Date: 20080304
Docket: IMM-2330-07
Citation: 2008 FC 296
Ottawa, Ontario, March 4, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
JASWANT
SINGH DHALIWAL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of the Immigration Appeal Division (the IAD) dated May 29, 2007, which
dismissed the appeal of the removal order against the applicant.
[2]
The
applicant requests that the decision be set aside and the matter be remitted to
a newly constituted panel of the IAD for re-determination.
Background
[3]
Jaswant
Singh Dhaliwal (the applicant) is a citizen of India. The
applicant first applied to Canada as a dependent to his mother, who was
being sponsored by the applicant’s sister as a member of the family class. On
January 13, 1994, an application for permanent residence was submitted for the
applicant. He was issued an immigration visa on May 25, 1994 and permanent
residence was granted on June 26, 1994. On August 8, 1995, the applicant
submitted a sponsorship application on behalf of his then fiancée, Ravinder
Kaur Danoa. On February 2, 1996, the applicant travelled to India and married
her at a temple in Parsrampur. The applicant alleged that this was the first
meeting between the two as the marriage had been arranged by a relative in Canada. On February
11, 1996, a marriage certificate was obtained in Jalandhar. The applicant
returned alone to Canada in February 1996. On March 6, 1996, an
application for permanent residence was submitted for Ravinder Kaur Danoa; it
was refused on June 24, 1997.
[4]
On
December 3, 1998, Ravinder Kaur Danoa was apprehended at Indira Ghandi Airport in New Delhi
attempting to board a flight to Canada with a fraudulent visa.
The applicant alleged that his wife’s father obtained the visa for his daughter
and that he had no prior knowledge of this. On December 11, 1998, an appeal
against the sponsorship refusal was allowed and on April 1, 1999, a second
application for permanent residence was submitted for Ravinder Kaur Danoa.
[5]
It
appears that some time prior to September 4, 2000, immigration officials
received a poison pen letter questioning the applicant’s identity and therefore
prompting two field investigations. The letter appears to have claimed that the
applicant was already married and had a daughter when his immigration
application to Canada was processed. Moreover, the letter alleged
that the applicant had assumed the identity of his younger unmarried brother to
qualify as a single dependent of his mother to gain entry into Canada, and that
the applicant had since “remarried” his wife.
[6]
On
September 4, 2000, Larry Caroll and Philip Lupul, immigration officials from
the Canada High Commission in New Delhi, conducted the first of
two field investigations in the village of Madhopur where the
applicant’s extended family was believed to have resided (the first
investigation). On October 12, 2000, a statutory declaration regarding the
findings of the first investigation was made (the first declaration). On March
11, 2002, a second field investigation of Madhopur was conducted (the second
investigation) by Gaynor Rent, then Third Secretary at the Canadian High
Commission in New
Delhi.
Both investigations turned up the same results. Namely, that the individual
living in Canada was Narinder
Singh Dhaliwal, whereas Jaswant Singh Dhaliwal resided in India and that Narinder
had assumed the identity of his younger brother Jaswant, in order to pose as a
never-married accompanying dependent of his mother.
[7]
Between
the two field investigations, the applicant’s wife’s application for permanent
residence was refused on February 5, 2001 on grounds of inadmissibility
pursuant to section 19 of the Former Act.
[8]
On
September 5, 2002, the applicant was reported inadmissible under section
40(1)(a) of IRPA. On September 19, 2002, the admissibility report was referred
for an admissibility hearing to the Immigration Division (ID). The ID found
that based on a balance of probabilities, the applicant who claimed to be
Jaswant Singh Dhaliwal, was really Narinder Singh Dhaliwal and that when he was
sponsored to come to Canada in 1991, he was already married to Ravinder Kaur
Danoa. As such, the ID determined that the applicant had misrepresented a
material fact in his application by assuming the identity of his younger
unmarried brother in order to be eligible for sponsorship under the family
class as a dependent of his mother. In conclusion, the ID found the applicant
to be inadmissible as per paragraph 40(1)(a) of IRPA. Consequently, an
exclusion order was issued on May 27, 2004.
[9]
The
Immigration Appeal Division (IAD) heard the appeal of the removal order on
August 9, 2006 and January 10, 2007. On May 29, 2007, the IAD found that the ID
decision was valid in law and that the applicant had misrepresented himself as
his younger brother in order to be added as a dependent to his mother’s application
for permanent residence and subsequently to obtain permanent residence status
in Canada. This is the
judicial review of the IAD’s decision.
Officer’s Decision
[10]
In
the decision dated May 29, 2007, the IAD rejected the applicant’s appeal of the
removal order made against him on May 27, 2004. The IAD identified the
determinative issue as whether the applicant had assumed the identity of his
younger brother in order to immigrate to Canada as a never-married
dependent son of his mother.
[11]
The
IAD stated that an evaluation of the evidence pertaining to the investigations
was pivotal to the ultimate determination. The IAD considered the applicant’s
submission that the evidence emerging from the investigations was erroneous,
but concluded that there was a slim likelihood that both field investigations
would yield similar results if the information was erroneous. The IAD noted
that in both investigations, several villagers spontaneously identified a photo
of the applicant as being Narinder Singh. Moreover, the villagers exhibited
familiarity with the details of the applicant’s family life such as the
location of his home, the fact that he was married, the fact that he had gone
abroad about six to seven years prior to 2000, and the fact that at that time
he had a daughter.
[12]
The
IAD considered the applicant’s submission that Arun Kumar, the interpreter used
during the investigations, was not fluent in Punjabi, and rejected it. The IAD
found that it did not accord with common sense that both investigative parties
would take as their interpreter someone who did not speak the language of the
village. Moreover, in the applicant’s brother’s testimony, he referred to the
interpreter as “the Punjabi person”. The IAD found that this patently
undermined any claim that the interpreter was not able to speak Punjabi. The
IAD found on a balance of probabilities that Arun Kumar was fluent in Punjabi
and able to communicate during both investigations.
[13]
With
regards to the statutory declarations of villagers recounting their earlier
answers to the investigators questions, the IAD found valid reasons for
preferring the villagers’ earlier statements. The IAD reasoned that villagers’
explanations for their “errors” were not very convincing.
[14]
The
IAD noted that when originally asked of his identity, the applicant’s brother
insisted that he was Jaswant Singh, but when he realized that the officials
questioning him were from the Canadian High Commission, he subsequently
insisted that his name was Narinder Singh. The IAD rejected the applicant’s
explanation that his brother did not understand the question being asked. The
IAD did not find that the applicant’s brother had provided a satisfactory
explanation for his apparent confusion about his own identity.
[15]
With
regards to the applicant’s marriage, the IAD found on a balance of
probabilities that the February 2, 1996 wedding between the applicant and Ravinder
Kaur Danoa was not their first and that at the time he immigrated to Canada, they were
already married. The IAD reached this conclusion based on consideration of the
following evidence:
- Statements
made by villagers, namely Amarjeet Singh and Gurmeet Kaur who had not
recanted their statements
- An
affidavit from the applicant’s wife’s brother sworn March 24, 1993 stating
that his sister was married at the time.
- An
affidavit from the applicant’s father-in-law sworn March 13, 1995 stating
that his daughter, Ravinder Kaur, was married at the time.
- Testimony
from the applicant’s brother stating that as his brother and his wives
have the same name, Ravinder Kaur, his father had nicknamed his wife
“Simroo”. This was not possible unless the applicant was married to
Ravinder Kaur before his father died which pre-dates the alleged February
2, 1996 wedding date.
[16]
With
regards to the applicant’s alleged older daughter, the IAD did not accept the
medical reports submitted by the applicant stating that the applicant’s wife’s
pregnancy in 2001 was her first. The IAD noted that the medical reports gave
conflicting birthdates for the applicant’s wife’s date of birth and that the
applicant’s wife had simply stated to the doctor that it was her first
pregnancy.
[17]
In
conclusion, having considered all the evidence, the IAD found that the
applicant had assumed his brother’s identity in order to immigrate to Canada. The IAD
found that the applicant’s actions were deliberate and intended to induce and
did induce an error in the administration of the Former Act. As such, the IAD
found the applicant to be in breach of paragraph 40(1)(a) of IRPA and
consequently inadmissible for misrepresentation.
[18]
The
IAD then proceeded to turn its attention to the question of humanitarian and compassionate
(H&C) considerations. The IAD was not of the view that the applicant
merited his appeal being allowed on H&C grounds. The IAD acknowledged that
the applicant had been a resident in Canada since 1994 and that he
was now fairly well established. However, the IAD found that but for the
deliberate misrepresentation, he would not be so placed. In conclusion, the IAD
found that there were insufficient H&C factors warranting the exercise of
special consideration being extended to the applicant.
[19]
On
this analysis, the IAD dismissed the applicant’s appeal of the exclusion order
made against him on May 27, 2004.
Issues
[20]
The
applicant submitted the following issue for consideration:
1. Did the Board err in
law by ignoring and misconstruing evidence and drawing inferences unsupported
by the evidence?
[21]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the IAD err in
failing to assess the applicant’s brother’s marriage in relation to the theory
that the applicant had assumed his brother’s identity in order to immigrate to Canada as a
dependent?
3. Did the IAD err in
finding that the translator was able to translate in Punjabi?
4. Did the IAD err in
determining that the applicant had assumed his brother’s identity in order to
gain access to Canada?
5. Did the IAD err in
its consideration of the H&C factors in this case?
Applicant’s Submissions
[22]
The
applicant submitted that the IAD’s conclusion that the applicant misrepresented
his identity and marital status was made without regard to the totality of the
evidence. It was submitted that the IAD’s decision ignores that the Minister’s
theory is fatally undermined by the evidence presented by the applicant. The
applicant argued that the IAD’s decision salvages part of the Minister’s
allegations, without analysis of the evidence undermining the remaining
allegations. The evidence referred to by the applicant in making this argument
included:
- Testimony
from the applicant and his brother to the fact that they had both married
women named Ravinder Kaur, but that these were two different women. The
applicant’s wife’s name is Ravinder Kaur Danoa and she has a daughter with
the applicant named Gurvir Kaur. The applicant’s brother’s wife’s is
Ravinder Kaur Hotti and she has a daughter with the applicant’s brother
named Jasdeep Kaur.
- DNA
evidence attesting to the paternity and maternity of both Guivir Kaur and
Jasdeep Kaur.
- A
medical report from Ravinder Kaur Danoa’s doctor stating that while she
was pregnant, she was examined and it was determined that the pregnancy
was her first.
[23]
The
applicant argued that two of the Minister’s major findings are absurd given the
evidence. Firstly, given that the applicant’s brother was already married and
had a child when the applicant immigrated to Canada, it is absurd to accept
that he assumed his brother’s identity to gain access to Canada as a non-married
dependent. The applicant submitted that the IAD’s failure to assess the
applicant’s brother’s marriage and how it conflicted with immigration
officials’ theory was an error. The applicant submitted that there was
affidavit evidence before the IAD attesting to the fact that the applicant’s
brother was married in 1988. This information undermines the central allegation
of immigration officials’ theory and should therefore have been addressed by
the IAD.
[24]
Secondly,
the Minister’s original theory was that the applicant had a child with Ravinder
Kaur prior to immigrating to Canada. The Minister first alleged that that
child was a daughter named Jasdeep Kaur. The applicant submitted that when DNA
evidence was produced to prove that the applicant was not Jasdeep Kaur’s biological
father, immigration officials adapted their theory stating that they did not
claim that the daughter in question was necessarily Jasdeep Kaur. The applicant
submitted that it was unreasonable for the IAD to accept the Minister’s
adaptation of the original theory. The applicant noted that no other name has
been specified for the alleged older daughter of the applicant.
[25]
The
applicant also took issue with alleged flaws made during the immigration
investigations. The applicant submitted that the following factual errors and
deficiencies were made in relation to the investigations:
- The
picture included as Annex “E” to the statutory declaration of Larry Caroll
(immigration official) shows a girl who is identified as the niece of the
applicant. However, the applicant testified that he is not related to this
girl.
- The
picture included as Annex “G” to the statutory declaration of Larry Caroll
(immigration official) shows a girl who is identified as Harvinder Kaur.
However, the applicant testified during cross-examination that this was in
fact Satinder Kaur.
- The
officer conducting the first investigation never testified.
- The
officer conducting the second investigation (Ms. Rent) testified that the
investigation was rather short, only about half an hour. She also
testified that she had no background information on the file, had no
specific recollections of the field investigation and that during the
process of the investigation, immigration officials already had a
hypothesis they were trying to establish.
[26]
The
applicant submitted that as he once lived in the village and knows the
villagers, his testimony should have been preferred over that of immigration
officials. Moreover, there is no evidence as to which identity documents of the
villagers were checked, if any were checked at all. The applicant submitted
that these matters raise serious doubts regarding the credibility and
trustworthiness of the manner in which the investigations were conducted.
[27]
The
applicant further submitted that the IAD erred in finding that Arun Kumar, the
translator used by immigration officials in their investigations, was fluent in
the Punjabi language. The applicant submitted that the affidavit of villagers
and the applicant illustrate that there were significant language barriers during
the immigration investigations. The applicant noted that there was no objective
evidence establishing that the translator was fluent in Punjabi. The applicant
also stated that his brother’s reference to the translator as “Punjabi person”
was made in the context of the translator’s race and not his language ability.
[28]
And
lastly, the applicant submitted that the IAD erred in concluding that there
were insufficient H&C factors to warrant the exercise of special
consideration given the extent of the applicant’s misrepresentation. It was
submitted that the IAD failed to consider the impact of the applicant’s removal
on his elderly mother.
Respondent’s Submissions
[29]
The
respondent submitted that the applicant has failed to demonstrate that the
IAD’s decision is patently unreasonable. It was submitted that the two separate
investigations resulted in the same conclusions. The IAD clearly identified the
evidence upon which those conclusions were based:
- Several
villagers spontaneously identified a photograph of the applicant as
Narinder, not as Jaswant;
- Villagers
located the applicant’s family home, knew that he was married, knew that
he had been abroad for six or seven years prior to the 2000 investigation,
and that at that time he had a daughter;
- Three
neighbours positively identified the applicant’s brother as Jaswant when
they took the investigators to the Dhaliwal home;
- Notarized
statements in support of the applicant from residents of the village
attesting that they were confused about the two brothers’ nicknames when
they made the identifications were not convincing;
- When
Larry Carroll (immigration official) met the applicant’s brother, he
identified himself as Jaswant. He later stated that he was Narinder when
he was questioned about his passport and whether he had travelled to Canada;
- The
applicant’s niece identified the applicant’s photograph as her uncle
Narinder who lived abroad;
- The
applicant did not know what test was performed on his wife to prove that
her first pregnancy was in 2001;
- The
medical reports regarding the applicant’s wife give different dates of
birth for her;
- The
applicant’s father-in-law swore in an affidavit that his daughter was
married in 1995, whereas the applicant stated that he married his wife in
1998; and
- The
applicant denied knowledge of his wife’s plan to come to Canada with a
stolen visa document.
[30]
With
regards to the applicant’s argument that Arun Kumar, the translator, was not
qualified to translate in Punjabi, the respondent submitted that the IAD did
not accept this argument as it would have been unreasonable for the
investigators to take someone who did not speak Punjabi as their interpreter.
Furthermore, the respondent noted that even the applicant’s brother identified
the translator as the “Punjabi person”.
[31]
The
respondent submitted that the applicant is essentially requesting that the Court
reweigh the evidence and render a new decision. This is not the role of this Court.
[32]
And
lastly, the respondent submitted that the IAD did not err in failing to
consider the effect of his deportation on his mother, as this was not argued
before the IAD. The onus is on the applicant to provide all evidence in support
of any H&C claim. The IAD rightly concluded that there were insufficient
factors to outweigh the applicant’s misrepresentation and disregard for
Canadian law.
Applicant’s Reply
[33]
The
applicant submitted that the appropriate standard of review in relation to the decision
of the IAD involving removal order appeals is reasonableness “essentially
because the decision is not protected by a full privative clause, is not a
polycentric one, relates to human interests and does not, insofar as the
possibility of rehabilitation factor is concerned, engage the Board’s expertise
(Khosa v. Canada (Minister of Citizenship and Immigration), 2007
FCA 24).
[34]
In
response to the respondent’s submissions, the applicant argued that simply
listing the findings of the investigation does not address the issues raised by
the applicant. The applicant also made the following clarifications. With
regards to the translator, the applicant submitted that several villagers
presented affidavit evidence attesting to translation problems. Moreover, the
applicant’s brother’s labelling of the translator as “Punjabi” is not
determinative. With regards to the little girl alleging to be the applicant’s
niece, the applicant submitted that the girl stated that the photo was of her
maternal uncle and therefore, the little girl could not have been Jasdeep Kaur.
The applicant also submitted that the fact that the applicant did not know the
type of medical procedure performed on his wife is not determinative.
Analysis and Decision
[35]
Issue
1
What is the appropriate
standard of review?
The applicant submitted that
the appropriate standard of review is reasonableness based on the authority of Khosa
above. The respondent appears to be arguing that the appropriate standard
of review is patently unreasonable, although they did not rely on any case in
particular in making this submission.
[36]
I
agree with the applicant that as per Khosa above, the IAD’s exercise of
discretion under paragraph 67(1)(c) of IRPA is to be reviewed on the standard
of reasonableness.
[37]
With
regards to whether the IAD considered the relevant factors when exercising its
discretion, this is reviewable on the standard of correctness (Canada (Minister of
Public Safety and Emergency Preparedness) v. Philip, 2007
FC 908 at paragraph 4).
[38]
Issue
2
Did the IAD
err in failing to assess the applicant’s brother’s marriage in relation to the
theory that the applicant had assumed his brother’s identity in order to
immigrate to Canada as a dependent?
The applicant submitted that
the IAD’s failure to assess evidence of his brother’s marriage in 1988 was a
reviewable error as this evidence undermined the Minister’s theory and
contradicted the IAD’s finding that the applicant had assumed his brother’s
identity in order to qualify as a single dependent of his mother in order to
gain entry into Canada.
[39]
Having
reviewed the IAD’s decision, I find that there is no assessment of this
evidence. The IAD failed to consider how or even if this evidence undermined
the Minister’s theory that the applicant had assumed his brother’s identity in
order to immigrate to Canada as a never-married dependent. The IAD’s
ultimate finding was that in 1994, when the applicant applied to immigrate to Canada, he was
already married and as such, assumed the identity of his brother in order to
qualify as a single dependent. Implicit in this conclusion is the finding that
the applicant’s brother was not married in 1994; otherwise, as the applicant
submitted, it would not have been to the applicant’s advantage to assume his
brother’s identity.
[40]
The
Minister also alleged that the applicant was already the father of a daughter
when he immigrated to Canada. There was DNA evidence before the Board
that the girl named Jasdeep Kaur was the daughter of the applicant’s brother
and his wife, and not the applicant’s daughter as initially alleged. This
evidence could also suggest that the applicant was not married with a child
when he applied to come to Canada. Again, this evidence was not discussed or
analyzed by the Board. It was merely mentioned.
[41]
In Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425, this Court
stated at paragraph 17:
[…]
the more important the evidence that is not mentioned specifically and analyzed
in the agency's reasons, the more willing a court may be to infer from the
silence that the agency made an erroneous finding of fact "without regard
to the evidence": Bains v. Canada (Minister of Employment and
Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's
burden of explanation increases with the relevance of the evidence in question
to the disputed facts.
[42]
In my opinion, the
above articulated principle applies to the present case. While the IAD
mentioned the applicant’s brother’s marriage and the DNA tests, it did not
assess this evidence in light of its ultimate finding that the applicant had
assumed his brother’s identity in order to immigrate to Canada as a never-married dependent. It was the job of the IAD to
analyze this evidence in light of the Minister’s theory and come to a decision.
It did not do this, causing it to make a reviewable error.
[43]
Because
of my finding on this issue, I need not deal with the remaining issues.
[44]
The
application for judicial review is therefore allowed and the matter is referred
back to a different panel of the IAD for re-determination.
[45]
Neither
party wished to submit a proposed serious question of general importance for
certification for my consideration.
JUDGMENT
[46]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred back to a different panel of the IAD for re-determination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27:
|
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.
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.
|
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.
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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