Patel v. Canada (Minister of Citizenship and Immigration)
Between
Bhartiben Patel, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Bhartiben Patel, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No.
1361
[2013] A.C.F. no 1361
2013 FC 1224
Docket IMM-2709-13
Federal Court
Montréal, Quebec
Noël J.
Heard: December 5, 2013.
Judgment: December 9, 2013.
Docket IMM-2709-13
Federal Court
Montréal, Quebec
Noël J.
Heard: December 5, 2013.
Judgment: December 9, 2013.
(33 paras.)
· REASONS FOR ORDER AND ORDER
1 NOËL J.:-- This is an application for
judicial review undersubsection 72(1)of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a
decision of the Immigration Appeal Division [IAD], of the Immigration and
Refugee Board [IRB], dated February 19, 2013, dismissing the Applicant's appeal
of an exclusion order made against her on December 17, 2009.
I. Facts
2 The
Applicant was born in India on August 1, 1982. She became a permanent resident
on October 10, 2003 after being sponsored by her first husband, Ashokkumar
Pattel, whom she married on January 11, 2003.
3 Two
weeks after arriving in Canada, she gave birth to her son on October 20, 2003.
4 A
DNA test proved that the child was not the son of the Applicant's first
husband, but rather the son of another man, Jiteshbhai Ramanial Patel, with
whom she had a relationship before marrying her first spouse and an
extra-marital affair during her marriage. The Applicant and her first spouse
divorced on October 31, 2005.
5 The
Applicant presented a sponsorship application as a conjugal partner for
Jiteshbhai Ramanial Patel, her child's father, who became her second spouse on
May 14, 2007.
6 During
the processing of this sponsorship application, the immigration authorities got
wind of the facts underlying the alleged misrepresentation. Consequently, the
Applicant was interviewed by an immigration officer and a report was prepared
under section 44 of the IRPA.
7 The
matter was deferred to the Immigration Division [ID], who found that the
Applicant's story had major credibility problems and that, as a result, she had
committed acts of misrepresentation on two counts. First, she failed to
disclose that she was pregnant when she was granted permanent resident status.
Second, she failed to disclose that she was in a relationship with Jiteshbhai
Ramanial Patel when she married her first spouse, as a result of which, her
first marriage was considered a marriage of convenience. Along with its
decision, the ID declared the Applicant inadmissible under para 40(1)(a) of the IRPA for misrepresentation and
issued an exclusion order on December 17, 2009.
8 The
Applicant appealed this removal order to the Immigration Appeal Division.
II. Decision under review
9 The
IAD found that the removal order was founded in law and that the Applicant was
inadmissible under the IRPA for misrepresentation. Ultimately, it concluded
that, considering the best interest of the children, the humanitarian and
compassionate [H&C] considerations brought forth by the Applicant did not
outweigh the seriousness of the inadmissibility.
10 The
IAD first tackled the Applicant's submission that the report made under section
40 of the IRPA was invalid as it related only the alleged marriage of
convenience and in no way indicated that the Applicant had failed to disclose
her pregnancy when she arrived in Canada. The ID panel had rejected this
submission and the IAD agreed with this rejection. The IAD was of the opinion
that, as she was interviewed by an immigration officer, the Applicant was made
aware of the allegations made against her by the immigration authorities and
given the opportunity to explain her situation and give evidence in support of
her claims.
11 The
IAD then examined the ID panel's decision. The ID panel had concluded that
bearing her spouse's child or suspecting that she was having the child of a
long-time lover was a material fact relating to a relevant matter that could
induce an error in the administration of the IRPA. It had also noted numerous
contradictions and implausibilities in the Applicant's various stories and
ultimately concluded that she had failed to provide reasonable explanations for
her contradictions. Upon reviewing the evidence on file, the IAD found that it
had no reason to doubt the ID panel's conclusions with regard to the assessment
of the oral evidence and the Applicant's lack of credibility. The Applicant had
the onus, before the IAD, to establish that the removal order was invalid, but
she provided no evidence to show that the ID panel's conclusions related to the
lack of credibility were unfounded. The Applicant did not testify during the
hearing, thereby depriving the IAD of the opportunity to obtain explanations
and assess the Applicant's credibility as it concerns the allegations of
misrepresentation. Simply put, the Applicant did not discharge her burden of
establishing that the removal order was not valid.
12 The
IAD then turned to the assessment of H&C considerations, relying on factors
set out in Ribic v Canada (Minister of Employment and
Immigration), [1985] I.A.B.D. No. 4 (IAB T84-9623) [Ribic] and confirmed by the Supreme Court of
Canada in Chieu v Canada (Minister of Citizenship and
Immigration), 2002 SCC 3 at paras 40-41, [2002] S.C.J.
No. 1 [Chieu], and specified
that these factors are not exhaustive and that the weight to be given to these
factors varies depending on the circumstances of each case.
13 The
Applicant's testimony at the hearing was limited to the H&C considerations
of her case, and her counsel asked only the broadest of questions. No evidence
was submitted in this regard. The IAD had to ask the necessary question in
order to make its decision. The IAD considered various elements, including the
Applicant's family and their establishment in Canada. The IAD determined that
the Applicant's current spouse - the father of the children - lives in India in
a town located at a very reasonable distance of a hospital and which offers
education services. The Applicant claimed that she would have to send her
children to a private school in the city but failed to provide evidence to support
her claims.
14 The
Applicant alleged that moving to India and living under the same roof as her
spouse and his family would cause a great deal of hardship, but the IAD noted
that the Applicant previously lived in that house for several months at a time
and never indicated having experienced any problems. According to the IAD, it
was in the best interest of the children that they be reunited with both
parents, a situation which is only possible in India. The Applicant failed to
present evidence to support her allegation that her family would suffer undue
hardship in India.
15 In
its analysis of the H&C considerations, the IAD acknowledged that the
Applicant has been in Canada for a long period and that she managed to
establish herself and her family in Canada, which are positive factors.
However, the presence of family members in India would mitigate any hardship
she could experience should she return to her home country. Finally, the IAD
opined that the Applicant's misrepresentations are significant and highly
negative factors in the analysis of H&C considerations, because had she
disclosed the information related to her earlier relationship with her current
spouse and to the advanced pregnancy, it is likely that she would not have been
granted permanent resident status or that the immigration authorities would
have conducted additional verifications prior to rendering their decisions.
III. Applicant's
submissions
16 The
Applicant submits that the IAD's decision is unreasonable because it failed to
take into account the evidence and the sworn testimony with which it had been
presented regarding the issues of misrepresentation and H&C considerations.
17 With
respect to the issue of misrepresentation, the IAD misconstrued the evidence on
two accounts: the genuineness of her first marriage and her pregnancy. First,
she claims that her first marriage was arranged according to the Indian culture
and that there was no planned collusion. Various elements support the
genuineness of her marriage, including the fact that, as corroborated by the
social worker responsible for the Applicant, she was willing to give up her
baby in order to remain with her first spouse and save her marriage. It was her
husband who ultimately refused her return to the house. She adds that although
she separated from her first husband in 2003, she only contacted her current
spouse three years later to inform him that they had a child together. Second,
she argues that she did not know she was pregnant and that she had submitted evidence
in this regard. She adds that surely immigrants entering Canada are not
expected to reveal all their previous relationships at port of entry because
that would make no sense.
18 As
for the H&C considerations, the Applicant claims that the IAD did not take
into account the interest of the children. First, the IAD confused the genders
of the children, as both children are females and not a boy and a girl. Second,
the IAD was not alert, alive and sensitive to the best interest of the children
given the evidence submitted by the Applicant, particularly as it relates to
the poor quality of education and medical care offered in the small town where
they would move in comparison to what is available in Canada. In the end, the
IAD concluded that the children should be satisfied with the basic amenities of
the small village. More specifically, the children would be denied their rights
as Canadian citizens. She further argues that the IAD seriously downplayed the
humble socio-economic background of the Applicant and her current spouse in
India. Third, the IAD should have examined the issue of H&C considerations
as a stand-alone criterion. However, it concluded that the Applicant's
misrepresentation was a highly negative factor which outweighed the positive
elements of the H&C considerations analysis. Fourth, although the Applicant
chose to file the record of the previous hearing rather than testifying, had
the IAD wished to test the Applicant's credibility, it could have asked her any
questions it wanted.
IV. Respondent's
submissions
19 The
Respondent claims that the IAD's decision is reasonable because the removal
order based on the Applicant's misrepresentations is valid and because the IAD
adequately exercised its jurisdiction as it relates to the H&C
considerations.
20 Concerning
the Applicant's misrepresentations, the IAD agreed with the ID panel's
conclusion that the Applicant lacked credibility, and the assessment of
credibility, just like the consideration of evidence, lies within its
jurisdiction and expertise. The Applicant did not provide evidence to show that
the ID panel's decision with respect to her credibility were unfounded.
Therefore, considering the evidence available, the fact that the Applicant was
not credible and that she did not provide sufficient explanations, it was
certainly reasonable for the IAD to conclude that the exclusion order was
valid.
21 As
for the evaluation of H&C considerations, the Applicant had the burden of
adducing evidence in support of her allegations. The decision clearly reflects
that the IAD carefully considered the Applicant's file in light of the Ribic factors and, based on the facts and
the Applicant's testimony, it was reasonable for the IAD to find that there
were no H&C consideration warranting to grant the relief sought. The
Applicant did not provide evidence of the hardships she would experience in
India. Also, contrary to the Applicant's claim, the IAD was indeed alert, alive
and sensitive to the interest of the children as it found that it would be in
their best interest to be reunited with both parents. The Applicant failed to
adduce evidence contrary to the ID panel's conclusion that services, although
not equivalent to Canadian services, are generally available in India. Also,
the interest of the children is not a predominant factor. As for the
Applicant's argument that the IAD should have examined the H&C
considerations independently of the issue of misrepresentation, the IAD's
reasons show that it carefully assessed all the evidence and the various
positive and negative factors. The Applicant simply disagrees with the IAD's
findings and asks this Court to reweigh the factors and the evidence, which
cannot be done through judicial review.
V. Issues
22 Is
the decision of the IAD dismissing the Applicant's appeal of an exclusion order
made against her reasonable, particularly as it relates to the determination of
misrepresentations and the assessment of H&C considerations?
VI. Standard of review
23 The
above question is an issue of mixed fact and law and should be reviewed under
the standard of reasonableness (see in general, Digilov
v Canada (Minister of Citizenship and Immigration),
2010 FC 615 at para 14, [2010] F.C.J. No. 743, and see also Oloumi v Canada (Minister of Citizenship and Immigration), 2012 FC 428 at para 12, [2012] F.C.J. No. 477 and Karami v Canada (Minister of Citizenship and Immigration), 2009 FC 788 at para 14, [2009] F.C.J. No. 912 (determination of
misrepresentations) and Zanchetta v Canada (Minister of
Citizenship and Immigration), 2013 FC 195 at para 19,
[2013] F.C.J. No. 215 and Sinniah v Canada (Minister of
Citizenship and Immigration), 2011 FC 1285 at para 24,
[2011] F.C.J. No. 1568 (assessment of H&C considerations)).
24 This
Court shall not intervene if the IAD's reasons are "justified, transparent
or intelligible" and if the decision falls in the "range of possible,
acceptable outcomes which are defensible in respect of the facts and law"
(Dunsmuir v New Brunswick, 2008
SCC 9 at para 47, [2008] 1 S.C.R. 190).
VII. Analysis
25 The
IAD's decision was reasonable and this Court's intervention is not warranted.
26 It
is first alleged that the IAD misconstrued the evidence presented and that this
lead to findings of misrepresentations on two accounts: the Applicant entered
into a marriage of convenience and she failed to disclose that she was pregnant
when she was granted permanent residence.
27 The
Applicant's memorandum refutes the findings of misrepresentation while the
IAD's decision relies mostly on the numerous credibility findings noted in the
ID panel's oral reasons. Indeed, the IAD confirmed these findings that the
Applicant lacks credibility, and this is absolutely reasonable, given the number
of discrepancies and contradictions between the Applicant's different
testimonies (see pages 1-4 of the ID's decision). The Applicant did not provide
any evidence to contradict the ID panel's conclusions that she lacked
credibility. Although the appeal procedures calls for a de novo hearing, the Applicant decided not
to testify on the misrepresentations issue but only on the H&C issue. It is
not for the IAD to decide to assume the task of examining the Applicant. It was
the burden of the Applicant. As a result, the ID panel's credibility findings
remained and the IAD had to take them into consideration. The evaluation of the
credibility lies within the expertise and jurisdiction of the IAD, and this
Court must show high deference with regard to such conclusions (Thach v Canada (Minister of Citizenship and Immigration), 2008 FC 658 at para 21, [2008] F.C.J. No. 834). Thus, it was
reasonable for the IAD to conclude that the exclusion order was valid.
28 The
second argument put forward by the Applicant is that the IAD failed to properly
consider the existence of H&C considerations. The Applicant had the burden
of proving that, in her case, these considerations were sufficient to warrant
granting a relief under the IRPA (Chieu, above, at para 90).
29 In
its decision, the IAD went through a careful analysis of the various factors
set out in Ribic, above and
confirmed inChieu, above,
explicitly stating that the factors are not exhaustive and that the weight to
be attributed to each factor varies depending on the particular facts of a
case. In the present matter, the IAD examined, amongst other factors, the
Applicant's and her family's level of establishment in Canada, the family and
community support available to them after a possible removal and the degree of
hardship they would experience should they be removed.
30 Also,
contrary to the Applicant's argument, the IAD was in fact alert, alive and
sensitive to the best interests of the children as it concluded that the best
option for them would be to be reunited with both parents, an option which is
only possible in India. The Applicant also claims that the services offered in
India - whether educational or medical services - are of a lesser quality than
those offered in Canada. That may well be the case; however, she presented no
documentary evidence in support of her claims for the IAD to take into
consideration.
31 The
Applicant claims that the IAD should have assessed the H&C considerations
as a stand-alone criterion. However, this Court finds that the decision under
review, independently of the reference to the Applicant's misrepresentation,
clearly shows that the IAD considered both the positive and the negative
elements relevant in the assessment of H&C considerations. While the
Applicant may be dissatisfied with the outcome of the decision rendered by the
IAD, it is not up to this Court to reweigh the factors and the evidence
considered by the IAD (Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125 at para 11,
[2002] F.C.J. No. 457; Qiu v Canada (Minister of
Citizenship and Immigration), 2003 FCT 15 at para 28,
[2003] F.C.J. No. 24). The decision of the IAD as it relates to the assessment
of H&C consideration is therefore reasonable.
32 For
the aforementioned reasons, this Court finds that the IAD's decision dismissing
the Applicant's appeal of an exclusion order made against her is reasonable.
33 The
parties were invited to submit a question for certification, but none were
proposed.
ORDER
THIS COURT ORDERS that this
application for judicial review is dismissed. No question is certified.
NOËL J.
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