Docket: IMM-3637-16
Citation:
2017 FC 212
Ottawa, Ontario, February 22, 2017
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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DHARINIBEN NILE
PATEL
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Applicant
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and
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MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant asks this Court to set aside the
decision rendered on August 17, 2016, by the Immigration Appeal Division [IAD]
of the Immigration and Refugee Board of Canada, to uphold the removal order previously
issued against the applicant by the Immigration Division [ID], and to deny the
applicant’s claim for special relief.
[2]
The applicant is a citizen of India who was
married to Mr. Nileshbhai Patel [first husband], through an arranged marriage.
On July 14, 2006, the couple celebrated a traditional wedding, but since the
applicant was only 17 years old, it was not legally binding. However, the
couple celebrated a second wedding through a civil ceremony on January 20,
2007. Her first husband then sponsored her application for permanent residence,
which eventually led her to land in Canada on July 14, 2007. However, on July
28, 2007, the applicant left the marital home after only two weeks of common
life. On August 3, 2007, the first husband informed the authorities that his
relationship ended and that he felt that there had been misrepresentation and
fraud on the part of the applicant.
[3]
On October 13, 2007, the applicant returned to
the house, escorted by police, to gather her personal belongings. The applicant
later reported that she had been assaulted twice and threatened with death by
her first husband. However, all those charges were eventually dismissed
following a criminal trial. On October 1, 2009, an Immigration Officer
interviewed the applicant and her first husband, after which a report
identified the applicant as inadmissible for misrepresentation pursuant to
paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC
2001, c 27 [Act]. The couple officially divorced on June 16, 2010. On June 9,
2011, the ID declared the applicant inadmissible for misrepresentation under
paragraph 40(1)(a) of the Act and issued an exclusion order. On August 20,
2011, the applicant married her second husband, Mr. Miteskhumar Patel [second
husband], after sponsoring his application for permanent residence to Canada.
From this marriage, two girls were born in 2012 and 2015.
[4]
On August 17, 2016, the IAD dismissed the
applicant’s appeal by concluding, on balance of probabilities, that the
applicant chose to mislead immigration officials in order to immigrate to
Canada, and confirmed that the removal order was valid in law. After
considering the applicant’s claim for special relief, the IAD also found that
there were insufficient humanitarian and compassionate grounds under paragraph
67(1)(c) of the Act to warrant such relief.
[5]
While the applicant is not challenging today the
IAD’s finding regarding the absence of sufficient humanitarian and
compassionate grounds to grant special relief under subsection 67(1)(c) of the
Act, she questions the legality and/or the reasonableness of the factual
findings regarding the genuineness of her first marriage. Essentially, the
applicant argues that there was a breach of natural justice and/or the IAD’s
assessment of the evidence was flawed. As a result, the applicant wishes that
the matter redetermined by another panel of the IAD. This application for
judicial review is opposed by the defendant. After reviewing each party’s
submissions and the oral representations made by counsel at the hearing, the
Court finds that the IAD’s decision is reasonable, as the removal order is
legal and valid in law, while there has been no breach of natural justice. The
Court basically endorses the reasoning of the respondent for dismissing the
application.
[6]
The applicant’s arguments in support of the
present application are unfounded in fact and law. The IAD is a specialized
tribunal capable of assessing the facts, and its decision should not be
disturbed by this Court unless it is unreasonable. Overall, the IAD found that
the applicant had undermined the integrity and the fairness of the immigration
system. Having read the reasons of the IAD in light of the evidence before the
IAD and the applicable principles, I find no basis for setting aside the
impugned decision and returning the matter to another decision-maker.
[7]
The applicant’s general reproach that the IAD
has not considered the genuineness of the first marriage in light of the
circumstances and the evidence pre-dating the arrival of the applicant in
Canada is unfounded. While the couple seemed objectively compatible (common
origins, religion and language), the IAD also noted that the applicant first
lied to the immigration authorities by failing to mention that the couple had
previously celebrated a religious wedding in India while she was still a minor.
The applicant did in fact provide pictures from the religious wedding but
referred to them as to the civil celebration. More importantly, the IAD noted
that the applicant’s testimony was changing from her first statement made
before the ID. Indeed, the applicant stated that her problems with her sponsor
only began after she was landed, while she testified before the ID that the
fights with her first husband started in India for the celebration of their
civil marriage, going as far as saying that he regretted their wedding even
before she was landed. From this statement, the IAD questioned why such husband
and sponsor would then have continue the sponsorship process and risking being
financially responsible for her in Canada for three years if the relationship
was so complicated. The IAD also questioned the fact that none of the
applicant’s parents ever contacted her sponsor to find out what was the
problem, or at least, to berate him after allegedly trying to strangle their
daughter. After reviewing the evidence on the record, the IAD came to the
conclusion that the applicant’s contradictory versions were not making sense
with the actual facts.
[8]
The applicant concedes that the IAD has stated in
its reasons few facts which support the concerns it may have had with respect
to the true intentions of the applicant, but submits, nevertheless, that it has
failed to link these particular facts with its general conclusion regarding the
genuineness of the marriage. For instance, the IAD has underlined the short
duration of her common life with her first husband, but provide no analysis of
the said events as to how and why these events lead to their conclusion.
Furthermore, despite all the small discrepancies between her two versions
regarding her relationship with her first husband, the IAD has failed to make
any clear inference as how the said contradiction supported its conclusion that
she would have misled the immigration officials. Without such clear findings,
the applicant should have been entitled to benefit from the presumption of
truth for her evidence, or at the very least, the presumption of good faith
regarding her testimony. Indeed, there was no real analysis or negative
credibility finding about the applicant’s testimony.
[9]
I disagree with the applicant. It is clear that
the testimonies of both ex-spouses were quite different on central elements of
the relationship. While this Court does not have to decide which version is
more probable, the reasoning process of the IAD is not flawed and is supported
by the evidence. Although the IAD did not specifically state that it drew a negative
inference, its reasoning clearly shows that there were reasons to find that the
applicant did not intend to live with her sponsor, as husband and wife, when
she came to Canada. Indeed, the IAD characterized as strange the silence of the
applicant’s relatives after the separation of their daughter and alleged
assault from her husband. Also, by finding that the applicant intentionally misled
the immigration officials, it was explicit that the IAD severely questioned the
applicant’s credibility and the genuineness of the first marriage.
[10]
Incidentally, given that the applicant is
essentially challenging the reasons of the IAD, I fail to see how the issue can
be framed by the applicant as one of natural justice. Considering that this was
a de novo hearing, the IAD was able to consider all evidence, including
the statements made to the ID. As such, the IAD was not obliged to put all of
its concerns regarding the credibility before the applicant, especially since
its concerns emanated directly from her own statements and evidence. In any
event, I am satisfied that the applicant was granted the opportunity to be lead
evidence and to present her arguments, and that the hearing before the IAD was
a fair one.
[11]
The applicant also points out few other flaws or
errors in the IAD’s reasoning. For instance, the IAD questioned why the
applicant’s husband has pursued the sponsoring process despite all the tension
in the couple, as alleged by the applicant in her statement. However, the IAD
has ignored the statement of the first husband which directly addressed this
concern:
I returned to Canada on January 29, 2007 and
applied to sponsor her as my wife. Although the relationship appeared strained
while I was in India, on my return to Canada I noted that she appeared more
outgoing and happy, I believed that our relationship was getting stronger,
[12]
With regards to the strange behavior of her
relative following her separation or her report to the police, the applicant
argues that the evidence showed that her parents were upset from the failure of
the arranged marriage. Furthermore, the IAD erred by analysing this situation
without any consideration for the particular culture around arranged marriages.
Moreover, the applicant alleges that the IAD has ignored the evidence pointing
out that the first husband did in fact have a phone number to reach the
applicant after their separation. The IAD also failed to underline the
inconsistencies in the first husband’s statement such as when exactly he
learned that his wife would never come back. As to the alleged contradiction on
her wedding ceremony declaration to the immigration officials, the applicant
explained that the religious wedding was illegal since she was not 18 years old
at that time. Considering that the religious ceremony was not legally binding
the couple, the applicant only mentioned the civil ceremony to the Immigration authorities.
This plausible explanation should have worked in her favour. Furthermore, there
were discrepancies between the two letters provided by the first husband, and
thus, the applicant submits that such contradiction should have been considered
by the IAD in order to draw a negative conclusion on his overall statement.
[13]
I find the applicant’s line of attack
unconvincing.
[14]
Overall, the applicant merely invites the Court
to substitute itself to the decision-maker. However, this is not an appeal but
a judicial review. Not all factual errors justify granting judicial review and
the Court should not engage a microscopic examination of the tribunal’s reasons.
As mentioned by the Supreme Court of Canada in Communications, Energy and
Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013
SCC 34, [2013] 2 S.C.R. 458 at paragraph 54, the administrative tribunal’s
decision “should be approached as an organic whole,
without a line-by-line treasure hunt for error” (referring to Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 at para 14)
[15]
It is sufficient to say that, in the case at
bar, the IAD assessed the evidence on record and found serious
misrepresentations committed by the applicant. Moreover, the objective
evidence, such as the police report and the bank statement, did show that the
first husband’s action did not correspond to the version reported by the
applicant, without forgetting the contradiction in her statement before the ID
and IDA regarding the actual start of her confrontation with her husband. As to
the telephone issue, even if the IAD committed a factual error, this error
alone does not change the outcome of the decision (Sherwani v Canada
(Minister of Citizenship and Immigration), 2005 FC 37, [2005] FCJ No 61 at
para 17). The errors, if any, allegedly committed by the IAD are not
determinative, whether considered separately or cumulatively.
[16]
As indicated by the Court in Bercasio v
Canada (Citizenship and Immigration), 2016 FC 244, [2016] FCJ No 207 at
paragraph 23, and reaffirmed in Nguyen v Canada (Citizenship and
Immigration), 2016 FC 1207, [2016] FCJ No 1216 at paragraph 21, “assessing the genuineness of a marriage is a challenging
task at the best of times”, in a context where people “who are intent on committing a form of deceit to gain the highly
valuable status of Canadian permanent residence will conduct themselves to make
the relationship look outwardly genuine, when it is not”. Even though I may
have had evaluated the relevant factors and evidence differently, this is not a
reason today to disturb the conclusion of the IAD, given that the overall
decision is justifiable, transparent and intelligible and falls within the
confines of possible, acceptable outcomes.
[17]
For all these reasons, this application for
judicial review is dismissed. Counsel has not raised a question of general
importance.
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