Date: 20080116
Docket: IMM-5910-06
Citation: 2008 FC 55
Ottawa, Ontario, January 16, 2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
AMANPREET KAUR GREWAL
YADVINDER SINGH GREWAL
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Yadvinder
Singh Grewal (Mr. Grewal) and Amanpreet Kaur Grewal (Mrs. Grewal) are husband
and wife married in India on April 27, 2001. They have a young daughter Ayra
born on June 3, 2002 in India.
[2]
Mr.
Grewal resides in Canada; he obtained permanent residence in Canada on December
3, 2002 as a single person with no unaccompanying dependents.
[3]
Mrs.
Grewal still resides in India. Her application for permanent residence
to Canada which was received by the Canadian High Commission in New Delhi (the
“High Commission”) in June 2002 sponsored by her husband in early 2002 was
refused by a visa officer on October 26, 2006 because the visa officer found her
to be inadmissible to Canada. She had supported her application for permanent
residence with a false marriage certificate which stated she and her husband
were married on December 30, 2002 i.e. after he had been landed in Canada earlier that
month.
[4]
During
her interview at the High Commission in 2003, she initially maintained that
falsehood but, when confronted by the fact that all the guests at the wedding
were in summer clothes, admitted she was married in April 2002.
[5]
The
stated grounds of her inadmissibility are twofold:
·
A
violation of paragraph 40(1)(a) of the Immigration and Refugee
Protection Act (IRPA) which states a foreign national is inadmissible 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. Section 40(2)(a) of that same Act
specifies the foreign national continues to be inadmissible for
misrepresentation for a period of two years following, in the case of a
determination outside of Canada, a final determination of inadmissibility under
subsection 1; and
·
A
violation of paragraph 117(9)(d) of the Immigration and Refugee Protection
Regulations (the “Regulations”) which provide a foreign national cannot be
considered as a member of the family class if that person was a
non-accompanying family member and was not examined.
[6]
On
May 23, 2006, the applicants were informed of the tentative conclusions reached
by the High Commission and were given an opportunity to respond. The formal
refusals on the stated grounds of inadmissibility are contained in two letters
from the visa officer, Anita Puri, dated October 26, 2006.
[7]
The
visa officer also made another decision that same day and it is this decision
which is the subject of this judicial review proceeding. The visa officer
refused to exercise in favour of Mrs. Grewal the Minister’s humanitarian and
compassionate jurisdiction under section 25 of IRPA which authorizes the
Minister to exempt breaches of IRPA or its regulations. Section 25 of IRPA
reads, in both official languages:
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25. (1)
The Minister shall, upon request of a foreign national who is inadmissible or
who does not meet the requirements of this Act, and may, on the Minister’s
own initiative, examine the circumstances concerning the foreign national and
may grant the foreign national permanent resident status or an exemption from
any applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
(2) The
Minister may not grant permanent resident status to a foreign national
referred to in subsection 9(1) if the foreign national does not meet the
province’s selection criteria applicable to that foreign national.
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25.
(1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui
ne se conforme pas à la présente loi, et peut, de sa propre initiative,
étudier le cas de cet étranger et peut lui octroyer le statut de résident
permanent ou lever tout ou partie des critères et obligations applicables,
s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger
— compte tenu de l’intérêt supérieur de l’enfant directement touché — ou
l’intérêt public le justifient.
(2)
Le statut ne peut toutefois être octroyé à l’étranger visé au paragraphe 9(1)
qui ne répond pas aux critères de sélection de la province en cause qui lui
sont applicables.
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[8]
It
was the applicants’ new solicitors, Waldman & Associates, who
responded to the visa officer’s fairness letters of May 23, 2006. In their
submissions, the applicants’ solicitors conceded the misrepresentation of when
the applicants were actually married and the fact Mrs. Grewal was not examined.
[9]
The
applicants’ solicitors specifically requested the visa officer to exempt Mrs.
Grewal from compliance with section 117(9)(d) of the Regulations and
also sought a waiver of the breach of section 40 of IRPA or, in the
alternative, requested the issuance to Mrs. Grewal of a temporary residence
permit.
[10]
They
also pointed out to the visa officer Mr. Grewal, who had also produced the
false marriage certificate in support of his sponsorship of his wife had been
declared inadmissible at an inadmissibility hearing held in Canada but was
successful in his appeal to the Immigration Appeal Division (the “IAD”) who on
February 9, 2006 quashed the deportation issued against Mr. Grewal for
equitable reasons.
[11]
They
also pointed out to the visa officer Ayra was eligible to be sponsored
by her father to become a permanent resident of Canada because she was born
after Mr. Grewal was landed in Canada on December 3, 2002. They requested that
if the visa officer refused Mrs. Grewal’s application for permanent residence,
the visa officer continue processing Ayra’s application for permanent
residence.
[12]
The
applicants’ solicitors referred to their March 9, 2006 humanitarian and
compassionate (H&C) submissions which focussed on the best interests of the
family and on family reunification.
[13]
I
was told at the hearing of this judicial review application that Ayra has now
become a permanent resident of Canada spending most of her time with her mother
in India but has travelled a few times to Canada.
[14]
This
judicial review application raises two issues:
·
First,
did the visa officer fail to consider the best interests of Ayra by minimizing
those interests; and
·
Did
the visa officer give overwhelming weight to Mrs. Grewal’s misrepresentation
leading the visa officer to ignore other relevant factors thus rendering the
decision unreasonable.
[15]
At
the hearing of this application, the applicants’ counsel abandoned an issue
which had been raised in their written memorandum to the effect the visa
officer erred in law by exceeding her jurisdiction because she did not have the
necessary delegated authority to render the H&C decision.
The Visa Officer’s
Decision
[16]
As
noted, it was on October 26, 2006 that the visa officer determined “it would
not be justified by humanitarian and compassionate considerations to grant you
permanent residence status or exempt you from any applicable criteria or
obligation under the Act”.
[17]
In
her formal letter sent to Mrs. Grewal, there is no mention of the young child
and there were no reasons for her conclusion. The visa officer’s CAIPS notes
were produced. I reproduce those notes where the H&C exemption was
discussed:
“In his letter dated March 9, 2006, the
sponsor’s representative requested that Amanpreet Kaur Grewal’s application be
processed on humanitarian and compassionate grounds pursuant to section 25(1)
of the Immigration and Refugee Protection Act. I have reviewed
information on file to determine existence of H&C grounds.
As per the information in our records,
Amanpreet Kaur Grewal’s parents and siblings are residing in India. The sponsor is the only one from his
family residing in Canada. Amanpreet Kaur Grewal is
residing with both her and her sponsor’s families. She appears to have
emotional support available in the country of her residence. The sponsor is
financially supporting her and can continue to do so.
The sponsor deliberately did not inform
our office or the officer at the port of entry of the change is his marital
status during the processing of his application. He decided not to declare the
applicant as his dependent spouse and did not have her examined.
Amanpreet Kaur Grewal is an educated
person – she possesses master’s degree and a diploma in fashion designing. She
deliberately provided incorrect information as to the date of her marriage in
order to establish that she is eligible for a permanent resident visa as a
member of the family class.
By my letter dated May 23, 2006, I
informed Amanpreet Kaur Grewal that she is excluded as a member of the family
class pursuant to section 117(9)(d) of the Immigration and Refugee
Protection Regulations. Since her daughter, Arya, was born after the
sponsor became a permanent resident of Canada, she is eligible for a visa as a
dependent child. In his letter dated June 6, 2006, the sponsor’s representative
stated, “if you refuse the application for permanent residence of Mrs. Grewal,
you continue processing the application for permanent residence of the child.”
In my opinion, there do not exist
sufficient humanitarian and compassionate grounds to warrant an exemption from
the applicable criteria.
[18]
Anita
Puri filed an affidavit in these proceedings upon which she was not
cross-examined.
[19]
In
the first of part of her affidavit, she stated she had reviewed the visa file
and the applicants’ affidavits sworn on January 13, 2007 and January 17, 2007,
as well as the applicants’ Memorandum of Argument filed in this application for
leave and judicial review of my decision. She also explained her duties in the
processing of those applications for permanent residence and how the notes
taken by her in relation to the processing of the applicants’ H&C application
were recorded in the Computer Assisted Immigration Processing System (“CAIPS”),
an electronic file system in use at New Delhi for the processing of
applications for admission to Canada.
[20]
The
material parts of her affidavit are contained in paragraphs 7, 8 and 9 of her
affidavit which I reproduce:
7. In assessing the H&C
Application, I considered the fact that the male Applicant’s appeal was allowed
by the Immigration Appeal Division.
8. The Applicants are educated and
can read and understand English very well. The female Applicant has a master’s
degree and a diploma in fashion designing. The permanent resident visa was
mailed to the male Applicant on October 25, 2001. The usual letter accompanying
such a visa, that we used in our office since May 2000, informed the applicants
that:
“Should any of the following
circumstances apply to you or any person included in your application, this office
must be informed immediately and all visas returned for further action … change
in marital status by reason of marriage, divorce, annulment, death or other.”
Attached hereto as Exhibit “B” to my affidavit is a copy of this letter.
9. In assessing the H&C
Application, I took the best interests of the Applicants’ child into
consideration, although I inadvertently did not state this in my CAIPS Notes. I
thoroughly read and considered all of the Applicants’ counsel’s submissions in
support of their H&C Application before I made my decision. I took into
consideration the facts that the male Applicant chose not to declare the female
Applicant as his spouse before proceeding to Canada and that the female
Applicant had provided false and misleading information in order to gain
admission to Canada. I considered that the male
Applicant’s decision to live in Canada was a personal choice made by him. I
considered that he would not suffer undue hardship if he returned to India as he had lived in India for
almost 30 years before moving to Canada in 2001. Based on his qualifications and
work experience, he would be able to easily re-establish in India. I considered that if the
male Applicant returned to India, as he is able and free to do, his family would be together.
I considered that any hardship that the family suffered would be the creation
of the Applicants’ own choices. I therefore was not satisfied that the
circumstances of this case warranted an exemption from the applicable criteria. [Emphasis mine.]
The IAD’s February 9,
2006 decision
[21]
In
the context of this judicial review application, it is important to review the
February 9, 2006 decision of the IAD which allowed Mr. Grewal’s appeal and set
aside his removal order on H&C grounds. As noted, Mr. Grewal did not
challenge the legal validity of the deportation order and his appeal only went
to relief on humanitarian and compassionate grounds under subsection 67(1) of IRPA.
It is important to appreciate his deportation order was based in part on the
fact of his inadmissibility to Canada for the same reason Mrs. Grewal was
inadmissible: misrepresentation on the date of the marriage. The material part
of the IAD’s decision is contained at paragraphs 6 through 12 of the decision.
After having outlined the fact the Minister was not opposed to humanitarian
and compassionate relief [Emphasis mine.], provided that consideration has
been given to the best interests of the child directly affected and after
setting out the factors identified by the Supreme Court of Canada in Chieu
v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 the
tribunal wrote:
[6] Having considered them all, I
find that the circumstances, and the fact that the respondent is not opposed
to discretionary relief, persuade me that this appeal should be allowed on
humanitarian and compassionate grounds.
[7] The parties agree that the
misrepresentation, while technically material to the administration of IRPA, is
nevertheless not serious because it had and could have had no effect on the
appellant’s own eligibility to come to Canada because he applied and was admitted as
an independent skilled worker and not as a family class member.
[8] Based on submissions before
me, which were not opposed by the respondent, I am persuaded that the
appellant made the misrepresentation only because of improper advice by an
unlicensed immigration consultant, that it would not have occurred but for that
advice, and that the appellant sincerely regrets the mistake.
[9] Based on the same, and the
documents before me, I am further persuaded that the appellant is now
established in Canada and not in India and that he would therefore
suffer substantial hardship if removed because he has little or nothing to
return to there.
[10] The above-mentioned factors
weigh positive in the humanitarian and compassionate balance.
[11] The appellant has one young
child in India, his daughter, Ayra Grewal. However,
I am not persuaded that her best interests are directly affected in a negative
way if I allow the appeal. Appellant’s counsel submitted that he has been
regularly financially supporting her and her mother, his wife, while in Canada, and that submission was not
opposed by the respondent. Moreover, I have no reason to believe that his
financial support from Canada will not continue in the
future. Moreover, even if the final outcome with respect to her coming to
Canada were that she could not, perhaps due to IRP Regulation 117(9)(d)
applying to her mother, that final outcome has not yet occurred or been
determined, and if that ever is the final outcome, I am not persuaded that the
appellant would not return to India of his own volition pursuant to his own
choices about his duties with respect to her best interests and to be with his
wife.
[12] I perceive no other factor
or circumstance that would merit my consideration in deciding this appeal.
[Emphasis mine.]
[22]
As
noted, on March 9, 2006, the applicants’ solicitors made lengthy submissions to
the High Commission in New Delhi. Specifically, in that
letter, the IAD’s decision of February 9, 2006 setting aside Mr. Grewal’s
removal order was enclosed along with voluminous other documentation.
Counsel’s March 9, 2006
H&C submissions
[23]
The
applicants’ solicitors made legal submissions based on applicable jurisprudence
at that time pointing out when Mr. Grewal applied for permanent residence in Canada under the
skilled worker class, he was not married and therefore did not have to declare
his wife because at the time of that application she was not his spouse.
Counsel argued that regulation 117(9)(d) does not apply to Mrs. Grewal’s spouse
and that a permanent residence visa should be issued to her. Counsel referred
to decisions of my colleagues in Beauvais v. Minister of Citizenship and
Immigration, [2005] F.C.J. No. 1713 and dela Fuente v. Minister
of Citizenship and Immigration, [2005] F.C.J. No. 1219.
[24]
Counsel
also argued if Mr. Grewal’s sponsorship application of his wife might be caught
by the provisions of section 117(9)(d) in order to effect reunification of the
family, counsel asked consideration be given to issuing a permanent resident
visa to Mrs. Grewal based on humanitarian and compassionate considerations
pursuant to section 25 of IRPA. It was pointed out while living in
Canada, Mr. Grewal supports his wife financially and despite having made
several visits to India the separation of the family is taking its emotional
toll on the couple because being married almost five years, they have been
unable to be together but for short periods of time and Ayra is being raised
without her father’s constant presence. Counsel pointed out the exercise of
discretion under section 25 of IRPA is the only remedy that would allow
reunification of the family in Canada where Mr. Grewal has been living since
December 2, 2001 and where he is well established. Counsel provided examples of
that establishment and also his involvement in the community.
[25]
Counsel
stressed family reunification and referred to and analyzed the Federal Court of
Appeal’s judgment in De Guzman v. Minister of Citizenship and Immigration,
2005 FCA 436 where Justice Evans stated at paragraph 49 that paragraph
117(9)(d) did not preclude other possible bases on which Ms. De Guzman's sons
may be admitted to Canada referring, in particular, they could apply to the
Minister under section 25 of IRPA for discretionary exemption from that paragraph
or for permanent resident status emphasizing the discretion may be exercised
positively when the Minister is of the opinion it is justified by humanitarian
and compassionate circumstances relating to the applicant, taking into account
the best interests of a directly affected child, or by public policy
considerations. It was because of section 25 Justice Evans concluded paragraph
117(9)(d) did not make IRPA non compliant with an international human
rights instruments to which Canada is a signatory. Counsel emphasized Mr.
Grewal is well established in Canada and will be able to provide for his family here and
emphasized family reunification is the ultimate goal for them. Counsel added
marriage is a human right, living together is a human right, founding a family
is a human right and family integrity is a human right. Counsel wrote: “While
the right to marry and to family protection does not imply a right to choose
the country in which the family will reside, Canada explicitly recognize that
settlement in Canada of close family members of Canadians and permanent
residents is a declared objective, rather than merely recognizing the family
unit as important in generic sense.”
[26]
Finally,
counsel for Mr. and Mrs. Grewal submitted it was in the best interests of Mr.
Grewal’s daughter to be reunited with her father and live in Canada together with both her
parents. It was submitted the best interests of the child are served by
allowing her mother to come to Canada on humanitarian and compassionate grounds. To deny this
would cause severe emotional hardship and trauma to the child as she would be
prevented from being raised by both of her parents.
Analysis
(a) Standard of review
[27]
The
standard of review of a decision of an immigration officer as to the existence
of H&C factors under section 25 of IRPA is reasonableness simpliciter
as determined by the Supreme Court of Canada in Baker v. Minister of
Citizenship and Immigration, [1999] 2 S.C.R. 817, a case involving a review
of the existence of H&C factors for the purpose of determining whether an
immigration officer properly refused to exempt a foreign national from having
to obtain a permanent resident visa outside the country.
[28]
A
decision is an unreasonable one if it is a decision, to use the words of
Justice Iacobucci in Canada (Director of Investigation and Research) v.
Southam Inc., [1997], 1 S.C.R. 748: “that, in the main, is not supported by any
reasons that can stand up to a somewhat probing examination.”
(b) Discussion and conclusions
[29]
Counsel
for the applicants argued I should give little weight to the visa officer’s
February 21, 2007 affidavit in which she states, amongst other things, she took
into account the best interests of Ayra.
[30]
The
case law of this Court discusses the circumstance where a visa officer’s
reasons for decision are contained in the CAIPS notes and where those reasons
have been supplemented by the visa officer’s subsequent affidavit which does
not merely elaborate on cursory reasons for an assessment provided in the CAIPS
notes but, as here, provide an entire line of reasoning that is not reflected
anywhere in those notes.
[31]
In
those circumstances, the Court’s jurisprudence, as reflected in bin Abdullah
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1185, Kalra
v. Canada (Minister of Citizenship and Immigration), 2003 FC 941 and Yue
v. Canada (Minister of Citizenship and Immigration), 2006 FC 717 is to give
such affidavit little weight because it was sworn several months after the
decision was made thus impacting on a person’s recollection and is an after the
fact explanation.
[32]
I
agree with the rationale of giving a visa officer’s affidavit little weight in
such circumstances. Indeed, it has been expressed many times by my colleagues
that the value of CAIPS notes is that they constitute a contemporary recording
of the visa officer’s thinking and questions asked and answers given.
[33]
In
any event, the visa officer’s affidavit is not helpful in respect of the
considerations she took into account as to the best interests of Ayra. All she
says is that she took into account her best interests but provides no analysis
and no reasoning. Her statement is a blanket statement which does not satisfy
the well established jurisprudence that the best interests of the child be well
identified and defined (see Hawthorne v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 475 at paragraph 7).
[34]
There
is another reason for allowing this judicial review application. The visa
officer stated, in her affidavit, she took into account the IAD’s decision in
respect of Mr. Grewal.
[35]
Once
again, on this point, the visa officer’s statement is a blanket one without any
consideration or analysis of the IAD’s decision.
[36]
In
my view, the IAD’s decision is material to a consideration of any H&C
factor concerning Mrs. Grewal. The IAD made determinations on the circumstances
which led Mr. Grewal to make false representations concerning when he married
Mrs. Grewal, the depth of his establishment in Canada and the consequences of
his returning to India. I also note that before the IAD the Minister’s
representative was not opposed to discretionary relief.
[37]
In
the circumstances, it is not appropriate to deal with the other issues raised
by the parties.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial review application is
allowed, the decision of the visa officer in respect
of the application of section 25 of IRPA is set aside and the matter is
remitted to a different visa officer for reconsideration in respect of the
H&C issue.
“François
Lemieux”
____________________________
Judge
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