Ottawa, Ontario, April 11, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant purportedly married Mr. Khaira in India, then came to Canada to marry Mr. Bajwa and became a permanent resident in 1998. However, that latest marriage collapsed when Mr. Bajwa learned that the Applicant was pregnant with Mr. Khaira’s child. Shortly after her divorce, the Applicant returned to India, again married Mr. Khaira and then returned to Canada to sponsor him.
[2] The Applicant became the subject of a s. 44 Immigration and Refugee Protection Act (Act) report based on her misrepresentation as to marital status when she first entered Canada. The Immigration Appeal Division (IAD) determined that the Applicant had misrepresented her marital status in order to secure permanent residence and that a deportation order should be issued against her. This is the judicial review of the IAD’s decision.
[3] The IAD found that the Applicant had become a permanent resident as a member of the family class after being sponsored by her reputed spouse Mr. Bajwa. The IAD held that she was, in fact, married to Mr. Khaira and had not divorced him when she married Mr. Bajwa.
[4] The IAD considered each of the factors laid out in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3 as well as the best interests of the child. It also found the Applicant not to be credible because of inconsistent statements made and her inability to adequately explain the appearance of Mr. Bajwa’s name on her child’s birth certificate.
[5] It is well accepted that the standard of review for credibility findings is patent unreasonableness. The Respondent argued, and I concur, that the standard of review in respect of weighing factors is unreasonableness.
[6] The Applicant argued that the IAD erred in its determination that she was married to Mr. Khaira and therefore no misrepresentation occurred and that there were insufficient reasons to establish that the IAD considered the best interests of the child and the humanitarian and compassionate (H&C) considerations in light of all the circumstances.
[7] The IAD’s finding that the Applicant was married to Mr. Khaira is a factual one. The evidence comes from the Applicant herself. That finding is not patently unreasonable. On the basis of that finding, it was not unreasonable to conclude that the Applicant had misrepresented her marital status.
[8] The Applicant criticizes the IAD’s lack of analysis of best interests and H&C factors, yet the Applicant put in almost no evidence with respect to these issues. It is unreasonable to expect the IAD to engage in a hypothetical analysis of H&C factors not advanced by the Applicant.
[9] Based on the material before the IAD including the fact that the child’s father was in India (and would only be able to come to Canada if the Applicant’s misrepresentation was successful), that the extended family was in India, absent further and better or even any submission on H&C factors, the IAD’s decision was reasonable.
[10] For these reasons, this judicial review will be dismissed. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review will be dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2750-06
STYLE OF CAUSE: CHARANJIT KAUR KHAIRA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 20, 2007
APPEARANCES:
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Mr. Ranbir Mann
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Mr. David Tyndale
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SOLICITORS OF RECORD:
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MR. RANBIR S. MANN Barrister & Solicitor Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |