Punia v. Canada (Citizenship and Immigration)

Punia v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2017-02-14
Neutral citation
2017 FC 184
File numbers
IMM-1408-16, IMM-1692-16, IMM-1928-16, IMM-1930-16
Decision Content
Date: 20170214
Dockets: IMM-1928-16
IMM-1930-16
IMM-1408-16
IMM-1692-16
Citation: 2017 FC 184
Ottawa, Ontario, February 14, 2017
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ALKA PUNIA AND
KRUNAL CHANDRAKANT PATIL
Applicants
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 a consolidated judicial review of four decisions rendered by immigration officers at the Consulate General of Canada in Bangalore, India [Bangalore Decisions] and Los Angeles, United States of America [Los Angeles Decisions], dated March 4 and 14, 2016, respectively, in which Alka Punia [Female Applicant] and Krunal Chandrakant Patil [Male Applicant] were denied their applications for temporary resident visas [TRV].
II. BACKGROUND
[2] The Applicants are citizens of India and have resided in Corona City, USA since February 25, 2016. They are a married couple with two Canadian-born children. Since 2006, both Applicants had primarily resided in Canada on multiple study and work permits until their return to India in 2015.
A. Immigration History from 2006 to 2015
[3] The Female Applicant arrived in Canada on a two-year study permit issued in September 2006, after her initial application for a study permit was refused the month prior. She completed her studies in April 2007 and remained in Canada on a post-graduate open work permit until June 2009, when she married the Male Applicant, then a student in Canada, and obtained open work permits as his dependent. After acceptance to a graduate program of study, the Female Applicant applied and was issued a two-year study permit with an authorization for employment on May 14, 2015; however, she deferred her studies until September 2016 and worked instead. She subsequently applied for and received a one-year bridging work permit in February 2016.
[4] The Male Applicant arrived in Canada on a one-year study permit issued in November 2006, which was renewed four times until August 2015. He then received an open work permit valid for five months in October 2015.
[5] In addition to their applications for study and work permits, the Applicants have also applied for permanent residence under the Canadian Experience Class [CEC] for the Female Applicant and as a dependent for the Male Applicant. The application for permanent residence was denied in November 2013 on the basis that the Female Applicant did not meet the skilled work experience requirement. The Applicants then filed a second application for permanent residence under the CEC in July 2014, which has not been decided.
B. Applications for TRV
[6] In August 2015, the Male Applicant left Canada for India to visit his ill grandmother. The Female Applicant joined him in October 2015, when she visited her ill father. On December 21, 2015, while still in India, both Applicants applied for TRVs to return to Canada. Shortly afterwards, the Applicants received a procedural fairness letter dated December 30, 2015 regarding concerns about the truthfulness as to whether they had ever been refused visas or permits, denied entry, or ordered to leave Canada or any other country. The Female Applicant responded by email dated January 5, 2016 and confirmed that she had been refused a study permit in August 2006. The Male Applicant also responded by email on January 5, 2016 and confirmed that he had never been refused a visa or permit for any country, although he had received an appointment letter regarding his applications twice. Neither response included information regarding the refusal of the application for permanent residence in November 2013.
[7] On February 25, 2016, while awaiting the decisions for their December 2015 TRV applications, the Applicants travelled to Los Angeles, USA to visit the Male Applicant’s ill father. The next day, the Applicants submitted applications for TRVs at the Consulate General of Canada in Los Angeles.
III. DECISIONS UNDER REVIEW
A. Bangalore Decisions
[8] A decision sent from a Visa Officer at the Bangalore Consulate to the Female Applicant by letter dated March 4, 2016 determined that the Female Applicant did not qualify for a TRV. The Visa Officer was not satisfied that the Female Applicant would leave Canada at the end of her stay as a temporary resident. The Visa Officer also concluded that, under s 40(1)(a) of the Act, the Female Applicant was inadmissible to Canada for five years from the date of the Bangalore Decision on the grounds that the Female Applicant had withheld material facts relating to a relevant matter that could have induced an error in the administration of the Act.
[9] The Global Case Management System [GCMS] notes state that the Female Applicant did not answer questions concerning her past immigration history truthfully. Despite the issuance of a procedural fairness letter, the Female Applicant failed to satisfy the concerns regarding her truthfulness on the application because she did not disclose her refused application for permanent residence in November 2013. Instead, the Female Applicant only confirmed the refusal of a study permit and explained that she failed to check the application that VFS Global [VFS], a company that provides visa and passport application processing services, completed for her. The GCMS notes appear to question this explanation on the basis that the Female Applicant had been in Canada on various permits since 2006 and had a good understanding of English; additionally, VFS does not complete applications for applicants. The GCMS notes also made reference to the Female Applicant’s TRV application to the Los Angeles Consulate and concluded that the Visa Officer was not satisfied the subsequent application was not made to circumvent the decision of the TRV application to the Bangalore Consulate.
[10] A decision sent from a Visa Officer at the Bangalore Consulate to the Male Applicant by letter dated March 4, 2016 determined that the Male Applicant did not qualify for a TRV. The Visa Officer was not satisfied that the Male Applicant would leave Canada at the end of his stay as a temporary resident. The Visa Officer also concluded that, under s 40(1)(a) of the Act, the Male Applicant was inadmissible to Canada for five years from the date of the Bangalore Decision on the grounds that the Male Applicant had withheld material facts relating to a relevant matter that could have induced an error in the administration of the Act.
[11] The GCMS notes state that the Male Applicant did not answer questions concerning his past immigration history truthfully. Despite the issuance of a procedural fairness letter, the Male Applicant failed to satisfy the concerns regarding his truthfulness on the application because he did not disclose his refused application for permanent residence in November 2013. Instead, the Male Applicant confirmed he had never been refused a visa or permit and had never been denied entry or ordered to leave any country. Given the Male Applicant’s previous adverse history, the Visa Officer was not satisfied that the Male Applicant would depart Canada at the end of the authorized period. The GCMS notes also made reference to the Male Applicant’s TRV application to the Los Angeles Consulate and concluded that the Visa Officer was not satisfied the subsequent application was not made to circumvent the decision of the TRV application to the Bangalore Consulate.
B. Los Angeles Decisions
[12] Decisions sent from a Visa Officer at the Los Angeles Consulate to the Applicants by letter dated March 14, 2016 determined that the Applicants did not qualify for TRVs for several reasons. After considering family ties in Canada and country of residence, length of proposed stay in Canada, purpose of visit, employment prospects in country of residence, current employment situation, and history of contravening the conditions of admission on a previous stay in Canada, the Visa Officer was not satisfied that the Applicants would leave Canada at the end of their stay as temporary residents. The Visa Officer was also not satisfied that the Applicants had answered all questions truthfully in accordance with s 16(1) of the Act by failing to disclose the information regarding previous applications for entry visas to Canada and the refused applications for permanent and temporary resident visas. Additionally, the Visa Officer cited that the Applicants had been deemed inadmissible to Canada on March 3, 2016 and that the Female Applicant had failed to provide documentary evidence on her current school attendance situation to demonstrate compliance with the conditions of a TRV or study permit holder. Finally, the Visa Officer found that under ss 40(1)(a) and 40(2)(a) of the Act, the Applicants remained inadmissible to Canada for misrepresentation as a period of five years had not passed since the prior refusal.
[13] In the GCMS notes, the Visa Officer noted that the Female Applicant had been employed as a daycare director since June 2, 2015 and indicated she had not studied since April 2008 despite remaining in Canada on the basis of a study permit valid from April 28, 2015 to April 30, 2017. Based on this information, the Visa Officer concluded the Female Applicant had failed to comply with s 30 of the Act and Rules 183 and186 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations].
[14] The GCMS notes also state that the Applicants declared they had never been refused entry visas to Canada, despite the Field Operations Support System [FOSS] records indicating otherwise. The GCMS notes also referred to the Bangalore Decisions in which the Applicants were found to be inadmissible for misrepresentation until March 3, 2021. The Visa Officer found the Applicants had failed to provide truthful answers in regards to whether they had ever been refused visas despite the refusal by the Bangalore Consulate for failing to provide truthful answers to the very same question.
[15] The Visa Officer noted the Applicants’ requests for urgent processing on the basis of meeting their children’s immunization schedule in Canada but questioned why the immunizations could not be performed in India, where they had previously been performed. The GCMS notes concluded that since the Female Applicant had not been truthful about her intentions, was not a genuine student, had failed to comply with the conditions of her study permit, and had lost her temporary resident status, the Visa Officer was not satisfied the Applicants were bona fide temporary residents who would leave Canada at the end of their authorized stay. Consequently, he refused the applications.
IV. ISSUES
[16] The Applicants submit that the following are at issue in this application:
(1) Whether the Applicants were denied procedural fairness with respect to:
The Bangalore Decisions, whereby the concerns regarding their credibility were not put to them and they were denied an opportunity to respond?
The Los Angeles Decisions, whereby the Applicants were not put on notice, granted an interview, nor provided an opportunity to respond despite reliance on a misrepresentation finding as a result of the Bangalore application that was not within the Applicants’ knowledge at the time of their applications?
The Los Angeles Decisions, whereby implicit credibility findings regarding the Applicants’ alleged and factually erroneous immigration violations and misstated intentions upon entering Canada were made without providing an opportunity to respond and clarify material errors in their immigration history and their innocent mistakes in completing the applications?
(2) Whether the Visa Officers erred in their assessment that the Applicants made a material misrepresentation by failing to apply the innocent mistake exception?
[17] The Respondent submits that the following is at issue in this application:
(1) Was the Visa Officer’s decision reasonable?
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] As matters of procedural fairness, the issues regarding whether the Applicants were denied an opportunity to respond to the credibility and s 40(1) concerns will be reviewed under the standard of correctness: Khosa v Canada (Citizenship and Immigration), 2009 SCC 12 at para 43 [Khosa].
[20] A visa officer’s assessment of an application for temporary visa permits, including findings of misrepresentations, involves questions of mixed fact and law and is reviewable under the standard of reasonableness: Canada (Citizenship and Immigration) v Young, 2016 FCA 183 at para 7; Odunsi v Canada (Citizenship and Immigration), 2016 FC 208 at para 13.
[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 Khosa, above, 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 from the Act are relevant in this proceeding:
Application before entering Canada
Visa et documents
11 (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
11 (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la présente loi.
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Obligation — answer truthfully
Obligation du demandeur
16 (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
16 (1) L’auteur d’une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, donner les renseignements et tous éléments de preuve pertinents et présenter les visa et documents requis.
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Work and study in Canada
Études et emploi
30 (1) A foreign national may not work or study in Canada unless authorized to do so under this Act.
30 (1) L’étranger ne peut exercer un emploi au Canada ou y étudier que sous le régime de la présente loi.
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Misrepresentation
Fausses déclarations
40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation
40 (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants :
(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans l’application de la présente loi;
(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;
b) être ou avoir été parrainé par un répondant dont il a été statué qu’il est interdit de territoire pour fausses déclarations;
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Application
Application
(2) The following provisions govern subsection (1):
(2) Les dispositions suivantes s’appliquent au paragraphe (1):
(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced;
a) l’interdiction de territoire court pour les cinq ans suivant la décision la constatant en dernier ressort, si le résident permanent ou l’étranger n’est pas au pays, ou suivant l’exécution de la mesure de renvoi;
[23] The following provisions from the Regulations are relevant in this proceeding:
Issuance
Délivrance
179 An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national
179 L’agent délivre un visa de résident temporaire à l’étranger si, à l’issue d’un contrôle, les éléments suivants sont établis :
(a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class;
a) l’étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants;
(b) will leave Canada by the end of the period authorized for their stay under Division 2;
b) il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2;
(c) holds a passport or other document that they may use to enter the country that issued it or another country;
c) il est titulaire d’un passeport ou autre document qui lui permet d’entrer dans le pays qui l’a délivré ou dans un autre pays;
(d) meets the requirements applicable to that class;
d) il se conforme aux exigences applicables à cette catégorie;
(e) is not inadmissible;
e) il n’est pas interdit de territoire;
(f) meets the requirements of subsections 30(2) and (3), if they must submit to a medical examination under paragraph 16(2)(b) of the Act; and
f) s’il est tenu de se soumettre à une visite médicale en application du paragraphe 16(2) de la Loi, il satisfait aux exigences prévues aux paragraphes 30(2) et (3);
(g) is not the subject of a declaration made under subsection 22.1(1) of the Act.
g) il ne fait pas l’objet d’une déclaration visée au paragraphe 22.1(1) de la Loi.
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General conditions
Conditions d’application générale
183 (1) Subject to section 185, the following conditions are imposed on all temporary residents:
183 (1) Sous réserve de l’article 185, les conditions ci-après sont imposées à tout résident temporaire :
(a) to leave Canada by the end of the period authorized for their stay;
a) il doit quitter le Canada à la fin de la période de séjour autorisée;
(b) to not work, unless authorized by this Part or Part 11;
b) il ne doit pas travailler, sauf en conformité avec la présente partie ou la partie 11;
(b.1) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages;
b.1) même s’il peut travailler en conformité avec la présente partie ou la partie 11, il ne peut conclure de contrat d’emploi — ni prolonger la durée d’un tel contrat — avec un employeur qui offre, sur une base régulière, des activités de danse nue ou érotique, des services d’escorte ou des massages érotiques;
(b.2) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer referred to in any of subparagraphs 200(3)(h)(i) to (iii); and
b.2) même s’il peut travailler en conformité avec la présente partie ou la partie 11, il ne peut conclure de contrat d’emploi — ni prolonger la durée d’un tel contrat — avec un employeur visé à l’un des sous-alinéas 200(3)h)(i) à (iii);
(c) to not study, unless authorized by the Act, this Part or Part 12.
c) il ne doit pas étudier sans y être autorisé par la Loi, la présente partie ou la partie 12.
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Authorized period ends
Période de séjour : fin
(4) The period authorized for a temporary resident's stay ends on the earliest of
(4) La période de séjour autorisée du résident temporaire prend fin au premier en date des événements suivants :
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(b.1) the day on which the second of their permits becomes invalid, in the case of a temporary resident who has been issued a work permit and a study permit;
b.1) dans le cas du titulaire à la fois d’un permis de travail et d’un permis d’études, celui ayant la date d’expiration la plus tardive cesse d’être valide.
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Extension of period authorized for stay
Prolongation de la période de séjour
(5) Subject to subsection (5.1), if a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until
(5) Sous réserve du paragraphe (5.1), si le résident temporaire demande la prolongation de sa période de séjour et qu’il n’est pas statué sur la demande avant l’expiration de la période, celle-ci est prolongée :
(a) the day on which a decision is made, if the application is refused; or
a) jusqu’au moment de la décision, dans le cas où il est décidé de ne pas la prolonger;
(b) the end of the new period authorized for their stay, if the application is allowed.
b) jusqu’à l’expiration de la période de prolongation accordée.
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No permit required
Permis non exigé
186 A foreign national may work in Canada without a work permit
186 L’étranger peut travailler au Canada sans permis de travail :
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(f) if they are a full-time student, on the campus of the university or college at which they are a full-time student, for the period for which they hold a study permit to study at that university or college;
f) à titre de personne employée sur le campus du collège ou de l’université où son permis d’études l’autorise à étudier et où il est étudiant à temps plein, pour la période autorisée de son séjour à ce titre;
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(u) until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date;
u) s’il a fait une demande en vertu du paragraphe 201(1), s’il est demeuré au Canada après l’expiration de son permis de travail et s’il continue à se conformer aux conditions imposées dans le permis exception faite de la date d’expiration, jusqu’à la décision sur sa demande;
(v) if they are the holder of a study permit and
v) s’il est titulaire d’un permis d’études et si, à la fois :
(i) they are a full-time student enrolled at a designated learning institution as defined in section 211.1,
(i) il est un étudiant à temps plein inscrit dans un établissement d’enseignement désigné au sens de l’article 211.1,
(ii) the program in which they are enrolled is a post-secondary academic, vocational or professional training program, or a vocational training program at the secondary level offered in Quebec, in each case, of a duration of six months or more that leads to a degree, diploma or certificate, and
(ii) il est inscrit à un programme postsecondaire de formation générale, théorique ou professionnelle ou à un programme de formation professionnelle de niveau secondaire offert dans la province de Québec, chacun d’une durée d’au moins six mois, menant à un diplôme ou à un certificat,
(iii) although they are permitted to engage in fulltime work during a regularly scheduled break between academic sessions, they work no more than 20 hours per week during a regular academic session; or
(iii) il travaille au plus vingt heures par semaine au cours d’un semestre régulier de cours, bien qu’il puisse travailler à temps plein pendant les congés scolaires prévus au calendrier;
(w) if they are or were the holder of a study permit who has completed their program of study and
w) s’il est ou a été titulaire d’un permis d’études, a terminé son programme d’études et si, à la fois :
(i) they met the requirements set out in paragraph (v), and
(i) il a satisfait aux exigences énoncées à l’alinéa v),
(ii) they applied for a work permit before the expiry of that study permit and a decision has not yet been made in respect of their application.
(ii) il a présenté une demande de permis de travail avant l’expiration de ce permis d’études et une décision à l’égard de cette demande n’a pas encore été rendue.
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Application after entry
Demande après l’entrée au Canada
199 A foreign national may apply for a work permit after entering Canada if they
199 L’étranger peut faire une demande de permis de travail après son entrée au Canada dans les cas suivants :
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(c) hold a study permit;
c) il détient un permis d’études;
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Application for renewal
Demande de renouvellement
201 (1) A foreign national may apply for the renewal of their work permit if
201 (1) L’étranger peut demander le renouvellement de son permis de travail si :
(a) the application is made before their work permit expires; and
a) d’une part, il en fait la demande avant l’expiration de son permis de travail;
(b) they have complied with all conditions imposed on their entry into Canada.
b) d’autre part, il s’est conformé aux conditions qui lui ont été imposées à son entrée au Canada.
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Canadian interests
Intérêts canadiens
205 A work permit may be issued under section 200 to a foreign national who intends to perform work that
205 Un permis de travail peut être délivré à l’étranger en vertu de l’article 200 si le travail pour lequel le permis est demandé satisfait à l’une ou l’autre des conditions suivantes:
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(c) is designated by the Minister as being work that can be performed by a foreign national on the basis of the following criteria, namely,
c) il est désigné par le ministre comme travail pouvant être exercé par des étrangers, sur la base des critères suivants :
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(ii) limited access to the Canadian labour market is necessary for reasons of public policy relating to the competitiveness of Canada's academic institutions or economy; or
(ii) un accès limité au marché du travail au Canada est justifiable pour des raisons d’intérêt public en rapport avec la compétitivité des établissements universitaires ou de l’économie du Canada;
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Application after entry
Demande après l’entrée au Canada
215 (1) A foreign national may apply for a study permit after entering Canada if they
215 (1) L’étranger peut faire une demande de permis d’études après son entrée au Canada dans les cas suivants :
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(c) hold a work permit;
c) il est titulaire d’un permis de travail;
VII. ARGUMENTS
A. Applicants
(1) Applicable Law
[24] The Applicants contend that, contrary to the Respondent’s submission, it does not follow that s 11(1) of the Act renders a foreign national inadmissible if they do not meet the requirements of the Act; rather, whether an applicant meets the requirements of the Act is separate and distinct from establishing admissibility. Thus, if a visa is denied on the basis of inadmissibility, the onus is on the immigration officer to show the grounds for the finding of inadmissibility.
[25] Additionally, the obligation imposed by s 16(1) of the Act is not absolute. The duty of candour applies only to material facts and an exception to a finding of misrepresentation arises where an applicant demonstrates they honestly and reasonably believed they were not withholding material information; such misrepresentations are material if they induce or could induce an error in the administration of the Act: see Bodine v Canada (Citizenship and Immigration), 2008 FC 848 at para 41.
(2) Procedural Fairness
(a) Bangalore Decisions
[26] In regards to the Bangalore Decisions, the Applicants submit that the Visa Officer breached the principles of procedural fairness by not putting concerns about credibility to the Applicants.
[27] If there is a concern with credibility, visa officers have the duty to provide applicants with the opportunity to respond to those concerns: see Hamza v Canada (Citizenship and Immigration), 2013 FC 264 at paras 25-28.
[28] In the GCMS notes for the Bangalore Decisions, the Visa Officer stated: “I am not satisfied that the applicant has not made this application in order to circumvent the decision on this application.” This finding ignores significant evidence that contradicts the conclusion and is an implicit negative credibility finding that was not put to the Applicants.
[29] Although the Applicants had provided several reasons as to why they submitted a TRV application to the Los Angeles Consulate, their evidence was ignored. The Applicants’ reasons included: they had not received a response from the Bangalore Consulate after two months despite following up several times and indicating an urgent need to travel; they were in Los Angeles to visit the Male Applicant’s ill father; the Female Applicant had a pending CEC interview to attend on March 1, 2016 in Edmonton; the Applicants sought to visit their family doctor in Canada to maintain their children’s immunization schedule; and the Male Applicant’s passport was due to expire on March 16, 2016. Furthermore, the Applicants could not have been attempting to circumvent the Bangalore Decisions because the Bangalore Decisions had not been decided at the time when the TRV applications to the Los Angeles Consulate were submitted. The Applicants contend that these reasons were a reasonable basis for submitting a second application, particularly since there is no prohibition in law to making a second application to another office if there is a change in geographic location or circumstances and an urgent need.
[30] The Applicants also take issue with the Visa Officer’s failure to provide a clear rationale to explain how their actions could have induced an error in the administration of the Act, particularly because the information was already known to the Visa Officer. The GCMS notes stated: “Given the applicant’s previous adverse history, I am not satisfied that the applicant would depart Canada at the end of the authorized period.” This finding ignores the Applicants’ lengthy immigration history of compliance with the conditions of their stay. Evidence of previous travel respecting immigration laws should be a positive factor in establishing an applicant’s credibility, yet was treated negatively in this situation: see Obeng v Canada (Citizenship and Immigration), 2008 FC 754 at para 13. Since, despite the Applicants’ immigration history, the Visa Officer found that their actions could have induced an error in the administration of the Act by giving the “incorrect impression” that the Applicants were genuine temporary visitors who were not inadmissible and met the requirements of the Act, the Applicants submit that the Visa Officer had issues with their credibility which were not put to them.
[31] In summary, it is clear that the Visa Officer found the Applicants not to be credible, which coloured the Bangalore Decisions. The Visa Officer had a clear duty to seek clarification from the Applicants and allow them an opportunity to respond before concluding they had made material misrepresentations. The Applicants argue that the failure to fulfil this duty amounts to a breach of procedural fairness.
(b) Los Angeles Decisions
[32] In regards to the Los Angeles Decisions, the Applicants submit the Visa Officer breached the principles of procedural fairness by not putting concerns about credibility to them.
[33] The Visa Officer’s conclusions that the Applicants were inadmissible for misrepresentation, would not be bona fide temporary residents, and would not leave Canada at the end of their stays are based on factually incorrect information and are essentially credibility findings that were made without providing the Applicants an opportunity to respond. As mentioned previously in the discussion of the Bangalore Decisions, visa officers have a duty to provide applicants with the opportunity to respond to any concerns about credibility.
[34] The Visa Officer’s findings that the Applicants continued to be inadmissible to Canada were based on the inadmissibility findings in the Bangalore Decisions; however, the Bangalore Decisions were made subsequent to the Applicants’ TRV applications to Los Angeles and, consequently, the Applicants were unaware of their inadmissibility findings. The Visa Officer should have made the Applicants aware of such information prior to making the decision and should have provided them with an opportunity to respond. Additionally, the Applicants maintain that they provided evidence that supported they would be bona fide temporary residents as their immigration histories demonstrated almost a decade of compliance with immigration requirements. The adverse treatment of their immigration histories in conjunction with the fact that the TRV applications were submitted when the Applicants were unaware of the inadmissibility findings from the Bangalore Decisions suggest that the Visa Officer doubted the Applicants’ credibility. As mentioned by Justice Mosley in Adeoye v Canada (Citizenship and Immigration), 2012 FC 680, at paragraph 8, “[a]lthough the officer did not make any explicit credibility findings, his scepticism about the applicant’s claim and supporting documents is apparent from the decision.”
[35] Next, the Visa Officer found that the Female Applicant had failed to comply with s 30 of the Act, essentially determining that she had worked full-time in Canada during a period when she held student status, which was contrary to the conditions of her study permit. However, the Female Applicant had valid temporary worker status pursuant to ss 186(u) and 201(1) of the Act until October 2015, which was separate from the study permit issued in May 2015. Furthermore, the Female Applicant had an open work permit that was valid until August 31, 2015. All of the open work permits issued to the Female Applicant as a dependent of the Male Applicant were issued under s 205(c)(ii) of the Act and were independent of her study permit. An individual can hold status as a worker and student concurrently, as recognized by ss 183(4)(b.1), 199(c), and Rule 215(1)(c) of the Regulations. As such, the Female Applicant was not contravening immigration laws because she was legally entitled to work until she left Canada in October 2015 and the Visa Officer made a factual and legal error.
[36] The Applicants also take issue with the Visa Officer’s conclusion that the Female Applicant had not been truthful about her intentions before entering Canada based on the fact that she did not pursue studies while holding a study permit. However, the Female Applicant had actually deferred her studies and only decided afterwards not to pursue them when she applied for a new work permit. The Female Applicant’s intentions are evident in the December 2015 TRV application in which she applied to return to Canada on the basis of her newly-issued open work permit rather than as a student.
[37] In light of these credibility findings regarding the Applicants’ intentions and the incorrect finding that the Female Applicant had violated her terms and conditions during her previous entry to Canada, the Visa Officer had a duty to seek clarification or provide the Applicants an opportunity to respond. The factual errors coloured the decision and were central to the conclusion that the Applicants were not bona fide temporary residents who would not respect the conditions of their visit; as such, this finding cannot stand.
(3) Innocent Mistake and Misrepresentation
[38] In regards to the Bangalore Decisions, the Applicants submit that the Visa Officer erred in finding the Applicants had made a material representation by not disclosing their prior refusals for TRV applications. The innocent mistake exception to misrepresentation should have been applied because the information was already known to the Visa Officer.
[39] The procedural fairness letter was vague and did not clearly identify the concern by mentioning the previous CEC refusal. The Applicants did not mention the CEC refusal because they honestly believed it did not constitute a visa refusal since the application had been made in Canada and was not relevant to a TRV. While this belief was incorrect, the Applicants did not intend to mislead the Visa Officer or circumvent immigration requirements. The Applicants believed the Visa Officer already knew about the CEC refusal because the response to the procedural fairness letters indicated they had provided all the information to the best of their knowledge and invited a cross-check of their records to confirm their response. The invitation to review their immigration history demonstrates the lack of intention, purpose, or need to misrepresent information about their prior immigration applications.
[40] Consequently, the Applicants argue that the Visa Officer failed to consider all the evidence in a meaningful analysis of the recognized innocent mistake exception to s 40 of the Act. According to Justice Barnes in Berlin v Canada (Citizenship and Immigration), 2011 FC 1117 [Berlin] at paras 19-20, the innocent mistake exception has considerable jurisprudential support and recognizes the possibility that withholding information which is otherwise available to the Visa Officer, and being forthcoming in disclosing the information when asked, is a basis for excusing what otherwise might appear to be a deliberate misrepresentation. In Berlin, the decision was unreasonable because the visa officer failed to acknowledge the potential mitigating evidence provided and failed to include the evidence in a meaningful analysis of the recognized innocent mistake exception. As in Berlin, the Applicants’ immigration histories and prior refusals were part of their Citizenship and Immigration Canada [CIC] files so they honestly believed they were forthcoming in their responses. Furthermore, the prior refusals had no bearing on subsequent TRV applications, which led the Applicants to believe they did not need to be addressed.
[41] Additionally, as endorsed in Menon v Canada (Minister of Citizenship and Immigration), 2005 FC 1273 at para 15, CIC’s manuals recognize that “honest errors and misunderstanding sometimes occur in completing application forms and responding to questions. While in many cases it may be argued that a misrepresentation has technically been made, reasonableness and fairness are to be applied in assessing these situations.” The jurisprudence also indicates that misrepresentations contain an element of subjective intent; if applicants have no reason to believe they are misrepresenting a material fact, the finding of inadmissibility for misrepresentation is unreasonable: see Osisanwo v Canada (Citizenship and Immigration), 2011 FC 1126 at paras 9-15 [Osisanwo].
[42] The Applicants submit that the jurisprudence cited by the Respondent does not support a finding of inadmissibility for misrepresentation where an applicant innocently failed to disclose information th