Date: 20050727
Docket: IMM-10475-04
Citation: 2005 FC 1037
Vancouver, British Columbia, Wednesday the 27th day of July, 2005
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
JORGE URRUTIA CALIXTO
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present Application concerns the correct interpretation of s.40(1)(c) of the Immigration and Refugee Protection Act (the "IRPA").
[2] The Applicant, a 40 year-old male citizen of Mexico, arrived in Canada on April 24, 1994, was granted refugee protection on March 24, 1997, and then applied for landed immigrant status. At an interview on September 15, 1998 with the Canadian Security and Intelligence Service, the Applicant was confronted with information that he had lied about his past activities, including a criminal record in the United States that arose during the time he claimed he was being persecuted in Mexico. The Applicant admitted this misrepresentation.
[3] As a result of the Applicant's admitted misrepresentation, in a September 10, 2004 decision of the Refugee Protection Division, the Applicant's refugee status was vacated pursuant to s.109(1) of the IRPA. As a result of this decision, a report was prepared pursuant to s.44(1) of the IRPA that, under s.40(1)(c), the Applicant is inadmissible. On December 22, 2004, an immigration officer found the report well-founded, and, consequently, made a deportation order against the Applicant pursuant to s.44(2) on a finding that the Applicant is a person described in s.40(1)(c).
[4] Thus, the sole issue for determination in the present Application is whether, on a correct interpretation of s.40(1)(c), the Applicant is a person so described:
| Misrepresentation
40. (1) 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; (b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;
(c) on a final determination to vacate a decision to allow the claim for refugee protection by the permanent resident or the foreign national; or
(d) on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection 10(2) of that Act.
[Emphasis added] |
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Fausses déclarations
40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants :
a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d'entraîner une erreur dans l'application de la présente loi; b) être ou avoir été parrainé par un répondant dont il a été statué qu'il est interdit de territoire pour fausses déclarations;
c) l'annulation en dernier ressort de la décision ayant accueilli la demande d'asile;
d) la perte de la citoyenneté au titre de l'alinéa 10(1)a) de la Loi sur la citoyenneté dans le cas visé au paragraphe 10(2) de cette loi. |
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[5] In support of an argument that s.40(1)() does not apply to the Applicant, Counsel for the Applicant advances a literal interpretation argument with respect to the provision as follows:
3. It is respectfully submitted that the applicant did not misrepresent himself on the "final determination to vacate a decision to allow the claim for refugee protection". It is respectfully submitted that, in fact, the applicant was commended by the RPD member hearing the vacation application for telling the truth. Five years prior to and at the final determination the applicant admitted all of the allegations made by the minister.
(Applicant's Memorandum of Argument)
In response, Counsel for the Respondent makes a contextual interpretation argument relating to the legislative framework of the IRPA as follows:
20. In his Memorandum of Argument, Mr. Calixto alleges that Ms. Fast made an error of fact. Mr. Calixto argues that, because he admitted at the Vacation hearing that he lied in his original refugee claim, he is not inadmissible under IRPA s.40(1)(c). That is, Mr. Calixto assumes that IRPA s.40(1)(c) would render him inadmissible only if he had made a misrepresentation in the course of the vacation proceeding before the RPD. Mr. Calixto's understanding of s.40(1)(c) is not supported by the language of the IRPA.
21. In the case at hand, the legislative framework in the IRPA with respect to the RPD's jurisdiction to vacate refugee decisions, and the consequences of vacation, is unambiguous. In particular, under IRPA s.109, the RPD may vacate a refugee decision in any case where that refugee decision was based on material misrepresentation, regardless of whether the refugee claimant later lies during the vacation hearing itself. Further, IRPA s.40(1)(c) expressly states that, upon the RPD's final determination vacating a prior refugee decision, the person concerned is deemed inadmissible to Canada.
22. Thus, in the case at hand, once the RPD made its Vacation Decision, Mr. Calixto was deemed to be inadmissible to Canada on the basis of misrepresentation. Whether Mr. Calixto made any misrepresentations during the Vacation hearing was not a relevant consideration for Ms. Fast. Rather, the sole question of fact before her was whether the RPD had made a final determination under IRPA s.109 vacating its original decision that Mr. Calixto was a Convention Refugee.
(Respondent's Further Memorandum of Argument)
[6] I find that the correct interpretation of s.40(1)(c) is that advanced by Counsel for the Respondent. In my opinion, the use of the term "misrepresentation" in s.40(1)(c) should be read as denoting states of fact which operate to make a person inadmissible; that is, if either of the events mentioned in s.40(1)(a), (b), (c), or (d) are proved to have occurred, a person is considered, or "deemed", inadmissible for "misrepresentation".
ORDER
Accordingly, the Application is dismissed.
I agree with Counsel for the Applicant that the following question, which is of general importance and determinative of the present Application, be certified for consideration by the Court of Appeal:
Does s.40(1)(c) of the IRPA require the person concerned to make a misrepresentation in the course of the vacation hearing before the Refugee Protection Division?
(Sgd.) "Douglas R. Campbell"
Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10475-04
STYLE OF CAUSE: JORGE URRUTIA CALIXTO
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: July 26, 2005
REASONS FOR ORDER AND ORDER: CAMPBELL J.
DATED: July 27, 2005
APPEARANCES:
D. Blake Hobson FOR APPLICANT
Banafsheh Sokhansanj FOR RESPONDENT
SOLICITORS OF RECORD:
D. Blake Hobson FOR APPLICANT
Barrister & Solicitor
Vancouver, BC
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada