Federal Court Decisions

 

 

Date: 20130620

Docket: IMM-7302-12

Citation: 2013 FC 692

Ottawa, Ontario, June 20, 2013

PRESENT:    The Honourable Madam Justice Kane

 

 

BETWEEN:

	TSERING LHAMO
		Applicant
	and
	THE MINISTER OF CITIZENSHIP AND IMMIGRATION
		Respondent

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               Tsering Lhamo, the applicant in these proceedings, is the spouse of a Convention refugee in Canada, Tsering Norbu. Mr Norbu lived with his wife and family in India as stateless Tibetan refugees. Mr Norbu was granted refugee status in Canada in 2009. At the time of his application, Mr Norbu, as principal applicant, included his wife and two sons as family members. His wife subsequently applied for a visa for herself and one son, as a dependent of a protected person. The visa application was refused.

 

[2]               Ms Lhamo now seeks judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act], of the April 20, 2012 decision of the Visa Officer (the Officer) at the Canadian High Commission in New Delhi, India, which determined that she did not meet the requirements for permanent resident status as a dependent of a protected person in Canada.

 

[3]               In assessing the application, the Officer had sought verification that the principal applicant, Mr Norbu, and the applicant, Ms Lhamo, were the biological parents of the sons.  DNA results indicated that the younger son was the biological son of the applicant but not the son of Mr Norbu. Prior to submitting to the DNA testing, the older son chose to remain in India with his girlfriend and his name was removed from the application.

 

[4]               Following the receipt of the DNA results, Mr Norbu responded to the procedural fairness letter from the Officer indicating that he was saddened by this revelation. He indicated that his wife had disclosed an extra-marital affair, however he had come to terms with this and he wished to pursue the application. In his more recent affidavit, after the visa application was refused, Mr Norbu indicated that he always knew the two sons were not his biological children. The older son had been abandoned at birth and he and his wife adopted and raised him. The younger child was the son of his wife and her former husband, who had died shortly after the birth of the child.  Mr Norbu explained that he was desperate to bring his family to Canada, and that he had received bad advice and thought that the only way to do so was to state that the sons were his own. He was not aware that as the son of his spouse, the younger son could have been included as a family member.

 

[5]               It should be noted that the more recent information included in Mr Norbu’s affidavit was not before the Officer. The Officer only had the explanation from Mr Norbu that his wife had had an affair.

 

The Decision

[6]               The reasons for the decision include the letter of refusal dated April 2012 and the CAIPS notes which trace the processing of the application. The letter of the Officer indicates that he was not satisfied with the explanation provided. The Officer was not satisfied that the applicant was not inadmissible and that the applicant met the requirements of the Act.

 

[7]              In refusing the application, the Officer referred to subsection 16(1) of the Act,  which requires that applicants answer truthfully and completely with the requisite and relevant evidence and documents, and to section 11, which provides that a visa may be issued if the Officer is satisfied that the applicant is not inadmissible and meets the requirements of the Act. The Officer also relied on subsections 176(1) and (3) of the Regulations which provide that applicants may include family members; however, family members who are inadmissible pursuant to subsection 21(2) of the Act shall not become permanent residents.

 

Relevant Statutory Provisions

[8]               The relevant statutory provisions are set out below:

 

Immigration and Refugee Protection Regulations, SOR/2002-227

Definition of family member

 

The Issues

[9]               The applicant raises three grounds for review: firstly, that the Officer erred in relying on section 16; secondly, that the Officer conflated the requirements under section 16 with those under section 40 regarding misrepresentation, which is not a ground for inadmissibility of a dependent of a protected person, and in the alternative, that there was no misrepresentation; and thirdly, that the Officer called into question the genuineness of the marriage of the applicant and principal applicant but did not provide any opportunity for them to respond, which is a breach of procedural fairness.

 

[10]           With respect to all grounds, the applicant submits that the provisions of the Act must be considered in the context of the overall objectives and purpose of the Act which is to offer protection for refugees. The applicant noted several provisions in the Act which apply to family members of protected persons, recognise their special circumstances, and provide some leniency in the processing of their applications for permanent residence.

 

[11]           With respect to subsection 16(1), the applicant agrees that truthfulness is an important consideration for visa officers. Despite this, the applicant again relies on specific provisions of the Act that acknowledge the unique circumstances of refugees and, in particular, the family members of protected persons.

 

[12]          The applicant submits that the requirement of subsection 16(1) to answer truthfully is not a ground of inadmissibility to refuse an application for permanent residency of a spouse of a protected person pursuant to subsection 176(3) of the Regulations.

 

[13]           With respect to the interaction between subsection 176(3) of the Regulations and section 21 of the Act, the applicant submits that the only grounds for inadmissibility for family members of protected persons in Canada are those set out in subsection 21(2), which in turn refers to sections 34, 35, 36(1), 37 and 38: security (s 34), human or international human rights violations (s 35), serious criminality (s 36(1)), organized criminality (s 37), or serious health grounds (s 38).

 

[14]           Simply put, the applicant’s position is that the requirement to be truthful and the requirement not to make misrepresentations are not grounds for inadmissibility under section 21. The applicant submits that the application cannot be refused for either of these reasons.

 

[15]           In the alternative, the applicant submits that if misrepresentation could be a ground to refuse the application, there was no misrepresentation. In particular, the applicant argues that the information withheld was not of a material fact relating to a relevant matter and it could not have induced an error in the administration of the Act.

 

[16]          The applicant notes that she or the principal applicant could have disclosed that the principal applicant, Mr Norbu, was not the biological father of their son and could have still claimed the son as a de facto dependent child.  Therefore, the applicant submits that the misrepresentation could not induce an error in the administration of the Act.

 

[17]           In later submissions, the applicant notes that the son could have been claimed as a “family member” as the son of the principal applicant’s spouse.

 

[18]           The applicant also submits that the Officer breached a duty of procedural fairness by not allowing the applicant and her husband an opportunity to respond to the Officer’s concerns about the bona fides of their marriage.

 

[19]           The respondent submits that subsection 16(1) is clearly drafted and requires that all applications must be truthful. The failure of an applicant to be truthful is a reasonable ground for refusal of the application. The respondent submits that nothing prevents a refusal pursuant to section 16.  While the objectives of the Act are well-understood, no provision of the Act trumps another.  Moreover, the application of the Act cannot encourage applicants to make false statements.

 

[20]           The respondent further submits that the Officer did not confuse or conflate the provisions of section 40 and section 16. In his CAIPS notes, the Officer acknowledged that he erroneously referred to misrepresentation in his procedural fairness letter, but knew he was dealing with the dependent of a protected person and that section 16 was applicable, not section 40.

 

[21]           On the issue of misrepresentation more generally, whether or not section 40 is applicable, the respondent submits that the information that was withheld could have led to an error in the administration of the Act. But for the Officer’s request for the DNA tests and the results, the principal applicant’s family would have landed in Canada without disclosure of the true facts.

 

[22]           The respondent also notes that the principal applicant was untruthful in both the application and his explanation to the Visa Officer where he indicated he had just discovered that his wife had an affair. In his subsequent affidavit, he indicated that this was not true and he also indicated that the age of the son had not been accurately disclosed.

 

[23]           I would note that the information in the more recent affidavit was not before the Officer who based his decision only on the information before him.

 

[24]           With respect to the allegations of procedural fairness, the respondent submits that the bona fides of the marriage was not an issue for the Officer. The decision was based on the lack of truthfulness of the applicant.

 

Standard of Review

[25]           An immigration officer’s factual findings relating to an applicant’s eligibility for permanent residence in Canada are reviewable on a reasonableness standard: Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa], 2009 CarswellNat 434 at para 59, 61, 63; Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47, [Dunsmuir].

 

[26]           Where the standard of reasonableness applies, the role of the Court is not to substitute any decision it would have made, but to “determine if the outcome ‘falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’: Dunsmuir, at para 47. There may be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome”: Khosa at para 59.

 

[27]           A breach of procedural fairness and other issues raising questions of law are reviewable on the standard of correctness: Abou-Zahra v Canada (Minister of Citizenship and Immigration), 2010 FC 1073, [2010] FCJ no 1326 at para 16; Chowdhury v Canada (Minister of Citizenship and Immigration), 2009 FC 709, [2009] FCJ no 875 at para 29; Khosa at para 43; Dunsmuir, supra at para 79.

 

[28]           The applicant submits that the Officer erred in law by relying on section 16, which is reviewable on the correctness standard.

 

[29]           The thrust of the applicant’s argument relates to the interpretation of the provisions of the Act and the Regulations, and how particular provisions relate to each other. As the Act would be within the Officer’s area of expertise, I would not characterize the interpretation of the provisions at issue as questions of law for which a correctness standard applies.

 

[30]           I would note that the Act is a comprehensive regime that must be interpreted in a purposive way in the spirit of the objectives of the Act. No single provision can be considered without regard to the related provisions and the overall objectives of the Act. Section 3 sets out objectives with respect to immigration and refugees and the application of the Act, all of which must be considered and balanced in interpreting specific provisions.

 

[31]           The issues in the present case focus on the factual determinations of the Officer and how the Officer applied the law to the facts and exercised his discretion whether to grant the visa.  The decision is, therefore, reviewable on a standard of reasonableness.

 

Did the Officer err by incorrectly applying s 16(1) of the Act?

[32]           The main issue is whether the Officer erred by referring to s 16(1) of the Act as the reason for finding the applicant inadmissible.

 

[33]           The CAIPS notes indicate the following:

Refused under 16.1 (sic) as HOF in Canada and PA provided bogus birthc ertificates (sic)  for their listed dependents and did not declare that only accompnying (sic)  dependetn (sic) is not biological son of HOF.

Refusal letter. I also note that they never answered our PF letter from may (sic) 2011.

 

 

[34]           In the April 13, 2012 entry, the Officer acknowledges that a response had in fact been provided to the procedural fairness [PF] letter:

The HoF gives the explanation that his wife had an indiscretion (i.e. an affair) with another man without him being aware of it. However given that the other son, Richen Tenzin desisted from undergoing DNA testing just 2 months after we requested it in July 2010. This seems more than a coincidence as it is likely that he is not the son of the HoF.

 

The explanation given by the HoF about his wife having an affair is possible but I am not entirely convinced. As well she failed to declare that her sons were not the HoF’s sons thus she did lie by omission on her appln form. Thus my decision to refuse remains unchanged. Refusal still stands. 

 

 

[35]           In the letter of refusal, the Officer clearly states that he was unconvinced by the answer provided. The Officer referred to subsection 11(1) of the Act which provides that a visa shall be issued if an officer is satisfied that the foreign national is not inadmissible and that the foreign national meets the requirements of the Act. The Officer concluded that he was not satisfied that the applicant was not inadmissible and he was not satisfied that the applicant had met the requirements of the Act.

 

[36]           Regardless of whether the duty to be truthful is a specific ground of inadmissibility, it is clearly a requirement of the Act.

 

[37]           Although a person may not be inadmissible pursuant to the specific grounds of inadmissibility set out in subsection 21(3), they are not automatically admissible and provided with a visa.  The requirements of the Act must be met. One of those requirements is that an applicant be truthful.

 

[38]           Section 11 is clearly a discretionary provision with two criteria. It provides that an officer may issue a visa if the officer is satisfied that first, the applicant is not inadmissible, and second, that the applicant meets the requirements of the Act.

 

[39]           Section 16 is a key requirement of the Act which the Officer found had not been met. The Officer did not err in relying on section 16 as a reason to refuse the application pursuant to section 11.

 

Inadmissibility of Family Members

[40]           Subsections 176(1) and (3) of the Regulations, set out above, and referred to by the Officer, provide that the grounds for inadmissibility of a family member are those set out in subsection 21(2) of the Act.

 

[41]           As noted above, the grounds listed under subsection 21(2) of the Act include: security (s 34), human or international human rights violations (s 35), serious criminality (s 36(1)), organized criminality (s 37), or serious health grounds (s 38).

 

[42]           The applicant submits that the Regulations do not include misrepresentation as a ground of inadmissibility in family member applications, and therefore, the Officer erred in law by finding the applicant inadmissible and refusing the application.

 

[43]           The applicant also relies on the OP 24 Operational Manual, which includes guidelines specifically for family members of protected persons (DR2).  The applicant notes that paragraph 10.7 of OP 24 states that misrepresentation cannot be used as a basis for inadmissibility of family members of protected persons.

 

[44]           Paragraph 10.7 provides:

A40 cannot be used as a basis for the refusal of DR2 family members of protected persons. A40 is not included in the grounds for inadmissibility of family members of protected persons cited in A21(2), as per R176(3). Where material misrepresentation occurs and concerns a non bona fide relationship or the identity of the family member (e.g., marriage of convenience, adoption of convenience, misrepresentation of marriage records or of a child’s birth records, etc.), then the family member should be refused not as per A40, but as per R176(1) and R176(3). See the procedures for refusal of ineligible family members in section 10.6 above.

[emphasis in original]

 

(Note that A40 refers to section 40 of the Act which is set out above, regarding misrepresentation.)

 

[45]           The respondent agrees that section 40 is not applicable to family members of protected persons and also notes that the Officer acknowledged this in the CAIPS notes.

 

[46]           The OP manual confirms that a section 40 misrepresentation finding cannot be relied on to refuse family members of protected persons. However, it goes on to provide that  material misrepresentations and concerns of bona fide relationships should be used as a basis to refuse DR2 (dependents of protected persons) applicants under subsections 176(1) and (3) of the Regulations.

 

[47]          In this case, the Officer referred to subsections 176(1) and 176(3) of the Regulations in addition to section 16 and section 11 and did not refer to section 40 of the Act.

 

[48]           Although it is not necessary to deal with the applicant’s alternative argument given the acknowledgement that section 40 does not apply, the applicant submits that if misrepresentation were a ground of inadmissibility, there would be no such misrepresentation in this case because the requirements for misrepresentation were not present. The applicant referred to Bellido v Canada (Minister of Citizenship and Immigration), 2005 FC 452, where Justice Snider set out the requirements for a finding of inadmissibility for misrepresentation as follows:

[27]       Two factors must be present for a finding of inadmissibility under s. 40(1). There must be misrepresentations by the applicant and those misrepresentations must be material in that they could have induced an error in the administration of the IRPA. The standard of review in the first of these matters is, in my view, patent unreasonableness. These are determinations of fact, which the Visa Officer is in the best position to assess. Without coming to a final determination on the second factor, I will accept that the standard of review is reasonableness simpliciter.

 

 

[49]           The standard of review would now be reasonableness as both are questions of fact: was there a misrepresentation by the applicant (which need not be intentional) and was that misrepresentation material in that it could have induced an error in the administration of the Act?  As noted by Justice Snider in Bellido, the officer is in the best position to assess both requirements.

 

[50]           The applicant’s position is that the failure to disclose that the principal applicant was not the biological father of the son is not a material misrepresentation because the son was otherwise a de facto dependent or a family member (as the son of the principal applicant’s spouse). The failure to disclose the truth would not have induced an error in the administration of the Act because the applicant and son would have been admissible and the visa would have been granted if the truth were known.

 

[51]           The applicant also notes that if the decision to refuse had been based on misrepresentation, the consequences to the principal applicant’s family would have been inadmissibility for a period of two years, rather than the potentially more severe consequences of the refusal pursuant to section 16.

 

[52]           The applicant further submits that the facts of this case are unique. The lies were innocent and the result of poor advice and the stress of the principal applicant’s wife and son remaining in India as stateless persons.

 

[53]           While the applicant’s submissions that the overall objectives of Canada’s refugee protection regime recognise that applicants may have to take drastic measures to seek refugee protection, including sometimes to lie or to withhold information or to make misrepresentations, have been considered, and that the applicant’s circumstances are troubling, I would note that the Officer is well aware of the conditions present in refugees’ countries of origin and is tasked with administering the provisions of the Act to uphold both the spirit and integrity of the Act.

 

[54]           As noted, the Officer did not rely on section 40, which addresses misrepresentation, as the basis to refuse the visa application. Moreover, it is speculative for the applicant to suggest that if the truth were told, the visa application would have been issued, given that the decision to issue a visa is discretionary pursuant to section 11 of the Act.

 

Procedural Fairness

[55]           I do not agree with the applicant that the Officer questioned the bona fides of the applicant’s marriage and failed to provide an opportunity for the applicant to respond. Although the CAIPS notes do state, “This brings into question the bona fide (sic) of the relationship between PA (sic) and Norbu Tsering”, it is clear from reading the decision as a whole that the refusal was not based on any concerns about the marriage. The CAIPS notes go on to state that the marriage certificate is on file and is a certified copy.

 

[56]           Therefore, there was no breach of procedural fairness.

 

Proposed Certified Question

[57]           The applicant proposes the following question for certification:

“Where a withholding would not result in an error in the administration of the Immigration and Refugee Protection Act, does s 176(3) of the Immigration and Refugee Protection Regulations limit the use of s 16 of the Act to those grounds of inadmissibility applicable to the dependents of Convention Refugees (CRs), when those dependents are processed concurrently with the CR’s application for Permanent Residence?”

 

[58]           The respondent submits that this question would not be determinative of the application for judicial review and does not rise to the level of an issue of general importance.

 

[59]           I find the question difficult to understand as it raises issues that do not arise based on the wording of section 16 of the Act or subsection 176(3) of the Regulations. In addition, I find that the question would not resolve the issues before me because the Officer did not base his decision to refuse the visa on the basis of withholding and misrepresentation which are governed by section 40. The Officer relied on sections 16 and section 11. Section 16 does not refer to nor is it limited by specific grounds of inadmissibility; rather, it requires applicants to be truthful and to produce all relevant and required documents. Section 11 provides that a visa may be issued where two criteria are met: the applicant is not inadmissible, and the applicant meets the requirements of the Act. Therefore, the proposed question would not address the decision made in this case.

 

[60]           In conclusion, the application for judicial review is dismissed. The decision of the Officer was reasonable; it was transparent and intelligible and justified on the facts and the law.

As noted above, the question proposed is not appropriate for certification.

 

JUDGMENT

 

THIS COURT’S JUDGMENT is that

 

1.      The application for judicial review is dismissed;

 

2.      No question is certified

 

 

 

"Catherine M. Kane"

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                         IMM-7302-12

 

STYLE OF CAUSE:                        TSERING LHAMO v THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

 

PLACE OF HEARING:                  Toronto, Ontario

 

DATE OF HEARING:                    May 29, 2013

 

REASONS FOR JUDGMENT

AND JUDGMENT:                         KANE J.

 

DATED:                                            June 20, 2013

 

 

 

APPEARANCES:

 

Jennifer Stone	FOR THE APPLICANT
Leanne Briscoe	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

NEIGHBOURHOOD LEGAL SERVICES Barristers & Solicitors Toronto, Ontario	FOR THE APPLICANT
WILLIAM F. PENTNEY Deputy Attorney General of Canada	FOR THE RESPONDENT