Date: 20110126
Docket: IMM-808-10
Citation: 2011
FC 87
Toronto, Ontario,
January 26, 2011
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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AMANDIP KAUR RANU
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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 ORDER AND ORDER
[1]
Ms.
Amandip Kaur Ranu (the “Applicant”) seeks judicial review of the decision of
the Immigration Appeal Division (the “IAD”) of the Immigration and Refugee
Board (the “Board”). In its decision dated January 25, 2010 the Board found
that the Applicant was inadmissible to Canada. The Board determined that she had gained
permanent residence status in Canada under the family class on
the basis of an indirect misrepresentation, that is because her marriage
to Sukhdev Singh Hansra was not genuine.
[2]
The
Applicant is a citizen of India. In September 2001, she
married Mr. Hansra. Mr. Hansra sponsored the Applicant for permanent residence
status as a member of the family class, and the Applicant was landed on March
30, 2003.
[3]
Mr. Hansra
had previously been married to Ms. Kulwant Kaur, a first cousin of the
Applicant. The Hansra-Kaur marriage ended in divorce in June 2001 although it
appears that these two people continued to live in an intimate relationship,
leading to the birth of a child on December 2, 2002.
[4]
The
Applicant and Mr. Hansra separated two months after she had arrived in Canada, that is after the Applicant
discovered the existence of Mr. Hansra’s child. The Applicant and Mr. Hansra
were divorced effective September 16, 2004.
[5]
The
Applicant’s friends encouraged her to consider a man named Maninderjit Singh
Ranu as a potential partner. Mr. Ranu and the Applicant exchanged photographs
and letters, and met one another’s family. They were married on March 23, 2005.
In June 2005, the Applicant sponsored Mr. Ranu as a member of the family class,
for permanent residence in Canada.
[6]
On June
13, 2006, an Immigration Officer (the “Officer”) interviewed the Applicant and
Mr. Hansra concerning alleged misrepresentations regarding the genuineness of
their marriage. The Officer did not find her to be credible about her
relationship with Mr. Hansra and referred the Applicant for an inadmissibility
hearing pursuant to subsection 44(2) of the Immigration and Refugee
Protection Act S.C. 2001, c. 27 (the “Act”).
[7]
In a
decision dated May 13, 2008, the Immigration Division found that the
Applicant’s marriage to Mr. Hansra to be one of convenience, constituting a
misrepresentation. An Exclusion Order was made against the Applicant the same
day.
[8]
The
Applicant appealed this decision before the Board, pursuant to subsection 63(3)
of the Act. Both she and her former husband, Mr. Hansra, testified before the
Board. The Board found that the Applicant may have believed that her marriage
to Mr. Hansra was genuine but nonetheless, the marriage was one of convenience.
It found that the marriage of convenience constituted an indirect
misrepresentation by the Applicant on her application for permanent residence, so
she was found inadmissible pursuant to paragraph 40(1)(a) of the Act. The Board
also found that there were insufficient humanitarian and compassionate
considerations to warrant relief under paragraph 67(1)(c) of the Act.
[9]
Three
issues arise in this application for judicial review:
What is the applicable standard of review?
Did the Board make a
reasonable conclusion regarding the genuineness of the Applicant’s marriage to
Mr. Hansra?
Did the Board provide
inadequate reasons?
[10]
The first
matter to be addressed is the applicable standard of review. In Dunsmuir v.
New Brunswick, [2008] 1 S.C.R. 90, the Supreme Court of Canada said that
there are only two standards of review by which decisions of statutory
decision-makers can be reviewed, that is correctness for questions of law and
procedural fairness and reasonableness for findings of fact and questions of
mixed fact and law.
[11]
In Dunsmuir at para. 47,
the Supreme Court held that the
standard of reasonableness applies to both the decision-making process and the
outcome of the decision:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[12]
The key issue
in this proceeding is the genuineness of the Applicant’s marriage to Mr.
Hansra. This is a question of mixed law and fact, having regard to paragraph
40(1)(a) and paragraph 67(1)(c) of the Act, which read as follows:
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40.
(1) A permanent resident or a foreign national is inadmissible for
misrepresentation
(a)
for directly or indirectly misrepresenting or withholding material facts
relating to a relevant matter that induces or could induce an error in the
administration of this Act;
…
67.
(1) To allow an appeal, the Immigration Appeal Division must be satisfied
that, at the time that the appeal is disposed of,
…
(c)
other than in the case of an appeal by the Minister, taking into account the
best interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
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40.
(1) Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
a)
directement ou indirectement, faire une présentation erronée sur un fait
important quant à un objet pertinent, ou une réticence sur ce fait, ce qui
entraîne ou risque d’entraîner une erreur dans l’application de la présente
loi;
…
67.
(1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé
:
…
c)
sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de l’affaire, la prise de mesures
spéciales.
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Accordingly, the applicable standard of review is
reasonableness.
[13]
Turning to
the second issue in this proceeding, the Board concluded that the marriage
between the Applicant and Mr. Hansra was not genuine. The Board’s reasons
contain a number of inconsistencies in reaching that conclusion. For example,
at paragraph 9, the Board finds the Applicant’s testimony in regards to the
arrangement of her marriage to Mr. Hansra to be “implausible and lacking in credibility”,
but then, at paragraph 16, finds that the Applicant is credible.
[14]
The Applicant’s
credibility is addressed again at paragraph 24, where the Board concludes that
it was plausible that she intended to stay married to Mr. Hansra after she
arrived in Canada. The Board goes on to
conclude at paragraph 25 that the Applicant was likely unaware of the true
nature of her marriage to Mr. Hansra. In my opinion, these statements are
contradictory, and render the Board’s decision unintelligible. According to Dunsmuir,
an unintelligible decision does not meet the standard of reasonableness.
[15]
The next
issue is whether the Board’s reasons are adequate, a matter of procedural
fairness that is subject to review on the standard of correctness. In VIA
Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25
(C.A.), the Federal Court of Appeal held at para. 22 that:
The obligation to provide adequate
reasons is not satisfied by merely reciting the submissions and evidence of the
parties and stating a conclusion. Rather, the decision maker must set out its
findings of fact and the principal evidence upon which those findings were
based. The reasons must address the major points in issue. The reasoning
process followed by the decision maker must be set out and must reflect
consideration of the main relevant factors.
[16]
At paragraph
22 of its reasons, the Board made the following findings:
In the panel’s view, the evidence of an
intimate relationship with the witness’ [Mr. Hansra’s] first wife after having
married the appellant is evidence that supports a finding that the marriage to
the appellant was not genuine. This together with the evidence of a familial
connection between the appellant and Sukhdev Singh Hansra’s first wife, the
appellant’s family’s inadequate background check of Suckdev Singh, the brief
nature of the marriage and lack of evidence in regard to any attempts to
reconcile support a finding of a marriage of convenience.
[17]
The
Board does not explain how or why the facts listed in paragraph 22 “support a
finding of a marriage of convenience”. In my opinion, it is not clear why those
facts support the Board’s conclusion, particularly in light of its other
conclusion that the Applicant was believable in her evidence that she intended
to remain married to Mr. Hansra. As stated in VIA Rail, “the reasoning
process followed by the decision maker must be set out”. In my opinion, the
Board failed to show its reasoning process, and provided inadequate reasons.
[18]
This
application for judicial review is allowed. The parties did not propose a
question for certification.
ORDER
THIS COURT ORDERS that the application for judicial
review is allowed and the decision of January 25, 2010 is quashed. The matter
is remitted to another panel for determination. There is no question for
certification arising.
“E. Heneghan”
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