Docket: IMM-4677-15
Citation:
2016 FC 589
Ottawa, Ontario, May 27, 2016
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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ATUL RAMESH
SURI AND GAURI ATUL SURI
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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.
Background
[1]
This is a judicial review, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act], of a decision by Citizenship and Immigration Canada Program
Manager [the Officer] to refuse a permanent residence visa under the Federal
Skilled Worker [FSW] class to the Principal Applicant. The decision is dated
August 20, 2015.
[2]
As per the Applicants’ request and the consent
of counsel for the Minister, their names within the style of cause have been corrected.
[3]
The Applicants are citizens of India. On
November 19, 2013, the Principal Applicant, Mr. Suri, applied for a Temporary
Resident Visa [TRV], joined with the applications of his wife [the
co-Applicant], son, and now-deceased father. These applications were
refused.
[4]
On December 24, 2013, the Applicants submitted
new TRV applications, including in them information outlining their financial
status in detail. These TRVs were granted and the Applicants travelled to
Canada in June 2014 for just under a week.
[5]
On October 30, 2014, the Primary Applicant
applied for permanent residence as a member of the FSW class under National
Occupation Code [NOC] 0711, Construction Managers. The co-Applicant was
included as an accompanying dependent.
[6]
On or around April 21, 2015, the Applicants
received a procedural fairness letter [Fairness Letter] informing them that
they may be inadmissible to Canada for misrepresentation under paragraph
40(1)(a) of the Act, which reads:
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.
[7]
The Fairness Letter stated that the Principal
Applicant’s employment history in his TRV application did not match the history
in his FSW application. In the FSW application, the Principal Applicant stated
that he had been employed by “Makkar Construction
Company” since October 2007, while both of his TRV applications stated
that he was the owner of “Suri Housing and
Construction” [SHC].
[8]
The Fairness Letter also stated that the
co-Applicant’s employment history details in the temporary and permanent visa
applications did not align. In the FSW application, the co-Applicant indicated
that she had been employed at “Creative Instruments and
Controls” since September 2008 and “Hind Motor
Work Shop” from 2004-2008; her TRV applications, by contrast, indicated
that she was employed by “Direct International
Clothing” from 2002-2007 and “Mayur
International” from 2007-2008 and was self-employed as a freelance
designer from 2012 on.
[9]
The Applicants replied to the Fairness Letter on
May 11, 2015. They explained that they did not mention SHC in their permanent
residence application since it is a joint family-run business and thus it was
not the Principal Applicant’s primary, full-time, or regular profession. The
Applicants further stated in their response that SHC was registered under the
Principal Applicant’s name as he is the eldest of his siblings but that he was not
an active member of the business. The Applicants explained that after the
Principal Applicant’s father’s death and a difference of opinion among the
family members, he no longer wished to be associated with the business and
planned to terminate it: as a result, he did not declare any connection to SHC
on his FSW application.
[10]
The Principal Applicant also stated that he did
not believe he needed to furnish complete employment details for the TRV
application and that his visa consultant suggested it was not relevant or
necessary for a short-term visa. Conversely, when he submitted the FSW
application, his previous visa consultant informed him that he should not
disclose his involvement in SHC as it was so limited.
[11]
Turning to the co-Applicant’s employment
history, the Applicants explained that she has been employed by Creative
Instruments and Controls since 2008 but that she has also worked as a freelance
designer since 2012 at a level that did not meet the part-time eligibility
criteria. As for Direct International and Mayur International, she had provided
designs to each company to supplement her income but was never on the payroll
of either. The Applicants acknowledged the mistake and stated there was never
any intent to mislead.
[12]
On August 20, 2015, the Officer rejected the FSW
application. The Officer noted that the Applicants had provided an inaccurate
account of their employment histories “based on
information provided in previous visa applications as well as [their] response
to our procedural fairness letter” and that this amounted to “misrepresentation or withholding of… material fact(s)”
(Certified Tribunal Record at 2). As a result, the Officer declared them
inadmissible to Canada under paragraph 40(1)(a) of the Act.
[13]
The Applicants argue that the Officer erred in
unreasonably concluding that they engaged in misrepresentation. They submit
that they provided extensive documentation confirming their employment history
along with a reasonable explanation for the discrepancies in their applications
and that the Officer did not give any reasons as to why these should be
ignored, dismissed, or found not credible.
[14]
The Applicants also argue that declaring one’s
employment history in a TRV application serves a different purpose than in an
FSW application. In TRV applications, applicants provide their employment
history to establish that they have ties to their home country and possess
sufficient funds for a short visit. This is why the Applicants identified SHC –
as proof of their financial security in India. In an FSW application, by
contrast, applicants provide considerably more employment detail since these
permanent resident visas are contingent, in part, on the depth and quality of
their work experience.
[15]
There was therefore no reason to focus in their
TRV applications on their allegedly long employment careers and/or the firms at
which they worked. This information was more appropriately outlined in their
FSW application. Furthermore, the Applicants contend that when they submitted
the 2014 FSW application, Mr. Suri’s position relative to – and indeed the
entire status of – SHC had changed from when the TRV applications were
submitted in 2013.
[16]
The Applicants argue, in sum, that they did not
engage in misrepresentation since they did not believe, reasonably, that they
needed to provide the same level of detail in their TRV and FSW applications.
They cite Ghasemzadeh v Canada (Citizenship and Immigration), 2010 FC
716 at para 13 for the proposition that while “an
applicant for permanent residence has a duty of candour to disclose all
material facts during the application process as well as and after a visa is
issued… an exception arises where an applicant can show reasonable belief that
he or she was not withholding material information”.
II.
Analysis
[17]
The determination of an applicant’s foreign
skilled worker application is reviewable on a reasonableness standard (Butt
v Canada (Minister of Citizenship and Immigration), 2013 FC 618 at para 13;
Kotanyan v Canada (Citizenship and Immigration), 2014 FC 507). As such,
this Court shall intervene only if the Officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47).
[18]
Preliminarily, I agree with the Applicants’
basic proposition that temporary and permanent residency applications are, in
certain aspects, fundamentally dissimilar. However, I disagree with the
Applicants when it comes to the materiality of the information they provided
for the two applications and the impact that any inconsistences might have. In
other words, while applications for different types of status engage different
considerations, it does not necessarily flow that statements made in temporary
residence applications cannot affect subsequent permanent residence
applications (or vice versa). In this case, I find the Officer’s concerns
vis-à-vis the contradictions between the Applicants’ temporary and permanent
applications to be reasonable.
[19]
A finding of inadmissibility under paragraph
40(1)(a) of the Act requires two elements: (i) a misrepresentation by the
applicant(s) which is (ii) material, such that it could have induced an error
in the administration of the Act.
[20]
In Goburdhun v Canada (Citizenship and
Immigration), 2013 FC 971 at para 28, Justice Strickland summarized the key
considerations outlined in the jurisprudence, including the fact that paragraph
40(1)(a) is to be given a broad interpretation, capturing misrepresentations
even if made by a third party such as a consultant, without the knowledge of
the applicant (see also Wang v Canada (Citizenship and Immigration),
2015 FC 647 at para 25). The only exception to this rule is narrow and applies
in the truly extraordinary circumstances where an applicant honestly and
reasonably believed that they were not misrepresenting a material fact and
knowledge of the misrepresentation was beyond the applicant’s control.
[21]
As described above, Applicants’ counsel
proceeded on the basis that this was the key question to be determined in this
review: whether his clients (who he did not represent in either of the
preceding applications) had a “reasonable belief”
that they were not withholding material information in either application. In
other words, was it reasonable for the Applicants to assume that the
inconsistent information that they provided in their various applications was
inconsequential? To answer that, one must look to the applications themselves.
[22]
In the cover letter attached to his successful
2013 TRV application, Mr. Suri, after setting out the length and purpose for
his visit to Canada (6-7 days and for “tourism only”),
stated that the following:
I would like to mention about my
profession here. I am into construction business with the name M/s Suri
Housing and Construction from last 15 Years. I have huge funds and assets worth
Rs.6 Crores in India. The details of my assets are enclosed with this letter.
I have sufficient funds to take care of my family expenses during our stay in
Canada and have no intention to stay back. I have created this business with
my hard work over the last 15 years. How can I leave my home country, my
business when I am totally settled in my country. I will not. My wife is also
working. She is Interior Designer by profession.
(Applicant’s
Record at 244 [AR])
[23]
In the course of the subsequent FSW application,
the Officer stated in the Fairness Letter that “it is
my belief that you and your spouse have deliberately tried to mislead me in a
relevant matter [work history] which could induce an error in the
administration of the [Act]” (AR at 36). On May 11, 2015, the Principal
Applicant replied as follows:
I had only mentioned about “Suri
Housing & Construction” as it is a Joint-Family run business; it is
registered under my name as I am the eldest son in the family.
However, this is not my primary, regular and
full-time profession. Considering this is only a temporary visa, I had not
furnished my complete details, as per guidance from my visa consultant. Now
that I am applying for [Permanent Residence] which is a skilled worker program,
I had furnished my primary regular and full-time profession details, i.e. I am
working with Makkar Construction Company from 2007.
(AR at 32)
[24]
Mr. Suri’s two explanations paint an
inconsistent version of his work experience. In the TRV application, he
portrays himself as a self-made business owner. Yet the FSW application, which
requires proof of Mr. Suri’s skills as a construction manager, is replete with
details about his employment history in that field. It is as if his years of
hard work building up the family business never existed. In fact, in his May
2015 letter, Mr. Suri goes out of his way to explain that he was never involved
in that family business, stating:
Further, I have not added the
experience of Suri Housing & Construction as I was never an active member
of the firm, but perhaps, had always provided outside and tactical support for
the development of the Joint-Family business – a tradition very much prevalent
in our culture.
(AR at 33)
[25]
There is a considerable difference between
saying “I have created this business with my hard work
over the last 15 years” (AR at 244) and “I was
never an active member of the firm” (AR at 33). Simply put, these two
submissions (the 2013 cover letter for the TRV application and the reply to the
2015 Fairness Letter) describe entirely different career paths – one of a
successful self-employed entrepreneur, another of a construction manager with
an extensive employment history. Similarly, the co-Applicant is described as a
self-employed consultant and designer in the 2013 (temporary) TRV application.
Then in the 2014 (permanent) FSW application, she has a completely different
profile – that of an employee. Again, this is a material rather than a trivial
difference.
[26]
The bottom line is that the Applicants provided
substantially inconsistent information to the Respondent. The applications
appear to describe two sets of considerably different and non-overlapping work
histories. It was therefore reasonable for the Officer to view this
inconsistency as a misrepresentation of material facts.
III.
Conclusion
[27]
The Officer found that the Applicants
misrepresented material facts in their FSW application by providing inconsistent
information that related to a relevant matter, all of which could have induced
an error in the administration of the Act. I find no reason to interfere with
this conclusion.
[28]
This application for judicial review is
dismissed. There are no questions for certification
or costs awarded.
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