Canada Immigration Caselaw Brar v. Canada, IMMIGRATION — Inadmissible and removable classes — Misrepresentation

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IMMIGRATION — Inadmissible and removable classes — Misrepresentation — Foreign nationals were citizens of India who applied for permanent residence under family class — In December 2013 five criminal charges were laid against principal foreign national in India — Foreign national and complainant in criminal case entered into compromise or plea arrangement on January 18, 2014 — Compromise was subsequently placed before Court in India on February 22, 2014 and granted at that time — Result was foreign national’s acquittal on four charges and his conviction on fifth — Subsequent to laying of charges, but prior to compromise being granted by court, Canadian immigration authorities requested principal foreign national to update forms relating to application for permanent residency — On January 26, 2014, principal foreign national answered “NO” to question whether he had ever been convicted of or was currently charged with offence or was subject of any criminal proceedings — Procedural fairness letter was sent to foreign nationals regarding potential misrepresentation on their application pursuant to s. 40(1)(a), to which foreign nationals responded denying deliberate misrepresentation — Officer subsequently found that foreign nationals had misrepresented their application and that misrepresentation could have induced error in administration of Immigration and Refugee Protection Act (Can.) — Officer rejected application for permanent residence under s. 40(1)(a) of Act — Foreign national applied for judicial review — Application dismissed — There was reasonable basis upon which officer could conclude that foreign nationals had failed to provide complete, honest and truthful information and as result there had been misrepresentation — Question to which foreign national responded “NO” on January 26, 2014 encompassed much broader set of circumstances than simply whether or not he had been convicted of office — There was no doubt that charges were outstanding on that date and remained outstanding until February 22, 2014, date compromise was placed before Indian Court and granted — On February 22, 2014 charges were no longer outstanding but foreign national stood convicted of one offence contrary to his response to procedural fairness letter — Misrepresentation was not cured through response to procedural fairness letter — Procedural fairness letter was not opportunity for foreign national to rehabilitate themselves where they have failed in their duty of candour under s. 16(1) of Act — Procedural fairness letter was opportunity for foreign national to demonstrate that there was no misrepresentation or withholding of material facts that could have induced error in administration of Act

Brar v. Canada (Minister of Citizenship and Immigration) (May 13, 2016, Patrick Gleeson J., Federal Court) 266 A.C.W.S. (3d) 937