Date: 20050224
Docket: IMM-5956-04
Citation: 2005 FC 293
Montréal, Quebec, February 24, 2005
Present: Madam Justice Danièle Tremblay-Lamer
BETWEEN:
RAJ MENDIRATTA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (the "Act"), for judicial review of a decision of the Immigration Appeal Division (the "Board"), in which the Board rejected the applicant's appeal under subsection 63(3) of the Act, relating to a removal order made by an adjudicator.
[2] The applicant is a 65-year-old citizen of India. A removal order was made against her on August 19, 2003.
[3] The applicant resides with her daughter who is a Canadian citizen and son-in-law and the couple's two children, who are 12 and 14 years old.
[4] The applicant decided to return to India after eight years and spent over five months there between October 2001 and March 2002. During her stay, the applicant was persuaded to resume her relationship with her husband. During the five months she spent in India, the applicant admitted that she visited with both her daughters as well as her son, their respective spouses, as well as her six grandchildren and other members of her extended family including three nephews, their wives and a total of six children, all of which took turns receiving and caring for her.
[5] A report was issued pursuant to subsection 44(1) of the Act, indicating that the applicant was inadmissible under paragraph 40(1)a) of the Act for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the Act.
[6] The report was issued when the applicant, having previously indicated that she was widowed when she applied for permanent resident status, sought to sponsor her husband in India (where she also has one son as well as two daughters). Her record of landing dated June 1, 2001, indicates her marital status as being widowed and the supplementary information provided to establish the existence of humanitarian and compassionate grounds weighing in her favour, which was completed in April 1998, indicates the following:
« Je suis une vieille dame qui est toute seule. Je n'ai plus de famille dans mon pays. Ma fille vit au Canada et je suis avec elle. »
« À mon âge, il est très difficile de vivre dans mon pays toute seule. Ici je m'occupe de mes petits-enfants et de ma fille. Je me sens heureuse et cela me procure la joie de vivre au lieu de mourir. »
[7] At the Board hearing, the applicant did not challenge the legality of the removal order. Nor did the applicant call any other witnesses to testify or tender any documentary evidence, instead relying only on her own testimony and factors she believed to weigh in her favour. There was also no evidence whatsoever demonstrating any difficulties encountered by the applicant in India.
[8] The Board, having considered all the documentary evidence on record before it, concluded that the applicant's explanations for the misrepresentations she made to immigration authorities were neither sincere, nor plausible.
[9] Further, while the applicant had spent most of the past ten years in Canada, she failed to show a sufficient degree of establishment in Canada or the existence of factors warranting special relief in spite of the misrepresentations she had made. The applicant was extensively involved in raising two of her grandchildren in Canada, but the children are now significantly older and no evidence was adduced to establish that they would be negatively affected if the applicant were to be removed from the country. Moreover, the applicant has three children, six grandchildren, her husband and numerous members of her extended family living in India who admittedly received her and cared for her during her stay in India.
[10] Finally, no evidence was adduced of any particular hardship that would be suffered by the applicant in the event of her return to India. Equally, no evidence was adduced to show that the applicant's daughter residing in Canada would suffer any particular hardship if her mother were removed from Canada.
[11] The applicant submits that the Board based its conclusions on only a portion of the evidence. The Board also failed to sufficiently consider the humanitarian elements of the applicant's situation. I disagree.
[12] To begin, the only evidence (which was before the Board, and therefore appropriate for the purposes of this application) supporting the applicant's contention that she did not deliberately misrepresent her marital status to immigration officials are the interview notes taken by an officer in India when the applicant sought a visa. The remaining documentation before this Court (as well as the Board) indicates that the applicant declared herself to be a widow.
[13] As this Court has stated, the obligation to disclose information accurately ultimately rests on the applicant: Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299 (T.D.). While language issues could contribute to errors in the information, the fact that the applicant declared herself to be widowed on repeated occasions militates against any such finding, not to mention the inquiry conducted pursuant to s. 40 of the Act, during which the applicant plainly admitted to making false declarations about her marital status and family members in India.
[14] These are essentially findings of fact. Far from being patently unreasonable, which is the applicable standard of review (see for example, Varone v. Canada (Minister of Citizenship and Immigration) (2002) 226 F.T.R. 152 (F.C.T.D.), the Board's conclusion regarding the misrepresentations made was strongly supported by the evidence.
[15] Notwithstanding these misrepresentations, the applicant could be permitted to remain in Canada on humanitarian and compassionate grounds. The Board, however, found the applicant's case to be lacking in this respect as well and I am not willing to interfere with this finding either.
[16] In Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, the Supreme Court of Canada applied the standard of correctness to the Board's decision, in which the Board refused to consider potential foreign hardship when reviewing the removal order that was made.
[17] In the present case, however, there is no suggestion that the Board limited itself in the kind of evidence it considered. On the contrary, the Board explicitly noted that there was simply no evidence of any hardship - whether hardship faced by the applicant upon her return to India, hardship suffered by her daughter, or hardship suffered by her grandchildren - adduced before the Board.
[18] The finding made by the Board under paragraph 67(1)(c) of the Act regarding humanitarian and compassionate considerations, therefore, merits much greater curial deference. As this Court and the Federal Court of Appeal have noted, this provision affords the Board a wide degree of discretion, provided that it is exercised in a bona fide manner without influence by irrelevant considerations, the finding should not be interfered with. The applicable standard of review is patent unreasonableness: see for example, Badhan v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1279 (QL); Jessani v. Canada (Minister of Citizenship and Immigration) (2001), 270 N.R. 293 (F.C.A.).
[19] The onus, as Iacobucci J. underscored in Chieu, supra at para. 90, rests on the applicant to explain why removal is not appropriate under the circumstances. The applicant, beyond the relationship with her Canadian grandchildren, has not adduced any evidence in her favour.
[20] In the absence of any evidence to demonstrate hardship on the applicant, or her family members living in Canada, I find that the Board's conclusions regarding humanitarian and compassionate grounds are not patently unreasonable.
[21] For these reasons, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5956-04
STYLE OF CAUSE:
RAJ MENDIRATTA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 23, 2005
REASONS FOR ORDER AND ORDER : TREMBLAY-LAMER J.
DATED: February 24, 2005
APPEARANCES:
Annie Van Der Meerschen FOR THE APPLICANT
Andrea C. Snizynsky FOR THE RESPONDENT
SOLICITORS OF RECORD:
Andrea C. Snizynsky FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
I note that Justice Iacobucci acknowledged that this may be entirely appropriate in Chieu, supra at para. 26.
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