Docket:
IMM-1165-13
Citation:
2014 FC 445
Ottawa, Ontario, May 9,
2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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GURPREET SINGH BAJWA,
SADHU SINGH BAJWA AND
KULWANT KAUR BAJWA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
visa officer’s decision refusing to re-open Gurpreet Singh Bajwa’s visa
application file in order to extend the validity of his permanent residence
visa.
I.
Background
[2]
Mr. Bajwa is a citizen of India and was, at the material time, a dependent of the applicants Sadhu Singh Bajwa and Kulwant
Kaur Bajwa. The family had been sponsored to immigrate to Canada by Mr. Bajwa’s sister and her husband.
[3]
Permanent resident visas were issued to the
family on June 24, 2010. The visas were valid until December 31, 2010. A cover
letter addressed to Mr. Bajwa’s father explained the various steps that the
applicants were required to take in relation to these visas. Amongst other things,
the family was advised that they were required to notify the Canadian High
Commission of any changes in their family situation, in which case the visas
were to be returned to the Canadian High Commission.
[4]
The letter also stated that any criminal charges
against any of the visa applicants arising after the date of the visa
application had to be disclosed to Canadian immigration authorities before the
family left for Canada. In addition, they were advised that if a family member
was unable to travel to Canada prior to the expiration of the visa, they would
have to reapply for admission.
[5]
On June 18, 2010, when Mr. Bajwa was 23
years old, he was arrested and detained on charges of kidnap and rape. He says
that a family had been pressuring him to marry their daughter and bring her
with him to Canada. When he refused to do so, he says that he was falsely
accused of these crimes. Mr. Bajwa was imprisoned for some nine months while
he awaited trial, and he was ultimately acquitted of all of the charges in
March of 2011.
[6]
In the meantime, the family became concerned
that the visas would expire before Mr. Bajwa would be able to travel to Canada. Mr. Bajwa’s father has stated in his affidavit that he visited the Canadian
High Commission in New Delhi on two occasions in late 2010 in order to request
an extension to his son’s visa. He deposes that the first time they went, the
Commission was closed.
[7]
On the second visit they were told that they
could e-mail or write to the Commission, but that the visa could not be extended.
However, a visa officer at the Canadian High Commission in New Delhi has
provided affidavit evidence that it is “standard
procedure” for the Commission to document visits by an applicant such as
this in their computer system, and that that there is no record of any such a
visit by Mr. Bajwa’s father.
[8]
Mr. Bajwa’s father admits that he never
told Canadian immigration authorities about the charges that his son was
facing, nor did he explain why an extension to the term of the son’s visa was
required.
[9]
Rather than allow all of the family members’
visas to expire, Mr. Bajwa’s parents chose to travel to Canada on December 26, 2010, where they were subsequently landed. Mr. Bajwa remained in pre-trial
custody in India, and his visa expired on December 31, 2010.
[10]
At his trial in March of 2011, Mr. Bajwa’s
accusers withdrew their allegations and he was acquitted of the charges against
him. On April 18, 2011, the applicants’ Canadian counsel made a formal request for
an extension of Mr. Bajwa’s visa. This request was denied by a visa
officer on April 28, 2011. The reason given was that it was “not … possible to reopen our file and extend the visa of
Gurpreet Singh at this time”: see Bajwa v. Canada (Minister of
Citizenship and Immigration), 2012 FC 864 at para. 42, [2012] F.C.J. No.
931 (Bajwa #1).
[11]
In cross-examination, the officer evidently
explained that granting an extension was not possible “based
on standard office procedure” as provided for in the relevant policy
manual: Bajwa #1 at para. 43.
[12]
In Bajwa #1, Justice O’Keefe found that the
officer had fettered his discretion as the Policy Manual precluded any deviation
from standard practice when no such limitation existed in either the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 or the Immigration and Refugee
Protection Regulations, SOR/2002-227. Justice O’Keefe remitted the matter
to the Canadian High Commission for re-determination by another officer. It is
this re-determination decision that underlies this application for judicial
review.
[13]
Following Justice O’Keefe’s decision, the
applicants submitted updated forms and documents in connection with their
request for a visa extension. Mr. Bajwa was then interviewed by a
different visa officer. The visa officer explains in her affidavit that she did
this in order to approach the file in a “fair and
transparent manner”. She explains that she wanted to “determine the situation” and the sequence of events so
as to ascertain whether there were “compelling reasons”
to justify the exercise of her discretion to re-open the visa application.
[14]
During the interview with Mr. Bajwa, the
officer asked questions about the history of the permanent resident application
and actions that had been taken by Mr. Bajwa and his family in relation to
their application for permanent residence. Questions were also asked with
respect to the events giving rise to his arrest and his relationship with his
accusers.
[15]
In coming to the conclusion that the answers
provided by Mr. Bajwa were not credible, the officer identified
inconsistencies between what he had said about his relationship with his
accusers at the interview, what he stated in his affidavit, and what his
parents had said during the previous judicial review proceedings. The officer also
did not find it credible in the context of Punjabi culture, that the accusers
would “pressure” Mr. Bajwa into marrying a
woman when their families had never even been introduced.
[16]
The officer also found discrepancies between Mr. Bajwa’s
testimony and that of his parents with regards to their two alleged visits to
the Canadian High Commission. The evidence regarding the visits was vague and the
officer was concerned about the fact that there was no mention of these visits
in the Commission’s records, even though it is standard procedure that such a
visit would have been documented in the computer system. As a consequence, the
officer concluded that there was “insufficient evidence”
to demonstrate that the applicants had ever approached the Canadian High
Commission in New Delhi in order to seek an extension to Mr. Bajwa’s visa.
[17]
According to the officer’s reasons, it was “of particular concern” that the applicants “hired an agent at the beginning of their application,
consulted a lawyer in India and even hired a lawyer in Canada but did not
inform our office or actually ask for an extension in writing until AFTER
ACQUITTAL” [emphasis in original].
[18]
The officer was thus satisfied that the
applicants knew of their obligation to inform the Canadian High Commission of Mr. Bajwa’s
arrest. The officer was further satisfied that they could have contacted the Canadian
High Commission in order to inform them of Mr. Bajwa’s arrest, either
through a lawyer or an immigration consultant, and that they had chosen not to
do so.
[19]
As a consequence, the visa officer concluded that
the applicants had not met their onus of showing that there were compelling
reasons that would justify the exercise of her discretion to re-open Mr. Bajwa’s
visa application.
II.
Issues
[20]
The applicants raise three issues in this
application.
[21]
They argue firstly that the request for an
extension to the term of Mr. Bajwa’s visa was handled in an abusive manner
by Canadian immigration authorities. This is because the applicants were never
told that the real concern with respect to their first request for a visa extension
was that they were simply not believed by the visa officer originally
considering the request.
[22]
The applicants also say that the officer should
have put the inconsistencies in the evidence provided by the various members of
the family to Mr. Bajwa’s parents for explanation and that it was a breach
of procedural fairness to fail to do so.
[23]
Finally, the applicants say that the officer’s
decision was unreasonable.
III.
Has the Handling of the Visa Extension Request
been Abusive?
[24]
As was noted earlier, the reason given for the
first decision refusing to reopen Mr. Bajwa’s file was that it was not
possible to do so, as the relevant policy manual did not contemplate such a
course of action. It was on the basis of this decision that Justice O’Keefe
rendered his decision in Bajwa #1.
[25]
When the Certified Tribunal Record was produced
in connection with this application for judicial review, a letter from the
first visa officer to respondent counsel was included in the CAIPS notes. I am
assuming that this occurred through inadvertence. In any event, the respondent
has not asserted privilege over the contents of the letter or objected to the
applicants’ reliance upon it.
[26]
In this letter, the first visa officer explained
that the reason for the refusal of the initial request to re-open Mr. Bajwa’s
file was, in fact, the visa officer’s belief that Mr. Bajwa’s father had
knowingly failed to tell the Canadian High Commission about his son’s
situation, and had not returned the visas as instructed in the letter
accompanying the visas.
[27]
The letter goes on to advise counsel that if the
father had contacted the Canadian High Commission and returned the visas prior
to leaving for Canada, “we would have reopened the case”
and asked for proof of the son’s situation. The officer noted that if Mr. Bajwa
had been convicted, it would have rendered the whole family inadmissible to Canada.
[28]
The officer concluded by stating that since Mr. Bajwa’s
father “knowingly ignored the instructions provided to
him in our letter, I did not find it appropriate to reopen the case and process
the son’s application when the family was already in Canada”.
[29]
The reason for the refusal of the request to
reopen that are cited by the visa officer in his letter to counsel are quite
different than the reason that was provided to the applicants and to the Court
in the context of the application for judicial review heard by Justice O’Keefe.
Indeed, Justice O’Keefe specifically noted that there was no reason to believe
that the first visa officer’s decision was based upon the non-disclosure of the
criminal charges: see Bajwa #1 at para. 55. No satisfactory explanation
has been provided for this discrepancy, which is very troubling.
[30]
As the Supreme Court of Canada has
observed, transparency is one of the hallmarks of a reasonable decision: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47, [2008] 1 S.C.R. 190.
Moreover, simple fairness requires that an applicant be told the real reason
why an application is being refused.
[31]
However, the applicants have not
persuaded me that there was any bad faith on the part of the respondent in this
case. Good faith is presumed, and the onus for establishing bad faith is a
substantial one: St. Laurent (Ville) v.
Marien, [1962] S.C.R. 580 at 585, [1962] S.C.J.
No. 39.
[32]
As troubling as these events may be, I am also not persuaded that I should grant
this application for judicial review on this basis alone. As a result of
Justice O’Keefe’s decision, the new visa officer conducted a de novo review of the applicants’ request to reopen his application. She
appears to have come to her own conclusions with respect to the circumstances
surrounding the family’s failure to disclose the fact that Mr. Bajwa was
facing very serious criminal charges in India in a timely fashion.
[33]
As a consequence, any unfairness that may
have occurred in relation to the previous proceeding which culminated in the
hearing before Justice O’Keefe was cured through the re‑determination
process.
[34]
The real questions, then, are not how the earlier decision was reached, but whether the
requirements of procedural fairness were met in this second proceeding and
whether the officer’s decision was reasonable.
IV.
Were the Applicants Treated Unfairly in the Re-determination
Process?
[35]
While I appreciate that the decision at
issue is of considerable importance to Mr. Bajwa and his family, as the
applicants have acknowledged, the level of fairness owed to visa applicants is
relatively low. Moreover, once a decision is made in connection with a visa
application, there is no right to have the application re-opened, and a request
for re-opening involves the exercise of a visa officer’s discretion. If
anything, the level of fairness owed in such circumstances may be even lower
than that owed in connection with the original visa application.
[36]
Mr. Bajwa’s father was afforded with, and took
advantage of, the opportunity to provide information with respect to the
circumstances surrounding the arrest and imprisonment of his son in the context
of their original application for judicial review. He also had the chance to explain
the family’s reasons for failing to disclose his son’s situation to the
Canadian High Commission in a timely manner.
[37]
Thus the visa officer did have information from Mr. Bajwa’s
father before her, in the form of the father’s affidavit and his cross-examination
from the previous litigation. These materials address the very issues being
addressed by the officer in this proceeding. In the circumstances, there was no
obligation on the visa officer to go back to the father and give him a second
opportunity to provide the same information.
[38]
Moreover, the explanations that the father says
that he would have provided to explain the discrepancies between his story and
that told by his son seems to create further confusion and would have been
unlikely to shed additional light on the situation or resolve the visa
officer’s credibility concerns.
[39]
Counsel for the applicants suggested that Mr. Bajwa
could not have known that there was any obligation on him to notify the
Canadian High Commission, given that he was already in jail when the letter
notifying his parents of this requirement was sent. In the circumstances, it
was unfair for the visa officer to hold him accountable for any errors in
judgment that may have been made by his parents.
[40]
However, Mr. Bajwa was interviewed at some
length by the visa officer and was given a fulsome opportunity to explain what
had gone on. At no time did Mr. Bajwa ever deny being aware of his
disclosure obligations. Instead, Mr. Bajwa said variously that “we didn’t know what to do”, “we were
expecting my case to be finalized quickly”, and that when “we
realized that my court dates were being pushed we realized that the
visas were going to expire”. His use of the word “we” clearly suggests that he was part of the
decision-making process in relation to the handling of the visa application in
question.
[41]
There were also material discrepancies between the
information provided by Mr. Bajwa and that provided by his parents, both
with respect to central matters surrounding the parents’ efforts to seek an
extension to the visa in late 2010, and with respect to more peripheral matters
such as the circumstances giving rise to the criminal charges against Mr. Bajwa.
[42]
Given that Mr. Bajwa and his parents were all
parties to the visa application, I am not persuaded that the information
provided by each family member constituted extrinsic evidence or that it had to
be shared with the other members of the family, in order to give each them an
opportunity to respond.
[43]
Moreover, Mr. Bajwa, the person most directly
affected by the decision in issue, was told about the inconsistencies between
his story and that provided by his father, and he was afforded an opportunity
attend in person in order to address the visa officer’s concerns in this
regard.
[44]
Finally, the fact that Canadian immigration
authorities have elected not to take steps to strip Mr. Bajwa’s parents of
their permanent residence status as a result of their failure to comply with
their disclosure obligations does not render unfair the decision not to extend
the term of Mr. Bajwa’s visa.
[45]
The applicants have thus not persuaded me that they
were treated unfairly in the redetermination process.
V.
Was the Visa Officer’s Decision Reasonable?
[46]
The visa officer also found that Mr. Bajwa was not forthcoming with some of his answers to her questions and
that he was being evasive. The officer was obviously best situated to make that
assessment, and her findings in this regard should be accorded considerable
deference. Mr. Bajwa also
acknowledged that previous affidavits sworn by him contained misleading
statements.
[47]
I also do not accept the
applicants’ argument that Mr. Bajwa could not have
been expected to inform the Canadian High Commission of
information that was material to his family’s permanent residence application.
He was a college-educated adult who appears to have been fully aware that the
criminal charges against him put his family’s Canadian permanent residence
prospects in jeopardy. I also note that there is no interpreter’s certificate
appended to his affidavit, indicating that Mr. Bajwa speaks English.
[48]
That he was in jail through the validity period
of his visa did not make him unable to inform the Canadian High Commission of
the charges against him. He was in regular contact with a lawyer who could have
contacted the High Commission on his behalf, or Mr. Bajwa could himself
have written a letter to the Canadian High Commission.
[49]
I have previously discussed the frailties in Mr. Bajwa’s
father’s evidence regarding his efforts to advise Canadian immigration authorities
of his son’s circumstances. I would also note that the applicants have stated
that Mr. Bajwa’s brother-in-law in Canada was urging the family to notify
the Canadian High Commission of the situation, and no explanation has been
provided as to why the brother-in-law could not have sent an email or letter on
their behalf, as they were advised to do, if the family had truly had
difficulties communicating with the New Delhi office.
[50]
Moreover, Mr. Bajwa’s father had retained
the services of an agent to assist them with the family’s visa application. No
satisfactory explanation has been provided as to why no assistance was sought
from the agent when difficulties were encountered in contacting the Canadian
High Commission.
[51]
Given all of the problems identified by the
officer with the information provided by the family, the officer’s conclusion
that the family had consciously chosen not to tell the Canadian immigration
authorities about Mr. Bajwa’s criminal charges until after the parents
were landed in Canada and Mr. Bajwa’s criminal trial had been concluded
was one that was reasonably open to the officer on the record before her.
[52]
Mr. Bajwa had no right to have the term of
his expired permanent resident visa extended. Rather, the onus was on the
applicants to show that the circumstances warranted the exercise of the visa
officer’s discretion “in the interest of justice” and
“in unusual circumstances”: Kheiri v. Canada (Minister of Citizenship and Immigration) (2000), 193 F.T.R. 112 at para. 8, 8
Imm. L.R. (3d) 265. The applicants simply failed to discharge that onus.
VI.
Conclusion
[53]
For these reasons, the application for judicial
review is dismissed. I agree with the parties that the facts of this case are
unusual, and that it does not raise a question for certification.
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