Date: 20020830
Docket: IMM-3202-02
Neutral citation: 2002 FCT 923
BETWEEN:
KAMALJIT KAUR SIDHU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DAWSON J.
[1] These are my reasons for dismissing from the bench on August 27, 2002, at approximately 6:00 p.m., Ms. Sidhu's motion to stay her removal from Canada to India at 1:00 a.m. on August 28, 2002.
[2] The relevant facts with respect to Ms. Sidhu's immigration status are set out in the affidavit of an enforcement officer filed in opposition to the motion for a stay. The officer swore as follows:
2. The Applicant was landed in Canada on April 1, 1996 as the spouse of Ajitpal Singh Gill. She was divorced in January 1997 and then married Lakhvir Singh Sidhu on April 20, 1997 in India.
3. The Applicant made an application to sponsor her new husband but the visa officer refused the application on the basis that he entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class. The applicant appealed the refusal to the Immigration Appeal Division (the "IAD") which dismissed the appeal on March 4, 1999 after an oral hearing.
4. At the hearing before the IAD the Applicant through her counsel advised the IAD that the Applicant's first marriage was entered into primarily for the purpose of enabling the applicant to immigrate to Canada. Subsequent to the hearing before the IAD, Citizenship and Immigration issued a report alleging that the Applicant was a person described in section 27(1)(e) of the Immigration Act. An inquiry was then held before an Adjudicator in which the Applicant explained that in fact, the information she gave at the IAD hearing into her sponsorship of Mr. Sidhu was not true but that she testified under oath that her first marriage was one of convenience because of cultural duress. The Adjudicator found that she had not misrepresented herself. Now shown to me and marked as Exhibit "A" to this my affidavit is a true copy of the Reasons and Order of the Immigration Appeal Division dated September 20, 2000.
5. Citizenship and Immigration Canada then appealed the Adjudicator's decision to the IAD which appeal was successful. In its reasons of September 20, 2000, the IAD found that the Applicant had misrepresented herself. Accordingly, a deportation order was issued on that date. Now shown to me and marked as Exhibit "B" to this my Affidavit is a true copy of the Reasons and Order of the Immigration Appeal Division dated September 20, 2000. The Applicant then appealed the decision of the IAD to the IAD which appeal was dismissed on the basis that the Applicant was neither trustworthy nor credible. Now shown to me and marked as Exhibit "B" to this my affidavit is a true copy of the Aid's [sic]decision dated February 2000.
6. The Applicant then made a humanitarian and compassionate application on July 13, 2001 pursuant to s. 114(2) of the Immigration Act. The H & C application was subsequently denied in May 2002.
7. On June 13, 2002 a letter was mailed to the Applicant at her last known address requesting she attend for a removal interview on June 18, 2002. The Applicant failed to attend on June 18, 2002. A new interview was scheduled for June 19, 2002 at which the Applicant attended with a friend. The Applicant was directed to purchase her own ticket to India. The Applicant was directed to attend for a subsequent interview on June 26, 2002 to provide proof of purchase of her plane ticket. The Applicant did not attend on June 26, 2002 as directed and moved without providing CIC with her new address.
8. On June 26, 2002 CIC received a fax from the Applicant's representative advising that she had purchased a ticket as requested but that she and her husband Mr. Sidhu had separated and she was now living "common law" with a Mr. Mund. The Applicant has now made a second H & C application to be sponsored by her current "common law" partner.
9. A warrant was issued for the Applicant's arrest as she consistently failed to attend for removal interviews and had failed to provide Citizenship and Immigration with a change of address. The Applicant was subsequently released on terms and conditions including a $3000.00 cash bond.
10. The Applicant filed an application for leave and judicial review of the removal order on June 28, 2002. On July 2, 2002 she filed a motion to stay her removal but discontinued that motion when counsel for the Department of Justice advised that she could not be removed until her Pre-Removal Risk Assessment ("PRA") had been completed under the new Immigration and Refugee Protection Act.
11. The Applicant's PRA was denied on August 14, 2002. A warrant was issued for the Applicant's arrest on August 21, 2002. The Applicant was subsequently arrested on August 26, 2002. Upon arrest the Applicant was advised of her right to counsel and that she was being arrested for removal. I was advised by the arresting officer and verily believe it to be true that the Applicant contacted her counsel Naren Nagin shortly after she was arrested.
[3] Ms. Sidhu sought a stay pending processing of the humanitarian and compassionate ("H & C") application filed on June 26, 2002. She says she will suffer irreparable harm if returned to India because she has no one to stay with in India and it "is impossible for a woman in Indian culture to live alone" and because all of her emotional dependency is on her new common-law spouse and that "both of us are in a very fragile emotional state and I verily believe that it would lead me to suicide if I had to return to the very adverse circumstances in India".
[4] The motion was dismissed on the basis that Ms. Sidhu failed to establish irreparable harm.
[5] Irreparable harm requires more than the distress inherent in removal. Given that, and the recent nature of Ms. Sidhu's relationship I was not persuaded that Ms. Sidhu would suffer irreparable harm on the basis of separation from her new partner if forced to leave Canada while her H & C application is processed.
[6] Ms. Sidhu's affidavit in support of this motion was sworn on June 27, 2002. She provided no advice of medical treatment for depression or any other condition, although ample time was available to do so. Given that, and Ms. Sidhu's prior history of providing evidence calculated to favour her immigration status, her evidence that she feared she would be led to suicide was not persuasive.
[7] Similarly, no objective evidence was provided to support Ms. Sidhu's claim that it is impossible for a woman in Indian culture to live alone. Moreover, those fears were not stated in the H & C application which Ms. Sidhu signed on June 26, 2002. It is, in my view, reasonable to infer that any genuine and substantial fear would have been mentioned in that application.
[8] Ms. Sidhu has asserted no claim for status as a Convention refugee. On February 19, 2001 the Appeal Division of the Immigration and Refugee Board reviewed the impact upon Ms. Sidhu of her removal to India and found no undue hardship. In May of this year an H & C application was refused, and any allegation of risk would have been considered. The result of her pre-removal risk assessment ("PRA") was negative.
[9] For those reasons I concluded that no irreparable harm was established.
[10] The one concern raised by this application was that Ms. Sidhu had not received reasons for the negative PRA. She simply was provided with a letter wherein a box was checked which stated "It has been determined that you would not be subject to risk of persecution, torture, risked life or risk of cruel and unusual treatment or punishment if returned to your country of nationality or habitual residence".
[11] Counsel for the Minister advised that it was her understanding that reasons would be available on request, much in the form of the memoranda or notes previously provided on request in respect of decisions of a post-claim determination officer.
[12] In view of my finding that irreparable harm was not established it was not necessary to consider if the absence of reasons gave rise to a serious question. In another case, with cogent evidence of risk, the absence of those reasons might well give rise to an adjournment of the motion for a stay on terms so that reasons could be provided, or perhaps to a finding that a serious issue was raised by the absence of reasons.
(Sgd.) "Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3202-02
STYLE OF CAUSE: Kamaljit Kaur Sidhu v. MCI
PLACE OF HEARING: Vancouver BC
DATE OF HEARING: August 27, 20002
REASONS FOR ORDER : DAWSON J.
DATED: August 30, 2002
APPEARANCES:
Mr. Mir Huculak FOR APPLICANT
Ms. Brenda Carbonell FOR RESPONDENT
SOLICITORS OF RECORD:
Mir Huculak FOR APPLICANT
Vancouver
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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