Date: 20000620
Docket: IMM-3182-99
BETWEEN:
RAMPIYARI LINDA RAMKISSOON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.:
[1] These reasons relate to the judicial review of a decision by the Immigration Appeal Division that found that the applicant had obtained landing in Canada by reason of the misrepresentation of a material fact. Specifically, the applicant was found to have married Simon Pasad for the purpose of gaining entry to Canada as a permanent resident and not with the intention of living together with him as a spouse.
[2] The applicant married Seeraj Ramkisson on December 1, 1976, in Trinidad. They had two children. They all came to Canada in 1988. Seeraj applied for refugee status with the applicant listed as a dependent applicant. That application was unsuccessful and exclusion orders were issued against them in 1991. The applicant and her husband separated some time in 1991, and the evidence before the Board was that the applicant started dating Mr. Pasad, who was himself married at the time. Mr. Pasad and his wife divorced that year. The applicant and her daughters were deported to Trinidad in October 1992; Seeraj was deported to Trinidad in November, 1992.
[3] The applicant maintained that the only contact between her and Seeraj during the years that followed, was when he visited to maintain contact with his children.
[4] Mr. Pasad visited the applicant in Trinidad and they were married on March 24, 1993. Mr. Pasad then sponsored the applicant and her daughters for permanent residence in Canada. The applicant and her daughters arrived in Canada on July 28, 1995; they went to live with Mr. Pasad in his home in Scarborough. There was conflict in the evidence but, approximately two weeks later, the applicant and her daughters left that home to establish their own. Mr. Pasad states that the applicant initiated this separation. The applicant states the Mr. Pasad initiated this separation. There is evidence that Mr. Pasad"s divorced wife was living in the home at the time.
[5] The applicant and Mr. Pasad commenced divorce proceedings in November, 1995, and were divorced on February 16, 1996. Mr. Pasad was listed as the petitioner in the divorce proceeding. In December 1995, the applicant visited her ex-husband Seeraj, in New York, where he was living illegally. They were remarried on June 7, 1996. The applicant then sponsored Seeraj for admission to Canada as a permanent resident. In August of 1996, Mr. Pasad wrote to Immigration alleging that he had been used by the applicant to obtain permanent resident status in Canada.
[6] Counsel for the applicant argues that the adjudicator applied the wrong test when assessing the conflicting evidence that was presented by Mr. Pasad and the applicant. She argues that the IAD perpetuated this error by adopting and endorsing the error. Counsel argues that the adjudicator applied the test "who has the most to gain" when assessing the evidence of Mr. Pasad and the applicant, rather than applying the test set out in Horbas v. Canada (Minister of Employment and Immigration) [1985] 2 F.C. 359 (T.D.) and asking whether the applicant had entered into the (1) marriage primarily to gain admission to Canada, and (2) with no intention to reside permanently with Mr. Pasad.
[7] A review of the reasoning of the adjudicator and the IAD reveals that the reference to "who has the most to gain" was merely one factor among many that were taken into account when assessing the evidence as a whole. The adjudicator particularly noted: the short period of time between the applicant"s landing and her separation from Mr. Pasad; the short period of time between that separation and the commencement of divorce proceedings; the short period of time between the commencement of those proceedings and when the applicant and her husband met in New York; the short period of time between the divorce and the applicant"s remarriage to her first husband.
[8] In addition, the test that the IAD applied, and was required to apply, was not the Horbas test. The IAD was not addressing the bona fides of a spousal sponsorship application. The question the IAD had to answer was whether the applicant made a material misrepresentation, when applying for landing as Mr. Pasad"s spouse. This, indirectly, of course, 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 Mr. Pasad, permanently as his spouse. At the same time, the analysis of the evidence is different and the IAD can take into account, as it must, events subsequent to those assessed by the visa officer in Port of Spain when the applicant"s application for landing on the basis of Mr. Pasad"s sponsorship was approved.
[9] Counsel argues that Mr. Pasad"s evidence, that the applicant initiated the separation, should not be believed because: he paid for the divorce; he was named as the petitioner; he lied, saying he and the applicant had been separated for longer than they had, in order to obtain a speedier divorce; the consultant"s evidence allegedly supported the applicant"s version of events. Both the adjudicator and the IAD recognized the difficulties with Mr. Pasad"s evidence, and considered him to be complicit in the bringing of the applicant to Canada The IAD decision reads in part:
| There was much attention devoted at the inquiry and at the hearing concerning whether the appellant or Mr. Pasad initiated their divorce, who paid for the divorce and why Mr. Pasad's petition indicates a false date of their separation. I find this evidence of little probative value. I place full weight on the divorce consultant's evidence that he had done previous divorces for both the parties and that both parties arrived together at his office to initiate their divorce. It is uncontested that the appellant did not contest the divorce notwithstanding the incorrect date of separation submitted by Mr. Pasad in his petition. This evidence reasonably leads to the conclusion made by the adjudicator that both parties agreed to a speedy divorce. |
| In summary, I am persuaded that Mr. Pasad was a party to the appellant's efforts to remain in Canada with her children regardless of legal status since at least the time they began a relationship in 1990. In light of evidence that they agreed to a speedy divorce on the basis of fraudulent information and evidence that they remained on reasonably good terms from their separation in August 1995 until at least August 1996 when the poison pen was written, I am persuaded that their marriage was entered into primarily to facilitate the appellant's immigration to Canada. |
| The deportation order is valid in law. |
This assessment of the evidence is fully supported by the record.
[10] Lastly, counsel for the applicant argues that the IAD did not properly evaluate the factors that should have led it to exercise its special equitable jurisdiction and allow the applicant to remain in Canada, despite the valid deportation order that had been issued against her. The argument that equitable considerations require such a result is based on the presence of her daughters here, and their emotional dependency on the applicant. At the time of the hearing, the daughters were 20 and 21 years of age. One was about to go to the United States to pursue her studies. The other, having finished her studies, was hoping to find a job in Canada, in marketing.
[11] The IAD explained its reasons for refusing to exercise any special equitable jurisdiction:
| With respect to circumstances that might warrant the granting of special relief in this matter, I note the following. The action giving rise to the deportation order is a very serious matter. The misrepresentation of her marriage to Mr. Pasad is the single issue that facilitated her immigration to Canada as her sponsor's spouse in 1995. The misrepresentation also indirectly facilitated the immigration of her two daughters who accompanied her as dependants in 1995. |
| The appellant has denied throughout the inquiry and this hearing that she did not intend to live with Mr. Pasad as spouses in Canada. In this respect there is no evidence of remorse in relation to the misrepresentation. The appellant testified that she did not plan to take her children back to Trinidad after her refugee claim failed in 1989 or 1990. This indicates the appellant has had a long history of ignoring Canadian immigration rules to suit her own purpose. This evidence speaks of no rehabilitation and it does suggest a disposition to again abuse Canadian immigration processes if the opportunity arises in the future. |
| The appellant's children are now about 20 and 21 years old respectively. I am not persuaded that they are innocent or unaware of the misrepresentation that has facilitated their permanent residence in Canada. They were nine and ten years old when they came to Canada and began their relationship with their distant relative, Mr. Pasad. As they grew into adulthood over the past ten years they have witnessed at first hand the development of the relationship between their mother and Mr. Pasad. They have never been out of close contact with their father, Seeraj. At the hearing they supported their mother's evidence that Mr. Pasad was solely responsible for the break up of the marriage - which has been found not credible. While the children might or suffer some emotional hardship by their mother's removal from Canada, the reasons giving rise to same is one they have been reasonably aware of for some years. It is one which was authored in the intimate sphere of their home with their mother. These circumstances do not support the granting of special relief. |
| The appellant's husband, Seeraj, is currently living without status in the United States. The appellant married him in June 1996 in those same circumstances. It is reasonable to assume that Seeraj is at least currently aware that the appellant gained her landed status in Canada by misrepresenting her marriage to Mr. Pasad. These circumstances do not prove hardship to Seeraj if the appellant is removed form Canada. |
[12] I can see no error in that analysis.
[13] For the reasons given, this application will be dismissed.
" B. Reed"
J.F.C.C.
TORONTO, ONTARIO
June 20, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: RAMPIYARI LINDA RAMKISSOON |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| DATE OF HEARING: TUESDAY, JUNE 20, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: REED J. |
DATED: TUESDAY, JUNE 20, 2000
APPEARANCES: Ms. Robin Seligman
For the Applicant
Mr. Godwin Friday
For the Respondent
SOLICITORS OF RECORD: Robin L. Seligman
Barrister & Solicitor
1000-33 Bloor Street East
Toronto, Ontario
M4W 3H1
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000620
Docket: IMM-3182-99
Between:
| RAMPIYARI LINDA RAMKISSOON |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
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