The “unclean hands” doctrine, or the obligation not to submit an immigration application in a misleading manner

Note that this article was published in the Blogue du CRL du Jeune Barreau de Montréal.

In the decision Adepoju v. Canada (Citizenship and Immigration), 2022 FC 438, the Federal Court determined that there may not be a positive obligation on applicants to voluntarily fully disclose that family members are applying for immigration concurrently with their own application; however, there is an obligation not to conceal the true state of affairs or to submit an application in a misleading manner.

Background

The applicants, Deborah Bukunmi Adepoju and her husband, Ayodeji Oluwatosin Adeyanju, both from Nigeria, each simultaneously applied for a study permit. Both applications were denied by the visa officer.

Following this response, the applicants each individually applied for leave and judicial review of the refusals. They argued that the facts presented in their respective applications were true and accurate (paras. 11 to 24). In the affidavit in support of her application, Deborah Adepoju explained that the couple applied for study permits at the same time and that each indicated on the family information form that their respective spouse would accompany them to Canada.

The Minister argued that each of the applicants, in their explanatory letter in support of their study permit application, indicated that their spouse would remain in Nigeria and act as a “home tie”. The applicants did not challenge these facts but argued that a study permit holder is not obliged to travel to Canada and can remain in Nigeria. Their simultaneous study permit applications were a way to increase the chances that one of them would be allowed entry. They also pointed out that the accompanying spouse of a study permit holder can apply for an open work permit.

The applicants therefore argued that having stated on their respective applications that their spouse was living in Nigeria does not make that spouse inadmissible to Canada. As a result, they maintain that they did not violate any immigration law (para. 20).

​The Minister submitted that these applications constitute an abuse of process (“unclean hands”). It was submitted that the applicants, with the assistance of their counsel, were attempting to mislead the Federal Court (paras. 3 and 23). The Minister pointed out that the applicants both neglected to mention their respective spouses in their study permit applications (para. 4).

Analysis

After reviewing the affidavits in support of the applications for leave and judicial review, and the written statements and forms supporting their study permit applications, the Federal Court dismissed the applications for leave and judicial review on the basis of abuse of process (para. 35).

First, the Court noted that the applicants had provided conflicting information in their study permit applications and that their true intention was to enter Canada together by submitting separate applications (para. 26).

Second, the Court found that the couple misrepresented the true nature of their intentions in their study permit applications, and again in their respective applications for leave and judicial review. Citing the Federal Court of Appeal decision Canada (Minister of Citizenship and Immigration) v. Thanabalasingham 2006 FCA 14, the Court therefore noted that the applicants had committed serious misconduct in misrepresenting their true intentions (paras. 28 and 29).

After reviewing the legislative requirements for applying for a study permit, including section 216(1)(b) of the Immigration and Refugee Protection Regulations, the Federal Court said it is obvious that applicants who come to Canada without family ties in their country of nationality are more likely to have difficulty establishing that they will return there at the end of their studies (para. 31). Therefore, the Court rejected the applicants’ arguments, stating:

• [32] I accept the submission of this couple that the spouse of an international student may apply for an open work permit after the spouse has entered Canada on a study permit.  However, I do not accept their submission that this “explains why each of the applicants indicated in their family information form that their spouse will accompany them subsequently to Canada so that anyone [sic] of them that gets the study permit will be accompanied by the spouse on a work permit to be obtained after the determination of the study permit” [emphasis added].  I find this explanation to be post facto, created for the purposes of explaining their otherwise inexplicable conduct, and without merit.  First, the question they responded to does not ask if the family member will be joining the applicant at a later date or subsequently – it asks if the family member will accompany the applicant.  Second, at no time did either spouse inform IRCC or this Court, prior to this motion, that their spouse would subsequently accompany them.  Indeed, the exact opposite assertion is given to this Court.  Ayodeji Adeyanju in his submissions on his Application for Leave and Judicial Review at paragraph 32 states that “[t]he Applicant himself did not indicate that he was to be accompanied” and at paragraph 50 that “[t]he visa officer alleged that the Applicant would be accompanied by family members when that was not the case.”  He cannot have it both ways – either Deborah Adepoju is accompanying him or she is not.

The Court cautioned applicants that the statements and evidence provided in support of study permit applications must be clear and straight. It is then in the public interest to deter others from the sort of conduct exhibited by this couple (para. 33).

Conclusion

The Federal Court in this decision teaches us that any immigration application must be coherent as a whole, but more importantly, that applicants must not use subterfuge to hide their true intentions. They must state their intentions truthfully and accurately. Consistency between the written statements and the forms is essential to avoid any kind of misrepresentation or judicial abuse. Since immigration is a privilege and not a right, this case serves as an example of an application for judicial review being dismissed for abuse of process, the applicants having attempted to mislead not only the visa officer but also the Federal Court.