Tuesday, August 18, 2015

APPLICANTS MUST PROVIDE COMPLETE APPLICATIONS

Applicants  must remember that it is their responsibility to provide complete applications,, as noted by the recent decision below.

Rezvani v. Canada (Minister of Citizenship and Immigration)

Between
Amir Rezvani, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 948
2015 FC 951

Docket: IMM-6394-14

 Federal Court
Toronto, Ontario

Southcott J.


Heard: July 21, 2015.
Judgment: August 6, 2015.
(32 paras.)


JUDGMENT AND REASONS
1     SOUTHCOTT J.:-- This is an application for judicial review of the June 8, 2012 decision (the Decision) of a Visa Officer (the Officer), which refused the applicant's application for permanent residence under the Federal Skilled Worker (FSW) program. The applicant claims that this decision should be quashed because the Officer breached procedural fairness, by not providing him with an opportunity to respond to credibility concerns, and on the basis that the decision is unreasonable because the Officer did not adequately assess the evidence.
2     For the reasons set out below, the application for judicial review is dismissed.
I. Background
3     The applicant, Mr. Amir Rezvani, is a citizen of Iran. He applied for permanent residence in Canada in 2010 based on his experience as a Financial Manager and an Accountant, being occupations with National Occupational Classification (NOC) codes NOC 0111 and NOC 1111, respectively. Based on a review of the application, the Centralized Intake Office in Sydney, Nova Scotia recommended that it be referred to the overseas visa office for a final determination of eligibility. A full application, including copies of employment letters and educational degrees, was submitted to the visa office on or around February 12, 2011.
4     Although the Decision was initially made on June 8, 2012, the record shows that the applicant did not receive the letter advising him of the Decision. In 2014, the applicant sent an updated application to add his new-born son. The visa office then sent him the Decision that had been made in 2012, which he received on July 4, 2014. Counsel for the applicant requested to have the file reopened to provide additional evidence. This was refused by the visa office. The applicant then filed an application for leave and judicial review on September 2, 2014.
II. Officer's Decision
5     The Officer found that the applicant had not provided sufficient evidence that he performed the actions described in the lead statement of the relevant occupations, as set out in the occupation descriptions of the NOC. The Decision stated that the employment documents submitted by the applicant only contained a vague description of his job duties and that the applicant's own descriptions of his duties were often copied directly out of the NOC, which diminished the overall credibility of the employment. Therefore, based on the information before the Officer, the Officer was not satisfied that the application fit within the categories of Financial Manager or Accountant.
6     The Global Case Management System (GCMS) notes also stated that the employment documents submitted by the applicant contained a lot of jargon related to the companies and that it was not always clear what was meant by the duties described. The notes stated that no explanation was provided by the applicant or the companies, and it appeared to the Officer that the applicant's experience matched that of a bookkeeper rather than an Accountant or Financial Manager. Therefore, the application was refused.
III. Submissions of the Parties

·       A. Applicant's Submissions
7     The applicant submits that where a visa officer's concerns relate to the credibility of the evidence, as opposed to the sufficiency of the evidence, the applicant must be given an opportunity to respond to the concerns (Fang v Canada (MCI), 2014 FC 196, at para 19 [Fang]; Rukmangathan v Canada (MCI), 2004 FC 284, at para 22, 38 [Rukmangathan]; Talpur v Canada (MCI), 2012 FC 25, at para 21 [Talpur]; Madadi v Canada (MCI), 2013 FC 716, at para 6 [Madadi]). This duty extends even where a visa officer is conducting an initial assessment of a case (Kumar v Canada (MCI), 2010 FC 1072, at para 29 [Kumar]).
8     The applicant's position is that the Officer clearly indicated that there were credibility concerns with the applicant's description of his job duties. Therefore, the Officer was obliged to inform the applicant of any concerns related to the credibility of the information contained within his application (Patel v Canada (MCI), 2011 FC 571, at paras 20, 22 [Patel]; Liao v Canada, [2000] F.C.J. No 1926, at para 17). In addition to the information that had been copied from the NOC, the applicant had submitted employment letters from his current and former employers, detailing his duties, and there was no reason for the Officer to consider the evidence to be insufficient or lacking in credibility. The applicant argues that the Officer's failure to provide him with an opportunity to respond to concerns related to the credibility of the evidence represents a breach of procedural fairness (Hassani v Canada (MCI), 2006 FC 1283, at para 24 [Hassani]).
9     The applicant further submits that where a decision-maker does not mention relevant evidence, this leads to a conclusion that the evidence in question was overlooked or ignored (Cepeda-Gutierrez v Canada (1998), 157 FTR 35, at para 17). The applicant contends that the Officer ignored the information in the employment letters, which contained relevant details about the duties he performed in his positions, as well as his educational degrees. The Officer accordingly failed to consider evidence that would have disabused him of concerns relating to the applicant's duties in his positions. The applicant also submits that the respondent's written argument represents an impermissible attempt to supplement the Officer's reasons by conducting his own analysis of the employment letters (Qi v Canada (MCI), 2009 FC 195, at para 35).
10     The applicant also argues for a time extension in his Memorandum of Arguments, given that he only received the refusal letter on July 4, 2014 and filed within 60 days of receiving it. However, given his evidence that he only became aware of the refusal letter on July 4, 2014, and that he filed his application for leave and judicial review within 60 days of being made aware of the decision, on September 2, 2014, there appears to be no need for a time extension according to the legislation (Immigration and Refugee Protection Act, SC 2001, c 27, ss. 72(2)(b)). In any event, the Respondent's counsel advised at the hearing that, given that leave for this application has been granted, the Respondent does not raise an issue with the timeliness of the application.

·       B. Respondent's Submissions
11     The respondent first submits that there was no breach of procedural fairness. The Officer's role is to assess the visa application on the basis of the information and evidence provided, and there is no general duty for visa officers to ask for clarification or additional information if the evidence is insufficient (Madan v Canada (MCI) (1999), 172 FTR 262, at para 6). The respondent contends that, contrary to the applicant's arguments, there were no credibility findings by the Officer. Rather, the Officer determined that the applicant repeated the terms used in the NOC instead of describing his position in his own words. The Officer took this into account and felt the applicant's evidence was insufficient, which is not a credibility finding (Kamchibekov v Canada (MCI), 2011 FC 1411 [Kamchibekov]).
12     Similarly, the respondent's position is that the Officer did not take issue with the credibility or the authenticity of the employment letters, but rather with their lack of specificity. There was therefore no need for additional procedural fairness (Obeta v Canada (MCI), 2012 FC 1542, at para 25 [Obeta]; Singh v Canada (MCI), 2009 FC 620, at para 7; Dhillon v Canada (MCI), 2009 FC 614, at para 30; Qin v Canada (MCI), 2002 FCT 815, at para 7). The respondent also argues that, even where an officer makes a reference to credibility, the duty of fairness may not be engaged where it appears that the officer's concerns were more about the adequacy of evidence provided by the applicant (Gharialia v Canada (MCI), 2013 FC 745, at paras 21-22 [Gharialia]). Relevant work experience is a concern that arises directly from the requirements in the legislation (Kamchibekov, at paras 25-27; Rukmangathan, at para 23).
13     The respondent argues that the duty of fairness for visa applicants is at the low end of the spectrum and that the burden is on the applicant to provide a complete application (Tahereh v Canada (MCI), 2008 FC 90, at para 12 [Tahereh]; Khan v Canada (MCI), 2001 FCA 345, at paras 31-32 [Khan]; Chiau v Canada (MCI), [2001] 2 FC 297, at para 41 (FCA); Obeta, at para 25). No further procedural fairness was required in this case, especially given that this application was refused at the eligibility stage of processing (Chadha v Canada (MCI), 2013 FC 105, at para 38; Kamchibekov, at paras 17-18, 26).
14     Overall, the respondent' position is that the Officer properly took into account all the evidence. The Officer considered the employment letters submitted by the applicant and reasonably determined that there was insufficient evidence that the applicant had performed the actions described in the lead statement of his stated occupations of Financial Manager and Accountant. The duties contained within the employment letters were closer to those of bookkeeper. The respondent also submits that the applicant's education is not determinative of the required work experience. Rather the Officer had to look at the duties performed. The Officer has expertise in evaluating whether the applicant has the necessary job experience, and the applicant did not provide sufficient evidence to satisfy the Officer (Buttar v Canada (MCI), 2010 FC 984 [Buttar]; Bhatia v Canada (MCI), 2012 FC 1278; Bighashi v Canada (MCI), 2013 FC 1110).
IV. Standard of Review
15     The applicant submits that the standard of review for issues of procedural fairness is correctness (Canada (MCI) v Khosa, 2009 SCC 12, at para 43 [Khosa]) and that the standard of review for questions involving an exercise of discretion and questions of mixed law and fact is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]). The applicant submitted in his Memorandum of Fact and Law that failure to consider important evidence is a legal error and is subject to the correctness standard of review (Ozdemir v Canada (MCI), 2001 FCA 331, at para 7; Uluk v Canada (MCI), 2009 FC 122, at para 16). However, I understood his counsel to confirm at the hearing that the standard of review in assessing whether the Decision properly took the evidence into account is one of reasonableness.
16     The respondent submits that the applicable standard of review is reasonableness, because the determination of whether or not an applicant has performed the required duties for an occupation in the context of a skilled worker application is largely a matter of fact (Dunsmuir, at para 47; Tiwana v Canada (MCI), 2008 FC 100, at para 12 [Tiwana]; Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at paras 17-18).
17     In my view, the issue of procedural fairness raised by the applicant is reviewable on the standard of correctness (Khosa, at para 43) and the issue whether the Decision properly took into account all the evidence is reviewable on the standard of reasonableness (Dunsmuir, at para 47; Kamchibekov, at para 12-13; Obeta, at paras 13-14).
V. Issues
18     Based on the parties' submissions, this application raises the following issues:

·       1. 
Was there a breach of procedural fairness? 

·       2. 
Was the Officer's decision reasonable? 
VI. Analysis

·       A. Was there a breach of procedural fairness?
19     The applicable jurisprudence establishes that, in cases dealing with visa officers' decisions on applications for permanent residence, the duty of fairness is generally at the low end of the spectrum. This is due to the absence of a legal right to permanent residence, the burden being on the applicant to establish eligibility, the impact on the applicant being less serious than in cases of the removal of a benefit, and the public interest in containing administrative costs (Tahereh, at para 12; Khan, at paras 39-40).
20     I agree with the applicant that, as part of the required procedural fairness in permanent residence applications, it has also been established in the jurisprudence that visa officers have a duty to inform the applicant of concerns relating to something other than the sufficiency of the evidence, such as the credibility or authenticity of the evidence presented (Fang, at para 19; Rukmangathan, at paras 22, 28; Talpur, at para 21; Madadi, at para 6; Kumar, at para 29; Hassani, at para 24).
21     However, it is also true that the burden is on the applicant to provide a complete application. Concerns arising out of sufficiency of the evidence do not have to be communicated to the applicant, given that this is part of the initial burden of providing a complete application. In Obeta, a case in which the visa officer noted that the tasks listed in employment letters had been copied directly from the relevant NOC codes, Justice Boivin stated as follows, at para 25:

·       ... The applicant has the burden to put together an application that is not only "complete" but relevant, convincing and unambiguous (Singh v. Canada (Minister of Citizenship & Immigration), 2012 FC 526, [2012] F.C.J. No. 548 (F.C.); Kamchibekov, above, at para 26). Despite the distinction that the applicant attempts to make between sufficiency and authenticity, the fact of the matter is that a complete application is in fact insufficient if the information it includes is irrelevant, unconvincing or ambiguous. [emphasis added] 
22     In the case at hand, the Officer determined that the applicant had not provided sufficient evidence that he had performed the actions described in the lead statement for the occupation, as set out in the occupational descriptions of the NOC. The Officer came to this conclusion based on the employment documents submitted by the applicant, which he considered to contain only vague descriptions of the job duties, and the applicant's own descriptions of the duties performed, which were often copied directly out of the NOC. This precise situation arose in Kamchibekov where Justice Pinard stated at para 15:

·       According to Operational Bulletin 120 - June 15, 2009, Federal Skilled Worker (FSW) Applications -- Procedures for Visa Offices, descriptions of duties taken verbatim from the NOC are to be regarded as self-serving. When presented with such documents, visa officers are entitled to wonder whether they accurately describe the applicant's work experience. Where a document lacks sufficient detail to permit its verification and ensure a credible description, the applicant will not have produced sufficient evidence to establish eligibility: the visa officer must proceed to a final determination and if the evidence is insufficient, a negative determination of eligibility should be rendered. 
23     In Kamchibekov, the applicant's description of the tasks he claimed to have performed were a verbatim copy of tasks listed in the NOC. Justice Pinard's analysis of whether procedural fairness requirements arose is set out as follows at paragraphs 25-28:

·       [25] Alternatively, the applicant claims that even if the officer's reasons are sufficient, the latter breached his duty of fairness in not conducting an interview, denying the applicant the right to respond to the officer's concerns as to the veracity of the application, which is the reason his application was rejected. As defined by the applicant, the officer's duty of fairness required the applicant be given the opportunity to respond to the officer's concerns (Olorunshola v. Minister of Citizenship and Immigration, 2007 FC 1056 [Olorunshola]). Inversely, the respondent emphasizes the context of the decision: at this eligibility stage, notification is not a requirement of procedural fairness and the applicant was not entitled to a running tally or an interview to correct his deficient application (Kaur v. Minister of Citizenship and Immigration, 2010 FC 442 [Kaur]). 

·       [26] In Kaur, procedural fairness did not require the visa officer to notify the applicant of the inadequacies in the materials she had provided: the onus is on an applicant to submit sufficient evidence in support of his application (Kaur at para 9). Therefore, in such cases, the applicant is not entitled to an interview to remedy his own shortcomings (Kaur at para 9). Moreover, where the visa officer's concerns arise directly from the requirements of the legislation or regulations, he is under no duty to notify the applicant (Kaur at para 11; Rukmangathan v. Minister of Citizenship and Immigration, 2004 FC 284 at para 23). Relevant work experience is a concern that arises from the regulations: a visa officer is under no duty to mention his concerns as to the applicant's work experience (Kaur at para 12). Ultimately, the visa officer has no obligation to make inquiries where the applicant's application is ambiguous: "there is no entitlement to an interview if the application is ambiguous or supporting material is not included" (Kaur at para 10; Sharma v. Minister of Citizenship and Immigration, 2009 FC 786 at para 8 [Sharma]; Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316 at para 4). To hold otherwise would impose on visa officers an obligation to give advance notice of a negative finding of eligibility (Sharma at para 8). 

·       [27] In the case at hand, the officer did not have the obligation to hold an interview or to inform the applicant of his concerns with regards to the duplication of the NOC listed duties, much like in Kaur. In the words of Justice Danièle Tremblay-Lamer at paragraph 14: 

·       ... It did not help that the Applicant's own description of her duties appeared to be copied from the National Occupational Classification. Thus, it was open to the visa officer, on the basis of the scant evidence before him, to find that the Applicant had not established that she had sufficient work experience in her stated occupation, and to reject her application on that basis. 

·       [28] Therefore, the officer did not breach his duty of procedural fairness. 
24     Therefore, where descriptions of duties are copied from the NOC, the visa officer is entitled to find that there is insufficient evidence to establish eligibility. In this case, although the visa officer used the word "credibility" in the Decision, the Officer appears to have been making a finding on the sufficiency of the evidence, given that it is supporting the overall finding that the applicant had not provided sufficient evidence that he performed the actions described in the lead statement for the occupation. As in Gharialia, at paras 21-22, I agree with the respondent that, notwithstanding that the Officer used the term "credibility", the Officer's findings were not actually credibility findings, but rather a finding of insufficiency of evidence. There was no breach of procedural fairness given that the burden is on the applicant to provide a complete application.
25     Relevant work experience is a concern that arises directly from the requirements in the legislation, and the Officer therefore was not required to put concerns relating to this aspect of the application directly to the applicant (Kamchibekov, at paras 25-27; Rukmangathan, at para 23).
26     I find the decision in Patel, on which the applicant relies, to be distinguishable. It is clear from Justice O'Keefe's reasons, at paragraphs 26-27, that he concluded the visa officer to have regarded the employment letter in that case, into which the duties had been copied directly from the NOC description, to be fraudulent. That case therefore did involve an issue of credibility or authenticity rather than one of sufficiency of the evidence. At the hearing, the Applicant also emphasized the decision in Madadi. That case, however, also involved a situation where the Court found that the visa officer had rejected an application based on the credibility of the employer's letter.
27     I therefore find that there was no breach of procedural fairness in the Officer's processing of the applicant's application for permanent residence.

·       B. Was the Officer's decision reasonable?
28     I do not regard the assessment of the evidence by the Officer as unreasonable. First, it is clear from the Officer's letter to the Applicant rejecting his application, and from the GCMS notes, that the Officer did consider the employment letters submitted by the applicant. He refers to the "employment documents" and "letters" from the companies for which the applicant worked, which demonstrates that they were considered in the assessment of the application.
29     The Officer stated that the employment documents contained "jargon related to the companies", that it was "not always clear what the duties described mean", and that the "employment documents only contain a vague description of [the applicant's] job duties". From what the Officer understood from the letters, he determined that the applicant's "experience matches more that of a bookkeeper rather than an accountant or financial manager". When considering the employment letters, it was open to the Officer to come to the conclusion that the duties described were closer to that of a bookkeeper than an accountant or financial manager.
30     At the hearing of this application, the Applicant's counsel also referred the Court to the Applicant's resume that formed part of the material submitted to the Officer. The Applicant argues that the Officer took into account only the applicant's application form, which the Officer found contained descriptions of his duties that were often copied directly from the NOC. The Officer failed to refer to the resume, which represents an explanation of the "jargon" contained in the employments letters, for which the GCMS notes say no explanation was provided. However, having reviewed the resume, I see that it contains essentially the same information as the application form, including substantial portions that match the language in the NOC. I accordingly find no merit in this argument.
31     A visa officer has the expertise to evaluate the applicant's job experience, and deference is owed to this evaluation (Buttar, at para 9; Tiwana, at para 12). The Officer found in this case that the evidence was insufficient to support a conclusion that the applicant's duties matched those of a Financial Manager or Accountant This was a reasonable conclusion that falls within the "range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, at para 47).
VII. Conclusions
32     For the reasons above, the application for judicial review is dismissed. Counsel were consulted on whether either party wished to raise an issue to be certified for appeal for the Court's consideration. No such issue was raised.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question is certified for appeal.

SOUTHCOTT J.

Monday, August 17, 2015

SERGIO R. KARAS QUOTED IN TODAY'S TORONTO STAR

I was quoted in today's Toronto Star story on the immigration consequences of criminal convictions.

Man’s immigration status wins him slightly shorter sentence

Man’s immigration status wins him slightly shorter sentence


A Toronto court credited a Vietnamese-Canadian permanent resident for time served and gave him a suspended sentence with probation.

A Toronto court has given a permanent resident a slightly lighter sentence so he can fight possible deportation, a judgment becoming more common as a new law makes that process harder for certain non-citizens convicted of crimes in Canada.
In a recent judgment, Justice Fergus O’Donnell credited a Vietnamese man, Hoang Vu, for the equivalent of just under six months already served and gave him a suspended sentence with three years’ probation.
Considering the crime alone, O’Donnell said, an appropriate sentence would have been six to eight months. That would have made Vu unable to challenge a possible deportation order under the newly passed Faster Removal of Foreign Criminals Act.
“Mr. Vu left Vietnam as an 11-year-old boy. After two years in an Indonesian refugee camp he arrived in Canada as a 13-year-old boy. He is now a 43-year-old man,” O’Donnell wrote in the decision released this month. “At this point in his life, Vietnam is a foreign country to him.”
The Star was not able to reach O’Donnell or the Crown for comment over the weekend. Vu’s lawyer said he needed to confer with his client before commenting.
Vu, who has 11 prior convictions, had pleaded guilty to a single count of assault with a weapon, a charge to which the defence recommended a sentence of under six months in prison. The Crown had recommended 15 months.
Under the Faster Removal of Foreign Criminals Act, non-citizens sentenced to terms six months or longer cannot appeal to the Immigration Appeal Division if a decision is made to deport them. Before the new law came into effect this year, that threshold was two years.
Experts said judges do have the right to consider a convicted person’s status when sentencing — but with only a little discretion.
Under the precedent set by the case R. v. Pham in 2013, judges can consider a slightly lighter sentence, which will not have immigration consequences, only if it still falls in the appropriate range for the crime, said Sergio Karas, an immigration lawyer and former chair of the Ontario Bar Association’s immigration section.
O’Donnell gave Vu 1.5 times credit for the roughly four months he already served, resulting in 180 days, just a few days below what he said was the range.
“It seems to me that, even with this one serious offence and with his previous history of mostly trivial criminality, it would be odious to send Mr. Vu back to Vietnam.”
Steven Tress, who practises both immigration and criminal law in Toronto, said the slight reduction would not be unfair to Canadian criminals. Sentencing is an individualized process that takes into account personal circumstances, Tress said, immigration status being one of those.
“Canadian criminals don’t have to face deportation, don’t have to interrupt their rehabilitation programs,” he added. “If rehabilitation is an important enough factor in sentencing of a foreign criminal, then you’re actually leveling the playing field.”
Vu’s sentence comes follows a similar case in May, in which a Syrian man’s nine-month sentence for bank robbery was slashed by one-third on appeal. In another case, this month, a Cuban-born drug smuggler failed to get his six-year sentence lowered because of his immigration status.

Tuesday, August 11, 2015

MISREPRESENTATION RESULTS IN CITIZENSHIP REVOCATION, COSTS AGAINST APLLICANT

Many applicants misrepresent their residency in Canada to obtain citizenship. The consequences of such conduct can be dire, as illustrated by the recent case below. Do not misrepresent!

Canada (Minister of Citizenship and Immigration) v. Achkar

Between
The Minister of Citizenship and Immigration, Plaintiff, and
Jihad Achkar, Marie Sassine, Youmna Achkar,
Yasmina Achkar, Anis Achkar,
Iyad Achkar, Defendants
[2015] F.C.J. No. 597
[2015] A.C.F. no 597
2015 FC 605

Docket: T-817-14

 Federal Court

St-Louis J.


Heard: April 28, 2015.
Judgment: May 8, 2015.
(42 paras.)



JUDGMENT AND REASONS

·       ST-LOUIS J.:-- 
I. INTRODUCTION
1     The Minister of Citizenship and Immigration (the Minister) seeks summary judgment declaring that the defendants, six members of the same family, obtained their Canadian citizenship by false representations or fraud, or by knowingly concealing material circumstances
2     I am satisfied that the defendants have not raised a genuine issue for trial as to whether they obtained their Canadian citizenship as a result of false representations made in their citizenship applications and consequently I will issue the summary judgment sought by the Minister.
II. BRIEF STATEMENT OF FACTS
3     The defendants are a family made up of the spouses, Jihad Achkar and Marie Sassine, and their four children, Youmna, Yasmina, Anis and Iyad.
4     On July 6, 2001, the defendants arrived in Canada and were landed as permanent residents of Canada.
5     On January 20, 2005, Ms. Sassine signed her application for Canadian citizenship and also signed the application for each of the couple's children. Thus, the reference period for their applications is from July 6, 2001, to January 20, 2005.
6     Ms. Sassine stated on her application that she was absent from Canada for 157 days and present 1137 days during the reference period. Ms. Sassine stated on the application that she signed for each child that they were not absent from Canada for six months or more during the reference period.
7     On March 4, 2005, Mr. Achkar signed his application for Canadian citizenship. The reference period for his application is from July 6, 2001, to March 4, 2005.
8     Mr. Achkar stated on his application that he was absent from Canada for 138 days and present 1199 days during the reference period.
9     Moreover, all the members of the family indicated only Canadian home addresses during the entire reference period.
10     On May 30, 2006, Mr. Achkar was granted Canadian citizenship and on April 11, 2006, Ms. Sassine and the four children were granted Canadian citizenship.
11     On November 3, 2011, pursuant to section 18 of the Citizenship Act, RSC 1985, c C-29 (Citizenship Act), the Minister served on each defendant notices of citizenship revocation dated June 29, 2011, (the Notices) informing them that he intended to file a report with the Governor in Council stating that they obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances so that their Canadian citizenship could be revoked.
12     In the Notices sent to Mr. Achkar and Ms. Sassine, the Minister claims that they [TRANSLATION] "failed to declare all of [their] absences from Canada during the four years immediately preceding the date of their citizenship applications [and made] false representations on their citizenship applications with respect to the residency requirement during the four years immediately preceding the date of their citizenship applications."
13     In the Notices sent to the children, the Minister claims that [TRANSLATION] "[their] parents failed to declare all of their absences from Canada during the four years immediately preceding the date of their citizenship applications [and] provided false information on their citizenship applications with respect to their residency in Canada during the four years immediately preceding the date of their citizenship applications."
14     Indeed, according to the evidence adduced by the Minister, the parents allegedly were not present in Canada for the number of days indicated in their forms, the children allegedly were absent from Canada for over six months and all the family members allegedly did not live at the home addresses provided.
15     Indeed, contrary to the information provided in their citizenship applications, the defendants came to Canada on July 6, 2001, to obtain their permanent resident status, stayed in the country for a few weeks to compete the administrative procedures and then left to live in Lebanon. During the following two years, the parents returned to Canada only a handful of times and the children never returned.
16     The family came to Canada and lived there only from July 2003 to July 2006.
17     On November 3, 2011, the defendants requested that their case be referred to the Federal Court in accordance with the provisions of subsection 18(1) of the Citizenship Act.
18     On April 3, 2014, the Minister filed a statement of claim under Rule 171(a)(i) of the Federal Courts Rules, SOR/98-106 (the Rules). On September 15, 2014, the defendants filed their statement of defence and on September 30, 2014, the Minister filed his reply.
19     In their statement of defence, the defendants admit that they made false representations on their applications and that they were not present in Canada the number of days stated in their Canadian citizenship applications. It is difficult to follow their reasoning when they try to justify their actions since they state that they were not informed of the need to be physically present in Canada while at the same time claiming that they were informed of that requirement by an officer of the Canadian Border Services Agency in December 2002, and thus they then decided to reside in Canada.
20     The defendants allege that they were scammed by their immigration consultant, they made their representations in good faith, they are innocent even if they made false or misleading representations and that the parents and particularly the minor children did not intend to deceive the Minister. The defendants even contend that the Minister himself is responsible for their actions since his lax border controls encourage applicants for Canadian citizenship to commit fraud.
21     On October 28, 2014, the defendants filed an affidavit of documents under Rule 223 and on November 3, 2014, the Minister filed an affidavit of documents under the same rule.
22     However, the defendants did not file any affidavit to establish the facts within their personal knowledge.
III. ISSUE
23     The Court must determine whether this case raises a genuine issue for trial or, on the contrary, whether it may find that a genuine issue for trial has not been raised and consequently grant summary judgment.
IV. LEGISLATIVE FRAMEWORK

·       A. 
Loss of Citizenship 
24     Subsection 10(1) of the Citizenship Act provides that "where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained ... citizenship ... by false representation or fraud or by knowingly concealing material circumstances", the person ceases to be a citizen (paragraph 10(1)(a), subject to section 18 of this Act.
25     Subsection 18(1) of the Citizenship Act provides, however, that the Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and (a) that person does not within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or (b) that the person does so request and the Court decides that there has been false representation or fraud or knowing concealment of material circumstances.
26     The referral set out in subsection 18(1) of the Citizenship Act has been deemed "essentially an investigative proceeding used to collect evidence of facts surrounding the acquisition of citizenship, so as to determine whether it was obtained by fraudulent means" (Canada (Minister of Citizenship and Immigration) v Obodzinsky, 2002 FCA 518, at para 15).
27     Thus, as Justice Mactavish stated, "[t]he task for the Court in a proceeding such as this is to make factual findings as to whether the defendants obtained their Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. Findings made by this Court under paragraph 18(1)(b) of the Citizenship Act are final, and cannot be appealed." (Canada (Minister of Citizenship and Immigration) v Houchaine, 2014 FC 342 at para 12).
28     The Court's findings may form the basis of a report submitted by the Minister to the Governor in Council for the revocation of citizenship.
29     The burden is on the Minister to demonstrate, on the balance of probabilities, that the defendants obtained their Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances (Canada (Minister of Citizenship and Immigration) v Skomatchuk, 2006 FC 994 at para 21).
30     The Court has established certain principles in that regard. Thus, citizenship applicants must have intended to mislead the decision-maker so that a technical error made innocently or inadvertently does not result in a declaration under section 10 (Canada (Minister of Citizenship and Immigration) v Savic, 2014 FC 523 at para 74).
31     The Court has also established that "'willfull blindness', when practised by an applicant for Canadian citizenship in the pursuit of his or her application, is not to be condoned. ...In those circumstances, the applicant for Canadian citizenship, when faced with a situation of doubt, should invariably err on the side of full disclosure to a citizenship judge or citizenship official." (Canada (Minister of Citizenship and Immigration) v Phan, 2003 FC 1194 at para 33).
32     Last, in situation where a parent signs the application for a minor child, the Court has confirmed that, since the Citizenship Act permits a parent to make a citizenship application on behalf of their minor child, any allegation of false representations or fraud or knowing concealment of material circumstances must pertain to the acts or omissions of the parent and thus, the child does not have to intend to mislead the decision-maker (Canada (Minister of Citizenship and Immigration) v Zakaria, 2014 FC 864 at para 84).

·       B. 
Summary Judgment 
33     Rule 215 of the Federal Court Rules states that the Court shall grant a summary judgment if on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence. There is no genuine issue for trial when the summary judgment proceeding "(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result." (Hryniak v Mauldin, 2014 SCC 7 at para 49).
34     In that type of proceeding, it is well settled that the "defendant must put its 'best foot forward' and this requires that the defendant lead evidence and make an argument that there is a genuine issue requiring a trial." (Moroccanoil Israel Ltd v Lipton, 2013 FC 667 at para 10).
V. ANALYSIS
35     The defendants admit that they made false representations in their citizenship applications and the Minister submitted the documents needed to support his claims.
36     The Court reviewed the documents on the record and is satisfied that the Minister met his burden and that the defendants made false representations. Indeed, they failed to declare material facts, specifically that for all intents and purposes they were absent from Canada from July 2001 to July 2003, that the children were absent from Canada for periods of six months or more and that the family members did not live at the home address provided from July 2001 to July 2003. The copies of the children's school records were probative here since they confirm that the children went to school in Lebanon until the end of the 2003 school year.
37     The defendants chose not to adduce affidavit evidence to support their arguments. They have no obligation under the Rules to adduce such affidavits; however, failure to do so considerably limits their evidence and their submissions. Indeed, filing an affidavit makes it possible to establish the facts that a party relies upon in its representations (Palmar Inc v Canada, (1998), 98 GTC 6281 at para 4 (FCTD)) and in a summary judgment matter, the Court weighs the evidence contained in the affidavits to determine if there is a genuine issue for trial (0871768 BC Ltd v Aestival (Vessel), 2014 FC 1047 at para 55).
38     The defendants also submitted that they would like a trial in order to be able to adduce the evidence to support their defence. As mentioned above, they had to make their best arguments in relation to this motion for summary judgment in order to prove that there is a genuine issue for trial, and thus, the Court cannot agree with their position.
39     Since they chose not to submit affidavits, the defendants did not adduce evidence to support their arguments, particularly evidence of their understanding of whether there was a need to be physically present in Canada during the period from July 2001 to July 2003. Moreover, it should be recalled that they admitted in their statement of defence that they made false representations in their citizenship applications and they reiterated those admissions before the Court during the hearing.
40     Both in their statement of defence and before the Court, they tried to claim that they were misled and confused in their interpretation of the residency requirements for granting citizenship.
41     On the contrary, the Court is satisfied that the defendants' false representations and factual omissions are not innocent and that if they had been in doubt, they should have disclosed all the information about their situation in their citizenship applications.
42     Last, as mentioned above, the Court finds that any allegation of false representations or fraud or knowing concealment of material circumstances must pertain to the acts or omissions of the parent acting on behalf of their children, and thus, the children do not have to have intended to mislead the decision-maker
JUDGMENT

·       THIS COURT ORDERS AND ADJUDGES that:

·       1. 
Each of the defendants, Jihad Achkar, Marie Sassine, Youmna Achkar, Yasmina Achkar, Anis Achkar and Iyad Achkar obtained citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances within the meaning of paragraph 18(1)(b) of the Citizenship Act, RSC 1985, c C-29;- 

·       2. 

The plaintiff is entitled to costs based on the upper end of Column V of Tariff B to the Federal Courts Rules, SOR/98-106 . 

Thursday, August 6, 2015

CONCEALING RELATIONSHIP RESULTS IN MISREPRESENTATION FINDING

This is an interesting case. I have seen many instances in which spouses were misled or duped. The Federal Court upheld the IAD refusal to quash the deportation order. Note that the matter was triggered by the Canadian resident spouse who contacted CBSA with a complaint.

Duquitan v. Canada (Citizenship and Immigration)

Between
Ryan Cueto Duquitan, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 886
2015 FC 769

Docket: IMM-7812-14

 Federal Court
Edmonton, Alberta

Shore J.


Heard: June 18, 2015.
Judgment: June 19, 2015.
(12 paras.)




·        REASONS FOR JUDGMENT AND JUDGMENT

·        SHORE J.:-- 
I. Overview
1     "The Court finds that the discovery of marital infidelity is relevant to the determination of whether marriage between the applicant and the sponsor is genuine. ... The factors relevant to this determination include the existence of monogamy and a commitment to exclusivity."
2     The core matter is one of spousal sponsorship as is stated in the decision of Mr. Justice Michael Kelen, as quoted above (Quezeda Bustamente v. Canada (Citizenship and Immigration), 2011 FC 1198, para. 29).
3     In addition, "the word 'conjugal' does not mean sexual relations alone. It signifies that there is a significant degree of attachment between two partners. The word 'conjugal' comes from two Latin words, one meaning 'join' and the other meaning 'yoke,' thus, literally, the term means 'joined together' or 'yoked together'." (As is stated in CIC's Operation Manual, OP2: Processing Members of the Family Class (the Manual)). It is recalled that it is of paramount importance in such a determination that the existence of monogamy and commitment to exclusivity in a marriage is primordial.
II. Background
4     The Applicant seeks judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of an Immigration Appeal Division [IAD] decision upholding the Immigration Division's [ID] issuance of an exclusion order against the Applicant for having withheld a material fact relating to a relevant matter that induced or could have induced an error in the administration of the IRPA, under paragraph 40(1) of the IRPA.
5     The Applicant is a 30 year old citizen of the Philippines. The Applicant was sponsored by his ex-wife [M.F.D] and became a permanent resident of Canada on September 16, 2010. Shortly thereafter, M.F.D. learned that the Applicant was in a continuing relationship with another woman [A.G.]. M.F.D. left the Applicant and reported his actions to the Canada Border Services Agency [CBSA]. As a result of his failure to disclose his extramarital relationship, the Applicant was found to be inadmissible under paragraph 40(1)(a) of the IRPA. As a result, an exclusion order was issued against the Applicant pursuant to subsection 45(d) of the IRPA. On appeal before the IAD, the Applicant challenged the legal validity of the exclusion order pursuant to the IAD's discretionary jurisdiction to grant special relief on the basis of H&C grounds.
6     In its decision, dated September 22, 2014, the IAD assessed the materiality of the Applicant's non-disclosure of his intimate relationship with A.G., with whom he had an intimate and public relationship that he attempted to conceal from M.D.F. The IAD concluded that the Applicant's relationship with A.G. was a material fact related to a relevant matter in that it goes to the very core of the genuineness of the Applicant's marriage with his sponsor, M.D.F. The IAD reasoned that by withholding the facts related to his relationship with A.G., the Applicant averted further enquiries by the visa officer, thereby inducing an error in the administration of the IRPA. Such as enunciated by Justice Michael A. Kelen of the Federal Court in Bustamente, "the discovery of marital infidelity is relevant to the determination of whether the marriage between the applicant and sponsor is genuine" (Bustamente v. Canada (Citizenship and Immigration), 2011 FC 1198, at para 29).
7     Relying on Justice Robert Mainville's decision in Cao, the IAD further found that the Applicant had a general and broad duty to disclose all facts which may be material to his application for permanent residence (Cao v. Canada (Citizenship and Immigration), 2010 FC 450, at para 28). The IAD concluded that the Applicant knew or ought to have known that his application was contingent on the visa officer's determination that he was a member of the family class by virtue of his marriage to M.F.D.
III. Analysis
8     The IAD's analysis and reasons pertaining to the validity of the exclusion order issued against the Applicant and the recognition of the Applicant's duty of candour owed towards Canadian immigration officials are thorough and anchored in the evidentiary record and the law. The Court finds that the IAD's conclusion that the Applicant's misrepresentation was at the heart of the determination of his spousal sponsorship for the purposes of subsection 40(1) of the IRPA is reasonable; had the Applicant not withheld the relationship with A.G., he likely would not have received a permanent resident visa as M.F.D.'s spouse.
9     The IAD then turned to the assessment of H&C considerations, relying on factors set out in Ribic v. Canada (Minister of Employment and Immigration), [1985] IABD 4. Among others, the IAD made the following findings in respect of the relevant Ribic factors:

·        * 
Seriousness of the misrepresentation: the IAD found that the Applicant's misrepresentation was at the heart of the determination of his permanent residence (see: CBSA interview notes and IAD Hearing transcript, Certified Tribunal Record, at pp 81, 183 and 184); 

·        * 
Remorse: the Applicant showed no remorse or understanding for the seriousness of his non-disclosure. Rather, the Applicant minimized his actions and provided misleading answers during his CBSA interview; 

·        * 
Degree of establishment in Canada: the IAD found that the Applicant has established himself as a hard-working member of the community, which is a positive factor; however, but for his misrepresentation, the Applicant would not have achieved this level of establishment; 

·        * 
Undue hardship upon return to the Philippines: the IAD found that other than a loss of income and a return to his former way-of-life, the Applicant's submission that the loss of his status in Canada would cause him or members of his family undue hardship is unsupported by the evidence. The IAD also noted the absence of evidence of family or community support; 

·        * 
Conditions in the country of removal: The IAD found that the Applicant left the Philippines in 2010, where he had been previously employed, and where his parents, siblings and their children currently live. The IAD considered the Applicant's arguments that he financially supports his family by transferring them money on a monthly basis, but found that this allegation is unsupported by the evidence; 

·        * 
Best interests of the children affected: the IAD also noted that although the Applicant's nieces and nephews in the Philippines, whom he allegedly financially supports, may be affected by the Applicant's loss of income upon return, this submission is unsupported by the evidence; 
10     This Court has held that the purpose of paragraph 40(1)(a) of the IRPA is to ensure that applicants provide "complete, honest and truthful information and to deter misrepresentation" and that "full disclosure is fundamental to the proper and fair administration of the immigration scheme". It has also been held that subsection 40(1) of the IRPA encompasses innocent failures to disclose material information. Moreover, "a misrepresentation need not be decisive or determinative to be material; it must only be important enough to affect the process" (Paashazadeh v. Canada (Citizenship and Immigration), 2015 FC 327, at paras 18, 25 and 26).
IV. Conclusion
11     The Court finds that the IAD's conclusion, in respect of insufficient H&C considerations to warrant special relief in the circumstances, is reasonable. The IAD's findings pertaining to H&C considerations are anchored in the evidentiary records and are based on a careful consideration of the factors established in Ribic, as stated above.
12     The Court, therefore, concludes that the application for judicial review is dismissed.
JUDGMENT

·        THIS COURT'S JUDGMENT is that:

·        1. 
The application for judicial review is dismissed. 

·        2. 
No serious question of general importance is certified. 

SHORE J.
Visalaw International CS CBA OBA-ABO AILA IPBA NYSRA ABA IBA