Docket: IMM-2607-23
Citation: 2024 FC 1968
Ottawa, Ontario, December 4, 2024
PRESENT: Madam Justice Sadrehashemi
BETWEEN: |
GURPREET SINGH |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Gurpreet Singh, came to Canada in March 2018 on a study permit. Approximately four years later, the Canada Border Services Agency (CBSA) alleged that he had misrepresented on his study permit application by providing a fake acceptance letter from the institution where he claimed to have been accepted to study in Canada. Mr. Singh conceded that the acceptance letter was fake but argued that he should not face the consequences of a misrepresentation finding because, at the time he filed the study permit application, he did not know his offer of acceptance was not genuine.
[2] After an oral hearing, a member of the Immigration Division (the “Member”
) found Mr. Singh inadmissible under section 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, C 27 [IRPA] for misrepresentation and issued an exclusion order. A misrepresentation finding has serious consequences for Mr. Singh: for a period of five years following the misrepresentation finding, he cannot enter Canada or apply for permanent residence (IRPA, ss 40(2), 40(3)).
[3] On judicial review, Mr. Singh principally argues the Member’s lack of deliberation prior to rendering their oral decision raises a reasonable apprehension of bias concern. Mr. Singh also argues that the decision was unresponsive to his submissions.
[4] The parties agree that the reasonable apprehension of bias claim is a procedural fairness issue requiring the Court to ask whether the procedure was fair in all the circumstances (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35). The issues related to the substance of the decision are to be reviewed on a reasonableness standard (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 23, 77).
[5] I am dismissing the judicial review. Considering the nature of the hearing process, the issues requiring resolution, and the reasons provided by the Member, I do not agree that a reasonable apprehension of bias concern arises in these circumstances. Further, after reviewing the Applicant’s submissions at the hearing and the Member’s reasons, I do not agree that the reasons are unresponsive to the submissions or fail to reasonably address the relevant legal and factual constraints.
II. Background Events Leading to the Hearing before the Immigration Division
[6] Mr. Singh arrived in Canada in March 2018 believing that he was enrolled in St. Clair College in Ontario in a two-year computer systems program. Mr. Singh alleges that an immigration consultant based in India, who he hired to assist in obtaining admission and study authorization for Canada, provided him documentation that confirmed he had been accepted to study at St. Clair College.
[7] A few days after Mr. Singh’s arrival to Canada, Mr. Singh claims that the immigration consultant office informed him that the program was oversubscribed. He was then presented with two options: either defer commencement of the program until the next term, resulting in a six-month delay, or receive a refund of the tuition payment and go elsewhere. Mr. Singh chose to take the refund, wanting to avoid a gap in his education.
[8] Mr. Singh eventually took a placement at a different Canadian institution in a food services program, where he studied for one term. He then transferred to a two-year computer studies program. He completed his studies in the winter 2020 term, and obtained a post-graduate work permit valid from November 2020 to November 2023. Mr. Singh remained in Canada working under this permit from that time.
[9] Approximately four years after Mr. Singh entered Canada on the study permit, the CBSA initiated inadmissibility proceedings against him, having discovered the documents that he provided upon arrival in Canada, namely the acceptance to St. Clair College, were fraudulent.
[10] The Immigration Division held a hearing over three sittings: January 13, 2023; February 10, 2023; and February 13, 2023 and rendered its decision orally at the close of the February 13, 2023 sitting.
III. Analysis
A. Reasonable Apprehension of Bias
[11] Mr. Singh claims that the Member’s decision is tainted by the appearance of bias. He argues that by rendering their decision orally immediately after hearing witness testimony and oral submissions, the integrity of the hearing process was compromised because it appears the Member pre-judged his case and did not hear the evidence and submissions with an open mind.
[12] The Immigration Division held Mr. Singh’s hearing over three days of virtual sittings, the first two days, January 13, 2023 and February 10, 2023 consisted of Mr. Singh’s testimony and Mr. Singh’s father’s testimony. The third sitting was held on February 13, 2023. Mr. Singh’s counsel conceded that the bias claim was not related to the manner the Member treated the evidence that was heard during the first two sittings, as there was ample time to deliberate. The core basis for the bias allegation is the lack of any deliberation after the Member heard evidence and submissions on February 13, 2023, the third and final sitting.
[13] On February 13, 2023, Mr. Singh’s brother testified. I do not have evidence in the record of the actual length of the testimony. I will note that from my review of the transcript, the testimony does not appear to be lengthy; the questions and answers span approximately five pages. After Mr. Singh’s brother’s testimony concluded, the Member directed that oral submissions immediately follow, with no recess. The Minister presented first, and then the Applicant’s counsel. Immediately after the Applicant’s counsel concluded their oral submissions, the Member advised that they were ready to give their decision, without hearing any reply from the Minister. The Member asked the interpreter if they would need a five minute break. The interpreter advised they needed the five minutes. The parties returned after five minutes and the Member gave their decision orally. The Member’s decision is approximately two and a half pages of transcript (single spaced).
[14] The test for determining reasonable apprehension of bias is well known: whether a reasonable person, who is reasonably informed of the facts, viewing the matter realistically and practically and having thought it through, would think it more likely than not that the tribunal was biased (Committee for Justice and Liberty et al v National Energy Board et al, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394). The burden of proof lies with the party who is making the claim of bias and the threshold to establish it is a high one, requiring that “substantial grounds”
or a “real probability”
of bias be demonstrated (R v S (RD), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at paras 113, 114).
[15] Even though I agree that the Member did not deliberate after hearing closing submissions and evidence, considering the history of the proceeding, the nature of the dispute, and the Member’s responsive reasons, a reasonable apprehension of bias has not been established in these circumstances.
[16] First, the Member did not have to address any complex evidentiary issues. Mr. Singh conceded that he had presented a fraudulent study acceptance offer with his application to study in Canada. The Member accepted: i) that he had not known it was fraudulent at the time he made the application to enter Canada; and ii) the fake offer was obtained, without Mr. Singh’s knowledge, by an immigration consultant he had hired in India. As conceded by the Applicant’s counsel at the judicial review hearing, the sole reason for the testimony of witnesses was to establish the existence of this immigration consultant who had defrauded Mr. Singh. This was a critical issue because there was no official communication with the consultant on the study permit application and he was not listed as Mr. Singh’s representative. The Member accepted the testimony about the existence of an immigration consultant who had provided the fraudulent offer of acceptance to St. Clair College without Mr. Singh’s knowledge.
[17] The only issue the Member was considering was whether the “innocent mistake exception”
ought to apply in this case. Key to this issue was an evaluation of the steps Mr. Singh took in exercising due diligence in submitting his application. The Member relied on Mr. Singh’s testimony. Mr. Singh is not arguing that the Member misconstrued his testimony or that of any of his witnesses, or even that they ignored critical testimony provided.
[18] Moreover, the only evidence given at the third sitting was from Mr. Singh’s brother. This testimony was short and focused on his knowledge of the hiring of the immigration consultant and the refund provided to the family after Mr. Singh had already come to Canada. It is unclear how this evidence could have affected the Member’s determination given the Member accepted that Mr. Singh had been defrauded by the consultant.
[19] In terms of counsel’s submissions, it is not surprising to me that the Member would have anticipated that counsel would be raising the “innocent mistake exception,”
arguing that Mr. Singh should not face the consequences of the misrepresentation because he did not know the consultant had obtained a fake acceptance. By the third sitting, the Member had already heard Mr. Singh’s evidence about when he learned of the fraud. It is a not a novel argument but one that would be expected in Mr. Singh’s circumstances (see paras 17-28 of Gill v Canada (Citizenship and Immigration), 2021 FC 1441 for a summary of the jurisprudence on the “innocent mistake exception”
). I would expect a decision-maker hearing evidence in these circumstances would be considering it with the relevant test, the “innocent mistake exception”
, in mind.
[20] And lastly, the reasons themselves demonstrate that the Member responded directly to Mr. Singh’s counsel’s submissions. For example, the Member states “I did not accept your counsel’s argument that it was too much to expect that you investigate the authenticity of the St. Clair documents, I do not believe that it is an excessive burden to be placed on an immigration applicant.”
[21] Mr. Singh’s counsel has raised other cases where a breach has been found where there has been a short deliberation prior to issuing the decision (see for example: Sternberg v Ontario Racing Commission, 2008 CanLII 50514 (ON SCDC), Castellanos Penaranda v Canada (Citizenship and Immigration), 2021 FC 608). These are very much fact specific determinations that depend on the nature and history of the proceeding, the complexity of the issue to be resolved, and the decision-maker’s reasons.
[22] Considering all the circumstances, I do not find that Mr. Singh has established the decision ought to be quashed due to a reasonable apprehension of bias.
B. Responsive Reasons
[23] As I have already explained above in addressing the bias claim, the Member’s reasons were responsive to Mr. Singh’s submissions. Mr. Singh made the general assertion on judicial review that the Member’s reasons were not responsive to his submissions about taking a principled approach to the “innocent mistake exception.”
However, the Member addressed the submissions about putting too heavy a burden on an applicant to exercise due diligence. The Member found that, in Mr. Singh’s circumstances, it was not too much to expect that he would have confirmed the information with the education institution either before coming or after he learned that it was an oversubscribed program. In making this assessment about the level of diligence required, the Member considered Mr. Singh’s specific circumstances, including his age, education, language ability, computer literacy, and decision to hire an unverified consultant.
[24] Mr. Singh’s submissions have not raised any sufficiently serious shortcoming with the Member’s reasons to warrant the Court’s intervention. Instead, the arguments amount to asking the Court to reweigh the evidence which is not the Court’s role on judicial review (Vavilov at para 125).
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