Date: 20070308
Docket: IMM-3081-06
Citation: 2007
FC 268
Ottawa, Ontario, March 8, 2007
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
NAVDEEP
KAUR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Navdeep
Kaur seeks judicial review of the decision of the immigration officer who
rejected her application for permanent residence under the spouse or common-law
partner in Canada class based on a finding that
she was inadmissible for misrepresentation.
[2]
For the reasons
that follow, the Court concludes that the finding of the officer in respect of
the applicant’s inadmissibility is flawed and consequently the sanction
provided at subsection 40(2) of the Immigration and Refugee Protection Act,
S.C. 2001, c-21 (the Act) should not apply to the applicant. However, as agreed
by the parties, it is also evident that the applicant, who was not cohabiting
with her Canadian husband when the decision was made, did not and still does
not qualify in the aforementioned spousal class.
Background
[3]
Navdeep
Kaur is a citizen of India. She lived in Tracy, California from 2000 to 2004. She
allegedly filed a failed refugee claim in the United States prior to coming to Canada in November of 2004. In 2001,
she allegedly married, in a religious ceremony held in California, a Canadian citizen named Jaswant Khinda.
Mr. Khinda fathered her two children born in the United States.
[4]
The
applicant and her two sons Mannraj and Abhijot entered Canada illegally on November 12, 2004, to join Jaswant
Khinda who was then living in Surrey, British Columbia. She made a
claim for protected person status at the CIC office in Vancouver on December 29, 2004. At that time, she
filed information background forms for herself and her sons and then met with
an immigration officer for an assessment of the eligibility of her claim for a
referral to the Refugee Protection Division (RPD) in accordance with sections
99 to 101 of the Act (reproduced in Annex A).
[5]
During the
interview with the CIC officer, she described her marital status as “separated”
from Maninder Singh Khinda, an Indian citizen she allegedly married in India in 2000. She also claimed to have been
arrested by the Indian police when they came to arrest her father who was supposedly
a member of Shiromani Akali Dal (Mann Group). She claims to have been raped
during her detention. Her Indian husband was allegedly arrested, never to be
seen or heard from again. She indicated that she assumed that her husband had
been arrested because of her father’s involvement in the Mann Group.
[6]
There was contradictory
information about the father of her sons in the information background forms. Mannraj’s
form listed his father as Jaswant Khinda, a Canadian living in Surrey whereas
Abhijot’s form described Jaswant Khinda as an Indian living in Surrey. When asked to clarify the
issue, the applicant said that she did not know where that information came
from and mentioned that Jaswant Khinda was her American boyfriend who had left
her before she departed California, and that she did not know
his whereabouts.
[7]
In January
2005, she filed a Personal Information Form (PIF) based on a similar story. In
her application for permanent residence, she explained that she told her
Canadian lawyer that she had originally made up the story about her Indian
husband to bolster her claim in the USA
and had continued with the same story. In May 2005, upon her lawyer’s advice,
she withdrew her refugee claim without any explanation as to the reasons for
such withdrawal.
[8]
In June 2005,
she and Jaswant Khinda were married in a civil ceremony in Surrey. On June 26, a
departure order issued against the applicant on December 29, 2004, became a
deportation order. She failed to appear at her interview with Canadian Border
Security Agency (CBSA) on June 28 but met with CBSA on July 7 with her Canadian
husband. Later that month, she filed a pre-removal risk assessment application
(PRAA) based on risks allegedly resulting from her long absence from India. Her lawyer was careful to make no reference
to an Indian husband in the PRAA submissions. Shortly thereafter, in August,
she filed the application for permanent residence that is the subject of the
present application.
[9]
In March
2006, the PRAA application was rejected and the applicant was scheduled for
removal to India. She requested an
administrative stay until the decision was made in respect of her application
for permanent residence. Pursuant to the Spousal policy, however, she could not
benefit from such a stay because her application had been filed after her PRAA
application. She then made a motion to this Court for a stay based on an
application for leave and judicial review of the PRAA officer’s decision which was
dismissed. Thus, Navdeep Kaur was obliged to leave for India in April 2006.
[10]
It is in
this context that the immigration officer later assessed Navdeep Kaur’s
application for permanent residence.
[11]
In his
letter to the applicant dated May 15, 2006, the officer only refers to
paragraph 40(1)(a) of the Act (see Appendix A) in respect of specific
misrepresentations about her marital status and her refugee claim.
[12]
In his
notes consigned in a Report to file also dated May 15, 2006, the officer reviews
the information in CIC’s file and refers to the applicant’s explanations about
what she said in the past, her “real” marital status and the fact that her
relationship with Jaswant Khinda, the father of her two sons, is genuine. He
points to the fact that she states in her application that as of August 2005 they
had lived together for over three (3) and a half years.
[13]
The officer
also notes:
From the information on file,
I am satisfied Ms. Kaur is inadmissible to Canada for misrepresentation. She
misrepresented information as follows.
·
Entered Canada with false documents
·
Attempted
to remain in Canada by giving false information
to support her refugee claim (re: Maninder Singh Khinda)
·
Gave CIC
false information about “her husband” (she said Jaswant Khinda left her during
her 2nd pregnancy; elsewhere she said they’ve been together since
2001; both cannot be true)
[14]
Later,
under the heading “Decision and Reasons”, the immigration officer writes that
on the basis of the genetic reports and the opinion of a Dr. Karl Williams
which he accepts “this appears to have been a genuine family (that is not a
marriage of convenience)”.
[15]
He finds
that Mr. Khinda meets the requirements of a sponsor; however, Ms. Kaur’s lack
of status cannot be waived as she does not live in Canada anymore and requires the Minister’s
consent to return to Canada. Finally, he writes:
Further, Ms. Kaur is not eligible for
the Class or the Spousal Policy (of 18 Feb. 2005) because she is inadmissible
for misrepresentation, as described above.
The application is refused.
[My emphasis]
[16]
As can be
appreciated, there are significant differences between these reasons and the letter
actually sent to the applicant. Not only did the officer not refer to the fact
that her removal made her inadmissible to benefit from the Spousal policy but
the misrepresentations listed in the letter are much more limited than those
listed in the report. In the letter, there is no reference to false
documentation or to a misrepresentation as to the length of her cohabitation
with Jaswant Khinda.
[17]
Moreover,
there is no indication as to the basis on which the officer concluded that the
two misrepresentations listed in his letter of May 15 were material and capable
of inducing an error in the application of the Act as required by paragraph 40(1)(a).
Issues
[18]
In their
written submissions and at the hearing, the parties focused on the following three
issues:
i.
mootness;
ii.
whether
the misrepresentations of the applicant were material to the application
currently before the officer or to any prior decision or process;
iii.
whether
paragraph 40(1)(a) can apply to misrepresentations made in the past and
that have been identified and corrected by an applicant.
Analysis
[19]
The test
or principles applicable for determining if a matter is moot are set out in
detail by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989], 1 S.C.R. 342.
[20]
In the
course of its discussion, the Supreme Court of Canada notes:
As well, the inapplicability
of a statute to the party challenging the legislation renders a dispute moot: Law
Society of Upper Canada v. Skapinker, [1984] 1
S.C.R. 357.
[21]
The
parties are agreed that the applicant was not and is not an eligible member for
the purposes of the spousal class or the policy (no cohabitation with her
husband in Canada as required by subsection 124(a)
of the Immigration and Refugee Protection Regulations, SOR 2002-227). In
that sense, the matter is indeed moot.
[22]
However,
the applicant submits that there is still a “live controversy” because the
finding of inadmissibility for misrepresentation carries the sanction prescribed
at subsection 40(2) of the Act. More particularly, the applicant remains
inadmissible for a period of two years from the date of her removal. I agree.
[23]
The Court
will therefore review the validity of this particular finding.
[24]
As it will
become more apparent further on, there will be no need to comment on the third
issue raised by the parties. Indeed, the Court cannot determine from the
reasons and the decision on what basis the immigration officer found that the
two misrepresentations listed in his letter met the test set out in paragraph
40(1)(a). The arguments put forth by the respondent will be examined but
they are pure speculation and amount to an effort to rewrite the officer’s decision.
[25]
There is
no doubt that the conduct of the applicant was reprehensible. During the clause
by clause analysis of Bill C-11 that later became the Act, it was made clear
that several provisions were added or modified to enhance enforcement tools to
eliminate abuse of our immigration system.
[26]
Applicants
must answer questions put to them truthfully (s. 16 of the Act) and that
sanctions can result from non-compliance (for example s. 40 and 41 of the Act).
[27]
But that
does not mean that the applicant is not entitled to procedural fairness. The
fact that permanent residence status is a privilege and not a right does impact
on the content of the duty of fairness owed to the applicant but, at the very
least, she must be able to exercise her right to seek judicial review and the
Court must be able to determine whether or not the decision maker made a reviewable
error.
[28]
In most
cases, when the materiality and the potential impact of the misrepresentations
on the application of the Act are evident, the duty to give reasons can be
easily met. The reasoning is almost implicit. However, in some cases like this
one, the decision maker will be required to give some explanation as to how a
finding of misrepresentation was reached.
[29]
The
respondent argues that the marital status of the applicant was material to the
determination of whether the applicant’s relationship with Jaswant Khinda was bona
fide. Certainly, there was no misrepresentation in that respect before the immigration
officer reviewing the permanent residence application. By this time, Navdeep
Kaur had retracted her earlier false statements. The previous
misrepresentations could not have induced any error in the review of that
application. At that point, the most that can be said is that her credibility was
affected by her prior misrepresentations. However, it is evident that the immigration
officer did not make his decision on the basis of Ms. Kaur’s credibility. He
actually found that the marriage was genuine after adopting the independent
opinion and the two genetic reports of Dr. Williams.
[30]
There is
no doubt that the issue of marital status was relevant to the application but that
the past misrepresentations simply did not meet the criteria set out at paragraph
40(1)(a). There is no explanation in the decision as to how this test could
apply in respect of the application under review.
[31]
As to
whether such misrepresentations could be material and could have induced an
error in the prior application of the Act, once again, it is difficult to see
how the officer could reach such a conclusion. Again, there is absolutely
nothing whatsoever in the decision and the report of the officer that explains
his reasoning in that respect. Given the criteria set out in s. 101, the
marital status and the false Indian husband may have been relevant in the sense
that the officer who interviewed the applicant on December 29 asked questions
about this, but they were not material or could not induce an error in deciding
whether to refer the claim of the applicant to the RPD or not. The Court cannot
accept the respondent’s argument that without her Indian husband the applicant
had no claim. It is evident that in her story the persecution alleged was
linked to the activities of the applicant’s father.
[32]
In respect
of the refugee claim per se, it was never considered by the RPD. The
parties are agreed that at a very minimum for paragraph 40(1)(a) to
apply, the misrepresentations must have been considered (even if not acted
upon) in the application of the Act. The Court agrees that it is unlikely that the
legislator intended to discourage the withdrawal of inaccurate or misleading statements.
[33]
The
respondent finally argues that the misrepresentations in the PIF could have
induced an error in the assessment of the PRAA application even if they were
not referred to in the applicant’s submissions to the PRAA officer. However,
apart from including the PRAA process in his summary of the history of the applicant,
the immigration officer does not refer at all to the PRAA decision in his
report. The Court cannot construe his reference to the refugee claim as
referring to another decision made in a distinct process especially when one
considers that the applicant was very careful not to refer to her alleged
Indian husband in her PRAA application.
[34]
In my
opinion, none of the plausible explanations advanced by the respondent would
meet the standard of review of the patently unreasonable decision. Furthermore,
the Court is simply incapable of determining from the reasons given by the
officer on what basis he actually came to his finding that those
representations (marital status and refugee claim) met the criteria set out in
paragraph 40(1)(a).
[35]
In such
circumstances, the Court has no choice but to conclude that this specific
finding of inadmissibility is flawed and should not carry the consequences set
out in s. 40(2) of the Act. However, given that it is clearly not useful to
send this matter back for re-determination (mootness), the decision to refuse
the application will not be quashed.
[36]
My conclusion
in respect of the inadmissibility for misrepresentation should not be construed
in any way as indicating that the applicant did not breach the Act and become
inadmissible on that basis. This issue is not before the Court.
[37]
The
parties did not propose any question for certification in this case and the
Court is satisfied that this case turns on its own facts.
ORDER
THIS COURT ORDERS that:
1. The application is granted in
part. Although the decision to refuse the application for permanent residence
is confirmed, the particular finding that the applicant is inadmissible for
misrepresentation is set aside.
“Johanne
Gauthier”
ANNEX A
Immigration and Refugee Protection Act, S.C. 2001, c.
27 Loi sur l'immigration et la protection
des réfugiés,
L.R. 2001, ch. 27
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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;
(b) for being or having been sponsored by a person who is
determined to be inadmissible for misrepresentation;
(c) on a final determination to vacate a decision to
allow the claim for refugee protection by the permanent resident or the
foreign national; or
(d) on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances
set out in subsection 10(2) of that Act.
(2) The following
provisions govern subsection (1):
(a)
the permanent resident or the foreign national continues to be inadmissible
for misrepresentation for a period of two years following, in the case of a
determination outside Canada, a final determination of inadmissibility under
subsection (1) or, in the case of a determination in Canada, the date the
removal order is enforced; and
(b)
paragraph (1)(b) does not apply unless the Minister is satisfied that
the facts of the case justify the inadmissibility.
99. (1) A claim for refugee protection may be made in or
outside Canada.
(2) A claim for refugee
protection made by a person outside Canada
must be made by making an application for a visa as a Convention refugee or a
person in similar circumstances, and is governed by Part 1.
(3) A claim for refugee
protection made by a person inside Canada
must be made to an officer, may not be made by a person who is subject to a
removal order, and is governed by this Part.
(4) An application to
become a permanent resident made by a protected person is governed by Part 1.
100. (1) An officer shall, within three
working days after receipt of a claim referred to in subsection 99(3), determine
whether the claim is eligible to be referred to the Refugee Protection
Division and, if it is eligible, shall refer the claim in accordance with the
rules of the Board.
(2) The officer shall
suspend consideration of the eligibility of the person’s claim if
(a)
a report has been referred for a determination, at an admissibility hearing,
of whether the person is inadmissible on grounds of security, violating human
or international rights, serious criminality or organized criminality; or
(b)
the officer considers it necessary to wait for a decision of a court with
respect to a claimant who is charged with an offence under an Act of
Parliament that is punishable by a maximum term of imprisonment of at least
10 years.
(3) The Refugee Protection Division may not consider a
claim until it is referred by the officer. If the claim is not referred
within the three-day period referred to in subsection (1), it is deemed to be
referred, unless there is a suspension or it is determined to be ineligible.
(4) The burden of proving
that a claim is eligible to be referred to the Refugee Protection Division
rests on the claimant, who must answer truthfully all questions put to them.
If the claim is referred, the claimant must produce all documents and
information as required by the rules of the Board.
101. (1) A claim is ineligible to be
referred to the Refugee Protection Division if
(a)
refugee protection has been conferred on the claimant under this Act;
(b)
a claim for refugee protection by the claimant has been rejected by the
Board;
(c)
a prior claim by the claimant was determined to be ineligible to be referred
to the Refugee Protection Division, or to have been withdrawn or abandoned;
(d)
the claimant has been recognized as a Convention refugee by a country other
than Canada and can be sent or returned to that
country;
(e)
the claimant came directly or indirectly to Canada
from a country designated by the regulations, other than a country of their
nationality or their former habitual residence; or
(f)
the claimant has been determined to be inadmissible on grounds of security,
violating human or international rights, serious criminality or organized
criminality, except for persons who are inadmissible solely on the grounds of
paragraph 35(1)(c).
(2) A claim is not
ineligible by reason of serious criminality under paragraph (1)(f)
unless
(a)
in the case of inadmissibility by reason of a conviction in Canada, the
conviction is for an offence under an Act of Parliament punishable by a
maximum term of imprisonment of at least 10 years and for which a sentence of
at least two years was imposed; or
(b)
in the case of inadmissibility by reason of a conviction outside Canada, the
Minister is of the opinion that the person is a danger to the public in
Canada and the conviction is for an offence that, if committed in Canada,
would constitute an offence under an Act of Parliament that is punishable by
a maximum term of imprisonment of at least 10 years.
|
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;
b) être ou avoir été parrainé par un répondant dont
il a été statué qu’il est interdit de territoire pour fausses déclarations;
c) l’annulation en dernier ressort de la décision
ayant accueilli la demande d’asile;
d) la perte de la citoyenneté au titre de l’alinéa
10(1)a) de la Loi sur la citoyenneté dans
le cas visé au paragraphe 10(2) de cette loi.
(2)
Les dispositions suivantes s’appliquent au paragraphe (1) :
a) l’interdiction de territoire court pour les deux ans
suivant la décision la constatant en dernier ressort, si le résident
permanent ou l’étranger n’est pas au pays, ou suivant l’exécution de la
mesure de renvoi;
b) l’alinéa (1)b) ne s’applique que si le ministre
est convaincu que les faits en cause justifient l’interdiction.
99.
(1) La demande d’asile peut être faite à l’étranger ou au
Canada.
(2)
Celle de la personne se trouvant hors du Canada se fait par une demande de
visa comme réfugié ou de personne en situation semblable et est régie par la
partie 1.
(3)
Celle de la personne se trouvant au Canada se fait à l’agent et est régie par
la présente partie; toutefois la personne visée par une mesure de renvoi
n’est pas admise à la faire.
(4)
La demande de résidence permanente faite au Canada par une personne protégée
est régie par la partie 1.
100.
(1) Dans les trois jours ouvrables suivant la réception
de la demande, l’agent statue sur sa recevabilité et défère, conformément aux
règles de la Commission, celle jugée recevable à la Section de la protection
des réfugiés.
(2)
L’agent sursoit à l’étude de la recevabilité dans les cas suivants :
a) le cas a déjà été déféré à la Section de l’immigration
pour constat d’interdiction de territoire pour raison de sécurité ou pour
atteinte aux droits humains ou internationaux, grande criminalité ou
criminalité organisée;
b) il l’estime nécessaire, afin qu’il soit statué sur une
accusation pour infraction à une loi fédérale punissable d’un emprisonnement
maximal d’au moins dix ans.
(3)
La saisine de la section survient sur déféré de la demande; sauf sursis ou
constat d’irrecevabilité, elle est réputée survenue à l’expiration des trois
jours.
(4)
La preuve de la recevabilité incombe au demandeur, qui doit répondre
véridiquement aux questions qui lui sont posées et fournir à la section, si le
cas lui est déféré, les renseignements et documents prévus par les règles de
la Commission.
101.
(1) La demande est irrecevable dans les cas suivants :
a) l’asile a été conféré au demandeur au titre de la
présente loi;
b) rejet antérieur de la demande d’asile par la
Commission;
c) décision prononçant l’irrecevabilité, le désistement ou
le retrait d’une demande antérieure;
d) reconnaissance de la qualité de réfugié par un pays
vers lequel il peut être renvoyé;
e) arrivée, directement ou indirectement, d’un pays
désigné par règlement autre que celui dont il a la nationalité ou dans lequel
il avait sa résidence habituelle;
f) prononcé d’interdiction de territoire pour raison de
sécurité ou pour atteinte aux droits humains ou internationaux — exception
faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c)
— , grande criminalité ou criminalité organisée.
(2)
L’interdiction de territoire pour grande criminalité visée à l’alinéa (1)f)
n’emporte irrecevabilité de la demande que si elle a pour objet :
a) une déclaration de culpabilité au Canada pour une
infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans et pour laquelle un emprisonnement d’au moins deux ans a été
infligé;
b) une déclaration de culpabilité à l’extérieur du Canada,
pour une infraction qui, commise au Canada, constituerait une infraction à
une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans,
le ministre estimant que le demandeur constitue un danger pour le public au
Canada.
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Immigration and Refugee Protection Regulations, SOR
2002-227
Règlement sur l’immigration et la protection des réfugiés (DORS/2002-227)
|
124. A
foreign national is a member of the spouse or common-law partner in Canada
class if they
(a)
are the spouse or common-law partner of a sponsor and cohabit with that
sponsor in Canada;
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124. Fait partie de la catégorie des époux ou conjoints de fait au Canada
l’étranger qui remplit les conditions suivantes :
a) il est l’époux ou le conjoint de fait d’un répondant et
vit avec ce répondant au Canada;
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