Docket: IMM-296-16
Citation:
2016 FC 825
Ottawa, Ontario, July 19, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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IQBAL,
KHANDAKER ASHIK
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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
I.
Overview
[1]
An Immigration Officer [Officer] rejected the
Applicant’s application for permanent residence as a member of the Skilled
Worker Class and held that the Applicant is inadmissible to Canada for
misrepresentation under paragraph 40(1)(a) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
This Court’s jurisprudence has categorically
often stated that misrepresentation need not be intentional (Berlin v Canada
(Citizenship and Immigration), 2011 FC 1117 at paras 16 and 18 [Berlin]).
II.
Introduction
[3]
This is an application for judicial review by
the Applicant pursuant to subsection 72(1) of the IRPA, of a decision by an Officer
dated November 4, 2015.
III.
Background
[4]
The Applicant, Khandaker Ashik Iqbal (age 33),
is a citizen of Bangladesh. He applied for permanent residence status under the
Federal Skilled Worker Class (NOC 1123) in May 2014. The application was
received on May 14, 2014.
[5]
On September 7, 2015, the Officer noted in
the Global Case Management System [GCMS] that he doubts the credibility of the
Applicant:
I have reviewed the results of the site
visit. I have concerns with the credibility of the PA based on the authenticity
of the employment letter dated 05May14. The employment letter states that the
PA has been employed at Banglalink as a PR & Communications Senior
Assistant Manager from April 2006 until present. The investigation revealed
that the PA does work at Banglalink, but did not work in his stated position
from 2006 to 2011. He instead worked in customer service from 2006 to 2010 and
then in the training department from 2011 to June 2013. It was only from
01Jul13 that the PA started working as the PR & Comm Snr Asst Manager.
Therefore, on a balance of probabilities I am satisfied that the PA
misrepresented his work experience to meet the requirements under the skilled
worker class.
(Certified Tribunal Record [CTR], GCMS Notes,
at p 6)
[6]
On September 8, 2015, a Procedural Fairness
Letter [PFL], dated September 7, 2015, was sent to the Applicant. In the
PFL, the Officer mentions having concerns regarding the fact that the Applicant
may have misrepresented his work experience as a Public Relations and
Communication Senior Assistant Manager at Banglalink from April 16, 2006
until the time of assessment. The Officer was concerned that the Applicant may
not have worked in that position for the time stated.
[7]
On September 22, 2015, the Applicant
submitted additional documents including a revised employment letter, dated
September 21, 2015, wherein he included a breakdown of the different positions
the Applicant held with the corporation Banglalink.
[8]
In a decision dated November 4, 2015, the
Applicant’s application for permanent residence was rejected and the Applicant
was found inadmissible for misrepresentation pursuant to paragraph 40(1)(a)
of the IRPA. More specifically, the Officer had issues with the employment
references sent by the Applicant:
I have now completed my review of your
application. The evidence indicates that you have submitted fraudulent
employment references. This misrepresentation of your employment experience
with the above named entities was material to the assessment of your applicant.
It could have induced an error in the administration of the Act, in that your
stated employment experience with the above listed entity could have had your
application found eligible for processing, and you may have been awarded points
for experience that you do not have. This could have contributed to your
approval for a permanent resident visa.
(CTR, Decision, at p 9)
IV.
Issues
[9]
The only issue is whether the Officer’s
determination that the Applicant is inadmissible for misrepresentation is
reasonable.
V.
Standard of Review
[10]
The standard of reasonableness applies to the
review of an Immigration Officer’s determination that the Applicant misrepresented
his work background pursuant to paragraph 40(1)(a) of the IRPA (Oloumi
v Canada (Citizenship and Immigration), 2012 FC 428 at para 23 [Oloumi];
Paashazadeh v Canada (Citizenship and Immigration), 2015 FC 327 at para
13).
VI.
Analysis
[11]
In Goburdhun v Canada (Citizenship and
Immigration), 2013 FC 971 [Goburdhun], Justice Cecily Y. Strickland
summarized the general principles arising out of this Court on paragraph 40(1)(a)
of the IRPA:
[28] In Oloumi, above, Justice
Tremblay- Lamar describes general principles arising from this Court’s
treatment of section 40 of the IRPA which are summarized below together with
other such principles arising from the jurisprudence:
- Section 40 is to be given a broad
interpretation in order to promote its underlying purpose (Khan v Canada
(Minister of Citizenship and Immigration), 2008 FC 512 at para 25 [Khan]);
- Section 40 is broadly worded to
encompasses misrepresentations even if made by another party, including an
immigration consultant, without the knowledge of the applicant (Jiang v
Canada (Minister of Citizenship and Immigration), 2011 FC 942 at para 35 [Jiang];
Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at
paras 55-56 [Wang]);
- The exception to this rule is
narrow and applies only to truly extraordinary circumstances where an applicant
honestly and reasonably believed that they were not misrepresenting a material
fact and knowledge of the misrepresentation was beyond the applicant’s control
(Medel, above);
- The objective of section 40 is to
deter misrepresentation and maintain the integrity of the immigration process.
To accomplish this, the onus is placed on the applicant to ensure the
completeness and accuracy of their application (Jiang, above, at para
35; Wang, above, at paras 55-56);
- 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 (Minister of Citizenship and
Immigration), 2008 FC 848 at para 41; Baro v Canada (Minister of Citizenship
and Immigration), 2007 FC 1299 at para 15);
- As the applicant is responsible for
the content of an application which they sign, the applicant’s belief that he
or she was not misrepresenting a material fact is not reasonable where they
fail to review their application and ensure the completeness and veracity of
the document before signing it (Haque, above, at para 16; Cao v
Canada (Minister of Citizenship and Immigration), 2010 FC 450 at para 31 [Cao]);
- In determining whether a
misrepresentation is material, regard must be had for the wording of the
provision and its underlying purpose (Oloumi, above, at para 22);
- A misrepresentation need not be
decisive or determinative. It is material if it is important enough to affect
the process (Oloumi, above, at para 25);
- An applicant may not take advantage
of the fact that the misrepresentation is caught by the immigration authorities
before the final assessment of the application. The materiality analysis is not
limited to a particular point in time in the processing of the application. (Haque,
above, at paras 12 and 17; Khan, above, at paras 25, 27 and 29; Shahin
v Canada (Minister of Citizenship and Immigration), 2012 FC 423 at para 29
[Shahin]);
(Goburdhun, above at para 28)
[12]
In the present case, it is apparent from the GCMS
Notes that the Officer’s main concerns were regarding the employment letter
dated May 5, 2014 [Employment Letter]. This is reflected in the decision.
[13]
The Respondent submits that it was reasonable
for the Officer to consider that the Applicant submitted fraudulent employment
references, as the Employment Letter, read together with information contained
in the Application, can only lead one to believe that the Applicant had been
working as a PR and Communication Senior Assistant Manager since 2006.
[14]
Although the Employment Letter in its
introductory paragraph attempts to clarify that the Applicant is presently
working at the said position, it does not categorically clear the confusion, as
to the number of years during which the Manager position would have been held.
[15]
The Supreme Court stated in Newfoundland and
Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), [2011]
3 SCR 708, 2011 SCC 62 at para 15 “courts should not
substitute their own reasons, but they may, if they find it necessary, look
to the record for the purpose of assessing the reasonableness of the outcome”.
[Emphasis added.]
[16]
In the present case, the Respondent submits that
the Applicant misrepresented in his application, specifically at question 8 of
the Schedule A. At question 8, the Applicant had to list all of his “activity” for the past 10 years, including occupation
or job title held. The Applicant wrote that from May 2006 until May 2014, he
was “serving as PR & Communication Sr. Assistant
Manager, Marketi[ng]” at Banglalink Digital Communications (see CTR,
Schedule A, at p 44). Furthermore, at question 12 of Schedule 3, the Applicant
was asked to list all of his occupations within the 10 years preceding the date
of his application. The Applicant listed as occupation “Marketing
& Publ” April 2006 until May 2014 and listed in the “Main duties” column his duties as a PR and
Communication Senior Assistant Manager. Undoubtedly, the answers provided by
the Applicant at question 8 of Schedule A and at question 12 of Schedule 3
could reasonably lead an Officer to believe that the Applicant worked as a PR
and Communication Senior Assistant Manager since April 2006. This Court’s
jurisprudence has often stated that misrepresentation need not be intentional (Berlin,
above at para 12; Oloumi, above; Singh v Canada (Citizenship and
Immigration), 2010 FC 378 at paras 16, 18; Mahmood v Canada (Citizenship
and Immigration), 2011 FC 433 at para 22; Jiang v Canada (Citizenship
and Immigration), 2011 FC 942 at para 35; Wang v Canada (Minister of
Citizenship and Immigration), 2005 FC 1059 at paras 55-58).
[17]
The PFL sent to the Applicant clearly stated the
Officer’s concerns that the Applicant did not work in that position since April
2006. While the Applicant clarified the situation after receiving the PFL, it
does not mean that a misrepresentation did not occur as the purpose of a PFL is
to allow an applicant an opportunity “to demonstrate
that there was no misrepresentation or withholding of material facts that could
have induced an error in the administration of the IRPA” (Brar v
Canada (Citizenship and Immigration), 2016 FC 542 at para 17).
[18]
Consequently, it was reasonable for the Officer
to find that the Applicant was inadmissible for misrepresentation pursuant to
paragraph 40(1)(a) of the IRPA as the application contained misleading
information that could induce an error in the administration of the IRPA.
VII.
Conclusion
[19]
Consequently, the application for judicial
review is dismissed.
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