Date: 20090501
Docket: IMM-4305-08
Citation: 2009 FC 445
Ottawa, Ontario, May 1, 2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
HARBANS SINGH UPPAL
MANJIT KAUR
SANDEEP KAUR
BAIRAJ SINGH
IQBAL SINGH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Harbans Singh Uppal, Manjit Kaur and three children seek judicial review
of a decision refusing their applications for permanent residence through a
family sponsorship. While acknowledging that Mr. Uppal and Ms. Kaur had
initially misrepresented the nature of their familial relationships, the
applicants submit that the misrepresentation was withdrawn prior to a decision
being made in relation to their application.
[2]
The applicants argue that in these circumstances, there was no material
misrepresentation that induced or could induce an error in the administration
of the Immigration and Refugee Protection Act. The immigration officer
further erred, the applicants say, in failing to give any weight to documents
provided by them to demonstrate the validity of the marriage between Mr. Uppal
and Ms. Kaur.
[3]
For the reasons that follow, I am not persuaded that the immigration
officer erred as alleged. Consequently, the application for judicial review
will be dismissed.
Background
[4]
The applicants are citizens of India. They applied for permanent
residence as members of the family class. The applicants were sponsored by
Amandeep Singh Kaur, who was initially represented to be the biological child
of both Mr. Uppal and Ms. Kaur.
[5]
Mr. Uppal was the principal applicant in the family’s application for
permanent residence. He indicated on his application form that he had never
been married prior to his marriage to Ms. Kaur.
[6]
When the couple were interviewed in India, Ms. Kaur was asked to explain
why there was such a substantial age difference between Amandeep and the three
applicant children. Ms. Kaur explained that she had experienced medical
problems after giving birth to Amandeep, and had been advised by her doctor not
to have any more children. When she was asked why it was that she had then had
three more children, Ms. Kaur claimed that after taking medication, her medical
problems resolved themselves, and she had then had her three younger children.
Thus, Ms. Kaur clearly represented to the immigration authorities that she was
the biological mother of all four children.
[7]
The family’s application for permanent residence was refused when the
officer was not satisfied that the three applicant children were in fact the
dependant children of Mr. Uppal and Ms. Kaur. An application for judicial
review was commenced with respect to that decision, but was resolved when the
family agreed to undergo DNA testing, in order to establish the familial relationship.
[8]
It is not entirely clear from the CAIPS notes as to whether it was the
applicants or CIC that had initially raised the possibility of DNA testing.
However, Mr. Uppal’s affidavit makes it clear that the request to carry out DNA
testing came from the immigration officer.
[9]
By letter dated August 30, 2007, Amandeep Singh Kaur wrote to CIC
advising that his family members were prepared to undergo DNA testing. At the
same time, he also advised that Mr. Uppal was his “real” father, and that
Sandeep Kaur Uppal was his “real” sister. He further advised that Manjit Kaur
was in fact his step-mother, and that Balraj Singh Uppal and Iqbal Singh Uppal
were his step-brothers.
[10]
DNA tests subsequently established that Mr. Uppal was the biological
father of all four children, but that Ms. Kaur was only the mother of the two
youngest children.
[11]
Mr. Uppal then changed his story, and claimed that he had previously
been married to another woman, and that he and his first wife had two children
together prior to her death in 1987. He then married Ms. Kaur, and the couple
had two more children, raising all four children together.
[12]
The immigration officer then asked the applicants to provide the death
certificate for Mr. Uppal’s first wife, along with the marriage certificate for
the marriage between Mr. Uppal and Ms. Kaur, and for Mr. Uppal’s first
marriage. The officer also asked for copies of photographs documenting each of
Mr. Uppal’s weddings.
[13]
A death certificate for Mr. Uppal’s first wife and a marriage
certificate relating to the marriage between Mr. Uppal and Ms. Kaur were
subsequently provided by the applicants. Both of these documents were issued
after the date of CIC’s request, notwithstanding that they purport to record
events occurring more than 20 years ago. Mr. Uppal blames his lack of literacy
for not having recorded the events in question at the time that they took
place.
[14]
The only explanation provided by the applicants for their initial
misrepresentation of the family’s situation was Mr. Uppal’s claim in his
affidavit that he did not mention the fact that his children had two different
mothers in his application because he did not think that it was relevant, as he
was the biological father of all of the children.
[15]
No explanation has been provided by Mr. Uppal as to why he lied on his
application for permanent residence when he said that he had never been married
prior to marrying Ms. Kaur. Similarly, no explanation has been provided by Ms.
Kaur as to why she lied in her interview with respect to her alleged medical
difficulties following the birth of Amandeep, and the effect that these
problems had on the timing of the births of her three younger children.
The Immigration Officer’s Decision
[16]
The immigration officer found the applicants to be inadmissible pursuant
to section 40(1)(a) of the Immigration and Refugee Protection Act, for
having misrepresented or withheld material facts.
[17]
The officer found the death and marriage certificates to be
“self-servicing (sic)”, because they were produced after the CIC request
was made, despite the fact that local officials maintain civil records
throughout the Punjab and Rajasthan. Despite having been specifically
requested by the officer, no photographs were ever provided with respect to
either of Mr. Uppal’s marriages. In this regard, the officer observed that
weddings are highly festive events in India, and that photographs of
celebratory events have been available for decades, even in rural Punjab and
Rajasthan.
[18]
The officer concluded that if the applicants’ misrepresentations had not
been discovered, the processing of their applications for permanent residence
could have led to errors in the administration of the Immigration and
Refugee Protection Act having been made. In particular, a visa could have
been issued to Ms. Kaur, as the wife of Mr. Uppal, when he may not in fact have
been free to remarry, as it had not been satisfactorily established that his
first wife was in fact deceased.
[19]
As a result, the officer refused the applications for permanent
residency for misrepresentation, with the result that the applicants are
inadmissible to Canada for two years.
Standard of Review
[20]
The applicants argue that the officer erred in finding that they had
misrepresented a material fact relevant to their applications that could have
induced an error in the administration of the Act, given that the situation was
clarified prior to a decision having actually been made in relation to their
applications for permanent residence.
[21]
The applicants also argue that the officer erred in finding that there
was insufficient evidence to establish the veracity and chronology of Mr.
Uppal’s relationships.
[22]
Finally, the applicants say that the officer erred in failing to
consider Ms. Kaur’s eligibility for sponsorship as a common-law spouse, in the
event that the officer was not satisfied as to the legality of her marriage to
Mr. Uppal.
[23]
These issues either involve the application of statutory provisions to
the facts of this case, or the evaluation and weighing of the evidence. As
such the immigration officer’s decision should be reviewed against the standard
of reasonableness: see Dunsmuir v. New Brunswick, 2008 SCC 9.
[24]
In reviewing a decision against the reasonableness standard,
the Court must consider the justification, transparency and intelligibility of
the decision-making process, and whether the decision falls within a range of
possible acceptable outcomes which are defensible in light of the facts and the
law: see Dunsmuir at paragraph 47.
Was there a Misrepresentation within the Meaning
of Section 40(1)(a) of IRPA?
[25]
Section 16(1) of IRPA
requires that a person making an application under
the Act truthfully answer all questions that may be put to them. Section
40(1)(a) of the Act provides that a foreign
national will be inadmissible to Canada for misrepresentation 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”.
[26]
It is clear that the applicants
concealed the fact of Mr. Uppal’s first marriage, and misrepresented the true
nature of the relationship between Ms. Kaur and the two older children. The
family history and the nature of the familial relationships between the various
parties to the applications for permanent residency are clearly both relevant
and material in a family sponsorship application.
[27]
Although counsel endeavored to
portray the “clarification” letter sent by Amandeep as a voluntary correction
of the record by the applicants, the reality is that they only acknowledged the
true nature of the relationships between the various individuals once it was
clear that their misrepresentation was about to be revealed through DNA
testing.
[28]
The applicants rely on the
decision in Kaur v. Canada (Minister of Citizenship and Immigration), 2007 FC 268, as authority for the proposition
that a misrepresentation that has been withdrawn cannot form the basis of a
finding under section 40 of the Act. However, a review of that decision
discloses that the case is readily distinguishable from the present situation.
[29]
In Kaur, the applicant
had made misrepresentations in connection with her unsuccessful refugee claim.
Her subsequent application for permanent residence accurately reflected the
true state of affairs. In those circumstances, the Court quite properly found
that the applicant’s earlier misrepresentations could not have induced an error
in relation to the application for permanent residence. That is not the
situation here.
[30]
The misrepresentations in this case were
made in the context of the applications for permanent residence that were under
consideration by the officer. In such circumstances, the fact that the
misrepresentations were disclosed by the applicants prior to a final decision
having actually been taken in relation to their applications does not assist
them. Indeed, this Court specifically rejected this argument in Khan v.
Canada (M.C.I.), 2008 FC 512, at paras. 27-29.
[31]
That is, the Court held in Khan that such an
interpretation would lead to situations where individuals could knowingly
misrepresent their circumstances, but nevertheless escape an inadmissibility
finding, as long as they disclosed the misrepresentation right before a
decision was made. Not only would such an interpretation encourage the abuse
of the Act, it also ignores the requirement to provide truthful information in
applications under the Act.
[32]
The Court’s concerns in Khan
are amply illustrated by the facts of this case, where the applicants only came
forward with their “clarification” once they knew that their lies were about to
be uncovered through genetic testing.
[33]
As a consequence, I am
satisfied that the officer’s conclusion that the applicants had misrepresented
material facts relating to a relevant matter that could have induced an error
in the administration of the Act was one that was reasonably open to him on the
record before him.
The Officer’s
Evaluation of the Documentary Evidence
[34]
The applicants submit that it was
unreasonable for the officer to have rejected the death certificate for Mr.
Uppal’s first wife, and the marriage certificate for the marriage between Mr.
Uppal and Ms. Kaur simply on the basis that they were both issued after the
request from CIC, and were thus self-serving. Regardless of the timing of
their issue, the applicants say that the documents were issued by public
authorities, and should thus have been viewed as reliable.
[35]
A review of the officer’s reasons as a whole discloses that the officer
actually had several reasons for discounting the reliability of these
documents, quite apart from the fact that they were only issued in response to
the request from CIC. The officer clearly had doubts as to the documents’
authenticity, as well as with the applicants’ explanation as to why the
documents had not been issued at the time of the events in question. Relying
on his local knowledge, the officer observed that civil records are routinely
maintained throughout Rajasthan and Punjab.
[36]
The officer was also clearly very troubled by the failure of the applicants
to produce any photographs with respect to either wedding, despite having been
specifically asked to do so. In the absence of any contemporaneous evidence
whatsoever to document Mr. Uppal’s first marriage, the death of his first wife,
or his second marriage, the officer’s concerns with respect to “the veracity
and chronology” of Mr. Uppal’s relationships were entirely reasonable.
The Failure to Consider Ms. Kaur’s Eligibility as Mr.
Uppal’s Common-law Wife
[37]
The applicants submit that even if the
officer had concerns with respect to the legality of Mr. Uppal and Ms.
Kaur’s marriage, the officer was nevertheless obliged to consider her
eligibility to be sponsored as Mr. Uppal’s common-law wife.
[38]
CIC’s “OP 2 Processing Members of the Family Class” Manual makes it
clear that applicants are required to indicate the category under which they
are applying for immigration to Canada. Conjugal partners, common-law partners
and spouses are all different categories, with different requirements. The
Manual is quite clear that there is no obligation on an officer to re-assess an
application by considering a relationship between the applicant and the sponsor
that is different than the one specified in the application itself: see section
5.51.
[39]
Furthermore, it is by no means clear that Ms. Kaur would even qualify as
Mr. Uppal’s common-law wife. Having children together and alleging that they
lived together for 20 years is not sufficient to establish that they meet the
definition of common-law spouses. It was impossible for the officer to know
whether Mr. Uppal’s first wife was indeed dead, or what the status actually was
of this first marriage. Moreover, any ongoing relationship between Mr. Uppal
and his first wife could preclude a finding of a common-law relationship
between Mr. Uppal and Ms. Kaur: see OP 2: Processing Members of the Family
Class, section 5.38.
Conclusion
[40]
For these reasons, I am satisfied that the officer’s
decision was reasonable, in that it falls within the range of possible
acceptable outcomes which are defensible in light of the facts and the law. As
a consequence, the application for judicial review is dismissed.
Certification
[41]
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”
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