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.
-
* * *
URIE J.: I concur.
* * *
KERR D.J.: I concur.
' Minister of Manpower and Immigration v. Brooks [1974]
S.C.R. 850.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.