Paashazadeh v. Canada (Minister of Citizenship and Immigration), 2015 FC 327

• Judge: Zinn, J.
• Court: Federal Court (Canada)
• Case Date: January 28, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 327;(2015), 477 F.T.R. 25 (FC)

Paashazadeh v. Can. (M.C.I.) (2015), 477 F.T.R. 25 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MR.062

Neinoush Paashazadeh (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-6532-13; 2015 FC 327)

Indexed As: Paashazadeh v. Canada (Minister of Citizenship and Immigration)

Federal Court

Zinn, J.

March 16, 2015.

Summary:

A program manager at the Canadian Embassy in Poland held that the applicant was inadmissible on the basis that she had misrepresented a "material fact" (her employment) and therefore did not qualify for permanent residence (Immigration and Refugee Protection Act, s. 40(1)(a)). The applicant applied for judicial review. The following issues arose: (1) was mens rea required under s. 40(1)(a); and (2) did the applicant's omission constitute a "material fact".

The Federal Court dismissed the application.

Aliens - Topic 1217

Admission - Immigrants - General - Bars - Misrepresentation of material facts - The program manager at the Canadian Embassy in Poland held that the applicant had misrepresented a "material fact" (her "side job" that became full time employment) and therefore did not qualify for permanent residence (Immigration and Refugee Protection Act, s. 40(1)(a)) - On judicial review, the applicant submitted that she honestly believed it was not necessary to report the information, since she had already fulfilled the employment experience requirements of the federal skilled worker class - The Federal Court rejected the submission - Even if the applicant's omission could be characterized as an innocent mistake, it would still fall within s. 40(1) because it encompassed innocent failures to provide material information - This was not one of those "truly exceptional circumstances", as the applicant was aware the information was being withheld and she chose not to include it because she thought it was not significant - "Given the application instructions and correspondence with the Embassy, this was not an honest and reasonable belief." - See paragraphs 13 to 21.

Aliens - Topic 1217

Admission - Immigrants - General - Bars - Misrepresentation of material facts - The program manager at the Canadian Embassy in Poland held that the applicant had misrepresented a "material fact" (her "side job" with Adapana that became a full time job) and therefore did not qualify for permanent residence (Immigration and Refugee Protection Act, s. 40(1)(a)) - The applicant had failed to provide the requested documentation until she was told that she was being awarded zero points for her work experience - On judicial review, the applicant submitted that her employment at Adapana was not a "material fact", since her listed employment experience allotted her the maximum points, and her job at Adapana had no effect on her eligibility to the federal skilled worker class - The Federal Court rejected the submission - "A misrepresentation need not be decisive or determinative to be material; it must only be important enough to affect the process ... . I agree with the respondent that a failure (innocent or otherwise) to supply a 'truthful, complete and correct' application is material because it prevents the reviewing officer from assessing all of the applicant's personal facts and to verify all of the information concerning an applicant to determine whether he or she is properly admissible to Canada." - See paragraphs 22 to 26.

Aliens - Topic 1221.1

Admission - Immigrants - Application for admission - Duty of applicant (incl. truthfulness) - [See both Aliens - Topic 1217 ].

Cases Noticed:

Oloumi et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 304; 2012 FC 428, refd to. [para. 13].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 13].

Osisanwo et al. v. Canada (Minister of Citizenship and Immigration) (2011), 398 F.T.R. 55; 2011 FC 1126, refd to. [para. 14].

Baro v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 877; 2007 FC 1299, refd to. [para. 18].

Canada (Minister of Public Safety and Emergency Preparedness) v. Abdallah (2013), 441 F.T.R. 45; 2013 FC 1053, refd to. [para. 18].

Goburdhun v. Canada (Minister of Citizenship and Immigration) (2013), 439 F.T.R. 210; 2013 FC 971, refd to. [para. 18].

Sayedi et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 298; 2012 FC 420, refd to. [paras. 18, 26].

Singh (Pritpal) v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 250; 2010 FC 378, refd to. [para. 19].

Mahmood v. Canada (Minister of Citizenship and Immigration) (2011), 388 F.T.R. 69; 2011 FC 433, refd to. [para. 19].

Jiang v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 572; 2011 FC 942, refd to. [para. 19].

Wang (Xiao) v. Canada (Minister of Citizenship and Immigration) (2005), 277 F.T.R. 216; 2005 FC 1059, refd to. [para. 19].

Taei v. Minister of Employment and Immigration (1993), 64 F.T.R. 311 (T.D.), refd to. [para. 24].

Bodine v. Canada (Minister of Citizenship and Immigration) (2008), 331 F.T.R. 200; 2008 FC 848, refd to. [para. 25].

Kobrosli v. Canada (Minister of Citizenship and Immigration) (2012), 413 F.T.R. 200; 2012 FC 757, refd to. [para. 25].

Khan v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 381; 2008 FC 512, refd to. [para. 25].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 40(1) [para. 1].

Counsel:

Mehan Youssefi, for the applicant;

Meva Motwani, for the respondent.

Solicitors of Record:

Mehan Youssefi, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on January 28, 2015, before Zinn, J., of the Federal Court, who delivered the following judgment and reasons, dated March 16, 2015, at Ottawa, Ontario.