It was not necessary for there to be evidence of tacit agreement or conspiracy

Immigration and citizenship - Exclusion and removal - Inadmissible classes

Applicant was citizen of India and he came to Canada with his father and mother under family class to become permanent resident . Applicant’s father had been convicted with conspiracy and murder in India and was on bail and in his declaration for permanent residence he answered no to question whether he was subject of criminal proceedings . Applicant was adult and filled out his own declaration and was not asked about father at time . Years later, applicant was found inadmissible on grounds that he withheld information concerning his father’s criminal conviction . Immigration Division found that applicant was not inadmissible, because he was not responsible for his father’s misrepresentation . Immigration Appeal Division (IAD) dismissed Minister’s appeal, finding that applicant did not directly or indirectly misrepresent or withhold material facts . Minister successfully brought application for judicial review of IAD’s decision . Applicant appealed; Minister cross-appealed. Appeal dismissed; cross-appeal dismissed. IAD’s interpretation would result in situation where family members would not be subject to removal proceedings when, after landing, applicant left Canada and remained outside of Canada in order to avoid admissibility hearing. IAD gave no reasons for its bare conclusion that use of word indirect did not render section applicable when applicant did not provide anything factually untrue or misleading in his application or examination for landing. Implied exclusion rule of statutory interpretation had no application in this circumstance and in effect, IAD assumed meaning to paragraph 40(1)(a) of Immigration and Refugee Protection Act and then relied upon paragraph 40(1)(b) to confirm its assumption. IAD erred by concluding there was no evidence to support notion that applicant should have known that his father’s criminal conviction was relevant. It was not necessary for there to be evidence of tacit agreement or conspiracy in order to find that applicant withheld material fact and nowhere in its reasons did IAD consider that applicant was dependent on information contained in his father’s application for permanent residence.

Sidhu v. Canada (Citizenship and Immigration) (2019), 2019 CarswellNat 2338, 2019 FCA 169, Eleanor R. Dawson J.A., Judith Woods J.A., and Marianne Rivoalen J.A. (F.C.A.); affirmed (2018), 2018 CarswellNat 1005, 2018 CarswellNat 1436, 2018 FC 306, 2018 CF 306, Richard G. Mosley J. (F.C.).

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