Docket: IMM-3011-17
Citation:
2018 FC 86
Ottawa, Ontario, January 29, 2018
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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NAVPREET KAUR
AND MANJIT KAUR
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Applicants
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Manjit Kaur and Navpreet Kaur are mother and
daughter. They seek judicial review of a decision of the Immigration Appeal
Division [IAD] of the Immigration and Refugee Board. The IAD dismissed their
appeal of a visa officer’s refusal of Navpreet’s application to sponsor her
mother, Manjit, as a permanent resident of Canada. The IAD affirmed the visa
officer’s decision to refuse the sponsorship application for misrepresentation,
contrary to s 16 of the Immigration and Refugee Protection Act, SC 2001,
c 27.
[2]
For the reasons that follow, I find that many
aspects of the IAD’s decision were unsupported by the evidence. More generally,
the underlying premise that Manjit and her former husband were divorced only “on paper” is fundamentally implausible. In light of
this conclusion, it is also necessary for humanitarian and compassionate
[H&C] considerations to be reassessed. The application for judicial review
is allowed.
II.
Background
[3]
Manjit is a citizen of India, where she
currently resides. She married in 1982. The couple had two children, one of
whom is Navpreet. Shortly after the marriage, Manjit’s husband left India to
work in Greece, where he remained until 1985.
[4]
It is unclear exactly when Manjit and her
husband separated. Manjit testified before the IAD that this occurred in 1989,
when her husband left India for the United States.
[5]
In 1999, Manjit’s husband applied for permanent
residence in Canada as an entrepreneur. He did not include Manjit or either of
the children in the application, but acknowledged that he held a joint bank
account with Manjit. Manjit’s sister provided financial information in support
of the application. The application was denied.
[6]
In 2002, Manjit obtained a decree of divorce.
The decree stated that the couple had separated in 1999, but Manjit testified
that this was an error. She said that the lawyer who prepared the document
mistakenly gave the date of separation as 1999 rather than 1989, the year her
husband left India for the United States.
[7]
Shortly after the divorce, Manjit’s former
husband married a Canadian citizen. He was sponsored by his second wife in
2004, and became a permanent resident of Canada in 2007. The children,
including Navpreet, were included as dependents in the application, and also
became permanent residents of Canada.
[8]
Shortly after he obtained permanent residence,
Manjit’s former husband and his second wife divorced. His immigration file was
flagged for a possible marriage of convenience.
[9]
The same year, Navpreet applied to sponsor
Manjit for permanent residence.
[10]
In 2014, a visa officer conducted a field
investigation in the Indian village where Manjit’s former husband used to
reside, and discovered that people there, including a cousin and a nephew,
believed he was still married to Manjit.
[11]
Manjit’s and Navpreet’s parental sponsorship
application was refused on May 31, 2014. The visa officer found that Manjit had
filed for divorce to enable her former husband to obtain permanent residence in
Canada. The visa officer identified three concerns to support the conclusion
that Manjit continued to be in a relationship with her former husband, even
though they were divorced “on paper”:
(a)
it made no sense for Manjit’s former husband to
live with Manjit’s sister in Canada if the couple were truly separated;
(b)
Manjit said she was reluctant to talk about the
divorce because she found it embarrassing, yet she had initiated it; and
(c)
people in the village in India where the former
husband used to live were unaware of the divorce.
[12]
Manjit and Navpreet appealed the visa officer’s
decision to the IAD.
III.
Decision under Review
[13]
The IAD dismissed the appeal of the visa
officer’s decision on June 7, 2017. The IAD agreed that the parental
sponsorship application should be denied for misrepresentation, and emphasized
discrepancies in the evidence regarding:
(a)
whether the former husband had abandoned the
marriage in 1989, 1996 or 1999;
(b)
the reasons why Manjit’s former husband lived
with Manjit’s sister in Canada; and
(c)
when and why Manjit’s mother-in-law had cast her
out of the family home in India.
[14]
The IAD therefore held that the visa officer’s
refusal of the parental sponsorship application was legally valid. The IAD also
concluded that there were insufficient H&C considerations to justify
special relief. The IAD noted Navpreet’s and Manjit’s lack of credibility and
lack of remorse for their untruthful statements. The IAD acknowledged that
Manjit had no remaining family in India, but found that she was “quite well off” given her income from property and
financial support from her children in Canada. The IAD noted that Navpreet was
living a comfortable life in Canada, and found that the best interests of her
children were a neutral consideration.
IV.
Issues
[15]
This application for judicial review raises the
following issues:
A.
Were the IAD’s adverse findings of credibility
reasonable?
B.
Was the IAD’s assessment of H&C
considerations reasonable?
V.
Analysis
[16]
The IAD’s determinations of credibility and its
assessment of H&C considerations are subject to review against the standard
of reasonableness (Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at para 58). The Court will intervene only if
the decision falls outside the range of possible, acceptable outcomes which are defensible
in respect of the facts and law (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
A.
Were the IAD’s adverse findings of credibility
reasonable?
[17]
Counsel for the Applicants acknowledges that
there were discrepancies in the evidence regarding Manjit’s marriage to her
former husband. However, it appears that the IAD did not consider important
evidence that tended to corroborate Manjit’s testimony that her former husband
abandoned the marriage in 1989. This was the year in which he left India for
the United States, returning only briefly in 1996 to visit his children. His application
for permanent residence in 1999 did not include Manjit or the children as
dependents. The visa officer who rejected the application noted that he had
lived in the United States for more than 10 years. The decree of divorce was
issued in December 2002 and gave the date of separation as 1999. However, it
also noted that Manjit’s former husband had left India “three
years prior”, which was clearly an error. There is no dispute that he
was smuggled into the United States in 1989.
[18]
Nor did the IAD consider Navpreet’s explanation
for why her father remained close with Manjit’s sister. Navpreet testified that
her father, while still married to Manjit, would drop her aunt off at school.
Her aunt and her father respected one another, and the divorce did not
adversely affect their relationship. The IAD did not acknowledge or provide
reasons for rejecting this explanation. Instead, it assumed, without evidence,
that a couple’s relatives cannot remain on good terms after the couple
separates.
[19]
Counsel for the Respondent was unable to direct
the Court to anything in the record that might support the IAD’s conclusion
that Manjit gave conflicting accounts of when her mother-in-law cast her out of
the family home in India. She appears to have testified consistently that this
occurred in 1989, after her husband left the country.
[20]
More generally, both the visa officer and the
IAD found that Manjit and her former husband continued to be in a relationship,
despite being divorced “on paper”. This
conclusion does not accord with the evidence and is fundamentally implausible.
According to Manjit, her former husband abandoned the marriage in 1989, almost
30 years ago. Even if one assumes that he abandoned the marriage in 1999, this
is now almost 20 years in the past. The IAD did not address why the couple
would maintain such an elaborate ruse in order to be reunited in Canada after
decades of separation.
[21]
Given the many aspects of the IAD’s decision
that are unsupported by the evidence, and the fundamental implausibility of its
underlying premise, I conclude that the decision as a whole was unreasonable.
B.
Was the IAD’s assessment of H&C
considerations reasonable?
[22]
The IAD observed that the duty of candour and
the provision of truthful information are of fundamental importance to the
integrity of Canada’s immigration system. It then described the unresolved
discrepancies in the evidence surrounding Manjit’s marriage to her former
husband as a “highly unfavourable consideration”.
The IAD found the Applicants’ lack of remorse to be another “highly unfavourable consideration”.
[23]
In light of my conclusion regarding the IAD’s
unreasonable finding that Manjit and her former husband were divorced only “on paper”, it is necessary for the H&C
considerations to be reassessed.
VI.
Conclusion
[24]
The application for judicial review is allowed,
and the matter is remitted to a differently-constituted panel of the IAD for
reconsideration. Neither party identified a question to be certified for
appeal, and none arises in this case.
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