Date: 20090908
Docket: IMM-947-09
Citation: 2009 FC 853
Ottawa, Ontario,
September 8, 2009
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
CHOLARAM KAWALL TOTARAM
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Kawall Totaram was issued a deportation
order dated September 9, 2007, pursuant to subsection 36(1)(a) of the Immigration
and Refugee Protection Act, S.C . 2001 c. 27, as a result of his conviction
of having caused bodily harm while operating a motor vehicle while impaired.
He was also issued an exclusion order on the same day after a finding that he
had made a misrepresentation on an application to sponsor his spouse and as
such he was found to be a person described in subsection 40(1)(a) of the Act.
[2]
The Applicant appealed both orders to the
Immigration Appeal Division. He did not challenge the legal validity of either
order but asked the Panel to exercise its discretion and stay them. The Panel
denied the appeals. The Applicant seeks judicial review of that decision.
Background
[3]
Mr. Kawall Totaram is a citizen of Guyana. He was born on December 22, 1980.
He became a permanent resident of Canada on November 15, 1996, when at 15 he came to Canada as a dependent child of his father.
Since coming to Canada, Mr. Kawall
Totaram has worked steadily and developed a life here but he never obtained
Canadian citizenship. He currently lives with his mentally handicapped sister
who depends, in part, on him for assistance and meeting her daily needs.
[4]
On or about October 26, 2003, Mr. Kawall Totaram
was driving a motor vehicle with his brother-in-law as a passenger. He was impaired
and involved in an accident with a police cruiser, resulting in severe injury
and permanent brain damage to his brother-in-law and minor injury to the police
officer. Mr. Kawall Totaram was charged with impaired driving causing bodily
harm under s. 255(2) of the Criminal Code of Canada. He was released on
a promise to appear, and later plead guilty to the charge. On September 13,
2006, he was sentenced to 10 months imprisonment and 12 months probation.
[5]
Prior to Mr. Kawall Totaram’s conviction, he met
his spouse, a Guyanese citizen. On April 23, 2006, they were married. On
September 7, 2006, a week before his conviction, Mr. Kawall Totaram applied to
sponsor his wife, and submitted the necessary application. Section E, Question
16, of that application asks: ‘Have you been charged with an offence under an Act
of Parliament punishable by a maximum term of imprisonment of at least 10
years?’ Section 255(2) of the Criminal Code with which he had been
charged is an offence punishable by a maximum term of imprisonment of at least
10 years. The answer to this question on Mr. Kawall Totaram’s form was incorrectly
marked ‘No’.
[6]
On January 23, 2007, two inadmissibility reports
were prepared pursuant to subsection 44(1) of the Immigration and Refugee
Protection Act, and the reports were referred to the Immigration Division
for an inadmissibility hearing. At the hearing Mr. Kawall Totaram conceded
that he was indeed convicted of the charge in question, and that a
misrepresentation was made on his application to sponsor his spouse.
[7]
Consequently, the Immigration Division found
that there were reasonable grounds to believe that Mr. Kawall Totaram was
inadmissible on the grounds of serious criminality according to subsection
36(1) of the Act, and a deportation order was issued. The Immigration Division
also found that Mr. Kawall Totaram was a person described under subsection
40(1)(a), was thus inadmissible for misrepresentation, and issued an exclusion
order.
[8]
Pursuant to subsection 63(3) of the Act, Mr. Kawall
Totaram exercised his statutory right to appeal both orders to the Immigration
Appeal Division. A hearing was held before a Panel of the IAD on January 7,
2009. On February 5, 2009, the Panel rendered a negative decision rejecting
Mr. Kawall Totaram’s appeal.
[9]
The Panel stated that it had “carefully
considered all the evidence before it, including the oral testimony of the
appellant and his aunt Tooliah Latchman, the documentary evidence and the
Appeal Record, and the oral submissions of both counsels.” The Panel noted
that it was guided in its exercise of discretion by the non-exhaustive factors
outlined in Ribic v. Canada (Minister of Employment and Immigration),
[1985] I.A.B.D. No. 4 (QL) and Chieu v. Canada (Minister
of Citizenship and Immigration), 2002 SCC 3.
[10]
The Panel found the criminal conduct for which
Mr. Kawall Totaram was ordered deported to be very serious, but also noted that
he had plead guilty, and had respected the terms of his release on a promise to
appear pending trial, as well as the terms of his probation. The Panel noted
that Mr. Kawall Totaram had continued to work while serving his sentence. The Panel
adopted the submission of the Minister’s counsel that it “could reasonably have
considered him as a candidate for a stay of the removal order were it not for
the misrepresentation.” The Panel then turned to the issue of misrepresentation
which was the focus of its decision.
[11]
The Panel did not believe Mr. Kawall Totaram’s testimony
that the wife of an acquaintance from work had filled out the application for
him. Further, it did not believe his testimony that he had not read the form
before he submitted it. His evidence was that not having read the form he was not
aware of the need to answer a question regarding his pending criminal charge. The
analysis and reasoning of the Panel on this critical point is brief enough that
it is worth reproducing in full.
At the hearing, the appellant explained that he asked the wife of a
friend and co-worker to fill out the application as she had successfully filled
out others. She returned the application to the appellant and he mailed it without
reading it over. The panel does not believe the appellant. The panel notes
that the application is very simple to understand and does not require
complicated essay-type answers. The appellant, who missed graduating from
grade 12 in Ontario by one credit, certainly had the educational background to
answer questions in an application basically involving dates, addresses, and
yes or no answers. The panel cannot understand what benefit the appellant
obtained by having the application filled out by someone who could not even
spell Trinidad properly. Furthermore,
even if the appellant did not personally fill out the application, the panel
finds it implausible that he would have signed and mailed a document, so
important for the future of a newlywed couple, without first reading it over,
including the undertaking at section G. The person who allegedly filled out
the application was not called as a witness by the appellant. The panel finds
the appellant’s lame excuse shows a lack of remorse and the fact that he made a
serious misrepresentation while awaiting trial shows that he is a poor
candidate for a stay of the removal order and that the possibility of his
rehabilitation is low.
(footnotes omitted)
[12]
Given the nature of the misrepresentation, and
the fact that Mr. Kawall Totaram would have been ineligible to sponsor his
spouse had his criminal charge not been misrepresented, the Panel agreed with his
counsel that the misrepresentation was very serious.
[13]
The Panel noted the excellent work record of Mr.
Kawall Totaram in Canada, as well as the negative economic impact a deportation
to Guyana would have on him.
The Panel also noted that Mr. Kawall Totaram lives in a basement apartment at
his aunt’s home with his sister who is mentally challenged and who relies on
him to assist with her daily needs. It was her spouse who had been injured in
the accident and he left her shortly thereafter. However, the Panel noted that
Mr. Kawall Totaram’s sister would have some support from her aunt and cousins
were Mr. Kawall Totaram to be deported. The Panel also noted that Mr. Kawall
Totaram is bereft of close relatives in Guyana, but that he could “cleve” (sic) to his spouse and her
family for support, even though their relationship had faded considerably
during the three years he has been largely absent from her.
Issues
[14]
The Applicant raises five alleged issues:
1.
The Panel erred in engaging in speculation as
its only basis for its adverse credibility conclusion;
2.
The Panel erred in law failing to provide
reasons for its rehabilitation conclusion;
3.
The Panel erred in law in placing undue emphasis
on the circumstances leading to the removal order;
4.
The Panel erred in law in ignoring relevant
factors identified in Chieu and Ribic, including length of time
in Canada and the impact of such on the Applicant, and difficulties with return
to country of origin; and
5.
The Panel erred in law in failing to apply the
correct legal test to an assessment of whether humanitarian factors warranted
the grant of special relief, the Chirwa factors.
Analysis
[15]
In Canada (Citizenship and Immigration) v.
Khosa, 2009 SCC 12, the Supreme
Court of Canada noted that considerable deference was owed to the Panel, given
its broad discretionary mandate on these appeals, and that the reviewing
court’s function was not to reweigh the evidence. More specifically, the
Panel’s assessments of credibility should only be overturned if they are based
on irrelevant considerations or ignored important evidence given the fact that
the Panel has had the benefit of hearing from the Applicant directly.
[16]
In spite of counsel’s able and often spirited
submissions on these issues, she has failed to convince me that any are significant,
save for the first – whether the Panel erred in making its adverse credibility
finding concerning the Applicant. In light of my finding that the decision
must be set aside on the basis of the error made on the credibility finding, it
is not necessary to detail why the Applicant’s submissions on the other issues
fail. It is sufficient to state that I am of the view that on a reading of the
decision as a whole the Panel considered all relevant facts and applied the
proper test. The objections of the Applicant have more to do with the weighing
of the factors and I find that the Panel did consider all relevant facts.
[17]
The Applicant submits that the Panel’s determination
on credibility was based on speculation and was not an inference from
established facts. I am cognisant of the direction of the Supreme Court in Khosa
that the Panel’s assessment of credibility should only be overturned if it is
based on irrelevant considerations or if the Panel ignored important evidence
given the fact that it had the benefit of hearing from the Applicant directly.
In addition to those two circumstances, I am of the view that a credibility
finding cannot stand where it does not logically follow from the reasons
asserted as supporting it. I have concluded that the Panel’s credibility
determination does not follow from the reasons espoused by the Panel and that the
decision as a whole must therefore be set aside.
[18]
The Panel found the Applicant not to be credible
only with respect to two aspects of his testimony. It did not believe the
Applicant when he testified that the form was completed by the wife of a
co-worker and that he signed and mailed it without reading it.
[19]
The Panel found no other aspect of the
Applicant’s testimony not to be credible. In fact, his testimony in all other
respects appears to have been fully accepted by the Panel. Much of it was corroborated
by his aunt, the only other witness at the hearing. The evidence of a witness
is presumed to be truthful, unless there exists a valid reason to doubt it: Maldonado
v, Canada
(Minister of Employment and Immigration) (1979), 31
N.R. 34 (F.C.A.). One must ask what reasons the Panel offers to doubt the
Applicant’s evidence that the form was prepared by someone other than himself.
[20]
The Panel first notes that the form is “simple
to understand” and does not require “complicated essay-type answers”. Does it
logically follow that all persons with at least a Grade 12 education, such as
the Applicant, personally fill out all forms that are simple to understand and
that basically involve dates, addresses, and yes and no answers? I think not;
otherwise, as Applicant’s counsel noted, many immigration consultants, and some
lawyers would be without work. In my view, it does not logically follow that
because the Applicant could have filled out the form he did fill
out the form. All that follows from the fact that he could have filled out the
form is that he may have filled it out.
[21]
The only other reason the Panel offers to doubt
his testimony that he did not fill out the form was that “the panel cannot
understand what benefit the appellant obtained by having the application filled
out by someone who could not even spell Trinidad properly.” The Panel’s reference is to the fact that Trinidad was
spelled “Trinedad” in the submitted application. One might as easily ask what
benefit any literate applicant obtains from having “simple” forms filled out by
a consultant or lawyer. The fact that there may be no benefit to having
another fill out a form does not entail that it did not happen. Again, one
might question the benefit literate immigrants receive from having these simple
forms filled out by consultants and lawyers. Is it required that there in fact
be a benefit?
[22]
However, the Applicant in this case did provide
a response to the Panel’s question concerning a benefit. In fact, he provided
the same response twice. The first time was in the following exchange is found
in the transcript of the cross-examination by Minister’s counsel:
Q: Why would you ask a friend of your wife’s – friend’s wife
rather (inaudible)?
A: My friend told me – when I told my friend I got married
and I am sponsoring my wife and everything like that then he told me his wife
did a couple of people paperwork and everything went through okay,
everything went through fine. And I couldn’t go to my aunt because my aunt
was on vacation at the same time so I went to her. She helped me with it and I
gave her like my birth certificate, my passport, everything, all my
identification and everything. And same as my wife, all the information I got
I gave it to her and she never asked nothing.
I never read the
paper over or anything like that.
(emphasis added)
The second time
was in response to a question from the Panel member to the Applicant that was
asked during the course of the submissions to the Panel by the Respondent’s
counsel.
Q: So what was so complicated about these documents that she
had to fill them in? It’s so straightforward. Especially the application to
sponsor and undertake, it’s just filling in your name, your birth date, your
phone numbers.
A: Yeah. She – there was nothing difficult about it but at
that time she told – Danny told me she would fill quite a few people papers and
it went through no problem, the papers that filled out was successful.
Q: Because you can see, I don’t know am I mistaken, she even
spelled Trinidad wrong at question 11, is that how you spell Trinidad?
BY THE MINISTER’S COUNSEL
-
I’ll also point out there is another spelling
error (inaudible) the word technician on page 33.
BY THE PRESIDING MEMBER (to the Minister’s counsel)
Q: So page 27 Trinidad, and what page?
A: Page 33. The position of the technician or should it be
(inaudible).
Q: Oh yeah.
[23]
It is unfortunate that the Minister’s counsel
interjected before the Panel found out whether the Applicant knew how to spell Trinidad. If he knows the proper spelling of
the word then that would have supported his testimony that he neither drafted
nor reviewed the document before he signed it. The Panel did not request a
response to its question after counsel’s interruption. It should be pointed
out that the misspelling of the country in which the Applicant’s application
for permanent residency was processed was not material to the form under
consideration.
[24]
The Applicant’s aunt testified. Witnesses had
been excluded. The aunt corroborated the Applicant’s evidence that she was
absent on vacation when the application was prepared and sent in by her nephew.
She also confirmed that the document had been prepared by the wife of a friend
of the Applicant. No one asked how she knew that fact. Nonetheless, the Panel
made no adverse credibility findings regarding her testimony and she did
corroborate the Applicant’s evidence that it was prepared by someone other than
himself.
[25]
Most significantly, the evidence reproduced in
paragraph 22 does indicate the “benefit” the Applicant thought he was obtaining
by having his friend’s wife fill out the form. She had done so for others and
“and everything went through okay”. The Panel fails to give any consideration
to that perceived benefit – having someone with a track record of success fill
out the form; arguably the same perceived benefit clients expect when they go
to consultants and lawyers to have these forms prepared.
[26]
The Panel’s observation that there is no
perceived benefit from having someone else fill out the form may be of
relevance if the Applicant had sought out this person’s help. In fact, his
evidence was that it was his workmate who volunteered his wife’s services. He
did not seek her out to do the job for him. One presumes that if her services
had not been volunteered by his friend the Applicant would either have filled
the form out himself or have waited until his aunt returned from vacation.
[27]
The Panel also rejected the Applicant’s evidence
that he did not read the form as prepared by this friend’s wife before signing
and mailing it. The Panel states that it doubts this testimony because it
finds it to be “implausible that he would have signed and mailed a document, so
important for the future of a newlywed couple, without first reading it over.”
As was observed by counsel for the Applicant, there is a legion of cases
litigated in courts where one party attempts to resile from a contractual
commitment on the basis that he or she signed but did not read the document.
Many of the documents in these cases are equally as important to the litigant
as the spousal sponsorship application form was to Mr. Kawall Totaram. See as
an example Charlton v. Canada Post Corp., [2009] O.J. No. 233 (S.C.J.)
(QL), where the plaintiff, a vice-president of Canada Post, presumably having more
experience than this Applicant with legal documents, sought relief from a
Supplementary Executive Retirement Plan agreement that he had signed. His
defence was that he had signed it but not read it. In my view, it is not
impossible nor even improbable that an applicant who has given the
form-preparer what he believes to be all of the relevant documents and who he
understands has a track-record of success, would sign the form without reading
it. It is most certainly not implausible when the person is otherwise found to
be an honest and credible witness.
[28]
In this case the basis for the Panel’s
determination that it doubts the Applicant’s testimony with respect to the
preparation and signing of the form simply does not follow from the premise the
Panel states. Without more, for example, a finding that the Applicant
generally lacked credibility based on conflicts between the Applicant’s
testimony and the written documents or other witnesses, or based on his overall
demeanour, the manner in which he gave evidence, et cetera, the credibility
finding cannot stand. In this instance there was nothing more to support the
Panel’s determination and for this reason the decision must be set aside.
[29]
Neither party proposed any question for
certification.
[30]
It was agreed that the proper Respondent is the
Minister of Citizenship and Immigration and the parties consented to an Order
making that amendment to the style of cause.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The name of the Respondent in the style of cause
is changed to the Minister of Citizenship and Immigration;
2.
The decision of the Immigration Appeal Division
of the Immigration and Refugee Board dated February 5, 2009 is set aside and
referred to another Panel for determination; and
3.
No question is certified.
“Russel W. Zinn”
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