Guerrero et al. v. Canada (Minister of Citizenship and Immigration), 2015 FC 1048

• Judge: Southcott, J.
• Court: Federal Court (Canada)
• Case Date: August 12, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 1048;[2015] F.T.R. TBEd. SE.035

Guerrero v. Can. (M.C.I.), [2015] F.T.R. TBEd. SE.035

MLB being edited

Currently being edited for F.T.R. - judgment temporarily in rough form.

Temp. Cite: [2015] F.T.R. TBEd. SE.035

Franz Carl (Jr.) Alub Guerrero and Kristine Maje Merambel (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-574-15; 2015 FC 1048)

Indexed As: Guerrero et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Southcott, J.

September 4, 2015.

Summary:

Guerrero, a citizen of the Philippines, worked in Canada. He added Merambel to his application for permanent residence after they were married in the Philippines. A visa officer denied their permanent residence applications on the basis that they did not answer truthfully or produce all required documents. The officer found contradictions between the port of entry evidence and Guerrero's statutory declaration. He concluded that the marriage was not genuine and that Guerrero had misrepresented or withheld material facts related to his conjugal relationship with a girlfriend in Canada. Guerrero and Meramel were ruled inadmissible for misrepresentation under s. 40(1)(a) of the Immigration and Refugee Protection Act. They applied for judicial review, raising the issue of whether there was a breach of the duty of fairness in relying on extrinsic evidence (port of entry notes) without first allowing Guerrero an opportunity to respond.

The Federal Court allowed the application. Procedural fairness concerns required the decision to be revisited. Given the particular use that was made of the port of entry notes by the officer in making the decision, Guerrero should have been afforded the opportunity to convince the officer of his position that the inconsistencies were a result of a misunderstanding of the evidence given at the time of the port of entry interview. The content of the procedural fairness letter did not contain sufficient detail to satisfy the duty of fairness. "The officer's approach to the discharge of that duty was accordingly incorrect and, if I were to afford some degree of deference to the manner in which the Officer approached that duty, I would also conclude such approach to be unreasonable."

Aliens - Topic 1217

Admission - Immigrants - General - Bars - Misrepresentation of material facts - See paragraphs 1 to 41.

Aliens - Topic 1221.1

Admission - Immigrants - Application for admission - Duty of applicant (incl. truthfulness) - See paragraphs 1 to 41.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer - Duty of fairness - See paragraphs 28 to 41.

Counsel:

Peter Wong, for the applicants;

Souheil Saab, for the respondent.

Solicitors of Record:

Caron & Partners, Calgary, Alberta, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Calgary, Alberta, for the respondent.

This application for judicial review was heard at Calgary, Alberta, on August 12, 2015, before Southcott, J., of the Federal Court, who delivered the following judgment and reasons, dated September 4, 2015, at Ottawa, Ontario.