Soddy v. Canada (Minister of Citizenship and Immigration), 2003 FC 1502

Date: 20031219

Docket: IMM-2038-03

Citation: 2003 FC 1502

Ottawa, Ontario, this 19^th day of December, 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                          

BETWEEN:

                                                 RAJNI SINGH a.k.a. RAJNI SODDY

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                      REASONS FOR JUDGMENT AND JUDGMENT

[1]                 In 1995, Rajni Singh married her nephew, Narinder Pal Soddy, in India in order to be able to obtain a visa to Canada as his accompanying spouse. Once in Canada, she divorced Mr. Soddy and remarried. She sponsored her second husband, Mr. Sukhvinder Singh, to become a landed immigrant in 2000. They have a child, Gunndeep, who was born in 1999.

[2]                 An immigration officer subsequently ordered Ms. Singh to be deported on the basis that she had misrepresented material facts in her applications. She had maintained that she had a legal and genuine marriage with Mr. Soddy when, in fact, it was neither. It was an unlawful and opportunistic marriage entered into solely to achieve admission to Canada. She also failed to disclose that she had made a previous application to immigrate to Canada and did not mention all of her siblings.

[3]                 Ms. Singh appealed her deportation order unsuccessfully. She now argues that the Appeal Division made two serious errors in denying her appeal and she asks me to order a re-hearing before a different panel. I cannot find any error on the part of the Appeal Division and must, therefore, dismiss Ms. Singh's application for judicial review.

Issues

[4]                 Ms. Singh raised two issues:

1.          Did the Appeal Division err by finding that Ms. Singh knew that her second husband had also made misrepresentations in order to obtain landed status in Canada?

2.          Did the Appeal Division fail to give adequate consideration to her son's best interests?

1. Did the Appeal Division err by finding that Ms. Singh knew that her second husband had also made misrepresentations in order to obtain landed status in Canada?

[5]                 The Appeal Division considered a number of factors in deciding whether to allow Ms. Singh's appeal, relying on the Immigration Appeal Board's decision in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4, No. T84-9623 (QL). It discussed in some detail the most important factors: the seriousness of the applicant's misrepresentation and the circumstances surrounding it. Ms. Singh takes issue with two of the Appeal Division's observations. It said:

·            "It was clear from the evidence that the appellant was aware of her husband's immigration history and it appears she was aware of the failure to disclose relevant information in documents related to the appellant's sponsorship of her husband."

·            "These were not inadvertent misrepresentations but deliberate actions to facilitate her admission to Canada as well as her second husband's admission to Canada."

[6]                 Ms. Singh argues that these statements are unsupported by evidence and, as such, show that the Appeal Division's decision was patently unreasonable.

[7]                 It is clear from the evidence that Ms. Singh did deliberately misrepresent the circumstances surrounding her first marriage and, in respect of the process of sponsoring her second husband, did fail to disclose relevant information to immigration authorities. True, there was no direct evidence that she actually knew about her second husband's own misrepresentations, of which he testified in detail. But I do not read the Appeal Division's impugned statements necessarily as amounting to an accusation that Ms. Singh actively colluded in her husband's deceptions. In any case, there was at least some evidence from which the Appeal Division could have inferred that Ms. Singh knew something of her husband's immigration history.

[8]                 I cannot find any fact-finding error on the part of the Appeal Division. Further, its conclusion that Ms. Singh's misrepresentations were serious was open to it on the evidence.

2. Did the Appeal Division fail to give adequate consideration to her son's best interests?

[9]                 Certainly the Appeal Division gave some consideration to the situation of Ms. Singh's Canadian-born son. It noted the following:

·            it would be in the boy's best interests to keep the family unit together;

·            the boy's father will likely be facing removal proceedings soon;

·            the boy's extended family lives in India;

·            a good education is available in India;

·            while the boy became ill during a visit to India, there was no evidence that he was suffering from any particular condition or that he would suffer medical problems if he returned to India.

[10]            Ms. Singh argues that the Appeal Division's analysis of her son's best interests was dismissive and fell well short of the Supreme Court of Canada's requirement that decision-makers be "alert, alive and sensitive" to the interests of children: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (QL), at para. 75. In particular, Ms. Singh submits that the Appeal Division did not specifically consider the benefits that her son would enjoy if he were allowed to stay in Canada and grow up here - after all, he is a Canadian citizen and is entitled to remain here even if she is not.

[11]            Décary J.A. addressed a similar argument in Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2002] F.C.J. No. 1687 (QL). He stated that a decision-maker who is considering the best interests of a child "may be presumed to know that living in Canada can offer a child many opportunities and that, as a general rule, a child living in Canada with her parent is better off than a child living in Canada without her parent." (at para. 5). As such, the best interests of the child will usually favour non-removal of the parent. It is unnecessary for a decision-maker to make a specific finding to that effect because "such a finding will be a given in all but a very few, unusual cases" (at para. 6). The decision-maker must, however, determine "the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent." (at para. 6).

[12]            Did the Appeal Division do so in this case?

[13]            The Appeal Division concluded that if Ms. Singh were allowed to remain in Canada with her son, the family unit would likely be split up because there was strong evidence suggesting that the boy's father would be removed from Canada. Ms. Singh suggests that this was pure conjecture on the part of the Appeal Division. I disagree. The Appeal Division heard evidence to the effect that her husband had been under investigation for some time. It properly took into account the situation of the father in determining the best interests of the child.

[14]            In the end, the Appeal Division found that the best interests of the child would not be seriously compromised by Ms. Singh's removal to India since her son would have the benefit of an intact family unit, an extended family network and good educational opportunities.

[15]            I find that the Appeal Division's analysis of the child's best interests was adequate in the circumstances. It considered the respective benefits and disadvantages to the child of Ms. Singh's removal or non-removal. I cannot characterize its decision as dismissive of the child's best interests. I must, therefore, dismiss this application for judicial review.

[16]            Counsel for Ms. Singh requested an opportunity to make submissions regarding a question of general importance on the issue of the best interests of the child. I will consider those submissions if filed within five business days of this judgment. The respondent will have three further business days to respond.

                                                                        JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.          The application for judicial review is dismissed;

2.          Request by counsel for the applicant for an opportunity to propose a question of general importance regarding the best interests of the child for certification is granted. It should be filed within five (5) business days following this judgment;

3.          Counsel for the respondent shall have three (3) business days to reply.

                                                                                                                                      "James W. O'Reilly"       

                                                                                                                                                               Judge     

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-2038-03

STYLE OF CAUSE:                           RAJNI SINGH aka RAJNI SODDY v. MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     Vancouver, British Columbia

DATE OF HEARING:                       December 4, 2003

REASONS FOR JUDGMENT

AND JUDGMENT BY :                  THE HONOURABLE MR. JUSTICE O'REILLY

DATED:                                                December 19, 2003

APPEARANCES:

Mr. William J. Macintosh                                                               FOR THE APPLICANT

Ms. Sandra E. Weafer                                                                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

William Macintosh Associates                                                        FOR THE APPLICANT

210-12732 80^th Avenue St.

Surrey, British Columbia V3W 3A7

Tel.: (604) 502-9875

Fax: (604) 502-9895

Morris Rosenberg                                                                           FOR THE RESPONDENT

Deputy Attorney General for Canada

Department of Justice