Date: 20080415
Docket: IMM-2007-07
Citation: 2008 FC 486
Vancouver,
British Columbia, April 15, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
NEERU WALIA
GEETA RANI RAIKHYWALIA
VIPAN KUMAR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mrs.
Neeru Walia, Mrs. Geeta Raikhywalia and Mr. Vipan Kumar seek judicial review of
a decision of the High Commission of Canada, New Delhi, India, dated March 1,
2007 in respect of a decision made by an Immigration Officer (the
“Officer”) who determined that Mrs. Geeta Raikhywalia and her son, Mr. Vipan
Kumar (collectively the “Applicants”) are inadmissible to Canada for directly
or indirectly misrepresenting or withholding material facts contrary to
paragraph 40(1)(a) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”). On
the basis of the alleged misrepresentation, the Applicants’ application for
permanent residence in Canada
was denied.
[2]
The
Officer’s decision set forth the following facts as constituting the
misrepresentation:
Section 40(1)(a) of the Immigration
and Refugee Protection Act states that a foreign national is inadmissible
for misrepresentation for directly or indirectly misrepresenting or withholding
material facts relating to a relevant matter than induces or could induce an
error in the administration of this Act. Section 40(2)(a) of the Immigration
and Refugee Protection Act specifies that 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).
You and your son, Vipan Kumar,
misrepresented the following material facts:
You stated in your application that you
were divorced and did not cohabitate anymore with Ashok Kumar Raikhywalia. On
August 9, 2006, you and your son were interviewed at the Canadian High
Commission in New
Delhi. During
the interview you re-stated that you were not anymore in cohabitation with
Ashok Kumar Raikhywalia. Your son made the same statement.
On September 28, 2006, officers from the
High Commission visited your village and your house and discovered that you
were still in cohabitation with Ashok Kumar Raikhywalia.
On November 14, 2006, a letter was sent
to you to give you the opportunity to address our concerns about your
misrepresentation. Your response to this letter dated 5 December, 2006 did not
provide any information to dissipate our concerns.
I reached the determination while
reviewing the evidence mentioned above. The misrepresentation or withholding of
this/these materials fact(s) induced or could have induced errors in the
administration of the Act because it could have affected you(sic)
medical admissibility status.
As a result, you and your son, Vipan
Kumar, are inadmissible to Canada for a period of two years
from the date of this letter.
[3]
The
consequence of this decision is that the Applicants are inadmissible to Canada for a period
of two years, pursuant to paragraph 40(2)(a) of the Act.
[4]
The
Applicants argue that the Officer erred in reaching her conclusion as to the
alleged misrepresentation because there was no evidentiary basis to
support the finding that Mrs. Raikhywalia was cohabiting with Ashok Kumar
Raikhywalia, her former husband. The record shows that the former husband had
previously submitted an application for permanent residence in Canada that was
rejected on the grounds that he was medically inadmissible.
[5]
In
the course of the hearing, counsel for the Minister of Citizenship and
Immigration (the “Respondent’) argued that Mrs. Neeru Walia should be
removed as an “Applicant” since she has no standing to bring the within
application. Mrs. Walia, as a Canadian citizen, is not seeking any status under
the Act and her only “interest” in this application is as a family member. I
agree with the submissions of the Respondent in this regard and Mrs. Walia will
be removed as a party.
[6]
The
heart of the matter is whether the Officer committed a reviewable error in
concluding that the Applicants had made material misrepresentations with
respect to the continuing co-habitation of Mrs. Raikhywalia with Mr.
Raikhywalia, notwithstanding the fact that she had divorced him, as documented
in the Tribunal Record. In light of the recent decision of the Supreme Court of
Canada in Dunsmir v. New
Brunswick, 2008 SCC 9, the appropriate standard of
review in this case is reasonableness.
[7]
The Officer’s finding as to the making of a
material misrepresentation within the scope of paragraph 40(2)(a) of the Act is
grounded in the finding that Mrs. Raikhywalia continues to cohabit with her
former husband. The question of “cohabitation”, in my opinion, means more than
simple shared residence, if that is indeed the situation here. The word
“co-habit” has been interpreted as meaning a “marriage-like” relationship
characterized by the features of financial interdependence, a sexual
relationship, a common principal residence, mutual obligations to share the
responsibility of running the home and the “expectation each day that there be
continued mutual dependency”; see Bellis v. Innes (1980), 2 R.F.L. (2d)
(B.C. Co. Ct.). The evidence in the record here falls short of establishing
these facts. I am not satisfied that the decision of the Officer meets the
standard of reasonableness.
[8]
I
note further that the Officer’s concerns about future attempts by the
Applicants to sponsor the former husband to Canada are, at the
moment, speculative.
[9]
In
the result, the Application for judicial review is allowed, the decision of the
officer is quashed and the matter is remitted for re-determination by a
different officer. There is no question for certification arising.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
- The
Application for judicial review is allowed, the decision of the Officer is
quashed and the matter is remitted for re-determination by a different
officer. There is no question for certification arising.
- Neeru Walia is
removed as a party and the style of cause will be amended accordingly as follows:
BETWEEN:
GEETA RANI RAIKHYWALIA,
VIPAN KUMAR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
“E.
Heneghan”
Email this Content