Federal Court Decisions

Date: 20050916

Docket: IMM-9641-04

Citation: 2005 FC 1273

BETWEEN:

                               SAMIR VIJAYKUMAR MENON, KIMNAH MENON

                                                                                                                                           Applicants

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

GIBSON J.

INTRODUCTION

[1]                These reasons follow the hearing of an application for judicial review of a decision of a Visa Officer made at Abu Dhabi, United Arab Emirates, wherein the Visa Officer determined that Samir Vijaykumar Menon (the "Principal Applicant") and his spouse Kimnah Menon were inadmissible to Canada and therefore refused their application to immigrate to Canada, in the case of the Principal Applicant, as a skilled worker. The basis of the rejection was stated to be that, on the 1^st of May, 2004, at the Canadian Embassy in Abu Dhabi, the Principal Applicant misrepresented material facts in that he presented what purported to be an original certificate from the University of Bombay and an original marks transcript from the same University which were determined, following verification, to be false. The Visa Officer wrote:

This representation could have induced errors in the administration of the [Immigration and Refugee Protection] Act as you would have been awarded points for education to which you were not entitled.

As a result, you are inadmissible to Canada for a period of two years from the date of this letter.^[1]

[2]                The decision letter is dated the 20^th of September, 2004.

BACKGROUND

[3]                The Applicants applied for permanent resident status in Canada on the 11^th of March, 2002. Their application was filed at the Visa Office at the Canadian High Commission in London, England. At that time, the Principal Applicant was employed, and the Applicants lived, in Bahrain. In March of 2003, the Applicants moved to Dubai in the United Arab Emirates as the Principal Applicant had obtained employment there to commence the 1^st of April, 2003. To assume his new employment, he was required to submit documents evidencing his university graduation. The Principal Applicant attests that, to obtain original documentation evidencing his university graduation, he travelled to Bombay, by then known as Mumbai, in the first week of March, 2003. There he contracted with an agency to obtain "...the actual copy of my Bachelor of Commerce degree". The agency provided to the Principal Applicant what purported to be original documentation, and that documentation was apparently satisfactory to enable him to obtain a work permit that enabled him to commence his new employment in Dubai.

[4]                At or near the end of March, 2004, the Applicants were advised that a personal interview would be required, at the Canadian Embassy in Dubai, in connection with their application for landing in Canada. They attended at the interview on the 1^st of May, 2004.

[5]                In a late-filed affidavit, and more will be said about this later in these reasons, the Visa Officer attests that, in his review on the date of interview of the documentation presented in support of the Applicants' application for landing, he strongly suspected that the Principal Applicant's university degree and mark sheets were fraudulent. He consulted with a colleague who confirmed his suspicion. He advised the Applicants, at interview, of his concerns and asked for their response. He attests:

The principal Applicant did not appear surprised at all. I asked him why he was not surprised. His response was that he got the degree several years after he graduated. He insisted however, that it was genuine. I ended the interview at that point.

[6]                The Visa Officer attests that on the 4^th of May, the Principal Applicant's degree certificate was sent to the University of Mumbai for verification of its authenticity. A response was only received from the University on the 4^th of October, 2004. That response confirmed that the degree certificate submitted by the Principal Applicant prior to or at his interview was a false certificate.

[7]                The Principal Applicant attests that he was "...shocked at this turn of events", that is to say, the rejection at interview of his post-secondary education records. He returned to Mumbai and set about obtaining, this time for himself, genuine evidence that he had graduated from the University of Bombay. He was successful in obtaining substantial evidence.

[8]                By letter dated the 14^th of June, 2004, and, he attests, couriered to the Canadian High Commission in London on the 28^th of June, 2004, the Principal Applicant transmitted his substantial new evidence of his graduation from the University of Bombay, by the time he obtained the evidence, the University of Mumbai. He also enclosed a statutory declaration in which he attests in part:

In order to clarify and seek bonafide documents pursuant to my personal interview at the Canadian Consulate in Abu Dubai, UAE on May 1, 2004, I personally travelled to Mumbai, India on the April 4^th, 2004 [sic] and visited the University of Bombay office and Tolani College of Commerce to obtain a new duly validated set of Mark Sheets and University degree.

I hereby state that I have received a new set of documents - mark sheets, character certificate and other supporting documentation which are being forwarded to your office for your consideration.

I have applied for the degree from the University, which will be forwarded to you upon issuance.^[2]

[9]                The Principal Applicant's letter of the 14^th of June, 2004 and the attachments appear on the Tribunal Record.^[3]

[10]            The Principal Applicant attests that he "personally collected" a true copy of his degree from the University of Mumbai on the 2^nd of November, 2004. He acknowledges that it "looked different" from the document presented to the Visa Officer on the 1^st of May, 2004. By the date that the Principal Applicant had collected the "true copy of [his] degree from the University of Mumbai", the decision under review had already issued.

[11]            In the Visa Officer's late-filed affidavit earlier referred to, he attests:

CAIPS [Computer Assisted Immigration Processing System] contains all of the records regarding the processing of the application.

...

My review of the CAIPS Notes indicates that neither the London nor the Abu Dhabi office has received any further documents from the Applicants after the interview. If further documents had been received in London before the case was finalized a staff member there would have made a note to that effect in CAIPS and, depending on its relevance to my decision, I would have asked London to fax copies here for my perusal.

I have reviewed the affidavit of Samir Viyaykumar Menon and do not accept some parts of its contents. Specifically, at paragraph 18, he states that he couriered all documentation he managed to obtain from the University of Mumbai to the Visa Office in London. Had these documents been received before the refusal letter was sent out, they would have been entered into CAIPS Notes.

I further reject his claim in paragraph 19 of his affidavit that I did not consider the additional documentation that he claims to have sent to the London Office. As stated already, no such documents were received before the refusal letter was mailed. I could therefore not consider them before making the final decision to refuse the application.

...

And yet, the "additional documentation" appears on the Tribunal Record as earlier noted. Although there is a hand written notation on the first page of the material, and a date stamp, the date stamp is very unclear. Whatever the date of receipt might have been, I am satisfied that the date-stamp records a date of receipt well before the date of the decision under review.

THE ISSUES

[12]            While the issues addressed on the hearing of this application for judicial review included standard of review, failure on the part of the Visa Officer to consider all of the evidence that was before him and whether or not there was an "intentional" misrepresentation, I am satisfied that the determinative issues are treatment of the Visa Officer's late-filed affidavit and fairness.

ANALYSIS

a)          Treatment of the Visa Officer's late-filed affidavit

[13]            Leave to commence this application for judicial review was granted on the 16^th of June, 2005. The order granting leave provided, among other things, that further affidavits, if any, on behalf of the Respondent were to be served and filed on or before the 25^th of July, 2005. The foregoing deadline notwithstanding, by motion filed the 30^th of August, 2005, with the hearing of this application for judicial review scheduled for the 7^th of September, 2005, the Respondent sought leave to file an affidavit of the Visa Officer sworn the 29^th of August, 2005. The Respondent's motion was considered at the opening of the hearing before the Court, at which time, counsel for the Applicants consented to the late-filing. Given that the Visa Officer's affidavit worked substantially in favour of the Applicants and in fact was essentially determinative of this application for judicial review, the Respondent's motion for late-filing was granted and the Visa Officer's affidavit was ordered filed at hearing.

b)          Fairness

[14]            It was not in dispute before me that applicants for landing in Canada have the burden of establishing that they meet the requirements for entry to Canada. Further, it could hardly be disputed that a foreign national is inadmissible for misrepresentation and that inadmissibility for misrepresentation can result in a term of inadmissibility of two years. Paragraph 40(1)(a) of the Immigration and Refugee Protection Act^[4] and paragraph 40(2)(a) of the same Act read as follows:

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; ... (2) The following provisions govern subsection (1): (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; ....

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; ... (2) Les dispositions suivantes s'appliquent au paragraphe (1)_: a) l'interdiction de territoire court pour les deux ans suivant la décision la constatant en dernier ressort, si le résident permanent ou l'étranger n'est pas au pays, ou suivant l'exécution de la mesure de renvoi; ...

Whether or not the misrepresentation is intentional, is irrelevant.

[15]            But inadmissibility and inadmissibility for an extended term are acknowledged by the Respondent to have very significant impacts for certain applicants. In the Respondent's Immigration Manual, under the headings "ENF2/OP18" and "Evaluating Inadmissibility" and further, "9. Misrepresentation", the following appears under the further sub-heading "9.3. Principles":

Officers are to be guided by the following principles in applying the misrepresentation provision:

·                A very high standard of fairness is to be applied in the application of this provision. Therefore, an individual should always be given the opportunity to respond to concerns about a possible misrepresentation before a decision to refuse a visa or to refuse to allow someone to come into Canada is made.

·                It must be recognized that honest errors and misunderstandings sometimes occur in completing application forms and responding to questions. While in many cases it may be argued that a misrepresentation has technically been made, reasonableness and fairness are to be applied in assessing these situations.

·                Material facts are not restricted to facts directly leading to inadmissible grounds. However, there are varying degrees of materiality and again, fairness should be applied in assessing each situation.

·                Misrepresentations are sometimes made to conceal sensitive personal information to avoid embarrassment. In these situations, where the fact is of limited relevance, it should not affect the outcome of the application.

·                Applicants are responsible for ensuring that all the information submitted in their application is truthful and that all documents submitted are genuine.

·                The test to be applied in the application of this provision is the "balance of probabilities." Where this standard is not met, the provision should not be invoked.

[16]            Under the same headings and the subheading "9.9. Visa office procedures", the following paragraph appears:

In the case of an officer who suspects that an applicant may be inadmissible for misrepresentation, the officer should carefully document the reasons for the concern in their notes. They must then provide the individual with information on the basis for their concern and invite the person to respond.    This can be done at an interview or in writing. If in writing, the person should be given 15 days from the time of receipt to respond. The information provided in the response should be carefully assessed in accordance with the principles outlined previously. If the officer believes that the person is inadmissible for misrepresentation, the officer must obtain approval from their supervisor before issuing the decision.

[17]            In the same document, under the headings "OP1" and "Procedures", in a table preceded by the sub-heading "8. Procedural fairness", the following appears:

[18]            Under the same headings and the sub-heading "11. Conducting Interviews", the following appears:

[19]            Finally, and under the same headings and in this case, the sub-heading "12. Case notes", the following appears:

[20]            On the facts of this matter, I find no basis on which to conclude that the Visa Officer's conduct of the interview with the Applicant was other than complete and satisfactory. That being said, once again appropriately, the Visa Officer delayed for a significant period of time in issuing a final decision. His late-filed affidavit indicates that he was conscious that he was performing his function at a distance from the office where the Applicants' application for landing had been filed. He apparently checked the CAIPS notes to determine that the Applicants had filed no supplementary material after interview. In fact they had.

[21]            For whatever reason, the fact that supplementary material had been filed was not recorded in the CAIPS notes. For that reason, and that reason alone, I am satisfied that the Visa Officer failed to meet the duty of fairness acknowledged by the Respondent to be upon him, and this, by no fault of his own. In failing to enter into the CAIPS notes in London the fact that extensive supplementary material had been filed by the Applicants, the Respondent failed to provide the Visa Officer with an opportunity to fulfill the obligations that the Respondent acknowledges were on him.

[22]            The foregoing is not to say that the ultimate result would necessarily have been different if the Visa Officer had been given a reasonable opportunity to take into account the Applicants' supplementary material submitted in June of 2004. It is further not to say that there was any breach of fairness in the manner in which the Visa Officer conducted the interview with the Applicants on the 1^st of May, 2004 and delayed in making his decision until the 20^th of September, 2004. It is simply to say that the Respondent, in a corporate sense, not the Visa Officer, failed to conduct himself throughout the course of processing of the Applicants' application for landing in Canada in a manner that enabled the Respondent to fulfill the duty of fairness that the Respondent himself acknowledged rests on him through his officers .

CONCLUSION

[23]            In the result, on the basis that the duty of fairness incumbent on the Respondent in arriving at the decision under review was not fully met, this application for judicial review will be allowed, the decision under review will be set aside and the matter will be referred back to the Respondent for re-determination by a different Visa Officer.

                                                                          "Frederick E. Gibson"                       

                                                                                                   F.C.J.

Ottawa, Ontario

September 16, 2005

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       IMM-9641-04

STYLE OF CAUSE:                    SAMIR VIJAYKUMAR MENON,

KIMNAH MENON

                                                                                            Applicants

                            and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                          Respondent

PLACE OF HEARING:                                             Toronto, Ontario

DATE OF HEARING:                                               September 7,. 2005

REASONS FOR JUDGMENT:                                GIBSON J.

DATED:                                                          September 16, 2005

APPEARANCES:

SOLICITORS OF RECORD: