Federal Court Decisions

Decision Information

Singh v. Canada (Minister of Citizenship and Immigration)

Court (s) Database	Federal Court Decisions
Date	2003-10-22
Neutral citation	2003 FC 1236
File numbers	IMM-1222-03

Decision Content

Date : 20031022

Docket : IMM-1222-03

Citation : 2003 FC 1236

BETWEEN :

PRITHWI SINGH, BALWINDER KAUR MANN and SIMRATPAL MANN

Applicants

AND :

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

ROULEAU, J.

[1] This is an application pursuant to section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the decision of Immigration Counsellor Brenda Heal ("the Immigration Officer"), dated February 13, 2003. The Immigration Officer denied the Applicants' request pursuant to section 25 of the IRPA for a humanitarian and compassionate exemption from the requirement under subsection 11(1) that they apply for immigrant visas prior to entering Canada.

[2] Prithwi Singh ("the Applicant Singh") and Balwinder Kaur Mann ("the Applicant Mann") are citizens of India. They left their seven year-old daughter Amritpal in India in October of 1990 and went to England, where they made refugee claims but were refused. Simratpal Mann ("the Applicant child") was born in England on August 2, 1991.

[3] On May 5, 1994, the Applicant Singh entered Canada and made a refugee claim on January 23, 1995. This claim was denied on September 30, 1996. In the claim, he gave evidence that he was unmarried and that his problems in India began in August of 1993, when a group of terrorists came to his home and threatened his family. He testified that the terrorists continued to threaten him in October of 1993, and again in January of 1994. He claimed he was arrested in April of 1994 during a police raid on his home and that while in detention was tortured.

[4] The evidence disclosed that the Applicant Singh was in England during the time when he alleged these events occurred, and had not lived in India since 1990.

[5] On August 5, 1995, the Applicant Mann entered Canada from England with the Applicant child. On October 6, 1996, they made a refugee claim under her maiden name "Mann". On September 17, 1997, their application for refugee status was denied. They then made an application for leave for judicial review which was denied on October 6, 1997.

[6] In the refugee claim, the Applicant Mann did not disclose the Applicant Singh as her husband, or link their claims together. She claimed that while living in India, the police raided her home and arrested her husband, a suspected militant, in August of 1994. As a result of this raid, her husband went into hiding. In December of 1994, the police again raided the claimant's house.

[7] At the time she alleged these events to have occurred, she was not in India but was in fact living in England with her husband and son.

[8] On September 21, 1996, a son, Nimratpal Singh Mann was born in Canada.

[9] On December 5, 2001, the Applicants applied for permanent residence in Canada based on humanitarian and compassionate grounds, pursuant to section 25 of the IRPA. The application for an exemption was based on the existence of a Canadian born child, establishment in Canada, and support from the community. Documents were sent to the Respondent in support of the application.

[10] The Respondent did not interview the Applicants. However, by letter dated July 17, 2002, the Respondent requested additional information from the Applicants. Additional documents were sent in by the Applicants on August 21, 2002.

[11] On February 13, 2003, the application for permanent residence was refused. No reasons were given at this time, however the Applicants later received a letter from the Respondent which contained the Immigration Officer's "Report to File" and included reasons for the refusal.

[12] The Report contained information regarding the application, including the following:

Part A) Humanitarian or Compassionate Factors

1. Spousal, family or personal relationship that would create hardship if severed? (Provide details including degree of/ability to support)

Have both worked in Canada, they own their own house and have assets.

2. Children of applicant in Canada?

Two sons, one Canadian born.

3. Children of applicant in Home country?

A daughter.

4. Hardship or sanctions upon return to country of origin?

Settled here.

5. Degree of establishment demonstrated?

Bank accounts, own their own house.

6. Establishment, ties or residency in any other country?

Daughter & family in India.

7. Other factors presented by applicant (e.g. medical or criminal inadmissibility from IMM5001 form?)

Wife is M6 and medical processing terminated due to NON compliance.

(Emphasis Added)

[13] The Report also contains a second section entitled "Part B) Decision and Reasons," which addresses factors one to six from Part A in explaining the reasons for the refusal. However, Part B makes no mention of the seventh factor, that the Applicant Mann is M6.

[14] The primary issue in this application is whether the Immigration Officer's decision that insufficient humanitarian and compassionate grounds existed to warrant an exemption from the requirements of subsection 11(1) of the IRPA was based on an erroneous finding of fact that was made in a perverse or capricious manner or without regard to the material before it.

[15] The Applicant submits that the Respondent based its decision in part on its belief that the Applicant Mann has a serious medical condition which may be a danger to the public and which is not likely to respond to treatment.

[16] In her affidavit, the Immigration Officer explains that the M6 rating was taken from an extract from the Department of Citizenship and Immigration's computer records regarding the Applicant Mann. The purpose of the M6 rating being in the Report was to remind the Immigration Officer to consider the Department of Citizenship and Immigration's computer records only if the issue of the Applicant Mann's health was raised.

[17] The Respondent submits that since the Applicants did not file any submissions with respect to the Applicant Mann's health, the Immigration Officer did not consider the Applicant's health when making a decision on the application. As such, the M6 rating was not part of the analysis and rationale under Part B of the report.

[18] In her affidavit the Immigration Officer explains the purpose of having the M6 rating in the file. Since the determination was not mentioned in Part B of the Report, the Court accepts her assertion that she did not rely on the M6 rating when arriving at a decision.

[19] Further, in Part B of the File, when referring to the three Applicants, the Immigration Officer wrote that "no health reasons have been identified that might restrict travel [to] India". This quite clearly indicates that the Immigration Officer did not base her decision on a belief that the Applicant Mann had a serious medical condition.

[20] When one objectively reviews the entire circumstances of this case and the credibility issues arising out of the refugee claims hearings, it is obvious that there is no merit to the application and accordingly it is hereby dismissed.