Docket: IMM-9679-23
Citation: 2024 FC 1834
Toronto, Ontario, November 18, 2024
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
MORRIS ST ANTONIO BRYAN |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] The Applicant applied to come to Canada to visit his siblings. His application was refused, as an Officer found that he was inadmissible to Canada for misrepresentation. This decision was based on a finding that, in his application, the Applicant had failed to disclose that he had been removed from the United States in 1998 for entering that country with a counterfeit document. The Applicant argues that the Officer erred in the assessment of the evidence. For the reasons that follow, I have concluded that the Officer’s decision was reasonable and, as such, I will dismiss this application.
II. BACKGROUND
A. Facts
[2] The Applicant – Morris St Antonio Bryan – is a citizen of Jamaica. Mr. Bryan has two siblings in Canada: Roxan Christal Gay Bryan and Akeen Christopher Bryan. The Applicant’s siblings graduated from university on October 29, 2022 and November 8, 2022, respectively, and invited the Applicant to their convocation ceremonies. In addition, Roxan and her husband had married during the pandemic, and planned to have another wedding ceremony in January 2023 so that the entire family could attend the occasion.
[3] On October 14, 2022, the Applicant applied for a temporary resident visa [TRV] to attend the above events. The TRV application form asks applicants whether they have been “refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory.”
The Applicant checked ‘yes’ to this question, and in the explanation box below stated: “I was refused in 2015 for a visitors visa. I was also asked to leave the United States of America 19 years ago.”
[4] On February 20, 2023, the Applicant received a procedural fairness letter [PFL] from Immigration, Refugees and Citizenship Canada [IRCC]. In that letter, an Officer indicated they were concerned that Mr. Bryan had misrepresented or withheld material facts, and requested that the Applicant provide an explanation for his failure to disclose alleged enforcement actions in the United States in 2018 and provide details of those enforcement actions.
[5] On March 5, 2023, Mr. Bryan responded to the PFL, stating that he had not failed to disclose enforcement actions against him in the US in 2018 because he had not been to the US since 2003 due to a 20-year travel ban. In support of his response, he attached the following:
a)An Official Letter from Passport, Immigration and Citizenship Agency Jamaica indicating he had not left the country in 20 years;
b)Official USIS documentation noting that since his deportation in 2003, he was not allowed to re-enter the USA for at least 20 years;
c)Verification of Departure from the USA in 2003;
d)Official Detail of when he was escorted back to Jamaica; and
e)A copy of a pending Freedom of Information Act [FOIA] application submitted to receive any immigration and criminal records between 2017-2019.
[6] On March 20, 2023, Mr. Bryan received a response to his FOIA request, which he forwarded to IRCC. The enclosures attached to the FOIA response contained documents related to his 2003 deportation, including a negative US Immigration decision on his application for permanent resident status. That decision indicates that his application was refused because, among other reasons, on May 16, 1998, he was ordered removed from the United States for making a false claim to U.S. Citizenship, and was an immigrant present in the U.S. without an immigrant visa.
B. Decision under Review
[7] On June 2, 2023, the Officer rejected the Applicant’s TRV application, finding that he was inadmissible to Canada under s.40(1)(a) of the Immigration and Refugee Protection Act [IRPA] for directly or indirectly withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the Act. Pursuant to s.40(2)(a) of the IRPA, the Officer further indicated that the Applicant would remain inadmissible for a period of five years.
[8] In notes entered into IRCC’s Global Case Management System [GCMS] which form a part of the reasons for decision, the Officer stated:
I have reviewed the PFL reply from the PA. I note that he is right, no further US enforcement took place after 2003. What I also note, is that his reply to our question still ommited [sic] previous US enforcement. In the documentation submitted, it is noted that he was also removed from USA in 1998 for entering the USA with a counterfeited document. This omission from the application constitute a misrepresentation. I find that the PA is inadmissible.
III. ISSUES
[9] The only issue that arises on this application is whether the Officer’s decision, and the reasons provided in support of that decision, were reasonable.
IV. STANDARD OF REVIEW
[10] The parties do not dispute that the appropriate standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 16, 23, 25 [Vavilov]. While the duty to provide reasons, in the context of TRV applications, is not onerous, the Court must be able to understand the rationale underpinning the Officer’s conclusions, and the Officer’s must be intelligible, transparent, and justified.
[11] I also note that a finding of inadmissibility for misrepresentation has consequences that transcend the rejection of a TRV application, most notably the five-year bar referred to above. As such, the justification for such a determination must reflect those stakes: Vavilov, at para 133, Ali v Canada (Citizenship and Immigration), 2021 FC 731 at para 30.
V. ANALYSIS
A. General Principles
[12] Individuals who wish to visit Canada must establish that they are eligible to do so. This, in turn, requires that prospective visitors disclose information to enable decision-makers to assess whether they have met the requirements of the IRPA. It stands to reason, therefore, that our immigration system requires that applicants for status in Canada complete their applications honestly, completely, and accurately.
[13] The centrality of this requirement is reflected in section 40 of the IRPA, paragraph 40(1)(a) of which provides that:
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;
[14] Underscoring the importance of full and frank disclosure, subsection 40(2) imposes a five-year period of inadmissibility for those found inadmissible for misrepresentation.
[15] However, not all misrepresentations will result in inadmissibility – embedded in the language of paragraph 40(1)(a) is a materiality component; it is only those misrepresentations that could “induce an error”
in the administration of the IRPA that constitute misrepresentation for the purposes of the inadmissibility provision.
[16] Additionally, the jurisprudence has carved out a narrow “innocent mistake”
exception to the application of paragraph 40(1)(a): Gill v Canada (Citizenship and Immigration), 2021 FC 1441 at paras 18-20.
B. The Applicant’s failure to disclose his 1998 removal from the United States
[17] The core facts in this matter are not in dispute. The Applicant answered affirmatively to the question as to whether he had previously been refused a visa, been denied entry, or ordered to leave Canada or any other country. As he was required to do, the Applicant provided further details related to this answer, indicating that he was “asked to leave the United States of America 19 years ago.”
[18] It is also not in dispute that the Officer in this matter issued a procedural fairness letter, which contained inaccurate information about alleged U.S. enforcement actions taken against the Applicant in 2018. As noted above, the Applicant responded to the PFL, indicating that he had not been the subject of enforcement action in 2018, and reiterated what he had said in his initial application, namely that he had been asked to leave the U.S. approximately 19 years prior, and that he was barred from entering that country for 20 years.
[19] Notably missing from the Applicant’s response was any mention of enforcement actions taken against him by the United States in 1998. This information was only disclosed to IRCC later, after the Applicant obtained the response to his FOIA request. Moreover, when the Applicant sent in the FOIA response, he did not specifically address or even acknowledge the 1998 enforcement actions that were documented in that disclosure.
[20] On one level, I can understand why the Applicant did not address the 1998 enforcement action in his follow-up response to the PFL - he was focused on establishing that he had not been the subject of enforcement proceedings in 2018, as had been alleged in the procedural fairness letter. That said, the fact of the matter remains that the Applicant failed to disclose the 1998 enforcement proceedings either in his initial application, or in response to a follow-up query from IRCC. While the Officer did not provide the Applicant with a separate PFL to notify him of the concerns related to the 1998 enforcement action, I find that this was not required in the circumstances, and the Applicant has not argued that such notice was required.
[21] Instead, the Applicant makes essentially two arguments:
1)It was an error for the Officer to find that the Applicant had engaged in misrepresentation because he acknowledged the 2003 enforcement proceedings in his application, and then later disclosed the FOIA request containing the 1998 enforcement actions.
2)The Officer erred in failing to address the materiality of the alleged misrepresentation.
[22] I do not accept these arguments for the following reasons. First, it was entirely reasonable for the Officer to find that the Applicant’s failure to disclose the 1998 enforcement action – until the very last stages of the application process – constituted a misrepresentation. The truth of the matter is that this omission may very well have induced an error in the administration of the Act. The duty of candour is not met where a misrepresentation is only acknowledged before the final decision is made. This would be contrary to the intent, objectives and provisions of the IRPA: Singh v Canada (Citizenship and Immigration), 2021 FC 1243 at para 23.
[23] Second, while it is true that the Officer did not squarely address the materiality of the Applicant’s failure to disclose the 1998 enforcement action, such materiality can be inferred from the Officer’s reasons and is plainly apparent from the face of the record. The FOIA documentation reveals that in May 1998, the Applicant was removed from the U.S. as an “expedited removal”
after having travelled to the country under a falsified passport and the assumed name of Raymond Kennedy. In addition to his removal, the Applicant appears to have been charged with making a false claim to United States citizenship, and was prohibited from entering the United States for five years. Soon after, however, in July 1998, he returned to the U.S. on a “photo-substituted”
passport and was eventually subject to renewed enforcement proceedings in 2003. I presume it was those proceedings that the Applicant referred to in his initial application.
[24] The Applicant’s complete immigration history in the United States was clearly relevant to the assessment of his TRV application. While he eventually disclosed the 1998 enforcement actions, I find in the circumstances, that it was reasonable for the Officer to conclude that the Applicant was inadmissible to Canada for misrepresentation.
VI. CONCLUSION
[25] For the above reasons, this application for judicial review is dismissed. The parties did not propose a question for certification and I agree that none arises.
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