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Date: 20260402 |
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Docket: IMM-20228-24 |
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Citation: 2026 FC 434 |
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Toronto, Ontario, April 2, 2026 |
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PRESENT: The Honourable Justice Thorne |
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BETWEEN: |
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GURSEWAK SINGH GHOTRA |
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Applicant |
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and |
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MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant seeks judicial review of an Immigration Appeal Division [IAD] decision to uphold an exclusion order issued by the Immigration Division [ID]. The ID found the Applicant inadmissible to Canada for misrepresentation under paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act]. The ID determined the Applicant had misrepresented the genuineness and purpose of his marriage to his first wife, in order to secure immigration status in Canada. On appeal, the IAD found the removal order to be legally valid and held that there were insufficient Humanitarian and Compassionate [H&C] considerations to warrant special relief under paragraph 67(1)(c) of the Act. [Decision]
[2] The Applicant argues that the IAD erred and that its Decision was unreasonable, as its findings as to the genuineness of the marriage did not reflect the record and had been made in a perverse, capricious manner and, further, that he had established sufficient H&C considerations to warrant special relief.
[3] For the reasons that follow, this application is dismissed. I find that the Applicant has not established that the Decision is unreasonable.
II. Background
[4] The Applicant is a citizen of India living in Canada with his spouse, who is his third wife, and their young child. He has been a permanent resident since 2003, when he was granted this status after having been sponsored by his first wife, RKG. It is this first marriage which was later the subject of misrepresentation proceedings.
[5] On February 9, 2002, the Applicant married RKG, in India. Approximately one month later, on March 6, 2002, a Canadian spousal sponsorship application was submitted in relation to the marriage. A year later, on March 6, 2003, the Applicant arrived in Canada at age 24 as the sponsored spouse of his first wife and was granted permanent residence status upon landing.
[6] Though the exact duration and location are contested by the parties, after arriving in Canada the Applicant then lived with his first wife for approximately five to seven days, before they then lived apart for the remainder of the marriage. The Applicant separated from RKG on April 13, 2003, approximately five weeks after having arrived in Canada. He remained in Canada after the separation. The Applicant alleges that at some point in 2005, he learned RKG was having an affair.
[7] On February 14, 2005, the Applicant left Canada for India, and a few weeks later, on February 28, 2005, he filed for divorce. On June 23, 2005, the divorce was finalized. Around the end of June 2005, the Applicant became engaged to his second wife, KK. On July 1, 2005, he and his second wife were married in India. On July 26, 2005, the Applicant re-entered Canada though KK remained in India.
[8] On November 3, 2005, KK signed a spousal sponsorship application, with the Applicant as the sponsor. Upon review of the timeline of the Applicant’s previous marriage and sponsorship, the application was referred by an ID officer for a misrepresentation investigation on February 16, 2006.
[9] On June 1, 2009, KK was interviewed by a visa officer in New Delhi regarding the genuineness of the marriage and the spousal sponsorship application was refused on July 7, 2010. This decision was later upheld on appeal to the IAD.
[10] On November 10, 2015 the Applicant was made the subject of an inadmissibility report pursuant to subsection 44(1) of the Act, which asserted he was inadmissible under subsection 40(1) for having misrepresented material facts that induced an error in the administration of the Act. It was alleged that the Applicant had failed to disclose that he had entered into a marriage of convenience for the purpose of obtaining status in Canada.
[11] The Admissibility Hearing was held on September 11, 2023 and the Applicant was found to be inadmissible, prompting the Immigration Division to issue an exclusion order against him, with immediate effect.
[12] The Applicant appealed the ID decision to the IAD, where he contested the allegations that his first marriage was not genuine, and in the alternative, sought special relief to be allowed to remain in Canada on humanitarian and compassionate grounds.
III. Decision
[13] By a Decision dated October 15, 2024, the IAD upheld the exclusion order and found that there were not sufficient humanitarian and compassionate grounds to grant special relief under paragraph 67(1)(c) of the Act. In doing so, the IAD considered both whether the removal order was valid in law and also whether to exercise its discretionary power to allow special relief on H&C grounds. The IAD ultimately agreed with the ID Member’s assessment of the evidence and noted that on appeal, further unexplained inconsistencies arose from the evidence.
[14] In finding the removal order valid, the IAD found that there were a series of significant inconsistencies in relation to the Applicant’s evidence and explanations about living in Canada with his first wife and pertaining to the breakdown of that relationship. It noted that across his divorce application, throughout the ID proceedings and then in his testimony on appeal at the IAD, a range of further inconsistencies emerged. The IAD determined that pursuant to paragraph 40(1)(a) of the Act, the Applicant had thus directly or indirectly misrepresented material facts relating to his first marriage, a relevant matter that induced or could induce an error in the administration of the Act. Essentially, it determined that had the visa officer known that the Applicant’s first marriage had not been genuine, and rather that its primary purpose had been to gain status, the Applicant would not have qualified as a spouse to be sponsored for permanent residence under the Act.
[15] The IAD also considered whether humanitarian and compassionate factors warranted special relief under paragraph 67(1)(c) of the Act. Under this analysis, the IAD considered the non-exhaustive Ribic factors (Ribic v Canada (Minister of Employment and Immigration), [1985] IABD No 4 (Immigration Appeal Board) at para 14 [Ribic factors], approved in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at paras 40, 77 and 90 [Chieu]; modified for misrepresentation cases as per Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at para 11). In summary, it particularly considered:
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Seriousness of the misrepresentation: The IAD found this to be a strong negative factor “weighing very heavily against the granting of special relief”
, as the IAD found that the Applicant’s marriage was part of a fraudulent plan, that directly involved the Applicant, to obtain PR status. As part of this finding, the IAD noted the Applicant had multiple opportunities to remedy this situation and explain his motivation for entering the marriage, stretching from the initial sponsorship process interview prior to 2003 up until the ID hearing in 2023.
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Remorse: As the Applicant continued to maintain that there was no misrepresentation, the IAD found that this lack of remorse “did not weigh in favour of special relief.”
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Establishment in Canada: The Panel attached moderate weight towards special relief a result of this consideration. It noted the Applicant had been in Canada for over 21 years and had represented that he owned a home and rental property, though no evidence of this had been presented. However, the IAD noted that the impact of the establishment factor was mitigated to only moderately weighing in favour of special relief, since this establishment had been obtained through his misrepresentation.
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Impact on Applicant’s family members in Canada: The IAD found this factor weighed mildly in favour of special relief. The IAD found that the current possibility of separation or family relocation involving the Applicant’s current wife, who arrived in Canada as an independent immigrant through the Federal Skilled Worker’s program in 2019 and has been married to the Applicant since 2022, would reasonably have been anticipated as the Applicant met and married his wife years after the inadmissibility report was written against him. It also noted that the Applicant had started this family knowing that separation or family relocation was a reasonable possibility. The IAD observed that there was no independent evidence from the Applicant’s wife regarding her intentions should he be required to leave Canada, and it rejected the Applicant’s statement that his wife and child would choose to remain in Canada as an embellishment to exaggerate the impact of his removal. In any event, the IAD found that it was also reasonably open to his wife and child to relocate with him to India at least temporarily, and though his wife would experience the hardship of relocation, she could maintain her residency in Canada. The IAD found that though the consideration of a potentially negative effect on the Applicant’s current wife and child generated some positive weight in favour of special relief, the lack of evidence indicating that this would be the likely outcome attenuated this concern, resulting in only a mild weight in favour of special relief. It also found that as there was very limited evidence about other extended family in Canada, that further consideration did not weigh in favour of special relief.
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Best interests of the child [BIOC]: The IAD found that this factor weighed mildly in favour of special relief. It noted it would be in the best interests of the Applicant’s toddler to remain in the care of both of their parents, but that this could happen in either Canada or India. The Panel noted that it was more convenient for the family to stay together in Canada to maintain the status quo, however, the Panel noted that virtually no evidence had been presented by the Applicant in support of his assertions that the child’s best interests would not be met if the family relocated to India. No country condition evidence had been provided to support the Applicant’s claims of anticipated schooling deficiencies and gender discrimination in India. Ultimately, the IAD found that “[r]elocating as a family to India has not been established as running counter to the child’s interests on a balance of probabilities”
given the child’s young age, the temporariness of the five-year ban and the child’s access to their extended family. While the IAD noted that separation from the child’s father would run counter to their best interests, it also noted it was not established in evidence whether the Applicant’s spouse and child would relocate to India and held that this also mitigated the weight attracted to this factor to a degree.
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Hardship on removal: The IAD finally found that this factor weighed mildly in favour of special relief. However, it again noted the lack of documentary evidence to support the Applicant’s assertions about finding work and earning money in India, and after weighing the evidence that was available, found that it was reasonable that the Applicant could re-establish himself in India. The Panel considered the hardship if the family decided to separate, and determined the weight of this factor was only mildly in favour of special relief as that had not been established as a likely outcome, on balance of probabilities. The IAD also found that there was no evidence supporting the Applicant’s claims that he might face danger from his second wife’s family in India and held, on balance of probabilities, that there was no risk or hardship arising on this front.
[16] In sum, the IAD concluded that, though there were some factors which weighed in favour of granting special relief, ultimately there were insufficient H&C factors to overcome the “significant negative factor”
of the Applicant’s “serious and deliberate”
misrepresentation. As a result, special relief was determined not to be warranted.
[17] Finally, the Panel found that there were no unique or special circumstances warranting consideration of discretionary relief.
IV. Issue and Standard of Review
[18] The sole issue raised by this matter is whether the Decision is unreasonable.
[19] The standard of review of the merits of a decision is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paragraphs 10 and 25 [Vavilov]). Discretionary decisions of the IAD are reviewed on a standard of reasonableness. (Shen v Canada (Public Safety and Emergency Preparedness), 2025 FC 732 at para 69 [Shen]; Liu v Canada (Citizenship and Immigration), 2019 FC 184 at para 19; Islam v Canada (Citizenship and Immigration), 2018 FC 80 at para 7; Li v Canada (Minister of Public Safety and Emergency Preparedness), 2021 FC 358 at para 10; Yang v Canada (Public Safety and Emergency Preparedness), 2022 FC 329 at para 47; see also Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paras 57-60, 67) [Khosa]. While there is a general deference owed to discretionary decisions given the experience and expertise of the decision maker, in undertaking reasonableness review the Court must assess whether the decision bears the hallmarks of reasonableness – namely justification, transparency and intelligibility (Vavilov at para 99; Shen at para 70). Further, it is the applicant that bears the onus of demonstrating that a challenged decision is unreasonable (Vavilov at para 100).
[20] I note that a reasonable decision is one that is “based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker”
(Vavilov at paras 85 and 101; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 64 [Mason]). The reasonableness standard requires that there is deference to such a decision (Vavilov at para 85).
[21] Accordingly, before a decision can be set aside as unreasonable, the reviewing court must be satisfied that there are “sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
(Vavilov at para 100).
V. Relevant Provisions
[22] Subsection 16(1) of the Act obliges a person seeking to enter or remain in Canada to answer truthfully and produce all relevant evidence and documents reasonably required by the officer. A permanent resident or foreign national is inadmissible for misrepresentation 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”
(paragraph 40(1)(a)). Misrepresentation can be found if a person entered into a marriage, common-law partnership or conjugal partnership “primarily for the purpose of acquiring any status or privilege under the Act”
or if the marriage, common-law partnership or conjugal partnership “is not genuine”
pursuant to paragraphs 4(1)(a) and (b) of the Immigration and Refugee Protection Regulations.
[23] A permanent resident or foreign national who is found to have misrepresented is inadmissible and may have a Section 44(1) report written against them and referral to the Immigration Division for an admissibility hearing (ss 44(2) of the Act). As here, the Immigration Division may then make a removal order against a permanent resident or foreign national who they have determined inadmissible pursuant to paragraph 45(d) of the Act. A permanent resident or protected person may challenge the legal validity of the removal order decision to the Immigration Appeal Division (ss 63(3) of the Act).
[24] The Immigration Appeal Division holds discretionary jurisdiction under paragraph 67(1)(c) to consider whether sufficient humanitarian and compassionate factors, including the best interests of any child directly affected by the decision, warrant special relief.
[25] In conducting the H&C assessment, the IAD considers the following non-exhaustive Ribic factors, modified for misrepresentation cases:
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The seriousness of the misrepresentation leading to the removal order;
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Any expression of remorse;
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The length of time spent, and the degree to which the individual facing removal is established, in Canada;
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The family and community support available to the individual facing removal;
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The family in Canada and the dislocation to the family that removal would cause;
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The degree of hardship that would be caused to the individual facing removal to their country of nationality; and
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The best interests of any children directly affected.
[26] The weight given to each H&C factor is case-specific (Li v Canada (Citizenship and Immigration), 2022 FC 542 at para 22; Khosa at para 65). The onus rests upon an Applicant to establish that there were sufficient H&C considerations to warrant special relief, despite a valid removal order (Chieu at para 57).
VI. Analysis
A. The Misrepresentation Decision was reasonable
[27] The Applicant makes a wide variety of arguments as to why the IAD Decision should be found unreasonable. He submits that the decision was made without regard to certain evidence, and that the Panel rendered its decision “based on findings of fact unsupported by the evidence; the member’s inferences were unreasonable, ignored and failed to consider relevant evidence provided by the applicant.”
The Applicant submits that in particular, the following evidence was misapprehended or overlooked: Photos of the Applicant and his first wife, which the Applicant states indicate that the marriage was genuine; explanations as to the Applicant’s residency on April 13, 2005; the Applicant’s explanation as to the grounds of the divorce and why this testimony varied from the information recorded in the divorce application that had been filed; the Applicant’s assertions as to why he seemed unaware of the pregnancy of his first wife; and the Applicant’s explanations to his alleged efforts to save the marriage.
[28] In essence, the Applicant argues that the Panel failed to appropriately consider his explanations in relation to a series of inconsistencies that, in the view of the IAD, undermined the genuineness of the marriage, and further that it had ignored or failed to give proper weight to certain of the evidence and documents which had been submitted by the Applicant. He particularly notes that the Panel did not heed his explanation that the inconsistencies in his evidence as to the cause of the divorce were because he had initially been ashamed to speak of his wife’s adultery.
[29] For its part, the Respondent canvassed the evidence that was before the Panel and noted the relatively extensive series of inconsistencies that emerged when the documentary evidence in relation to the Applicant’s divorce, his first wife’s immigration proceedings, the IAD proceeding in relation to his second marriage, and the Applicant’s own testimony in his various proceedings were compared and contrasted. The Respondent noted that a number of the Applicant’s current explanations remained undermined by this evidence. For example, his explanation of the reason for the divorce had evolved, as he originally had said that this was because there was little communication between he and his first wife in his divorce application, but now says that he had initiated the divorce because he had discovered his wife’s adultery. The Applicant now explains that this inconsistency was because he had initially been unwilling to mention the adultery in the divorce application. However, a comparison of the evidence established that in his second wife’s immigration case, he had given evidence that he had only learned of the first wife’s adultery during the divorce proceedings against the first wife. This, in turn, contradicted his claim that he had initiated that divorce proceeding because of the adultery, and also contradicted his testimony before the ID in the matter at hand, where he claimed that he had learned of the affair in March 2004, the year before the divorce.
[30] The Respondent argues that evidence such as this essentially speaks for itself, that such inconsistencies cannot be dismissed as minor, and that significant misrepresentations with respect to material facts about the Applicant’s first marriage are apparent. They assert that the IAD decision is well-reasoned, speaks to the evidence before it, and that on the basis of this evidence the IAD’s finding that the Applicant had engaged in a marriage of convenience was a reasonable one. The Respondent argues that the Applicant essentially faults the IAD for not ignoring the extensive evidence that undermines his claims, and now merely seeks to have the Court reweigh the evidence.
[31] I agree with the Respondent that the submissions of the Applicant essentially seek a reassessment or reweighing of the evidence. From the record, the IAD carefully considered the issues surrounding the Applicant’s residency and other inconsistencies, along with the rapid timing of his marriage, separation, divorce and re-marriage. In my view it reasonably concluded that:
“[w]ithin weeks of arrival in Canada the couple separated, having spent little if any time together here. The limited time living together in Canada, despite his immigration to Canada purportedly being to be with his wife, and his remaining in Canada after the relationship’s quick breakdown, support the finding that the marriage was primarily for the purpose of obtaining status in Canada.”
[32] I do not find that Singh v Canada (Citizenship and Immigration), 2014 CanLII 95409 (CA IRB) [Singh], which was raised by the Applicant, is helpful in establishing that the IAD failed to properly consider his arguments and evidence. Though this decision also concerned an IAD appeal of the refusal of a sponsorship application for a permanent resident visa in which the IAD considered whether a marriage was genuine, in Singh, it was held that the IAD found “few apparent discrepancies in the evidence”
which were “not of such a nature or extent as to generally undermine the credibility of the appellant and applicant.”
That is wholly unlike the matter at hand, in which the crux of the IAD decision revolved around the extensive evidentiary discrepancies it identified.
[33] I also find that though the IAD’s decision did not explicitly refer to certain pieces of evidence advanced by the Applicant, such as the photos or the cultural context explanation that the marriage had been arranged, that did not undermine the IAD’s determination. As this Court has repeatedly stated, the IAD is not expected to refer to every piece of evidence before them (Kaur Nahal v Canada (Citizenship and Immigration), 2016 FC 81 at para 11). There is rather a strong presumption that a decision maker has considered and weighed all the evidence (Ayala v Minister of Citizenship and Immigration, 2007 FC 690 at para 23, citing Yushchuk v Canada (Minister of Employment and Immigration), [1994] FCJ No 1324 (QL), at paragraph 17). The Applicant has not rebutted this presumption, and I do not find that there was any fundamental misapprehension or failure to account for evidence (Vavilov at para 126; Mason at para 73).
[34] I further note that with regard to assessments under Section 4 of the Act, “significant deference is owed to immigration officers who assess the bona fides of a marriage”
(Onwubolu v Canada (Immigration, Refugees and Citizenship), 2018 FC 19 at para 11, citing Shahzad v Canada (Citizenship and Immigration), 2017 FC 999 at para 14). As it is not the function of this Court to reweigh or reassess the evidence considered by the decision maker, on judicial review a reviewing court should not interfere with factual findings, absent exceptional circumstances (Vavilov, at para 125). I do not find such exceptional circumstances present here.
[35] In short, I do not find the Officer’s misrepresentation finding to be unreasonable.
[36] I also do not find the IAD’s determination that there were not sufficient humanitarian and compassionate grounds to grant special relief in this matter unreasonable.
[37] The Applicant essentially argues that the IAD’s assessment of these considerations was tainted by pre-determination, as he submits that the Panel erred by finding that the seriousness of “the unproven misrepresentation allegations”
weighed heavily against special relief. He also asserts that the IAD unfairly held that his lack of remorse weighed heavily against granting him special relief, and that the IAD did not give due consideration to his evidence as to his establishment in Canada or the degree of hardship that removal to India would cause him. Finally, he argues that the IAD did not take seriously enough the consideration of the best interests of his child and had wrongly speculated that they would not be seriously impacted, in not finding that this consideration should have weighed heavily in favour of special relief.
[38] I do not find these arguments persuasive. I note that for the most part, all of the Applicant’s submissions as to the H&C assessment simply invite the court to reweigh the evidence assessed by the IAD. This is particularly true with respect to what he characterizes as the “unproven misrepresentation allegations”
, where the Applicant rejects the IAD’s balance of probability finding of misrepresentation, in the hopes that the Court will back a different conclusion. I also note that the Applicant mischaracterizes the IAD’s finding regarding remorse as “factors that weighed heavily against the request for special relief”
, whereas the Panel’s finding was rather that his “lack of remorse does not weigh in favour of special relief.”
The IAD thus construed remorse (or the lack thereof) as a neutral factor in its determination, not one that weighed heavily against the request for special relief, as claimed.
[39] Counsel for the Applicant similarly mischaracterized the best interest of the child analysis of the IAD in stating that the Panel had unreasonably found that the impact of removal “would have little or no impact on her [the Applicant’s daughter’s] interests.”
The IAD rather held that the BIOC weighed only mildly in favour of granting special relief in this case because effectively no evidence had been presented by the Applicant in support of any of his assertions as to how the child might be impacted. For example, no evidence was provided to indicate whether the entire family would relocate to India, or in support of claims that, if they did, that living in India would be detrimental the child, or for that matter, in support of an alternate assertion that the Applicant’s wife and child would remain in Canada, if he had to return to India.
[40] Undoubtedly, in a BIOC analysis, the interests of children must not be in any way minimized and should be given substantial weight – the decision maker must be “alert, alive and sensitive”
to their interests (Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para 75).
[41] However, no evidence was provided in this matter to establish what the situation would be for the child were the Applicant to be required to leave Canada, or which indicated what the negative repercussions on the child would be in such a situation. This was despite the fact that, as stated in the Decision, the Applicant had received a postponement of the scheduled hearing specifically to allow for H&C related evidence to be submitted. The IAD noted that the Applicant could have provided such evidence to establish what the situation would be, or alternately country condition evidence that spoke to the realities that might be faced by the child, but did not do so.
[42] In lieu of any such evidence, the IAD cannot be faulted for failing to conclude that the BIOC weighed heavily in favour of granting special relief to the Applicant. In any given case, the best interests of the children directly affected are examined “in light of all the evidence”
(Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at para 39; D’Aguiar-Juman v Canada (Minister of Citizenship and Immigration), 2016 FC 6 at para 9). An applicant further has the burden of adducing proof of any claim on which the H&C request relies (Semana v Canada (Citizenship and Immigration) 2016 FC 1082; see also Chieu at para 57). Given the paucity of evidence and explanation provided, I do not find the BIOC analysis of the IAD to be unreasonable.
[43] In sum, I do not find, in light of the extensive set of findings in the Decision, that the Applicant has met his burden to demonstrate that there are shortcomings in the Decision sufficiently serious to deprive it of the requisite degree of justification, transparency, and intelligibility. Rather, the reasoning of the Decision is intelligible, internally coherent and rational and, in my view, is justified in relation to the facts and law. I do not find the IAD’s decision to be unreasonable.
VII. Conclusions
[44] For the above reasons, this application for judicial review is dismissed.
[45] The parties proposed no question for certification, and I agree that none arises.
JUDGEMENT IN IMM-20228-24
THIS COURT’S JUDGMENT is that:
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The application for judicial review is dismissed.
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No question of general importance is certified.
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No costs are awarded.
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