2023 FC, 2023 FC 1468

Date: 20231103Docket: IMM-11494-22 Citation: 2023 FC 1468Ottawa, Ontario, November 3, 2023PRESENT: The Honourable Madam Justice HeneghanBETWEEN: SAMSHER SINGHApplicant andTHE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS AND JUDGMENT [1] Mr. Samsher Singh (the “Applicant”) seeks judicial review of the decision of a visa officer (the “Officer”), refusing his applicationfor a visitor’s visa and finding him inadmissible to Canada for misrepresentation pursuant to paragraph 40(1)(

a) of the Immigration andRefugee Protection Act, S.C. 2001, c. 27 (the “Act”). [2] The Applicant is a citizen of India. On March 11, 2022, he applied for a visitor’s visa for the purpose of visiting his adult children inCanada.

He checked a box indicating that he had never "“been refused a visa or permit, denied entry of ordered to leave Canada or anyother country or territory.”" [3] The Applicant received a “Procedural Fairness” letter in May 2022, inquiring why he had not disclosed prior refusals of visa requestsby the government of the United States of America. [4] In his response to this letter, the Applicant said that he had understood the question to refer only to refusal of visa to enter Canada. Heprovided a copy of a refusal of a visa by the American authorities in 2016, this was the most recent refusal.

He said that he did not havecopies of the other refusals that had been made some 10 to 15 years earlier. [5] The Applicant now argues that the decision of the Officer is unreasonable and shows that the decision was made without regard tothe evidence. [6] The Minister of Citizenship and Immigration (the “Respondent”) raised a preliminary issue, that is objections to two exhibits to theaffidavit of the Applicant filed in support of the within application for judicial review.

The basis of the objection is that the two exhibitswere not before the Officer. [7] Otherwise, the Respondent submits that the decision shows no reviewable error and that this application should be dismissed. [8] I agree with the position of the Respondent about the two exhibits to the affidavit of the Applicant. [9] In general, only the evidence that was before a decision-maker can be considered by the Court upon an application for judicialreview. There are limited exceptions to this rule, as discussed by the Federal Court of Appeal in Association of Universities and Collegesof Canada v.

Canadian Copyright Licensing Agency (Access Copyright) (2012), 2012 FCA 22 , 428 N.R. 297 (F.C.A.). Oneexception is when the “new” material is to provide background information to assist the Court in understanding the issues in play. [10] I agree with the Respondent that the two exhibits in question do not serve that purpose. The exhibits will not be considered indisposing of this application. [11] Following the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC65 , [2019] 4 S.C.R. 653 (S.C.C.), the Officer’s decision is subject to review on the standard of reasonableness. [12] In considering reasonableness, the Court is to ask if the decision under review "“bears the hallmarks of reasonableness –justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bearon the decision”"; see Vavilov, supra at paragraph 99. [13] I agree with the Applicant that the decision does not meet the applicable standard of review.

The Applicant provided an explanationfor the mistaken answer he had given in the visa application and he produced the supporting material that was available to him. [14] Either the Officer did not consider this evidence or misunderstood it as meaning that all the American visa refusals occurred 10 to 15years earlier.

This understanding is not supported by the material provided by the Applicant, showing that the last refusal was made in2016. [15] In my opinion, the misrepresentation finding was unreasonable. [16] In the result, the application for judicial review will be allowed, the decision will be set aside and the matter remitted to anotherofficer for redetermination. There is no question for certification proposed. JUDGMENT IN IMM-11494-22

THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Officer is set aside and the matter is remitted to another officer for redetermination. There is no question for certification. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-11494-22 STYLE OF CAUSE: SAMSHER SINGH v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE DATE OF HEARING: OCTOBER 12, 2023 JUDGMENT AND REASONS: HENEGHAN J.

DATED: NOVEMBER 3, 2023 APPEARANCES : Harsimran Makkar For The Applicant Nicole Paduraru For The Respondent SOLICITORS OF RECORD : Harsimran Makkar Law Professional Corporation Brampton, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent