible to
Canada because of misrepresentation.
III.
Issues
[8]
The Applicant only seeks to quash the Officer’s
determination of misrepresentation pursuant to paragraph 40(1)(a) of the
IRPA. Consequently, the only issue central to this application for judicial
review is whether the Officer erred in determining the Applicant was
inadmissible for misrepresentation.
IV.
Position of the Parties
[9]
The Applicant submits that the Officer erred in
his determination of misrepresentation. Firstly, the Officer ignored or omitted
to consider material facts demonstrating there was no misrepresentation by the
Applicant. The Officer did not find that any material fact was either present
or omitted to warrant his finding of misrepresentation. Secondly, the Officer
breached procedural fairness as the process to determine whether or not the
Applicant misrepresented was not fair. Thirdly, the Officer’s decision lacked
adequacy of reasons as the Officer did not provide sufficient analysis to allow
the Applicant to understand how and why the determination of misrepresentation
was reached by the Officer.
[10]
Conversely, the Respondent submits that it was
reasonable for the Officer to find that the Applicant did misrepresent pursuant
to paragraph 40(1)(a) of the IRPA as the Applicant provided vague
descriptions of his main duties as a geophysicist and misrepresented his duties
in the employment letter in order to be eligible. Secondly, the
misrepresentation by the Applicant was material as it was important enough to
affect the decision process. Thirdly, the Officer did not breach procedural
fairness as the Applicant was provided, before the interview with a Letter of
Concern outlining concerns related to apparent inconsistencies with regard to
his work experience and the content of the employment letter. The Applicant had
the opportunity during the interview to address those concerns.
V.
Standard of Review
[11]
The assessment by an immigration officer as to
whether an applicant committed misrepresentation is a determination of mixed
fact and law reviewable on a standard of reasonableness (Oloumi v Canada
(Minister of Citizenship and Immigration), 2012 FC 428 at para 23 [Oloumi];
Paashazadeh v Canada (Minister of Citizenship and Immigration), 2015 FC
327 at para 13).
VI.
Analysis
[12]
An applicant seeking to obtain permission to
enter into Canada must be careful that the information submitted, by him/her or
an adviser, does not directly or indirectly misrepresent or withhold material
facts that could induce an error in the administration of the IRPA. Broad
interpretation must be given to paragraph 40(1)(a) of the IRPA given the
objective of this paragraph, namely, deter misrepresentation and maintain the
integrity of the immigration process (Oloumi, above at para 23). Misrepresentation
need not be wilful or intentional (Berlin v Canada (Minister of Citizenship
and Immigration), 2011 FC 1117 at para 12); and, applicants are to be held
to account in regard to their choice of adviser and representations made by
such adviser (Chen v Canada (Minister of Citizenship and Immigration),
2005 FC 678 at para 10).
[13]
The Officer held in the decision dated
March 31, 2015 that the Applicant misrepresented for the following
reasons. Firstly, the Applicant’s employment letter dated May 5, 2014
[Employment Letter] misrepresented the duties performed by the Applicant during
his employment with the BACI. Secondly, during the interview the Applicant’s
description of his duties at the BACI was vague and did not correspond to those
stated in the Employment Letter. Thirdly, the BACI website does not indicate
that the entity for which the Applicant works, performs geophysical services
for clients; and, the Officer was not satisfied with the Applicant’s
explanation in that regard. Fourthly, the Employment Letter does not mention
that the Applicant assists in the production of films or animation.
[14]
The Officer found that the Employment Letter was
not credible as the Applicant’s duties were worded to fit the description of
the duties listed in NOC 2113 all of which is central to the determination of
misrepresentation.
[15]
This Court has held that while the use of
language in a reference letter similar to a NOC Code “is
not, per se, grounds for dismissing” a reference letter, it may
be reasonable for an officer to have doubts as to whether an applicant meets
the requirements as the officer “cannot be confident
that the applicant actually has the experience since he cannot articulate his
own experience or duties or responsibilities in his own words and in relation
to the job he actually performed” (Ansari v Canada (Minister of
Citizenship and Immigration), 2013 FC 849 at para 32).
[16]
Subsequently to receiving the Letter of Concern
from the Officer, the Applicant submitted a Supplementary Employment Letter as
well as an English translation of BACI’s corporate documents. The Supplementary
Employment Letter attests to the Applicant’s employment with BACI as a
geophysical expert and that his duties include the performance of geophysical
research. The letter also states that BACI requires experts to assist them in
the making of animation and films in the area of geology and geophysics; and,
it is in that respect that the Applicant was hired. Additionally, the English
translation of BACI’s minutes dated October 4, 2006, states the “requirements for employing specialists in […] geophysics,
architecture and environment areas […]. [W]e need to establish architectural,
geological, geophysical and environmental sections based on the requested
scientific research and visual documentation and the meeting agreed to
establish these sections unanimously” (Affidavit of Mr. Mir Jamil Azimzadeh,
June 23, 2015, at p 9).
[17]
The Officer was not satisfied, subsequent to an
interview with the Applicant, that the Applicant did in fact perform the duties
described in the Letter of Employment. Not only was he of the opinion that
there was insufficient information to that effect, he held that the Applicant
misrepresented his duties. On examination of all the evidence discussed above,
namely the Supplementary Employment Letter and the English
translation of BACI’s corporate documents, it was unreasonable for the
Officer to hold that a misrepresentation occurred. The evidence, when examined
in its entirety, brings to light, even on first blush, a different
understanding as to the very context in which the evidence as a whole appears,
in light of the duties to which the Applicant may have been assigned. To reach
a conclusion, it certainly requires further examination to understand the
context in which the Applicant fulfilled his duties, as such examination does
not appear to have been undertaken adequately by which to have reached a
reasonable conclusion.
[18]
The Officer appears to have confused
insufficiency of evidence with misrepresentation. Undoubtedly, the Officer
could have found that there is insufficient evidence to demonstrate that the
Applicant performed the tasks described in the Employment Letter; however, the
Officer could not reasonably have found that the Applicant or his adviser
misrepresented. The Applicant holds a Master degree in geophysics and
geo-electricity, as well as a Bachelor degree in physics. The Applicant
submitted uncontradicted evidence that he was hired by BACI for his expertise
in geophysics as his duties include assisting BACI in its undertakings of
animation and movies in the subjects of geophysics and geology.
[19]
Therefore, without adequate explanations, having
examined the submissions of the parties and the evidence as a whole, the Court
finds that it was unreasonable for the Officer to find that the Applicant
misrepresented himself or his duties on the basis of the evidence itself.
VII.
Conclusion
[20]
Consequently, the application for judicial
review is granted.
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