Docket: IMM-4663-11
Citation: 2012 FC 455
Toronto, Ontario, April 19, 2012
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
|
|
NANTHINY SIVAKUMAR
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF PUBLIC
SAFETY
AND EMERGENCY PREPAREDNESS
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
Ms. Nanthiny Sivakumar (the
“Applicant”) seeks judicial review of the decision made by the Immigration and
Refugee Board, Immigration Appeal Division (the “IAD”) on June 28, 2011.
In that decision, the IAD dismissed the Applicant’s appeal of her removal order
made on February 4, 2009 by a Member of the Immigration Division (the
“ID”). The ID had found the Applicant inadmissible pursuant to paragraph 40(1)(a)
of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (the
“Act”), that is upon the basis of a misrepresentation.
II. Background
[2]
The
Applicant
is a citizen of Sri
Lanka. She
was married to Kandiah Sivakumar in Singapore, in a traditional Hindu religious ceremony, on
October 21, 2003. This marriage was registered with the civil authorities on
November 14, 2003.
[3]
On
April 21, 2004, the husband submitted an application to Sponsor and Undertaking
for the Applicant. The application was approved by a visa officer and the
Applicant became a permanent resident upon landing in Montréal, Quebec, on December 31, 2004.
[4]
The
Applicant moved in with her husband in Montréal, but claims that the husband
wanted her to engage in sexual practices that appeared unnatural to her. She
left him on January 21, 2005, and went to Toronto where she had family members.
[5]
By
letter dated July 9, 2005, the husband wrote to Citizenship and Immigration
Canada complaining that the Applicant did not live with him and did not intend
to live with him. He also referred to the outstanding undertaking to sponsor
her: “I signed a contract responsible for 3 yrs in Canada. I do not want to take
care to her anymore. I am not responsible for her any action or as claim for
refugee status in Canada or financial help …”.
[6]
This
letter from the husband led to correspondence dated December 20, 2007, from a
Hearings Officer at the Canada Border Services Agency to the Applicant,
convoking her to an admissibility hearing pursuant to subsection 44(2) of the
Act.
[7]
An
admissibility hearing was held by the ID on February 4, 2009. The evidence
before the ID consisted of the oral testimony from the Applicant, the letter
from the Applicant’s husband, a copy of a joint divorce petition submitted to
the Ontario Superior Court dated February 21, 2006 and a copy of a Divorce
Judgment dated July 4, 2006, dissolving the marriage of the Applicant and her
husband. The ID concluded that the Applicant was inadmissible due to a
misrepresentation as to the genuineness of her marriage pursuant to paragraph
40(1)(a) of the Act and an exclusion order was issued against the
Applicant at the end of that hearing.
[8]
The
Applicant pursued an appeal before the IAD and a hearing was held on February
18, 2011. The evidence before the IAD consisted of the transcript of the
proceedings before the ID, the decision of the ID, certain documentary evidence
about country conditions in Sri Lanka, particularly concerning the status of women and cultural
norms about reporting family violence, and the oral evidence of the Applicant.
[9]
The
Applicant testified about the circumstances of her marriage, the circumstances
surrounding her departure from her husband in January 2005, the circumstances
about signing the divorce petition. She testified about the many factual errors
contained in the petition, including the fact that she could not have signed
the petition on the date indicated since she was in United Kingdom at that
time, as shown by stamps in her passport; that her husband had arranged for the
lawyer and she did not know the lawyer’s name; that the address given for her
on the divorce petition was not her address since she had never lived in
Scarborough, Ontario; that the husband’s address was incorrect as he was not a
resident of Ontario; and that when she signed the petition, it was blank and
did not include the statements upon which the ID and ultimately the IAD relied.
[10]
Much
of the argument before the IAD focused on whether the Applicant had been
represented by a lawyer in the signing and drafting of the joint petition for divorce.
III. Discussion and Disposition
[11]
The
IAD found that the Applicant is inadmissible on the basis of having made a
misrepresentation, pursuant to paragraph 40(1)(a) of the Act. That
paragraph provides as follows:
|
40.
(1) A permanent resident or a foreign national is inadmissible for
misrepresentation
(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;
|
40. (1) Emportent interdiction
de territoire pour fausses déclarations les faits suivants :
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;
|
[12]
The
issue arising in this application for judicial review is one of mixed fact and
law and therefore reviewable on the standard of reasonableness (see Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59).
[13]
According
to the decision in Khosa, supra, the reviewing Court is to assess
the challenged decision in terms of justification, transparency and
intelligibility; it is not open to it to substitute its own view of a
preferable outcome.
[14]
In
my opinion, having regard to the record and the applicable standard of review,
the IAD’s decision does not meet the standard of reasonableness. The decision
appears to be based upon speculation on the part of the decision-maker. In that
regard, I refer to paragraphs 30, 32 and 33 where the IAD said the following:
[30] .
. . The joint petition for divorce does not contain a completed lawyer’s
certificate. However, there is a Superior Court of Justice of Ontario certificate of divorce dated September 29, 2006 on which
there is a handwritten certification of same date by a Regina Tyronne attesting
that it is a true copy of the original Court certificate. […]
[32] .
. . Moreover, there was no reason suggested as to why anyone would place a fake
stamp providing so much personal detail on a Court certificate that evidences
the completion of the divorce case, unless the person whose name is on the
stamp is who she represents herself to be. […]
[33] Despite
the appellant having made written submissions well in advance of this hearing
calling into question whether the appellant actually attended before a lawyer
or just thought the person her sponsor arranged for her to see was a lawyer,
the appellant was unable to state the name of the Tamil speaking lawyer that
assisted her with her joint petition for divorce. […]
[15]
The
uncontested facts in this matter are that the Applicant married and
subsequently divorced. I fail to see how the involvement of a lawyer, or
otherwise, in the drafting and filing of a joint petition for divorce, raises
questions about the genuineness of her marriage. In my opinion, the IAD reached
an unreasonable conclusion and thereby committed a reviewable error.
[16]
In
the result, the application for judicial review will be allowed and the matter
remitted to a differently constituted panel of the IAD for redetermination.
[17]
There
is no question for certification arising.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review of the decision of the Immigration Appeal Division (the “IAD”) of the
Immigration and Refugee Board is allowed. The matter is hereby returned to a
differently constituted panel of the IAD for redetermination.
“E. Heneghan”
Email this Content