Date: 20091001
Docket: IMM-1799-09
Citation: 2009
FC 990
Ottawa, Ontario,
October 1, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
HARPREET KAUR DEOL
(aka: KULWINDER KAUR DEOL)
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
A removal
order was issued against the respondent on September 19, 2007 by a Member of
the Immigration Division, who determined that she was inadmissible under
section 40(1)(a) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (“IRPA”) for misrepresenting or withholding material
facts resulting in an error in the administration of the IRPA. The
respondent’s appeal to the Immigration Appeal Division (“IAD”) was allowed and
the removal order was set aside in a decision dated March 24, 2009. The
applicant Minister now seeks judicial review of the IAD decision.
[2]
After having
carefully reviewed the records and the submissions filed by both parties, I
have come to the conclusion that this Court ought not to intervene in the IAD
decision. While Ms. Deol’s misrepresentations were egregious, the IAD
thoroughly went through all the appropriate factors before determining there
are sufficient humanitarian and compassionate grounds to grant special relief. These
are my reasons for concluding that this application for judicial review must be
dismissed.
I. FACTS
[3]
The respondent is a
40-year-old citizen of India. In 2002, using a false identity, she
was granted permanent resident status in Canada as a member of the family class
after being sponsored as a spouse by the respondent’s biological brother. The
deception was facilitated by a fraudulent birth certificate, an Indian passport
and a fabricated date of birth. She divorced her brother in September of 2003,
and in April of 2004 was re-married to her current spouse in India. She then filed a sponsorship application for her spouse,
which was refused.
[4]
In 2005, Citizenship
and Immigration Canada became aware of the respondent’s misrepresentation. In
July of 2005 a report was prepared under subsection
44(1) of the IRPA to determine if the respondent was inadmissible due to
being a person described in subsection 40(1)(a) of the IRPA. The
respondent was found inadmissible 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 the IRPA, and a removal order
was issued against the respondent.
[5]
Ms. Deol then filed a
refugee claim which was heard in November of 2006. She explained at the hearing
that she had been sexually assaulted by a powerful man in India in 1999, who had continued to threaten her, and whom she
still feared. She also alleged that since the attack was widely known in the
community, the only way to save her life and honour was to marry her brother. The
Refugee Protection Division (“RPD”) did not find the respondent’s story
credible, wondered whether the attack ever occurred, and in any event did not
accept that the only solution was to marry her brother. In the result, Ms. Deol
was found not to be a Convention refugee or a person in need or protection.
[6]
The respondent
appealed the removal order before the IAD pursuant to subsection 63(3) of the IRPA.
She did not challenge the validity of the removal order, but instead requested
that the IAD exercise its discretion to allow special relief, on the basis of
section 67(1)(c) of the IRPA.
II. THE IMPUGNED DECISION
[7]
The IAD relied on the
factors enumerated in Ribic v. Canada (Minister of Employment and Immigration) (I.A.B. T84-9623) as the appropriate
considerations in the exercise of its discretionary jurisdiction. These
factors, listed below, are not exhaustive and the weight assigned to each of
them will vary depending on the circumstances of each case:
·
The seriousness of
the misrepresentation leading to the removal orders and the circumstances
surrounding it;
·
The remorsefulness of
the applicant;
·
The length of time
spent in Canada and the impact on the family that removal
would cause;
·
The appellant’s
family in Canada and the impact on the family that
removal would cause;
·
The support available
to the applicant in the family and the community;
·
The best interests of
a child directly affected by the decision; and
·
The degree of
hardship that would be caused to the applicant by removal from Canada, including the conditions in the likely country of removal.
[8]
The IAD found that
the respondent’s degree of misrepresentation was “on the extreme end of the
spectrum” and potentially had a direct or indirect influence on whether or not
the applicant would be granted landing in Canada. The IAD also noted that no credible
evidence was adduced at the hearing to warrant disturbing the findings of the
RPD, according to which the respondent was not credible with respect to her
story and to the fear of her alleged assailant. Similarly, the IAD found the
witnesses’ claim that the only way to save the respondent’s life and honour was
through marrying her brother because no other matches would be available in
India was not credible.
[9]
The IAD also found
that the respondent’s expressions of remorse lacked credibility. More
specifically, the IAD Member wrote: “[She] has not articulated genuine
understanding as to the nature and consequences of misrepresentation to the
immigration process in Canada and that she was concerned with the
impact of the discovery of her misrepresentation had on her life”.
[10]
The IAD also
determined that the respondent had a degree of establishment in Canada given
the length of her residence in this country, her full-time job, her owning of a
car, her savings, and her close relationship with those members of her family
established in Canada.
[11]
The crucial factor in
the decision of the IAD was undoubtedly the very significant degree of hardship
the respondent would suffer as a result of her removal from Canada. First, the IAD found that the respondent has never lived
independently or without support of her family in India; she was always dependent on her immediate family’s
decisions with respect to her life. Given the respondent’s immediate family’s
efforts to bring her to Canada, her removal to India would cause a significant impact both on the respondent and
her family because of their strong emotional ties. The IAD noted that by making
misrepresentations her parents and brother risked their own status in Canada.
[12]
Moreover, the IAD
accepted the respondent’s testimony that her husband in India, upon learning
the details of her previous marriage, does not want her to return to India. The IAD felt that on a balance of probabilities, her
husband would seek to discontinue the marriage. This led the IAD to consider
the difficult plight in India of a divorced woman, without family
support. It also accepted the respondent’s evidence that neither her sister nor
her aunt in India would invite her to move in. The IAD
opined that even with housing and financial support from her family, the
respondent would be unlikely to secure employment in India. Finally, the IAD took note of the respondent’s fear of
returning to India, and found that the members of her
family living in Canada were unlikely to return to India for the sake of living with her there.
[13]
After having balanced
these factors with public policy considerations, the IAD held that the factors
militating towards removal were outweighed by the evidence of significant
hardship for the respondent. It therefore allowed the appeal and concluded that
there are sufficient humanitarian and compassionate considerations that warrant
special relief.
III. ISSUES
[14]
The only question to
be determined in this case is whether the decision of the IAD was reasonable,
in light of all the circumstances.
IV. ANALYSIS
[15]
There is no issue as
to the standard of review, as both parties agree that the applicable standard
is that of reasonableness. As was the case in Canada
(Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, the impugned decision calls
for discretionary relief based on humanitarian and compassionate reasons; as
such, a reviewing court ought not to reweigh the evidence or substitute its own
appreciation of the appropriate solution, but must rather determine if the
outcome falls within a range of reasonable outcomes.
[16]
Counsel for the
applicant argued that the IAD made two credibility findings that are irreconcilable
without providing adequate reasons for the discrepancy. In her view, the IAD
could not accept as true the respondent’s evidence with respect to the hardship
she would face if returned to India, after having previously rejected her
story that she had to marry her brother in the first place to preserve her life
and honour. Since the whole premise for the marriage of the respondent with her
brother was disbelieved, the IAD had to explain why it accepted her evidence of
hardship.
[17]
I do not find
unreasonable or contradictory these two conclusions of the IAD. Even if the
reason given by the respondent for marrying her brother is not believed, it may
nevertheless be accepted that she would face hardship as a result of this
marriage. The premise to the existence of hardship is not the reason why she
married her brother, but instead, it is because her current husband did not
know that she married her brother in a religious ceremony. There is nothing
incompatible in these findings.
[18]
The applicant also
contended that the IAD did not refer to any objective evidence supporting the
allegation that the respondent’s husband would divorce her, and was mistaken in
applying the decision of this Court in Warna v. Canada (Minister of Citizenship and
Immigration), 2003 FC
1283. In that case, an expert provided testimony with respect to the position
of a single, divorced woman who was living alone without the support of her
family in India. According to the applicant, Ms. Deol is
not currently divorced, and whether or not she will be divorced upon return to India is pure speculation.
[19]
This is obviously a
credibility finding and the IAD based its assessment on the testimony of the
respondent and her brother. Unlike this Court, the IAD had the opportunity to
face the witnesses and to evaluate their non-verbal language and their
reactions. From a Canadian perspective, the respondent’s relationship with her
current husband and his family and the hostile social reaction to the “misuse”
of the religious ceremony might seem disproportionate and implausible. But
cultural differences must be taken into account in an immigration context. Seen
from that angle, it is not unreasonable to believe that the respondent
concealed the details of her first marriage to her current husband, or that he
will seek divorce if she ever goes back to India. Accordingly,
I do not think that the decision of the IAD falls outside the range of
reasonable outcomes.
[20]
Although the
respondent abused the immigration system and is not entirely credible, this
application for judicial review should nevertheless be dismissed. This Court
may well have reached a different conclusion, but that is not the standard
against which the decision of the IAD must be assessed. Its conclusion to grant
the respondent special relief was based on a thorough assessment of the
appropriate factors as developed in Ribic. The IAD was clearly troubled
by the seriousness of the respondent’s misrepresentations, but nevertheless
concluded that this factor was outweighed by the severe hardship the respondent
would experience as a single woman if removed to India. This
finding was not unreasonable, in light of the evidence that was before the IAD
Member.
[21]
For all of the above
reasons, this application for judicial review must therefore be dismissed. No
question of general importance was raised by counsel, and no such question will
be certified by the Court.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that this
application for judicial review is dismissed. No question of general importance
is certified.
"Yves
de Montigny"
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