Docket: IMM-6532-13
Citation:
2015 FC 327
Ottawa, Ontario, March 16, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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NEINOUSH PAASHAZADEH
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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
[1]
The applicant asks the court to quash a decision
of the Program Manager at the Canadian Embassy in Warsaw, Poland, which held
that she was inadmissible for misrepresentation pursuant to paragraph 40(1)(a)
of the Immigration and Refugee Protection Act, SC 2001, c 27. For the
reasons that follow, this application must be dismissed.
Background
[2]
The applicant is a citizen of Iran residing in
Tehran. From May 2005 to January 2009, she was employed as an advertising
consultant at Nikyari Air Service [Nikyari] and she has been employed by Chi
Chast Construction Company [Chi Cast] as a marketing coordinator since
September 2009. On September 14, 2010, she was offered employment at Petro-Ex
Canada Inc. as a marketing and advertising specialist.
[3]
Relevant to this application, on September 28,
2011, the applicant began working part-time with Apadana Caravan Tourism
Company [Adapana] as a means, she says, to earn additional income to support
her family.
[4]
When the applicant applied on June 18, 2012, for
permanent residence under the Federal Skilled Worker [FSW] category she listed
the Nikyari and Chi Chast positions as her employment experience. Her evidence
on this application is that, due to the nature of the Adapana employment, she
did not believe that this “side” job was
significant enough to disclose.
[5]
When on June 30, 2012, the applicant became a
full-time employee of Adapana, she says that she did not believe that it was
necessary to report this employment since she had already fulfilled the employment
experience requirements of the FSW class.
[6]
To verify her employment, the applicant was
asked by an officer to provide her Social Security Organization certificate
[SSO]. The applicant provided additional documentation from her employer but
not the requested SSO.
[7]
On June 18, 2013, a procedural fairness letter
was sent to advise the applicant that she would be receiving zero points for
work experience because the officer was not satisfied that she had been
employed as stated in the application due to her failure to provide the SSO.
[8]
On July 5, 2013, the applicant wrote to the
Embassy and provided the requested SSO, which showed that she had been employed
at Adapana since September 2011. It is her evidence that the officer’s request
for proof of insurance prompted her to disclose the Adapana employment because
before this point, she did not believe that this information was either
necessary or material to her application.
[9]
On August 7, 2013, the applicant received an
email from an officer at the Embassy alleging that she had misled the officer
and misrepresented her employment by failing to disclose her employment with
Adapana at the time of her application. The officer advised that the matter
would be forwarded to his supervisor, the Program Manager, for final
determination. The Applicant was given 30 days to provide additional
information.
[10]
On September 5, 2013, the applicant sent another
letter to the Embassy explaining that she had already fulfilled the employment
requirements of the FSW class at the time of the application, so she did not
think it was necessary to disclose her part-time employment. She expressed
that she did not intentionally withhold this information and had honestly
believed that it was immaterial to her application.
[11]
The Program Manager refused the application on
the basis that the applicant had misrepresented her employment under subsection
40(1) of the Act and therefore did not qualify for permanent residence in
Canada. The Program Manager did not believe the explanation that the applicant
did not know that she had to submit her employment at Adapana since it is clear
on the form that all activities must be listed. The Program Manager found that
the “misrepresentation or withholding of this/these
materials fact(s) induced or could have induced errors in the administration of
the Act because a complete and accurate employment history is material the
assessment of your eligibility and your admissibility.”
Issues
[12]
The applicant submits that the following issues
arise:
1.
Is mens rea required under subsection
40(1) of the Act; and
- Did the applicant’s omission constitute a “material fact” for
the purpose of subsection 40(1) of the Act?
Mens Rea
[13]
The applicant submits that the first issue
regarding mens rea under subsection 40(1) of the Act should be reviewed
on the standard of correctness. I agree with the respondent that this is a
question of law related to the interpretation of the officer’s home statute and
is therefore reviewable on the reasonableness standard: See Oloumi v Canada
(Minister of Citizenship and Immigration, 2012 FC 428 at para 13 [Oloumi],
citing Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, 2011 SCC 61 at paras 46, 48).
[14]
The applicant submits that the fact that the
word “knowingly” is absent in subsection 40(1)
suggests that having knowledge of misrepresentation should not play a role in
finding misrepresentation. On the other hand, she points out that section 127
of the Act states that no person shall knowingly directly or indirectly
misrepresent or withhold material facts related to a relevant matter that
induces or could induce an error. Contravening section 127 of the Act is an
offence. The applicant submits that removing knowledge as a prerequisite of an
inadmissibility finding under subsection 40(1) means that the liberty interest
of an applicant could be impacted even if they had not intended to commit a
misrepresentation. The applicant cites Osianwo v Canada (Minister of
Citizenship and Immigration), 2010 FC 378 [Osianwo] wherein Justice
Hughes allowed the application based on the lack of mens rea in making a
misrepresentation.
[15]
The applicant here submits that she did not
knowingly or intentionally withhold a material fact that would induce an error
because she honestly believed it was not necessary to report the information.
Therefore, she argues that this is the type of case that falls within the
exception to the general rule.
[16]
I agree with the respondent that the applicant
was clearly aware that she was employed at Adapana at the time of the
application, so her statement that she did not know she was making a
misrepresentation within the meaning of section 40 of the Act lacks merit.
[17]
Moreover, I agree that the applicant failed to
discharge the onus of ensuring the completeness and accuracy of her application.
The instructions on the form require an applicant to provide details of their
personal history and specifically indicate that detailed information is to be
provided for the previous 10-year period. Moreover, the instructions indicate
that letters of reference from all employers for the past ten years must
be provided, so the applicant was informed that all of her employment
experience for that period was relevant to her application. In addition, the
form requires a “solemn declaration” from an
applicant “that the information I have given in the
foregoing application is truthful, complete and correct.”
[18]
Even if the applicant’s omission could be
characterized as an innocent mistake, it would still fall within subsection
40(1) of the Act because it has been held to encompass innocent failures to
provide material information: Baro v Canada (Minister of Citizenship and
Immigration), 2007 FC 1299 at para 15; Canada (Minister of Public Safety
and Emergency Preparedness) v Abdallah, 2013 FC 1053 at para 17; Gobordhun
v Canada (Minister of Citizenship and Immigration), 2013 FC 971 at para 28;
and Sayedi v Canada (Minister of Citizenship and Immigration), 2012 FC
420 at paras 40, 42, 44, 52.
[19]
Moreover, I accept the submission of the respondent
that because it has been held that the provision also covers misrepresentation
made by another party - intention of the applicant is not required for this
provision to apply: See Oloumi; Singh v Canada (Minister of
Citizenship and Immigration), 2010 FC 378 at paras 16, 18; Mahmood v
Canada (Minister of Citizenship and Immigration), 2011 FC 433 at para 22; Jiang
v Canada (Minister of Citizenship and Immigration), 2011 FC 942 at para 35;
and Wang v Canada (Minister of Citizenship and Immigration), 2005 FC
1059 at paras 55-58.
[20]
The court in Oloumi (and in eight similar
cases decided on the same day by Justice Tremblay-Lamer) considered the
proposition from Osisanwo relied on by the applicant and held
that the general rule is that a misrepresentation can occur without the
applicant’s knowledge. The court noted that there is a narrow exception for “truly exceptional circumstances where the applicant
honestly and reasonably believed they were not misrepresenting a material fact.”
[21]
This is not one of those truly exceptional cases
referred to in Oloumi as the applicant was aware the information was being
withheld and she chose not to include it because she thought it was not
significant. Given the application instructions and correspondence with the
Embassy, this was not an honest and reasonable belief.
Material Fact
[22]
The applicant submits that her employment at
Adapana was not a “material fact” because the
outcome would have been the same, regardless of whether she had worked at
Adapana or not, since her listed employment experience allotted her the maximum
points that could be awarded under the experience category. Because her work
at Adapana has no effect on her eligibility to the FSW class, it was not
material.
[23]
Further, the applicant says that she disclosed
this information as soon as it came to her attention that it was or could have
been relevant to her application. This submission I reject completely. The applicant
failed to provide the requested documentation until she was told that she was
being awarded zero points for her work experience.
[24]
The applicant cites Taei v Canada (Minister
of Employment and Immigration), [1993] FCJ No 203 for the principle that “[the] rule of law does not require statutes be read and
interpreted in a robotic mindless manner” and that common sense may
still be applied. She submits that the purpose of the Act is to permit
immigration, not prevent it and she argues that it makes no sense to prevent
her from immigrating when she has arranged employment and has already obtained
the necessary scores to qualify.
[25]
It has been held that the purpose of paragraph
40(1)(a) is to ensure that applicants provide complete, honest and truthful
information and to deter misrepresentation: Bodine v Canada (Minister of Citizenship and Immigration), 2008 FC 848 at para 44; and Kobrosli v Canada (Minister of
Citizenship and Immigration), 2012 FC 757 at paras 46-48. It has further
been held that full disclosure is fundamental to the proper and fair
administration of the immigration scheme: Khan v Canada (Minister of
Citizenship and Immigration), 2008 FC 512 at para 25; and Oloumi at
para 23.
[26]
A misrepresentation need not be decisive or
determinative to be material; it must only be important enough to affect the
process: See Sayedi v Canada (Minister of Citizenship and Immigration),
2012 FC 420 at paras 26-27. I agree with the respondent that a failure
(innocent or otherwise) to supply a “truthful, complete
and correct” application is material because it prevents the reviewing
officer from assessing all of the applicant’s personal facts and to
verify all of the information concerning an applicant to determine whether he
or she is properly admissible to Canada.
[27]
The applicant proposed two questions for
certification:
Question 1: Is mens rea required for
a finding of misrepresentation per s. 40(1) where such a finding results in
application of s. 127 of the IRPA, with possible enforcement of
imprisonment upon the applicant who misrepresented material facts?
Question 2: Is a self-serving purpose a
required element in misrepresentation of material facts that may “induce or
could induce an error in the administration of [IRPA]”, pursuant to s.
40(1) of the IRPA? Alternatively, if there is no benefit in misrepresenting a
material fact, should the Applicant who, whether indirectly or directly,
misrepresented said fact be found inadmissible under s. 40(1)?
[28]
I agree with the respondent that Question 1 is
not certifiable because it cannot be said to be determinative of any appeal.
Section 127 does include a requirement that the person does the act “knowingly.” Section 127 is not at play in the
impugned decision as there was no finding made by the Program Manager that this
applicant made the misrepresentation knowingly; rather she states that the
applicant “misrepresented or withheld”
information.
[29]
The second question is also not certifiable
because the law is well established as to the proper interpretation of
subsection 40(1) of the Act. It is irrelevant whether the misrepresentation is
self-serving or not as that is not a stated requirement in the legislative
provision.
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