Date: 20210421

Dockets: IMM-6268-19

IMM-6270-19

Citation: 2021 FC 348

Ottawa, Ontario, April 21, 2021

PRESENT: The Honourable Madam Justice Roussel

BETWEEN:

DORINELA PEPA

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I. Nature of the matter

[1] The Applicant, Dorinela Pepa, seeks judicial review of two (2) decisions. In IMM-6268-19, she challenges the exclusion order issued against her by the Immigration Division [ID] on October 16, 2018 [Exclusion Order], because of misrepresentation in acquiring permanent resident status in Canada. In IMM-6270-19, she challenges the Immigration Appeal Division [IAD]’s decision, dated August 27, 2019, dismissing her appeal for lack of jurisdiction.

[2] For the reasons that follow, the applications for judicial review are dismissed.

II. Background

[3] The Applicant is a 23-year-old citizen of Albania. On February 4, 2018, she was issued a permanent resident visa as an accompanying dependant of her father, who in turn was being sponsored to Canada by his new wife. The Applicant’s visa was valid until September 16, 2018.

[4] On February 27, 2018, the Applicant married. She did not advise immigration authorities of her marriage.

[5] On March 20, 2018, the Applicant arrived in Canada to become a permanent resident. Upon initial examination, she advised the port of entry officer that she was now married. As a result of the change in status, the Applicant was not landed in Canada, but was rather admitted for further examination. The examinations were completed on April 6, 2018.

[6] When she attended the examination, the Applicant informed the officer that she filed for divorce on March 29, 2018. Notwithstanding, on April 6, 2018, the officer prepared a report under subsection 44(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], alleging that the Applicant was inadmissible under paragraph 41(a) of the IRPA for failing to comply with the requirements found in paragraph 51(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations]. The Minister’s Delegate referred the report to the ID for an admissibility hearing the next day. The Applicant’s visa was not cancelled.

[7] A further subsection 44(1) report was issued on July 13, 2018, based on paragraph 40(1)(a) of the IRPA. In the officer’s view, the Applicant’s failure to inform the Canadian immigration officials responsible for processing her application for permanent residence of her change in marital status prior to her arrival in Canada induced an error in the administration of the IRPA. The Applicant’s visa remained valid. This report led to a further referral under subsection 44(2) of the IRPA, dated July 24, 2018.

[8] An admissibility hearing before the ID commenced on September 25, 2018. At the outset of the hearing, the Respondent advised that it was abandoning the April subsection 44(1) report relating to inadmissibility under paragraph 41(a) of the IRPA and would proceed only on the grounds of the subsection 44(1) July report relating to misrepresentation. The ID received evidence and submissions from both the Applicant and the Respondent.

[9] After an off-the-record discussion between counsel and the ID Member at the end of the hearing, the Applicant’s counsel raised procedural fairness concerns in a letter to the ID sent the next day. She claimed that the ID could not find that the Applicant had not respected paragraph 51(b) of the Regulations because the subsection 44(1) report only cited paragraph 40(1)(a) of the IRPA and the Minister’s counsel had abandoned allegations of inadmissibility for failing to comply with paragraph 51(b) of the Regulations.

[10] Given this concern, the ID ordered that brief submissions be made on this matter on October 16, 2018. After giving the parties an opportunity to address the concerns raised by the Applicant’s counsel, the ID then rendered its decision orally. It concluded that the Applicant, a foreign national, was inadmissible for misrepresentation under paragraph 40(1)(a) of the IRPA. The ID issued the Exclusion Order on the same day.

[11] The Applicant appealed the ID’s decision before the IAD, contesting the legality of the Exclusion Order and asking that it be overturned for humanitarian and compassionate considerations.

[12] On the day of the hearing before the IAD, the Minister’s representative raised an issue of jurisdiction pursuant to subsection 63(2) of the IRPA. The IAD proceeded with the Applicant’s testimony in relation to her humanitarian and compassionate considerations but asked the parties to submit additional written submissions on the issue of jurisdiction.

[13] The IAD rendered its decision on August 27, 2019, and dismissed the appeal for lack of jurisdiction. The IAD found that the Applicant did not have a right of appeal pursuant to subsection 63(2) of the IRPA since her permanent resident visa had expired on September 16, 2018, and was no longer valid when the Exclusion Order was issued.

[14] The Applicant raises the following two (2) issues in IMM-6268-19. First, she submits that she was denied procedural fairness and natural justice. By pursuing provisions of the IRPA and the Regulations, and relying on case law not advanced by the Respondent, the ID Member was not impartial and the Applicant was not aware of the case to meet. Second, she submits that the ID’s decision is unreasonable as it was unable to point to any section of the IRPA or the Regulations that specified when the change in marital status had to be disclosed.

[15] In IMM-6270-19, the Applicant argues that the IAD erred in deciding that it did not have jurisdiction to hear the appeal. She argues that “a validly issued visa is not invalidated merely by a change in the circumstances in respect of which it was issued occurring after its issue”. In addition, there is no statutory authority indicating that a visa must not have expired prior to the issuance of the Exclusion Order.

III. Analysis

A. Standard of Review

[16] In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the Supreme Court of Canada held that reasonableness is the presumptive standard of review for decisions made by administrative decision makers (Vavilov at paras 10, 16-17). In my view, none of the exceptions described in Vavilov apply here. Contrary to the Applicant’s argument, the IAD’s decision is not a question “regarding the jurisdictional boundaries between two administrative bodies” (Vavilov at para 53). Rather, it is the IAD interpreting subsection 63(2) of the IRPA, its home statute. It is well established that the presumption of reasonableness applies to a decision maker’s interpretation of its enabling statute (Vavilov at para 25; Momi v Canada (Citizenship and Immigration), 2019 FCA 163 at para 21).

[17] When reviewing a decision under the reasonableness standard, the Court shall examine “the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome” (Vavilov at para 83). It must ask itself “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov at para 99). The burden is on the party challenging the decision to show that it is unreasonable (Vavilov at para 100).

[18] With respect to the issue of procedural fairness, the Federal Court of Appeal clarified in Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [Canadian Pacific] that issues of procedural fairness do not necessarily lend themselves to a standard of review analysis. Rather, the role of this Court is to determine whether the proceedings were fair in all the circumstances (Canadian Pacific at paras 54-56; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35).

B. IMM-6268-18 Exclusion Order

(1) No breach of procedural fairness

[19] The Applicant alleges that she was denied procedural fairness because the ID Member pursued the allegations of non-compliance with paragraph 51(b) of the Regulations even though the Respondent had made clear, at the outset of the hearing, its intention to only pursue allegations of inadmissibility under paragraph 40(1)(a) of the IRPA. The ID Member effectively made herself co-counsel to the Respondent and referred in her decision to thirteen (13) Federal Court decisions and sections of the IRPA and the Regulations, which were not advanced by the Respondent. In supplementing the Respondent’s case, the ID Member demonstrated bias. Furthermore, the ID breached procedural fairness when it indicated to the Applicant that she would be able to appeal its decision to the IAD. Given the severe consequences that flow from a finding of misrepresentation, the Applicant was entitled to a higher degree of procedural fairness (Likhi v Canada (Citizenship and Immigration), 2020 FC 171 at paras 26-27).

[20] The Applicant’s argument is without merit.

[21] Contrary to the Applicant’s assertion, the ID did not pursue the allegations of non-compliance with paragraph 51(b) of the Regulations. The hearing was based on paragraph 40(1)(a) of the IRPA for misrepresentation.

[22] In conducting its analysis, the ID first noted that the Applicant was a foreign national who did not have an unqualified right to enter or remain in Canada. Moving to the second element for misrepresentation, the ID noted that there was an established principle that a visa applicant seeking to enter Canada has a positive duty of candour, as found in subsections 16(1) and 18(1) of the IRPA and section 51 of the Regulations. All are equally applicable to the interpretation of paragraph 40(1)(a) of the IRPA. While the July subsection 44(1) report did not refer to section 51 of the Regulations, the allegations in the report nevertheless clearly pointed to the application of this provision.

[23] The ID then considered the Applicant’s duty of candour obligations. It found that when the Applicant married in February 2018, a change in her personal circumstances occurred and from that point on, she had the obligation to inform the visa post. By withholding the information about her marriage and not correcting the information held by the visa post, the Applicant engaged in misrepresentation.

[24] It is in the context of assessing whether the Applicant could overcome the finding of misrepresentation that the ID again referred to section 51 of the Regulations and found that when she presented herself at the port of entry, she could not establish that she was an accompanying dependant given her marital status.

[25] As for the remaining elements of misrepresentation, the ID concluded that withholding the fact that she had gotten married and was therefore no longer eligible as a dependant child was a relevant matter, which induced an error in the administration of the IRPA.

[26] The ID explicitly indicated in its reasons that its references to section 51 of the Regulations were not intended to address a separate ground of inadmissibility.

[27] The Applicant cannot reasonably claim that she did not know the case she had to meet. The July subsection 44(1) report clearly sets out the allegations against the Applicant. She did not inform the Canadian authorities responsible for processing her application for permanent residence that her marital status had changed prior to her arrival in Canada, thereby inducing an error in the administration of the IRPA. Had she advised the visa post of her change of marital status prior to her arrival, her visa would likely have been cancelled as she was no longer eligible to land as a dependant child.

[28] As for the allegation that the ID Member was not impartial, the Applicant has not persuaded me that referring to case law and statutory provisions on issues known to the Applicant demonstrates bias. Moreover, the ID expressly provided the opportunity to the Applicant, by its direction issued twelve (12) days before the second sitting, to make submissions on the legislative provisions and statutory obligations relevant to her case.

[29] Likewise, the Applicant cannot claim a breach of procedural fairness or natural justice because the ID erroneously mentioned at the hearing that she had a right of appeal to the IAD. The ID’s role was limited to determining whether the Applicant was inadmissible on the grounds of misrepresentation. I am not persuaded that the ID’s conclusion was premised on the belief that the Applicant would be appealing the Exclusion Order so that she could raise humanitarian and compassionate considerations on appeal. In addition, the Applicant was represented by counsel at the hearing and the right of appeal is conferred by statutory authority, not by a statement made by the ID.

[30] To conclude on this issue, the Applicant has not demonstrated that the ID breached procedural fairness.

(2) The ID’s decision is reasonable

[31] In the alternative, the Applicant submits that the ID’s decision was unreasonable as it was unable to point to any section of the IRPA or the Regulations that specified when the change in marital status had to be disclosed. Instead, it relied on a letter sent to the Applicant’s father with her visa as legal grounds that there was an obligation to disclose this information to the visa office prior to arrival.

[32] The Applicant also points to the fact that she was candid at the port of entry regarding her change in marital status. She volunteered this information and provided the marriage certificate. Given this fact, the Applicant asks how it can be rationalized that she withheld information.

[33] I am not persuaded by these arguments.

[34] The ID had to determine whether the Applicant had withheld material information that could have induced an error in the administration of the IRPA. The ID reasonably found that by failing to advise the visa post of her marriage prior to coming to Canada, the Applicant “cut off its ability to review her application”. She deprived the authorities of information that would have led to further investigation, including the examination into whether she and her dependant – her spouse – met the requirements of the IRPA. The ID noted that a misrepresentation is not limited to a particular point in time in the processing of an application and a correction before the final assessment, does not make the withholding of information immaterial.

[35] The ID also found that the Applicant’s failure to report her marriage was inconsistent with the clear instructions communicated in the Confirmation of Permanent Residence [COPR]. The Applicant and her father were required to inform the visa post of any change in marital status or in family composition before they left for Canada.

[36] The ID rejected the Applicant’s argument that her misrepresentation should be excused on the ground that she was a minor and was unaware of her disclosure obligations. Noting that she was twenty (20) years old when she got married, the ID opined that the Applicant should have been more engaged in the process of her permanent residence application.

[37] The ID also found unpersuasive the Applicant’s explanation that she did not inform the visa post of her marriage because she did not think her marriage was anybody’s business. The ID reasonably noted that it was not for an applicant to decide what is relevant (Singh v Canada, 2015 FC 377 at para 32).

[38] The ID was not required, in my view, to identify a specific statutory provision that indicates at what point in the processing of her application for permanent residence the Applicant had to communicate her change in circumstances. It could reasonably conclude that the Applicant’s failure to report her marriage to the visa post was inconsistent not only with the clear instructions identified in the COPR, but also with the general and broad continuing duty of candour required of all applicants under the IRPA and the Regulations to disclose all facts which may be material to their applications for permanent residence (Kazzi v Canada (Citizenship and Immigration), 2017 FC 153 at para 38; Dong v Canada (Citizenship and Immigration), 2011 FC 1108 at para 54; Cao v Canada (Citizenship and Immigration), 2010 FC 450 at para 28 [Cao]).

[39] While the Applicant eventually did disclose the information upon her arrival in Canada, the subsequent communication of information does not normally act as a bar to the application of paragraph 40(1)(a) of the IRPA (Tan Gatue v Canada (Citizenship and Immigration), 2012 FC 730 at paras 23, 25; Cao at para 34). The purpose of the disclosure is to ensure that visa officers are made aware of all material facts in considering an application in order to determine whether an applicant is admissible to Canada as a permanent resident. If the Applicant had disclosed her marital status prior to arriving in Canada, the visa officer would have likely cancelled her permanent resident visa, as she could no longer be considered a dependant of her father. The Applicant cannot take advantage of the fact that she is now in Canada to circumvent her failure to disclose a material fact. To accept the Applicant’s reasoning would encourage applicants to withhold information from the visa officers in the hopes of not having their applications rejected prior to coming to Canada and with the intention of being able to rectify their applications once in Canada.

[40] Moreover, it is well established that paragraph 40(1)(a) is broadly worded and includes misrepresentations that are made even without the knowledge of the applicant (Jiang v Canada (Citizenship and Immigration), 2011 FC 942 at para 35; Cao at para 31 Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at paras 55-56). While an exception arises where an applicant can show they honestly believed they were not withholding material information, such exception is narrow. The Applicant has not persuaded me that she falls within the ambit of such an exception.

[41] In the circumstances, I find that the ID could reasonably conclude that the Applicant did not fulfill her duty of candour.

[42] To conclude, when the decision is read as a whole, I am satisfied that the ID’s decision meets the reasonableness standard set out in Vavilov and that the Applicant’s rights to procedural fairness were not breached.

C. IMM-6870-19 Jurisdiction of the IAD

[43] The determinative issue for the IAD was whether it had jurisdiction to hear the appeal, given that the Applicant’s visa expired on September 16, 2018, and that the Exclusion Order was issued on October 16, 2018. Relying on Canada (Minister of Citizenship and Immigration) v Hundal, [1995] 3 FC 32, the IAD noted the four (4) exceptions to the general principle that a visa continues to be valid once issued. It found that the third exception, which provides that a visa ceases to be valid when it expires, applied to the Applicant’s case.

[44] The IAD then responded to the Applicant’s argument that notwithstanding the third exception, her visa was still valid when the referrals under subsection 44(2) of the IRPA were issued. It referred to the decision in Ismail v Canada (Citizenship and Immigration), 2015 FC 338 [Ismail] where the Court had found that subsection 63(2) of the IRPA granted a right of appeal only to a person who holds a valid permanent resident visa at the time the “exclusion report” is issued (Ismail at para 18).

[45] Finally, the IAD turned its mind to whether an abuse of process was responsible for the passage of time and the expiry of the Applicant’s visa prior to the issuance of the Exclusion Order. The IAD found that the cause of the Applicant’s admission for examination, the issuance of reports under section 44 of the IRPA and the subsequent ID hearing was the Applicant’s failure to declare her change in circumstances and to meet the conditions of her visa at the time of her arrival at the port of entry, not any unfair actions or delays on the part of the Respondent.

[46] The Applicant submits that the IAD should have relied upon the Federal Court of Appeal’s decision in McLeod v Canada (Minister of Citizenship and Immigration), [1999] 1 FC 257 (FCA) [McLeod], which concluded that “a validly issued visa was not invalidated merely by a change in the circumstances in respect of which it was issued occurring after its issue”. In McLeod, the IAD had assumed jurisdiction even though the visa had expired before the issuance of the exclusion order. She argues that her change in marital status did not invalidate her visa and it remained valid when she presented herself at the port of entry and when the “reports” (referrals) under section 44 of the IRPA were issued on April 7, 2018 and July 24, 2018.

[47] The Applicant’s reliance on McLeod is unfounded.

[48] In McLeod, the right of appeal in question was based on paragraph 70(2)(b) of the former Immigration Act, RSC 1985, c I-2. Under this provision, there was a right of appeal to the Appeal Division of the Immigration and Refugee Board if the appellant, “at the time a report with respect to the person was made by an immigration officer pursuant to paragraph 20(1)(a), was in possession of a valid immigrant visa”.

[49] In the case at hand, the Applicant’s right of appeal is governed by subsection 63(2) of the IRPA, which reads as follows:

[50] The wording of subsection 63(2) of the IRPA establishes that the act that triggers the appeal to the IAD is the issuance of a removal order. The timing of the removal order will vary depending on whether it is made by the Minister under subsection 44(2) of the IRPA in the specific circumstances prescribed in section 228 of the Regulations or by the ID at an admissibility hearing pursuant to paragraph 45(d) of the IRPA and section 229 of the Regulations. In the Applicant’s case, the Exclusion Order was made at the admissibility hearing.

[51] The Applicant submits that the IAD misinterpreted Ismail and, in particular, paragraph 18 of the decision, which states that “a right of appeal is granted only to a person who ‘holds’ a valid permanent resident visa at the time the exclusion report is issued” [Applicant’s emphasis]. She argues that since the “exclusion reports” – the referrals under subsection 44(2) of the IRPA – were issued on April 7, 2018, and July 24, 2018, before her visa expired on September 16, 2018, the IAD should have concluded that she held a valid visa when the exclusion reports were issued.

[52] I am not persuaded that the Applicant’s interpretation of Ismail is accurate. Subsection 63(2) of the IRPA, as it then read, provided that a foreign national who holds a permanent resident visa could appeal a decision to remove them made at an examination or admissibility hearing. Unlike in Ismail, the Applicant’s removal order was made at the admissibility hearing. Although paragraph 18 of Ismail refers to an “exclusion report”, the question certified by the Court in that case asks whether the validity of the visa should be assessed at the time the exclusion order was issued. This is consistent with the French verified translation of paragraph 18, which states that for an applicant to have a right of appeal to the IAD, their visa must be valid “au moment où la mesure d’exclusion est prise”. In my view, Ismail confirms that, whether the exclusion order is issued at an examination or by the ID after an inadmissibility hearing, for the applicant to have a right of appeal to the IAD, their visa must be valid when the exclusion order is issued.

[53] Subsection 63(2) of the IRPA only applies to one “who holds” a permanent resident visa. As stated by this Court in Zhang v Canada (Citizenship and Immigration), 2007 FC 593 [Zhang], subsection 63(2) of the IRPA is written in the present tense and, thus, having once held a permanent resident visa does not place an applicant within the ambit of this provision (Zhang at paras 11, 16). The IAD could reasonably conclude that it did not have jurisdiction to hear the appeal given that the Applicant’s visa had expired on September 16, 2018, and that the Exclusion Order was made on October 16, 2018.

IV. Costs

[54] In her further memorandums, the Applicant is seeking costs on a solicitor-client basis.

[55] Pursuant to section 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, costs shall not be awarded on an application for judicial review, except where there are special reasons for doing so.

[56] The Applicant has neither articulated nor demonstrated any special reasons for departing from the general rule.

V. Certified Questions

[57] The Applicant has asked the Court to certify two (2) questions:

IMM-6268-19

Given that neither the Minister nor the Member is able to refer to a statutory obligation under the Immigration and Refugee Protection Act or Regulations to disclose a change in marital status “BEFORE you leave for Canada” but for in a letter sent with the visa; has the Applicant with held [sic] information when she disclosed her change in marital status at the port of entry?

IMM-6270-19

For the purposes of determining jurisdiction to hear an appeal pursuant to section 63(2) of the IRPA, should the validity of the permanent resident visa be assessed by the IAD at the time of arrival at the port of entry to Canada?

[58] The Respondent opposes certification on the ground that the proposed questions do not meet the test for certification.

[59] The criteria for certification are well established. The proposed question must be a serious question that is dispositive of the appeal. It must transcend the interests of the parties and raise an issue of broad significance or general importance. Furthermore, the question must have been dealt with by the Federal Court and must arise from the case itself rather than from the way in which the Federal Court may have disposed of the case. A question in the nature of a reference or whose answer turns on the unique facts of the case cannot ground a properly certified question (Lunyamila v Canada (Public Safety and Emergency Preparedness), 2018 FCA 22 at paras 46-47 [Lunyamila]; Lewis v Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para 36; Mudrak v Canada (Citizenship and Immigration), 2016 FCA 178 at paras 15-17; Lai v Canada (Public Safety and Emergency Preparedness), 2015 FCA 21 at para 4; Zhang v Canada (Citizenship and Immigration), 2013 FCA 168 at para 9; Varela v Canada (Citizenship and Immigration), 2009 FCA 145 at paras 28-29; Canada (Minister of Citizenship and Immigration) v Zazai, 2004 FCA 89 at paras 11-12; Canada (Minister of Citizenship and Immigration) v Liyanagamage, [1994] FCJ No 1637 (FCA) (QL) at para 4).

[60] I agree with the Respondent that the question proposed by the Applicant in IMM-6268-19 does not meet the test for certification. It is based on the incorrect premise that the ID had to refer to a specific provision of the IRPA or the Regulations requiring the Applicant to disclose her change of marital status before arriving in Canada. The proposed question is also fact-specific, does not transcend the interests of the parties and would not be dispositive of the appeal.

[61] As for the proposed question in IMM-6270-19, I find that the issue of when the validity of the visa must be assessed for the purpose of the right of appeal to the IAD provided by subsection 63(2) of the IRPA raises an important question that transcends the interests of the parties in this case and would be determinative of an appeal. I would, however, rephrase the proposed question and certify the following:

For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada, at the time the report under subsection 44(1) is made, at the time it is referred to the ID, as the case may be, or at the time the exclusion order is issued?

JUDGMENT in IMM-6268-19 and IMM-6270-19

THIS COURT’S JUDGMENT is that:

1. The applications for judicial review are dismissed;

2. No costs are awarded;

3. No question of general importance is certified in IMM-6268-19;

4. The following question of general importance is certified in IMM 6270-19:

For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada, at the time the report under subsection 44(1) is made, at the time it is referred to the ID, as the case may be, or at the time the exclusion order is issued?

5. A copy of this Judgment and Reasons shall be placed on each of Court files IMM-6268-19 and IMM-6270-19.

“Sylvie E. Roussel”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKETS:	IMM-6268-19 AND IMM-6270-19
STYLE OF CAUSE:	DORINELA PEPA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	held by videoconference IN ottawa, ontario and toronto, ontario
DATE OF HEARING:	april 14, 2021
JUDGMENT AND REASONS:	ROUSSEL J.
DATED:	APRIL 21, 2021

APPEARANCES:

Mary Lam	For The Applicant
Asha Gafar	For The Respondent

SOLICITORS OF RECORD:

Mary Lam Barrister & Solicitor Toronto, Ontario	For The Applicant
Attorney General of Canada Toronto, Ontario	For The Respondent