Date: 20100504
Docket: IMM-1567-10
Citation: 2010
FC 492
Toronto, Ontario, May 4, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
DALVIR
KAUR GILL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Immigration Division (ID) of the Immigration and Refugee Board (IRB) found Ms.
Dalvir Kaur Gill inadmissible to Canada due to a direct or indirect inducement
of a misrepresentation of material facts (section 40 (1)(a) of the Immigration
and Refugee Protection Act (IRPA), S.C. 2001, c.27). The decision of
the ID was upheld by the Immigration Appeal Division (IAD). Ms. Dalvir Kaur
Gill has filed an application for leave and judicial review of the decision of
the IAD; and subsequently, brought this motion for a stay of removal scheduled
for May 10, 2010.
BACKGROUND
[2]
Ms. Kaur
Gill, a citizen of India, was born in 1979.
[3]
She
married Jagras Singh Gill (“Mr. Gill”) in India in 2002. Ms. Kaur Gill and Mr. Gill
spent two and a half weeks together before Mr. Gill returned to Canada.
[4]
Granted
permanent resident status in December of 2002 after being sponsored by Mr.
Gill, she moved to Canada. Mr. Gill left India in late 2002 and Ms. Kaur Gill never saw
him again.
[5]
Ms. Kaur
Gill signed a petition for divorce from Mr. Gill in 2003, and a divorce was
granted in November of 2004.
[6]
Ms. Kaur
Gill married Preetpal Singh Virk (“Mr. Virk”) in 2004; and she applied to
sponsor him to Canada as her spouse. Ms. Kaur Gill
and Mr. Virk have a son who is a Canadian citizen.
[7]
The
Immigration Division of the IRB made an exclusion order against Ms. Kaur Gill
for material misrepresentations in the process of gaining her permanent
residence status. Ms. Kaur Gill appealed this decision to the IAD. The IAD
dismissed the Applicant’s appeal on November 2, 2009.
ISSUE
[8]
Has Ms.
Kaur Gill satisfied the conjunctive tripartite Toth test for a stay (Toth
v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302
F.C.A.)?
a.
Serious Issue
[9]
Section 40(1)(a)
of the IRPA requires a material misrepresentation for a determination of
inadmissibility.
[10]
No
requirement to assess the genuineness of a marriage exists. In Ramkisson,
a case virtually identical to this one on its facts, this Court held that
In addition, the test that the IAD
applied, and was required to apply, was not the Horbas test. The IAD was
not addressing the bona fides of a spousal sponsorship application. The
question the IAD had to answer was whether the applicant made a material
misrepresentation, when applying for landing as Mr. Pasad’s spouse.
Ramkissoon v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 971 at para. 8
[11]
In
addition, as stated in the jurisprudence below:
Subsection 40(1)(a) of the Act provides
that a misrepresentation need not be direct. A person may also be inadmissible
for indirectly misrepresenting or withholding material facts relating to a
relevant matter that induces or could induce an error in the administration of
the Act.
…..
Even if it were true that the Applicant
relied on her father to provide accurate information with respect to her age
and that, contrary to her knowledge, the information provided by her father was
incorrect, this would not preclude the application of section 40 of the Act.
The misrepresentation remains a direct or indirect misrepresentation that, in
this case, induced an error in the administration of the Act. Thus, I do not
find that the IAD erred in this regard.
Kaur Barm v. Canada (Minister of Citizenship and
Immigration),
2008 FC 893 at para. 20
[12]
Cases
related to the withholding of material information are different from this
case. This case involves the making of direct or indirect misrepresentations.
It clearly falls under the Kaur Barm reasoning cited above (It is
important to recognize that in the case at bar of the sponsored spouse, who now
becomes a sponsor herself, she would have to explain to the authorities her
personal situation under which she originally received status and what she is
attempting to do in requesting to sponsor a spouse, subsequent to her previous
situation. This was never done).
[13]
The best
interests of the child were also duly considered. The IAD specified that no
evidence demonstrated that the child would suffer unduly if he accompanied his
mother to India. The IAD properly considered
that the best interests of a child represent one of the factors to be
considered, but, it is not necessarily a determinative factor.
Legault v. Canada (Minister of Citizenship and
Immigration),
2002 FCA 125
Caesar v. Canada (Minister of Citizenship and
Immigration),
2010 FC 215
[14]
Ms. Kaur
Gill has failed to establish a serious issue and the motion could be dismissed
on this basis alone.
B. Irreparable Harm
[15]
Irreparable
harm must not be speculative or based on a series of possibilities. This Court
has held that the fact that Canada is a better place to live for
a child than the country to which removal is to take place does not amount to
irreparable harm, even with respect to Canadian-born children.
Simoes v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 936 at
para. 19
[16]
Furthermore,
the jurisprudence is clear that the fact that a Canadian-born child is leaving
Canada with his parent and might not be able to return until his parent
regularizes her status in Canada or until he becomes an adult
is not an impediment to the removal of the parent. The execution of a valid
removal order is not to be avoided because one is the parent of a Canadian-born
child.
Baron v. Canada (Minister of Public Safety and Emergency
Preparedness),
2009 FCA 81 at para. 57
[17]
Ms. Kaur
Gill has failed to satisfy the test for irreparable harm and this motion can
also be dismissed on that basis alone.
C. Balance of Convenience
[18]
The
balance of convenience favours the Respondent. Section 48 of the IRPA
provides that an enforceable removal order must be enforced as soon as is
reasonably practicable.
[19]
The
Federal Court of Appeal has held that deferring a removal order amounts to more
than mere inconvenience. As Justice Evans wrote:
In my view, the balance of convenience
does not favour delaying further the discharge of either their duty, as persons
subject to an enforceable removal order, to leave Canada immediately, or the
Minister’s duty to remove them as soon as reasonably practicable: IRPA,
subsection 48(2). This is not simply a question of administrative convenience,
but implicates the integrity and fairness of, and public confidence in, Canada’s system of immigration
control.
Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261 at para.22
[20]
Ms. Kaur
Gill is seeking extraordinary equitable relief. She has failed to demonstrate
that a public interest exists not to remove her as scheduled from the
perspective of the intention of the legislation and as per the jurisprudence
above. It may be that she was a vulnerable victim, unaware of what her first
husband would do in her regard. Thus, only ministerial authorization would
allow her on the basis of an exception on humanitarian and compassionate
grounds, the possibility of status; however, that would be for ministerial
discretion not judicial interpretation to decide.
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