Docket: IMM-6510-14
Citation:
2015 FC 1088
Ottawa, Ontario, September 17, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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KAWALMIT KAUR
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], the applicant applies
for judicial review of the decision of the Immigration Appeal Division of the
Immigration and Refugee Board [the Board] dated August 19, 2014, wherein the
Board dismissed the applicant’s appeal from an exclusion order issued against
her on August 19, 2013.
[2]
The applicant seeks an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The applicant is a citizen of Singapore.
[4]
In March 2003, Dharamdas Raghani submitted a
permanent residence application and listed the applicant as his common law
spouse.
[5]
On October 21, 2003, Mr. Raghani and the applicant
were married. Citizenship and Immigration Canada [CIC] was informed of the
marriage on or about November 4, 2003.
[6]
On May 16, 2006, Mr. Raghani and the applicant
were divorced by signed decree in Nevada, U.S.A. The stated ground for divorce
was incompatibility. However, the applicant alleges they continued their
relationship as common law spouses and the reason for them to get a legal
divorce was inheritance. The divorce order indicated that Mr. Raghani resided
in Nevada while the applicant resided in Singapore.
[7]
The applicant originally stated to the Canada
Border Services Agency [CBSA] that Mr. Raghani and she personally went to the
High Commission in Singapore and informed the visa officer that they had
obtained a divorce. However, during the hearing at the Board, she stated she
relied on Mr. Raghani and did not personally inform CIC of the divorce.
[8]
On December 14, 2006, Mr. Raghani’s application
for permanent residence was approved. He arrived in Canada alone in February
2007.
[9]
On October 29, 2007, the applicant arrived in
Canada with Mr. Raj Veer. She referred to Mr. Raghani as her husband upon
arrival.
[10]
On August 3, 2009, Mr. Raj Veer and the
applicant were married.
[11]
In 2011, the applicant applied to sponsor Mr.
Raj Veer. The application stated that the applicant’s relationship with Mr.
Raghani ended on May 16, 2006 and her relationship with Mr. Raj Veer began on
January 1, 2007.
[12]
At the August 19, 2013 admissibility hearing,
the Immigration Division issued the applicant an exclusion order under
subsection 45(d) of the Act for misrepresentation pursuant to paragraph
40(1)(a) of the Act. The applicant appealed this decision to the Board.
II.
Decision Under Review
[13]
The appeal hearing took place on August 5, 2014.
The Board dismissed the applicant’s appeal and determined that she was
inadmissible to Canada on the basis of misrepresentation. It found the
exclusion order made on August 19, 2013 is legally valid and there were
insufficient humanitarian and compassionate [H&C] considerations to warrant
granting the appeal.
[14]
The Board determined there are significant
discrepancies and contradictions between the witnesses’ stories and the
information provided by the applicant at different times. It summarized the
contradictions at paragraph 10 of its decision.
[15]
The Board based its negative decision on the
following: i) the applicant’s divorce from Mr. Raghani was a material fact
relating to a relevant matter that induced or could have induced an error in
the administration of the Act; ii) neither the applicant nor Mr. Raghani
disclosed the divorce to CIC; and iii) the applicant and Mr. Raghani did not
remain in or resume a common law relationship after their divorce in May 2006.
[16]
As for the H&C assessment, the Board found
there are insufficient considerations to warrant special relief. It reasoned
the following: i) the applicant’s serious misrepresentation is a significant
negative factor; ii) the applicant showed no remorse; iii) the applicant
established herself in Canada to some degree and community support is in her
favour; and iv) the applicant’s alleged fear of return to Singapore due to
threats from Mr. Raj Veer conflicts with a written police report.
III.
Issues
[17]
The applicant raises the following issues for my
review:
1.
Whether the Board erred in law by ignoring,
confusing, mischaracterizing facts and/or misconstruing evidence?
2.
Whether there was a reasonable apprehension of
bias in the Board’s decision to dismiss the appeal of the applicant?
3.
Whether the Board breached the principles of
procedural fairness and natural justice by making a negative finding on
credibility and giving little weight to her testimony and the documentary
evidence produced by her.
[18]
The respondent raises two issues:
1.
The Board’s decision was reasonable; and
2.
The applicant has not provided any evidence of
reasonable apprehension of bias or a breach of procedural fairness.
[19]
I would rephrase the issues as follows:
1.
What is the standard of review?
2.
Was the Board’s decision reasonable?
3.
Was there a breach of procedural fairness or a
reasonable apprehension of bias?
IV.
Applicant’s Written Submissions
[20]
First, the applicant submits the Board ignored
her documentary and oral evidence. She argues the Board ignored the bank
statements and insurance policies which were issued in Singapore. These
documents substantiate her relationship with Mr. Raghani. She states the
renewal date on the insurance document demonstrates that she was with Mr.
Raghani until December 2008. Also at the hearing, the applicant provided the
reasons for her divorce and getting into a common law relationship. She
testified that due to inheritance matters, Mr. Raghani wanted to show his
mother through a divorce that the applicant was not there for the property. As
for the contradictions in the applicant’s former statements, she testified at
the hearing that she was stressed and had no counsel for guidance at the
previous interview.
[21]
Second, the applicant submits that she met the
requirements of a federal skilled worker on her own.
[22]
Third, the applicant submits her evidence before
the Board shows she felt very sorry for her omissions. She argues the Board
erred in finding she had no remorse.
[23]
Fourth, the applicant submits the Board
misunderstood her oral testimony concerning her visit to Mr. Raj Veer’s place
and the police report. She argues there was no inconsistency.
V.
Respondent’s Written Submissions
[24]
The respondent submits the standard of review regarding
the Board’s consideration of the evidence is the standard of reasonableness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraphs 46, 59, 61
and 63, [2009] 1 S.C.R. 339 [Khosa]).
[25]
The respondent submits the Board’s decision was
reasonable. Here, the Board based its credibility findings on numerous
inconsistencies, omissions and improbabilities in the applicant’s evidence.
[26]
First, the respondent argues the only issue is
whether the applicant disclosed the divorce. The respondent states even if Mr.
Raghani and the applicant remained to be common law spouses after their
divorce, it would not be reason to overturn the Board’s decision or the
underlying exclusion order. It argues there was a valid exclusion order on the
basis that a material fact was misrepresented or withheld pursuant to paragraph
40(1)(a) of the Act.
[27]
The respondent argues paragraph 40(1)(a) of the
Act is broadly worded to encompass misrepresentations even if made by another
party without the knowledge of the applicant. For a misrepresentation to be
material, it need not be decisive or determinative, but important enough to
affect the process (Masoud v Canada (Minister of Citizenship and Immigration),
2012 FC 422 at paragraphs 24 and 26, [2012] FCJ No 471). It argues the Board
upheld the exclusion order on a valid basis: i) neither the applicant nor Mr.
Raghani disclosed the divorce to CIC; and ii) the divorce was a material fact
in the permanent residence application that induced or could have induced an
error in the administration of the Act pursuant to paragraph 40(1)(a).
[28]
Second, the respondent argues the Board
considered the documentary evidence and the applicant’s testimony. The Board
found Mr. Raghani’s affidavit evidence that he informed the CIC not to be
credible. It was reasonable to find neither party informed CIC of the divorce.
The respondent argues the Board was reasonable to find the applicant and Mr.
Raghani did not remain a common law couple after their divorce in light of the
evidence in front of it. Similarly, the Board reasonably found the applicant
did not show remorse based on the evidence.
[29]
The respondent relies on RKL v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116 at paragraphs 9 and
10, [2003] FCJ No 162 [RKL]. It submits assessing credibility lies
within the heartland of the Board’s functions. It argues the Board may rely on
common sense and rationality and is entitled to make negative credibility
findings on the basis of inconsistencies, omissions and implausibilities. The
onus is on a permanent resident facing removal to establish why she should be
allowed to remain in Canada (Chieu v Canada (Minister of Citizenship and
Immigration), 2002 SCC 3 at paragraph 57, [2002] 1 S.C.R. 84).
[30]
Third, the respondent submits whether the
applicant was a skilled worker is irrelevant because she did not arrive in
Canada based on an independent application as a skilled worker.
[31]
Fourth, the respondent submits the applicant has
not pleaded any material facts to show bias or breach of procedural fairness.
The onus of demonstrating bias lies with the person who is alleging its
existence (R v RDS, [1997] 3 S.C.R. 484, at paragraphs 114 and 158, [1997]
SCJ No 84 [RDS]).
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[32]
The Board’s consideration of evidence is fact
based and this generally attracts a reasonableness standard of review (Khosa
at paragraphs 46, 59, 61 and 63). This means that I should not intervene if the
decision is transparent, justifiable, intelligible and within the range of
acceptable outcomes (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph
47, [2008] 1 S.C.R. 190). As the Supreme Court held in Khosa at paragraphs
59 and 61, a court reviewing for reasonableness cannot substitute its own view
of a preferable outcome, nor can it reweigh the evidence.
[33]
An issue of procedural fairness and natural justice
relates to the applicant’s right to be heard or to respond to the Board’s
concerns. A review on procedural fairness typically triggers the standard of
correctness. The Court must determine whether the process followed by the
decision maker satisfied the level of fairness required in all of the
circumstances (Khosa at paragraph 43).
B.
Issue 2 - Was the Board’s decision reasonable?
[34]
I find the Board’s decision was reasonable.
[35]
The applicant is of the view that the Board
ignored her documentary and oral evidence. The respondent submits the Board’s
decision was well founded and the Board did not ignore evidence in its assessment.
Here, I agree with the respondent.
[36]
This Court has consistently found credibility
assessment is at the heartland of a Board’s functions (RKL at paragraph
9):
Normally, the Board is entitled to conclude
that an applicant is not credible because of implausibilities in his or her
evidence as long as its inferences are not unreasonable and its reasons are set
out in “clear and unmistakable terms”: see Hilo v. Canada (Minister of
Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.); Aguebor v.
Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315
(F.C.A.) (“Aguebor”); Zhou v. Canada (Minister of Citizenship and
Immigration), [1994] F.C.J. No. 1087 (QL) (C.A.); and Kanyai, supra,
at para. 10.
[37]
Here, the Board acknowledged the applicant’s
documentary and oral evidence. It found the applicant was not credible in light
of the inconsistencies. I find its negative decision set out clear reasons in
paragraph 10 of its decision (applicant’s record at page 37).
[38]
First, the Board found the applicant’s divorce
from Mr. Raghani was a material fact relating to a relevant matter that induced
or could have induced an error in the administration of the Act. I agree with
this finding. Paragraph 40(1)(a) of the Act is broadly worded to encompass
indirect misrepresentations. Therefore, despite the inconsistent evidence, even
if the applicant did not know Mr. Raghani did not report the divorce to CIC,
the applicant still committed indirect misrepresentation. Paragraph 40(1)(a)
states:
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40. (1) A
permanent resident or a foreign national is inadmissible for
misrepresentation
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40. (1)
Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
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(a) for
directly or indirectly misrepresenting or withholding material facts relating
to a relevant matter that induces or could induce an error in the
administration of this Act;
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a)
directement ou indirectement, faire une présentation erronée sur un fait
important quant à un objet pertinent, ou une réticence sur ce fait, ce qui
entraîne ou risque d’entraîner une erreur dans l’application de la présente
loi;
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[39]
Second, the Board found neither the applicant
nor Mr. Raghani disclosed the divorce to CIC. I find this was a reasonable finding
based on the evidence.
[40]
Third, the Board found the applicant and Mr.
Raghani did not remain in or resume a common law relationship after their
divorce in May 2006. I find this was a reasonable finding in light of the
inconsistencies in the evidence before the Board.
[41]
The Board’s decision stated that the applicant
showed no remorse. However, a review of the hearing transcript shows that the
applicant did show remorse. Even if the Board did err in its finding of no
remorse, I do not believe that this error would be sufficiently material to
render the whole decision unreasonable. The degree of remorse shown by the
applicant is only one of several factors to be considered when assessing
whether discretionary relief should be granted.
[42]
Further, I agree with the respondent that in the
present case, the applicant’s qualification as a skilled worker was not a
relevant consideration because she was an accompanying spouse and did not have
an independent application.
[43]
Therefore, I find the Board’s decision was
reasonable.
C.
Issue 3 - Was there a breach of procedural
fairness or a reasonable apprehension of bias?
[44]
I find the Board did not breach procedural
fairness and there was no reasonable apprehension of bias. In RDS at
paragraph 114, the Supreme Court of Canada found the onus of demonstrating bias
lies with the person who is alleging its existence. In the present case,
although the applicant alleges that the Board was biased in dismissing her
appeal and it breached procedural fairness, she did not plead any material
facts in support. Therefore, the applicant did not meet her onus.
[45]
The application for judicial review by the
applicant is therefore dismissed.
[46]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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