Docket: IMM-485-16
Citation:
2016 FC 979
Ottawa, Ontario, August 29, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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HARIKARAN
SELVARATNAM
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Mr. Selvaratnam’s application to sponsor his
father, mother, brother and sisters in Sri Lanka for permanent residence in
Canada was refused because a visa officer was not satisfied that his father is
admissible to Canada. An appeal to the Immigration Appeal Division [IAD] on
the decision and on a request for special relief was dismissed.
[2]
The visa officer’s concerns regarding the
admissibility of the Applicant’s father rested on inconsistencies between
family history declared by the Applicant and that which the father declared. Given
that the family lived in an area of the country that had previously been
controlled by the Liberation Tigers of Tamil Eelam [LTTE], these
inconsistencies led the officer to find that he or she was satisfied that the
father was not inadmissible.
[3]
The Applicant has been living in Canada since
2003 when he was granted Convention refugee status. He also has a brother
living in Canada, and they reside together.
[4]
When processing the application, the visa
officer noted that in his refugee claim, the Applicant had noted that his
father had been taken away and beaten by Sri Lankan security forces on more
than one occasion. No mention of that was made by his father in his
application. The IAD noted that “he was specifically
asked if he or any family members listed in the application had ever been
detained, incarcerated or put in jail” and he had checked the “No” box.
[5]
In light of this inconsistency, and an
inconsistency regarding the father’s residence and business, the officer asked
the father for further clarification:
In this application you have declared that
you have never been detained. Your son has declared to us that you have. You
are required to provide full details (when, by who, for how long, why) of any
detainments no matter how short they may have been. Further, you were earlier
requested to provide details concerning your activities. The response you
provided us was unacceptable. You told us that you were buying and selling and
running a small shop. You have declared that this is the only activity you
have engaged in from 1976 to the present day. According to the residence
history you have provided and the history provided by your son, this is
impossible. You are required to provide a full and accurate history of your activities
that includes a detailed description of each activity, the time each activity
started and stopped (dates) and the location in which the activity took place.
[6]
The father provided a cursory response:
It is correct that I have never been
detained but in some occasions I was taken in by the security forces for
questioning. I was released after questioning.
It is also correct that I was engaged in
buying and selling local products and vegetables in my small shop since 1976,
and upto [sic] now.
[7]
The hearing before the IAD was a hearing de
novo. The Applicant testified in person and his father testified by
teleconference. The IAD notes that the Applicant testified that his father was
taken away and beaten by security forces on two or three occasions, and he
provided a detailed summary of his father’s activities from 1976 onwards. The
IAD notes in its decision that the father testified that the Sri Lankan
authorities had asked him to come in for questioning once, but he made no
reference to ever being held or beaten by them. He did mention, for the first
time, being taken by the LTTE on three or four occasions and being held for
about two days. Moreover, he indicated that he had lived in Colombo for
periods of time, a fact that conflicted with his son’s evidence and other
evidence on file.
[8]
The IAD observed that “at
the conclusion of the hearing, the evidence of the appellant’s father’s
personal history was even more unclear than when we began.”
[9]
The Applicant submits that at least two errors
were made by the IAD.
[10]
First, he submits that the inadmissibility
finding flowed from a finding that the Applicant and his brother gave
conflicting accounts in their respective Personal Information Forms [PIF] to
that given by their father as to whether and by whom their father had been
detained. The Applicant blames any confusion on the overseas consultant his
father retained.
[11]
I agree with the Minister when he submits that “applicants are responsible for the information they provide
to immigration authorities, which must be complete and accurate.” It is
for that very reason that applicants are required to attest that the
information provided is full and complete.
[12]
In any event, aside from the discrepancy with
the evidence the father provided in his written application and his response to
the officer, there is his further evidence he gave by teleconference to the
IAD. On that occasion he claimed for the first time to having been detained by
the LTTE, something never mentioned by either son. Moreover, his evidence and
his son’s evidence differ significantly as to the father being detained by the
authorities. The Applicant testified that he witnessed security service personnel
taking his father away two or three times, whereas his father said he had been
detained only once which he stated resulted in him going into hiding.
[13]
Next, there was a discrepancy about where the
father lived. The Applicant testified that his father never lived in Colombo
whereas the father said that he lived there from 2007 until war’s end in 2009.
In addition, the father provided conflicting evince as to whether his children
were living with him in Colombo or not.
[14]
In my view, these differences and
inconsistencies were more than sufficient for the IAD to conclude that it, like
the visa officer, was unable to determine with any degree of assurance the
father’s personal history in Sri Lanka.
[15]
The Applicant submits that the “circumstances cried out for a personal interview by the
officer” but none was held. He claims this was a denial of natural
justice and the IAD ought to have seen that. Even if I were to agree with the Applicant,
the IAD held a hearing de novo and did in fact examine both the Applicant
and his father. Far from clarifying matters, more discrepancies became
apparent. There was nothing in the IAD process that warrants upsetting its
decision.
[16]
Second, the Applicant submits that the IAD’s
analysis of the humanitarian and compassionate [H&C] considerations was
deficient. In particular he objects to the finding that “the applicants do not appear to be experiencing any
deprivation in Sri Lanka. They are living together in their home country where
hostilities have now largely subsided.”
[17]
The Applicant notes that originally the
application was refused due to his failure to meet the necessary financial
income requirement to sponsor his family. At that time it was found that there
existed sufficient H&C considerations to overcome the financial
inadmissibility.
[18]
I concur with the Respondent that the H&C
considerations found in waiving the financial requirement was made prior to the
issues relating to the inadmissibility of the Applicant’s father and that
H&C considerations cannot be determined and weighed in a vacuum. In the
circumstances as found here regarding the uncertainty as to the father’s admissibility,
strong H&C evidence would be required to admit someone who might otherwise
be inadmissible to Canada on H&C grounds.
[19]
Lastly, the Applicant submits that the
officer failed to consider the best interests of the children [BIOC] and that
the “IAD’s finding concerning the best interests of the
children is unclear.”
[20]
The IAD’s finding in this regard is as
follows: “There was no evidence that it would be in the
best interest of any child to grant special relief.”
[21]
The submission made by the Applicant was that
failing to permit this application on H&C grounds would result in the
permanent split of this family, and further, that two of the three children
would have then become too old to sponsor.
[22]
The submission made regarding the BIOC was brief
and accordingly, the decision on this point reflects that brevity: See Persaud
v Canada (Minister of Citizenship and Immigration), 2012 FC 1133, 13 Imm LR
(4th) 76. The onus is on the Applicant to provide the basis on which a BIOC consideration
would result in a positive result and here, the principal submission made was
not one that was specific to the individual children. Rather, it was a general
submission applicable in most every case about reunification of the family
members. As such, I am unable to find that the IAD’s decision on BIOC was
unreasonable.
[23]
As a consequence and for these reasons above, I do
not find that the IAD’s decision on relief for special circumstances was unreasonable.
[24]
For these reasons, the application is
dismissed. No question was proposed to be certified.
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