Date: 20100409
Docket: IMM-3432-09
Citation: 2010 FC 378
Ottawa, Ontario, April 9, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
PRITPAL SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
What
is truth? Depending on the answer to this philosophical question, Mr. Singh may
be able to remain in Canada, his home for the past 17 years. He was
recently found to be inadmissible for misrepresenting or withholding a material
fact when he immigrated to Canada in 1993. At that time he did not disclose
that he had fathered a child who remained in India. His defence
is that he did not know he had fathered a child. Paternity has now been
scientifically established by DNA tests. As a result, the Immigration Division
of the Immigration and Refugee Board of Canada issued an exclusion order and he
was ordered removed from Canada. His appeal to the Immigration Appeal
Division was dismissed. This is a judicial review of that decision.
[2]
Mr.
Singh arrived in Canada in 1993 as the accompanying dependent of his
parents who had been sponsored by another sibling. At the time, unmarried
children of any age were permitted to be accompanying dependents. He acquired
permanent residence that day, but has not taken out Canadian citizenship.
[3]
He
did not disclose that he had a five-year old daughter, Shilpa, the issue of a
long standing affair he had with a married woman. Some years later, after the
woman divorced, he returned to India, married her, and adopted her daughter.
[4]
He
then attempted to sponsor them. Suspicions were aroused. A DNA test established
that Shilpa was his biological daughter. His sponsorship was unsuccessful and
so his wife and daughter remain in India.
[5]
An
officer then invoked Section 44(1)(a) of the Immigration and Refugee
Protection Act and prepared a report opining that Mr. Singh was
inadmissible on the basis that:
|
40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation
(a) 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 this Act;
|
40. (1)
Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
a) directement ou
indirectement, faire une présentation erronée sur un fait important quant à
un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque
d’entraîner une erreur dans l’application de la présente loi;
|
[6]
At
the subsequent hearing, Mr. Singh took the position that he was not aware that
he was the biological father of his adopted daughter until the DNA tests were
conducted in 2000. The Minister submitted that he had actual knowledge that he
was the father, but that even if he did not, the facts were objectively misrepresented.
It is beyond doubt that the existence of a child is a material fact that
related to a most relevant matter, the admissibility of them both.
[7]
It
is beyond dispute that a material fact was not disclosed, a fact relating to a
relevant matter which could or did induce an error in the administration of
IRPA. Certainly avenues of inquiry were closed.
[8]
The
Member of the Immigration Division who issued the exclusion order did so on the
basis that a material fact was misrepresented or withheld. She did not consider
it necessary to decide whether Mr. Singh knew, or should have known, that he
had fathered a child. In accordance with Section 2 of the Immigration and
Refugee Protection Regulations (which, in this respect, is identical to
those in force at the time Mr. Singh came to Canada), Shilpa is Mr. Singh’s
dependent child as she is his biological child and has not been adopted by
someone else.
[9]
Mr.
Singh appealed to the Immigration Appeal Division which, under Section 62 and
following of IRPA, was entitled to take humanitarian and compassionate
considerations into account. The appeal was de novo.
[10]
Although
the ID member, who rendered the decision in first instance, did not consider
whether or not Mr. Singh’s statement that he did not know he had fathered a
child until the DNA test was credible, the Immigration Appeal Division Member
did consider credibility. The evidence was that Mr. Singh and the mother of his
daughter enjoyed a lengthy sexual relationship in the 1980s while her husband
was employed outside India. He stated:
The Panel did not find credible the
appellant’s and the applicant’s testimony that they had no suspicions or reason
to believe that the appellant might be the father of Shilpa, despite the extent
of their lengthy sexual relationship.
This finding was not unreasonable.
[11]
The
Panel then considered the humanitarian and compassionate aspects of Mr. Singh’s
situation. He had worked as a truck driver in India, and in
countries outside India, before immigrating here. Perhaps the inference
is that Mr. Singh would have no difficulty finding employment in India. However no
analysis was done in that regard taking into account job prospects in India and that Mr.
Singh is 55 years of age. Mr. Singh has siblings in both Canada and India. His parents
are dead. The Panel concluded that there were insufficient humanitarian and
compassionate considerations to warrant the granting of special relief and
concluded:
Family reunification and the best
interests of a child would be best served by reuniting the appellant, his wife
and daughter in Canada. However, the applicant’s
sponsorship of his wife was refused and the appeal to the IAD dismissed. Given
this reality, the best option of reuniting this family in one place is for the
appellant to return to India to live with his wife and
daughter in his ancestral home in his village.
ISSUES
[12]
There
are two issues in this judicial review. The first is whether Mr. Singh
misrepresented or withheld material facts. The meaning of misrepresentation or
withheld as set out in Section 40 of IRPA is a question of law. No deference is
owed to the Panel below. However, the findings of fact in Mr. Singh’s case, and
the application of the law to those findings, are reviewed on a reasonableness
standard (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190).
[13]
The
second issue is whether the Panel’s determination with respect to humanitarian
and compassionate considerations was reasonable.
WAS THERE A
MISREPRESENTATION OR WITHHOLDING OF FACTS?
[14]
Mr.
Singh’s submission is that he could not have misrepresented or withheld facts within
the meaning of Section 40 of IRPA, or its predecessor, since subjectively he
had no knowledge at the time that he was Shilpa’s biological father. The
Minister’s position is that it does not matter what Mr. Singh knew or did not
know. It is a scientifically proven fact that he is Shilpa’s biological father,
and that is the end of the matter.
[15]
The
Minister’s counsel contrasted Section 40 with Section 127(a) of IRPA which
provides:
|
127. No
person shall knowingly
(a) directly or
indirectly misrepresent or withhold material facts relating to a relevant
matter that induces or could induce an error in the administration of this
Act;
|
127. Commet une infraction
quiconque sciemment :
a)
fait des présentations erronées sur un fait important quant à un objet
pertinent ou une réticence sur ce fait, et de ce fait entraîne ou risque
d’entraîner une erreur dans l’application de la présente loi;
|
[16]
Given
that the word “knowingly” does not appear in Section 40, it follows, the
submission goes, that knowledge is not a prerequisite to a finding of
misrepresenting or withholding material facts. Undoubtedly, the existence of a
child is a material fact.
[17]
I
do not find this comparison helpful. Section 127 is in the “General Offences”
section of IRPA. A misrepresentation could lead to imprisonment for a term of
up to five years. If the word “knowingly” had not been employed, Parliament ran
the risk of establishing an absolute liability offence, without the need for mens
rea, and might have run afoul of the constitutional prohibition on
imprisonment for absolute liability offences (see, e.g., R. v. Sault
Ste-Marie, [1978] 2 S.C.R. 1299 and R. v. Raham, 2010 ONCA 206).
[18]
In
this case the alleged misrepresentation was a misstatement of fact. Such
misrepresentations may be fraudulent, negligent or innocent. A leading case in
the tort context is Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd,
[1964] A.C. 465, [1963] 2 All ER 575 (H.L.).
[19]
The
Panel found that Mr. Singh was not credible. Even if he did not actually know he
was Shilpa’s father, the circumstances, i.e. his long sexual relationship with Shilpa’s
mother, while her husband was out of India, should, at the very
least, have put him on inquiry. He had a duty of candour which required him to
disclose, upon his arrival in Canada in 1993, the strong possibility that he
had fathered a child.
[20]
In
my opinion, the meaning of Section 40(1)(a) of IRPA was clearly explained by
Mr. Justice O’Reilly in Baro v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1299, where he stated at para.
15:
Under s. 40(1)(a) of IRPA, a person is inadmissible to Canada if he or she “withholds
material facts relating to a relevant matter that induces or could induce an
error in the administration” of the Act. In general terms, an applicant for
permanent residence has a “duty of candour” which requires disclosure of
material facts. This duty extends to variations in his or her personal
circumstances, including a change of marital status: Mohammed v. Canada (Minister of Citizenship and
Immigration),
[1997] 3 F.C. 299 (F.C.T.D.) (QL). Even an innocent failure to provide material
information can result in a finding of inadmissibility; for example, an
applicant who fails to include all of her children in her application may be
inadmissible: Bickin v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.1495
(F.C.T.D.) (QL). An exception arises where applicants can show that they
honestly and reasonably believed that they were not withholding material
information: Medel v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 345, [1990]
F.C.J. No. 318 (F.C.A.) (QL).
[My emphasis.]
[21]
Mr.
Justice Russell applied the same reasoning in Boden v. Canada (Minister of
Citizenship and Immigration), 2008 FC 848.
[22]
The
Panel’s assessment of the facts was not unreasonable and so it follows that Mr.
Singh, a permanent resident, is inadmissible for misrepresentation.
HUMANITARIAN AND
COMPASSIONATE CONSIDERATIONS
[23]
One
of the objectives of IRPA, as set out in Section 3, is “…to see that families
are reunited in Canada,” not to remove someone against his will so
that he may be reunited with his wife and daughter in India.
[24]
The
Panel noted that Mr. Singh has been here for many years, and has been gainfully
employed. However, it made no assessment of the job prospects of a 55-year old
man in India, taking into
account his obligation to support his wife and child. How the Singhs manage
their affairs is their business. It would appear that they would prefer that
Mr. Singh work in Canada. There is nothing preventing him from
visiting his wife and daughter in India on a regular basis.
Perhaps after he has saved more money, he will return to and retire in India. It was not
for the Panel to say that they would be better off if reunited in India now. This
smacks of big brotherhood.
[25]
I
find this aspect of the decision unreasonable.
CERTIFIED QUESTION
[26]
During
the hearing I suggested that this was a case which might well justify
certifying a serious question of general importance which would support an
appeal to the Federal Court of Appeal. Mr. Singh has suggested that a question
might be framed as to whether a permanent resident is inadmissible for
indirectly misrepresenting a material fact if he had no knowledge of that fact.
[27]
The
Minister saw no need for a question to be certified, but, in the alternative,
suggested a question which was better framed than the one submitted by Mr.
Singh. That question is:
Is a permanent resident inadmissible for
indirectly misrepresenting a material fact if at the time of filing his/her
application for permanent residence or at the time of granting permanent
residence he/she had no knowledge of the material fact that constituted such
misrepresentation?
[28]
The
word “indirectly” is misleading. When one compares the old Act with the new
one, it is clear that an “indirect misrepresentation” is a representation by
someone else. In this case, the misrepresentation was Mr. Singh’s own.
[29]
In
Wang v. Canada (Minister of Citizenship and Immigration), 2005 FC
1059, 47 Imm. L.R. (3d) 299, Mr. Justice O’Keefe certified the following
question:
Under s. 40(1)(a)
of the Immigration and Refugee Protection Act, which reads:
A permanent
resident or a foreign national is inadmissible for misrepresentation
(a) 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 this Act . . .
is a permanent
resident inadmissible for indirectly misrepresenting a material fact if they
are landed as the dependant of a principal applicant who misrepresented
material facts on his application for landing?
[30]
The
Court of Appeal, in a decision reported at 2006 FCA 345, 56 Imm. L.R. (3d) 176,
did not find it necessary to answer the question having come to the view that
Ms. Wang had made a direct misrepresentation.
[31]
However,
a certified question as to the proper meaning of Section 40(1)(a) of IRPA is
inappropriate in this case, as it cannot support a successful appeal, given
that the decision of the Immigration Appeal Division was set aside on other
grounds.
COSTS
[32]
Mr.
Singh’s submission that he is entitled to costs is misplaced. Section 22 of the
Federal Courts Immigration and Refugee Protections Rules provides:
22. No costs shall be awarded to or payable by
any party in respect of an application for leave, an application for judicial
review or an appeal under these Rules unless the Court, for special reasons, so
orders.
There are no special reasons in this case.
Mr. Singh focused on the meaning of Section 40(1)(a) of IRPA, while the
decision was set aside on the basis that the humanitarian and compassionate
analysis carried out by the Immigration Appeal Division was unreasonable.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
decision of the Immigration Appeal Division of the Immigration and Refugee
Board dismissing the applicant’s appeal against the exclusion order is set
aside.
2.
The
matter is referred back to a differently constituted Panel for reconsideration;
3.
There
is no serious question of general importance to certify.
4.
There
shall be no order as to costs.
“Sean Harrington”
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