Docket: IMM-6699-13
Citation:
2014 FC 421
Ottawa, Ontario, May 5, 2014
PRESENT: The
Honourable Mr. Justice de Montigny
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BETWEEN:
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ALUTHWALA DOMINGO V.R.K. KARUNARATNA &
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R.A.D.S. SARATH KUMARA KARUNARATNE
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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
[1]
The Applicants seek judicial review of a
decision of an Immigration Counsellor (the Officer) dated September 25, 2013, whereby
the Applicants were found inadmissible for misrepresentation pursuant to
paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA). For the reasons that follow, this application for
judicial review is granted.
I.
Facts
[2]
Mr. R.A.D.S. Sarath Kumara Karunaratne and Ms Aluthwala
Domingo V.R.K. Karunaratna (the Applicants) are citizens of Sri Lanka.
[3]
They submitted an application for a temporary
resident visa (TRV) in July 2008, which was refused.
[4]
They then submitted an application for permanent
resident (PR) as members of the family class in February 2009 (although the application
form was signed on December 18, 2008). In this application, they indicated that
they have never been refused a TRV. Mr. Karunaratne also indicated that he was
a pensioner since 2003. In December 2009, they submitted a Supplementary Information form in which they indicated that Mr. Karunaratne had been working as an assistant
manager with Mahindra Construction & Engineering since March 2009.
[5]
The Applicants submitted further TRVs in
December 2009 and March 2010. Both have been refused. In the 2009 TRV, they indicated
that they had applied for Canadian visas on two previous occasions: a visitor
visa in July 2008 and a PR visa sponsored by their daughter in January 2009. They
also indicated that their July 2008 visa was refused. The March 2010
application is not on file, but as per Mr. Karunaratne’s affidavit, this was
also refused.
[6]
The Applicants filed an updated
Background/Declaration form to their February 2009 PR application on January
18, 2012. On this form, they did not indicate that they were refused TRVs in
the past and stated that Mr. Karunaratne was a pensioner since 2003, omitting
any reference to his employment with Mahindra Construction & Engineering.
[7]
On June 17, 2013, the Officer sent the Applicants
a “fairness letter” allowing them to address these
two discrepancies. In the response dated June 25, 2013, the consultant stated that
the failure to declare the July 2008 TRV was an oversight and that because of
the lengthy processing time and the fact that the consultant was not copied on
the request, the sponsor was given the impression that she should update the
Schedule A on her own in consultation with her
parents. The sponsor therefore copied the same information as on the February
2009 PR application. However, the Officer was not satisfied by that explanation
and sent a refusal letter to the Applicants on September 25, 2013.
II.
Decision under review
[8]
By letter dated September 25, 2013, the Applicants
were notified that their application for permanent residence as a member of the
family class was refused as they were found to be inadmissible pursuant to
paragraph 40(1)(a) of the IRPA. The reasons for the refusal are the
following:
a)
The Applicants indicated in their Schedule A
application form that they were never refused a visa to Canada or any other country. This is not true as records show that they were refused a visa in July
2008 and December 2009.
b)
The Applicants indicated in their Schedule A
application form that Mr. Karunaratne was a pensioner since 2003 whereas in the
December 2009 TRV he indicated that he was an Assistant Manager with Mahindra
Construction & Engineering from March 2009 to December 2009.
[9]
The Officer noted as well that the Applicants were
given an opportunity to respond but that he was not satisfied with the consultant’s
response as it did not answer his concerns.
III.
Issue
[10]
This application raises only one issue, and it
is whether or not the Officer’s finding that the Applicants’ omission of Mr.
Karunaratne’s recent work experience and refused TRV applications represent a
material misrepresentation is reasonable.
IV.
Analysis
[11]
It is well established that decisions refusing
an application for permanent residence on grounds of misrepresentations are
reviewable on the reasonableness standard: Mahmood v Canada (MCI), 2011
FC 433, at para 11; Lu v Canada (MCI), 2008 FC 625, at para 12; Sinnathamby
v Canada (MCI), 2011 FC 1421, at para 18 [Sinnathamby]; Sohrabi v
Canada (MCI), 2012 FC 501, at para 14. Such questions are clearly questions
of mixed fact and law within the officer’s specialized expertise.
[12]
Reasonableness requires the existence of
justification, transparency and intelligibility within the decision-making
process, and also calls for a decision that falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law: Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 47.
[13]
There is no doubt that the objective of section
40 is to deter misrepresentation and maintain the integrity of the immigration
process. In that spirit, it has been repeatedly held that an applicant has a
duty of candour to provide complete, honest and truthful information in every
manner when applying for entry into Canada: Bodine v Canada (MCI), 2008
FC 848, at para 41; Baro v Canada (MCI) [Baro], 2007 FC 1299, at
para 15; Goburdhun v Canada (MCI), 2013 FC 971, at para 30.
[14]
That being said, there is ample case law supporting
the view that honest and reasonable mistakes or misunderstandings can fall
outside the scope of section 40 of IRPA: see, for ex, Berlin v Canada
(MCI), 2011 FC 1117, at para 17; Koo v Canada (MCI), 2008 FC 931, at
paras 22-29; Baro; Merion-Borrego v Canada (Public Safety and
Emergency Preparedness), 2010 FC 631; Ghasemzadeh v Canada (MCI),
2010 FC 716.
[15]
Indeed, the CIC Guidelines (ENF 2 – Evaluating
Inadmissibility) provide that the
misrepresentation provisions must be applied with “good
judgment to support the objectives of the Act and ensure fair and just
decision-making”: section 10.1.
[16]
In the case at bar, the Officer clearly had access to the
past refusals on visa applications. While the Applicants had failed to disclose
the refused July 2008 TRV in their updated Schedule A of their 2012 PR
application and in their initial 2009 PR application, they had referred to it
in their 2009 TRV application. This clearly suggests that they were not trying
to hide this information. Indeed, this information appears in the CAIPS notes
(Certified Tribunal Record, p. 6), and the Officer had access to these entries
when he sent his fairness letter to the Applicants. As a result, this is
clearly not a case where an applicant tried to conceal or misrepresent a
material fact.
[17]
In those circumstances, I do not think the
Officer could reasonably ignore or dismiss the explanation provided by the
consultant in his response to the fairness letter. It may well be that the
sponsor felt she needed to complete the updated forms requested by the
Respondent by herself and expeditiously, as the consultant had not been copied on
that request. When looking at the file as a whole, I fail to see how it can be
said that the Applicants made a material misrepresentation with respect to their failed
attempts to obtain a TRV.
[18]
As for the omission of any reference to Mr.
Karunaratne’s 2009 employment in the updated Background/Declaration form
submitted in January 2012, I do not think it is of any consequence. I agree
with the Respondent that this omission cannot be excused by suggesting, as the
Applicants did, that the updated Background/Declaration form was copied from
the 2008 form. Question 11 on the 2008 form indicated that Mr. Karunaratne had
been a “pensioner” from June 2003 to the date the
form was signed. Question 8 of the 2012 form lists the same start date, but the
answer suggests that he had been a “pensioner”
continuously up to January 2012. It appears, therefore, that the Applicants
and/or their sponsor directed their attention to this issue and specifically
updated the form to provide a current answer to this particular question. The
fact remains that the Officer had access to that information as it was
explicitly referred to in their 2009 TRV application.
[19]
Even assuming that the failure to mention Mr.
Karunaratne’s 2009 employment constitutes a misrepresentation, it is not the
end of the matter. For an inadmissibility finding to be made pursuant to
section 40 of the IRPA, there must not only be a misrepresentation, but
that misrepresentation must also have been material. In other words, the
misrepresentation must be such that it
induced or could have induced an error in the administration of this Act. The
Officer cryptically mentions in the CAIPS notes that Mr. Karunaratne’s employment history is material “because such information is used to examine the activities of
an individual in relation to possible admissibility issues. This is especially
true considering that this environment has recently emerged from a long
standing civil war.” With all
due respect, this is far from convincing.
[20]
First of
all, I note that Mr. Karunaratne’s 2009 employment was temporary in nature,
that it was not for the government or a government related undertaking, and
that it started very shortly before the end of the civil war. More importantly,
this is not a case where the file is replete with misrepresentations and where
the contradictions in the employment record only adds to the overall confusion
as to the background and history of the Applicants, as was the case in Sinnathamby,
above. I appreciate that admissibility issues are always a concern
when assessing visa or permanent residence applications. In the case at bar,
however, I fail to see how the nine month employment of Mr. Karunaratne, who is otherwise retired since 2003, could
have induced an error in the assessment of the Applicants’ application for
permanent residence as members of the family class. The Officer certainly did not provide any
explanation in that respect, and I am therefore left with no other option than
to conclude that it was unreasonable to refuse the permanent residence
application and to declare the Applicants inadmissible to Canada for a period of two years for misrepresentation.
V.
Conclusion
[21]
For the foregoing reasons, I conclude that the Officer’s finding that
the Applicants made material misrepresentations was unreasonable. As a result,
the application for judicial review is granted. The parties did not propose any
question for certification, and none will be certified.
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