Xavier de Silva v. Canada (Minister of Citizenship and Immigration), (2014) 461 F.T.R. 144 (FC)

• Judge: Roy, J.
• Court: Federal Court (Canada)
• Case Date: March 18, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 461 F.T.R. 144 (FC);2014 FC 790

Xavier de Silva v. Can. (M.C.I.) (2014), 461 F.T.R. 144 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. AU.024

Subitha Thiresa Xavier de Silva (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3086-13; 2014 FC 790; 2014 CF 790)

Indexed As: Xavier de Silva v. Canada (Minister of Citizenship and Immigration)

Federal Court

Roy, J.

August 8, 2014.

Summary:

The applicant sought a permanent resident visa to Canada after she had been selected by the Province of Quebec in their investor category. A visa officer concluded that "I am not satisfied that you are not inadmissible as required by subsection 11(1) [Immigration and Refugee Protection Act], and the application is refused." The applicant applied for judicial review. The applicant claimed that it did not suffice that the officer was not satisfied that she was not inadmissible. Rather she contended that the officer had to declare her inadmissible.

The Federal Court dismissed the application.

Aliens - Topic 27

Definitions and general principles - Federal/provincial agreements - [See Aliens - Topic 1239 ].

Aliens - Topic 1213

Admission - Immigrants - Entrepreneurs and investors - [See Aliens - Topic 1239 ].

Aliens - Topic 1217

Admission - Immigrants - General - Bars - Misrepresentation of material facts - [See Aliens - Topic 1239 ].

Aliens - Topic 1221.1

Admission - Immigrants - Application for admission - Duty of applicant (incl. truthfulness) - [See Aliens - Topic 1239 ].

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - [See Aliens - Topic 1239 ].

Aliens - Topic 1230.3

Admission - Immigrants - Application for admission - Immigrant visa - Provincial nominees - [See Aliens - Topic 1239 ].

Aliens - Topic 1239

Admission - Immigrants - Application for admission - Reasons for decision - The applicant sought a permanent resident visa to Canada after she had been selected by the Province of Quebec in their investor category - A visa officer concluded that "I am not satisfied that you are not inadmissible as required by subsection 11(1) [Immigration and Refugee Protection Act], and the application is refused" - The applicant applied for judicial review - She argued that it did not suffice that the officer was not satisfied that she was not inadmissible - Rather, she argued that the officer had to declare her inadmissible - The Federal Court dismissed the application - The court stated, inter alia, "The applicant's sole argument is that the inadmissibility must be in relation to an inadmissible class. I agree that the inadmissibility issue must be determined on the basis of Division 4 [of Part 1 of the Act] ... However, both the formal decision letter of February 7, 2013 and the CAIPS notes show that the Visa Officer was not satisfied that the application was not inadmissible, as is required in accordance with subsection 11(1), because of a failure to answer truthfully questions asked which, in the circumstances of this case, would constitute withholding material facts. That constitutes a ground for inadmissibility, 'an inadmissible class under the law of Canada' in the words of section 12 of the Canada-Québec Accord" - The officer's decision was reasonable - The lack of explicitness did not detract from the true decision made: the applicant did not satisfy the officer that she was not inadmissible because she withheld material facts relating to a relevant matter - With respect to the materiality of the alleged misrepresentations, it was reasonable to ask the applicant questions about employment and residence and the lack of answers justified not being satisfied that the applicant was not inadmissible.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - [See Aliens - Topic 1239 ].

Cases Noticed:

Veryamani v. Canada (Minister of Citizenship and Immigration) (2010), 379 F.T.R. 153; 2010 FC 1268, refd to. [para. 6].

Ziaei et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 788; 2007 FC 1169, refd to. [para. 6].

Toma et al. v. Canada (Minister of Citizenship and Immigration) (2006), 295 F.T.R. 158; 2006 FC 779, refd to. [para. 6].

Wang v. Canada (Minister of Citizenship and Immigration) (2006), 302 F.T.R. 127; 2006 FC 1298, refd to. [para. 6].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 15].

Diabate v. Canada (Minister of Citizenship and Immigration) (2013), 427 F.T.R. 87; 2013 FC 129, refd to. [para. 18].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 19].

R. v. Quesnelle (V.) (2014), 460 N.R. 27; 320 O.A.C. 38; 2014 SCC 46, refd to. [para. 29].

R. v. Daoust (C.) et al., [2004] 1 S.C.R. 217; 316 N.R. 203; 2004 SCC 6, refd to. [para. 29].

Chen v. Canada (Minister of Citizenship and Immigration) (2007), 307 F.T.R. 314; 2007 FC 41, refd to. [para. 38].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 40].

Creston Moly Corp. v. Sattva Capital Corp. (2014), 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 2014 SCC 53, refd to. [para. 41].

Melnychuk v. Heard (1963), 45 W.W.R.(N.S.) 257 (Alta. S.C.), refd to. [para. 42].

Kasisavanh v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 707; 2007 FC 1090, refd to. [para. 44].

Biao v. Canada (Minister of Citizenship and Immigration) (2001), 278 N.R. 36; 2001 FCA 43, refd to. [para. 44].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), refd to. [para. 48].

Statutes Noticed:

Canada-Quebec Accord: Relating to Immigration and Temporary Admission of Aliens, sect. 12 [para. 10].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 9(1)(a) [para. 25]; sect. 11(1) [para. 26]; sect. 16(1) [para. 27]; sect. 40(1)(a) [para. 32].

Authors and Works Noticed:

Dyzenhaus, David, The Politics of Deference: Judicial Review of Democracy, in Taggart, Michael, The Province of Administrative Law (1997), p. 304 [para. 41].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 283 [para. 42].

Taggart, Michael, The Province of Administrative Law (1997), p. 304 [para. 41].

Wihak, Lauren J., Wither the Correctness Standard of Review? Dunsmuir six years later (2014), 27 C.J.A.L.P. 173, generally [para. 19].

Counsel:

Stéphanie Riccio and Ingrid Emanuela Mazzola, for the applicant;

Lyne Prince, for the respondent.

Solicitors of Record:

Rochefort & Associés, Montreal, Quebec, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard on March 18, 2014, at Montreal, Quebec, before Roy, J., of the Federal Court, who delivered the following decision on August 8, 2014.