[ENGLISH TRANSLATION]
Ottawa, Ontario, February 14, 2025
PRESENT: The Honourable Madam Justice Ngo
BETWEEN:
ALPHONSE KOBENAN N’GROUMA ET AL.
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Overview
[1] The applicants, Alphonse Kobenan N’Grouma [principal applicant] and his family members, seek judicial review of the decision of an officer [Officer] of Immigration, Refugees and Citizenship Canada [IRCC] refusing the applicant’s application for permanent residence as a member of the Quebec Skilled Worker class for misrepresentation [Decision]. Accordingly, the applicants are inadmissible under paragraphs 40(1)(a) and 40(2)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] For the reasons that follow, the application for judicial review is allowed. The applicants have demonstrated that the Decision was unreasonable.
II. Facts
[3] The issue before the Court focuses on the fact that the principal applicant is identified as the biological father of the eldest child [child] on all forms and documents submitted in support of the application and in all extracts from the registry of civil status records. The main applicant and his spouse have been married since July 21, 2017, and have three children.
[4] The Global Case Management System [GCMS] notes in the certified record identify a concern between the child and his two parents, as the Officer noted that he was registered three years after his birth. On December 16, 2022, the Officer requested a DNA test. The DNA test results revealed that the probability of the principal applicant being the biological father of the child is 0%. On January 13, 2023, after obtaining the DNA test results, the principal applicant contacted the Officer to request another DNA test from a different laboratory to challenge the paternity results received. He stated that he was [translation] “convinced” that the child was his son.
[5] On January 20, 2023, the Officer sent the principal applicant a Procedural Fairness Letter [PFL]. The PFL explains that the Officer had concerns and had [translation] “reason to believe that the information submitted” about the child [translation] “is incorrect”. The PFL identifies the negative DNA test results. The Officer noted that the principal applicant was identified as the biological father in his statements, forms, and the child’s extract from the registry of civil status records. The Officer asked him to [translation] “provide any information and/or documents that you believe may allay our concerns”. The letter also warned that [translation] “it is a serious offence to provide false information”. If the applicant could not allay the Officer’s concerns, he could be found guilty of misrepresentation and, as a result, his family members would be inadmissible for five years.
[6] On February 7, 2023, in response to the PFL, the principal applicant explained that he was in another region of Côte d’Ivoire when his son was born and that his wife was not aware that the birth had to be registered with the state within the three-month statutory time limit. He thus elaborated on the financial and personal circumstances that led to the late registration. He then described the steps he had to take to obtain the birth certificate. The applicant maintained that they appeared before a judge at a public hearing on December 22, 2016 (three years later), who gave them their son’s birth certificate. He included the court decision with his response. He argued that his statement regarding his son is not false and that the birth certificate was obtained legally. He emphasized that he and his wife were very surprised by the DNA test results. He also mentioned that they had another DNA test done which produced the same results. The applicant maintained that he would never have agreed to undergo a DNA test if there had been any doubt about the child’s paternity. He confirmed that he had always taken care of the child and described his sense of responsibility towards his son. He also stated that [translation] “we are everything to this child and this child is everything to us”.
[7] In a letter dated February 17, 2023, the Officer concluded that the applicants had made [translation] “a misrepresentation which could have induced an error in the administration of the IRPA”. The Decision includes a list of facts and a summary of the principal applicant’s response to the PFL. The Officer concluded that there was misrepresentation by the applicant and that, therefore, the applicant and his family members are inadmissible under paragraph 40(1)(a) of the IRPA. In addition, the Officer refused the application [translation] “under subsection A16 of the Act [IRPA] for lack of truthfulness”. That decision is the subject of this judicial review.
III. Issues and standard of review
[8] The issue is whether the Decision is unreasonable with respect to the Officer’s conclusions about the applicants’ misrepresentation.
[9] The parties agree that the Court must review the merits of the Decision by applying the reasonableness standard (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 16–17, 25 [Vavilov]). I am also of the view that the reasonableness standard applies to the reasons for the Decision.
[10] On judicial review, the Court must conduct an analysis and determine whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility (Vavilov at para 99). A reasonable decision in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review (Vavilov, at para 90). A decision could be characterized as unreasonable where the administrative decision maker has misapprehended the evidence on the record (Vavilov at paras 125, 126). The burden is on the party challenging the decision to show that it is unreasonable (Vavilov, at para 100).
IV. Analysis
A. Preliminary issue: admissibility of new evidence
[11] The respondent objects to the admission into evidence of arguments in certain paragraphs of the applicants’ memorandum and certain exhibits such as the principal applicant’s affidavit, the child’s mother’s affidavit as well as Exhibits A-4 to A-6 attached to the latter affidavit [New Evidence]. In his view, the applicants attempted to enhance their evidence by raising arguments and introducing new documents that were not before the Officer.
[12] The role of the reviewing court is to review the administrative decision maker’s decision in the legal and factual context before the decision maker when it made its decision. The evidentiary record before this Court on judicial review is generally restricted to the evidence that was before the administrative decision maker. Accordingly, as a general rule, the documents and information that were not before the decision maker are not admissible in an application for judicial review in this Court (Association of Universities and Colleges of Canada v The Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19–20 [Access Copyright]).
[13] The affidavits attest to, among other things, the shock the applicants experienced when they received the DNA test results. They also reveal that the child’s mother had had unprotected sex with another man and she states that she was sincerely convinced that the main applicant was the child’s father. She explains that she was very young at the time, that it was her first pregnancy and that she had not received any sex education. The applicants point out in their affidavits that it is common for Ivorians not to register a newborn with the state within the first three months.
[14] At the hearing and in their further memorandum, the applicants conceded that the New Evidence was not part of the evidence submitted to the Officer. However, the applicants insisted on mentioning it because, in their view, the New Evidence is relevant.
[15] The respondent is correct in objecting to the New Evidence, which was not before the decision maker. Indeed, the response to the PFL made no mention of these additional explanations, with the exception of the principal applicant’s statement that he had always taken care of his son since birth. Nor can I conclude that this new information falls within the exceptions in Access Copyright. Therefore, I will not consider the New Evidence for the purposes of judicial review of the reasons for the Decision.
B. Reasonableness of the Decision
[16] The purpose of paragraph 40(1)(a) of the Act is to ensure that applicants provide complete, honest and truthful information when applying for entry into Canada (Bodine v Canada (Minister of the Citizenship and Immigration), 2008 FC 848 at para 44). The applicant has the onus to ensure the accuracy of their representations (Singh v Canada (Citizenship and Immigration), 2023 FC 747 at para 28). Section 40 of the IRPA is to be given a broad interpretation consistent with its wording. The wording of the Act provides that inadmissibility can result from “directly or indirectly misrepresenting or withholding material facts”
(Zolfagharian v Canada (Citizenship and Immigration), 2021 FC 1455 [Zolfagharian] at para 20).
[17] The applicants allege that the Decision is unreasonable. They submit that there is no logical reasoning in the Decision to justify the conclusion that the applicant lied or that he could or should have known that he was not the biological father of the child when he filed his application. They argue that they had no intention to make false statements, i.e., no mens rea in this case. There is no evidence to show that the applicant intended to misrepresent or conceal material or important facts in his application. The evidence supports that the applicant always believed he was the biological father of his child and that he had informed the Officer that he had been caring for the child since birth. The evidence supports that the birth certificate was a lawfully obtained document.
[18] In addition, the respondent argues that a finding of misrepresentation is a reasonable outcome given that DNA tests confirm that the principal applicant is not the child’s biological father. The applicant cannot criticize the Officer for his conclusions when the applicant had an opportunity to rebut the Officer’s doubts about the child’s parentage following the PFL. Accordingly, the Officer could reasonably conclude that the principal applicant made a misrepresentation and that his conclusion is a possible outcome or is within the range of possible outcomes. Mere disagreement with the Officer’s conclusion does not render the Decision unreasonable. The respondent cited Zolfagharian to support his position that a misrepresentation can be made without the applicant’s knowledge (Zolfagharian at para 21).
[19] In order to analyze the reasonableness of the Decision, I must address the issue in dispute, namely whether the finding of misrepresentation and lack of truthfulness was reasonable by applying the standard of reasonableness. In other words, I must consider the Officer’s reasoning in concluding that the applicant made a misrepresentation and lacked truthfulness, and thus determine whether this conclusion is supported by the evidence in the record.
[20] A reviewing court begins its inquiry on the basis of the reasons for decision (Vavilov, at para 84). In immigration cases, the GCMS notes also form part of the reasons for the decision that the Court must consider on judicial review (Hungbeke v Canada (Citizenship and Immigration), 2020 FC 955 at para 51).
[21] In this case, the Decision cites the facts that the Officer considered and then reaches a finding of misrepresentation and lack of truthfulness. The Officer stated [translation] “nonetheless, you have failed to provide any explanation as to who the biological father of this child is and merely pointed out that he has always taken care of the child”. She concluded that, [translation] “based on the explanations, I recommend an A40 decision. It is still unclear who the biological father of this child is. As a mandated officer, I am satisfied that you misrepresented . . . ”, and the next paragraph begins as follows [translation]: “I conclude that you have made a misrepresentation . . .” and makes a finding of lack of truthfulness.
[22] I agree with the applicants’ arguments that the Officer’s finding of misrepresentation and lack of truthfulness was unreasonable. I also note that the applicants rightly point out that the evidence in the record included several communications that the principal applicant had with the Officer and that the evidence as a whole shows that he did not know he was not the biological father when he completed his application. The Decision lists, but does not rule on, these statements.
[23] A decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it (Vavilovat paras 127–28). I am of the opinion that there are insufficient grounds to allow me to link the conclusion to the facts listed in the Decision. Furthermore, the language in the Decision is almost identical to the GCMS notes made by the Officer on the applicant’s response to the PFL. The Officer’s notes therefore do not provide any further analysis or context that could justify the Decision.
[24] Considering the case law cited by the respondent, I find that the specific circumstances of this case are far removed from the facts that are the subject of that case law. The applicants’ situation is not analogous to one in which an applicant failed to review his or her application for accuracy before filing it and subsequently attempts to raise a defence that he or she was unaware of the actions of third parties, or in which an applicant concealed history or failed to include material information.
[25] A reasonable decision is one that is justified in light of the facts (Vavilovat para 126). Absent an analysis that links the conclusion to the facts and to the evidence in the record, and considering all the evidence before the Officer, I cannot conclude that the Decision is one that is based on an internally coherent and rational chain of analysis (Vavilovat para 85).
[26] Furthermore, while visa officers are typically required to give only minimal reasons, they must give more extensive reasons when they make findings of misrepresentation (Vargas Villanueva v Canada (Citizenship and Immigration), 2023 FC 66 at para 18 [Vargas Villanueva], other citations omitted). This is because the consequences of such findings are more serious than a mere visa refusal (Vargas Villanuevaat para 18 citing Vavilovat para 133).
[27] I recognize the heavy workload of immigration officers. However, a refusal on the grounds of misrepresentation or withholding material facts and lack of truthfulness leads to serious consequences. A determinative finding in that regard must therefore be explained and supported by the evidence in the record (Vavilov at para 98).
[28] The Officer was therefore required to explain why the applicant’s explanations were insufficient (or were rejected) and why the Officer concluded that the applicant had lied when he filed his application. The Decision does not present this analysis. We are not even at the stage of considering innocent or honest mistakes, since an analysis has not been sufficiently demonstrated. The Court cannot therefore confirm the reasonableness of the Decision.
V. Conclusion
[29] On a standard of reasonableness, the Decision lacks the requisite degree of justification, transparency and intelligibility. It is not justified in relation to the facts and law that constrain the decision maker. The application for judicial review is therefore allowed.
[30] The decision to refuse the application for permanent residence and the finding that the applicants contravened the IRPA are set aside. The matter is remitted to a different officer for redetermination on the basis of the reasons for this judgment.
[31] The parties confirmed that there was no question to certify, and I agree that none arises.
JUDGMENT in IMM-5006-23
THIS COURT ORDERS AND ADJUDGES as follows:
1)The application for judicial review is allowed.
2)The decision to refuse the application for permanent residence and the finding that the applicants contravened the Immigration and Refugee Protection Act are set aside.
3)The matter is remitted to a different officer for redetermination on the basis of the reasons for this judgment.
4)There is no question to certify.
“Phuong T.V. Ngo”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-5006-23
STYLE OF CAUSE:
ALPHONSE KOBENAN N’GROUMA, ET AL. v THE MINISTER AND THE CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
MONTRÉAL, QUEBEC
DATE OF HEARING:
FEBRUARY 5, 2025
JUDGMENT AND REASONS:
NGO J.
DATED:
FEBRUARY 14, 2025
APPEARANCES:
Barbara Brizuela
For THe APPLICANTS
Sherry Rafai
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Sala Légal Inc.
Counsel
Montréal, Quebec
For THe APPLICANTS
Attorney General of Canada
Montréal, Quebec
FOR THE RESPONDENT