Docket: IMM-1522-11
Citation: 2011 FC 1126
Toronto, Ontario, October 3,
2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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MODUPE ADEDOYIN OSISANWO,
CLADIUS ALABA OSISANWO AND OLAKUNLE
OLUBUSAYO OSISANWO
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant Modupe Adedoyin Osisanwo is the wife of the Applicant Cladius Alaba
Osisanwo and the mother of the Applicant Olakunle Olubusayo Osisanwo. They are all
citizens of and residents in Nigeria. Another son of Modupe,
Kolowole, is a Canadian citizen. He filed a parental sponsorship application to
admit his mother Modupe as the principal applicant, and her husband Cladius and
son Olakunle as the other applicants, for permanent residence in Canada. That
application was refused on the basis that Olakunle was inadmissible on health
grounds. That refusal is under appeal to the Immigration Appeal Division (IAD)
and is not at issue here. It is expected that if the Applicant is ultimately
successful in this application, including any appeal, that the iad will
continue with that appeal including granting any extensions as may be required.
[2]
The
application was refused at a later time, February 7, 2011, on another ground;
namely, that of misrepresentation under section 40(1) of the Immigration and
Refugee Protection Act, SC 2001, c. 27 (IRPA) by Modupe. It is this
decision that is the subject of this judicial review. For the reasons that
follow, I find that the application is allowed and a question will be
certified.
[3]
The
basis for the finding of misrepresentation can be simply stated. Modupe filed
several documents in support of her application, and that of Cladius and
Olakunle. Among them was a document entitled “Itire/Kate Local Government
Registration of Birth, No. 13944” attesting to the birth of Olakunle on 2nd
June, 2011 and that he was the child of Cladius and Modupe. The document bears
a stamp and signature of the local Registrar of births. For some unstated
reason, the officials at Citizenship and Immigration Canada were not satisfied
with this document and required DNA testing. That testing was performed and led
to the conclusion that Modupe was the mother of Olakunle, but Cladius was not
the father. Without requesting an explanation, it appears that the officer
determined that the registration of birth document was fraudulent and that
Modupe had made material misrepresentation in her application in stating that
Cladius was the father. Therefore, the application of all three was refused;
hence, this judicial review.
[4]
Modupe,
in her affidavit filed with this Court in support of this application, states
that she has been married to Cladius for 42 years. About 28 years ago, they
were separated briefly, at which time she had intimate relations with another
man one single time. She and Cladius reunited, the intimacy was disclosed, and
they got on with their lives. Modupe states in her affidavit filed with the
Court that she did not know that Cladius was not the biological father of
Olakunle. She was not cross-examined nor has the Respondent challenged this
evidence in any other way.
[5]
The
sole issue in this case is whether the Applicant Modupe made a “misrepresentation”
as contemplated by section 40(1)(a) of the Immigration and Refugee
Protection Act (IRPA), SC 2001, c. 27. That section provides:
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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;
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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;
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[6]
The
meaning of the provision was recently considered by Justice Harrington in Singh
v Canada (Minister of
Citizenship and Immigration), 2010 FC 378. In that case, the Applicant
fathered a child out of wedlock, whom he later sought to sponsor to come to Canada. It is
important to note that the Applicant in that case was not found to be credible.
I repeat a lengthy portion of Justice Harrington’s reasons at paragraphs 16 to
22:
16 Given
that the word "knowingly" does not appear in Section 40, it follows,
the submission goes, that knowledge is not a prerequisite to a finding of
misrepresenting or withholding material facts. Undoubtedly, the existence of a
child is a material fact.
17 I
do not find this comparison helpful. Section 127 is in the "General
Offences" section of IRPA. A misrepresentation could lead to imprisonment
for a term of up to five years. If the word "knowingly" had not been
employed, Parliament ran the risk of establishing an absolute liability
offence, without the need for mens rea, and might have run afoul of the constitutional
prohibition on imprisonment for absolute liability offences (see, e.g., R. v. Sault Ste-Marie,
[1978] 2 S.C.R. 1299 and R. v. Raham, 2010
ONCA 206).
18 In
this case the alleged misrepresentation was a misstatement of fact. Such
misrepresentations may be fraudulent, negligent or innocent. A leading case in
the tort context is Hedley
Byrne & Co. Ltd. v. Heller & Partners Ltd, [1964] A.C. 465,
[1963] 2 All ER 575 (H.L.).
19 The
Panel found that Mr. Singh was not credible. Even if he did not actually know
he was Shilpa's father, the circumstances, i.e. his long sexual relationship
with Shilpa's mother, while her husband was out of India, should, at the very
least, have put him on inquiry. He had a duty of candour which required him to
disclose, upon his arrival in Canada in 1993, the strong possibility that he had fathered a
child.
20 In
my opinion, the meaning of Section 40(1)(a) of IRPA was clearly explained by
Mr. Justice O'Reilly in Baro v. Canada
(Minister of Citizenship and Immigration),
2007 FC 1299, where he stated at para. 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).
[My emphasis.]
21 Mr.
Justice Russell applied the same reasoning in Boden v. Canada (Minister of Citizenship and
Immigration), 2008 FC 848.
22 The
Panel's assessment of the facts was not unreasonable and so it follows that Mr.
Singh, a permanent resident, is inadmissible for misrepresentation.
[7]
However,
Justice Harrington in Singh, supra, set aside the decision of the
Immigration Appeal Division on other grounds. Had this not been the case, he
would have certified a question.
[8]
The
essential question is whether one takes an “objective” or “subjective” view as
to whether what was done was “misleading’. Stated another way, is mens rea
an essential ingredient?
[9]
A
review of some of the earlier case law is helpful. In Hilario v Canada (Minister of
Manpower and Immigration) (1977), 18 NR 529 (FCA), the Federal Court of
Appeal considered a situation where information had been withheld. Justice
Heald for the Court said at the end of the first paragraph at page 530:
To withhold truthful, relevant and
pertinent information may very well have the effect of “misleading” just as
much as to provide, positively, incorrect information.
[10]
This
statement carries with it the implication of “withholding” and “providing”,
which is to say, mens rea is involved.
[11]
In
Mendel v Canada (Minister of Employment and Immigration) [1990] 2 FC
345, a decision of the Appeal Division, an applicant’s sponsorship had been
revoked, but she entered Canada anyway. The applicant claimed that she was
aware of certain events, but was unaware of their effect. MacGuigan J.A. for
the Court wrote at page 350:
It seems to me that the same factors,
looked at objectively, lead to the conclusion that she reasonably believed that
at the border she was withholding nothing relevant to her admission. That was,
in fact, precisely what she had been told by the Embassy, viz., that a
correction was necessary to enable her to use the visa, from which she would
have reasonably deduced that there continued to be no problem respecting her
admission.
[12]
In
Bickin v Canada (Minister of Citizenship and Immigration), [2000] F.C.J.
No. 1495, this Court dealt with a case where an Applicant failed to mention
that she had a third child, a twin of one of the children disclosed. If one
looks at footnote 2, it is seen that the Court found this failure to disclose
to be deliberate, not an innocent mistake. It was held that there had been a
deliberate misrepresentation. Again, mens rea is involved.
[13]
In
Bodine v Canada (Minister of Citizenship and Immigration), 2008
FC 848, an Applicant entered Canada by automobile in which there were a few of
her personal effects, which she declared. However, she had placed a number of
other personal effects in another vehicle that came into Canada differently.
She was held to have misrepresented the facts. Again, there is an element of mens
rea.
[14]
In
the present case, the Applicant Modupe is clearly the mother of the child. A
birth certificate attests to the father being Cladius. The uncontradicted
evidence is that Cladius accepted the child and, with Modupe, raised the child
as his own. He had no reason to believe otherwise. History is replete with
children born to and raised by a married couple, believing it to be their own.
Must an applicant seeking entry into Canada disclose every
extra-marital relationship conducted at a time where there is any possibility
that a child might have been fathered by someone other than the husband? Surely
our society has not found itself at that point.
[15]
Here,
the husband and wife believed the child to be theirs; a birth certificate
attests to that fact. There was no reasonable basis for concluding that there
was any mens rea to mislead.
[16]
I
accept that this is a decision in which a question should be certified. I will
certify a variant of the question put to Justice Harrington in Singh, supra:
Is a foreign national
inadmissible for misrepresenting a material fact if at the time of filing
his/her application for permanent residence or at the time of granting
permanent residence he/she had no knowledge of the material fact that
constituted such misrepresentation?
[17]
There
are no special reasons to award costs.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT’S JUDGMENT
is that:
1.
The
application is allowed;
2.
The
matter is sent back for redetermination by a different officer;
3.
The
following question is certified:
Is a foreign national inadmissible
for misrepresenting a material fact if at the time of filing his/her
application for permanent residence or at the time of granting permanent
residence he/she had no knowledge of the material fact that constituted such
misrepresentation?
4.
No
Order as to costs.
“Roger T. Hughes”
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