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A-536-79
Asghar Khamsei (Applicant) v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Thurlow C.J., Urie J. and Kerr D.J.—Vancouver, February 14; Ottawa, February 25, 1980.
Judicial review — Immigration — Deportation — Applica tion to review and set aside a deportation order made against applicant on the ground that he was a person described in para. 27(2)(g) of the Immigration Act, 1976, by reason of misrepresentation of a material fact — In application for visa, applicant failed to give complete details of previous applica tions for a visa, notwithstanding that he signed a declaration that he had fully answered the required questions — Whether applicant can be held responsible for misrepresentation since he was not interviewed by a visa officer — Whether the misrepresentation was a material one — Application dismissed — Immigration Act, 1976, S.C. 1976-77, c. 52, s. 27(2)(g) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Minister of Manpower and Immigration v. Brooks [1974] S.C.R. 850, referred to.
APPLICATION for judicial review. COUNSEL:
G. G. Goldstein for applicant. A. D. Louie for respondent.
SOLICITORS:
Evans, Cantillon & Goldstein, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
THURLOW C.J.: This is an application to review and set aside a deportation order made against the applicant on August 31, 1979 on the ground that he was a person described in paragraph 27(2)(g) of the Immigration Act, 1976, S.C. 1976-77, c. 52 in that he came into Canada by reason of mis representation of a material fact exercised by himself.
The misrepresentation which was the subject of the inquiry consisted of the applicant's failure to
give in his application for a visa, made at Tehran on April 30, 1979, complete details of his previous applications for a visa to come to Canada. To the question, "Have you previously applied for a Canadian Visa?" he answered, "Yes" and gave as details "February, 1978, Tehran", and he signed the form below the wording "I declare that I have answered all required questions fully and truthful-
In fact, he had made two additional previous applications for visa, one at Vancouver late in 1978 for a change from visitor to student status, which had been granted, and another at Seattle, in the United States, in February, 1979, which had been refused.
Counsel for the applicant raised two points on the hearing of the application. He submitted first that under section 9 of the Act, on making his application for a visa, the applicant should have been interviewed by a visa officer for the purpose of determining whether he was a person to whom a visa might be granted, and that as his application had merely been taken by a secretary and there had been no interview, he should not be held to have misrepresented by not disclosing all his previ ous applications for a visa.
In my view, the applicant, having declared that he had fully answered the required questions, must accept the responsibility for any lack of complete ness in the answers as recorded on the application and, while he may have had no intention to deceive, he must also abide by the consequences of the answer having been incomplete and for that reason misleading. If because the answer was incomplete, he was granted a visa which, had the answer been complete, would not have been grant ed, it seems plain that he was not entitled to the visa and that his entry into Canada was a result of the misrepresentation.
This brings me to the second point argued, that is to say, that there was no evidence of the materi- ality of the misrepresentation.
Materiality, in my opinion, is a question of fact. But that does not mean that there must be direct evidence that, but for the misrepresentation, the visa would not have been granted. The fact of materiality may be inferred. In the present case if,
for example, the materiality of the applicant's failure to disclose his application in 1978 for change of his visa from visitor to student status were what was held against him, I would have difficulty on the evidence in the record in seeing its materiality. But, it is not difficult to see the materiality of the fact that shortly before making the application for the visa here in question, the applicant had been refused a visa when he applied for one at Seattle. Presumably, a visa officer charged with assessing his eligibility for admission to Canada, would want to know why that earlier application had been refused. Similarly, the result of any previous applications for a visa would pre sumably be the subject of questions as well, and if asked would have led to further inquiries if the answers disclosed that a visa had been refused.
Here the only application disclosed was that made in Tehran in February, 1978, which had resulted in a visa being granted, and as the other applications had not been disclosed there was, on the fact of the applications, nothing to suggest the need for any further inquiry. In these circum stances, it was, in my view, open to the Adjudica tor to infer that the failure to give a complete answer by disclosing all the previous applications, coupled with the declaration that all required questions had been answered fully, had had the effect of averting further inquiries' and to find, as he did, that the issue of the visa resulted from the failure to disclose the earlier application that had been refused.
The application therefore fails and should be dismissed.
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URIE J.: I concur.
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KERR D.J.: I concur.
' Minister of Manpower and Immigration v. Brooks [1974] S.C.R. 850.
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