This case makes for very entertaining reading, and it highlights the need for the urgent implementation of safeguards for sponsors who feel "duped" by those they sponsor in good faith.
Dhaliwal v. Canada (Minister of Public Safety and EmergencyPreparedness)
Jaskaran Singh Dhaliwal, appellant, and
Minister of Public Safety and Emergency Preparedness,
respondent
[2010] I.A.D.D. No. 631
[2010] D.S.A.I. no 631
No. TA8-02640
Immigration and Refugee Board of Canada
Immigration Appeal Division
Toronto, Ontario
Panel: Kenneth D. MacLean
Heard: October 14, 2009 and January 27, 2010.
Decision: June 4, 2010.
(40 paras.)
Appearances:
________________________________________
Removal Order
Reasons for Decision
1 These are the reasons in the appeal of Jaskaran Singh DHALIWAL (the appellant) from a Removal Order (Exclusion) made against him on January 31, 2008 by C. Simmie, a Member of the Immigration Division.
2 The appellant was order removed from Canada after an Admissibility Hearing conducted over the course of four hearing dates between December 2006 and September 2007. Member Simmie issued her Reasons for Decision on January 31, 2008 where in she found that the appellant entered into a bad faith marriage which he misrepresented to a visa officer in order to secure permanent residence in Canada. As such, it is alleged that the appellant is inadmissible to Canada pursuant to section 40(1)(a) of the Immigration and Refugee Protection Act (IRPA and the Act) "for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act."
3 The appellant appeals from this finding and he filed a Notice of Appeal on February 12, 2008.
Hearing and Submissions
4 The appellant filed a number of documents prior to the hearing on May 21, 2009, some of which were also to be found in the Record of the Appeal (the Record) which was disclosed by the Immigration Division on April 3, 2008.
5 Excluding the documents disclosed in the Record, the appellant's disclosure was entered as Exhibits A-1 through A-6. On September 23, 2009, the appellant disclosed further documents which were entered as exhibit A-7. The respondent filed no documentary disclosure.
6 The hearing was conducted over the course of two half days on October 14, 2009 and January 27, 2010. At the end of the second day, the panel adjourned the hearing for written submissions from the parties which were received from the appellant on February 18, 2010. The respondent's responsive submissions were received on March 19, 2010 and the appellant's submissions in reply were received on March 26, 2010.
7 The panel heard two witnesses in the person of Ms. Jagdish Malhi (the appellant's ex-spouse) and Mr. Iqbal Singh Mangat (friend of the appellant). Ms. Malhi was summoned to appear at the hearing by the appellant and she is considered a hostile witness. Mr. Mangat's testimony was of little probative value and most certainly did not cause the panel to prefer the appellant's version of the events.
8 The appellant acted as his own counsel and gave no testimony. The appellant stipulated to his testimony before the Immigration Division, said testimony being found in the transcript of the Admissibility Hearing as found in the Record.
Background
9 The panel finds as proven that the appellant, who is a citizen of India, was born on December 13, 1975. He is not a Canadian Citizen, having become a Permanent Resident of Canada on September 22, 2004 as the result of a sponsorship by his then-wife, Jagdish Malhi.
10 The appellant and Ms. Malhi were wed on December 6, 2003 as the result of a marriage arranged by their respective families. Ms. Mahli had been previously married and is older than the appellant by two years.
11 It is uncontested that the marriage was not consummated during the course of the marriage trip. Upon her return to Canada Ms. Malhi began the sponsorship process that saw the appellant landed some 9 months later in September 2004. Upon his arrival in Canada the appellant took up residence in the family home of Ms. Malhi. Marital discord soon ensued over the continuing failure to consummate the marriage, and after several weeks in Canada the appellant left the Malhi home and went to live with his uncle, the witness, Iqbal Singh Mangat, where he remained for a week before returning to Ms. Malhi. An attempted reconciliation (consummation) failed and after several days on November 7, 2004, the appellant was taken back to his uncle by Ms. Mali's relatives. The couple lived apart as of that day.
12 Prior to their separation, on or about the third week of September 2004 Ms. Malhi wrote to Citizenship and Immigration Canada (CIC) expressing her concerns about the appellant's behaviour and her fear that he had used her to come to Canada.1 On December 4, 2004 Ms. Mahli swore an Affidavit in which she set out her version of the events concerning her marriage to the appellant, his subsequent sponsorship, and the break down of their relationship.2 In the Affidavit, Ms. Mahli expressed the opinion that the appellant knew that he was not going to reside permanently with her when he married her and that the appellant used her as the means of acquiring permanent residence in Canada. At or around this time, Ms. Mahli filed for an annulment on grounds of the non-consummation of the marriage.3 An uncontested annulment was granted to Ms. Mahli on February 15, 2005.
13 On August 15, 2005, the Minister filed a Request for an admissibility Hearing which was followed on December 15, 2005 by a Report under Subsection 44(1) of the Act and a Referral under section 44(2) of the Act for an Admissibility Hearing on December 21, 2005. As noted above, the Admissibility Hearing was conducted between December 2006 and September 2007.
Analysis
14 The appellant challenges the legal validity of the removal order. The appellant stipulated to his testimony before the ID and was not examined as he had chosen to act as his own counsel. The appellant examined Ms. Malhi at length who appeared by way of summons on both occasions. Ms. Mahli, while polite in her testimony, was clearly frustrated by the proceedings and must be considered a hostile witness. Both the appellant and Ms. Mahli have intimate knowledge of the facts of their relationship. The appellant's strategy in examining Ms. Mahli was to undermine her testimony before the ID such as to cause the panel to prefer his testimony to which he had stipulated. The appellant had to be reminded frequently that he could not introduce his own evidence in the guise rebutting Ms. Mahli's testimony.
15 The panel has read the transcript of the ID hearing and it is in this context that it has considered Ms. Mahli's testimony at this hearing. Much of the appellant 's examination of Ms. Mahli amount to a "fishing expedition" in an attempt to establish that Ms. Mahli was, in fact, the cause of the break down of their marriage and not, as alleged, his inability or unwillingness to consummate the marriage. Try as he could, the appellant was unable to get Ms. Mahli to resile from her previous testimony which remains consistent with that before the ID.
16 In his written submissions, the appellant has tried to further rebut Ms. Mahli's testimony and, in doing so, he has attempted on several occasions to enter new evidence which the panel necessarily must ignore, especially evidence on Indian marriage custom and tradition in respect of the non-consummation of a marriage, which must be proven.
17 Furthermore, the written submissions are replete with speculation. For example, concerning the possible impact of depression, he alleges that Ms. Mahhli might have suffered on the breakup of the marriage. The appellant's submission that "in all balance of probabilities the break up of [Ms. Mahli's] first marriage in 1996 affected her adversely setting in her state of depression and being upset since her first break up that inhibited in making her second marriage successful" is pure speculation unsupported by any reliable evidence of her psychological state following her first divorce or her state of mind when she entered into her second marriage.
18 The appellant submits that Ms. Mahli made incoherent and inconsistent statements in respect of a number of issues, including the appellant's impotence/homosexuality, the date and time the issue of the non-consummation came to the attention of her family, her writing to CIC and at the same time looking for an apartment, why she did not extend her marriage trip in 2003, and the reason for the delay in sponsoring the appellant. The panel found nothing incoherent or inconsistent about Ms. Mahli's testimony. She gave spontaneous answers to the questions put. While it is evident that the appellant disagrees with her in respect of many things she said, she was a credible witness. The appellant's disagreement in the absence of credible evidence to the contrary of which the panel finds none, does not make his version of the events preferable to that as set out by Ms. Mahli.
19 The appellant made submissions on irrelevant matters such as his contention that he was tricked into an annulment instead of a divorce. He claims that it was obtained based on Ms. Mahli's "false and fabricated" grounds that he was "impotent or a homosexual." The panel notes that the appellant did not contest the annulment and thus his protestations ring hollow. In his testimony before the ID, he appears to have suggested that the annulment was simply part of Ms. Mahli's plan to get him into trouble with immigration. However, it must be noted that prior to filing for the annulment in February 2005, Ms. Mahli had already alerted immigration to her concerns about the appellant's motivations in marrying her.
20 The appellant made extensive submissions on the subject of his being neither impotent nor homosexual. He introduced medical evidence in respect of his physical condition and photographic evidence in respect of his ability to achieve an erection.4 All of this directed towards his argument that there was nothing physically wrong with him prevent him from consummating the marriage. The issue of the appellant's possible impotence or homosexuality is a "red herring". The issue was first documented in Ms. Mahli's Affidavit of December 4, 2004 in which she affirmed in respect to the non-consummation of the marriage that it was her opinion that the appellant was either impotent or a homosexual. Ms. Mahli made this allegation again in her Affidavit supporting her annulment application.
21 The gist of the appellant's argument is that he is neither impotent nor homosexual and that he was willing and able to consummate the marriage. He contends that it was Ms. Mahli who rejected his advances such that she was responsible for the non-consummation that caused of the break down of the marriage. The appellant contends that Ms. Mahli developed an "invincible repugnance" towards him from before their marriage resulting from her experience with her first marriage. This is pure speculation on his part. All the appellant provides as evidence of his contentions is his own testimony before the ID, and a selective use of Ms. Mahli's word, largely taken out of context or exaggerated.
22 In short, the appellant has attempted throughout the hearing and in his submissions to paint himself as the victim of a sexually indifferent and vindictive Ms. Mahli who was out to break their relationship from the beginning. He submits that "Ms. Mahli was not ready for marriage. She was not at all happy with marriage. Marriage was forcibly arranged on her and she had preplanned not to consummate it. During the intervening period of 11 months...she didn't make any serious effort to improve the relationship and create conducive environment for consummation of marriage." His argument is the exact opposite of the picture painted by Ms. Mahli in her consistent testimony both before the ID and the panel at this hearing. The ID member saw fit to reject the appellant's version of the events and the panel today is of the opinion that Member Simmie was correct in preferring the evidence of Ms. Mahli over that of the appellant. His testimony before the ID and his argument at this hearing simply make no sense.
23 First of all, there is no evidence that Ms. Mahli was engaged in a scheme to facilitate the immigration of the appellant to Canada by way of a marriage of convenience. If she were, then her action in alerting CIC by way of the email noted above and subsequently her filing the affidavit alleging fraud on the part of the appellant makes no sense. Why draw attention to your complicity in fraud by waving flags? No, the only rational conclusion for the panel to draw is that Ms. Mahli, concerned at the appellant's unwillingness or inability to consummate the marriage even after coming to Canada, became concerned that she had been used by the appellant to immigrate to Canada. Her concern was such that she felt obliged to report it to immigration authorities.
24 Second, why, having had one failed marriage, which was consummated, would Ms. Mahli, some seven years after her divorce, enter into a new arranged marriage with no intention of forming a husband-wife relationship by not consummating it? Ms. Mahli's evidence does not support this conclusion. Yes, it is uncontested that she asked that they delay consummation for a few days on the night of the marriage. She testified that she was uncomfortable with the prospect as they had spent very little time together. She testified that her sister had done the same thing when she was married. More importantly, she testified that the appellant agreed with her suggestion. It is one thing to delay consummating the marriage on the first night; however, it is Ms Mahli's testimony that the appellant never made any further advances towards her over the course of remainder of her stay in India. Ms. Mahli testified that during the course of her trip she thought that the appellant would initiate intimacy and she was waiting for him rather than doing so herself as she was culturally grounded not to initiate intimacy. Ms. Mahli testified that she discussed the issue of the failure to consummate the marriage with her sister who felt that the appellant would eventually come around.
25 Third, the appellant's contention that Ms. Mahli was forced into an unwanted marriage which she was intent on breaking is inconsistent with her actions upon returning to Canada in December 2003 when she began the sponsorship process. Ms. Mahli denied that she was in any way forced into marriage before the ID. She described that her family had place an ad in a local newspaper and that the appellant's family had responded to it. She described a brief courtship followed by a wedding. In cross-examination before the ID, Ms. Mahli strenuously denied that she was forced into the marriage which she claimed she entered into willingly.
26 If, as contended by the appellant, Ms. Mahli was intent on breaking the marriage, she had simply to not start the sponsorship process, or, having started it, to withdraw her application at some future date. Rather, she returned to Canada without the marriage having been consummated and initiated the sponsorship application within four months on April 20, 2004 when she filed her IMM 1344. Ms. Mahli testified that she did not return to India prior to stating the immigration process because she had no issues with the appellant and that she was otherwise satisfied with the relationship. She testified that if she had had an issue with the failure to consummate the marriage she would not have sponsored the appellant.
27 Fourth, the appellant repeated his behaviour with a second wife, Sandeep Kaur, whom he married in India on January 23, 2006. Ms. Mahli testified that she became aware of the fact of the appellant's remarriage from a family member of Ms. Kaur who contacted her family. Ms. Kaur filed a letter with the Minister's counsel prior to the ID hearing.5 In words eerily reminiscent of Ms. Mahli's testimony, Ms Kaur related how she entered into an arranged marriage with the appellant and that it was never consummated despite their having cohabited for several months. This marriage, which was supposed to result in the sponsorship of Ms. Kaur to Canada, ended in divorce.6 The contents of this letter were not seriously challenged before the ID and not at this hearing. The appellant introduced into evidence a two sentence e-mail dated August 23, 2006 from Ms. Kaur to himself.7 He did not contextualize the e-mail or, for that matter, make submissions as to its relevance. Before the ID, his then-counsel attempted to argue that the e-mail somehow contradicted the allegations made in the divorce petition, which it does not. The similarity between these two marriages extends to the fact that as in case of Ms. Mahli's divorce petition, the appellant did not bother to respond to Ms. Kaurs petition and her unchallenged allegations were found by the Indian court as proven. The panel can only assume that he is again trying to paint himself as the victim of a vindictive wife bent on revenge as suggested at the time of his ID hearing. If it is the appellant's intention that the e-mail be given some weight he has failed to make this case in this regard. As such the panel finds the letter of Ms. Kaur supports the testimony of Ms. Mahli, leading to a conclusion on a balance of probabilities that the appellant entered into two marriages he had no intention of consummating.
Conclusion in Respect of the Appellant's Inadmissibility
28 To the extent that they were relevant, the appellant's submission, including his reply to the respondent's written submission, have been fully considered in the body of the analysis.
29 The respondent made lengthy written submissions which the panel considered. The essence of these submissions is that Ms. Mahli's testimony was straightforward, credible, and consistent and that the appellant's allegations against her are without merit. The respondent submitted that the medical evidence establishes that the appellant should have been able to achieve an erection but it does not satisfy in establishing that the appellant was able to have sexual intercourse with women and Ms. Mahli in particular. The respondent notes that no psychological evidence was introduced that spoke to any reason why that might inhibit the appellant's sexual performance; indeed the evidence is that he rejected the idea that he seek an assessment in this regard. Far from spreading lies about him, the respondent submits that Ms. Mahli was not without justification in expressing her concerns to the immigration authorities. The respondent submits that the only plausible explanation for Ms. Mahli's actions in this regard is the "indignation she felt at being used by the appellant to come to Canada."
30 The respondent pointed to the appellant's testimony before the ID where he testified that "when I married I had two things in my mind, to settle down in my life, and to settle down in Canada, my country of choice"8 submitting that that this is particularly telling in respect of his motivations in marrying Ms. Mahli, noting that his country of choice had everything to do with his decision to marry her and that "Ms. Mahli was simply the means through which to get to Canada." The respondent further submits that the appellant's lack of effort to maintain or save his marriage "demonstrated a lack of substance to their relationship."
31 The respondent submitted that the appellant has provided insufficient evidence to refute the allegation that he misrepresented material facts about his marriage. He did not consummate his marriage for reasons that remain unknown; however, the reason is not the result of "unfortunate" circumstances. The respondent submits that the appellant knew he had no intention of consummating his marriage (remain in the marriage) and he did not inform Ms. Mahli, the visa officer, or anyone else, which ultimately impacted the decision to grant him a visa.
32 The onus is on the appellant to demonstrate that the removal order made against him is invalid in law. Having reviewed the transcript of the ID Admissibility Hearing, Member Simmie's decision, and the oral testimony of Ms. Mahli, the panel finds that the evidence supports a conclusion that the appellant entered into a bad faith marriage with Ms. Mahli and that on a balance of probabilities he did so in order to facilitate his immigration to Canada. The evidence establishes on a balance of probabilities that the appellant had no intention of consummating the marriage. His contention that he is the victim and not the cause of the marriage break-down is untenable. His evidence and testimony (before the ID) is not credible. His oral testimony before the ID is the exact opposite of Ms. Mahli on the matters most material to the issue of why the marriage broke down and the panel, having heard the consistent and uncontradicted testimony of Ms. Mahli, prefers her version of the events.
33 The panel finds that the appellant is a person described by section 40(1)(a) because he directly misrepresented and withheld material facts regarding his intentions on marrying Ms. Mahli which, related to a relevant matter, the bona fides of his marriage, that induced an error in the administration of the Act. He is therefore inadmissible to Canada and the removal order made against him is valid in Law.
Humanitarian and Compassionate Considerations
34 The appellant did not make any oral submissions in respect of what humanitarian and compassionate grounds existed for allowing the appeal. When it was brought to his attention that the appeal could be allowed on humanitarian and compassionate grounds, the appellant stated that he had no evidence to bring on the subject. As the appellant had opted not to testify, he somewhat tied the panel's hands in respect of undertaking this analysis.
35 However, he had a change of mind, for in his written submissions the appellant addressed them in a limited way. He submits that any misrepresentation on his part was inadvertent and he apologized. Now this on its face is very strange, for if there has been no misrepresentation, why does the appellant feel the need to apologize which speaks to an expression of remorse on his part? He goes on to submit that removal (exclusion) is too harsh a consequence for any misrepresentation. It is not, and the panel finds that the appellant's misrepresentation strikes at the heart of Canada's immigration process which is founded on a presumption that applicants for immigration to Canada do so in good faith and they are both compelled and presumed to be telling the truth when they apply for permanent residence and/or when they are examined by an immigration officer. Since the integrity of the immigration system is at the heart of this matter, the appellant's removal from Canada is not too harsh.
36 The appellant submits that five of his peak years have been consumed in pointless litigation and that, over time, Canada has become his homeland. He submits that he has become used to life here and that removing him would cause unbearable shock. He submits, without any evidence, that the allegations of his impotence and homosexuality have travelled back to India which will make living there impossible. He further submits that, in consideration of all the aspects of the matter, the appeal should be allowed and the removal order set aside. Nothing in this makes a particularly compelling case for allowing the appeal.
37 Fortunately, the panel had access to the Background and Personal Information Form that the appellant filled out at the time of his section 44(1) interview in July 2005. While things can have been expected to change in almost 5 years this report is the best evidence available to the panel as to the appellant's circumstances. From his self-report, the panel is informed that as of July 8, 2005 he was healthy (and at the hearing this appeared to be the case). He was living with his Uncle Iqbal Singh in Brantford. Iqbal Singh is his maternal uncle and along with three cousins (his sons) this is the appellant's only family in Canada. The appellant's mother and father reside in India, as does his only brother. No one is dependent upon him financially. He has no children. The appellant has an Engineering degree in Telecommunications. He was working as a general labourer and had been so doing since July 2004. He had assets of $500 and credit card debts of roughly the same amount. He was not on welfare or any other type of assistance.
38 There is no child whose interests the panel need consider. His biological family is in India, who can be expected to support his reestablishment, and he would be returning to the country of his origin into a language and culture that he knows and with which he has had recent experience (he has returned to India several times including his lengthy stay at the time he married Ms. Kaur in 2006). He is not well established in Canada, owns no real property, and has limited assets and liabilities. No one depends on him for financial support. The appellant has not provided evidence to support his claim that living in India will be impossible owing to the allegations of his impotence (many men are impotent) and homosexuality having reached those shores. The evidence does not establish on a balance of probabilities that removing the appellant to India will cause him undue, undeserved or disproportionate hardship.
39 For all these reasons, the panel finds that the removal order is valid in law and that insufficient humanitarian and compassionate grounds exist to warrant special relief in consideration of all the circumstances of the case.
40 The appeal is dismissed.
NOTICE OF DECISION
The appeal is dismissed.
"Kenneth D. MacLean"
4 June 2010
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