Date: 20090304
Docket: IMM-3714-08
Citation: 2009 FC 238
Ottawa, Ontario, March 4, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
BAKHSHISH SINGH NATT,
HARBHAJAN KAUR and SATNAM SINGH
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by a visa officer dated
July 11, 2008, refusing the applicants’ application for permanent residence on
the grounds that the adult male applicant, Mr. Bakhshish Singh Natt,
(hereinafter referred to as the applicant) misrepresented information in his
medical examination.
FACTS
[2]
The
applicants, Mr. Natt, his wife Mrs. Harbhajan Kaur, and their son Satnam Singh,
are citizens of India. Mr. Natt and Mrs. Kaur have a daughter, Mrs. Inderjit
Rai, who is a Canadian citizen.
[3]
Mrs.
Rai had previously applied to sponsor the applicants for permanent residence as
members of the family class. That application was rejected in 2003 because the
sponsor did not meet the “low-income cut-off”. Mr. Natt had medical
examinations, including chest x-rays in 2001 and 2002 in support of this
application. These x-rays showed abnormalities in the lungs, but Mr. Natt was still
found medically admissible.
[4]
Mrs.
Rai later met the income cut-off and re-applied to sponsor the applicants in
2003. The sponsorship was approved in 2006, and the application was referred
to the Canadian visa post in New Delhi for processing. Mr.
Natt states he once again completed medical examinations at the office of a
Designated Medical Practitioner (DMP), including two x-ray examinations in July
and August of 2006. The results of these tests were sent directly to the visa
post and were not provided to the applicants. The results indicated “no
abnormalities” in the lungs, which was inconsistent with the 2001 and 2002
x-rays.
[5]
The
medical officer reviewed Mr. Natt’s x-rays from 2001 and 2002 and his July and
August 2006 x-rays and concluded that they were not of the same individual.
The immigration officer suspected that Mr. Natt had someone else take his
x-rays for him. Mr. Natt received a written request from the visa post to meet
with the medical officer, and did so on September 6, 2006. The officer showed the
two x-rays and told him these were from his previous and current examinations
and that they did not match. Mr. Natt denied falsifying his x-rays. The
respondent states that the applicant was then sent to take a final, unscheduled
x-ray after the meeting. This final x-ray revealed that the applicant had
abnormal lung fields, evidence of tubercular lesions, and evidence of
fibraosis/fibrocalcification. However, these abnormalities again did not
render the applicant medically inadmissible under IRPA.
[6]
On
October 24, 2006, the applicant was sent a “fairness letter” informing
him that the visa post was of the opinion that he had provided false
information in his medical examination and inviting the applicant to respond
within 60 days. The letter accused the applicant of misrepresentations and therefore
being inadmissible to Canada.
[7]
Applicant’s
counsel sent a letter to the visa post on November 8, 2006, asking for
the chest x-rays, medical reports and correspondence between the visa office
and the applicants in order to respond to the allegation of misrepresentation.
The designated visa officer responded over 1 year later on December
21, 2007, refusing to provide the records directly and informing the
applicant’s counsel that the records would have to be obtained through a
separate Access to Information Act request. The applicants state that neither
they nor their sponsor were aware of this exchange of letters regarding the
request for documentation.
[8]
The
applicants state that between 2007 and 2008, they sent numerous requests for a
status update to the Canadian High Commission in India without
receiving any response.
[9]
On
July 11, 2008, the visa officer refused the applicants’ application for
permanent residence on the basis that they were inadmissible pursuant to
section 40 of the Immigration and Refugee Protection Act (IRPA), due to
misrepresentation. The visa officer stated:
…Based on the information available to
this office, I have concluded that you have misrepresented information in
respect of your medical examination.
I reached this determination based on
information received from our medical section stating that you used deceitful
methods in performing the Immigration Medical Examination at one of our
Designated Medical Practitioners. You substituted someone to do the chest
x-ray on your behalf and gave incorrect statements regarding your medical
tests. You have misrepresented information in respect of your medical
examination. The misrepresentation or withholding of information in respect of
your medical examination could have induced errors in the administration of the
Act as you would have qualified for a permanent residence visa on that basis.
As a result, you are inadmissible to Canada for a period of two years
from the date of this letter.
RELEVANT
LEGISLATION
[10]
Section
40 of IRPA provides that a foreign national is inadmissible for misrepresenting
or withholding facts that could induce an error in the administration of IRPA:
|
Misrepresentation
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;
(b) for being
or having been sponsored by a person who is determined to be inadmissible for
misrepresentation;
(c) on a
final determination to vacate a decision to allow the claim for refugee
protection by the permanent resident or the foreign national; or
(d) on
ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship
Act, in the circumstances set out in subsection 10(2) of that Act.
Application
(2) The following provisions govern subsection (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
(b) paragraph
(1)(b) does not apply unless the Minister is satisfied that the facts
of the case justify the inadmissibility.
|
Fausses déclarations
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;
b) être ou
avoir été parrainé par un répondant dont il a été statué qu’il est interdit
de territoire pour fausses déclarations;
c)
l’annulation en dernier ressort de la décision ayant accueilli la demande
d’asile;
d) la
perte de la citoyenneté au titre de l’alinéa 10(1)a) de la Loi sur
la citoyenneté dans le cas visé au paragraphe 10(2) de cette loi.
Application
(2) Les dispositions suivantes s’appliquent au paragraphe
(1) :
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;
b)
l’alinéa (1)b) ne s’applique que si le ministre est convaincu que les
faits en cause justifient l’interdiction.
|
ISSUES
[11]
While
the applicant raises three issues in this application, the Court only needs to
deal with one issue:
1.
Did the visa
officer breach the rules of natural justice and duty to act fairly by failing
to provide the medical evidence and x-rays to applicant’s counsel as requested
so that the applicant would know the case against and have a meaningful
opportunity to respond?
STANDARD OF REVIEW
[12]
Decisions
of a visa officer are entitled to a substantial degree of deference. Following
the Supreme Court’s decision in Dunsmuir v. New Brunswick [2008] S.C.J. No. 9,
2008 SCC 9, holding that the two standards of review are correctness and
reasonableness,
decisions of a visa officer relating to applications for permanent residence
under the family class involved questions of mixed fact and law and are subject
to a standard of review of reasonableness: Odicho v. Canada (MCI), 2008
FC 1039; Mukamutara v. Canada (MCI), 2008 FC 451, 161 A.C.W.S. (3D) 954.
[13]
In
reviewing the Board’s decision using a standard of reasonableness, the Court
will consider "the existence of justification, transparency and
intelligibility within the decision-making process” and “whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.” Dunsmuir at paragraph 47.
[14]
Issues
relating to natural justice and procedural fairness will be reviewed on a
correctness standard.
ANALYSIS
With respect to breach
of natural justice and duty to act fairly
[15]
The
applicant submits that the officer’s finding was unreasonable and not in accordance
with the evidence for several reasons. First, the applicant submits that he
had no opportunity to falsify the x-rays by sending another individual to take
the tests for him. When completing the x-rays, he was required to provide
identification and the medical examination form from the visa post which
attached his photograph. The Designated Medical Practitioner’s Handbook of the
respondent confirms that there are tight controls in place to identify persons
taking a medical exam. Specifically, the handbook provides that the x-ray
technician must sign the form certifying that the x-ray taken was of the person
whose photograph and signature are on the form, and must then collect the forms
and directly transmit them to the visa post.
[16]
The
applicant notes that all the medical personnel involved in the case, whose
correspondence with the visa post is included in the record, expressed surprise
that the applicant would be able to circumvent their strict security
procedures. Nonetheless, all the letters assumed that the applicant had
managed to do so, which the applicant submits is simply self-serving as these
medical personnel depend on the visa post for business and would not admit the
possibility of an error on their end. The applicant submits that it is not
logically coherent that in spite of strict security procedures, he was able to
falsify the evidence on two separate occasions. The applicant submits that
either the security controls were in place, in which case he could not possibly
have done so; or, the controls were extremely lax, in which case it is equally
possible that a technical or administrative error occurred at the medical
practitioners’ offices.
[17]
The
applicant further submits that the signed declarations of the medical
technicians in each of the two x-rays he has been accused of falsifying must be
given weight. In each case, the signed declaration states, “I certify that I
have carried out the X-ray of the person whose photograph and signature are on
this form.” The photograph and signature on each of these forms matches all
the other photos and signatures on the file. In light of this, the applicant
submits that an equally plausible explanation - that there was an error at the
medical practitioner’s office - should have been considered by the visa
officer. However, there is no indication that any investigation into such a
possibility occurred.
[18]
The
applicant also submits that he had no motive to falsify the x-ray evidence, or
to falsely state that he had not undergone any tests, because none of the
x-rays showing abnormalities or other medical evidence rendered the applicant
inadmissible.
[19]
The
Court does not need to deal with any of the points raised above. The key and
deciding issue is whether the visa officer breached the duty to act fairly in
making this decision.
[20]
The
applicant submits that his procedural fairness rights were breached because the
visa office did not provide him with the medical documentation and x-rays
requested. The visa officer informed applicant’s counsel that an access to
information request would have to be made in order for the applicant to obtain
his medical documents, including the x-rays.
[21]
The
applicant relies on a number of cases that sets out a visa applicant’s right to
see and comment on negative evidence. For example, in Muliadi v. Canada
(MEI), [1986] 2 FC 205, 66 N.R. 8, the Federal Court of Appeal held that a
visa applicant who had been refused admission under the entrepreneur class
because of a negative assessment of a business proposal should have been
informed of the negative assessment and given an opportunity to comment before
the decision was rendered. In Thamotharampillai v. Canada (MCI), 2003
FC 836, 237 F.T.R. 16, Justice Heneghan found that the failure of an
immigration officer to disclose the contents of a criminal report and give the
applicant to respond was a breach of procedural fairness.
[22]
Here,
however, the respondent submits that it did not refuse to provide the
applicants with the records, but instructed the applicants as to the procedure
to be followed under the Access to Information Act to obtain the
records. The respondent states that it cannot be held responsible if the
applicant did not follow the procedure and moreover, that there was ample time
to do.
[23]
The respondent’s “fairness letter” to the
applicant states that the applicant used deceitful methods in performing his
immigration medical examination, that he substituted someone else to do his
chest x-rays and that he gave incorrect statements regarding his medical tests.
The fairness letter states that a person is inadmissible under section 40 of IRPA
for misrepresenting material facts leading to a matter that could induce an
error in administration of the immigration law. The Court finds that this is a
very serious accusation against the applicant.
[24]
The applicant’s lawyer immediately responded to
the “fairness letter”, with a letter dated November 6, 2006 to the visa
officer requesting copies of the medical reports and x-rays so that the
applicant could properly respond.
[25]
The respondent only replied in a letter dated December 21, 2007. As the Court expressed at the
hearing, it is shocking that the respondent only replied over one year and one
month later, and then told the applicant to make an “access to information request”
to obtain these documents. That is blatantly unfair and a blatant misstatement
of the law. The delay is unfair to the applicant whose application for
permanent residence is delayed needlessly for one year and one month, and then
told to submit an “access to information request” which will compound the
delay. The respondent has a duty to act fairly which is to provide the
applicant immediately with the alleged “evidence” against him and an
opportunity to respond. This is trite law. No “access to information” request
is necessary to obtain information which the respondent relied upon in accusing
the applicant of misrepresentation.
[26]
For this reason, the Court indicated at the
hearing that this application will be allowed because the respondent has breached
the duty to act fairly towards the applicant. Moreover the respondent will be
directed to provide the applicant’s counsel, Mr. Kingwell, with the actual
chest x-rays on an immediate basis. Mr. Kingwell is an officer of the Court,
and can be trusted to keep the x-rays safe, and to return them to the
respondent. (The other medical information is already in the possession of Mr.
Kingwell as a result of this court case.)
COSTS
[27]
The applicant has requested costs. Rule 22 of
the Immigration and Refugee Protection Rules allow for the award of
costs to the parties in respect of an application for judicial review where
special reasons exist. As I indicated at the hearing, after hearing submissions
from the parties, special reasons in this case exist. The applicant should not
have had to bring a Federal Court case in order to obtain his chest x-rays and
be given a proper opportunity to respond to the misrepresentation accusations.
[28]
At the hearing, the parties decided that costs
will be according to the tariff. Upon reviewing materials, the parties agreed
that costs to the applicant according to the tariff total $2,160.00.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
- this application
for judicial review is allowed with the direction that the respondent
immediately provide to the applicants’ counsel, Mr. Daniel Kingwell, the
five chest x-rays of the applicant Mr. Natt;
- the decision of
the visa officer dated July 11, 2008 is quashed and set aside; and
- the applicants
are awarded their costs in the fixed amount of $2,160.00.
“Michael
A. Kelen”
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