Date: 20101117
Docket: IMM-174-10
Citation: 2010 FC 1116
Ottawa, Ontario, this 17th
day of November 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
SUKHNINDER SINGH GILL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Immigration Appeal
Division of the Immigration and Refugee Board (the “IAD”), pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, (the “Act”) by Sukhninder Singh Gill (the “applicant”). The IAD
issued a removal order for the applicant on December 21, 2009, after
hearing an appeal from a decision of the Immigration Division. The IAD found,
as had the Immigration Division, that the applicant had made a material
misrepresentation in his application for permanent residence under the family
class, as his marriage to his sponsor was a marriage of convenience. The IAD
also found that there were not sufficient humanitarian and compassionate
grounds to warrant special relief for the applicant.
* * * * * * *
*
[2]
The
applicant is a citizen of India.
His parents and two sisters are permanent residents of Canada, having been sponsored
in 1998 by his elder sister. The applicant was not sponsored at that time
because he was over the age limit, and was not a full-time student.
[3]
The
applicant’s first wife, Kulwinder Kaur, was either a permanent resident or a
citizen of Canada (it is not clear from
the record) in 2000. She went to India and took part in an arranged marriage with the
applicant; the marriage was arranged by relatives of each party. The marriage
took place on February 9, 2000, and the applicant alleges that the couple
cohabitated for a week and consummated the marriage. Kulwinder Kaur returned to
Canada a week later, allegedly
to complete her studies. She sponsored the applicant under the family class,
and he arrived in Toronto on February 13, 2001.
[4]
The
applicant alleges that upon his arrival, his wife informed him that she had a
boyfriend in British
Columbia,
and that she no longer wished to be married to him. She left Toronto and
returned to British
Columbia on
February 15, 2001. She filed for divorce, but the Statement of Claim was never
served on the applicant, and he was not aware of the divorce proceedings until
he received the divorce judgment, finalized on November 12, 2001. In the
Statement of Claim for divorce, Kulwinder Kaur alleges a separation date of
February 18, 2000, and states that the parties never cohabitated.
[5]
The
applicant married an Indian citizen in 2004 and applied to sponsor her to Canada. As a result of this
application and Canada Border Services Agency’s subsequent investigation, he
was reported for misrepresentation in his original application for permanent
residence. When questioned, Kulwinder Kaur did not mention the boyfriend as the
cause of the break-up, but stated the marriage broke down quickly because the
applicant was very traditional and she was not. The applicant was the subject
of a removal order dated July 30, 2008, which he appealed on August 20, 2008.
Hearings were held on September 22, 2009 and November 26, 2009, and the
decision of the IAD was rendered December 21, 2009.
* * * * * * * *
[6]
As a
preliminary matter, the IAD rejected the applicant’s submission (made at the
hearing) that as the impugned conduct pre-dated the Act, and was not the
subject of a report under section 20 or section 27 of the former Immigration
Act, R.S.C. 1985, c. 1, the present Act did not apply to the applicant, and
no removal order could be made against him. The IAD found that there were no
time limits on investigations, and that there was no need for an investigation
to have been instituted under the former Act. The IAD found that the date on
which the impugned conduct occurred was irrelevant for the purposes of starting
an investigation.
[7]
Regarding
the validity of the removal order, the IAD found that the inconsistency between
the applicant’s testimony and his wife’s divorce application regarding the date
of separation, and the inconsistency in their testimonies regarding the period
of cohabitation were not, on their own, fatal to the applicant’s case, but that
in combination with the timing of the separation after the applicant’s arrival
in Canada and the minimal effort by the applicant to reconcile with his wife,
these inconsistencies had greater importance. The IAD found that if the
marriage were genuine, the applicant would have made a greater effort to
reconcile with his wife than to make a few phone calls. The IAD found that even
if the marriage were consummated in India, this was only one factor. The IAD found that
neither testimony was credible. The IAD determined that the marriage was not
genuine, and that this constituted a misrepresentation on a material fact
regarding a relevant matter that induced an error in the administration of the Act,
and that the applicant should not have been granted permanent residence.
[8]
On
the matter of humanitarian and compassionate grounds, the IAD listed the
factors to be applied as per Chieu v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 84, and noted that the factors
were non-exhaustive and discretionary. The IAD found that the applicant’s
misrepresentation regarding his marriage was serious in nature, but that the
applicant was well-established in his community in Canada. The IAD found that his
mother was in poor health and would suffer some displacement were the applicant
to be removed, but found that the applicant’s sisters would be able to support
the mother. It noted that the applicant’s wife and child are in India, that the applicant has
returned to India regularly for long periods since 2004, and that he is
familiar with the video/music business there and could continue a line of work similar
to what he does in Canada. The IAD considered the
best interests of the applicant’s son, but found that the child is established
in India, and that there is no
evidence that he would be better off in Canada; this was a neutral factor. On balance, the IAD
concluded that the humanitarian and compassionate grounds were insufficient to
allow the applicant to remain, especially given that his removal came about as
a result of his own misrepresentation.
* * * * * * * *
A. Timeliness of the
investigation into the applicant’s marriage
[9]
The applicant
is reiterating his argument, made at the hearing and alluded to by the IAD in
its decision, that as no report had been filed under section 27 of the former Immigration
Act, pursuant to section 321 of the Immigration and Refugee Protection Regulations,
SOR/2002-227, (the “Regulations”) the transition provisions do not apply to his
case, and no report could have been issued against him. I do not agree. I find
that the IAD’s interpretation of the Act is correct; section 44 of the current Act
does not state that the action leading to the alleged inadmissibility must have
occurred subsequent to the coming in force of the new Act. In my opinion the
transition provision in section 321 of the Regulations applies only to reports
that were already in existence, and not to conduct that had not yet been
discovered; otherwise any misrepresentation not discovered prior to the coming
in force of the new Act would be immune from investigation.
B. Genuineness
of the applicant’s marriage
[10]
The
applicant argues that as both he and his first wife had testified that the
marriage was genuine, the IAD’s finding was made without regard to the evidence
before it, and constituted an erroneous finding of fact. The applicant alleges
that the discrepancy in the date of separation between his testimony and the
Statement of Claim for divorce came about because Kulwinder Kaur misrepresented
the date in order to get a divorce more quickly than she would otherwise have
been able to do. The applicant alleges that he was never able to correct this
date as he did not receive any notice of the proceedings until the divorce
judgment.
[11]
The
respondent argues that while the applicant clearly disagrees with the IAD’s
conclusion, he has failed to demonstrate a reviewable error that could lead
this Court to overturn the decision. The respondent notes that it was open to
the IAD to find that together, the inconsistencies and implausibilities in the
applicant’s evidence were significant enough to lead to a conclusion of a
marriage of convenience. I agree with the respondent on this point; the
applicant’s arguments merely repeat his contention that the marriage was
genuine, but do not point to any reviewable error made by the IAD.
[12]
The
applicant submitted a supplementary affidavit containing several additional
exhibits intended to supplement his position regarding the genuineness of the
marriage. I agree with the respondent that the applicant may not introduce new
evidence upon judicial review in order to supplement the elements of his
testimony that were disbelieved by the IAD. Cases such as Nejad v. Minister
of Citizenship and Immigration, 2006 FC 1444, paragraphs 15 to 17, and Deol
v. Minister of Citizenship and Immigration, 2009 FC 406, paragraphs 44 to 46,
are clear on this point.
C. Humanitarian
and compassionate grounds
[13]
The
applicant argues that the IAD failed to reasonably consider the evidence
presented in its decision that the humanitarian and compassionate grounds were
insufficient to overcome the removal order. The applicant alleges that the IAD
wrongly determined that his sisters would take care of his ailing mother, when
the applicant is the sole provider for his mother. He argues that he would face
hardship in India, as he has no immediate family there beyond his wife and son,
and there is no guarantee that he will be able to find a job there in the
video/music business and be able to support his family.
[14]
The
respondent argues that it is “not the role of the courts to re-examine the weight
given to the different factors by the officers”, according to the Federal Court
of Appeal in Legault v. Minister of Citizenship and Immigration, [2002]
4 F.C. 358, at paragraph 11. The respondent submits that the IAD’s decision was
not unreasonable in light of the factors present in this case, including the
seriousness of the misrepresentation, the presence of the wife and child in
India and the applicant’s frequent visits there, and the applicant’s
familiarity with the video/music business in India.
[15]
In
my opinion, the applicant has again failed to point to any reviewable error in
the IAD’s determination of this issue. He disagrees with the manner in which
the factors were weighed, but merely reiterates evidence that was before the
IAD and adds additional explanation, without showing that the IAD reached an
unreasonable conclusion.
* * * * * * * *
[16]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[17]
No
question is certified.
JUDGMENT
The application for judicial
review of the decision of the Immigration Appeal Division of the Immigration
and Refugee Board dated December 21, 2009 is dismissed.
“Yvon
Pinard”
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