Date: 20100611
Docket: IMM-2436-10
Citation: 2010 FC 620
Ottawa, Ontario, June 11, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
HARJINDER
KAUR GOSAL
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
The
Applicant’s behavior is a serious obstacle for
her obtaining the equity remedy that she is soliciting :
[4] It is well established law that the issuing of a stay is an equitable
remedy that will only be granted where the applicant appears before the court
with clean hands. See Khalil v. Canada(Secretary of State) [1999] 4 F.C. 661 para 20, Basu v. Canada [1992] 2 F.C. 38, Ksiezopolski
v. M.C.I. & S.G.C. [2004] F.C.J. No. 1715.
[5] In this case the applicant has anything but clean hands. She has
shown a constant and persistent disregard for Canadian family law, criminal law
and immigration law. It would be encouraging illegality, serve a detrimental
purpose and be contrary to public policy if the court were to grant her the
relief sought.
[6] Accordingly, given the circumstances of this case, the court is not
prepared to exercise any equitable jurisdiction in respect of the applicant.
(Brunton v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 33, 145 A.C.W.S. (3d) 685).
[2]
The onus was on the Applicant to file a clear and satisfactory
application. The Pre-Removal Risk Assessment (PRRA) officer cannot be faulted his
understanding of the situation of the Applicant in the circumstances. As sated
in Yousef v. Canada (Minister of Citizenship and Immigration),
2006 FC 864, 296 F.T.R. 182:
[31] The
Applicant's second argument concerns the duty of fairness and seeks to impose
an obligation upon the PRRA officer to "clarify issues that were unclear
prior to rendering her decision". This argument is based upon the PRRA
officer's treatment of the letter from the translator. The Applicant says
that this evidence was sufficiently troubling that it ought to have caused the
PRRA officer to seek further explanations about what had taken place before
the Board with regard to translated evidence.
[32] The PRRA
officer did consider this evidence and held that it was "not specific
enough to resolve the numerous credibility concerns noted by the RPD
panel". This willingness to consider the translator's letter was generous
to the Applicant because clearly it did not constitute new evidence. The
Applicant was aware of the translation issues which arose prior to and during
the Board hearing but chose to do nothing about it at that time. The letter
that was subsequently obtained from the translator says absolutely nothing
about the significance of the points which were supposedly translated in error.
For all that anyone could tell, these were minor points of interpretation which
would have had no significance whatsoever to the outcome of the Board hearing. On
the other hand, if the translation problems vaguely alluded to in the
translator's letter were of great significance, presumably they would have been
clearly identified in a supporting affidavit. The failure by the Applicant to
provide any specifics on this issue allowed the PRRA officer to draw a
perfectly reasonable inference that the referenced translation difficulties
were insignificant or immaterial.
[33] I
also reject the argument that the PRRA officer was under a duty to search out
additional clarifying evidence on the strength of this vague allusion to
translation difficulties. The burden of proof with respect to the PRRA application
rested throughout upon the Applicant, and no such duty to make inquires rested
upon the officer. This point was conclusively addressed by Justice Blanchard in
the Selliah decision, above, in the following passages … (Emphasis
added).
Also,
as stated in Zhou v. Canada (Minister of Citizenship and
Immigration), 2010 FC
186, [2010] F.C.J. No. 213 (QL):
[24] The
PRRA Officer made no error in not considering this evidence or cannot be
faulted for not discovering it. It was the applicant’s onus to adduce that
evidence (Yousef v. Canada (MCI), 296 F.T.R. 182). The PRRA
Officer has no obligation to gather and seek additional evidence or make
further inquiries (Selliah v. Canada (MCI), 2004 FC 872). (Emphasis
added).
II. Judicial Procedure
[3]
The Applicant seeks an Order from this Court staying
her removal order from Canada which is to be executed on June 18, 2010.
[4]
The underlying application is one for leave and judicial review
of a Pre-Removal Risk Assessment (PRRA) decision, rendered on March 23, 2010,
determining that the Applicant would not be subject to a risk of persecution,
torture, risk to life or risk of cruel and unusual treatment or punishment if
she had to return to her country of origin.
III. Background
[5]
The Applicant, Ms. Harjinder Kaur Gosal, is a citizen of India.
She landed in Canada on June 23, 2003, sponsored by her first husband, Mr. Alouette
III Harjit Singh Gosal.
[6]
On July 2, 2003, Ms. Kaur Gosal’s first husband sent a letter to
the Immigration authorities, saying that she had deceived him in marriage, that
she used her permanent visa to come to Canada without any intention of living
with him, and that she had arrived in Canada without informing him of her
arrival.
[7]
On March 30, 2005, Ms. Kaur Gosal and her first husband divorced.
[8]
On May 21, 2005, Ms. Kaur Gosal married Mr. Sukh Singh Kang, who
currently resides in India. On February 7, 2006, she gave birth to a child in Canada.
[9]
On May 1, 2007, and on August 9, 2007, Ms. Kaur Gosal was
interviewed by an immigration officer. During those interviews, she alleged
that her first husband came to pick her up when she arrived in Toronto, and
that they lived together for a period of three and a half months, after which
he left her and returned to Vancouver.
[10]
On November 7, 2007, an admissibility hearing was held before the
Immigration Division. At the hearing, Ms. Kaur Gosal agreed to proceed by way
of admission and admitted that she had made misrepresentations when she entered
Canada.
[11]
Therefore, pursuant to subsection 40(1)(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), an exclusion order was
issued against Ms. Kaur Gosal by the Immigration Division.
[12]
Ms. Kaur Gosal then filed an appeal
before the Immigration Appeal Division (IAD), challenging the validity of the
exclusion order and asking for special relief based on humanitarian and compassionate
(H&C) grounds.
[13]
On July 21, 2008, the IAD concluded that Ms. Kaur Gosal had
misrepresented her relationship with her first husband and faked her marriage
with the sole intention to acquire permanent resident status in Canada.
[14]
On December 15, 2008, the Federal Court dismissed an application
for leave and for judicial review of the IAD decision.
[15]
On January 19, 2009, Ms. Kaur Gosal was informed that she might
have to leave Canada but that she could file a PRRA prior to her departure if
she wished to do so.
[16]
On February 3, 2009, Ms. Kaur Gosal filed her PRRA, now alleging
that she would be at risk in India because her first husband would seek revenge
and have her killed after her arrival.
[17]
On March 23, 2010, the PRRA officer dismissed the application, as
he found that Ms. Kaur Gosal did not file sufficient and probative
evidence that would demonstrate the risk she alleges facing in India.
[18]
On April 19, 2010, Ms. Kaur Gosal was given the negative
decision.
[19]
Ms. Kaur Gosal filed an application for
leave of the PRRA decision on May 3, 2010. That procedure underlies the present
motion for a stay
of the execution of the removal.
IV. Issue
[20]
Has
the tri-partite conjunctive test in Toth v. Canada (Minister of Employment
and Immigration)
(1988), 86 N.R. 302, 11 A.C.W.S. (3d) 440 (F.C.A.) been met?
V. Analysis
[21]
The Court agrees with the position of the Respondent.
[22]
This Court could dismiss the present motion on the sole basis
that Ms. Kaur Gosal does not come before it with clean hands.
[23]
At the hearing before the Immigration Division, Ms. Kaur Gosal had
admitted having contracted a marriage of convenience in order to obtain
permanent resident status in Canada.
[24]
In an interview with an immigration officer, she stated that her
first husband welcomed her at her arrival at Pearson airport in Toronto and
that they lived together a few months before he unexplainably left her. She
also stated to the same officer that she did not know who Ms. Surjit Kaur
Nijjar was.
[25]
Both these allegations are false, as she never lived with her
first husband and as it appears that Ms. Surjit Kaur Nijjar was in fact her own
aunt, with whom she had been living.
[26]
Due to misrepresentations, Ms. Kaur Gosal was issued an exclusion
order from the Immigration Division.
[27]
Moreover, when Ms. Kaur Gosal contested the Immigration Division
decision before the IAD, she brought forward a narrative that was found to be
fabricated. The IAD rendered a clear and unequivocal conclusion:
Having
heard the appellant’s testimony about the allegations of misrepresentation, the
tribunal did not find the appellant to be credible.
The
tribunal concludes that these omissions and the implausibility of her
explanations, undermine the veracity of her second story and the tribunal
concludes that the second story was fabricated in order to justify her
misrepresentations.
[28]
In support of her appeal to the IAD, Ms. Kaur Gosal said that she
flew to Toronto because she did not want to live with her first husband. She stated
that she found out just before the wedding that he was handicapped. Since the
marriage was arranged by her parents, she would have felt that she had to go to
Canada to live with him but decided, in Toronto, that she did not want to live
with him.
[29]
The Federal Court refused leave for Ms. Kaur Gosal to file an
application for judicial review of the IAD decision.
[30]
Ms. Kaur Gosal is again alleging parts of her story that were
found to have been fabricated by the IAD.
[31]
Indeed, in her Affidavit, she specified that she took a flight to
Toronto because she did not find tickets to fly to Vancouver, where her first
husband resides.
[32]
The IAD did not find that allegation to be credible.
[33]
She also repeats that when she left India, her intentions were to
be with her first husband, and that she changed her mind only after a few days
spent with her aunt in Toronto.
[34]
Again, the IAD did not find these allegations to be credible.
Moreover, she admitted that she had entered into a marriage of convenience in India
with the intent of acquiring permanent resident status in Canada.
[35]
Following these findings, Ms. Kaur Gosal is still attempting to
adjust her testimony and declarations to obtain legal status in Canada.
[36]
Even if Ms. Kaur Gosal had not been charged with any criminal
accusations, she would not be able to benefit from her own misrepresentations
and illegal scheme by which to seek status in Canada.
[37]
Consequently, her motion could have been dismissed for that
reason only.
The Toth test
[38]
To be granted a stay of removal, an applicant must demonstrate
that he/she meet all criteria of the tri-partite test established by the
Federal Court of Appeal in Toth, above:
A. irreparable harm;
B. serious issue; and
C. balance of convenience.
[39]
The requirements of the tri-partite test are conjunctive.
Consequently, an applicant must satisfy all three criteria before this
Court can grant a stay of removal.
[40]
Ms.
Kaur Gosal did not demonstrate a serious issue to be tried in the application
for leave and for judicial review, which she filed, that she will suffer
irreparable harm if she returned to India, and that the balance of convenience favours
her instead of the Minister.
A. Irreparable Harm
[41]
Irreparable harm is a serious test that is met
only when an applicant has shown that his/her safety would be put at risk upon
return to her country of origin:
[26] This
Court has held that irreparable harm is a strict test in which serious
likelihood or jeopardy to the applicant’s life or safety must be
demonstrated. The unsubstantiated risk identified by the Applicants does not
meet this threshold (Frankowski v. Canada (Minister of Citizenship and Immigration) (2000), 98 A.C.W.S. (3d) 641, [2000] F.C.J. No. 935 (QL)
at para. 7).
(Diallo v. Canada (Minister of
Citizenship and Immigration), 2009 FC 84, [2009] F.C.J. No. 126 (QL); Kerrutt
v. Canada (Minister of Employment and Immigration) (1992), 53 F.T.R. 93; 32
A.C.W.S. (3d) 621; Calderon v. Canada (Minister of Citizenship and
Immigration) (1995), 92 F.T.R. 107, 54 A.C.W.S. (3d) 316).
[42]
Irreparable harm has to be demonstrated on the
balance of probabilities. Also, the evidence supporting allegations of
potential irreparable harm must be convincing:
[43] Irreparable
harm involves a high threshold. The Court must be satisfied that irreparable
harm will occur if the stay is not granted (Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 261, 132 A.C.W.S. (3d) 261 at paras.
12-20; Stampp v. Canada (Minister of Citizenship and Immigration)
(1997), 127 F.T.R. 107, 69 A.C.W.S. (3d) 901 at paras. 15-16; Atakora v.
Canada (Minister of Employment and Immigration) (1993), 68 F.T.R. 122, 42
A.C.W.S. (3d) 486 at paras. 11-12 (T.D.); Legrand v. Canada (Minister of
Citizenship and Immigration) (1994), 27 Imm. L.R. (2d) 259, 52 A.C.W.S.
(3d) 1301 at para. 5 (F.C.T.D.); Akyol v. Canada (Minister
of Citizenship and Immigration), 2003 FC
931, 124 A.C.W.S. (3d) 1119 at para. 7). (Emphasis added).
[43]
Ms. Kaur Gosal pleads in her submissions that she would face two separate
or distinct risks if she returns to India.
[44]
First, she states that her first husband would want to seek
revenge and have her killed from his home in Burnaby.
[45]
Second, she pleads the existence of a family dispute involving
her second husband’s uncle, who allegedly killed his father and would have
threatened to kill her, her husband and her child.
[46]
To support these serious allegations, Ms. Kaur Gosal has filed:
a.
an undated affidavit from her second husband;
b.
an undated affidavit from the chief village councillor (sarpanch) in her
hometown;
c.
an affidavit from her
own mother;
d.
a
judgment rendered in 2004 concerning the killing of her second husband’s
father;
e.
a few newspaper clips
relating to honor killings in India.
[47]
This evidence is far from being sufficient to show on a balance
of probability that Ms. Kaur Gosal will be killed if she returns to India.
[48]
First, two of the three affidavits originate with family members.
[49]
Ms. Kaur Gosal’s second husband is directly concerned by the
removal of his wife, as she has admitted trying to sponsor him to Canada. If she
returns to India, his sponsorship would inevitably fail.
[50]
The probative value of the second husband’s affidavit, which is
unsigned, is very low.
[51]
The third affidavit is written by a sarpanch who clearly has no
personal knowledge of the facts to which he is attesting. He attests only that
the husband’s uncle (Amrajit Singh) “has been heard saying” that he
would kill him and his family; therefore, low probative value is given to the
affidavit.
[52]
Even if the said sarpanch writes that Ms. Kaur Gosal’s second
husband risks to be harmed “any time”, and while she herself writes in her
affidavit that her husband lives in hiding, he apparently finds the possibility
to play Kabbadi to which his uncle follows him relentlessly.
[53]
It does not appear from the documents filed in support of Ms.
Kaur Gosal’s motion that her husband was, in fact, ever attacked by his uncle.
[54]
As for the judgment that is filed supporting the motion, it was
rendered in 2004 (her husband’s father was allegedly killed in 2002), even
before Ms. Kaur Gosal married her second husband. Ms. Kaur Gosal made no
mention of the supposed threats in her appeal to the IAD, wherein she
nonetheless discussed the many H&C factors she thought could support a
relief from the exclusion order issued against her.
[55]
Nowhere in the documents that she filed in support of her motion,
did Ms. Kaur Gosal give indications as to when the said uncle was released nor as
to when and in what circumstances he would have made the alleged threats.
[56]
Ms. Kaur Gosal, also, never submitted to the IAD her reflection
or statement in regard to a fear of an honor killing that could be ordered by
her first husband if she was to return to India.
[57]
Her risk of being killed in India is an H&C factor that could
have been submitted to the IAD. Her silence, at the hearing, on the issues
before the IAD, is troubling.
[58]
Finally, the documentary evidence adduced by Ms. Kaur Gosal showing
that honor killings are common in India is not, in and of itself, sufficient to
prove that she would personally be subject to a risk of such as the subjection
evidence does not point in that direction.
[59]
Despite the fact that these are crimes, Ms. Kaur Gosal still had
to demonstrate that her first husband is willing to seek revenge by killing her
in India.
[60]
Also, after divorcing her first husband, Ms. Kaur Gosal returned
to India to remarry her second husband. It is highly suspicious that one who
alleges a fear of honor killings in her country would return to remarry.
B. Serious Issue
[61]
Ms. Kaur Gosal does not raise any serious issue with regard to
the PRRA decision for which she is seeking a judicial review.
[62]
From the underlying decision, it is evident that Ms. Kaur Gosal
filed confusing submissions in support of her PRRA.
[63]
Indeed, a careful reading of Ms. Kaur Gosal’s submissions demonstrate
that she fears her first husband who would do all he could to have her killed
in India. It is not clear whether the death of her second husband’s father had anything
to do with her first marriage.
[64]
Ms. Kaur Gosal has now filed a much clearer affidavit in which
she explains in greater detail the two situations which placed her at risk in India.
Nevertheless, the affidavit would have assisted the PRRA officer’s comprehension
of her file; however, it was not in his possession.
[65]
The conclusion of the PRRA officer on the basis of the evidence
that was filed before him and on the basis of his comprehension of it was
entirely reasonable.
[66]
On the other hand, even if the PRRA officer did not understand
that the 2002 murder was not related to Ms. Kaur Gosal’s first husband, most of
his conclusions would stand even with knowledge of that information. The
affidavits would still be self-serving and of low probative value. She still
would have not told the IAD about the risks she now alleges facing.
[67]
Also, the documentary evidence was not filed before the PRRA
officer.
[68]
It is clear from the documents that the evidence was insufficient
to demonstrate that Ms. Kaur Gosal would face a risk in India. As
specified above, three self-serving affidavits cannot in themselves demonstrate
on a balance of probabilities that one faces death, especially where the
affiants have direct interest in the outcome of the case or do not even have
personal knowledge of the facts to which they are attesting.
[69]
No need to hold an interview with Ms. Kaur Gosal, as the main
problem with her Application was the fact that the evidence was insufficient
to demonstrate the risk she alleges. Consequently, her credibility was not
directly at stake.
[70]
Even if the PRRA officer came to the conclusion that she
genuinely feared to be killed by her first husband or by her second husband’s
uncle, the evidence that was filed to support these fears was lacking and did not
prove the fears were well-founded (Canada (Attorney General.) v. Ward,
[1993] 2 S.C.R. 689, 41 A.C.W.S. (3d) 393).
[71]
For all these reasons, the underlying application does not raise
a serious issue.
C. Balance of
Convenience
[72]
Finally, the balance of convenience favours the Minister.
[73]
According to section 48 of the IRPA, the Minister
does have a duty to execute an enforceable removal order “as soon as is
reasonably practicable”:
|
Enforceable removal order
48. (1) A removal order is
enforceable if it has come into force and is not stayed.
Effect
(2)
If a removal order is enforceable, the foreign national against whom it was
made must leave Canada immediately and it must be
enforced as soon as is reasonably practicable.
|
Mesure de renvoi
48. (1) La mesure de renvoi est
exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un
sursis.
Conséquence
(2) L’étranger visé par la mesure
de renvoi exécutoire doit immédiatement quitter le territoire du Canada, la
mesure devant être appliquée dès que les circonstances le permettent.
|
[74]
Equally, it is trite law that the public interest must be taken
into account; the Court decides whether the balance of convenience favours an applicant
or the Minister.
[75]
In this case, in light of all of the foregoing arguments, it is
in the public interest that Ms. Kaur Gosal be removed as soon as possible
(RJR-
MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Blum v. Canada
(Minister of Citizenship and Immigration), (1994), 90 F.T.R. 54, 52 A.C.W.S. (3d)
1099). She admitted to a cosmetic marriage to enter Canada. She misrepresented
the situation and her behaviour is not to be rewarded.
[76]
Furthermore, the criteria as to a serious issue and that of the
irreparable have not been met, the balance of convenience favours the Minister
(Rwiyamirira v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1171, 157 A.C.W.S. (3d) 597 at para. 27).
VI. Conclusion
[77]
For
all of the above reasons, the Applicant’s application for a stay of the
execution of the removal is denied.
JUDGMENT
THIS COURT ORDERS that the Applicant’s application for a stay of execution of the
removal be denied
“Michel M.J. Shore”
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