2009 CLE, Whistler B.C. Gordon Maynard Misrepresentation A ... · 2009 CLE, Whistler B.C. Gordon...

2009 CLE, Whistler B.C. Gordon Maynard

Misrepresentation A Historical, Statutory and Judicial Analysis

o The Duty to Disclose o Elements of the 40(1) Inadmissibility

I. Introduction Misrepresentation inadmissibility is mature and complex and a joy to critically examine.

“Mature” because its statutory roots and case law can be traced back more than fifty years. The 1952 Immigration Act provisions were the focus of Brooks 1– the 1974 Supreme Court of Canada decision that continues as a foundation for modern misrepresentation law.

“Complex” because human beings can always find a new way to commit the offence or a new interpretation of the law to either condemn or excuse it.

IRPA recast misrepresentation. Misrepresentation was given new muscle and larger room to manoeuvre. The principles of misrepresentation that existed for fifty years before IRPA were preserved, for the most part. But IRPA added on more opportunities to pin inadmissibility on more persons in more occasions, and the definition of misrepresentation was broadened, it seemed.

Under IRPA, misrepresentation could be applied to “anyone”, not just those who obtained status directly or indirectly by reason of it. Anyone who misrepresented material facts relating to a “relevant matter” of the Act became capable of being inadmissible. You didn’t need to be the person benefitting from the misrepresentation to fall under its cast.

IRPA also included “withholding” of material facts in addition to “misrepresentation”. Previous versions of the law didn’t specifically mention omission or “withholding” of information. IRPA invited the idea that misrepresentation was not limited to express answers to good questions. Maybe misrepresentation now included the failure to give information, whether or not the question is asked.

1 Canada (Minister of Manpower and Immigration) v Brooks [1974] S.C.R. 850

http://ql.quicklaw.com/servlet/qlwbic.qlwbi?qlsid=C1DlLHxDsLuoDlLA&qlcid=00003&qlvrb=QL002&UGET=Q0065577,SCR

Misrepresentation: Gordon Maynard

... Introduction This paper examines misrepresentation in two parts.

Duty to Disclose

The Duty to Disclose is the obligation to provide truthful, complete information in an Immigration matter. We ask how far the Duty to Disclose stretches – When does an individual have a duty to disclose any adverse information, even in the absence of a specific question?

Duty to Disclose is a good focus because IRPA refers to “withholding” material facts.

The fun issue in Duty to Disclosure is finding the boundaries of the obligation. A significant misrepresentation in response to a specific question is going to be an inadmissibility. But what if the information simply isn’t made known because the right questions aren’t asked? What if the applicant answers all questions honestly, but doesn’t volunteer the information? What if only three questions are asked? (“What’s your nationality, how long you coming up for, and do you have any fruit with you?) Can a breach of the Duty to Disclose arise when all questions are answered honestly and fully? When is a person obliged to bring up information that might be relevant, even if no questions are asked?

The Elements of A 40(1) Misrepresentation Breach

The second part of this paper is about the elements of A40(1), apart from “misrepresenting” or “withholding”. IRPA added new statutory language –

• “directly or indirectly”

• “material facts relating to a relevant matter”

• “that induces or could induce an error in the administration of this Act”

It isn’t enough for there simply to have been a misrepresentation or withholding committed. The quality of that misrepresentation or withholding needs to be examined in light of the A40 elements.

While the language of A40(1) expanded the range of persons who could be subject to misrepresentation allegation, the A40(1) elements can also act as a “brake”, limiting the application of the inadmissibility.

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...Introduction

An Incomplete Legislative History of Misrepresentation

Immigration Act, R.S.C. 1952, c. 325

s.19(1)(e)(viii))...any person who came into Canada {or was granted landing} or remains therein with a false or improperly issued passport, visa, medical certificate or other document pertaining to his admission or by reason of any false or misleading information, force, stealth or other fraudulent or improper means, whether exercised or given by himself or by any other person ...

Immigration Act, 1976, S.C. 1976-77, c. 52

27(1) (e) was granted landing {or came into Canada} by reason of possession of a false or improperly obtained passport, visa or other document pertaining to his admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person

Immigration and Refugee Protection Act, 2002

40(1) (a) .a foreign national or permanent resident..is inadmissible 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;

The 1952 and 1976 provisions were very similar; they were cluttered.

• Both mentioned coming into Canada (or landing) “by reason of” the misrepresentation (1976) or misleading (1952) information

• Both included “other fraudulent or improper means” • Both mixed in the use of false or improper documents.

The 2002 IRPA Misrepresentation provision is more focussed, streamlined, simpler, and broader:

• There is no reference to “passports, visas or other documents”, the focus is misrepresentation, however it is made. (Sufficiency of documents can be addressed in the “compliance” inadmissibility.)

• There is no “tying” of the misrepresentation to the obtaining of entry or landing. You can commit misrepresentation without obtaining any status, and there is no room for arguing that the misrepresentation had to be instrumental to the status.

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...Introduction

• Relevance and materiality are guided by the requirements that the “material facts are relating to a matter that induces or could induce an error in the administration of this Act”.

• The “withholding” provision is added; a person can be inadmissible for “misrepresenting or withholding material facts.” “Withholding” seems to replace “other fraudulent or improper means”.

• “...directly or indirectly misrepresenting” are each covered.

When IRPA was introduced there was considerable interest in the addition of “withholding material facts”, in addition to the usual language of “misrepresentation”. “Withholding” suggested a widening of the duty of disclosure; a new interest in what an applicant didn’t say and the creation of a duty to give information even when not asked.

In the discussions with CIC during legislative reform it was always explained that “withholding” was in the context of a question being asked, particularly, in the context of an application. The CIC repeatedly said that if no question was asked, then no disclosure was expected.

Let’s see how caselaw before and since IRPA has addressed this “Duty of Disclosure” question.

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II. The Duty to Disclose

Our Mr. Brooks In December 1972 DOJ counsel stood before the Supreme Court of Canada and argued that Mr. Robert P. Brooks committed misrepresentation by failing to disclose a prior deportation order issued against him by the Philippine government, just 10 months before he applied for immigration to Canada.

In his application for immigration Mr. Brooks had never actually been asked if he had ever been deported from anywhere other than Canada. He had been asked if he had been deported from Canada, and he confirmed he had not.

Mr. Brooks was a rogue. Mr. Brooks was an American citizen born in the Philippines. He had been married twice in the Philippines and had been convicted of bigamy. He had been released from prison with a conditional pardon.

After World War II, he and his business partner became successful in the Philippines. In March 1962 he and his partner were arrested and charged with a number of criminal offenses. Criminal and deportation proceedings were commenced. Brooks voluntarily departed the Philippines on the same day that a deportation order was issued against him. His voluntary departure was known and permitted by the Philippine Government. Mr. Brooks did manage to avoid facing the criminal proceedings.

A few months later, in his application for immigration to Canada, Mr. Brooks did not volunteer his history of difficulties in the Philippines. He wasn’t asked and he didn’t tell.

On the application form, Brooks was asked “Why do you wish to migrate?” and “Why did you select Canada?”. In each case, Brooks answered “business”. He did not mention his charges and deportation from the Philippines. In fact, he didn’t mention the Philippines at all.

The DOJ argued that it was Brooks duty to answer truthfully so as not to mislead the immigration officer, and that by answering as he did he misled the officer.

The Court said this...

“What is put in issue here by the appellant Minister is that Brooks failed to reveal in answer to the question "Why do you wish to migrate" that a deportation order had been made against him by the Philippines Government. The submission was, moreover, that it was his duty to answer truthfully so as not to mislead the immigration officer, and by answering as he did he misled the officer.”

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...The Duty to Disclose... The DOJ was asking the Court to find a duty of disclosure that went beyond just answering the questions asked in the application process. The DOJ wanted immigrants under a duty to volunteer information of interest, even if the information wasn’t particularly asked for.

The Court never answered this question. This was a Question of Fact, not a Question of Law, and so was beyond their scrutiny. This is not to say that Mr. Brooks was off the hook. Mr. Brooks had given bad answers to other direct questions and so misrepresentation was easily found with respect to those statements. The Court upheld deportation without having to decide whether his “incomplete” answers made him inadmissible.

But the Brooks case did not hold that there was an unlimited obligation on Brooks to give up information that wasn’t asked for. The Court strongly suggested that, on another day with another fact situation, the obligation would exist for certain information, but it was not necessary to make that decision with respect to Mr. Brooks.

The Four Circumstances for Duty to Disclose Fifty years of cases regarding the Duty to Disclose indicates that there are four circumstances where a Duty to Disclose arises:

i. When a relevant question is asked.

ii. When there is a change of material circumstances.

iii. When a statute requires disclosure.

iv. When the surrounding circumstances require disclosure, even if a question is not asked.

1. If a relevant Question is Asked, there is a Duty to Disclose the Answer.

Canada (Minister of Manpower and Immigration) v Brooks ([1974] SCR 850

The Brooks case is a straight forward case of misrepresentation by false answer to questions asked. Brooks gave answers that hid his past residence, past wife or past conviction, all from the Philippines. There was nothing in his answers that even referred to the Philippines. In his Form 471 he was asked if he had any prior convictions, he said “No”. The Court said this was a misrepresentation because he couldn’t rely on his foreign pardon. He was asked for his closest relative in his “home country”. He said “none”. This was false because he still had a wife in the Philippines. He was asked his addresses for the past 10 years, and he gave only a New York business address.

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...The Duty to Disclose... The Court had no difficulty in finding these to be misrepresentations. Questions were asked and false answers were given, and that is the obvious circumstance of breach of Duty to Disclose.

It is simple to state that the Duty to Disclose is engaged when a relevant question is asked. A false or incomplete answer may give rise to a misrepresentation.

Other Brooks Principles

The Brooks case is very important authority for a number of basic principles respecting misrepresentation inadmissibility. For instance:

• that it is not necessary to have intent to mislead or misrepresent, an innocent misrepresentation is still a misrepresentation, (“...I cannot be persuaded that intentional or wilful deception should be read in as a prerequisite.” Per Laskin, J.)

• the misrepresentation does need to have masked a ground for refusal. It is not necessary to show that the hidden information would have made the individual inadmissible, (“Lest there be any doubt on the matter as a result of the Board's reasons, I would repudiate any contention or conclusion that materiality under s. 19(1)(e)(viii) requires that the untruth or the misleading information in an answer or answers be such as to have concealed an independent ground of deportation. The untruth or misleading information may fall short of this and yet have been an inducing factor in admission.” Per Laskin, J.)

• the misrepresentation is material simply if it averts or discourages a line of inquiry.

(“But also relevant is whether the untruths or the misleading answers had the effect of foreclosing or averting further inquiries, even if those inquiries might not have turned up any independent ground of deportation.” Per Laskin, J.)

These principles have been adopted and applied consistently through to IRPA. It is a very good question as to whether these principles have been amended by IRPA, particularly where IRPA requires that the misrepresentation “induce” or “could induce” an error in the administration of this Act. That is something to be examined later in the paper, when talking about the elements of the breach. For now, the point is that if A Relevant Question is Asked, say in an application or examination, a Duty to Disclose arises.

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...The Duty to Disclose...

2. A Material Change in Circumstances –There is a Duty to Disclose a

material change in circumstances – even if no question is specifically asked.

(Minister of Employment and Immigration v. Guidino, [1982] 2 F.C. 40)

27(1)e of the 76-77 Immigration Act

It is tempting to argue that, if there are no questions, there is no Duty to Disclose. But that is not true. The Courts have long held held that a “Change of Circumstances” gives rise to a Duty to Disclose, and this is entrenched in the Regulations (Reg 51).

Guidino was an independent applicant (skilled worker) and was interviewed and approved, at least partly on the basis of an offer of employment from his employer in Canada. The employer then terminated employment and the offer, and notified the Canadian office of Immigration in Toronto. The Visa office wasn’t informed, and they issued an immigration visa to Guidino. Guidino was not asked if his employment had changed.

The Visa office later learned of the loss of employment and told Guidino not to proceed to Canada because the visa was no longer valid. Guidino came anyways, and was landed.

The Court said that the change of circumstances having to do with employment was material and should have been disclosed. The Court adopted Lord Wilberforce’s comments on the duty of disclosure...

The applicant “owes a positive duty of candour on all material facts which denote a change of circumstances since the issue of the entry clearance. He is seeking a privilege; he alone is, as to most such matters, aware of the facts: the decision to allow him to enter, and he knows this, is based on a broad appreciation by immigration officers of a complex of considerations, and this appreciation can only be made fairly and humanely if, on his side, the entrant acts with openness and frankness. “

So, if an applicant makes an application and there is a “change of circumstances” that is relevant to the visa decision, the applicant has duty to disclose that change of circumstances, even if no questions are asked.

You can find many cases illustrating this “omission” breach – where there is a change of material circumstances since visa issuance or approval or application. Whether it is loss of employment,

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...The Duty to Disclose... a newly acquired spouse, the birth of a child, loss of sponsorship, or death of principle applicant there is an obligation on the applicant to notify the visa post or port of entry before obtaining status. It doesn’t matter if the change of circumstances is or is not determinative of the application, or if a question is or is not asked – the duty to disclose is pretty much absolute and otherwise constitutes misrepresentation.

3. A Statutory Duty to Disclose – even if no question is specifically asked. (Abu Tayub Mohammed v Canada, (T.D.) [1997] 3 F.C. 299) (Canada v. Haileyesus Geta Zewdie, (ID) [2006] I.D.D. No.22)

Both the requirement to answer questions honestly and the requirement to disclose changes of material circumstance have been entrenched in statute. Immigration legislation has long had a provision requiring honest answers to officer questions, but IRPA extended that duty to all applications, not just in the process of landing. The current version (r.51 IRPA) imposes a significant obligation. A16 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.

Regulation 51

r.51 A foreign national...at a port of entry must...inform the officer if

(i) the foreign national has become a spouse or common-law partner or has ceased to be a spouse, common law partner or conjugal partner after the visa was issued, or

(ii) material facts relevant to the issuance of the visa have changed since the visa was issued or were not divulged when it was issued; ...

Under the Immigration Act, the relevant disclosure provisions were r.9 and r.12, which required the information to be given either to the visa officer or the POE officer.

R.51 pretty much covers everything, for immigrants at the POE. The obligation to disclose previously undisclosed relevant material facts is interesting. That is a broad duty of disclosure that certainly doesn’t require a question to be asked. I am hard pressed to think of any material fact that wouldn’t already have been questioned in the usual immigration forms.

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...The Duty to Disclose... I don’t believe there is any similar statutory duty for foreign nationals seeking temporary entry. They would be covered by the obligation to answer all questions honestly, and the “surrounding circumstances” situations.

The cases of Zewdie and Mohammed involve IRPA (Zewdie) and Immigration Act (Mohammed) statutory duties. In both cases (particularly Mohammed) it didn’t matter that the immigrant had no idea of the obligation to provide the information, or didn’t have any intention to misrepresent, or didn’t have any questions asked at POE. The statutory duty to disclose was absolute...

Mohammed’s family came from a village in Bangladesh. They all applied and immigrated together. Mohammed was an accompanying dependent. After getting his visa and before coming to Canada, Mohammed became married. He didn’t tell the visa office or the POE. He wasn’t asked.

It was accepted that no one in the family spoke English or French, that the forms were filled out by one of the few individuals in the village who could write English. None of the family members knew that they were supposed to report any change in marital circumstances. At the border there was no interpreter and the POE officer simply pointed to the Imm 1000s and had the family members sign.

The Federal Court held that the statutory duty to disclose was overriding and not dependent on any questions being asked. The obligation was unavoidable...

“In the present case, the applicant had a duty to inform immigration officials of any change in circumstances relevant to the issuance of his visa. This duty was his at both stages of the process for gaining admission to Canada, to inform visa officials prior to leaving Bangladesh, as well as the immigration officer upon entering Canada, of any material change in circumstances since the issuance of his visa, particularly in regard to his marital status. As an applicant, it was his responsibility to meet the requirements of the procedure of which he sought to avail himself.

In my view, the fact that the applicant was unable to understand or communicate in English or French, while regrettable, does not absolve him of what is, at the end of the day, his own failure to fail to meet the obligation imposed upon him by the Immigration Act. The applicant failed to meet his obligation to notify officials of the change in his marital status prior to leaving Bangladesh and upon entering Canada.”

In Zewdie, the issue again was marriage. Mr. Zewdie became married just before visa issuance, and he never reported his marriage either to the visa office or to the POE officer. At the POE Mr. Zewdie said that he was not asked any questions and didn’t give any answers (he didn’t speak French or English and the officer didn’t speak Amheric).

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...The Duty to Disclose... At hearing it was a contentious issues as to whether or not Mr. Zewdie was able to effectively communicate at the port of entry and whether he understood a duty to disclose, but at the end of the day, it didn’t matter - the statutory duty prevailed....

35. Paragraph 51 of the Regulations clearly has the same meaning and intent as the former regulation that was considered by the Court, therefore I conclude that the analysis undertaken by the Court in the Mohammed case continues to be relevant to IRPA. The same principles that applied to Mr. Mohammed also apply to Mr. Zewdie.

36. Mr. Zewdie was under an obligation, pursuant to paragraph 51 of the Regulations to disclose to the immigration officer upon his arrival in Canada that his marital status had changed since the time his visa was issued in Nairobi. As was the situation in the Mohammed case, to accept Mr. Zewdie's argument would shift the onus of disclosure, and responsibility for meeting the statutory requirements to obtain landing, from the applicant to immigration officials. Such a shift would be contrary to the clear and express intention of IRPA.

37. Furthermore, there is no question that Mr. Zewdie's marital status at the time of his landing was of significant materiality, in that it potentially would have had a direct or inducing influence on whether or not he was granted landing in Canada.

4. “Surrounding Circumstances” Duty to Disclose – even if no question is specifically asked, and no statutory obligation... (Robert Tabaniag Baro v. Minister (2007 FC 299)) (Minister v. Brundell A7-00721 (2007) (Immigration Division, Vancouver)) (Alison Colette Bodine v. Minister (2008) FC 848))

This is the litmus test of disclosure obligation. In what circumstances is someone obliged to disclose information, even if never asked a question and even if there is no statutory obligation is imposed? Can there ever be a situation where the obligatory duty rests on the individual to bring forward the information, regardless of how disinterested the officer may be? There is no unqualified duty to spontaneously disclose any and all possibly relevant information that an officer might be interested in....

“Of course, applicants cannot be expected to anticipate the kinds of information that immigration officials might be interested in receiving. As the IAD noted here, “there is no onus on the person to disclose all information that might possibly be relevant”. One must look at the surrounding circumstances to decide whether the applicant has failed to comply with s.40(1)a. “ Baro v Minister of Citizenship and Immigration 2007 FC 1299

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But there is a qualified duty that might exist in all the circumstances of the case....

“...the duty to spontaneously disclose facts to an Immigration officer, must be informed by the context of the circumstances, as well as by immigration law. My opinion has been, and is confirmed, I believe, by my analysis in the Zewdie case, beginning at paragraph 21....

Misrepresentation, as it is defined in subsection 40(1)a cannot logically mean that every person entering Canada for any reason must present themselves at the port of entry and spontaneously recite any possible fact that could have the potential to cause them to be inadmissible. .......”

Minister v. MF Brundell A7-00721 (Immigration Division, Vancouver)

“Although the Act, or section 40 specifically, does not require spontaneous disclosure of all information or evidence, there may be an obligation to disclose information or to produce relevant evidence in certain circumstances. Section 16(1) of the Act provides that “[a] person who makes an application must answer truthfully all questions put to them for the purpose of the examination and 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...”

...” It is clear that a duty of candour exists and that the surrounding circumstances are important for deciding what that duty entails in any particular instance. This case presents the question of the extent to which an applicant must disclose information when not expressly asked for that information by an examining officer. I do not find that section 40 of the Act requires that a person must spontaneously disclose any fact that could possibly be relevant. Instead, to determine whether the withholding of information constitutes a misrepresentation under the Act, it is necessary to consider the surrounding circumstances in each instance.”

(Alison Colette Bodine v. Minister (2008) FC 848)

The idea of surrounding circumstances dictating a disclosure obligation (where there is no corresponding statutory obligation, forms or questions) is an important and developing line of jurisprudence.

I am aware of three cases on the topic...Baro (2007 FC 299), Brundell (A7-00721 Immigration Division, Vancouver) and Bodine v. Minister (2008) FC 848. All of these cases are post-IRPA and none of them refers to any pre-IRPA cases specifically using the “surrounding circumstances” test. This doesn’t mean that there isn’t any pre-IRPA case law to rely upon; it just means I don’t know of it.

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Baro

Baro was previously married in the Philippines, but he lost track of his wife and so obtained a Court order of her “presumptive death”. She was now presumed dead. Mr. Baro then married another woman, who sponsored him to Canada.

In his application for permanent residence, Baro never mentioned his first marriage. (He also didn’t tell his new wife about it.) He claims he was never asked any question in his application form, and since the visa post lost his application they were in no position to deny it.

The visa post did ask him to obtain a “marriage check” certificate from the National Statistics Office, and it didn’t make any reference to his first marriage, either.

Mr. Baro became a permanent resident and all was fine until his wife in Canada independently learned of his first marriage and that his first wife was alive and about in the Philippines. She reported her husband to CBSA, who reported him for misrepresentation. The ID, IAD and FC all found him inadmissible by s.40(1).

Mr. Baro argued that he never committed misrepresentation because he was never asked any question about his first wife or marital history.

The Federal Court (and ID and IAD) all found that Mr. Baro should have known that the visa office or the POE would want to know about his first marriage. It was relevant to determining the genuine nature of his current marriage, and it was the “surrounding circumstances” that created the duty of disclosure...

[16] An applicant’s marital history is clearly relevant to an application for permanent residence based on a spousal sponsorship. Canadian officials will want to ensure that the union is genuine and the applicant’s marital background is a valid factor for them to take into account: Quizon.v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1076 (F.C.T.D.) (QL)....

[18.] ... As the IAD noted here, “there is no onus on the person to disclose all information that might possibly be relevant”. One must look at the surrounding circumstances to decide whether the applicant has failed to comply with s. 40(1)(a).

[18] Here, the Canadian officials who were responsible for processing Mr. Baro’s application for permanent residence, based on a spousal sponsorship, asked him for a “marriage check”. Obviously, this request alerted Mr. Baro to the fact that those officials wanted to know if he had been married before. In my view, in these circumstances, Mr. Baro was obliged to disclose his marital history. True, he complied with the request for an official certificate of marriage registration. However, his compliance with that request did not absolve him of the obligation to divulge his previous marriage and the steps

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...The Duty to Disclose... he took to have his first wife presumed dead. Mr. Baro could not have reasonably believed that he was not withholding material information.”

Brundell

Mr. B was a foreign national, living successfully abroad and visiting Canada regularly over the years, with his Canadian spouse. Mr. B had an extensive criminal record. He was a bit of a rounder in the past. Nothing particularly serious; the kind of stuff you would expect of an trucker – drinking and driving, assaults, and the like. Enough to be inadmissible.

For more than 20 years Mr. B had visited Canada and his criminality had never been raised as an issue. He was never asked and never volunteered the information. He would come with his wife on holidays, go fishing and visit the in-laws.

On his last visit to Canada, Mr. B got into trouble with the Canadian police. He was charged with a serious offence in Canada. He was arrested and released on bail from the Criminal court. He was allowed to leave Canada pending trial, and he made plans to do so.

Before he could leave CBSA detained Mr. B, and commenced proceedings in the Immigration Division. They wanted a removal order for misrepresentation. They weren’t ready for the Criminal inadmissibility allegation (they had requested foreign records and what not from the foreign authorities, but they hadn’t arrive yet). So they went with Misrepresentation.

The CBSA argument was that Mr. B had a duty to disclose to Canada Immigration at POE that he possessed his past foreign record of convictions. It was acknowledged that he was not asked by any officer or in any form whether he had any history of convictions. Mr. Brundell was from a visa exempt country. One the occasion of his entry, as with all other occasions, he was asked three questions only – his nationality, purpose of entry, and intended duration of visit.

It was argued that Mr. B knew or should have known that criminal history was a relevant concern.

The misrepresentation was not sustained, and as quoted above, Member King supported an interpretation of case law that required examination of all the circumstances as well as the statute, and any questions asked at the border. In the particular circumstances of Mr. Brundell,...

“He has travelled very frequently to Canada and has never been asked a question about his past criminal record and he has never observed anything at a Canadian port of entry that alerted him that his prior criminal record may be relevant. I do consider Mr. Brundell’s experience quite distinguishable from that

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...The Duty to Disclose... situation which I have seen often, where a person traveling to Canada has been asked that question at a border, has advised about a criminal record and has been told that they are inadmissible and allowed to leave and then have come back at a later time and simply failed to disclose their prior record, even though they were not asked. Although Mr. Maynard may disagree, in those cases I do find that the person has made a misrepresentation. The knowledge that they had previously been given about the relevance of their criminal record and the fact that they had been specifically advised by an Immigration officer that it made them inadmissible is what I consider in those cases gives rise to a duty of candour with respect to their prior criminal record.”

Bodine

I am indebted for Peter Edelmann for bringing this case to my attention. It is a good case, unless you are Ms. Alison Colette Bodine.

Ms. Bodine was one of those free-spirit Americans who show up at our Douglas land crossing POE (south of Vancouver) now and then (in this case at 2AM) presenting themselves as visitors but carrying their worldly belongings and looking like they are planning to stay. Some of the things Ms.Bodine had with her included bags of personal belongings, her bicycle and bike rack and sheets of return address stickers with a Vancouver address. She couldn’t provide any evidence of a US address or job. She was told the reasons for her refusal of entry, and was advised that if she wanted entry as a visitor that she should have appropriate funds and belongings, and proof of residence in the U.S.

Ms. Bodine returned to the US, and called her Canadian boyfriend down. She transferred many of her belongings into his car, obtained a ATM receipt to show funds, and a bank statement to show an address in Colorado.

She returned to the border in her own car, no longer cluttered with her belongings, and was readmitted without being referred to Secondary. She never told the officer that she had voluntarily withdrawn her entry ten hours earlier.

When her boyfriend tried to enter he wasn’t so lucky. CBSA found Ms. Bodine’s belongings and CBSA figured out what had happened. They seized the belongings and issued a warrant for Ms. Bodine’s arrest for alleged misrepresentation inadmissibility. When Ms. Bodine showed up at the border she was arrested and the ID hearing held.

The Board did not need to find that Ms. Bodine had committed misrepresentation by not disclosing her prior withdrawal of entry. It wasn’t necessary for the Board to make that decision. Instead, the Board found that Ms. Bodine had committed misrepresentation by dividing up her belonging and not telling the border the extent of the belongings being brought into Canada!

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...The Duty to Disclose... This was the decision reviewed in Federal Court. The Court endorsed the concept of “surrounding circumstances” capable of creating a duty to disclose, and found that the “surrounding circumstances” of Ms. Bodine did in fact impose a duty to disclose that the belongings being brought into Canada were not limited to those in her vehicle....

“[42] It is clear that a duty of candour exists and that the surrounding circumstances are important for deciding what that duty entails in any particular instance. This case presents the question of the extent to which an applicant must disclose information when not expressly asked for that information by an examining officer. I do not find that section 40 of the Act requires that a person must spontaneously disclose any fact that could possibly be relevant. Instead, to determine whether the withholding of information constitutes a misrepresentation under the Act, it is necessary to consider the surrounding circumstances in each instance.

[43] Here, the Applicant knew or ought to have known that the amount and the kind of goods she was bringing into Canada was a relevant fact that the examining border services officer would need to know in order to assess whether she was admissible under the Act. The Applicant knew that, because of the goods she had previously attempted to bring into Canada, together with the lack of proof of funds and proof of an address in the United States, Officer Emmott had not been satisfied that she would leave Canada at the end of the period of her authorized stay. Thus, she knew that the number and type of goods she was transporting were material to the determination of whether or not she was admissible to Canada. That concern had been raised with her at her first attempt at entry and, to ensure it would not be raised as a concern on her second attempt, she transferred items to Mr. Barry’s car and so withheld facts from the second officer that she knew were material to the decision that officer had to make. It does not matter that she says her purpose had changed. The Officer had a right and a duty to assess the genuineness of that purpose in the light of material facts that the Applicant knew she was withholding from the Officer.”

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Summary

1. The Duty to Disclose is informed by the relevant Act and the Regulations, by the questions asked orally or in a form, and by the surrounding circumstances of the entry or application and the person concerned.

2. There are four circumstances where a Duty to Disclose arises: • When a relevant question is asked. • When there is a change of material circumstances since application. • When the duty is created by statute (ie A16, R.51) • When Surrounding Circumstances impose a Duty to Disclose material

information even where no questions are asked and no statutory duty exists. It depends on the person reasonably being cognizant that they are withholding relevant information.

3. A breach of a statutory obligation to disclose cannot be saved by the “innocent” or

“unintentional” nature of the misrepresentation or withholding. In other cases there is, rarely it seems, the Medel exemption where the individual has no subjective knowledge that they are misrepresenting. (Medel v Canada (MCI), FCA 1990 2 F.C. 345)

4. IRPA “withholding” really didn’t extend the scope of “misrepresentation”. The case law

always included situations of omissions or incomplete answers. Withholding the correct answer is just as wrong as giving the false answer. The Court in Brooks said...

“ In my opinion, if the materiality of matters on which no questions are asked is cognizable under s. 19(1)(e)(viii), it would be under the words "other fraudulent or improper means". They are broad enough to embrace non‐disclosure of facts which would be material to admission or non‐admission if known.”

Consider the Hilario2 case in 1977, under the 1976 legislation. The Court said...

“To withhold truthful, relevant and pertinent information may very well have the effect of "misleading" just as much as to provide, positively, incorrect information.”

This was in answer to desperate argument by the person concerned that “misrepresentation” required a false statement to be given, rather than a half answer that was given.

2 Mario Santiago Hilario v. Minister of Manpower and Immigration (FCA) [1978] 1 F.C. 697

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...The Duty to Disclose... Consider the Herr3 case, under IRPA, involving failure to disclose that a marriage was not intended to be genuine...

“26 Under the former Act misrepresentation of any material fact in relation to landing is actionable under s. 27(1)(e), and according to IAD jurisprudence, includes omissions.14 Typically these omissions under the former Act involved failure to disclose a spouse or child either when applying for an immigrant visa, or when being granted permanent resident status. However, the IAD has also found that failure to disclose the true nature of a marital relationship is a material misrepresentation.15”

The omission of information, the “withholding” of information, has long been part of misrepresentation law. The Court has had many opportunities to consider the “holding back” of information as “misrepresentation” and have consistently found that the failure to provide information is just as much a misrepresentation as the deliberate giving of false information. The re-writing of the law to include the language of “withholding” brings nothing new, it simply reflects the reality that failure to provide information be just as much a misrepresentation as the assertion of a false fact.

Debate Question

Vigorously argue for the following proposition for 3 minutes. Then vigorously argue against the proposition for 3 minutes.

1. If the false or withheld information is not determinative of anything, then there is no duty to disclose and no misrepresentation is committed.

3 Herr v. (Minister of Citizenship and Immigration) [2004] I.A.D.D. No. 792

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III. The Elements of IRPA Misrepresentation

IRPA re-wrote misrepresentation in language that was markedly different from the Immigration Act provision.

The most obvious difference was that Immigration Act misrepresentation was tied to the obtaining of one’s own status. A person was inadmissible if they came into Canada or obtained landing “by reason of” the misrepresentation.

IPRA didn’t state that the misrepresentation was with respect to your own status. The misrepresentation only had to be committed and material. Or that’s what it seemed to say. The inadmissibility was complete when the permanent resident or foreign national

• directly or indirectly

• misrepresented or withheld material facts

• relating to a relevant matter that induces or could induce an error in the administration of this Act;

Presumably you were risking your loss of status through misrepresentation if you used misrepresentation to assist someone else’s work permit, PR card or PR visa application.

Apart for “untying” misrepresentation from the obtaining of one’s own status and throwing in “withholding” as separate from “misrepresentation” the other changes to language didn’t appear to change the misrepresentation landscape in any big way. There was much misrepresentation case law that already held that you didn’t need to be aware of the misrepresentation, that ignorance was not an excuse, that the misrepresentation didn’t need to be determinative and that no mens rea requirement. The IRPA language seemed roughly consistent with that case law.Of course, once counsel and clients, members and judges get hold of cases, nothing is obvious.

Here are some interesting cases that twist and turn the IRPA misresepresentation through judicial scrutiny...

i. Material and Relevant matters that Induce or Could Induce an Error in the Administration of this Act.

i.(a) The Apprehended Misrepresentation Canada (Min. of Public Safety and Emergency Preparedness) v Ning Zhai

Imm. Division (31 August 2006) IAD (March 6 2007) VA6-02266

Abu Faisal Khan v Canada 2008 FC 512 (April 18, 2008) Anwar Ali v MCI 2008 FC 166 (Feb 7 2008)

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...Elements of IRPA Misrepresentation... If a misrepresentation is caught or admitted before an application decision is made, then is it s.40 misrepresentation? Zhai used false school transcripts to make an application for student permit extension. The Immigration officer found out the fraud and the application was refused. Zhai was then reported for misrepresentation inadmissibility. At hearing, Zhai admitted the indirect misrepresentation but argued that it wasn’t misrepresentation for the purpose of A40. The ID member agreed. Because the misrepresentation had been caught, no error had been made and no error could now be made. The ID member said... “So again, the wording of the Act, in my view, refers to actual errors which have been induced or errors which could still be induced. Again, that section does not say "could have induced an error." "Could have" is completely different in tenor to "induces or could induce." "Could have induced" means that an error could have been induced and wasn't, but is still caught.” This interpretation meant that the drafters of IRPA made a serious error. One of the major intentions of IRPA was to give consequences to persons who committed misrepresentation. Before IRPA, if some committed misrepresentation and was found out, they simply submitted another application. There were no consequences. The idea of s.40 was to give consequences. The victory in the ID was short lived. The Minister appealed to the Appeal Division. There, the member gave a different interpretation – A misrepresentation that was caught out was still a misrepresentation for s.40... “If the legislators were only wanting to catch applicants who had induced an error, they would have not added "could induce an error" in the legislation. It was meant to catch those who caused an error or misrepresented or withheld material (an attempt to deceive) that had a potential of causing an error. It does not speak from the time of the "catching" of the misdeed, but at the time of the misdeed itself.” To interpret those words otherwise would lead to unjust results such that if two individuals submitted false documents in support of their application ‐ one was not caught until later in the process, and the other was caught earlier because of good work by immigration officers ‐ the former would be found inadmissible because he was caught later in the process and the latter would be not be found inadmissible because immigration officers were quick to successfully catch the lie. “ In the case of Abu Faisal Khan, the applicant made a skilled worker application in which he claimed work experience as a computer programmer. At interview, he was asked to bring along

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...Elements of IRPA Misrepresentation... work experience letters. He only brought one letter. When the officer pressed him for evidence of his programming experience, the applicant admitted that the claim of programming experience was false. The application was denied on the grounds that the point system wasn’t met, and that there was misrepresentation. There was no complaint on the refusal, except that the applicant complained that there shouldn’t be misrepresentation unless the misrepresentation is carried all the way to decision. It was argued that if the applicant clarifies the misrepresentation before decision, then there is no basis for inadmissibility. The applicant claimed that the misrepresentation was the act of the consultant and that they were unaware of it until interview. The Court disagreed. As a matter of statutory interpretation, the officer was correct to give the provision its plain meaning, the misrepresentation was made, regardless of the clarification,

” I am of the opinion that this Court must respect the wording of the Act and give it the broad interpretation its wording demands. There is nothing in the wording of the paragraph indicating that it should not apply to a situation where a misrepresentation is adopted, but clarified prior to a decision being rendered.” It should be noted that there were particular facts regarding the timing of the admission that might distinguish the decision. In Anwar Ali the Court did not accept misrepresentation, even though false school records had been submitted in the PR application. The applicant was applying as a family member of a refugee in Canada. In the initial application false school records were submitted, but proper records were subsequently provided, it appears on the own volition of the applicant, who explained that the false documents were the act of a consultant. It appears that there was no issue as the identity of the applicant before the corrected documents were submitted. The visa office refused the application for misrepresentation, but this was overturned by the Federal Court. The Court took issue that there was no analysis of materiality by the officer in the CAIPS notes, and it wasn’t sufficient to simply say that school records were relevant to determining identity of the applicant. It is hard to reconcile Ali with the unsympathetic and almost absolute liability in the cases of Zhia and Khan. In all cases there were misrepresentations that were caught out one way or the other before a decision was made. The big difference with Ali is that his case was genuinely sympathetic. He seems to have corrected the misrepresentation without any pressure from the officer and without any suspicion from the visa office as to the misrepresentation. i.(b) The Irrelevant (Old) Misrepresentation Navdeep Kaur v. MCI 2007 FC 268 (March 8 2007)

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...Elements of IRPA Misrepresentation...

A s.40 misrepresentation needs to be capable of causing an error, when made. “Old” misrepresentations don’t count. Kaur had come to Canada as a refugee claimant and she grossly misrepresented her history in her claim for protection. She didn’t disclose her residence in the US and she made up a history with a fictitious Indian husband. In fact, she had a Canadian husband and children by him. Counsel had Kaur withdraw the refugee claim. A proper inland spousal application was filed, without any misrepresentation. There was no reliance made on any of the misrepresentations in the “old” refugee application. The inland claim was turned down, in part with a determination of misrepresentation for the false statements made in the refugee claim. In Federal Court, the findings of misrepresentation were set aside. Although the statements in the refugee claim were false, the claim was withdrawn and there were no misrepresentations in the current marriage application...

“Certainly, there was no misrepresentation in that respect before the immigration officer reviewing the permanent residence application. By this time, Navdeep Kaur had retracted her earlier false statements. The previous misrepresentations could not have induced any error in the review of that application. At that point, the most that can be said is that her credibility was affected by her prior misrepresentations. However, it is evident that the immigration officer did not make his decision on the basis of Ms. Kaur’s credibility. He actually found that the marriage was genuine after adopting the independent opinion and the two genetic reports of Dr. Williams.

There is no doubt that the issue of marital status was relevant to the application but that the past misrepresentations simply did not meet the criteria set out at paragraph 40(1)(a). There is no explanation in the decision as to how this test could apply in respect of the application under review.”

ii. Indirect and Direct Misrepresentation Ying Jin Huang and Xiao Qiong Wang v Minister, Immigration Division, A0024,A0025 (25 March 2003)

Xiao Qiong Wang v Minister, Appeal Division, (June 1, 2004)

Xiao Qiong Wang v Minister, 2005 FC 1059 ) (August 3, 2005)

Xiao Qiong Wang v Minister, 2006 FCA 345 (October 24, 2006)

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“I didn’t know my husband was married to another woman!!!. He didn’t tell me and he didn’t tell you!

Mrs. Wang came to Canada as a student in 1996, and her husband and she were landed as entrepreneurs in 1998. In 2001 they applied for citizenship and in that process were asked to provide documents about all prior marriages. Her husband told Citizenship and his wife about his first marriage and the child born of that marriage.

This was the first that Mrs. Wang had heard about any previous marriage, or a child from that relationship. It was the first that Immigration had heard about it too, so Mrs. Wang and her husband were reported for misrepresentation. The Immigration Division issued an exclusion order against the husband for direct misrepresentation (failing to disclose the prior marriage and child) and against Mrs. Wang for indirect misrepresentation, for being an accompanying spouse of her husband.

In the Immigration Division and in all subsequent proceedings, Mrs. Wang’s evidence was that she had no idea or the prior marriage or child, and so was subjectively not aware of the misrepresentation by her husband.

At every proceeding, Mrs. Wang lost. Her husband had committed misrepresentation and she was “indirectly” guilty of it too, regardless of whether she was aware of it...

The change in language, from the 1976 Act to the IRPA, did not change the meaning of the former legislation...(from the Immigration Division decision and adopted by the Appeal Division and by Federal Court...)

“Under the current legislation there is no longer a reference to a misrepresentation by any other person. The new language is "directly or indirectly". In my opinion it is not immediately apparent by this language that "indirectly" means a misrepresentation by another person. Nonetheless I can find no other logical interpretation. If "indirectly" were not to include misrepresentations by principal applicants on behalf of dependents, dependents would not be removable from Canada along with the principal applicant through whose auspices they achieved landing. This could lead to the division of families or to the abandonment of dependents in Canada. It could lead to unacceptable situations where a dependent spouse has to sponsor back to Canada the principal applicant who had been removed. Principal applicants could take advantage of such a lacuna to bring persons to Canada through misrepresentation who would not then be removable. Furthermore I cannot conclude that it was the intention of Parliament with the new legislation to eliminate dependents being caught by the misrepresentations of principal applicants. The language of the new legislation may not be obvious but a reasonable interpretation leads to this conclusion.”

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The bottom line was that it didn’t matter whether or not Mrs. Wang knew about her husband’s misrepresentation or not. As an accompanying dependent of her husband, she was inadmissible for ‘indirect” misrepresentation, for her husband’s “direct” misrepresentation.

You have to admire the tenacity of Mrs. Wang, she took the matter through the IAD, Federal Court and Federal Court of Appeal.

The ID, IAD and FC all agreed that accompanying dependents are “indirectly” responsible for the direct misrepresentation of the principle applicant. This is consistent with the prior legislation referring to “improper means” whether exercised “...by himself or any other person”.

The FCA didn’t disturb these determinations, because they didn’t need to. The FCA found that Mrs. Wang had committed direct misrepresentation by stating the she was married, when she was not (due to the unknown first marriage of her husband).

This is an interesting decision that puts into question the benefit of being subjectively unaware of misrepresentation. (Does Medel not have application?)

iii. Sponsor Misrepresentation -

Fakhar Niaz v. Minister, Immigration Division A8-00270 (10 July 2008) Shaw-Dyke Minister v. Fakhar Niaz, Immigration Appeal Division VA8-03228 (10 Feb 2009) Nest If a Sponsor makes a misrepresentation in the Sponsorship application, is their own status put in jeopardy? The decision by Daphne Shaw-Dyke in the Immigration Division is fascinating. Although the decision was overturned in the Appeal Division, perhaps we have not heard the end of this issue. According to Member Shaw-Dyke, this was the first case she was aware of where the status of a PR was being put into jeopardy because of a misrepresentation, not with respect to their status, but with respect to a sponsorship application. Ms. Shaw-Dyke was not satisfied that the law contemplated this. Niaz had become a permanent resident through his family. He was an accompanying dependent of his father. His landing and his father’s landing did not involve any misrepresentation. Niaz was landed in 2002, when he was 15 years old. In 2005 he married a girl in Pakistan. It was a family arranged marriage. They went on a honeymoon and Niaz then returned to Canada. A sponsorship application and PR application were filed. An anonymous letter informed Immigration that Niaz had married another girl in Canada, after his return from Pakistan. Niaz went to an interview and he admitted the second marriage. That second marriage was forced upon him by the girl’s family. The two of them had previously lived

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together, but they did not live together now. They had broken up. Niaz’s lawyer told him that the second marriage, the Canadian one, was not valid because he was already married to the girl in Pakistan. So Niaz had carried on with the sponsorship. Immigration reported Niaz for misrepresentation inadmissibility. It was their contention that the failure to disclose the first marriage constituted misrepresentation and that Niaz could accordingly lose his status, subject to IAD appeal. Member Shaw-Dyke was not satisfied that the language of A40(1) was sufficiently pointed to allow for permanent residents to lose their status on the basis of misrepresentation that were not related to their own obtaining of status. She determined that IRPA did not permit PR status to be lost due to misrepresentations that didn’t relate to their own obtaining of status. Member Shaw-Dykes reasoning was extensive. She looked to the following:

• The historical legislative record of misrepresentation as a basis for loss of status (“Throughout the years, however, it was a constant that persons other than Canadian citizens could be removed from Canada for misrepresentation only if the misrepresentation applied to their own admission or entry into Canada.”).

• The language of the Immigration Act and IRPA (She found that the change in language was not sufficient to indicate a legislative intent that permanent residents and foreign nationals are inadmissible for misrepresentation only for a misrepresentation made with respect to their own applications for status.

• The pre and post IRPA case law. (“...well‐established and frequently cited (even today) decisions of the Courts reinforce the fact that removal from Canada for misrepresentation for at least 50 years under previous immigration legislation came about as a result of a misrepresentation with respect to a person’s own application for status in Canada. “)

• The IRPA provisions, Clause by Clause analysis of IRPA, and language of the forms. (Nowhere in the legislation provisions is it expressly stated that IRPA now imposes a regime of taking away PR status for misrepresentations unrelated to the obtaining of that status. There are other recourses expressly stated in the legislation and the forms. For instance, the Undertaking form itself states that “I understand that false or misleading statements may lead to the refusal of the application for permanent residence of the person I am sponsoring (or for whom I am a co‐signer). I understand that giving false or misleading information may be grounds for my prosecution and the removal of the person I am sponsoring and his or her family

members from Canada.

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(It doesn’t say that the Sponsor status may be lost.) Member Shaw-Dyke also gave the following example of the perils of extending the use of sponsor misrepresentations to take away the status of Sponsors... “An example of the extraordinary impact of finding a permanent resident sponsor inadmissible for a misrepresentation on a sponsorship application is as follows:

• John Smith is lawfully admitted to Canada for permanent residence as he qualifies as an independent applicant.

• John Smith sponsors his mother, father and 2 siblings. They are lawfully admitted to Canada.

• John Smith’s two siblings marry people from their homeland. They sponsor their spouses, who are lawfully admitted to Canada.

• Once in Canada, the spouses sponsor their parents and siblings. They are lawfully admitted to Canada.

• John Smith marries a woman from his homeland and sponsors her. During the processing it is discovered that after marrying her, he married someone else in Canada. The relationship broke down. He continued with the application to sponsor his first spouse having been told by his immigration consultant that the second marriage was not valid.

• John Smith is found inadmissible for misrepresentation by the Immigration Division and ordered excluded for two years.

Paragraph 40(1)(a), interpreted in fashion urged by the Minister, coupled with paragraph 40(1)(b) would render every single one of the above family members inadmissible for misrepresentation, even though John Smith’s initial admission to Canada as a permanent resident was in complete accordance with the law”

For all of the above reasons, Member Shaw-Dyke held that IRPA did not intend that s.40 misrepresentation should be applied to remove status, except where the misrepresentation was with respect to the obtaining of that status. Member Shaw-Dyke’s decision is daring and provocative. The more I read it the more I support it. The decision is also overturned. The Minister brought appeal to the IAD.

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In the Appeal Division (VA8-03228) Member Nest overturned the ID decision, on three main grounds....

• That the IRPA legislation was plainly worded and in the context of the whole Act misrepresentation inadmissibility was intended to include the possibility of sponsor inadmissibility,

• That the possibility of sponsor loss of status was not punishment, because there was equitable review,

• That the objective was to promote control of abuse. Notwithstanding that the IAD found misrepresentation, Mr. Niaz was allowed to remain in Canada, on equitable grounds. This is an interesting issue that will probably make its way to the FC in due course.

IV. The Final Word – Ms. Medel Anna Esperanza Medel v. Minister of Employment and Immigration [1990] 2 F.C. 345 (April 6, 1990) D’Souza [1983] 1 F.C. 343 (FCA) Abu Tayub Mohammed v Canada, (T.D.) [1997] 3 F.C. 299, May 19997 It is not possible to leave Misrepresentation without discussing Ms. Medel. It is an exceptional decision of the FCA. It must be; we are still waiting for it to be followed. Ms. Medel was sponsored by her husband, who withdrew his sponsorship without telling her. The visa post had already issued the Immigration visa, so they sent a telegram. Instead of telling her the truth, they misrepresented the truth. The telegram said...

“Please advise if you have received your visa for Canada. If you have, please send it back to this office (P.O. Box 400 Guatemala City) because it has an error and if we do not correct it you will not be able to use it. It is urgent.”

They also telephoned her, telling her not to use the visa, but to send it in. In the telephone call Ms. Medel asked what was wrong with her visa, but the visa officer just said to send in back in.

Ms. Medel decided that the visa was fine and she came to Canada and she was landed. Immigration brought proceedings to have her inadmissible for misrepresentation. At the ID, she was successful, but on Minister’s appeal and a split decision the IAD found her to be inadmissible for not disclosing these prior communications to the POE officer.

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...The Final Work – Mrs. Medel...

The FCA found that she had not committed misrepresentation...

“Clearly, the appellant was subjectively unaware that she was holding anything back. She had no knowledge of her husband's withdrawal of sponsorship and her impression was that the Embassy was being excessively bureaucratic. Her uncle, her friend, and indeed the Canadian Consulate in Honduras had assured her that her visa was valid. She may well have thought that, if there were any minor irregularities in the visa, they could be cured as easily in Calgary as in Guatemala City.

It seems to me that the same factors, looked at objectively, lead to the conclusion that she reasonably believed that at the border she was withholding nothing relevant to her admission. That was, in fact, precisely what she had been told by the Embassy, viz., that a correction was necessary to enable her to use the visa, from which she would have reasonably deduced that there continued to be no problem respecting her admission.

This is quite different from the situation in Brooks where the immigration claimant concealed information about his conviction for bigamy and about criminal charges and deportation proceedings against him in the Philippines. It also has nothing in common with Gudino where the claimant had been telephoned by the Embassy in Mexico that, since his offer of employment in Canada had been withdrawn, his visa was no longer valid and he should not attempt to enter Canada. The appellant in the case at bar might well have been in Gudino's position if she had been told the truth by the Embassy. But what she was told puts her in an entirely different position. “

The idea that an applicant does not commit misrepresentation so long as they are subjectively unaware that that they are not “holding anything back” that is relevant to their admission is a fine idea, if only someone else would apply the law to another fact pattern.

There are other cases where someone was subjectively unaware that they were misrepresenting (D’Souza or Mohammed, for example) but they didn’t get the benefit that was granted to Ms. Medel.

Medel should be applied in appropriate fact situations, but it appears that the fact situation requires admission that a visa post participated in a misrepresentation themselves.

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V. Discussion Questions...

Is A40 misrepresentation committed when....???

1. There is a Failure to disclose a prior successful visitor visa application, in a PR application 10 years later

(See Khamsei v. Minister of Employment and Immigration [1981] 1 F.C. 222)

2. There is Failure to disclose a determination of guilt in a proceeding for municipal offence that couldn’t be the basis of inadmissibility (not a federal offence). (A36)

3. A Provincial PNP nominee loses his employment with the sponsoring company, and does

not tell the POE on landing.

4. There is Refusal to disclose history of PR absences, when asked at POE to tell of history of absences from Canada, in past five years.

(see A16, A46, A19(2), A27(1), Policy Manual ENF4 (Port of Entry) Ch.11.4 (Examining Permanent Residents for Inadmissibility).

5. For not disclosing the fact of your spouse’s pregnancy in response to the Temporary Visa application question “"Do you or an accompanying family member have any physical or mental disorder for which that person will require social and/or health services, other than medication, during the stay?

6. With there ever be another Mrs. Medel?

See Medel v.Canada (Minister of Employment and Immigration) (FCA), [1990] 2 F.C. 345, for the rare excusing of responsibility from disclosure of a material fact.

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CASE LIST Duty to Disclose – Relevant Questions Asked

Canada (Minister of Manpower and Immigration) v Brooks [1974] S.C.R. 850 Duty to Disclose – Change of Circumstances Minister of Employment and Immigration v. Guidino, [1982] 2 F.C. 40 Duty to Disclose – Statutory Duty Abu Tayub Mohammed v Canada, (T.D.) [1997] 3 F.C. 299, May 19997

Failure to disclose marriage at port of entry. Whether 27 (1)e required disclosure of marriage, when not asked. Statutory duty to disclose

Canada v. Haileyesus Geta Zewdie, (ID) [2006] I.D.D. No.22, November 2006

Failure to disclose marriage at port of entry Whether there was a duty to disclose even when not asked a direct question.

Statutory duty to disclose. Mohammad is relevant. r.51 imposes duty to disclose changes in marital status or any material facts relevant to visa

Duty to Disclose – Surrounding Circumstances

Robert Tabaniag Baro v. Minister (2007 FC 299) Duty to disclose prior marriage, even if not asked. Should have known it was material and of interest.

Minister v. Brundell A7-00721 (2007) (Immigration Division, Vancouver) No Duty to disclose prior convictions, not this time...

Alison Colette Bodine v. Minister (2008) FC 848) Duty to disclose where there’s more belongings than you see here...

Omissions and Incomplete Answers Canada (Minister of Manpower and Immigration) v Brooks [1974] S.C.R. 850 Mario Santiago Hilario v. Minister of Manpower and Immigration (FCA) [1978] 1 F.C. 697 Herr v. (Minister of Citizenship and Immigration) [2004] I.A.D.D. No. 792

Induces or Could Induce an error in administration of the Act

Canada (Min. of Public Safety and Emergency Preparedness) v Ning Zhai Imm. Division (31 August 2006)

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IAD (March 6 2007) VA6-02266 Anwar Ali v MCI 2008 FC 166 (Feb 7 2008) Abu Faisal Khan v Canada 2008 FC 512 (April 18, 2008)

Misrepresentations found before decisions may still be misrepresentation

Navdeep Kaur v. MCI 2007 FC 268 (March 8 2007)

“Old Misrepresentations”, in another withdrawn application, cannot be the basis for misrepresentation in a current application.

Indirect or Direct Misrepresentation Ying Jin Huang and Xiao Qiong Wang v Minister, Immigration Division, A0024,A0025 (25 March 2003) Xiao Qiong Wang v Minister, Appeal Division, (June 1, 2004) Xiao Qiong Wang v Minister, 2005 FC 1059 ) (August 3, 2005) Xiao Qiong Wang v Minister, 2006 FCA 345 (October 24, 2006)

Accompanying dependents are inadmissible for “indirect” misrepresentation when principal applicant commits “direct” misrepresentation.

Sponsor Misrepresentation Fakhar Niaz v. Minister, Immigration Division A8-00270 (10 July 2008) Shaw-Dyke Minister v. Fakhar Niaz, Immigration Appeal Division VA8-03228 (10 Feb 2009) Nest

ID Member holds that s.40 not intended to apply to sponsors making misrepresentations in sponsorship, rather than their own applications for PR status. IAD Member holds that Sponsor is liable for misrepresentation in Sponsorship application, even if own application was without misrepresentation.

Unintentional or intentional (Mens Rea) – Subjective knowledge of Misrepresentation Anna Esperanza Medel v. Minister of Employment and Immigration [1990] 2 F.C. 345 (April 6, 1990) D’Souza [1983] 1 F.C. 343 (FCA) Abu Tayub Mohammed v Canada, (T.D.) [1997] 3 F.C. 299, May 19997 Applicant was "clearly subjectively unaware she was holding

anything back"

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