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EXCLUSION (INADMISSIBLE PERSONS) - Grounds for inadmissibility - Misrepresentation

Monday, April 30, 2018 @ 8:28 AM  


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Application by the Minister for judicial review of a decision by the Immigration Appeal Division upholding a finding that the respondent was not inadmissible for misrepresentation and had no duty of candour to disclose his father's criminal history. The respondent’s father, a citizen of India, had been convicted of murder in India in 2005. In 2007, he applied to become a permanent resident of Canada under the family class, along with his wife and the respondent, his adult son. The respondent's sister, who was in Canada, acted as the sponsor. The father indicated in his application that he had not been the subject of any criminal proceedings. The respondent was never asked for information about any criminal convictions that other family members might have had. The respondent's application for permanent residence was joined to his father's application as the principal applicant. The family was granted permanent residence in 2008. In 2015, an immigration officer issued a report alleging that the respondent was inadmissible for failure to disclose his father's conviction, thereby inducing an error in the administration of the Act. The respondent’s parents by that time had returned to India. The Immigration Division found that the respondent was not responsible for his father's misrepresentation about his own admissibility. It concluded that if Parliament had intended to attach the inadmissibility of a principal applicant for misrepresentation to all landed dependents, it would have expressly so provided in s. 40(1)(a). The Appeal Division agreed with this analysis of the legislative intent of s. 40(1)(a) and found that the respondent did not have an obligation to disclose information about his father's criminality at the Port of Entry interview.

HELD: Application allowed. The goal of s. 40(1)(a) was to ensure that applicants provided complete, honest and truthful information and that full disclosure was fundamental to the proper and fair administration of the immigration scheme. The section had been interpreted as broad in scope. It does not make a distinction between innocent misrepresentation and deliberate misrepresentations. The Appeal Division’s finding to the effect that the respondent could only be found to be inadmissible if the father was subject to an inadmissibility hearing pursuant to s. 44(2) after the preparation of an inadmissibility report was unreasonable. The Appeal Division’s finding that the father's misrepresentation was not attributable to the respondent as an indirect misrepresentation was also unreasonable. The circumstances in this matter were not such, however, as to compel the conclusion that the respondent had a duty to disclose his father's criminal history on the visa application form or when they were examined at the Port of Entry. The applicant was presented with forms that required him to disclose his own criminal history, if any, and not that of anyone else in his family group. Only the principal applicant was required to disclose whether any of the dependent applicants had such a history, to his knowledge, in addition to himself. It was thus within the range of defensible outcomes on the facts and the law for the Appeal Division to conclude that the respondent bore no duty of candour to inform on his father at the Port of Entry.

Canada (Minister of Citizenship and Immigration) v. Singh Sidhu, [2018] F.C.J. No. 298, Federal Court, R. Mosley J., March 16, 2018. Digest No. TLD-April302018001