Docket: IMM-6163-13
Citation:
2015 FC 647
Toronto, Ontario, May 19, 2015
PRESENT: The
Honourable Mr. Justice Diner
|
BETWEEN:
|
|
FENG QING WANG
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an Application for judicial review of a
decision [Decision] of the Immigration Division [ID] of the Immigration and
Refugee Board dated September 9, 2013, which found the Applicant, Feng Qing
Wang, inadmissible to Canada pursuant to section 40(1)(a) of the Immigration
and Refugee Protection Act, (SC 2001, c 27) [IRPA].
II.
Facts
[2]
The Applicant is a citizen of China who obtained a Temporary Resident Visa [TRV] and Work Permit [WP] through the Live-In
Caregiver Program [LIC] to care for the children of her intended employers
[Employers], Ms. Hong Xia [Female Employer] and Mr. Xin Yu Wang [Male Employer].
[3]
The Applicant arrived in Canada on July 26, 2011, but she neither worked for the Employers as a caregiver on a
full-time basis, nor lived with their family, per the terms and conditions of
the LIC. The apparent reason for this non-compliance was that the parents of
the Male Employer [the Grandparents] had come to live with her Employers and their
family, and care for their grandchildren. The Grandparents assumed the intended
caregiving functions of the Applicant, and occupied the room she was to have
lived in. The Applicant maintains that she knew nothing about this change to
her living and work arrangements prior to her entry into Canada.
[4]
A great deal of contradictory evidence was
elicited through five days of oral testimony at the ID hearing, provided by
each of the Employers, as well as the Applicant. It is difficult to ascertain,
through all of the contradictory testimony, who is telling the truth. Some of
the key facts elicited at the ID hearing were:
- Citizenship and
Immigration Canada [CIC] was never advised by either party that the
purpose for which the Applicant came to Canada had ceased to exist;
- The Employers
testified that they knew that the Applicant’s services would not be
required due to the fact that the Grandparents had agreed to assume the child
caring role for the two children, and lived in the room that was
previously intended for the Applicant;
- The Employers testified
that the Applicant’s sister [Sister], a friend of theirs who helped
arrange for the Applicant’s Labour Market Opinion [LMO], was advised of
the change before the Applicant arrived in Canada;
- It was on the
strength of this positive LMO that the Applicant obtained a WP upon entry into
Canada. The Applicant said nothing regarding the changes to the conditions
of her employment to Canada Border Services Agency officials who examined
her upon her arrival, because, according to her testimony, she did not
know anything had changed;
- The Applicant
maintained that she only learned of the change in employment and living
circumstances approximately three weeks after having arrived in Canada. The
Applicant testified that when the Female Employer picked her up at the
airport, she advised the Applicant to live with her Sister for a few days,
and open a bank account;
- The employment
contract between the Applicant and Employers was part of the record for
the LMO. The LMO was dated July 9, 2010. The Applicant’s TRV was issued in
May, 2011. According to the Applicant’s affidavit, the Grandparents applied
for permanent residence in 2010 and were in Canada in May 2010. At that
time, the Grandparents were already looking after the children. This information
was confirmed at the hearing (Certified Tribunal Record [CTR], pp 179-181).
III.
The Decision
[5]
The ID found that the Applicant and the Employers
misled the Government into believing that the Applicant was working under the
LIC program. This deception was carried out by way of financial manipulation: Mr.
Wang issued cheques from his bank account to the Applicant. The Applicant would
deposit those cheques, withdraw the cash and return the money to Ms. Xia, who
then filed the fictional salary documentation with the Canada Revenue Agency
[CRA].
[6]
The ID also based its Decision on the following
misrepresentations:
i.
The Male Employer failed to advise the Government
that his parents were residing with him in place of the Applicant, undermining
the basis of the LMO which had been issued. As such, the officers processing
Ms. Wang’s application were prevented from conducting a proper investigation;
ii.
The Female Employer testified that she knew that
she did not need the Applicant’s services on a full-time basis when her in-laws
were granted permanent resident status. This occurred well before the Applicant
entered Canada, and had this information been communicated to the Government,
it could have led to the denial of Ms. Wang’s work permit.
[7]
The ID concluded, on a balance of probabilities,
that the Applicant directly or indirectly misrepresented or withheld material
facts relating to a relevant matter pursuant to section 40(1)(a) of IRPA,
and excluded her from Canada.
IV.
Applicant’s Position
[8]
The Applicant submits that she made no
misrepresentation when she presented herself at the airport upon entry to Canada, or to any immigration official, whether direct or indirect, as she had no knowledge
about the changes to her employment situation as a result of the arrival of the
Grandparents.
[9]
The Applicant further argues that the ID’s
findings of misrepresentation are unreasonable, because the evidence
demonstrates fraud and reprehensible conduct on the part of the Employers.
However, the ID does not have any jurisdiction over them. In short, the
Applicant contends that she cannot be faulted for the Employers’ misbehaviour:
the Respondent is engaging in a “fishing expedition”
to show her to be the perpetrator, but she is truly the victim.
[10]
The Applicant also contends that a breach of procedural
fairness occurred when the ID refused her request to issue a summons for the
examination of one of the Grandparents, the Male Employer’s mother. This
examination would have helped to clarify whether the grandmother was able and
willing to take care of her grandchildren, and if so, when the Employers
intended to have her act as a caregiver for the children.
V.
Respondent’s Position
[11]
The Respondent argues that the ID is master of
its own procedure, and conducted the hearing fairly. The testimony at the
hearing demonstrated that there was indirect misrepresentation to CIC, because
the change of plan was known to, at minimum, the Sister, who had been the
primary point of contact between the Employers and the Applicant. Indeed, the Sister
was the party that had introduced the Applicant to the Employers and
facilitated their contact, leading to the LMO filing. The testimony of the
Female Employer indicates that she told the Sister that the Grandparents were providing
caregiving services, and the Sister saw them living in the family home.
[12]
The Respondent further submits there was no
breach of procedural fairness, since the ID concluded that the Male Employer’s
mother would only have a peripheral effect on the issues of this case, and at
some point needed to contain the hearing.
[13]
In the end, the Respondent argues that the ID
reasonably concluded that the Applicant misrepresented when she failed to
disclose her actual state of employment to CIC, as section 40(1)(a) of IRPA
applies in circumstances where a person misrepresents through a third party.
VI.
Issues
[14]
The issues are as follows:
- Was the
Applicant denied procedural fairness?
- Were the ID’s
findings of indirect misrepresentation reasonable?
VII.
Standard of Review
[15]
The applicable standard of review pertaining to
procedural fairness is that of correctness (Re:Sound v. Fitness Industry
Council of Canada, 2014 FCA 48 at para 34 [Re:Sound]; Mission
Institution v Khela, 2014 SCC 24 at para 79). As noted by Justice Evans in Re:Sound,
this Court should respect procedural decisions made by the panel that is properly
within its discretion, and “give weight to the manner
in which an agency has sought to balance maximum participation on the one hand,
and efficient and effective decision-making on the other” (Re:Sound at
para 42).
[16]
The applicable standard of review to the ID’s findings
of indirect misrepresentation is reasonableness, as it involves a question of
mixed fact and law. This Court should intervene only if it concludes that the
decision is unreasonable, and falls outside the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
VIII.
Preliminary Matter
[17]
The Applicant included a Statement of Claim regarding
a civil suit against the Employers in her further affidavit. I agree with the
Respondent that this Statement of Claim is to not be considered, because it was
not before the ID when it made its Decision (Hutchinson v Canada (Minister
of the Environment), 2003 FCA 133 at para 44).
IX.
Analysis
A.
Was the Applicant denied procedural fairness?
[18]
The Applicant submits that the ID breached
procedural fairness when it denied the Applicant’s request for a summons to
examine the Male Employer’s mother as to her ability to take care of her
grandchildren and when the Employers decided to replace the Applicant as a
caregiver for these children. I find that procedural fairness was not breached
in this case.
[19]
Section 33(2) of Immigration Division Rules,
SOR/2002-229 stipulates that when a summons is requested, the ID must consider
any relevant factors, including:
- the necessity of
the testimony to a full and proper hearing; and
- the ability of
the person to give that testimony.
[20]
In the case at bar, the ID heard the Employers’
testimony on the extent and chronology of the Grandparents’ involvement. The ID
thereafter decided that the grandmother’s testimony would have a negligible impact
on the issues and the outcome of this case. The panel states, in the hearing
transcript:
We’ve heard some testimony from Mr. Wang
with respect to his mother, his parents, and when they came to Canada, when
they received status, when he advised the person concerned that he did not
require a live-in caregiver any longer and his history in making live-in
caregiver applications and those applications were made over a number of years.
So the intentions of his mother at the time
when she arrived in Canada versus at the time when she received permanent
resident status would, in fact, in my view, have peripheral effect on the
issues before me.
So I’m not going to issue a summons for her.
[…]
(CTR, p 271).
[21]
The ID, in my view, correctly decided to deny
the Applicant’s summons, as it was not necessary for the Applicant’s full and
proper hearing given the volume of evidence that was already heard on that
issue. Nothing particular turned on the grandmother’s testimony. Rather, the
intentions and actions of the Employers and the Applicant were determinative of
the legal questions in dispute. The ID is a specialized tribunal with its own
extensive rules and procedures that should be afforded considerable latitude in
how it runs its hearings (Tai v Canada (Citizenship and Immigration), 2011
FC 248 at para 66). As Justice Evans stated in Re:Sound, relying
on paragraph 53 of Dunsmuir, “[i]t is therefore
not for a reviewing court to second-guess an administrative agency’s every
procedural choice, whether embodied in its general rules of procedure or in an
individual determination” (Re:Sound at para 38). Accordingly, there
was, therefore, no breach of procedural fairness in this case.
B.
Were the ID’s findings of indirect
misrepresentations reasonable?
[22]
The second issue raised in this judicial review
concerns the ID’s findings of misrepresentation in Ms. Wang’s application. I
agree with the Respondent that it was within the range of possible, acceptable
outcomes for the ID to decide that the Applicant misrepresented when she
indirectly, through her Employers, failed to inform CIC about her actual state
of employment and engaged in activities intended to deceive Canadian
authorities.
[23]
Paragraph 40(1)(a) of IRPA states:
A permanent resident or a foreign national
is inadmissible for misrepresentation 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.
[24]
The legislation is clear that a
misrepresentation can be made directly or indirectly. The ID found that the
Applicant made indirect misrepresentations, as explained in its Decision at
paragraph 9 (CTR, pp 4-5).
[25]
The jurisprudence is clear that there is no need
to show that there has been any intentional misrepresentation (Khedri v Canada (Citizenship and Immigration), 2012 FC 1397 at para 21), and that when a person misrepresents through a third party, paragraph
40(1)(a) continues to apply (Wang v Canada (Citizenship and
Immigration), 2005 FC 1059 at para 56).
[26]
The crux of the Applicant’s argument is, in my
view, her contention that she is an innocent party in this matter because it
was the Employers who made the misrepresentation regarding the need for her
services in obtaining the LMO.
[27]
However, I find the ID’s Decision to be
reasonable.
[28]
The Decision noted that Ms. Wang was a
participant in a “ruse” intended to mislead CRA
officials (CTR, p 4, para 8). Since judicial reviews are extraordinary remedies
of a discretionary nature, a Court is entitled to deny relief if the applicant
does not come to the Court with clean hands (Canadian Pacific Ltd v Matsqui
Indian Band, [1995] 1 S.C.R. 3 at para 30; Wong v Canada (Citizenship and
Immigration), 2010 FC 569 at paras 11-13). The doctrine of clean hands
prevents an applicant before the Court from seeking relief when wrongful
conduct on their part directly relates to the subject matter of their claim, thus
ensuring fairness within the legal system (Volkswagen Canada Inc v Access
International Automotive Ltd, 2001 FCA 79 at paras 21-22). In this case, it
appears that the Applicant seeks relief from one of the bone fide
requirements of the LIC program, the availability of a job, while having actively
assisted her “Employers” in masking its lack of
vacancy after she arrived in Canada through documentation destined to the CRA.
[29]
The application of this doctrine was not pleaded
by the parties and it is not determinative, so I need not address it any further,
except to say it would have been a sufficient alternate basis on which to
dismiss the judicial review. Foreign nationals, including Live-In Caregivers,
are rightfully entitled to protection under the law. They should not diffuse
that protection by acting in ways that undermine it.
[30]
The jurisprudence, as discussed above, indicates
that even if the misrepresentation was only made indirectly, such as in this
case, by a third party (the Employers), it would still constitute misrepresentation
for the purposes of the IRPA. For example, in Kaur Barm v Canada
(Citizenship and Immigration), 2008 FC 893 at para 20, Justice Russell
found that even though the applicant’s father misrepresented her age as an
accompanying dependant in his permanent residence application, contrary to the
applicant’s knowledge, this was still a misrepresentation for the purposes of the
IRPA. Furthermore, there is evidence in this case to indicate that the
Applicant, by way of her Sister, may have known that a LIC job was not awaiting
her in Canada prior to her arrival. In short, there is evidence of indirect
misrepresentation made pursuant to section 40(1)(a). The ID’s Decision is thus
reasonable.
X.
Conclusion
[31]
The Applicant was not denied procedural fairness
and the ID’s conclusions about misrepresentation are reasonable. No
intervention from this Court is warranted. The application for judicial review
is dismissed and there will be no order as to costs.
XI.
Certified Question
[32]
The Applicant proposed the following question for
certification:
Whether a foreign national temporary
resident of Canada who has fallen short of her obligation under subsection
29(2) of IRPA automatically becomes liable for misrepresentation, direct
or indirect, under section 40 of IRPA.
[33]
I find a more appropriate construction is as
follows:
Is a foreign national who is temporarily
resident in Canada liable, pursuant to section 40(1)(a) of IRPA, for an
indirect misrepresentation made by a third party, if the foreign national had
no knowledge of the misrepresentation?
[34]
The test for certification was laid out by the Federal
Court of Appeal in Zhang v Canada (Citizenship and Immigration), 2013
FCA 168 at para 9. To be certified, a question must (i) be dispositive of the
appeal and (ii) transcend the interests of the immediate parties to the
litigation, as well as contemplate issues of broad significance or general
importance.
[35]
As I concluded, I find the ID's Decision to be
reasonable in light of the jurisprudence on the subject to date. Even if I am
incorrect on this point, given my position on the application of the clean
hands doctrine to this particular case, an answer to the certified question
would not be dispositive of the appeal. Consequently, the requirements for
certification have not been met, and no question will be certified in this
case.
[36]
That said, the issue of third party
misrepresentation may still be ripe for clarification from a higher court,
should the appropriate facts arise.
Email this Content