Date: 20080721
Docket: IMM-5498-07
Citation: 2008 FC 893
Toronto, Ontario, July 21, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
NASIB KAUR BARM (MORE)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of
the decision of a member of the Immigration Appeal Division of the Immigration
and Refugee IAD (IAD), dated December 5, 2007 (Decision) dismissing the
Applicant's appeal of a removal order made against her on February 27, 2007,
pursuant to subsection 40(2) of the Act.
I. Background
[2]
The Applicant, Ms.
Nasib Kaur Barm (More), is a 35-year old citizen of India who came to Canada as an accompanying dependent on her
father’s permanent residence application. She was granted landing on November
17, 2001. On February 27, 2007, the Applicant was found to be inadmissible to Canada for having directly or indirectly misrepresented her age on
her father's visa application. The Applicant was nine years older than the age
stated on the application. As a result of this misrepresentation, a removal
order was issued against her.
[3]
The Applicant
appealed the removal order to the IAD, seeking special relief on humanitarian
and compassionate (H&C) grounds under subsection 67(1)(c) of the
Act. The Applicant did not challenge the legal validity of the removal order.
The IAD refused the appeal. This is the Decision under review in the present
application.
[3]
II.
Decision Under Review
[4]
The IAD found that
there were insufficient H&C grounds to warrant special relief in the
Applicant's circumstances. The IAD held that the Applicant was not credible
and that, among other things, she attempted to minimize her responsibility for
the misrepresentation of her real date of birth. At paragraph 9 of the Decision,
the IAD stated as follows:
In
my view, the appellant's contradictory statements regarding how old she really
was and her prior undisclosed marriage undermine her credibility and illustrate
that she was not forthcoming in her dealings with immigration authorities
either in the statement made at the interview or in her claims to the contrary
during the hearing. In light of the obviously deceptive statements made by the
appellant, I cannot believe that the appellant's failure to declare her real
date of birth was not done deliberately. In any event, it was ultimately the
appellant's responsibility to ensure that the information she provided was
correct and accurate, and she has failed to establish that her omissions can
reasonably and credibly be explained.
[5]
The IAD also noted other
inconsistencies and implausibilities in the Applicant’s testimony, and that she
had lied under oath in an appeal before the IAD in 2004. That appeal involved
the Applicant's sponsorship of her husband in India.
[6]
The IAD also
considered the hardship the Applicant would face if returned to India and the
Applicant's degree of establishment in Canada, but concluded that these factors were
not sufficient to warrant a stay of the removal order based on H&C
considerations.
[6]
III. Issues
Preliminary
Issue
[7]
The Applicant has filed
three affidavits: one deposed by herself and sworn on January 10, 2008; an affidavit
of Sukhminder Kaur Sihota; and an affidavit of Balbinder Kaur Sall, both sworn
on April 24, 2008. The three affidavits were not before the IAD when it made
its Decision dismissing the Applicant's appeal. It is well-settled law that,
apart from certain well-recognized exceptions that are not present in this case,
evidence that was not before the decision-maker is not admissible on judicial
review. As these affidavits do not fall within any of the recognized exceptions,
but are primarily a response to the IAD’s Decision, they do not properly form
part of the record on this judicial review. Thus, they will not be considered as
part of this application.
[7]
[8]
The issue on this
application is:
1. In exercising its H&C
discretion, did the IAD make an erroneous finding of fact by ignoring or
misconstruing evidence before it?
IV. Relevant
Statutory Provisions
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; […]
(2) The following provisions govern subsection
(1):
(a) the permanent resident or the foreign national
continues to be inadmissible for misrepresentation for a period of two years
following, in the case of a determination outside Canada, a final
determination of inadmissibility under subsection (1) or, in the case of a
determination in Canada, the date the removal order is enforced; […]
67. (1) To allow an appeal, the
Immigration Appeal Division must be satisfied that, at the time that the
appeal is disposed of,
[…]
(c) other than in the case of an appeal by the
Minister, taking into account the best interests of a child directly affected
by the decision, sufficient humanitarian and compassionate considerations
warrant special relief in light of all the circumstances of the case.
|
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; […]
(2) Les
dispositions suivantes s’appliquent au paragraphe (1):
a)
l’interdiction de territoire court pour les deux ans suivant la décision la
constatant en dernier ressort, si le résident permanent ou l’étranger n’est
pas au pays, ou suivant l’exécution de la mesure de renvoi; […]
67. (1)
Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
[…]
c) sauf
dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de l’affaire, la prise de mesures
spéciales.
|
V. Analysis
Standard
of Review
[9]
The Supreme Court of
Canada recently held in Dunsmuir v. New Brunswuick, 2008 SCC 9, that
there are now only two standards of review: reasonableness and correctness. A
determination of the applicable standard of review involves a two-step process.
First, the Court should consider past jurisprudence to determine whether the
appropriate standard of review has already been established. Where this search
proves fruitless, the Court should undertake an analysis of the four factors
comprising the standard of review analysis.
[10]
Although the
Applicant has framed the issues in this case as ones of procedural fairness (arguing
that the IAD ignored or misconstrued evidence before it) I find that her
submissions challenge the IAD's findings of fact. It is well-settled that the
factual findings of the IAD in relation to a discretionary decision under
subsection 61(1) of the Act are to be afforded significant deference by the
reviewing Court. The Court will not interfere with the IAD’s Decision as long
as it has exercised its discretion in good faith and without regard to
extraneous or irrelevant considerations (Chang v. Canada (Minister of Citizenship and Immigration), 2006 FC 157 at para. 21).
[11]
The IAD's credibility
findings are also findings of fact and are to be afforded significant deference
by the reviewing Court. The IAD has had the opportunity to hear and see the Applicant
give evidence in an oral hearing and is thus in the best position to assess her
credibility. As Justice Beaudry stated in Sanichara v. Canada (Minister of
Citizenship and Immigration) (2005), 276 F.T.R. 190, 2005 FC 1015, at
paragraph 20:
20.
The IAD, in a hearing de
novo, is entitled to determine the plausibility and credibility of the
testimony and other evidence before it. The weight to be assigned to that
evidence is also a matter for the IAD to determine. As long as the conclusions
and inferences drawn by the IAD are reasonably open to it on the record, there
is no basis for interfering with its decision. Where an oral hearing has been
held, more deference is accorded to the credibility findings.
[12]
It is well-settled
that the IAD’s decisions based on findings of fact cannot be set aside unless
they meet the criteria set out in section 18.1(4)(d) of the Federal
Courts Act, which provides that the Court may set aside a decision of the
tribunal if the decision is based “on an erroneous finding of fact that it made
in a perverse or capricious manner or without regard for the material before
it.” Traditionally, the standard of patent unreasonableness has been applied
to questions of this kind. In light of Dunsmuir, supra, and the
degree of deference that is to be afforded to the IAD’s credibility findings
and findings of fact, I find that the applicable standard of review of the Decision
is reasonableness. As stated by the Court in Dunsmuir, supra, at
para. 47, this standard “is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” Thus, the Decision should stand unless I find that, with regard
to the facts and law, the Decision falls outside the “range of possible,
acceptable outcomes.”
[12]
1. In
exercising its H&C discretion, did the IAD make an erroneous finding of
fact by ignoring or misconstruing evidence before it?
[13]
The Applicant argues
that the IAD overlooked and misunderstood key portions of the evidence. She
argues that the IAD failed to appreciate that the misrepresentation in this
case did not arise out of any direct act by the Applicant, but that it was her
father who misrepresented her age on his application for permanent residence.
She also submits that the IAD failed to appreciate that the Applicant, upon
learning that the information regarding the date of her birth was incorrect
after having been alerted to the fact by the Department of Citizenship and
Immigration Canada, promptly admitted the error. This admission, argues the
Applicant, ought to have been considered by the IAD in its assessment of the
H&C considerations in the Applicant’s case.
[14]
The Applicant also
submits that the IAD misconstrued the evidence in finding that she attempted to
minimize her responsibility for the misrepresentation. The Applicant argues
that she accepted responsibility for the misrepresentation and she did not attempt
to minimize it. She further argues that the IAD misconstrued or misunderstood
the evidence before it in finding that she blamed others for the
misrepresentation and that her failure to declare her real date of birth was
deliberate. The Applicant argues that she did not blame anyone, per se,
but that her evidence was that she had simply relied on her father for
information and had no reason to doubt that he would provide correct
information. Further, she submits that it was her father, and not her, who
deliberately declared a false date of birth and that this was done without her
knowledge.
[15]
The Applicant also
submits that the IAD was influenced by the contents of another appeal before
the IAD which involved the Applicant's husband. The Applicant takes issue with
the IAD's statement that “now she wants me to believe that she has no one to go
to in India, despite being legally married at least
once....” The Applicant submits that the IAD ignored evidence that the IAD, in
the appeal regarding the sponsorship of her husband, found that her husband had
only married her in order to gain access to Canada.
Further, there was testimonial evidence given by the Applicant on this appeal
that her husband and her husband’s family have told her that, unless her
husband is able to come to Canada, she would not be allowed to stay in their
home in India. The Applicant submits that the IAD
overlooked the evidence corroborating her testimony in the IAD’s finding on the
previous appeal.
[16]
The Applicant also argues
that the IAD ignored evidence in coming to the conclusion that she would not
suffer hardship if removed to India. She submits that there was evidence
before the IAD that she had always lived with her father before coming to Canada, and that her father would not be able to return to India because of his poor health and because he no longer holds
Indian citizenship. Further, there was evidence before the IAD that the
Applicant would not be able to stay with her husband upon returning to India
and that she would suffer hardship in India because, according to the
Applicant, a person who has had two failed marriages would be looked upon very
poorly by Indian society, and thus it is unlikely that she would be able to
re-marry.
[17]
Lastly, the Applicant
takes issue with the IAD’s finding that her level of establishment in Canada was
not sufficient to warrant an H&C exemption. The Applicant argues that there
was evidence before the IAD of her establishment and that the IAD was
dismissive of this evidence. She argues that the IAD’s findings regarding her
misrepresentation tainted its assessment of this factor, and thus the IAD
failed to deal with this issue fairly and fully.
[18]
The Applicant has
made a number of submissions which, in my view, merely suggest that she
disagrees with the findings of the IAD. She has not established that the IAD
ignored or misconstrued evidence before it, thereby basing its Decision on an
erroneous finding of fact or without regard to the material before it. It is
important to remember that the IAD’s Decision whether or not to grant H&C
exemption from the provisions of the Act is a discretionary one and requires
due deference from the Court.
[19]
I do not agree that
the IAD misconstrued the evidence by finding that the Applicant minimized the
misrepresentation, or that the IAD erred by ignoring corroborative evidence
regarding whether or not the Applicant would be allowed to stay with her
husband upon returning to India. The IAD found at paragraph 7 of it’s Decision
as follows:
Firstly,
the appellant attempted to minimize her responsibility for the
misrepresentations. She said that she does not know how to read and write and
that her date of birth was given by her father when he applied for landing. She
told me that she always believed that she was born in 1981 and not in 1972 until
recently. I do not find her credible at all. It is not only the first time that
she was lied under oath to this IAD. In 2004, when she sponsored her husband,
she testified that it was her first marriage when in fact she married her first
husband on or about 1996. In cross-examination and pressed by Minister’s
counsel to explain these issues, she said over and over that she was sorry. Not
only that, now she wants me to believe that she has not [sic] one to go
to in India, despite being legally married at least once, and that being a
single woman the police will arrest her.
[20]
Subsection 40(1)(a)
of the Act provides that a misrepresentation need not be direct. A person may
also be inadmissible for indirectly misrepresenting or withholding material
facts relating to a relevant matter that induces or could induce an error in
the administration of the Act. As the Respondent points out, the record is
replete with misrepresentations by the Applicant concerning her marriage
history and her age and the IAD had a substantial basis upon which to base its
findings. Applicant’s counsel points out that, in all of these matters, the
Applicant’s illiteracy and lack of education should be taken into account.
However, in reading the Decision it is clear that the IAD took these factors
into account when it ruled upon the Applicant’s misrepresentations and her
credibility. There are many inconsistencies that support the IAD’s findings. It
is clear to me that the IAD did not ignore that Applicant’s evidence; it simply
rejected it for the most and found that she was someone who has misused the
system and could not be believed. I do not find the IAD erred in concluding
that, despite the Applicant’s alleged ignorance of the misrepresentation, the Applicant
had either directly or indirectly misrepresented her age.. Even if it were true
that the Applicant relied on her father to provide accurate information with
respect to her age and that, contrary to her knowledge, the information
provided by her father was incorrect, this would not preclude the application
of section 40 of the Act. The misrepresentation remains a direct or indirect
misrepresentation that, in this case, induced an error in the administration of
the Act. Thus, I do not find that the IAD erred in this regard.
[21]
I further conclude
that the IAD, in assessing the Applicant's credibility, did not err by taking
into consideration the fact that the Applicant lied under oath in her appeal
before the IAD in 2004 when she failed to disclose her first marriage. I do not
think that the IAD’s assessment of the Applicant's credibility was based solely
on her history of failing to provide truthful information, but find that this
was only one factor in the IAD’s assessment of the Applicant’s credibility.
Reading the Decision as a whole, it is clear that the IAD found the Applicant
not to be credible based on her contradictory statements, including statements
about her age, her evasive answers, her implausible assertion that she had
always believed she was nine years younger than she was, as well as her
previous failure to disclose her first marriage and her history of lying under
oath to the IAD. In light of the significant degree of deference to be given to
the IAD in its findings on credibility, I find that it was reasonably open to
the IAD to find the Applicant not credible and to reject her evidence
accordingly.
[22]
I also find that the IAD
did not ignore evidence in coming to the conclusion that the Applicant would
not suffer hardship if removed to India. The Decision clearly indicates that the
IAD considered the Applicant’s evidence but could not accept it and concluded
that the hardship the Applicant would suffer if removed from Canada, if any, was not of such a degree as to warrant special
relief in the Applicant's circumstances. At paragraphs 11 and 12 of the Decision,
the IAD states as follows:
Although
the appellant explained that she will have a difficult time in India upon
return, it is to be noted that the appellant lived in India for approximately 29 years before coming to Canada without
encountering any difficulties and there is no reason to believe that she will
face any hardship if she were removed from Canada.
I
understand that the appellant is close to her father and she lives with him.
However, it will be difficulty [sic] and dislocation [sic] at
first when she return [sic] to India but it is insufficient for me to
conclude that it will cause undue hardship upon her. The father has the option
to go to India with the appellant if he wishes. He was
a willing participant of the misrepresentation and he should be willing to bare
the consequences.
[23]
It is trite law that,
on judicial review, this Court should not undertake a reweighing of the
evidence (Wang v. Canada (Minister of Citizenship and Immigration) (2005),
277 F.T.R. 216, 2005 FC 1059). Based on the evidence before the IAD, I find
that it was reasonably open to the IAD to conclude that the possible hardship
the Applicant would suffer if removed from Canada
was not sufficient to warrant special relief in the Applicant's circumstances.
[24]
I also find that the IAD
did not err in its determination of the Applicant's establishment in Canada.
The IAD accepted the Applicant’s evidence regarding her steady employment, her
involvement in the community, and that her Canadian friendships demonstrated
some degree of establishment in Canada. However, the IAD found that the
Applicant's degree of establishment and the difficulty she would face if
returned to India were not sufficient to justify an
exemption to the Applicant from the provisions of the Act. This finding was not
unreasonable and therefore does not constitute a reviewable error.
[25]
In my view, even if
the IAD had accepted that the Applicant was an unwitting participant in the
misrepresentation about her age and marital status, the IAD was entitled to
find that special relief was not warranted. The IAD’s reasons demonstrate that it
properly weighed and considered the evidence before it. The Applicant has, in
my view, failed to establish that the IAD committed a reviewable error.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This
application for judicial review is dismissed;
2.
There
are no questions for certification.
“James
Russell”
Judge