Date: 20070411
Docket: IMM-2750-06
Citation: 2007 FC 378
Ottawa, Ontario, April 11,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
CHARANJIT
KAUR KHAIRA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant purportedly married Mr. Khaira in India, then came
to Canada to marry Mr.
Bajwa and became a permanent resident in 1998. However, that latest marriage
collapsed when Mr. Bajwa learned that the Applicant was pregnant with Mr.
Khaira’s child. Shortly after her divorce, the Applicant returned to India,
again married Mr. Khaira and then returned to Canada to sponsor
him.
[2]
The
Applicant became the subject of a s. 44 Immigration and Refugee Protection
Act (Act) report based on her misrepresentation as to marital status when
she first entered Canada. The Immigration Appeal Division (IAD)
determined that the Applicant had misrepresented her marital status in order to
secure permanent residence and that a deportation order should be issued
against her. This is the judicial review of the IAD’s decision.
[3]
The
IAD found that the Applicant had become a permanent resident as a member of the
family class after being sponsored by her reputed spouse Mr. Bajwa. The IAD
held that she was, in fact, married to Mr. Khaira and had not divorced him when
she married Mr. Bajwa.
[4]
The
IAD considered each of the factors laid out in Chieu v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 3 as well as the best interests
of the child. It also found the Applicant not to be credible because of
inconsistent statements made and her inability to adequately explain the
appearance of Mr. Bajwa’s name on her child’s birth certificate.
[5]
It
is well accepted that the standard of review for credibility findings is patent
unreasonableness. The Respondent argued, and I concur, that the standard of
review in respect of weighing factors is unreasonableness.
[6]
The
Applicant argued that the IAD erred in its determination that she was married
to Mr. Khaira and therefore no misrepresentation occurred and that there were
insufficient reasons to establish that the IAD considered the best interests of
the child and the humanitarian and compassionate (H&C) considerations in
light of all the circumstances.
[7]
The
IAD’s finding that the Applicant was married to Mr. Khaira is a factual one.
The evidence comes from the Applicant herself. That finding is not patently
unreasonable. On the basis of that finding, it was not unreasonable to conclude
that the Applicant had misrepresented her marital status.
[8]
The
Applicant criticizes the IAD’s lack of analysis of best interests and H&C
factors, yet the Applicant put in almost no evidence with respect to these
issues. It is unreasonable to expect the IAD to engage in a hypothetical
analysis of H&C factors not advanced by the Applicant.
[9]
Based
on the material before the IAD including the fact that the child’s father was
in India (and would only be able to come to Canada if the Applicant’s
misrepresentation was successful), that the extended family was in India,
absent further and better or even any submission on H&C factors, the IAD’s
decision was reasonable.
[10]
For
these reasons, this judicial review will be dismissed. There is no question for
certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review will be dismissed.
“Michael
L. Phelan”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2750-06
STYLE OF CAUSE: CHARANJIT
KAUR KHAIRA
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: March
20, 2007
REASONS FOR JUDGMENT
AND
JUDGMENT: Phelan
J.
DATED: April
11, 2007
APPEARANCES:
|
Mr. Ranbir
Mann
|
FOR THE APPLICANT
|
|
Mr. David
Tyndale
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
MR. RANBIR S.
MANN
Barrister
& Solicitor
Toronto,
Ontario
|
FOR THE APPLICANT
|
|
MR. JOHN H.
SIMS, Q.C.
Deputy
Attorney General of Canada
Toronto, Ontario
|
FOR THE RESPONDENT
|
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