Docket: IMM-3198-11
Citation: 2012 FC 217
Vancouver, British Columbia, February
15, 2012
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
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KULWANT KAUR SANDHU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Ms.
Kulwant Kaur Sandhu, a citizen of India, applies for judicial review of the
March 8, 2011 decision by Immigration Counsellor, Bruce Grundison (the Visa
Officer), at the Canadian High Commission in New Delhi (the Visa Office),
rejecting her application for permanent residence. The Applicant seeks an order
setting aside the decision and that the application for permanent residence be
approved. Alternatively, she asks that the matter be submitted for
re-determination by a different visa officer. Her application is brought under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA].
I. Facts
[2]
The
Applicant is a widow with three children. One of her sons, Avtar Sandhu, lives
in Canada as a permanent
resident. On July 31, 2006, Avtar Sandhu applied to sponsor the Applicant and
his sister, Jaspreet Kaur, for immigration to Canada.
[3]
On
November 13, 2008, the Applicant submitted an application for permanent
residence under the Family Class with Jaspreet Kaur as her dependent child. A
certified copy of Jaspreet Kaur’s passport listed the Applicant as her mother.
[4]
On
June 28, 2010, the immigration registry at the Visa Office received a letter
from a third party alleging that Jaspreet Kaur is not the real daughter of the
Applicant but rather her niece living with her family in order to establish her
“false identity” for immigration purposes. In light of this letter, the First
Secretary for Immigration at the Visa Office wrote to the Applicant on October
20, 2010, stating that he “was not satisfied that there is sufficient evidence
to prove the parent-child relationship between you and Jaspreet Kaur Sandhu”
and that the Visa Office would accept DNA test results as proof of the
relationship. Excerpts of the letter are reproduced below:
…
After
reviewing the information provided in support of your application, I am not
satisfied that there is sufficient evidence to prove the parent-child
relationship between you and Jaspreet Kaur Sandhu.
Since
the documentary evidence you have provided does not enable us to establish
parentage between you and the child, and you are unable to obtain other
documentary evidence, in place of documentary evidence we will accept the results
of a DNA analysis
…
If
we are not advised within 90 days by a laboratory that you will be proceeding
with the DNA testing, we will assume that you are no longer interested in
providing a DNA test result and will render a decision on the information available
to us at that time.
[5]
On
November 22, 2010, the Visa Office received a letter from the Applicant wherein
she admitted that Jaspreet Kaur Sandhu was not her natural daughter but was her
adopted daughter who had been in her custody since 1989. She went on to explain
that she and her late husband took custody of Jaspreet Kaur from her
sister-in-law in 1989 and “vowed” never to disclose this fact to her.
[6]
On
February 24, 2011, the Visa Office received a letter from the Applicant
advising that Jaspreet Kaur had married on January 15, 2011, and requested that
she be removed from the application. A certified copy of the marriage
certificate was attached.
[7]
On
March 8, 2011, the Visa Officer found the Applicant inadmissible to Canada by
reason of misrepresentation pursuant to paragraph 40(1)(a) of the IRPA
and rejected her application for permanent residence.
[8]
On
May 9, 2011, the Visa Office received a translated and certified copy of an
adoption deed naming the Applicant and her late husband as the adoptive parents
of Jaspreet Kaur, which was executed on November 18, 1989.
[9]
On
May 13, 2011, the Applicant filed this application for judicial review of the
March 8, 2011 decision.
II. Impugned Decision
[10]
I
reproduce below the relevant passages of the Visa Officer’s refusal letter sent
to the Applicant:
In
our letter dated October 20, 2010, you were requested to undergo DNA testing
along with your putative daughter Jaspreet Kaur Sandhu. In response to that
request, you wrote us a letter stating that in fact Jaspreet Kaur is not
your biological daughter and that you had “inadvertently” not disclosed
this fact on your application form because, supposedly, she does not know the
truth and you wanted to spare her feelings. I am not convinced by this
explanation. You stated that you adopted Jaspreet, who is the second daughter
of your sister-in-law, in 1989. However, you were unable to provide
evidence that an adoption took place at that time.
I
am of the opinion that you have engaged in misrepresentation in submitting
your application. You concealed the fact that your accompanying dependant,
Jaspreet Kaur is not your biological child. The omission was deliberate and in
fact only came to light when you and your accompanying dependant, Jaspreet
Kaur, were requested to undergo DNA testing. Further, you have not
demonstrated that an adoption took place, despite stating that she was
adopted. The misrepresentation or withholding of this material fact(s)
could have induced errors in the administration of the Act because you and Jaspreet
Kaur might have been issued Permanent Resident Visas.
As
a result, you are inadmissible to Canada for a period of two years from the date
of this letter.
[11]
The
Applicant raises the following two issues:
a. Did the Visa Officer err in
finding that the Applicant was inadmissible pursuant to paragraph 40(1)(a)
of the IRPA for misrepresenting that Jaspreet Kaur was her biological daughter?
b. Once advised that Jaspreet
Kaur had been adopted, did the Visa Officer breach his duty of procedural
fairness by not requesting evidence of the adoption before rendering his final
decision?
III. Standard of
Review
[12]
The
first issue is a fact-based inquiry reviewable on the reasonableness standard.
See: Dunsmuir v New Brunswick, 2008 SCC 9 at para 51, [2008] 1 S.C.R. 190.
[13]
The
second issue is a question of procedural fairness. Such questions are
reviewable on a correctness standard. See Dunsmuir at paragraph 129.
IV. Analysis
Did the
Visa Officer err in finding that the Applicant was inadmissible pursuant to
paragraph 40(1)(a) of the IRPA for misrepresenting that Jaspreet Kaur was her
biological daughter?
[14]
The
Applicant argues that she did not misrepresent her relationship with Jaspreet Kaur.
She further submits that a person should not be found inadmissible for a misrepresentation
unless it consists of a material fact relating to a relevant matter that
induces or could induce an error in the administration of the IRPA. The Applicant
contends that since Jaspreet Kaur was legally adopted, her misrepresentation
could not have led to an error in the administration of the IRPA.
[15]
The
Respondent argues that the Applicant failed to provide any relevant information
showing a legal adoption within 90 days of notification of a request for DNA
testing. The Respondent contends that the Applicant admitted that she
misrepresented a fact in her application, and that this fact could have induced
an error in the administration of the IRPA. According to the Respondent, by
claiming that Jaspreet Kaur was her biological daughter, the Applicant “sought
to avoid the scrutiny of the adoption.”
[16]
The
Visa Officer found the Applicant had concealed the fact that her accompanying
dependant, Jaspreet Kaur, was not her biological child and consequently found
that she engaged in misrepresentation in her application. This finding is not
supported in the evidence. In her application for permanent residence, the
Applicant did not state that Jaspreet Kaur was her biological daughter. She
simply indicated that she was her daughter. In response to the Visa Officer’s
October 20, 2010 letter she truthfully acknowledged that Jaspreet Kaur was her
adopted daughter and went on to explain the circumstance of the adoption. No
evidence was adduced to indicate that the Applicant was required to distinguish
on her application whether her daughter was either her birth daughter
or her adopted daughter. On the evidence before the Visa Officer there was
no basis to find that the Applicant concealed her relationship with Jaspreet
Kaur. The fact that the Applicant failed to provide the adoption papers at that
time does not lead to a conclusion that she was concealing or misrepresenting
the relationship. Further, the school records and travel documents provided by
the Applicant, including Jaspreet Kaur’s passport, all indicate that the
Applicant was her mother at all relevant times. There is no evidence to
indicate that the Applicant at any time indicated that she was the birth mother
of Jaspreet Kaur. In these particular circumstances, the Officer needed to
satisfy himself that there was a misrepresentation. A simple inquiry into the
legality of the adoption would have sufficed. I agree with counsel for the
Minister that it would have been far better had the Applicant provided the
adoption papers before the decision was rendered. Had that been the case, it is
unlikely the within application would have ever been filed. However, such an
error cannot be fatal to an application for permanent residence in
circumstances where there is no evidentiary basis for a finding of
misrepresentation.
V. Conclusion
[17]
There
being no evidence of a misrepresentation pursuant to paragraph 40(1)(a)
of the IRPA, the Officer committed a reviewable error in deciding that the
Applicant was inadmissible to Canada on that basis. In the result, the Application for Judicial
Review will be allowed. The matter is to be returned for reconsideration
before a different Visa Officer.
[18]
Given
my above determination, there is no need to consider the second issue raised.
[19]
No
question was proposed and none will be certified as a serious question of
general importance pursuant to paragraph 74(d) of the Immigration and
Refugee Protection Act, [SC 2001, c 27].
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The Application for
Judicial Review is allowed;
2.
The
matter is to be returned for reconsideration before a different Visa Officer;
and
3.
No
question of general importance is certified.
“Edmond P. Blanchard”
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