MISREPRESENTATION- – Altered passport stamp– Citizenship Act, s.22(1)(e.1)

Hoseinian v. Canada (MCI), 2018 FC 514, Grammond J.

Our client applied for Canadian citizenship. During the processing of her application, a document analyst discovered that an Iranian entry stamp on her passport had been altered. This raised doubts as to the duration of the applicant’s residence in Canada in the four years preceding her application. Our client provided additional evidence to show that she had, in fact, travelled from Canada to Iran on the date purportedly shown on the disputed Iranian entry stamp. But Citizenship and Immigration Canada refused her application for citizenship, alleging that she had made a material misrepresentation. She retained our firm to seek a judicial review.

The Citizenship Act does not define the concept of misrepresentation. According to the Federal Court – “[I]n the private law context, the tort of negligent misrepresentation is made out where, among other conditions, a statement is ‘untrue, inaccurate or misleading’…. This minimal requirement also applies in the immigration context” (at para. 9). See, for example, Wang, 2006 FCA 345. In the present case, the Federal Court considered the wording of s.22(1)(e.1) of the Citizenship Act. To constitute a misrepresentation, a statement must relate to “material circumstances,” and it must have the potential to “induce an error in the administration of this Act.” “Presenting a document that has been altered does not automatically create such a potential error” (at para. 10). The court stated (at para. 12):

[12]  Thus, when immigration or citizenship officials find that a document was altered, they cannot conclude, on that basis only, that there was a misrepresentation. They must ask themselves whether the alteration conveyed false information that related to a circumstance that is material to the application before them (Koo v Canada (Citizenship and Immigration), 2008 FC 931 (CanLII), [2009] 3 FCR 446). In that inquiry, evidence showing that the information is true would be highly relevant.

In this case, the officer omitted to do this, but treated the altered Iranian entry stamp as conclusive and did not consider the additional evidence tendered. The officer’s decision was found to be unreasonable. “Most importantly, nothing in the record shows that the officer reached any conclusion as to the truthfulness of the information conveyed by the disputed entry stamp” (at para. 15). The application for judicial review was allowed, and the matter was sent back for redetermination by a different officer.

To read the full case: https://www.canlii.org/en/ca/fct/doc/2018/2018fc514/2018fc514.html?searchUrlHash=AAAAAQARd2VubmllICYgZ3JhbW1vbmQAAAAAAQ&resultIndex=1

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