Dockets: IMM-1478-14
IMM-3931-13
IMM-3932-13
Citation:
2015 FC 157
Ottawa, Ontario, February 6, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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HARPREET KAUR DHALIWAL
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter and Background
[1]
The Applicant’s appeal from an exclusion order
was dismissed by the Immigration Appeal Division [IAD] of the Immigration and
Refugee Protection Board [Board]. Pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], the Applicant
now applies for judicial review of that decision (Court File No. IMM‑1478-14)
and of two interlocutory rulings by the IAD that rejected her claims of issue
estoppel (Court File No. IMM-3931-13) and inadequate interpretation (Court File
No. IMM-3932-13). This Court ordered that these three applications for judicial
review be heard together.
[2]
The Applicant seeks slightly different relief in
each application. In the issue estoppel application, she asks the Court to set
aside the decision and allow the application outright, or alternatively, return
it to the IAD and direct that issue estoppel applies. In the inadequate
interpretation application, the Applicant requests that her earlier testimony
be struck from the record and that her evidence be heard again by another
panel. In the merits application, the Applicant seeks an order setting aside
the decision and returning the matter to a different member of the IAD with a
direction that the case be re-determined in accordance with the law.
[3]
The Applicant is a woman from India who, on January 14, 2001, married a Canadian citizen named Harlakhbir Dhaliwal. Shortly
thereafter, Mr. Dhaliwal sponsored the Applicant’s application for permanent
residence in Canada. The sponsorship application was initially refused because
a visa officer was not satisfied that the Dhaliwals’ marriage was genuine, but
Mr. Dhaliwal appealed that decision to the IAD on May 2, 2002. With the consent
of the Minister of Citizenship and Immigration [MCI], the IAD ordered on
November 4, 2002, that the refusal of the sponsorship application was invalid
[the 2002 Decision] and the Applicant became a permanent resident of Canada on July 24, 2003.
[4]
About a month later, Mr. Dhaliwal sought a
divorce from the Applicant in the British Columbia Supreme Court [BCSC],
claiming that he and the Applicant had been separated since February 28,
2001. The Applicant did not defend the divorce action and their marriage was
dissolved on November 29, 2003. The Applicant claims that she did not learn
about the divorce until October, 2006. The Applicant later sought (after the
exclusion order referred to below) to have this divorce set aside, but her
application to the BCSC was dismissed by that court in reasons rendered on July
31, 2013 (see: Dhaliwal v Dhaliwal, 2013 BCSC 1376, 36 RFL (7th) 397 [Dhaliwal
(BCSC)]).
[5]
On February 25, 2007, the Applicant married
Navdeep Singh, a man who came to Canada as a temporary foreign worker employed
by a first cousin of the Applicant’s father. The Applicant and Mr. Singh have
had two children together, both of whom were born in Canada.
[6]
Mr. Singh lost his status in Canada, but the Applicant applied to sponsor him on September 4, 2007, declaring that January 22,
2004, was the applicable date of her divorce and separation from her first
husband. The discrepancies between that date (January 22, 2004) and the date of
separation stated in the divorce proceedings in the BCSC (February 28, 2001)
triggered a review of the Applicant’s file by Citizenship and Immigration
Canada [CIC]. On July 8, 2009, an immigration officer at CIC Mississauga
decided that the Applicant’s first marriage was “only
entered into for Harpreet Kaur Dhaliwal to gain entry into Canada as a permanent resident.” Pursuant to subsection 44(1) of the Act, the officer
therefore recommended that Ms. Dhaliwal be directed to an admissibility hearing
for misrepresentation contrary to paragraph 40(1)(a) of the Act.
[7]
Pursuant to subsection 44(2) of the Act,
the Minister of Public Safety and Emergency Preparedness [MPSEP] then referred
the matter to the Immigration Division of the Board [IDB], which ultimately
agreed and issued an exclusion order on December 21, 2010. The IDB found that
the Applicant’s “marriage to Harlakhbir Singh Dhaliwal
was not genuine and was entered into for the purpose of securing permanent
residence in Canada,” which meant that she violated paragraph 40(1)(a)
of the Act since misrepresenting “the bona fides
of the marriage induced an error in the administration of the Act.”
[8]
The Applicant appealed the IDB’s decision to the
IAD. After she gave her evidence in Punjabi at a hearing on July 30, 2012, the
Applicant obtained new counsel. Among other things, her new counsel made two
interlocutory applications: one contended that the 2002 Decision estopped the
Minister from now impugning the genuineness of the Applicant’s first marriage;
and the other argued that the interpretation of the Applicant’s evidence at the
July hearing was faulty.
II.
The Decisions under Review
A.
The Interlocutory Decisions
[9]
The IAD disposed of both interlocutory
applications in reasons dated May 17, 2013 [2013 Decision].
[10]
The IAD rejected the Applicant’s argument that
issue estoppel applied to preclude any question about the genuineness of her
marriage to Mr. Dhaliwal. In its view, the 2002 Decision was about whether the marriage
was genuine, while the present proceeding was about whether the Applicant
misrepresented that it was genuine. Although these were related questions, the
IAD was not satisfied that it was the same issue since different considerations
are engaged (citing Ramkissoon v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 971 (QL) at paragraph 8, 6 Imm LR (3d) 223 (TD)
[Ramkissoon]). Moreover, the 2002 proceeding was between the Applicant’s
sponsor and the MCI, whereas the 2013 proceeding was between the Applicant and
the MPSEP. The IAD thus found that the parties were not the same and,
consequently, the pre-conditions to issue estoppel were not met. The IAD
further observed that it would undermine Parliament’s intent relating to
section 40 of the Act if a previous IAD finding that a marriage was
likely genuine prevented later panels of the IAD from deciding whether there
had been a material misrepresentation with respect to that issue.
[11]
With respect to the interpretation issue, the
Applicant had supplied a transcript of the proceedings prepared by Ms. Johar
that included translations of everything said in Punjabi by both the Applicant
and the interpreter [Johar Transcript]. The Applicant identified a number of
allegedly problematic errors, but the IAD was “satisfied
that they did not have a significant impact on the proceedings, nor did they
cause any significant prejudice to the appellant.” The IAD also did not
consider the interpreter’s failure to fully interpret some exchanges between
the IAD member and the Applicant’s then-counsel to be problematic. Ultimately,
the IAD member found that oral interpretation will always be imperfect, but it
is adequate so long as there is linguistic understanding, and he was satisfied
that such understanding was present. The IAD thus denied the Applicant’s
request to re-hear her evidence.
B.
The Merits Decision
[12]
In reasons dated February 6, 2014, the IAD
refused the Applicant’s appeal.
[13]
The IAD disbelieved the Applicant, ultimately
finding that she did not intend to live with her sponsor as husband and wife
when she came to Canada. Rather, the IAD believed the Applicant’s former
husband and sponsor when he testified that they had never consummated the
marriage and that the Applicant told him that she did not want to be his wife
as soon as she arrived in Canada. Since he was legally and culturally
responsible for her, however, he put the Applicant up with his parents in Kelowna, British Columbia, for a while, but he moved into his business address for the
duration of her stay there.
[14]
The IAD gave a number of reasons for doubting
the Applicant’s story that she thought she was in a valid marriage until
October, 2006. First, she said that she could read English well in her
application for permanent residence, and she was served with the divorce papers
shortly after arriving in Canada. A few months later, on January 22, 2004, she
departed for a year-long trip to India without her husband, and when she
returned to Canada in January, 2005, she went to live with her father’s first
cousin in Brampton, Ontario. Although she claimed that her sponsor kept in
touch with her up until this time and promised to come pick her up, the IAD did
not believe that Mr. Dhaliwal would pretend to be married to someone whom he
had validly divorced a year earlier. Moreover, when she purportedly lost
contact with Mr. Dhaliwal soon after her return to Canada, the Applicant did
almost nothing to find him. The Applicant’s claim that she was surprised to
discover she was “fraudulently” divorced in October, 2006, was belied by the
fact that she did nothing to challenge the divorce order until 2013, after she
was ordered removed from Canada. Even in her application to sponsor Mr. Singh,
the Applicant gave dates that were inconsistent with this purported belief that
she was divorced in 2006 by stating that the applicable date of divorce or
separation was January 22, 2004. Consequently, the IAD was convinced that the
Applicant never intended to live with her sponsor in Canada, and her
misrepresentation to the contrary legally justified the exclusion order.
[15]
The IAD then considered whether it should grant
special humanitarian and compassionate relief under paragraph 67(1)(c) of the Act,
stating that there needs to be compelling reasons to do so or else paragraph
40(1)(a) would become meaningless. The IAD found there were no such reasons
here. Rather, the Applicant did not regret her misrepresentations and instead
chose to lie even more. Although she was established here, the Applicant had
spent her formative years in India and should have no trouble re-integrating.
Furthermore, the IAD considered it likely that the Applicant’s new husband and
children would go with her, and the IAD did not consider the support from her
father’s first cousin and her community in Canada to be compelling in these
circumstances. The Applicant would have to quit her job and sell her house, but
the only reason she had these things to begin with was because she lied to get
into the country. In any event, the IAD determined that this was not an
important factor since she could likely get another job in India and had enough equity in the house to help her settle there.
[16]
The IAD also considered the best interests of
the children. The Applicant’s children were established here, but the IAD noted
that they were still young and would likely adapt to life in India. The IAD was also unwilling to take judicial notice that the Applicant’s daughter would face
discrimination and violence as a woman. Although the IAD accepted that it would
be in the children’s best interests to remain in Canada, this was not enough to
overcome the many negative considerations which weighed against the Applicant.
III.
Issues
[17]
The Applicant submits that her three
applications raise numerous issues, but the primary issues can be reduced to
the following:
1.
What is the standard of review for each issue?
2.
Did the IAD unlawfully refuse to apply issue
estoppel?
3.
Did the IAD unlawfully refuse the Applicant’s
request for a re-hearing?
4.
Did the IAD unlawfully affirm the exclusion
order?
5.
Did the IAD unlawfully refuse to grant
humanitarian and compassionate relief?
IV.
Analysis
A.
What is the standard of review?
[18]
Where previous cases have satisfactorily
resolved the standard of review for particular issues, it is unnecessary to
repeat that analysis (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraphs
57, 62, [2008] 1 S.C.R. 190 [Dunsmuir]).
(1)
Issue Estoppel
[19]
The Applicant contends that whether the
preconditions to issue estoppel are met is a question of law reviewable on the
correctness standard (Rahman v Canada (Minister of Citizenship and
Immigration), 2006 FC 1321 at paragraph 12, 302 FTR 232 [Rahman]).
The Respondent agrees that the Court must ensure that the IAD selects the
correct test for issue estoppel, but states that the reasonableness standard
should apply to the IAD’s application of the test.
[20]
In Rahman at paragraphs 12-13, Noël J.
said the following about the standard of review for the application of issue
estoppel by the IAD:
[12] Whether the preconditions to the
operation of issue estoppel were met is a question of law. The issue affects
the individual Applicant's procedural rights and the IAD has no greater expertise
in applying the doctrine relative to the Court's expertise in this area of the
law. These factors point toward a strict standard of review. Therefore, the
appropriate standard of review of the IAD's res judicata analysis at the
first stage is correctness […].
[13] Conversely, the second-step involves
an exercise of discretion and a weighing of relevant factors to determine
whether special circumstances warrant the non-application of issue estoppel in
this case. Discretionary factors attract a more deferential review […].
Therefore, patent unreasonableness is the appropriate standard of review for
the second-step. [Citations omitted]
[21]
Rahman has
occasionally been followed by this Court post-Dunsmuir, albeit without
reference to the abolished patent unreasonableness standard for the second step
(see e.g. Chéry v Canada (Citizenship and Immigration), 2012 FC 922 at
paragraph 14, 416 FTR 14).
[22]
In my view, however, the standard of review for
the first step of the issue estoppel analysis has also been overtaken by recent
cases from the Supreme Court. In Canada (Director of Investigation and
Research) v Southam Inc (1996), [1997] 1 S.C.R. 748 at paragraph 35, 144 DLR
(4th) 1, the Supreme Court stated as follows: “questions
of law are questions about what the correct legal test is; questions of fact
are questions about what actually took place between the parties; and questions
of mixed law and fact are questions about whether the facts satisfy the legal
tests.” Therefore, while selecting the test for issue estoppel is a
question of law, whether the preconditions to the operation of issue estoppel were
met is a question of mixed law and fact. For these types of questions, the reasonableness
standard should be presumed in any case where the legal issues cannot be
readily extracted (Dunsmuir at paragraph 53).
[23]
Furthermore, although the doctrine of issue
estoppel has procedural benefits for the winning parties to the litigation
(see: Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 at paragraph 18,
[2001] 2 S.C.R. 460 [Danyluk]; and Penner v Niagara (Regional Police
Services Board), 2013 SCC 19 at paragraph 29, [2013] 2 S.C.R. 125 [Penner]),
I am not convinced that whether each particular requirement is met can be
collapsed into a single issue of procedural fairness. For instance, the IAD
could find that someone whose previous sponsorship application failed had
changed his name and so was actually the same party as before. That would be a
purely factual determination, and I do not think the correctness standard
should apply only because it was made to serve a procedural test.
[24]
In the matter at hand, the pre-conditions to
issue estoppel are neither obvious nor readily ascertained from the record. All
of the disputed pre-conditions are, ultimately, questions of law, but ones that
would normally attract deference to the extent that they involve the
interpretation of the IAD’s enabling statute (Dunsmuir at paragraph 54).
All the other factors also point to deference (Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12 at paragraphs 54-58, [2009] 1 S.C.R. 339
[Khosa]). Therefore, it is my view that the reasonableness standard
applies when reviewing the IAD’s application of both steps of the issue
estoppel analysis.
(2)
Interpretation Issues
[25]
As to the inadequate interpretation issues, the
parties agreed that the standard of review for deciding whether prejudice is a
requirement is correctness, but the standard for assessing the adequacy of the
interpretation is reasonableness. In my view, however, the standard of review
for all aspects of this issue is one of correctness. Every aspect of this issue
is about procedural fairness and access to a constitutional right (Khosa
at paragraph 43; Dunsmuir at paragraph 58).
[26]
Indeed, although my colleague Mr. Justice Sean
Harrington has queried whether the quality of interpretation should be reviewed
on the reasonableness standard (see: Sohal v Canada (Public Safety and
Emergency Preparedness), 2011 FC 1175 at paragraphs 12-13 [Sohal]),
even he applied a correctness standard in Sohal and that appears to be
the trend for decisions of the Board (see: e.g. Kamara v Canada (Citizenship
and Immigration), 2011 FC 243 at paragraph 34, 385 FTR 122 [Kamara];
Dhaliwal v Canada (Citizenship and Immigration), 2011 FC 1097 at paragraph
12; Singh v Canada (Citizenship and Immigration), 2010 FC 1161 at paragraph
2(a); Licao v Canada (Citizenship and Immigration), 2014 FC 89 at paragraph
18, 303 CRR (2d) 228). Accordingly, the IAD’s decision with respect to the
interpretation issues raised by the Applicant should be reviewed on a standard
of correctness.
(3)
The Merits
[27]
The Applicant argues that correctness is the
standard of review with respect to whether the existence of corroborating documentary
evidence can rescue the Applicant’s lack of credibility, the selection of
criteria to discern the genuineness of a marriage, and the IAD’s interpretation
of section 40 of the Act (citing Ouk v Canada (Citizenship and
Immigration), 2007 FC 891 at paragraph 10, 316 FTR 15 [Ouk]; and Khan
v Canada (Minister of Citizenship and Immigration), 2008 FC 512 at paragraph
22). For the remaining issues about the H&C determination and the
misrepresentation, the Applicant acknowledges that reasonableness is the
standard (citing Dunsmuir at paragraph 53).
[28]
The Respondent submits that the appropriate standard
of review for the IAD’s application of section 40 of the Act is one of
reasonableness (citing Sidhu v Canada (Minister of Citizenship and
Immigration), 2014 FC 176 at paragraph 16, 23 Imm LR (4th) 249; and Sidhu
v Canada (Minister of Citizenship and Immigration), 2014 FC 419 at paragraph
12). In addition, the Respondent argues that the IAD’s factual findings and
determinations, such as whether a marriage is genuine, deserve deference from
the Court (citing Khera v Canada (Citizenship and Immigration), 2007 FC
632 at paragraph 7 [Khera]; Ekici v Canada (Minister of Citizenship
and Immigration), 2009 FC 1133 at paragraphs 22-23 [Ekici]; and Bin
Chen v Canada (Minister of Citizenship and Immigration), 2008 FC 1227 at
paragraph 8, 75 Imm LR (3d) 282).
[29]
I agree with the Respondent that the appropriate
standard for review of the IAD’s decision on the merits of this matter is one
of reasonableness. Although the Applicant argues that the IAD misunderstood the
law on various points, her arguments rely not on any misstatements of the law but
on inferences from the reasons and assumptions about the evidence. For
instance, the Applicant claims that the IAD failed to understand that
documentary evidence can prove a claim even when an applicant otherwise seems
to be uncredible, but that rests on assertions that the documentary evidence in
this case was credible and indisputably proved that the marriage was genuine.
Weighing that evidence and assessing its credibility, however, are obviously
factual questions on which the IAD deserves deference (see e.g. Aguebor v Canada (Minister of Citizenship and Immigration) (1993), 160 NR 315 at paragraph 4; Singh v Canada (Minister of Employment and Immigration) (1994), 169 NR 107 at paragraph 3; and Ekici
at paragraphs 22-23). At most, this issue and the others raised by the
Applicant are questions of mixed fact and law from which the legal questions
are not extricable, and the reasonableness standard should apply (Dunsmuir
at paragraph 53; Khosa at paragraphs 52-58).
[30]
This means that the IAD’s decision on the merits
should not be disturbed by this Court if it is justifiable, transparent,
understandable, and falls within a range of outcomes which are defensible in
respect of the facts and law (Dunsmuir at paragraph 47). Those criteria
are met so long as “the reasons allow the reviewing court
to understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes” (Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paragraph 16, [2011] 3 S.C.R. 708)
B.
Did the IAD unlawfully refuse to apply issue
estoppel?
(1)
The Applicant’s Arguments
[31]
Although the IAD applied the right test for
issue estoppel from Angle v Canada (Minister of National Revenue)
(1974), [1975] 2 S.C.R. 248, 47 DLR (3d) 544 [Angle], the Applicant argues
that it was wrong for the IAD to find that the 2002 Decision and its 2013
Decision did not involve the same issue. The IAD would not have allowed the
appeal in 2002 if the marriage was not genuine, and that settles the 2013
Decision too since the Applicant says she cannot have misrepresented the
genuineness of the marriage if her marriage was, in fact, genuine (Canada
(Citizenship and Immigration) v Peirovdinnabi, 2010 FCA 267 at paragraphs
4-5, 409 NR 161 [Peirovdinnabi]). This error, the Applicant says, is
fatal to the 2013 Decision.
[32]
The Applicant also contends that the IAD was
wrong to find that the mutuality requirement was not satisfied. According to
the Applicant, Angle clearly states that issue estoppel applies not just
to parties, but to their privies. Although the 2002 Decision dealt with an
appeal by Mr. Dhaliwal, it was the Applicant’s permanent residence which had been
denied and which was being appealed. According to the Applicant, she is clearly
privy to that appeal as her sponsor was representing her interests.
[33]
Furthermore, the Applicant states that there is
no relevant difference between the MCI and the MPSEP. Whatever their different
responsibilities, both the MCI and the MPSEP represent the Crown and they are
in turn represented by the Department of Justice. They had a full and fair
opportunity to impugn the genuineness of the Applicant’s first marriage at the
time of the 2002 Decision, and the Applicant argues they should not get another
chance.
(2)
The Respondent’s Arguments
[34]
The Respondent defends the IAD’s decision that
the 2002 Decision and its 2013 Decision did not involve the same parties. The
Applicant’s sponsor was exercising his own rights in the first appeal to the
IAD, and the fact that it might benefit the Applicant did not make her privy to
the matter as that term is defined in Black’s Law Dictionary, 9th ed., sub
verbo “privy”. Moreover, the MCI and the MPSEP
have different responsibilities and do not have identical legal interests under
the Act.
[35]
The Respondent contends that the IAD rightly
observed that the genuineness of the marriage is but one of several issues in
the 2013 Decision (Ramkissoon at paragraph 8), including
misrepresentations about the amount of time that the Applicant cohabited with
her first husband. The issues in the 2013 Decision are, the Respondent submits,
therefore broader than those to which the MCI consented to in the 2002
Decision.
(3)
Analysis
[36]
As the IAD recognized, there are two branches of
res judicata. The first branch is cause of action estoppel, which “precludes a person from bringing an action against another
when that same cause of action has been determined in earlier proceedings by a
court of competent jurisdiction” (Angle at 254). The second branch
is issue estoppel, which applies to separate causes of action and “extends to the material facts and the conclusions of law or of
mixed fact and law ("the questions") that were necessarily (even if
not explicitly) determined in the earlier proceedings” (Danyluk
at paragraph 24).
[37]
In Penner, the Supreme Court of Canada
succinctly summarized the test for issue estoppel at paragraph 29: “a party may not relitigate an issue that was finally decided
in prior judicial proceedings between the same parties or those who stand in
their place. However, even if these elements are present, the court retains
discretion to not apply issue estoppel when its application would work an
injustice.” There is no question that issue estoppel can also apply to
administrative decision-makers such as the IAD (Danyluk at paragraph 21;
Rahman at paragraph 18), and it is uncontested that the 2002
Decision was a final decision.
[38]
The IAD found that the 2002 Decision and the
2013 Decision did not address the same issue and did not involve the same
parties. The Applicant argued that if either finding is overturned, the entire
decision must fall, but I disagree. All the pre-conditions to issue estoppel
must be met before issue estoppel can apply, and the IAD would have to be wrong
about all of such conditions before the 2013 Decision could be disturbed.
[39]
In the matter at hand, the IAD said that the two
proceedings leading to the 2002 Decision and the 2013 Decision did not address
the same question: the original appeal dealt with whether the Applicant’s
marriage to Mr. Dhaliwal was not genuine or entered into primarily for the
purpose of acquiring any status or privilege under the Act; whereas the
present proceedings were about something quite different, i.e., whether there
had been a material misrepresentation by the Applicant.
[40]
However, Ramkissoon expressly recognizes (at
paragraph 8) that the misrepresentation analysis in this context “requires an assessment of the bona fides of the marriage and
whether it was entered into by the applicant with the intention of residing
with [her sponsor].” That was the dispositive issue in the IBD’s 2013 Decision,
which found that the Applicant’s “marriage to Harlakhbir
Singh Dhaliwal was not genuine and was entered into for the purpose of securing
permanent residence in Canada.”
[41]
That finding was clearly the issue in the 2002
Decision as well. The officer who initially refused the Applicant’s application
for permanent residence told her that it was because: “I
am not satisfied that the primary reason for your marriage to your sponsor [i]s
other than for the purpose of your gaining admission to Canada and that you
have the intention of residing permanently with your sponsor.” Although
the 2002 Decision that reversed this determination did not expressly say that
the marriage was genuine, that is irrelevant since issue estoppel applies to
any issue necessarily determined in the earlier proceedings (Danyluk at
paragraph 24). Had the finding of non-genuineness of the marriage still stood,
the Applicant would never have received permanent resident status.
[42]
Consequently, while it was open to the IAD to
find that other issues were raised too, it was unreasonable for the IAD to
decide that this particular issue was not the same as that in the 2002
Decision.
[43]
The IAD also found that the Applicant is not the
same person as her sponsor, but does not seem to have considered whether the
Applicant was nonetheless privy to the 2002 Decision. Privity is an elastic
concept that can only be decided on a case-by-case basis (Danyluk at
paragraph 60). In Carl Zeiss Siftung v Rayner & Keeler Ltd (No 2)
(1966), [1967] 1 AC 853, [1966] 2 All ER 536 (UKHL), which is the case from
which the Supreme Court of Canada adopted the test for issue estoppel in Angle
at 254, Lord Reid said (at page 910) that privity can arise in many ways, but
it is “essential that the person now to be estopped from
defending himself must have had some kind of interest in the previous
litigation or its subject-matter.”
[44]
Here, it was unreasonable to find that the
Applicant was not privy to the 2002 decision. It is true that the Applicant’s
sponsor was the one who appealed the refusal of the Applicant’s sponsorship
application, but that is because he was the only one allowed to appeal (Act,
s 63(1); Immigration Act, RSC 1985, c I-2, s 77(3) (as it appeared on 2
May 2002)). Because of paragraph 72(2)(a) of the current Act, applicants
are not even allowed to independently seek judicial review when their
applications for permanent residence are refused; they must rely entirely on
their sponsor to challenge most negative decisions (Somodi v Canada (Citizenship and Immigration), 2009 FCA 288, [2010] 4 FCR 26 [Somodi]).
The Federal Court of Appeal justified that result in Somodi (at paragraph
29) by observing that “on a family sponsorship
application, the interests of the parties are congruent”
(emphasis added). Since only the sponsor was allowed to appeal the decision and
represent the Applicant’s interests in obtaining permanent residence, I do not
think it defensible to say that she was not privy to the 2002 Decision.
[45]
The IAD also found that the MCI was not the same
party as the MPSEP. The Applicant claims that they are ultimately both the
Crown.
[46]
In Town Investments Ltd v Department of
Environment (1977), [1978] AC 359 at 381 (UKHL), Lord Diplock held that the
“Crown” can be synonymous with “government” and embraces “both
collectively and individually all of the ministers of the Crown and
parliamentary secretaries under whose direction the administrative work of
government is carried on by the civil servants employed in the various
government departments.” However, “[f]or nearly
all purposes the idea of the Crown as one and indivisible is thoroughly
misleading” (Peter W Hogg, Constitutional Law of Canada, 5th ed,
vol 1, loose-leaf (updated to 2014), (Toronto, ON: Thomson Reuters, 2007), ch
10 at 2), especially in a federal state like Canada.
[47]
In Ontario v OPSEU, 2003 SCC 64,
[2003] 3 S.C.R. 149 [OPSEU], the Supreme Court considered whether the same
parties’ requirement for issue estoppel was fulfilled by separate provincial
ministries. In that case, two government employees were convicted of sexually
assaulting people under their care, and were fired because of it. The unions
grieved their terminations, and the arbitrators declined to consider the
convictions as conclusive proof of the offences. The Supreme Court decided (at
paragraph 11) that issue estoppel did not apply for the following reasons:
[T]he Crown, acting as prosecutor in the
criminal case, is not privy to the Crown acting as employer. The employer
ministries played no role in the criminal proceedings nor could they have
participated as parties to these proceedings. The Attorney General, under
whose authority criminal prosecutions are conducted, does not represent the
interest of any particular party, but represents the public interest. Despite
their legal personality, and their designation for the purpose of judicial
proceedings, the ministries in question here as employers share no relevant
relationship to the Crown as prosecutor. [Emphasis added]
[48]
As such, the pertinent question is thus whether
the MCI and the MPSEP share a relevant relationship pertaining to the 2002
Decision. Certainly, their interests under section 4 of the Act are very
closely aligned. In situations like this, their overall objective is the same;
both are trying to ensure that people do not immigrate to Canada unless they meet the requirements to do so. The MCI tries to keep unqualified immigrants out,
and the MPSEP evicts the ones who nevertheless make it in. At risk of
over-simplifying the matter, they play different positions but they are on the
same team. Indeed, even though the MPSEP referred this case to the Immigration
Division, the subsection 44(1) report was prepared by an officer at CIC.
[49]
Furthermore, subsection 4(3) of the Act
authorizes the Governor in Council to set out specific responsibilities for
each Minister by order, which it has done with the Order Setting Out the
Respective Responsibilities of the Minister of Citizenship and Immigration and
the Minister of Public Safety and Emergency Preparedness Under the Act,
SI/2005-120. It seems artificial to treat them as completely different entities
when, by a simple executive action, they could easily take on responsibilities
that the other had been doing. By the IAD’s reasoning, if, for instance, the
Governor in Council should ever decide to transfer responsibility for spousal
sponsorship decisions to the MPSEP, every spousal sponsorship appeal in the
past would suddenly cease to be a basis for issue estoppel. That would be, to
say the least, a bizarre consequence.
[50]
Nevertheless, when one looks at the IAD’s
decision on this issue as a whole, it was reasonable.
[51]
The IAD probably would have exercised its
discretion to hear the case against the Applicant even if it had been satisfied
that the pre-conditions to issue estoppel were met. At paragraph 28 of its
decision, the IAD said that it would undermine the Parliamentary intent
underlying section 40 of the Act to “hold that a
previous IAD decision that a marriage is likely genuine is binding on future
panels that are required under the [Act] to assess whether there was a
material misrepresentation under section 40.”
[52]
That is a reasonable conclusion. A material
misrepresentation is one that “induces or could induce an
error in the administration of this Act” (Act, s 40(1)(a)). This expressly
recognizes that the misrepresentation could have already induced an
error in the administration of the Act, and the IAD should not be precluded
from exploring this possibility only because it was the IAD itself that was
allegedly induced into error.
[53]
Moreover, even the Applicant recognized at
paragraphs 24 to 26 of her reply memorandum that significant new evidence could
reasonably justify a decision not to apply issue estoppel. The IAD had evidence
before it that the Applicant’s sponsor divorced her just one month after her
arrival in Canada, with a separation date well before when she obtained
permanent residence, and the Applicant’s sponsor specifically advised CIC that
the Applicant only married him to get into Canada. Although the IAD never
expressly considered its discretion to not apply issue estoppel, it is readily
apparent that it would have decided to hear the case against the Applicant even
had it been convinced that the pre-conditions were met.
[54]
Consequently, while the IAD’s decision on this
point may not have been perfect in all respects, it was nonetheless reasonable.
C.
Did the IAD unlawfully refuse the Applicant’s
request for a re-hearing?
(1)
The Applicant’s Arguments
[55]
The Applicant argues that the IAD made
essentially two errors in deciding the inadequate interpretation application.
First, the Applicant says that the IAD required her to demonstrate that the
errors in translation caused her significant prejudice, which was contrary to
the leading cases of R v Tran, [1994] 2 S.C.R. 951 at 994-995, 117 DLR
(4th) 7 [Tran], and Mohammadian v Canada (Minister of Citizenship and
Immigration), 2001 FCA 191 at paragraph 4, [2001] 4 FCR 85 [Mohammadian
(FCA)].
[56]
The second error, the Applicant says, is that
the IAD unreasonably decided that the interpretation was adequate. The
Applicant reproduces a number of the alleged errors in her memorandum, and
claims that the IAD failed to assess those errors against the standard of
precision set out in Tran. Indeed, the Applicant asserts that the IAD’s
summary of the Applicant’s testimony was wrong in material respects.
[57]
Furthermore, the Applicant contends that
linguistic understanding is but one of the requirements of adequate
translation, with some of the others being precision, continuity,
contemporaneousness, and impartiality. According to the Applicant, the IAD’s
obsession with significant prejudice blinded it to these other factors, and the
Applicant argues that was unreasonable.
(2)
The Respondent’s Arguments
[58]
The Respondent argues that word-for-word
interpretation is difficult and, in some respects, impossible insofar as
perfection cannot always be obtained. The Respondent therefore says that one
cannot apply a microscope to the translation, as the Applicant attempts to do,
and unduly focus on precision. All that is required, according to the Respondent,
is that the various elements of linguistic understanding have been maintained.
[59]
Although the IAD mentioned prejudice, the
Respondent contends that it never made that a requirement. On the contrary, the
IAD used that phrase in the sense of there being sufficient linguistic
understanding for the Applicant and in assessing whether the parties understood
each other, which is all that was required (Boyal v Canada (Citizenship and
Immigration), [2000] FCJ No 72 (QL) at paragraph 7, 181 FTR 158 [Boyal]).
Whatever errors the interpreter may have made, the Respondent states that at no
time did the parties misunderstand each other.
[60]
The Respondent says the examples of
misinterpretation referred to by the Applicant are not such that they clearly
show, on a balance of probabilities, that the parties did not have sufficient
linguistic understanding. The IAD, the Respondent says, reasonably and properly
applied the applicable principles of linguistic understanding.
(3)
Analysis
[61]
Section 14 of the Canadian Charter of Rights
and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (UK), 1982, c 11, provides that:
|
14. A party or witness in any proceedings who does not understand or
speak the language in which the proceedings are conducted or who is deaf has
the right to the assistance of an interpreter.
|
14. La partie ou le témoin qui ne peuvent
suivre les procédures, soit parce qu’ils ne comprennent pas ou ne parlent pas
la langue employée, soit parce qu’ils sont atteints de surdité, ont droit à
l’assistance d’un interprète.
|
[62]
In Tran, the Supreme Court of Canada
discussed the application of section 14 in a criminal context, and held that
the central principle is linguistic understanding, which means that people with
language difficulties “must have the same opportunity to
understand and be understood as if they were conversant in the language being
employed in the proceedings” (Tran at 985). This is assessed by
criteria that “include, but are not necessarily limited
to, continuity, precision, impartiality, competency and contemporaneousness”
(Tran at 985).
[63]
The same standard has been adopted with respect
to immigration proceedings (Mohammadian (FCA) at paragraph 4; Kamara
at paragraphs 35-37). The Applicant in this case only impugns the precision of
the interpretation, for which the Supreme Court in Tran (at 986-987)
endorsed the following quotation from Graham G. Steele, “Court
Interpreters in Canadian Criminal Law” (1992), 34 Crim LQ 218 at
240-241:
… the interpretation must be, as close as can
be, word-for-word and idea-for-idea; the interpreter must not “clean up” the
evidence by giving it a form, a grammar or syntax that it does not have; the
interpreter should make no commentary on the evidence; and the interpretation
should be given only in the first person, e.g., “I went to school”
instead of “he says he went to school”.
[64]
However, perfection cannot be expected, and the
Supreme Court held that the standard is lower for oral interpretation than it
is for the translation of documents, since the former “involves
a process of mediation between two people which must occur on the spot with
little opportunity for reflection” (Tran at 987).
[65]
The Applicant is right to point out that
prejudice is not a requirement (Tran at 994-995). As Mr. Justice J.D.
Denis Pelletier has observed, “[r]equiring proof of
prejudice as a condition of obtaining a remedy for infringement of a constitutionally
protected right undermines the constitutional protection” (Mohammadian
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 309 (QL)
at paragraph 12, [2000] 3 FCR 371, aff’d Mohammadian (FCA) at paragraph
4).
[66]
The IAD said that the interpretation errors
alleged by the Applicant “did not have a significant
impact on the proceedings, nor did they cause any significant prejudice to the
appellant.” This observation by the IAD, however, does not mean that it
elevated the existence of prejudice to a requirement. In any event, since the
standard of review with respect to the interpretation issues is one of
correctness, it does not matter if the IAD erred in this regard since its
determinations are afforded no deference.
[67]
In my view, the interpretation was not as
precise as it could have been. The interpreter occasionally interpreted in the
third person instead of the first person; she paraphrased a lot; she sometimes
added information that was not said; and she was sometimes mistaken. However,
as the Supreme Court has recognized, interpretation is “an
inherently human endeavour which often takes place in less than ideal
circumstances” (Tran at 987). Despite the imperfections in this
case, I think the Applicant always understood what was being said and was
herself understood. There was linguistic understanding between the parties on
the essential issues before the IAD.
[68]
Indeed, the only “significant” misunderstanding
that the Applicant mentioned was that the IAD wrote that the Applicant had said
that she last spoke to Mr. Dhaliwal the day of her return to Canada in 2005, when she had actually testified that she had spoken to him the day after.
Not only is that detail immaterial, the interpretation cannot be faulted for
the error since, at the hearing, the interpreter had accurately interpreted the
Applicant’s testimony at page 18 of the Johar Transcript:
[Counsel]: …
[English] When was the last time, you spoke with your ex-husband.
Interpreter:
[Punjabi] When is the last time, you have spoken with your ex-husband.
[Appellant]:
[Punjabi] When I came here in Brampton, when I reached here. I called second
day.
Interpreter:
[English] When I had called him, on second day after reaching in Brampton at my uncle’s house. [Bold added]
[69]
The Applicant also complained that the most
serious interpretation problem was that some exchanges between the member and
counsel were not interpreted at all. However, those conversations were purely
about administrative matters, and the Supreme Court said in Tran (at
993-994) that “where a lack of or lapse in interpretation
occurs in respect of some purely administrative or logistical matter which does
not involve the vital interests of the accused, such as scheduling or agreeing
to a recess, this will not be a violation of s. 14 of the Charter.”
[70]
Accordingly, the interpretation between the
parties before the IAD was adequate and I reject the Applicant’s arguments to
the contrary.
D.
Did the IAD unlawfully affirm the exclusion
order?
(1)
The Applicant’s Arguments
[71]
The Applicant claims that the IAD made three
legal errors.
[72]
First, she says that the IAD disregarded
documentary evidence which clearly showed that the Applicant separated from her
first husband on January 22, 2004, and that the earliest possible date of
separation was July 23, 2003. Even if the Applicant seemed uncredible, she
argues that the IAD cannot simply discard a plethora of independent and
credible documentary evidence capable of supporting a positive disposition (citing
Sellan v Canada (Citizenship and Immigration), 2008 FCA 381 at paragraph
3, 384 NR 163 [Sellan]).
[73]
Second, the Applicant submits that the IAD
failed to distinguish between the issues of whether the Applicant’s first
marriage was genuine and whether she misrepresented that it was genuine.
She claims that these two lines of inquiry must be kept separate (citing Ouk
at paragraph 17).
[74]
Third, the Applicant argues that the IAD erred
by failing to use the criteria established in Khera to determine whether
her first marriage was genuine (citing Khera at paragraph 10; and Paulino
v Canada (Minister of Citizenship and Immigration), 2010 FC 542 at paragraph
61, 368 FTR 188). This is inexcusable, according to the Applicant, who says
that the genuineness of this marriage was at the core of the IAD’s decision
about the alleged misrepresentation and should have been properly assessed.
[75]
The Applicant further criticizes the IAD’s
findings of fact and its conclusion that the Applicant was inadmissible for
misrepresentation. In particular, the Applicant states that Mr. Dhaliwal is a
liar whose testimony was full of contradictions, and that it was unreasonable
for the IAD to find otherwise. In this regard, she argues that the IAD’s
finding that Mr. Dhaliwal reported his belief that the Applicant had only
married him to obtain status in Canada to CIC some time after she left for India in 2004 is “flat wrong.” She also says that her former
husband’s testimony about this report was clearly a lie, and that his testimony
that he was not at his parent’s home on December 14, 2003, when his sister got
into a fight with the Applicant was contradicted by a police report.
[76]
Further, the Applicant argues that it was
unreasonable for the IAD to believe a man who submitted an application to
sponsor his wife in July, 2001, appealed the refusal of his wife’s application
for permanent residence in May, 2002, paid for his wife’s air ticket to travel
to Canada in July, 2003, and then claimed that they had separated on February
28, 2001, in his application for divorce in the BCSC. If that were the case,
then the Applicant argued that the IAD must have concluded that Mr. Dhaliwal
lied in order to win his appeal in 2002 and it was unreasonable to nevertheless
trust his testimony.
[77]
The Applicant also states that it was
unreasonable for the IAD to decide that the Applicant knew that she had been
divorced before October, 2006. According to her, this was based on
implausibility findings about the Applicant’s conduct that were unreasonably
based on the IAD’s preconceptions about “the typical
mainstream Canadian wife” (citing Mann v Canada (Minister of
Citizenship and Immigration), 2003 FC 1479, 33 Imm LR (3d) 282). She claims
that this was an error since she was a “shy, traditional
Indian girl” with a domineering husband upon whom she was entirely
dependent. Thus, she argues that it did not make sense for the IAD to find that
someone with her personality told her husband to “go to
hell” as soon as she arrived in Canada despite lacking the ability to
support herself in an alien land. Further, she asks, why would Mr. Dhaliwal put
her up with his parents for six months if that was how she greeted him? Also,
if the IAD believed her former husband, then the Applicant says it must have
accepted his testimony that he had always pretended to his parents that
everything was alright in the marriage. She says that it should not have been a
stretch to believe that he would carry on that charade while she was in India.
[78]
Furthermore, the Applicant says, that her
conduct was always consistent with her personality and the culture from which
she hailed. She never denied that she was served with the divorce papers, but
had testified that her husband took them away from her immediately. Even if she
did know about the proceedings, the Applicant argues that it was unreasonable
for the IAD to expect someone with her profile to fight it expeditiously. For
the same reasons, she says she could not be expected to try and find her
husband or report him missing when he disappeared, since she was sad and knew
from other sources that he was still well.
(2)
The Respondent’s Arguments
[79]
The Respondent submits that the matter at hand
is, in essence, a case of “he said, she said,” and
this fact lies at the heart of the IAD’s decision. For that reason, the IAD’s “basket of choices of outcomes” is larger here. Factual
determinations by the IAD, according to the Respondent, are owed a great degree
of deference.
[80]
In this regard, the Respondent says that the
IAD’s treatment of the evidence was reasonable. Although the Federal Court of
Appeal found that a lack of credibility is not necessarily fatal to a refugee
claim in Sellan, the Respondent argues that case does not apply to the
present dispute where the stakes are much lower. In any event, the Respondent
says that the evidence used to dupe the IAD in 2002 was neither independent nor
credible, since it was generated and submitted by the Applicant herself to show
the genuineness of a marriage that other evidence now proves was fraudulent.
The Respondent thus argues that the evidence was not ignored; it was simply overshadowed
and rendered impotent by the discovery of the Applicant’s scheming dishonesty.
[81]
The Respondent also rejects the contention that
the IAD mixed up the issues of, on the one hand, whether the Applicant was
inadmissible under paragraph 40(1)(a) of the Act for misrepresentation,
and on the other, whether her marriage was bona fides under section 4 of
the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations].
First, the Respondent states that Ouk is outdated because it applied jurisprudence
from before section 4 of the Regulations was amended. Second, the
Respondent argues that a fair reading of the decision shows that the IAD
applied a two-part test, first assessing whether the marriage lacked bona
fides before then deciding whether that lack of bona fides was
withheld from officials.
[82]
The Respondent also argues that the Khera
factors do not need to be assessed with a fine-tooth comb. In its view, in Khera
Mr. Justice Luc Martineau was merely saying that the factors he listed were relevant
in that case, and he never intended them to be exclusive or exhaustive.
[83]
The Respondent also defends the IAD’s factual
conclusions, saying that it was reasonable for the IAD to prefer the testimony
of Mr. Dhaliwal over that of the Applicant. The date that he reported the sham
marriage to CIC was immaterial to the IAD’s decision, and the Respondent argues
that Mr. Dhaliwal’s credibility cannot be undermined by the fact that he
sponsored the Applicant since he had been duped into the marriage of convenience.
Further, the police report does not contradict her ex-husband’s story, since he
had never denied that he was at the house when the police came; he only said
that he arrived afterwards.
[84]
Finally, the Respondent states that it was
reasonable for the IAD to find that the Applicant’s claim she did not know
about the divorce implausible, and that the Applicant’s arguments to the
contrary were just bare assertions.
(3)
Analysis
(a)
Alleged failure to consider independent evidence
[85]
In Sellan, the Court of Appeal said (at
paragraph 3) that “where the Board makes a general
finding that the claimant lacks credibility, that determination is sufficient
to dispose of the claim unless there is independent and credible documentary
evidence in the record capable of supporting a positive disposition of the
claim.” The Respondent argues that cases decided about refugee
protection claims should not be equated “willy-nilly”
to the present situation.
[86]
The Respondent’s attempt to distinguish Sellan
is misguided. Sellan does not create some special legal rule for refugee
claims. Rather, it is simple logic; unreliable evidence for a claim does not
negate independent evidence for the same claim, and a proposition is not proven
false merely because some of the evidence advanced to support that claim
could not alone prove that it is true. Put less formally, distrusting the
panicked yelps of the boy who cried wolf does not let one ignore security
camera footage of a wolf chasing him. This principle is not derived from any
special considerations for refugee protection; it applies to any truth-seeking
process.
[87]
However, the Applicant is wrong to assert that
the IAD ignored the “letters, photographs, telephone
bills, affidavits, post stamps, wedding invitation cards, and personal letters”
submitted to support the IAD appeal in 2002. On the contrary, all of that
evidence is perfectly consistent with the IAD’s finding that the Applicant
tricked Mr. Dhaliwal into marrying her so that she could come to Canada and keep up the charade until she was landed.
[88]
As for the Applicant’s insistence that the “earliest date of separation can only be July 23, 2003,”
that impliedly asserts that spouses cannot be legally separated until one lets
the other know that he or she wants a divorce. The Applicant does not cite any
authority for that belief, and it is contrary to paragraph 8(3)(a) of the Divorce
Act, RSC 1985, c 3 (2nd Supp), which says that “spouses
shall be deemed to have lived separate and apart for any period during which
they lived apart and either of them had the intention to live separate
and apart from the other” (emphasis added). When the BCSC considered
this issue in 2013, that court confirmed that if the Applicant had been
deceiving Mr. Dhaliwal from the start, then “grounds for
divorce existed in 2003” since the Applicant had formed the intention to
separate more than a year before the divorce was granted (Dhaliwal
(BCSC) at paragraph 19).
(b)
Separate inquiries
[89]
The Applicant argues that the IAD was obligated
to assess the genuineness of her marriage separately from whether she misrepresented
that it was genuine. For this, she relies on Ouk, where Mr. Justice
Richard Mosley said that it is “open to the appeal panel
to find that the sponsoree is inadmissible for misrepresentation pursuant to s.
40 of the Act or that the marriage is not genuine, but the distinction
between these two avenues of inquiry must be kept clearly separate” (Ouk
at paragraph 17 (emphasis in original)).
[90]
The Applicant claims that one of the introductory
passages of the IAD’s decision makes this error. At paragraph 14, the IAD
briefly summarized its findings as follows:
The evidence before me favours a finding that
when [the Applicant] came to Canada in 2003 she did not intend to live with her
sponsor as husband and wife. As that information was not disclosed to the visa
post or the immigration officer at the port-of-entry, I find that section
40(1)(a) of the [the Act] is applicable.
[91]
The Respondent rightly points out that the
analysis is more clearly separated in the body of the decision, but even the
above summary does not disclose any error. Having found that the Applicant did
not intend to live with Mr. Dhaliwal as his wife when she came to Canada, it
was reasonable for the IAD to find that the Applicant was therefore “withholding material facts relating to a relevant matter that
induces or could induce an error in the administration of this Act” (Act,
s 40(1)(a)). It was also reasonable for the IAD to conclude at paragraph 41 of
its decision that, “but for her misrepresentation, she would
not have been granted status in Canada as the spouse of her sponsor.”
[92]
Ouk does not assist
the Applicant and has no material bearing on the present situation. In that
case, the IAD decided that the marriage was not genuine because the applicant
and her sponsor did not disclose that they lived with the sponsor’s
half-sister. In Ouk, Justice Mosley set aside the decision because,
although that might have been a misrepresentation, it was a misrepresentation
that did not impugn the genuineness of the marriage and the IAD never actually
found that the applicant was inadmissible for misrepresentation.
[93]
A far more pertinent case is Peirovdinnabi,
where the Federal Court of Appeal said (at paragraph 26) that “a person who applies for a benefit under the Act as a spouse
makes a misrepresentation if his or her marriage is not bona fide in the
sense that it was entered into for the purpose of obtaining an advantage under
the Act.” The same should apply to a finding that the Applicant never
intended to live with her sponsor in Canada as his wife. When a proposition so
central to the application turns out to be false, a finding of inadmissibility
for misrepresentation is almost automatic. There is very little to be gained
from conducting separate inquiries.
(c)
Alleged failure to assess the genuineness of the
marriage
[94]
The Applicant says that the IAD erred by finding
that her marriage was not genuine without assessing the factors set out in Khera.
However, that is not a requirement in every case. In Stuart v Canada (Citizenship and Immigration), 2012 FC 1139 at paragraph 24, Justice Noël
summarized the law as follows:
[T]his Court has already noted that there is no
specific test to establish whether a marriage is genuine (Zheng v Canada (Minister of Citizenship and Immigration), 2011 FC 432, at para 23, 388 FTR 61).
In Khera v Canada (Minister of Citizenship and Immigration), 2007 FC
632, at para 10, [2007] WDFL 3916, this Court validated the IAD’s approach in
which factors such as the length of the spouses’ relationship, their age
difference, their respective financial situation and employment, their
knowledge of one another’s histories, their language, their interests and the
fact that some members of the wife’s family live in Canada are relevant in
determining whether a marriage is genuine. Therefore, the criterion that
must guide the IAD in its analysis of the facts and evidence is therefore
relevance and it is open to it to take into consideration all the factors
it considers relevant.
[Emphasis added]
[95]
The misrepresentation identified by the IAD was
that the Applicant failed to disclose to CIC that she did not intend to live
with Mr. Dhaliwal in a spousal relationship once she arrived in Canada. That conclusion and the factual findings underlying it were amply supported by the
testimony of Mr. Dhaliwal, who testified as follows:
[APPLICANT’S] COUNSEL: And when did … see you stated that Harpreet told you that she had a
boyfriend in India and that she was not going to live with you, she had no
intention to (Inaudible); when did she tell you sir?
MR. DHALIWAL:
Right at the airport.
…
[APPLICANT’S] COUNSEL: So tell me exactly what did she … what she told you?
MR. DHALIWAL:
She told me that she do not want to live with me, she has a boyfriend in India that is it. (Inaudible) get her divorce she will make my life hell, she will destroy
my family name in (Inaudible).
[96]
If Mr. Dhaliwal is credible, then the conclusion
that the Applicant never intended to reside with him as his wife inevitably
follows from his testimony, and could not possibly be disturbed by assessing
factors such as the age difference between the Applicant and Mr. Dhaliwal or
their respective financial situations. It was therefore reasonable for the IAD
not to consider those factors to be relevant.
(d)
Alleged factual errors
[97]
The Applicant said that one of the “most incorrect” findings that the IAD made was its
statement that “[a]t some point after [the Applicant]
returned to India in January 2004, Mr. Dhaliwal notified Citizenship and
Immigration Canada that he believed that the appellant had only married him to
obtain status in Canada.” She contends that it was actually before she
went to India and the undated FOSS notes do provide some ambiguous support for
that. However, this detail was immaterial. While the IAD mentioned it when
summarizing Mr. Dhaliwal’s version of events, any mistake in the date does not
impugn his credibility since he said that he did not remember when he made the
report.
[98]
The only other alleged contradiction was that
Mr. Dhaliwal said he was not at his parents’ home when his sister got into a
fight with the Applicant and the police were called. He testified that he only
arrived in the evening, while the police officer’s note said that Mr. Dhaliwal
was there by the time he had left the home at 2:23 p.m. At best, that shows
that Mr. Dhaliwal was mistaken about the time of day that he arrived at his
parents’ house after an event that happened about a decade earlier. It is not
fatal to his credibility.
[99]
The Applicant also claimed that it was
unreasonable for the IAD to believe a man who was actively involved in bringing
the Applicant to Canada up until at least July, 2003, and yet claimed a
separation date in February, 2001, when applying for a divorce. However, as noted
above, the BCSC determined that there was nothing wrong with claiming that
separation date if Mr. Dhaliwal’s version of events is true (Dhaliwal
(BCSC) at paragraph 19). Furthermore, as the IAD decided that the Applicant had
deceived Mr. Dhaliwal up until she came to Canada in July, 2003, his actions in
trying to get her here cannot be held against him. As such, it was reasonable
for the IAD not to draw any adverse inferences.
[100] The remainder of the Applicant’s arguments attack the IAD’s
plausibility findings, but rest entirely on assertions that the Applicant is a “traditional shy, unsophisticated Indian wife,” and Mr.
Dhaliwal a domineering husband. That is circular reasoning; the Applicant is
adopting as her premise the conclusion for which she argues. The IAD was
entitled to assess the plausibility of the Applicant’s and Mr. Dhaliwal’s
testimony in light of its own perceptions of them as witnesses. In a few key
passages, the IAD’s reasons cogently explain why it favoured the testimony of
Mr. Dhaliwal:
[17] …I did not find the appellant to be a
credible witness. Her evidence with respect to some matters was contradictory
and her testimony regarding the breakdown of her relationship with Mr. Dhaliwal
was, in my view, completely implausible.
[18] In contrast, I found Mr. Dhaliwal’s
testimony to be believable. He presented as a forthright and reliable witness
and his credibility was not undermined in any substantive way. …
…
[31] I find that the appellant’s testimony
in respect of these issues [i.e. when she learned about the divorce] was not
even remotely believable. It is implausible in the extreme that a woman who
believed she was in a genuine and subsisting marital relationship would lose
all contact with her husband and not take any concrete steps to find him, other
than attempting to phone him a couple of times. Her actions are more consistent
with someone who was aware that divorce proceeding [sic] were commenced
in August 2003. Indeed, I am satisfied that, more likely than not, she was
properly served with those documents and was able to understand their contents.
The fact that she contacted counsel in the fall of 2006 to do a divorce
registry search is, in the circumstances of this case, more likely the result
of her trying to get a copy of her divorce order so that she could remarry,
which she did just a few months later.
[32] Mr. Dhaliwal’s testimony, on the
other hand, was not internally inconsistent or implausible. He claimed that the
appellant expressed her desire to end their marriage as soon as she arrived in Canada. Because he was responsible for her, not only in the eyes of their community but as
a result of his undertaking with Citizenship and Immigration Canada, he agreed
to have her reside with his parents while he moved into his business premises.
He filed for a divorce at her request one month after she was landed and the
divorce documents clearly indicate that he was not living at the same address
as the appellant. At some point after she returned to India in January 2004, Mr. Dhaliwal notified Citizenship and Immigration Canada that he believed
that the appellant had only married him to obtain status in Canada. Mr. Dhaliwal’s evidence that they had no contact after the appellant returned to India makes more sense than the appellant’s claim that he continued to maintain contact
with her as if their marriage was subsisting and everything was copasetic.
[footnotes omitted]
[101] It is understandable why the IAD made these findings and they are
defensible in respect of the facts and the law (Newfoundland Nurses at
paragraph 16). As such, they deserve deference and there is no basis for
intervention under paragraph 18.1(d) of the Federal Courts Act, RSC
1985, c F-7.
E.
Did the IAD unlawfully refuse to grant
humanitarian and compassionate relief?
(1)
The Applicant’s Arguments
[102] The Applicant submits that the IAD unreasonably refused to grant
humanitarian and compassionate relief. The Applicant says that the IAD failed
to assess each factor independently of the others (citing Jiang v Canada (Public Safety and Emergency Preparedness), 2013 FC 413 at paragraph 10, 17 Imm LR (4th)
219 [Jiang]), and based its analysis of the best interests of the
children on the unfounded assumption that they would have significant family
support in India.
(2)
The Respondent’s Arguments
[103] The Respondent states that the IAD’s finding that the Applicant did
not deserve special relief was clearly within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law. The Respondent
argues that the Applicant’s misrepresentation was planned right from the beginning
and was the only reason she obtained status under the Act. Furthermore, her
establishment was only mildly positive, any family dislocation upon removal
would be minimal, and the evidence supported the IAD’s finding that the
Applicant’s children would have the support of their parents and extended
family in India. Moreover, the Applicant showed no remorse with respect to her
misrepresentation. The Respondent submits that the IAD did nothing wrong here,
since a serious misrepresentation can mitigate any positive weight to be given
to hardship or establishment factors when assessing humanitarian and
compassionate grounds for special relief.
(3)
Analysis
[104] When it considered whether to grant humanitarian and compassionate
relief, the IAD set out the six Ribic factors but adjusted them slightly
since criminality was not in issue. The IAD therefore assessed the factors
under the following headings: (a) the misrepresentations and remorse; (b)
establishment; (c) dislocation to family; (d) support for the appellant; and
(e) hardship.
[105] The Applicant complains that the IAD counted her misrepresentation
against her twice. First, the IAD said that the misrepresentation was a
negative factor, and then it reduced the positive weight of the hardship factor,
partially because selling her house and quitting her job “would
not constitute undue or disproportionate hardship, particularly when one
considers that the acquisition of her home and employment was only possible
because she obtained permanent resident status through a misrepresentation.”
The Applicant says that this kind of double-counting was prohibited in Jiang
at paragraph 11.
[106] However, weighing the Ribic factors is not a quantitative or
mensurative exercise; it is not simply about adding up the positive factors and
subtracting the negative ones. Rather, it is qualitative or relative assessment,
and the IAD is “free to weigh each factor, and is
consequently free to give no weight to any given factor depending on the
circumstances” (Ambat v Canada (Citizenship and Immigration),
2011 FC 292 at paragraph 32, 386 FTR 85).
[107] This naturally involves comparing the factors against each other,
and the Applicant has not seriously impeached the IAD’s reasoning for deciding
that the misrepresentation outweighed the hardship. As Justice Mosley has said
about an application under subsection 25(1) of the Act, “misrepresentations engage public policy considerations
involving the integrity of the immigration system,” and “the regulation would be rendered meaningless if all such
applications were given special dispensation and approved because of family
separation and hardship” (Kisana v Canada (Citizenship and
Immigration), 2008 FC 307 at paragraph 32, aff’d 2009 FCA 189 at paragraph
27, [2010] 1 FCR 360). The fact that the Applicant might lose some of the
profits that she gained from defrauding her ex-husband and deceiving the
immigration authorities of this country does not exactly cry or call out for
humanitarian and compassionate relief.
[108] Thus, the Applicant’s argument reduces to merely one that the IAD
conducted the weighing process too early in its reasoning. However, to set
aside the decision merely because the IAD conducted part of its weighing
analysis under the wrong heading seems like the type of “line-by-line
treasure hunt for error” criticized by the Supreme Court in Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd, 2013 SCC 34 at paragraph 54, [2013] 2 S.C.R. 458). To the extent that Jiang
cannot be distinguished from this case, I decline to follow it.
[109] The Applicant also takes issue with one element of the IAD’s analysis
of the best interests of the children. Specifically, she argues that it was
speculative to say that the children would benefit from “significant
family support” in India. As the Respondent points out, the children
would likely be accompanied by both their parents. It is reasonable to
characterize the support from two loving parents as significant. As well, the
Applicant supplied no evidence to suggest that her or her new husband’s
extended family in India would be unsupportive.
V.
Conclusion
[110] I dismiss the applications in Court Files No. IMM-1478-14, IMM-3931-13,
and IMM‑3932-13. The parties have not proposed any questions for
certification, so none will be certified.
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