Date: 20100617
Docket: IMM-2315-09
Citation: 2010 FC 658
Ottawa, Ontario, June 17, 2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
JASWANT
SINGH RANDHAWA
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) to
seek judicial review of a decision of the Immigration Appeal Division of the
Immigration and Refugee Board (the Board), dated April 24, 2009, dismissing the
applicant’s appeal of the removal order made against him on April 26, 2007.
[2]
The
applicant was ordered to be removed from Canada for misrepresentation according
to subsection 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.
Factual Background
[3]
The
applicant is a citizen of India who was born on June 24, 1974. He is a
permanent resident of Canada since February 6, 2000, after having been
sponsored by his wife, Mohinder Kaur Cheema, whom he married on November 24,
1998.
[4]
Following
a workplace accident, the applicant returned to India in April
2000 and remained there until he returned to Canada on October 10,
2000. In July of that year, his wife filed for divorce and it became effective
on April 6, 2001.
[5]
On
December 21, 2003, the applicant returned to India and married
his second wife, Harpreet Kaur Randhawa. On or about March 23, 2004, the
applicant filed an application to sponsor his second wife. This led to a
preliminary decision dated October 5, 2005 which found that the applicant was
inadmissible on the grounds of misrepresentation due to his first marriage.
[6]
On
April 5, 2006, an officer reviewed the file and formally requested an
admissibility hearing that was conducted between January and April 2007.
Following the hearing, the exclusion order was made against the applicant.
Impugned Decision
[7]
The
determinative issue in this case is whether the exclusion order was valid in
law. In order to determine this issue, the Immigration Appeal Division had to
determine the applicant’s credibility as to whether or not he had contracted a marriage
for the sole purpose of acquiring any status or privilege under the Act and if
there were sufficient humanitarian and compassionate considerations that
warranted special relief in light of all the circumstances in this case.
[8]
Regarding
the applicant’s first marriage, the Board was unable, after reviewing the
evidence provided at the hearing, to determine if the applicant had ever spent
any time living with his ex-wife. The Board found that while the
applicant’s place of residence was critically important, the testimony provided
in that regard was inconsistent.
[9]
The
Board also found that the applicant lacked credibility on most of the issues
raised concerning his first marriage. The Board also added that the explanations
provided by the applicant – why his spouse was asking for a divorce after two
years of marriage and after having been separated for inordinate periods of
time during the immigration process – were unreasonable.
[10]
The
Board expressed the credibility issues of the applicant in the following manner
at para. 36 of the decision:
[…] The appellant can offer no credible
reason why his short lived marriage would break down to the point where his
ex-wife would file for divorce without telling him while he languished in India recovering form his injury.
[11]
The
Board thus concluded that the applicant’s first marriage was not genuine and
was contracted for the sole purpose of facilitating the immigration process and
was inadmissible for purposes of misrepresentation. The Board also added that
there were no humanitarian or compassionate considerations for the applicant to
remain in Canada because the applicant misrepresented his way into Canada and there is
no evidence that he cannot achieve the same degree of establishment in India.
[12]
The
Board finally noted that his present wife and child live in India and hence, it
inferred that the best interest of his child would be to see the applicant
reunited with them in India.
Legislation
[13]
Subsections 40(1), 67
and 68 of the Immigration and Refugee Protection Act read as
follows :
|
Misrepresentation
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;
(b) for being or having been sponsored by a person who is
determined to be inadmissible for misrepresentation;
(c) on a final determination to vacate a decision to allow
the claim for refugee protection by the permanent resident or the foreign
national; or
(d) on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances
set out in subsection 10(2) of that Act.
…
|
Fausses
déclarations
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;
b) être ou avoir été parrainé par un répondant dont il a été
statué qu’il est interdit de territoire pour fausses déclarations;
c) l’annulation en dernier ressort de la décision ayant accueilli
la demande d’asile;
d) la perte de la citoyenneté au titre de l’alinéa 10(1)a) de la Loi sur la citoyenneté dans le cas visé
au paragraphe 10(2) de cette loi.
[…]
|
|
Appeal
allowed
67.
(1) To allow
an appeal, the Immigration Appeal Division must be satisfied that, at the
time that the appeal is disposed of,
(a)
the decision appealed is wrong in law or fact or mixed law and fact;
(b)
a principle of natural justice has not been observed; or
(c)
other than in the case of an appeal by the Minister, taking into account the
best interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
…
|
Fondement
de l’appel
67.
(1) Il est fait droit à l’appel sur preuve qu’au moment où
il en est disposé :
a) la décision attaquée est
erronée en droit, en fait ou en droit et en fait;
b) il y a eu manquement à un
principe de justice naturelle;
c) sauf dans le cas de l’appel
du ministre, il y a — compte tenu de l’intérêt supérieur de l’enfant
directement touché — des motifs d’ordre humanitaire justifiant, vu les autres
circonstances de l’affaire, la prise de mesures spéciales.
[…]
|
|
Removal
order stayed
68.
(1) To stay a
removal order, the Immigration Appeal Division must be satisfied, taking into
account the best interests of a child directly affected by the decision, that
sufficient humanitarian and compassionate considerations warrant special
relief in light of all the circumstances of the case.
…
|
Sursis
68.
(1) Il est sursis à la mesure de renvoi sur preuve qu’il y
a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des
motifs d’ordre humanitaire justifiant, vu les autres circonstances de
l’affaire, la prise de mesures spéciales.
[…]
|
Issues
[14]
This
application raises the following issue: Did the Board err in ignoring two
pieces of the applicant’s evidence?
Standard of Review
[15]
The
Court agrees with the respondent that, in the present case, the standard of
review is reasonableness. The issue is a question of mixed facts and law and,
accordingly, the Court must look "…into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. [...] But it is also concerned with whether the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law." (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
at para. 47).
Analysis
[16]
The
applicant submits that the findings of credibility completely ignored two
important pieces of evidence before the Board:
i.
A
report from the York Regional Police that shows that the applicant’s witness
accompanied him to his alleged apartment located at 111 Lamp Crescent (as opposed
to 2626 Islington Avenue) in May 2001, and;
ii.
a
letter dated August 19, 2005 written and signed by the applicant’s lawyer
explaining why his first wife sent him to India when he
suffered a workplace injury.
[17]
The
Court agrees with the respondent that the police report is of no significant importance.
Indeed, the fact that the applicant’s witness accompanied him to the apartment located
on 111
Lamp Crescent
to retrieve some of his belonging was never put into question. The Court is of
the view that this document regarding the applicant’s residence is not
conclusive and therefore not helpful for the applicant. Further, the record
contains an important number of conflicting pieces of evidence regarding the
applicant’s residence which the Board had to consider. A review of the documentary
evidence does not convince this Court that this sole piece of isolated evidence
can by itself impugn the entire and overwhelming evidence considered by the
Board in its sixteen (16) pages decision.
[18]
Turning
to the second piece of evidence – the lawyer’s letter – this Court finds that
the letter merely amounts to the lawyer stating his position. This Court is therefore
not convinced by the applicant’s argument that this letter bears any
significant weight.
[19]
It
is trite law that there is no obligation for the Board to expressly cite every
piece of evidence. In the decision Hassan v. Canada (Minister
of Employment and Immigration) (F.C.A.), [1992] F.C.J. No. 946, 147 N.R. 317, at para. 3, the Federal Court of Appeal
addressed the issue in the following way:
[3]
[T]he fact that
some of the documentary evidence was not mentioned in the Board's reasons is
not fatal to its decision. The passages from the documentary evidence that are
relied on by the appellant are part of the total evidence which the Board is
entitled to weigh as to reliability and cogency. My examination of the record
before the Board persuades me that it did, in fact, consider and weigh the
total evidence in a proper fashion. …
[20]
In
the present case, this Court is of the opinion that the Board conducted a
full assessment of the evidence, including the applicant’s testimony and the
totality of the documentary evidence on file. The Board’s decision is clear in explaining
why some of the evidence was not credible and this demonstrates in and of
itself that the Board did, in fact, consider the evidence reasonably.
[21]
This
Court finds that the Board’s decision was reasonable in light of all the
circumstances of the case. The decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and the law (Dunsmuir).
Therefore,
this judicial review application will be dismissed. No question was proposed
for certification and there is none in this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review be dismissed. No question for
certification.
“Richard
Boivin”
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