Date:
20090304
Docket:
IMM-927-08
Citation:
2009 FC 230
Ottawa, Ontario, March 4, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
INDERPAL SINGH HANSRA
SUKHJOT KAUR
HANSRA
Applicants
and
THE MINISTER OF
CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant requests judicial review of a decision that did not exempt him from
legislation barring his right to sponsor his wife because he had been convicted
of a sexual offence and five years had not elapsed since the completion of his
sentence. The First Secretary of
the Family Class and Refugee Unit of the Canadian High Commission in New Delhi, India (Official)
found that there were insufficient humanitarian and compassionate grounds to
justify an exemption from the applicable prohibition on sponsorship
applications.
[2]
The
Applicant was caught by paragraphs 133(1)(e)(i) and (2)(b) of the
Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations):
|
133. (1) A sponsorship
application shall only be approved by an officer if, on the day on which the
application was filed and from that day until the day a decision is made with
respect to the application, there is evidence that the sponsor
…
(e) has not been convicted under the Criminal Code
of
(i) an offence of a sexual nature, or an attempt or a
threat to commit such an offence, against any person, or
…
(2) Despite paragraph (1)(e), a sponsorship
application may not be refused
…
(b) if a period
of five years or more has elapsed since the completion of the sentence
imposed for an offence in Canada referred to in paragraph (1)(e).
|
133. (1) L’agent n’accorde la demande de parrainage que sur
preuve que, de la date du dépôt de la demande jusqu’à celle de la décision,
le répondant, à la fois :
…
e)
n’a pas été déclaré coupable, sous le régime du Code criminel :
(i) d’une
infraction d’ordre sexuel ou d’une tentative ou menace de commettre une telle
infraction, à l’égard de quiconque,
…
(2) Malgré l’alinéa (1)e), la déclaration
de culpabilité au Canada n’emporte pas rejet de la demande de parrainage dans
les cas suivants :
…
b)
le répondant a fini de purger sa peine au moins cinq ans avant le dépôt de la
demande de parrainage.
|
II. BACKGROUND
[3]
The
Applicant, a male Canadian citizen, was convicted on October 7, 2004 of three
counts of sexual assault. His probation was completed on January 6, 2007.
[4]
While
on probation, the Applicant was allowed to travel to India. While in India he married on March 19, 2006 and subsequently returned to Canada.
[5]
He
claims that it was only upon returning to Canada that he became aware that he
was unable to sponsor his wife because five years had not elapsed since his
sentence was completed.
[6]
The
Applicant then returned to India to be with his wife from August 2006 to April
15, 2007.
[7]
The
Applicant, having returned to Canada, filed an H&C application seeking to
obtain an exemption from the five-year bar. As part of the H&C application,
a psychological report was filed stating that the Applicant was suffering
severe emotional hardship as a result of being separated from his wife.
[8]
The
H&C application was denied on the basis that the H&C considerations did
not justify an exemption as they did not overcome the ineligibility due to the
commission of serious criminal offences.
[9]
The
Officer noted the Applicant’s grounds; that the marriage was genuine, that it
was conducted in accordance with Sikh culture and faith, that separation was
unreasonable and of undue hardship, that it would be difficult for the
Applicant to live in India having not done so for several years, and that
family reunification is a fundamental aspect of Canadian immigration policy.
The Officer specifically noted the findings in the psychological report.
[10]
The
Applicant raised two issues: (1) the insufficiency of the reasons, and (2) the
unreasonableness of the Officer’s conclusions.
III. ANALYSIS
A. Standard
of Review
[11]
The
standard of review of an H&C matter has been held to be reasonableness (Ahmad
v. Canada (Minister of Citizenship and Immigration), 2008 FC 646). Given
the highly discretionary nature of the decision, the Court must accord
deference to the factual findings and weighing of factors.
[12]
In
regard to the more specific issue of the adequacy of reasons, this is a matter
of procedural fairness to which the standard is correctness (Adu v. Canada (Minister of Citizenship and Immigration), 2005 FC 565). Even though Adu
was decided before Dunsmuir (Dunsmuir v. New Brunswick, 2008 SCC
9), it is the appropriate standard. The issue of adequacy of reasons has also
been described as a matter to be reviewed on its merits without any standard of
review. This is a matter of a distinction without a difference and results in
the same analytical framework.
B. Adequacy
of Reasons
[13]
As
this issue was argued first, I will deal with it first. The Respondent
supplemented the Record by submitting an affidavit which attempted to amplify
or explain the decision.
[14]
As
was held in several cases in this Court (Sklyar v. Canada (Minister of Citizenship and Immigration), 2008 FC 1226; Santhirasekaram v. Canada (Minister of Citizenship and Immigration), 2008 FC 1188; bin Abdullah v. Canada (Minister of Citizenship and Immigration), 2006 FC 1185), this is a tactic which
cannot generally be permitted. A decision must stand on its own. There may be
circumstances where it is necessary to set context or defend against
allegations of unfairness but a party may not supplement the very reasons, as
found in the decision and CAIPS notes, with additional reasons or explanations.
Two quotes are
sufficient to confirm this Court’s view of this matter:
11 While there may be instances where the reasons for the decision
are properly contained in not only the decision letter and the CAIPS notes but
also in an affidavit (see Hayama v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1643, 2003 FC 1305), the
Court is concerned when the evidence submitted post-filing of an application
for judicial review attempts to fill in gaps in the record of decision on the very
points in issue and does so by adding major elements to the Record. The attempt
to supplement the Record must be approached with caution when attempted by
either an applicant or a respondent. If admissible, the Court must assess its
weight. In this case, greater weight is given to the pre-application record
than to the affidavit.
Skylar
v. Canada (Minister of Citizenship and Immigration), 2008 FC 1226 at paragraph 11
15 This is not a situation where the officer is merely elaborating on
cursory reasons for an assessment provided in CAIPS notes. What the officer has
done with her affidavit is to provide an entire line of reasoning that is not
reflected anywhere in her notes. In all of the circumstances, I am thus
satisfied that little weight should be attributed to the explanation for the
decision provided by the officer in her affidavit.
bin
Abdullah v. Canada (Minister of Citizenship and Immigration), 2006 FC 1185 at paragraph 15
[15]
Therefore,
I give no weight to the affidavit. Indeed, an effort to buttress the reasons
with an affidavit could be considered an admission that the reasons were
inadequate.
[16]
That
said, the fact remains that the reasons were adequate. The Officer stated both
the positive and negative factors in this H&C. The Officer also articulated
the reasons for the decision sufficiently for the Applicant to know the basis
for the decision. The Officer was not required to write a treatise on the clear
intent of the Regulations and the difficulty of overcoming that presumptive bar
to sponsorship.
[17]
The
case of Adu, above, is distinguishable from this case. In Adu
there were nothing but positive factors listed and therefore it was impossible
to know what the negative factor was which resulted in the decision. Adu
is of no assistance to the Applicant.
C. Reasonableness
of Decision
[18]
The
Applicant’s position is that the Officer did not consider the totality of the
evidence and particularly did not consider the psychological report.
[19]
There
is no basis for this submission. The CAIPS notes disclose that all of the
points raised by the Applicant were considered. Specifically, the Officer noted
the psychological report and the finding of depression.
[20]
The
Applicant’s arguments in this Court – that there was a conditional sentence, a
single lapse of judgment, a desire to start a family – do not undermine the
reasonableness of this discretionary decision.
[21]
Considered
as a whole, this decision is reasonable. There was a rational basis for the
Officer’s choice of the preservation of the regulatory scheme over the personal
discomforts of the Applicant.
[22]
The
fact remains that the Applicant undertook marriage without regard for his
criminal convictions. His ignorance of the law is not something which should be
condoned to avoid a waiting period.
IV. CONCLUSION
[23]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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