Thavarasa et al. v. Canada (Minister of Citizenship and Immigration), (2015) 481 F.T.R. 66 (FC)

• Judge: O'Reilly, J.
• Court: Federal Court (Canada)
• Case Date: January 19, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 481 F.T.R. 66 (FC);2015 FC 625

Thavarasa v. Can. (M.C.I.) (2015), 481 F.T.R. 66 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MY.036

Nitharshana Thavarasa and Ravinath Ratnasingam (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-6591-13; 2015 FC 625)

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

Federal Court

O'Reilly, J.

May 12, 2015.

Summary:

Thavarasa, a Canadian citizen, applied to sponsor her husband, a citizen of Sri Lanka, for permanent residence. A visa officer denied the application. The Immigration Appeal Division upheld the visa officer's decision and also denied the applicants' claim for humanitarian and compassionate relief. The applicants applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Thavarasa, a Canadian citizen, applied to sponsor her husband, a citizen of Sri Lanka, for permanent residence - The Immigration Appeal Division (IAD) upheld a visa officer's decision which denied the application, finding that the husband had made a material misrepresentation that attracted a two-year period of inadmissibility - The IAD also denied the applicants' application for humanitarian and compassionate (H&C) relief, finding that a higher threshold had to be met because of the misrepresentation, and that the applicants lacked remorse - The applicants applied for judicial review, arguing that the IAD's assessment of H&C factors was unreasonable - The Federal Court dismissed the application - It was natural than an applicant would have to meet a higher threshold on an H&C application where there had been a misrepresentation - In effect, the IAD was simply noting that there was a serious factor negating H&C relief that would have to be offset by equal or greater positive factors - See paragraphs 16 to 23.

Aliens - Topic 1217

Admission - Immigrants - General - Bars - Misrepresentation of material facts - Thavarasa, a Canadian citizen, applied to sponsor her husband, a citizen of Sri Lanka, for permanent residence - The Immigration Appeal Division (IAD) upheld a visa officer's decision which denied the application, finding that the husband had made a material misrepresentation that should attract a two-year period of inadmissibility under s. 40(2)(a) of the Immigration and Refugee Protection Act - The IAD held that the inadmissibility period ran from the date of its decision as opposed to the visa officer's decision - The applicants applied for judicial review, arguing that the inadmissibility period should run from the date of the visa officer's decision - The Federal Court dismissed the application - Section 40(2)(a) provided that a foreign national was inadmissible for misrepresentation for two years following a final determination of inadmissibility - In circumstances such as these, a "final determination" was a decision made by the IAD, not a visa officer - See paragraphs 12 to 15.

Cases Noticed:

Qureshi v. Canada (Minister of Citizenship and Immigration) et al., [2012] F.T.R. Uned. 116; 2012 FC 238, refd to. [para. 20].

Jiang v. Canada (Minister of Public Safety and Emergency Preparedness), [2013] F.T.R. Uned. 185; 2013 FC 413, refd to. [para. 21].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 40(2)(a) [Annex].

Counsel:

Raoul Boulakia, for the applicants;

Jamie Todd, for the respondent.

Solicitors of Record:

Raoul Boulakia, Toronto, Ontario, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on January 19, 2015, before O'Reilly, J., of the Federal Court, who delivered the following judgment and reasons at Vancouver, British Columbia, on May 12, 2015.