Ottawa, Ontario, March 8, 2007
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Navdeep Kaur seeks judicial review of the decision of the immigration officer who rejected her application for permanent residence under the spouse or common-law partner in Canada class based on a finding that she was inadmissible for misrepresentation.
[2] For the reasons that follow, the Court concludes that the finding of the officer in respect of the applicant’s inadmissibility is flawed and consequently the sanction provided at subsection 40(2) of the Immigration and Refugee Protection Act, S.C. 2001, c-21 (the Act) should not apply to the applicant. However, as agreed by the parties, it is also evident that the applicant, who was not cohabiting with her Canadian husband when the decision was made, did not and still does not qualify in the aforementioned spousal class.
Background
[3] Navdeep Kaur is a citizen of India. She lived in Tracy, California from 2000 to 2004. She allegedly filed a failed refugee claim in the United States prior to coming to Canada in November of 2004. In 2001, she allegedly married, in a religious ceremony held in California, a Canadian citizen named Jaswant Khinda. Mr. Khinda fathered her two children born in the United States.
[4] The applicant and her two sons Mannraj and Abhijot entered Canada illegally on November 12, 2004, to join Jaswant Khinda who was then living in Surrey, British Columbia. She made a claim for protected person status at the CIC office in Vancouver on December 29, 2004. At that time, she filed information background forms for herself and her sons and then met with an immigration officer for an assessment of the eligibility of her claim for a referral to the Refugee Protection Division (RPD) in accordance with sections 99 to 101 of the Act (reproduced in Annex A).
[5] During the interview with the CIC officer, she described her marital status as “separated” from Maninder Singh Khinda, an Indian citizen she allegedly married in India in 2000. She also claimed to have been arrested by the Indian police when they came to arrest her father who was supposedly a member of Shiromani Akali Dal (Mann Group). She claims to have been raped during her detention. Her Indian husband was allegedly arrested, never to be seen or heard from again. She indicated that she assumed that her husband had been arrested because of her father’s involvement in the Mann Group.
[6] There was contradictory information about the father of her sons in the information background forms. Mannraj’s form listed his father as Jaswant Khinda, a Canadian living in Surrey whereas Abhijot’s form described Jaswant Khinda as an Indian living in Surrey. When asked to clarify the issue, the applicant said that she did not know where that information came from and mentioned that Jaswant Khinda was her American boyfriend who had left her before she departed California, and that she did not know his whereabouts.
[7] In January 2005, she filed a Personal Information Form (PIF) based on a similar story. In her application for permanent residence, she explained that she told her Canadian lawyer that she had originally made up the story about her Indian husband to bolster her claim in the USA and had continued with the same story. In May 2005, upon her lawyer’s advice, she withdrew her refugee claim without any explanation as to the reasons for such withdrawal.
[8] In June 2005, she and Jaswant Khinda were married in a civil ceremony in Surrey. On June 26, a departure order issued against the applicant on December 29, 2004, became a deportation order. She failed to appear at her interview with Canadian Border Security Agency (CBSA) on June 28 but met with CBSA on July 7 with her Canadian husband. Later that month, she filed a pre-removal risk assessment application (PRAA) based on risks allegedly resulting from her long absence from India. Her lawyer was careful to make no reference to an Indian husband in the PRAA submissions. Shortly thereafter, in August, she filed the application for permanent residence that is the subject of the present application.
[9] In March 2006, the PRAA application was rejected and the applicant was scheduled for removal to India. She requested an administrative stay until the decision was made in respect of her application for permanent residence. Pursuant to the Spousal policy, however, she could not benefit from such a stay because her application had been filed after her PRAA application. She then made a motion to this Court for a stay based on an application for leave and judicial review of the PRAA officer’s decision which was dismissed. Thus, Navdeep Kaur was obliged to leave for India in April 2006.
[10] It is in this context that the immigration officer later assessed Navdeep Kaur’s application for permanent residence.
[11] In his letter to the applicant dated May 15, 2006, the officer only refers to paragraph 40(1)(a) of the Act (see Appendix A) in respect of specific misrepresentations about her marital status and her refugee claim.
[12] In his notes consigned in a Report to file also dated May 15, 2006, the officer reviews the information in CIC’s file and refers to the applicant’s explanations about what she said in the past, her “real” marital status and the fact that her relationship with Jaswant Khinda, the father of her two sons, is genuine. He points to the fact that she states in her application that as of August 2005 they had lived together for over three (3) and a half years.
[13] The officer also notes:
From the information on file, I am satisfied Ms. Kaur is inadmissible to Canada for misrepresentation. She misrepresented information as follows.
· Entered Canada with false documents
· Attempted to remain in Canada by giving false information to support her refugee claim (re: Maninder Singh Khinda)
· Gave CIC false information about “her husband” (she said Jaswant Khinda left her during her 2nd pregnancy; elsewhere she said they’ve been together since 2001; both cannot be true)
[14] Later, under the heading “Decision and Reasons”, the immigration officer writes that on the basis of the genetic reports and the opinion of a Dr. Karl Williams which he accepts “this appears to have been a genuine family (that is not a marriage of convenience)”.
[15] He finds that Mr. Khinda meets the requirements of a sponsor; however, Ms. Kaur’s lack of status cannot be waived as she does not live in Canada anymore and requires the Minister’s consent to return to Canada. Finally, he writes:
Further, Ms. Kaur is not eligible for the Class or the Spousal Policy (of 18 Feb. 2005) because she is inadmissible for misrepresentation, as described above.
The application is refused.
[My emphasis]
[16] As can be appreciated, there are significant differences between these reasons and the letter actually sent to the applicant. Not only did the officer not refer to the fact that her removal made her inadmissible to benefit from the Spousal policy but the misrepresentations listed in the letter are much more limited than those listed in the report. In the letter, there is no reference to false documentation or to a misrepresentation as to the length of her cohabitation with Jaswant Khinda.
[17] Moreover, there is no indication as to the basis on which the officer concluded that the two misrepresentations listed in his letter of May 15 were material and capable of inducing an error in the application of the Act as required by paragraph 40(1)(a).
Issues
[18] In their written submissions and at the hearing, the parties focused on the following three issues:
i. mootness;
ii. whether the misrepresentations of the applicant were material to the application currently before the officer or to any prior decision or process;
iii. whether paragraph 40(1)(a) can apply to misrepresentations made in the past and that have been identified and corrected by an applicant.
Analysis
[19] The test or principles applicable for determining if a matter is moot are set out in detail by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989], 1 S.C.R. 342.
[20] In the course of its discussion, the Supreme Court of Canada notes:
As well, the inapplicability of a statute to the party challenging the legislation renders a dispute moot: Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357.
[21] The parties are agreed that the applicant was not and is not an eligible member for the purposes of the spousal class or the policy (no cohabitation with her husband in Canada as required by subsection 124(a) of the Immigration and Refugee Protection Regulations, SOR 2002-227). In that sense, the matter is indeed moot.
[22] However, the applicant submits that there is still a “live controversy” because the finding of inadmissibility for misrepresentation carries the sanction prescribed at subsection 40(2) of the Act. More particularly, the applicant remains inadmissible for a period of two years from the date of her removal. I agree.
[23] The Court will therefore review the validity of this particular finding.
[24] As it will become more apparent further on, there will be no need to comment on the third issue raised by the parties. Indeed, the Court cannot determine from the reasons and the decision on what basis the immigration officer found that the two misrepresentations listed in his letter met the test set out in paragraph 40(1)(a). The arguments put forth by the respondent will be examined but they are pure speculation and amount to an effort to rewrite the officer’s decision.
[25] There is no doubt that the conduct of the applicant was reprehensible. During the clause by clause analysis of Bill C-11 that later became the Act, it was made clear that several provisions were added or modified to enhance enforcement tools to eliminate abuse of our immigration system.
[26] Applicants must answer questions put to them truthfully (s. 16 of the Act) and that sanctions can result from non-compliance (for example s. 40 and 41 of the Act).
[27] But that does not mean that the applicant is not entitled to procedural fairness. The fact that permanent residence status is a privilege and not a right does impact on the content of the duty of fairness owed to the applicant but, at the very least, she must be able to exercise her right to seek judicial review and the Court must be able to determine whether or not the decision maker made a reviewable error.
[28] In most cases, when the materiality and the potential impact of the misrepresentations on the application of the Act are evident, the duty to give reasons can be easily met. The reasoning is almost implicit. However, in some cases like this one, the decision maker will be required to give some explanation as to how a finding of misrepresentation was reached.
[29] The respondent argues that the marital status of the applicant was material to the determination of whether the applicant’s relationship with Jaswant Khinda was bona fide. Certainly, there was no misrepresentation in that respect before the immigration officer reviewing the permanent residence application. By this time, Navdeep Kaur had retracted her earlier false statements. The previous misrepresentations could not have induced any error in the review of that application. At that point, the most that can be said is that her credibility was affected by her prior misrepresentations. However, it is evident that the immigration officer did not make his decision on the basis of Ms. Kaur’s credibility. He actually found that the marriage was genuine after adopting the independent opinion and the two genetic reports of Dr. Williams.
[30] There is no doubt that the issue of marital status was relevant to the application but that the past misrepresentations simply did not meet the criteria set out at paragraph 40(1)(a). There is no explanation in the decision as to how this test could apply in respect of the application under review.
[31] As to whether such misrepresentations could be material and could have induced an error in the prior application of the Act, once again, it is difficult to see how the officer could reach such a conclusion. Again, there is absolutely nothing whatsoever in the decision and the report of the officer that explains his reasoning in that respect. Given the criteria set out in s. 101, the marital status and the false Indian husband may have been relevant in the sense that the officer who interviewed the applicant on December 29 asked questions about this, but they were not material or could not induce an error in deciding whether to refer the claim of the applicant to the RPD or not. The Court cannot accept the respondent’s argument that without her Indian husband the applicant had no claim. It is evident that in her story the persecution alleged was linked to the activities of the applicant’s father.
[32] In respect of the refugee claim per se, it was never considered by the RPD. The parties are agreed that at a very minimum for paragraph 40(1)(a) to apply, the misrepresentations must have been considered (even if not acted upon) in the application of the Act. The Court agrees that it is unlikely that the legislator intended to discourage the withdrawal of inaccurate or misleading statements.
[33] The respondent finally argues that the misrepresentations in the PIF could have induced an error in the assessment of the PRAA application even if they were not referred to in the applicant’s submissions to the PRAA officer. However, apart from including the PRAA process in his summary of the history of the applicant, the immigration officer does not refer at all to the PRAA decision in his report. The Court cannot construe his reference to the refugee claim as referring to another decision made in a distinct process especially when one considers that the applicant was very careful not to refer to her alleged Indian husband in her PRAA application.
[34] In my opinion, none of the plausible explanations advanced by the respondent would meet the standard of review of the patently unreasonable decision. Furthermore, the Court is simply incapable of determining from the reasons given by the officer on what basis he actually came to his finding that those representations (marital status and refugee claim) met the criteria set out in paragraph 40(1)(a).
[35] In such circumstances, the Court has no choice but to conclude that this specific finding of inadmissibility is flawed and should not carry the consequences set out in s. 40(2) of the Act. However, given that it is clearly not useful to send this matter back for re-determination (mootness), the decision to refuse the application will not be quashed.
[36] My conclusion in respect of the inadmissibility for misrepresentation should not be construed in any way as indicating that the applicant did not breach the Act and become inadmissible on that basis. This issue is not before the Court.
[37] The parties did not propose any question for certification in this case and the Court is satisfied that this case turns on its own facts.
ORDER
THIS COURT ORDERS that:
1. The application is granted in part. Although the decision to refuse the application for permanent residence is confirmed, the particular finding that the applicant is inadmissible for misrepresentation is set aside.
ANNEX A
Immigration and Refugee Protection Act, S.C. 2001, c. 27 Loi sur l'immigration et la protection des réfugiés,
L.R. 2001, ch. 27
Immigration and Refugee Protection Regulations, SOR 2002-227
Règlement sur l’immigration et la protection des réfugiés (DORS/2002-227)
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124. A foreign national is a member of the spouse or common-law partner in Canada class if they (a) are the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada; |
124. Fait partie de la catégorie des époux ou conjoints de fait au Canada l’étranger qui remplit les conditions suivantes : a) il est l’époux ou le conjoint de fait d’un répondant et vit avec ce répondant au Canada;
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FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3081-06
STYLE OF CAUSE: NAVDEEP KAUR
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: DECEMBER 13, 2006
REASONS FOR ORDER: GAUTHIER J.
AND ORDER
APPEARANCES:
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Lorne Waldman
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Banafsheh Sokhansanj
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SOLICITORS OF RECORD:
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Waldman & Associates Toronto, Ontario |
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada
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