Date: 20190408

Docket: IMM-3900-18

Citation: 2019 FC 422

Ottawa, Ontario, April 8, 2019

PRESENT:  The Honourable Mr. Justice Russell

BETWEEN:

KEYURIBEN VIJABHAI PATEL (AKA KEYURIBEN VIJAY PATEL)

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I.  INTRODUCTION

[1]  This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of a decision made by the Immigration Appeal Division of the Immigration and Refugee Board of Canada [IAD] dated July 23, 2018 [Decision] wherein the IAD upheld the decision of the Immigration Officer [Officer] who determined that the Applicant had committed a misrepresentation under s 40(1)(a) of the Act.

II.  BACKGROUND

[2]  The Applicant, Keyuriben Vijabhai Patel, is a citizen of India.

[3]  The Applicant married her former husband through an arranged marriage in India. Her former husband, a Canadian citizen, returned to Canada after the wedding. The Applicant stayed in India while her former husband arranged to sponsor her to immigrate to Canada.

[4]  The Applicant’s former husband frequently became angry with her for perceived slights. He repeatedly threatened to terminate the sponsorship application and leave her in India. His anger generally dissipated after a few days.

[5]  On February 13, 2009, the Applicant attended her sister’s wedding in India. This wedding took place shortly after the Applicant learned that her application for permanent residence in Canada had been approved. Her former husband telephoned before an important dance related to her sister’s wedding and in which the Applicant was slated to play a lead role. He became enraged when the Applicant told him that she could not speak at length. He told her that he did not want her to come to Canada.

[6]  The Applicant travelled to Canada on March 5, 2009 and obtained her permanent residence. She did not inform the visa officer at the port of entry about the argument that took place on February 13, 2009. It was her view that the argument was a private conversation between husband and wife that did not need to be disclosed. Further, based on her former husband’s previous threats, she believed that his latest threat was an empty one.

[7]  The Applicant returned to India in April 2009. While in India, she continued to try to get in touch with her former husband but to no avail. She returned to Canada in February 2010. Upon arrival, she made concerted attempts to visit her former husband, but he did not want to see her. Eventually, she filed for divorce which was granted by the Ontario Superior Court of Justice on September 24, 2015.

[8]  On May 11, 2015, an immigration officer made a report under s 44(1) of the Act which deemed the Applicant inadmissible to Canada based on misrepresentation. The finding of inadmissibility stemmed from the allegation that when she entered Canada in March 2009 the Applicant failed to disclose the recent altercation with her former husband and his telling her not to come to Canada before she was granted status as a permanent resident. A member of the Immigration Division upheld the immigration officer’s determination on July 28, 2016 and issued an exclusion order against the Applicant. The Applicant appealed the Immigration Division’s decision and issuance of an exclusion order.

III.  DECISION UNDER REVIEW

[9]  On July 23, 2018, the IAD upheld the removal order made against the Applicant on July 28, 2016. The IAD determined that the Officer’s determination was legally valid. The IAD also determined that there were insufficient humanitarian and compassionate [H&C] grounds to justify granting relief to the Applicant.

[10]  The IAD began by setting out the elements of misrepresentation and the relevant jurisprudence. The IAD considered the allegations made by the Applicant’s former husband. The former husband told immigration authorities that the Applicant had failed to notify him upon her arrival in Canada. Additionally, the former husband claimed that the Applicant had never tried to contact him after arriving in Canada. The IAD deemed these allegations a “poison pen letter” to which little weight could be assigned.

[11]  The IAD considered the Applicant’s testimony and her assertion that a domestic argument does not need to be disclosed to an immigration officer. The IAD also considered the Respondent’s argument that the information about the Applicant’s relationship with her former husband was critical information which needed to be disclosed.

[12]  The IAD determined that the Applicant had engaged in misrepresentation by failing to disclose the material change in her relationship with her former husband. In arriving at this conclusion, the IAD recognized that spouses routinely disagree with one another and have arguments which are deserving of privacy. The sponsorship of a spouse, however, attracts different considerations. Individuals being sponsored by a spouse have a duty to divulge detailed and descriptive information about their relationship when asked by immigration officers. The IAD held that the Applicant being told not to travel to Canada by her former husband could not be characterized as an ordinary dispute.

[13]  The IAD considered the fact that the Applicant’s former husband did not withdraw his sponsorship application. Furthermore, the IAD noted that the Applicant’s former husband had a duty to disclose the termination of his relationship with the Applicant, but failed to do so. Neither of these factors relieved the Applicant of her obligation to disclose the material change in her relationship with her former husband.

[14]  The IAD went on to consider whether there were sufficient H&C grounds to warrant relief for the Applicant under s 67(1)(c) of the Act. In order to undertake this analysis, the IAD examined “the seriousness of the misrepresentation; the remorsefulness of the appellant; the length of time the appellant has spent in Canada; family ties in Canada; community support; and hardship and dislocation to the appellant and family members.”

[15]  The IAD determined that the misrepresentation was serious because withholding the information about the change in her relationship with her husband prevented the immigration officer from investigating the status of the relationship. The IAD considered the fact that the Applicant has been in Canada for approximately a decade as a factor in support of providing relief. Furthermore, the IAD noted that the Applicant has been gainfully employed and learning English during this time. These were positive factors. The IAD determined that the Applicant has no close family ties in Canada and that her family members are in India. On the other hand, the IAD found that the Applicant has close friends in Canada and close ties with the members of her Hindu Temple who support her. Finally, the IAD examined the potential for hardship for the Applicant in India. The IAD determined that there was insufficient evidence to show that the Applicant will be unable to find employment, support herself, or face stigma resulting from her divorce, if she returns to India.

[16]  The IAD emphasized that the positive H&C factors must be significant in order for relief to be granted. The IAD determined that, on balance, the Applicant had not demonstrated that relief should be provided based on H&C grounds. The appeal was dismissed.

IV.  ISSUES

[17]  The issues to be determined in the present matter are the following:

1. What is the applicable standard of review?

2. Was the Decision reasonable?

3. Did the IAD err in finding that “a material misrepresentation does not have to be intentional or deliberate and need not have a mens rea component”?

V.  STANDARD OF REVIEW

[18]  The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir], held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.

[19]  The standard of review applicable to the IAD’s decision to deny relief on H&C grounds is reasonableness (Puna v Canada (Public Safety and Emergency Preparedness), 2016 FC 1168 at para 15). A standard of reasonableness also applies to the IAD’s determination that the Applicant is inadmissible for misrepresentation (Jiang v Canada (Citizenship and Immigration), 2011 FC 942 at para 19; Dhaliwal v Canada (Public Safety and Emergency Preparedness), 2015 FC 157 at paras 27-29).

[20]  A standard of reasonableness applies to the IAD’s statement on mens rea and misrepresentation (Khedri v Canada (Citizenship and Immigration), 2012 FC 1397 at para 18). This is a question of law which is based on the IAD’s interpretation of its home statute. There is a presumption that a standard of reasonableness will apply to a decision-maker’s interpretation of its home statute (Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 39). This presumption can be rebutted where the decision-maker is interpreting a constitutional question or a question of law which is outside of the decision-maker’s area of expertise and central to the legal system (Dunsmuir, above, at paras 58 and 60). The presumption of reasonableness has not been rebutted in this case.

[21]  When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

VI.  STATUTORY PROVISIONS

[22]  The following provisions of the Act are relevant to this application for judicial review:

VII.  ARGUMENT

A.  Applicant

[23]  The Applicant argues that the IAD erred in finding that “a material misrepresentation does not have to be intentional or deliberate and need not have a mens rea component.” In support of this argument, the Applicant cites Baro v Canada (Citizenship and Immigration), 2007 FC 1299 [Baro] where Justice O’Reilly (at para 15) explained that an individual will not be found to have engaged in misrepresentation when their failure to disclose is based on an honest and reasonable belief that they were not withholding material information. The Applicant cites further jurisprudence in support of her argument that the IAD made an error of law in finding that there is no mens rea component to the analysis of misrepresentation.

[24]  According to the Applicant, the IAD committed an error of law by misconstruing the test for misrepresentation. Additionally, the IAD failed to provide authority for its incorrect formulation of the test for misrepresentation. The IAD used footnote 12 which does not correspond to any case.

[25]  The Applicant also argues that the Decision was unreasonable. The IAD failed to consider the circumstances surrounding the alleged misrepresentation. The crux of the issue is that the Applicant reasonably and honestly believed that her relationship was still intact upon her arrival in Canada. Accordingly, the Applicant had a reasonable and honest belief that she was not withholding material information. The IAD failed to understand that the Applicant’s former husband had repeatedly threatened to end the relationship. This pattern of behaviour made it reasonable for the Applicant to believe that her relationship had not ended. Finally, the fact that the Applicant’s former husband did not withdraw his sponsorship application is a key fact which helps to demonstrate that the Applicant held an honest and reasonable belief that the relationship was intact.

B.  Respondent

[26]  The Respondent defends the IAD’s Decision. The Applicant’s relationship with her former husband was the basis of her admission to Canada. As such, the breakdown of the relationship was a material fact that needed to be disclosed by the Applicant. It was reasonable for the IAD to find that the Applicant had made a misrepresentation because she omitted to disclose the status of her relationship upon arrival in Canada.

[27]  The Respondent submits that it is possible for an individual to engage in misrepresentation even if they do not intend to omit material information. Misrepresentation may be the result of negligence.

[28]  The Respondent acknowledges that there is an exception to a finding of misrepresentation where an individual has an honest and reasonable belief that they are not withholding material information. The Applicant, however, does not fall within this exception because she knew about the phone call with her former husband and chose not to disclose it. Furthermore, the Applicant’s phone call with her former husband was different in nature from previous disputes. The Applicant’s former husband did not subsequently reach out to her and he sought to avoid contact with her. Accordingly, it cannot be said that the Applicant reasonably and honestly believed that her marriage was intact.

[29]  The Respondent says that the IAD’s interpretation of the concept of misrepresentation is supported by the jurisprudence. Additionally, the inclusion of footnote 12 is clearly a typographical error. The footnote was meant to be labelled 1. If read as 1 rather than 12, it is clear that the IAD is referring to case law in support of its interpretation of the test for misrepresentation.

VIII.  ANALYSIS

[30]  The Applicant raises two important issues in this application which I will deal with in turn.

A.  The Legal Test for Misrepresentation

[31]  The Applicant says that the IAD committed an error of law in finding that a material misrepresentation under s 40(1) of the Act does not have to be intentional or deliberate and need not have a mens rea component, and in failing to examine the surrounding circumstances of the Applicant’s alleged misrepresentation.

[32]  In particular, the Applicant relies upon Baro, above, for the proposition that an “exception arises where the Applicant can show that they honestly and reasonably believed that they were not holding material information.”

[33]  The Applicant also relies upon Medel v Canada (Minister of Employment and Immigration), [1990] 2 FC 345, for the proposition that an exception to the duty of candour arises when an applicant is “subjectively unaware” that he or she is withholding material or relevant information. However, the law is quite clear that materiality for the purposes of s 40(1) is not just a matter of an applicant’s subjective awareness (see Masoud v Canada (Citizenship and Immigration), 2012 FC 422 at para 52) and the Applicant appears to concede this when she points to Canada (Citizenship and Immigration) v Sidhu, 2018 FC 306 and makes the following assertions:

52.  In other words, there exists an objective test by putting forth a question as to whether a person could reasonably be believed that they were not intentionally withholding relevant or material evidence or, again in other words, whether they were subjectively unaware of whether or not they should or should not disclose information that may or may not have been relevant or material.

[34]  The Court has made it clear that any exception to s 40(1) as posited in Baro can only apply in truly exceptional circumstances. In Oloumi v Canada (Citizenship and Immigration), 2012 FC 428, Justice Tremblay-Lamer had the following to say on point:

[32]  I find that the decision in Osisanwo is not of assistance to the applicants in this case. That decision was dependent on a highly unusual set of facts, and cannot be relied upon for the general proposition that a misrepresentation must always require subjective knowledge. Rather, the general rule is that a misrepresentation can occur without the applicant’s knowledge, as noted by Justice Russell in Jiang, above, at paragraph 35:

[35]  With respect to inadmissibility based on misrepresentation, this Court has already given section 40 a broad and robust interpretation. In Khan, above, Justice O’Keefe held that the wording of the Act must be respected and section 40 should be given the broad interpretation that its wording demands. He went on to hold that section 40 applies where an applicant adopts a misrepresentation but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40 applies to an applicant where the misrepresentation was made by another party to the application and the applicant had no knowledge of it. The Court stated that an initial reading of section 40 would not support this interpretation but that the section should be interpreted in this manner to prevent an absurd result. (Emphasis added.)

A few cases have carved out a narrow exception to this rule, but this will only apply for truly exceptional circumstances, where the applicant honestly and reasonably believed they were not misrepresenting a material fact.

...

[39]  In keeping with this duty of candour, there is, in my opinion, a duty for an applicant to make sure that when making an application, the documents are complete and accurate. It is too easy to later claim innocence and blame a third party when, as in the present case, the application form clearly stated that language results were to be attached, and the form was signed by the applicants. It is only in exceptional cases where an applicant can demonstrate that they honestly and reasonably believed that they were not withholding material information, where “the knowledge of which was beyond their control”, that an applicant may be able to take advantage of an exception to the application of section 40(1)(a). This is not such a case. [Emphasis in bold added.]

[35]  In the recent case of Canada (Citizenship and Immigration) v Robinsion, 2018 FC 159, Justice Zinn made it clear that any exception based upon an honest and reasonable belief must be based upon two components:

[8]  Where a person is found to be credible and he or she testifies that the belief was honestly held, the first aspect of the test – the subjective aspect – has been satisfied.  However, credibility does not address the reasonableness of the belief – it does not address the objective aspect of the test which is to be determined based on all the facts before the decision-maker.  I agree with the Minister that the ID gave no reasons as to why it found on the evidence before it that the belief was reasonable.

[36]  In the present case, although the IAD says that a “material representation does not have to be intentional or deliberate and need not have a mens rea component, as an innocent misrepresentation can be material” (at para 8), the IAD is clearly aware of and applies the “honest and reasonable” exception to the Applicant’s circumstances.

[37]  First of all, the IAD makes the following clear:

[9]  The Federal Court of Canada in Gabardhun v. Canada (Citizenship and Immigration) summarized the general principles of misrepresentation outlined in the Oloumi decision as well as other principles from the jurisprudence. They are as follows:

•  Section 40 is to be given a broad interpretation in order to promote its underlying purpose;

•  Section 40 is broadly worded to encompass misrepresentations even if made by another party, including an immigration consultant, without the knowledge of the applicant;

•  The exception to this rule is narrow and applies only to truly extraordinary circumstances where an applicant honestly and reasonably believed that they were not misrepresenting a material fact and knowledge of the or misrepresentation was beyond the applicant’s control;

•  The objective of section 40 is to deter misrepresentation and maintain the integrity of the immigration process. To accomplish this, the onus is placed on the applicant to ensure the completeness and accuracy of their application;

•  An applicant has a duty of candour to provide complete, honest and truthful information in every manner when applying for entry into Canada;

•  As the applicant is responsible for the content of an application which they sign, the applicant’s belief that he or she was not misrepresenting a material fact is not reasonable where they fail to review their application and ensure the completeness and veracity of the document before signing it;

•  In determining whether a misrepresentation is material, regard must be had for the wording of the provision and its underlying purpose;

•  A misrepresentation need not be decisive or determinative. It is material if it is important enough to affect the process;

•  An applicant may not take advantage of the fact that the misrepresentation is caught by the immigration authorities before the final assessment of the application. The materiality analysis is not limited to a particular point in time in the processing of the application.

[Emphasis added.]

[38]  This is a correct statement of the governing jurisprudence.

[39]  The IAD then goes on to consider, inter alia, whether in the circumstances of this case the Applicant’s assertion that, notwithstanding his telling her not to come to Canada, she honestly believed that her former husband and sponsor wanted to remain married and to continue the sponsorship:

[29]  The appellant argued that since her spouse did not withdraw his sponsorship of her it was reasonable for her to believe that he wanted to remain married and continue to sponsor her. While her belief might have been understandable, the information she possessed concerning the change in her relationship was not outside of her control and had come directly from her spouse. He had told her to not come to Canada. Withholding this information constituted a misrepresentation.

[30]  The appellant asserted that she came to Canada to address the dispute between her and her spouse. She had known him to be unreasonable and prone to anger and outbursts and she did not believe that he actually wanted to end the relationship. I find it not credible that the appellant did not know that the last conversation she had with the appellant was different in tone and nature than prior disagreements with him. Her version of events conclusively demonstrates that her spouse wanted to end the relationship as she testified that he did not pick her up at the airport and never contacted her. Although her former spouse also had a duty to disclose that there had been a change in the nature of the relationship, his failure to do so had no bearing on the appellant’s duty to disclose the information.

[31]  In giving the provisions relating to misrepresentation a broad reading, I find that the appellant experienced a change in the status of her relationship. Her sponsorship was dependent on the relationship subsisting and she therefore had a duty to disclose to immigration authorities any material facts relating to a change in the status of the relationship. Failing to disclose such information induced an error in the administration of the Act when it prevented a visa officer from making an informed decision about whether to issue a Visa or grant landing to her.

[Emphasis added.]

[40]  As I read these findings, I think it is clear that the IAD addressed the Applicant’s position on her “subjective” beliefs and found that they have either no objective or reasonable basis, or that her alleged subjective belief is just not credible given the circumstances. The Applicant simply did not establish that, taking into consideration all of the surrounding circumstances, she reasonably and honestly believed that she was not withholding material or relevant information.

[41]  The evidence of previous spats with her former husband shows that they were different in kind. In the final break, there was significant family involvement with the former husband making it clear to the Applicant’s father that he wanted nothing more to do with the Applicant. I can find no basis for the Applicant’s assertion that the IAD got the law wrong.

B.  Unreasonable Decision

[42]  The Applicant says that:

59.  In failing to take into consideration the surrounding circumstances of the alleged misrepresentation, the IAD made an unreasonable conclusion to support his decision, or in the alternative, committed a breach of procedural fairness.

[43]  The Applicant does not develop or substantiate her breach of procedural fairness argument, so the only real issue here is the reasonableness of the Decision. On this point, the Applicant’s arguments in detail are as follows:

63.  The facts of this case, as stated above, make it clear that the former husband of the Applicant, Chiragkumar, before his argument with the Applicant by telephone on February 13, 2009, which the IAD asserted at paragraph 30 of its decision (cited above) “was different in tone and nature than prior disagreements with him”, that, in fact, it was not different in tone and nature than prior disagreements.

64.  Rather than being different in “tone and nature than prior disagreements” the telephone argument of February 13, 2009 fits perfectly into a well-established pattern of unreasonable, petty and disproportionate threats made by Chiragkumar toward the Applicant. In that respect, contrary to the finding of the IAD, it was not different in tone and nature at all to prior disagreements.

65.  In light of his repeated threats to bar her from coming to Canada, it was reasonable for the Applicant to believe that he did not want to end the relationship, but rather to use this as a means to control her, which she believed with time could be overcome.

66.  The proposition asserted in paragraph 66, above, is fortified by the fact Chiragkumar did not cancel his sponsorship of the Applicant and this fact lends to her credibility.

67.  By failing to examine the blatantly obvious fact pattern, in other words, the surrounding circumstances that were before the IAD, the tribunal’s decision in this matter lacked the most elementary transparency, logic and intelligibility required of a decision it rendered. As such, the decision was unreasonable in light of the facts and law.

[Emphasis in original.]

[44]  The Applicant disputes the IAD’s key finding that the last altercation she had with her former husband “was different in tone and nature than prior disagreements with him” (at para 30). Yet her own account of that conversation and its aftermath makes clear that it was different:

ABANDONMENT

29.  After a few minutes, Chiragkumar called Ms. Keyuriben again on her cell phone. He was very angry, and told her that he would teach her a lesson for insulting him by suddenly disconnecting the telephone and that he would cancel her air ticket to Canada. He also called Ms. Keyuriben’s father. Ms. Keyuriben’s father tried to calm Chiragkumar down and told him that he should let her enjoy the festivities of her sister’s wedding. But Chiragkumar told her father that he had nothing do with her and that he would cancel her air ticket.

30.  The following day, Chiragkumar’s parents called from Canada. They were also very angry. They told Ms. Keyuriben’s father that Chiragkumar had been insulted by his daughter, and that their son had canceled her air ticket. Ms. Keyuriben’s father was very upset; however, he hoped that everything would be fine in due course.

(Certified Tribunal Record, at page 67.)

[45]  The Applicant’s position on this issue amounts to no more than a disagreement with the IAD’s weighing and conclusions on the evidence and is not a basis for reviewable error. The IAD heard the Applicant testify and I can see nothing unfair or unreasonable in its assessment of the evidence.

IX.  CERTIFICATION

[46]  Counsel agree there is no question for certification and the Court concurs.

 

JUDGMENT IN IMM-3900-18

THIS COURT’S JUDGMENT is that

1. The application is dismissed.

2. There is no question for certification.

“James Russell”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-3900-18
STYLE OF CAUSE:	KEYURIBEN VIJABHAI PATEL, (AKA KEYURIBEN VIJAY PATEL) v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	TORONTO, ONTARIO
DATE OF HEARING:	March 6, 2019
JUDGMENT AND REASONS:	RUSSELL J.
DATED:	April 8, 2019

APPEARANCES:

Jaswant Mangat	For The Applicant
Prathima Prashad	For The Respondent

SOLICITORS OF RECORD:

Mangat Law Professional Corporation Brampton, Ontario	For The Applicant
Attorney General of Canada Toronto, Ontario	For The Respondent