Date:
20100125
Docket: IMM-5962-09
Citation: 2010 FC 83
Vancouver, British Columbia, January
25, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
TEJINDER
SINGH KHOSA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND THE MINISTER
FOR PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
Mr. Khosa
married his sponsor knowing he was without status in Canada subsequent
to his release from immigration detention on a $3,000 bond and conditions.
Twelve days later, Mr. Khosa met his spouse, Lauren Jayne Patricia Baker,
a Canadian citizen. On May 11, 2008, approximately one-and-one half months
after meeting, Mr. Khosa and Ms. Baker married and began cohabiting.
A party cannot expect to use circumstances of harm to secure a stay of
removal (Benedict v. Canada (Solicitor General), 2004 F.C.
555, at para. 22.
[2]
Mr. Khosa
has been in Canada since 2005.
Since this time he has had the benefit of a number of immigration processes,
including consideration for permanent residence under the Live-in Caregiver
Class and a Pre-Removal Risk Assessment. Although Mr. Khosa does not have
a criminal record in Canada, he does not have clean hands.
Mr. Khosa disregarded Canadian immigration laws by partaking in
unauthorized work.
[3]
It
is well established in the jurisprudence that a tribunal is presumed to have
considered all the evidence before it, unless there is clear and convincing
evidence to the contrary. Moreover, the decision-maker is not obliged to refer
to all the evidence in the reasons.
[4]
“The
Officer reasonably, in my view, had concluded that the marriage was not
genuine. Much of the evidence and observations related to the genuineness of
the Applicant’s marriage is also relevant to whether the marriage was entered
into primarily for the purpose of acquiring permanent residence in Canada. The lack of
genuineness presents strong evidence that the marriage was entered into for the
purpose of gaining status. Moreover, the Officer had before her the evidence
that the Applicant was married only after he was reported to immigration
officials and that he has a seven-year history of not complying with
immigration regulations. These were relevant considerations that were weighed
by the Officer.” As stated by Madam Justice Snider in Sunil Dutt Sharma v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1131.
II. Introduction
[5]
The Applicant, Mr. Tejinder
Singh Khosa, seeks an
interim order staying the execution of his removal pending leave for
judicial review of an Immigration Officer’s decision denying his application
for permanent residence as a member of the Spouse or Common-law Partner in
Canada Class application. Mr. Khosa has failed to establish all three
elements necessary to obtain a stay of his removal order.
[6]
Mr. Khosa
is scheduled to leave Canada on January 27, 2010.
Since Mr. Khosa’s arrival in Canada, in September 2005, he has
unsuccessfully engaged Canada’s immigration system to
avert his removal to India.
III. Background
[7]
On
September 29, 2005, Mr. Khosa entered Canada at the Vancouver International Airport. He was issued a work
permit to work as a live-in caregiver under the live-in caregiver program.
[8]
On
December 10, 2007, Citizenship and Immigration Canada (CIC) received Mr. Khosa’s
application for permanent residence under the Live-In Caregiver Class.
[9]
On
March 6, 2008, the Canada Border Services Agency (CBSA) arrested and detained
Mr. Khosa at Supreme Pizza where he was working illegally. In an interview
with a CBSA Officer, Mr. Khosa stated that he has been working at Supreme
Pizza as a kitchen helper since April 2007, making $8.00 an hour. Mr. Khosa
also stated that he knew he was not supposed to be working at the restaurant.
Mr. Khosa was detained pursuant to section 55 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[10]
On
March 7, 2008, the CBSA Officer issued a report under section 44 of the IRPA
stating that Mr. Khosa is a foreign national who is inadmissible on
the basis of failing to comply with conditions imposed under the IRPA and
the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations).
The CBSA Officer noted that Mr. Khosa was working in an occupation for
which he was not authorized, for an employer for whom he was not authorized and
in a location for which he was not authorized. He was referred for an
admissibility hearing before the Immigration and Refugee Board of Canada (IRB).
[11]
On
March 10 2008, Mr. Khosa was released from immigration detention on a
$3,000 bond and conditions.
[12]
On
March 22, 2008, Mr. Khosa met his sponsor, Ms. Lauren Jayne Patricia
Baker, a Canadian citizen.
[13]
On
May 11, 2008, approximately one and a half months after meeting, Mr. Khosa
and Ms. Baker married and began cohabitating.
[14]
On
June 6, 2008, CIC received Mr. Khosa’s application for permanent residence
under the Spouse or Common-law Partner in Canada Class.
[15]
On
July 22, 2008, Mr. Khosa’s admissibility hearing was held before the IRB.
[16]
On
July 31, 2008, the IRB decided on Mr. Khosa’s admissibility hearing. The IRB
was satisfied that Mr. Khosa was working at Supreme Pizza, performing
unauthorized work, and was in contravention of his work permit. The IRB
subsequently held that Mr. Khosa failed to comply with section 29(2) of
the IRPA and is inadmissible pursuant to paragraph 41(a) of the
IRPA.
[17]
On
July 31, 2008, an Exclusion Order was issued against Mr. Khosa.
[18]
On
or around October 1, 2008, Mr. Khosa submitted a Pre-Removal Risk Assessment
(PRRA) application. Mr. Khosa alleged that he faced a risk of extrajudicial
sanctions because he may be suspected of being a Sikh militant.
[19]
On
November 4, 2008, Mr. Khosa’s application for permanent residence pursuant
to the Live-In Caregiver Class was refused.
[20]
On
June 9, 2009, Mr. Khosa and Ms. Baker were interviewed together and
separately for the purpose of Mr. Khosa’s application for permanent
residence as a member of the Spouse or Common-law Partner in Canada Class.
[21]
On
November 3, 2009, an Immigration Officer refused Mr. Khosa’s application
on the basis that Mr. Khosa did not demonstrate that he is a spouse as
defined in section 4 of the Regulations, and that the marriage was considered
to be for the purpose of acquiring status under the IRPA.
[22]
On
November 4, 2009, a PRRA Officer denied Mr. Khosa’s PRRA application on
the basis that there is no serious possibility that he would suffer persecution
pursuant to section 96 of the IRPA or would be subjected personally to a
risk to life or of cruel and unusual punishment pursuant to section 97 of the
IRPA. The PRRA Officer noted that Mr. Khosa was unlikely to be of
interest to the authorities in India
if removed.
[23]
Mr. Khosa
is scheduled for removal from Canada to Delhi, India on January 27, 2010 at 12:45 a.m. Mr. Khosa
is to report to the Canadian Immigration Centre at Vancouver International Airport at 8:45 p.m. on January
26, 2010 to obtain his travel documents and to complete departure requirements.
He will be travelling on a valid Indian passport.
IV. Issue
[24]
The
issue before the Court on this stay motion is whether Mr. Khosa has
satisfied the three-part test for an order staying his removal from Canada by showing that:
a.
there is a serious
issue with respect to the Immigration Officer’s decision to be tried;
b.
he would suffer
irreparable harm if the stay application is refused; and,
c.
the balance of
convenience favours staying the removal order.
(Toth v. Canada (Minister of Employment
and Immigration) (1988),
86 N.R. 302, 11 A.C.W.S. (3d) 440 (F.C.A.)).
[25]
The
Court is in full agreement with the position of the Respondents.
V. Analysis
A. Relevant Legislative Provisions
[26]
To
obtain a
permanent resident visa as a member of the Spouse or Common-law Partner in
Canada Class, Mr. Khosa had to meet the requirements set out by the IRPA
and the Regulations.
[27]
Section
12(1) of the IRPA provides:
|
12. (1) A foreign national may be
selected as a member of the family class on the basis of their relationship
as the spouse, common-law partner, child, parent or other prescribed family
member of a Canadian citizen or permanent resident.
|
12. (1) La sélection des
étrangers de la catégorie « regroupement familial » se fait en
fonction de la relation qu’ils ont avec un citoyen canadien ou un résident
permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père ou mère
ou à titre d’autre membre de la famille prévu par règlement.
|
[28]
Section
4 of the Regulations provides the definition of spouse:
|
4. For the purposes of these
Regulations, a foreign national shall not be considered a spouse, a
common-law partner, a conjugal partner or an adopted child of a person if the
marriage, common-law partnership, conjugal partnership or adoption is not
genuine and was entered into primarily for the purpose of acquiring any
status or privilege under the Act.
|
4. Pour
l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait, le partenaire conjugal ou l’enfant
adoptif d’une personne si le mariage, la relation des conjoints de fait ou
des partenaires conjugaux ou l’adoption n’est pas authentique et vise
principalement l’acquisition d’un statut ou d’un privilège aux termes de la
Loi.
|
[29]
Section
124 of the Regulations defines the membership parameters of the Spousal or
Common-law Partner Class:
|
124. A
foreign national is a member of the spouse or common-law partner in Canada class if they
(a) are the spouse or
common-law partner of a sponsor and cohabit with that sponsor in Canada;
(b) have temporary
resident status in Canada; and
(c) are the subject of a
sponsorship application.
|
124. Fait
partie de la catégorie des époux ou conjoints de fait au Canada l’étranger
qui remplit les conditions suivantes :
a) il est l’époux ou le conjoint de fait
d’un répondant et vit avec ce répondant au Canada;
b) il détient le statut de résident
temporaire au Canada;
c) une demande de parrainage a été
déposée à son égard.
|
[30]
In
the present case, Mr. Khosa did not satisfy the Immigration Officer that
he met both requirements in section 4 of the Regulations: (1) that the marriage
was genuine; and, (2) that he had not entered the marriage for the purpose of
remaining in Canada.
B. Serious Issue
[31]
There
is no merit to Mr. Khosa’s argument that the Immigration Officer did not
provide sufficient reasons for both branches of the test under section 4 of the
Regulations. Reading the Immigration Officer’s reasons as a whole
demonstrates that the Officer questioned whether the marriage
was genuine or simply cosmetic for the purpose of immigration (da Silva v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1138, 161 A.C.W.S. (3d) 974 at paras.
11-12).
[32]
A
strong link exists between the two prongs of the test. Specifically, the Court
has found that the lack of genuineness presents strong evidence that a
relationship is entered into for the purpose of gaining status. It is Mr. Khosa
who bears the evidentiary burden on both prongs of the test (Sharma v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1131, [2009] F.C.J. No. 1595 (QL) at
paras. 16-18; Huang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 771, 107 A.C.W.S.
(3d) 117 at para. 7).
[33]
In
the present case, the same evidence that the Immigration Officer reviewed to
find that the spousal relationship was not genuine was the same evidence that
satisfied her that the relationship was entered primarily to obtain Canadian
permanent resident status. The Immigration Officer notably found Mr. Khosa
lacking in credibility. It is also significant that she noted cause and effect
as to the timing of Mr. Khosa’s arrest and the section 44 inadmissibility
report and the subsequent marriage shortly thereafter.
[34]
The
Immigration Officer found on the basis of the following evidence that the
marriage is not genuine:
a) Mr. Khosa stated
that he did not give his wife a ring when he proposed, whereas his wife stated
that Mr. Khosa did;
b) Mr. Khosa said he
and his wife both paid for the rings, whereas his wife stated that Mr. Khosa
did;
c) Mr. Khosa stated
that his wife uses birth control pills, whereas his wife stated that they only
use condoms;
d) Mr. Khosa and his
wife provided discrepant answers on how often Mr. Khosa contacts his
family;
e) Mr. Khosa and his
wife provided inconsistent answers concerning their bedding and what each other
wore to bed; and,
f)
Mr. Khosa
and his wife provided inconsistent answers about how many televisions they have
in their home.
[35]
The incumbent
logic of the Immigration Officer’s substantiation of key inconsistencies and
the overall picture that arose during the interviews with Mr. Khosa and
his wife, in addition to Mr. Khosa’s lack of credibility as demonstrated, indicate
that both the genuineness of the marriage and purpose of the marriage were fully
considered, in further examples subsequently discussed below.
[36]
It
is well established in the jurisprudence that a tribunal is presumed to have
considered all the evidence before it, unless there is clear and convincing
evidence to the contrary. The decision-maker is not obliged to refer to all the
evidence in its reasons (Florea v. Canada (Minister
of Employment and Immigration), [1993]
F.C.J. No. 598 (F.C.A.) (Q.L.))
[37]
In this
case, the Immigration Officer explicitly noted that she reviewed all the
information and submissions from Mr. Khosa. The Immigration Officer placed
greater weight on: Mr. Khosa’s lack of credibility, the lack of joint
assets; the timing and meeting of Mr. Khosa and his wife; the
inconsistencies in Mr. Khosa and his wife’s answers during the interview;
and, Mr. Khosa’s misrepresentations of his address and work history. Mr. Khosa
is essentially seeking for this Court to place greater weight on the evidence
that his wife is a 50% beneficiary on his life insurance policy and the
photographs he submitted. It is not the role of the Court to re-weigh evidence
(Kengkarasa v. Canada (Minister of Citizenship and Immigration), 2007
FC 714, 158 A.C.W.S. (3d) 973 at paras. 35, 38; Singh v. Canada (Minister of
Citizenship and Immigration), 2008 FC 673, 170 A.C.W.S. (3d) 147 at
para. 10; Daniel v.
Canada (Minister of Citizenship and Immigration), 2007
FC 392, 156 A.C.W.S. (3d) 1144 at paras. 16-17).
[38]
Equally
devoid of merit is Mr. Khosa’s assertion that the Immigration Officer
erred in her credibility findings because she misconstrued the evidence.
Specifically, Mr. Khosa states that the Immigration Officer misunderstood
the evidence with respect to his addresses in his application and his parents’
approval of his marriage. To the contrary, the Immigration Officer’s findings on
these inconsistencies are supported by the evidence.
[39]
A
review of Mr. Khosa’s In-Canada Application for Permanent Resident Status (Application)
shows the contradiction in his address listing. Under box 14 of Schedule 1 of the
Application, Mr. Khosa states that he lived at 2488 McLeod Avenue from September 2005 to
October 2007. Yet, on the Client History Update Form, which Mr. Khosa
completed on July 14, 2008, he states that he lived at 2488 McLeod Avenue from October 2005 to
June 2008. The Immigration Officer therefore did not err in finding that Mr. Khosa
has not been consistent in providing his address information.
[40]
The
Immigration Officer did not misconstrue the evidence concerning the families’
approval of the marriage. In Mr. Khosa’s statement entitled “Development
of our Relationship”, attached to the Application, he stated that he and his
wife’s family members did not agree with the marriage and would not attend the
marriage. At the interview, Mr. Khosa stated that his parents gave his
wife jewellery and saris as wedding gifts. Based on this evidence, it was not
unreasonable for the Immigration Officer to find that Mr. Khosa’s
statements were contradictory.
[41]
In
addition, the Immigration Officer’s credibility findings were based, in part,
on Mr. Khosa’s failure to disclose his work at Supreme Pizza on the
Application. The Immigration Officer noted that the illegal work arrangement
resulted in a section 44 inadmissibility report being issued, prior to Mr. Khosa
submitting the Application for Permanent Residence Status.
[42]
From
an interview, the Immigration Officer concluded that Mr. Khosa was not
forthcoming with requested information. This finding was based on her
observation that:
a)
Mr. Khosa
provided vague and confusing answers concerning his immigration status in Canada and the reason for his
exclusion order;
b)
Mr. Khosa
stated that his wife knew everything about his immigration situation, whereas
his wife stated that she knew little about Mr. Khosa’s immigration status
and history.
[43]
Mr. Khosa’s
allegation that the Immigration Officer should have questioned the couple’s
inconsistencies with a request for their answers is not substantiated (Dasent
v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 80,
61 A.C.W.S. (3d) 570 at para. 5; leave to appeal to S.C.C. refused, [1996]
S.C.C.A. No. 141; Oppong v. Canada (Minister of Citizenship and Immigration)
(1996), 193 N.R. 306, 60 A.C.W.S. (3d) 1217 at para. 3; leave to appeal to
S.C.C. refused, [1996] S.C.C.A. No. 140).
[44]
Credibility
findings are entitled to deference. In this case, the Immigration Officer’s
credibility finding is fully supported by the contradictions and inconsistencies
in Mr. Khosa’s evidence (Kengkarasa, above, at paras. 1,
19).
[45]
Mr. Khosa
has failed to demonstrate a serious issue with respect to the Immigration
Officer’s decision.
C. Irreparable Harm
[46]
Contrary
to Mr. Khosa’s assertion, irreparable harm does not necessarily result
when there is a finding that there is a serious issue to be tried. If this
Court finds that there is a serious issue to be tried, Mr. Khosa bears the
onus of adducing clear and convincing evidence (not speculative and based on a
series of possibilities) that he will suffer irreparable harm if removed to India at this time. He has
not done so (Diallo v. Canada (Minister of Citizenship and Immigration), 2009 FC 84,
[2009] F.C.J. No. 126 (QL) at para. 27; Daniel, above, at para. 24).
[47]
Mr. Khosa
asserts that he will suffer irreparable harm because he will be separated from
his wife. It is well established in the jurisprudence that separation from a
spouse does not constitute irreparable harm. Such prejudice does not exceed the
usual personal inconveniences of removal. Deportation inevitably causes some psychological and
emotional hardship. As stated by the Federal Court of Appeal in Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, 132 A.C.W.S. (3d) 547:
[13] The
removal of persons who have remained in Canada without status will always disrupt the
lives that they have succeeded in building here. This is likely to be
particularly true of young children who have no memory of the country that they
left. Nonetheless, the kinds of hardship typically occasioned by removal
cannot, in my view, constitute irreparable harm for the purpose of the Toth
rule, otherwise stays would have to be granted in most cases, provided only
that there is a serious issue to be tried… [Emphasis added].
(Reference is also made to Daniel, above.)
[48]
Mr. Khosa
married his sponsor knowing that he was without status in Canada. A party cannot create
the circumstances of the harm which are then relied upon to secure a stay of
removal (Benedict v. Canada (Solicitor General), 2004 FC 555, 130
A.C.W.S. (3d) 822 at para. 12).
D. Balance of Convenience
[49]
A
serious issue, in and of itself, demonstrating irreparable harm, does not
establish a balance of convenience in the applicant’s favour. Each of the
tri-partite tests must be established individually (Daniel, above, at
paras. 29-31; Ahmed v. Canada (Solicitor General), 2004 FC 686, 131
A.C.W.S. (3d) 304 at para. 4).
[50]
Under
the IRPA, the Minister of Public Safety and Emergency Preparedness (PSEP) is
responsible for maintaining and protecting the security of Canadian society and
the integrity of Canada's immigration and
refugee system. This entails the enforcement of removal orders as soon as is
reasonably practicable which is to preserve the integrity of Canada’s immigration
and refugee system (IRPA at. s. 3(2) and s. 48(2); Jama v. Canada (Minister
of Citizenship and Immigration), 2008 FC 374, 166 A.C.W.S. (3d) 297
at para. 7; Dugonitsch v. Canada (Minister of Employment and Immigration),
(1992), 53 F.T.R. 314, 32 A.C.W.S. (3d) 1135 at para. 15).
[51]
The fact
that a person seeking a stay order has no criminal record, is not a security
concern, or is socially integrated in Canada, does not constitute a balance of convenience that
favours granting a stay order. Successful integration into Canadian society is
not sufficient to overcome the public interest in the integrity of the administration
of Canada’s immigration laws (Selliah,
above, at paras. 21-22).
[52]
Mr. Khosa
has been in Canada since September 2005. Since
this time he has had the benefit of a number of immigration processes including
consideration for permanent residence under the Live-In Caregiver Class, and a
PRRA. Although Mr. Khosa does not have a criminal record in Canada, he does not have clean
hands. Mr. Khosa disregarded Canadian immigration laws by partaking in
unauthorized work (Ksiezopolski v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1402, 134 A.C.W.S. (3d) 682 at paras. 7-8).
[53]
Only
in exceptional cases does an applicant’s interest outweigh the public interest.
Mr. Khosa has not demonstrated an exceptional case that would warrant
delaying the Minister of PSEP’s duty to ensure that the objectives of the IRPA
are met (Dugonitsch, above, at para. 15; Selliah, above,
at para. 22).
VI. Conclusion
[54]
Mr. Khosa
has failed to establish all three elements necessary for this Court to grant an
order staying execution of the removal order.
[55]
For
all of the above reasons, the Applicant’s application for a stay of execution
of the removal order is denied.
JUDGMENT
THIS COURT
ORDERS that the Applicant’s
application for a stay of execution of the removal order be denied.
“Michel M.J. Shore”
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