Date: 20120222
Docket: IMM-4680-11
Citation: 2012 FC 238
Toronto, Ontario,
February 22, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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UZMA HANIF QURESHI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27, of a decision of the Immigration Appeal Division (IAD) of the
Immigration and Refugee Board. The IAD dismissed the appeal of an Exclusion
Order issued by the Immigration Division (ID) which found that the applicant
was a person described in paragraph 40(1)(a) of the Act.
[2]
For the reasons that follow, this application is
dismissed.
Background
[3]
It is difficult to know exactly what the facts
are in this matter. The IAD described the evidence given by the applicant this
way:
I find the fact that the applicant has changed her story every time
she has been in front of an Immigration official or a panel, indicative of a
person who is hiding evidence and I am not prepared to accept her new story as
testified to during the course of this hearing as true. In my view, the
appellant continues to lie and misrepresent facts to suit her own purposes and
as such, I do not believe her version of events.
[4]
The following appears to be relatively
uncontested. The applicant is a 30 year-old national of Pakistan. She married her first cousin Mr.
Qureshi in Pakistan on
September 21, 2003. He is a Canadian permanent resident and filed a
sponsorship application in his wife’s favour. The application was approved and
Ms. Qureshi landed in Canada on
September 17, 2004.
[5]
By letter dated July 31, 2005, Mr. Qureshi wrote
to Immigration Canada stating that their marriage was a fraud:
Mrs. Uzma Luqman Qureshi came to Canada under false pretenses. She did not consummate the marriage. My
uncle, M. Younas Qureshi, has kept her in his custody since she arrived in Canada on, September 17/ 2004 till now.
All my sponsorship documents are with my uncle, M. Younas Qureshi … [S]he
refuses to see me or even take my phone calls. I was basically just her ticket
to come to Canada and now that
she’s here, she plans to marry my uncle’s nephew, Sohail Qureshi, who currently
resides in Pakistan.
[6]
The applicant and her Canadian sponsor were
divorced in Ontario on March 3,
2006.
[7]
The applicant then married Amir Najam in Toronto on March 5, 2006, and they have a
daughter born September 21, 2009.
[8]
No explanation is offered as to why it took
Immigration Canada nearly two years to act on this allegation of fraud;
however, on March 14, 2007, it sent the applicant a Call In Notice stating that
the object was “Your Status in Canada – Misrepresentation.” The interview was held on April 2, 2007
where, allegedly on the uncle’s advice, the applicant told the immigration
officer that Mr. Qureshi abused her and slapped her on the face when she did
want him to watch pornographic movies. At the IAD hearing, the applicant
admitted that this was a complete fabrication – a lie. It appears from the
officer’s report that the applicant was made aware of the details of the claims
made by her former husband, including her pending marriage to Sohail Qureshi.
She told the officer that although her uncle wanted her to marry Sohail, she
refused and that as a result she and her uncle had had a falling out.
[9]
On April 11, 2007, the applicant sent a letter
requesting a copy of the complaint made against her by Mr. Qureshi. She was
told that the matter was under investigation and that she would be given access
to the materials only if she was referred to an admissibility hearing.
[10]
In the mean time, the officer reviewing the file
sent a note to Mr. Qureshi, requesting further information. Mr. Qureshi wrote
a letter dated April 24, 2007, explaining that: “When [the applicant] arrived
at the airport, she did not speak to [him] and went off with [his] uncle Younis
Qureshi.” Mr. Qureshi further explained that the applicant filed for divorce
without telling him. The applicant obtained the divorce on grounds of cruelty
which, again, was admittedly a lie.
[11]
On May 1, 2007, the reviewing officer referred a
report pursuant to section 44 of the Act to the ID for an admissibility
hearing. At the ID hearing, the applicant’s uncle testified that his niece had
never lived with him. This is also an admitted lie. On January 21, 2009, the
ID found the applicant to be a person described in paragraph 40(1)(a) of the Act
and an Exclusion Order was issued. This was appealed to the IAD which
dismissed the appeal on June 28, 2011. That is the decision under review.
Issues
[12]
The applicant raised four issues but conceded one at the oral
hearing, accordingly, the issues before the Court are as follows:
1.
Did the IAD fail to observe a principle of procedural fairness?
2.
Did the IAD apply too high a threshold in assessing the H&C grounds?
3.
Did the IAD unreasonably consider the child’s best interests?
Analysis
1. Procedural Fairness
[13]
Subsequent to her interview scheduled for April 2, 2007, the
applicant requested a copy of the complaint letter dated July 31, 2005, sent by
her ex-husband. It is submitted that (i) the letter should have been shared
with her prior to the interview and (ii) she should have been given a copy
after the interview when she requested it by letter dated April 11, 2007. It
is further submitted that the officer should not have sent a letter to the
applicant’s ex-husband requesting further information without prior disclosure
to her. It is submitted that this is a breach of procedural fairness and the
IAD should have exercised its jurisdiction under s. 67(1)(b) of the Act
and found that a principle of natural justice had not been observed.
[14]
The applicant cites Hernandez v Canada (Minister of Public
Safety and Emergency Preparedness) (FC), 2007 FC 725, at para 43 [Hernandez],
and argues that the IAD’s decision should be set aside because she should have
received a copy of the letter considered in the subsection 44(1)
determination. Had she been given access to the details of the complaint
against her, she could have brought to the officer’s attention the fact that
her ex-husband had gone to Pakistan, married another cousin and had also abandoned
her.
[15]
I agree with the submissions made by the
respondent that this is not a judicial review of the interviewing officer’s
decision to report the applicant pursuant to subsection 44(1) of the Act.
It was at that step that the non-disclosure lies. Procedural fairness requires
that material information be disclosed prior to the admissibility hearing;
there is no requirement to disclose the report prior to the subsection 44(2)
determination: Hernandez, above at para 24. There is nothing in the
record to suggest that the husband’s letters were not disclosed prior to the
admissibility hearing. The letter from the officer to the former husband was
never disclosed but I fail to see how that request for further information
could be material or relevant to the issues before the tribunal.
[16]
I have previously addressed the issue raised here in Chand v Canada
(Minister of Public Safety and Emergency Preparedness), 2008 FC 548 at para
26 where I wrote:
Second, in Hernandez, Justice Hughes was faced
with a situation where a document containing a recommendation that was
submitted to the Minister's Delegate was not disclosed prior to the
admissibility hearing. Here it is argued that these were not disclosed to
counsel prior to the section 44(2) review. That is an administrative process. I
can find no error of law either in the failure to disclose prior to the section
44(2) review or the Minister's Delegate having relied on those documents
[emphasis added].
[17]
I am unable to accept the submission of the applicant that a
letter written by a third party bringing information to the attention of the
immigration authorities is any different than the recommendation at issue in Chand.
The applicant was verbally informed of her former husband’s allegations and
responded to them. All that was not disclosed before the admissibility hearing
was her letter asking for disclosure of the former husband’s letter, (as in Chand,
she was aware of the content of that letter) and the letter from the officer
seeking more information which has no apparent relevance to the hearing. There
was no denial of natural justice.
2. The Higher Threshold
[18]
The applicant notes that the IAD stated at
paragraph 24:
However, having found that the appellant’s removal order is valid in
law and that she misrepresented her status as a spouse, I find that she would
not have been able to immigrate to Canada through this category and as such, I
am of the view that it is appropriate to consider a higher threshold in
her case and therefore there needs to be more positive humanitarian and
compassionate factors [emphasis added].
[19]
It is submitted that this is an error in law.
There either is unusual and undeserved or disproportionate hardship, or there
isn’t. It is submitted that if Parliament intended for there to be a different
burden for those who had misrepresented, it would have been clear in the
legislation. The applicant further notes that section 67 of the Act has
a remedial purpose in that it gives the IAD the power to allow an appeal when
the best interests of the child combined with “all the circumstances of the
case” dictate that the child should be accompanied by the parents.
[20]
I do not accept the submission that the Board
erred in law with respect to the test it applied. The IAD did not err by
stating that “it is appropriate to consider a higher threshold in her case and
therefore there needs to be more positive humanitarian and compassionate
factors.” Section 67 of the Act specifies that for the IAD to allow an
appeal there must be “sufficient humanitarian and compassionate considerations
[that] warrant special relief in light of all the circumstances of the case
[emphasis added].” What the IAD was doing was weighing the H&C factors in
light of all the circumstances of the case; that being the applicant’s
gross and repeated misrepresentation. It is trite law that the seriousness of
an offence can be weighed against other H&C factors: see Ribic v Canada
(Minister of Employment and Immigration), [1985] IABD No 4, approved by the
Supreme Court of Canada in Chieu v Canada (Minister of Citizenship and
Immigration), 2002 SCC 3.
[21]
No different test was applied to this applicant,
the Board merely stated, quite appropriately, that given her conduct which weighed
against the IAD exercising its discretion, the positive factors required would
have to be greater in number or weight than would otherwise have been the
case.
3. Best Interest of the Child
[22]
The applicant submits that the IAD’s analysis
falls short of being alert, alive and sensitive to the best interests of the child.
She submits that the IAD paid no attention to the child’s future, education,
special needs and length of separation or the impact thereof.
[23]
A review of the transcript indicates that the
applicant made no submissions before the IAD in regard to the child’s future,
education or special needs. As noted by the respondent it is not up to the IAD
to engage in a hypothetical analysis of H&C factors not advanced by the
applicant: Khaira v Canada (Minister of Citizenship and Immigration),
2007 FC 378 at para 8.
[24]
In any event, as the respondent notes, the IAD
acknowledged that in most cases it is in the best interests of a child to have
both parents in their lives, accepted that the applicant played an important
role in her daughter’s life and that her removal will cause hardship to the
child, noted that it is up to the applicant and her husband whether they should
live in Pakistan or whether the child will remain with the applicant’s husband
in Canada, and also noted that the applicant’s husband and daughter could visit
her in Pakistan. Another consideration made by the IAD was that the
applicant’s current husband could submit a sponsorship application for the
applicant in two years time, rendering the separation only temporary.
[25]
Having failed to identify even one piece of
evidence that was ignored or overlooked by the IAD, I cannot find that the IAD
erred in its analysis of the child’s best interests.
[26]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is dismissed and no question is
certified.
"Russel W. Zinn"
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