Date: 20090521
Docket: IMM-4877-08
Citation: 2009 FC 532
Edmonton, Alberta, May 21,
2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
HARJINDER
SINGH GILL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Harjinder Singh Gill’s appeal of an exclusion order was dismissed by the
Immigration Appeal Division of the Immigration and Refugee Board. Mr. Gill now
seeks judicial review of that decision, asserting that the Board erred in
failing to properly consider the best interests of Mr. Gill’s son.
[2]
For the reasons that follow, I am satisfied that the Board did not err
in its analysis of this issue. As a consequence, the application for judicial
review will be dismissed.
Background
[3]
Mr. Gill came to Canada in 2004 as a dependant child, sponsored by his
brother. Mr. Gill represented in his application for permanent residence that
he was single and had no dependants. It turns out that Mr. Gill was in fact
married at the time, and had a child.
[4]
Mr. Gill’s misrepresentation was subsequently discovered, and an
exclusion order was made against him by the Immigration Division of the Board.
On appeal to the IAD, Mr. Gill did not challenge the misrepresentation finding,
but argued that there were sufficient humanitarian and compassionate
considerations, including the best interests of his son, to warrant special
relief.
The IAD’s Decision
[5]
The Board recognized that in exercising its discretion on the appeal, it
was required to have regard to the factors identified in Ribic v. Canada (Minister of
Employment and Immigration), [1985] I.A.B.D. No. 4.
The Board examined each of the Ribic factors in its decision, finding
that Mr. Gill’s testimony was not entirely credible, and that he had been
equivocal and misleading.
[6]
Insofar as the best interests of Mr. Gill’s son were concerned, the
Board held that it would be in the best interests of the child to have his
father in India. While Mr. Gill had testified that he would not be able to pay
for his son’s schooling if he were returned to India, the Board observed that
there was no evidence as to the superiority of the particular school that the
child was attending over the school that he would otherwise have to attend. Nor
was there evidence that Mr. Gill could not use the assets that he had in Canada
to continue to fund his son’s schooling.
Analysis
[7]
The question for the Court is whether the IAD’s decision was reasonable:
see
Canada
(Minister of Citizenship and Immigration) v. Khosa,
2009 SCC 12.
[8]
Mr. Gill asserts that the Board’s decision was unreasonable, as the
Board failed to consider the possibility of the reunification of Mr. Gill and
his son in Canada in its assessment of the child’s best interests.
[9]
It is true that Mr. Gill did make passing reference in his testimony
before the IAD to his desire to have his family join him in Canada, in the
event that his appeal was successful, so that “they could have a good life here”.
No evidence was provided by Mr. Gill, however, as to how the interests of his son
would be better served by having the son come to Canada, rather than being
reunited with his father in India. Indeed, the focus of all of Mr. Gill’s
evidence with respect to his son’s interests was on the hardship that the child
would suffer if Mr. Gill was required to return to India.
[10]
In assessing the best interests of a child directly affected by a
decision, the burden is on the applicant to adduce the evidence on which he
relies, and the IAD is only obliged to address evidence actually adduced by the
applicant: Owusu v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 38.
[11]
Very little information was put before the IAD with respect to the best
interests of Mr. Gill’s son, and what evidence was adduced on this point was
considered and weighed by the Board. I am therefore satisfied that the
consideration of the best interests of Mr. Gill’s son was sufficient, in the
circumstances.
Conclusion
[12]
The Board’s decision was reasonable, and was one that falls
within the range of possible acceptable outcomes that are defensible in light
of the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 47. As a consequence, the
application for judicial review is dismissed.
Certification
[13]
Neither party has suggested a question for certification, and none
arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2.
No serious question of general importance is certified.
“Anne
Mactavish”
Judge
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