Saturday, April 25, 2015


The question of human smuggling in the Thousand Islands area has been a source of concern for authorities on boths sides of the border for many years.  In the case below, the court summarizes the applicable legislation and a convicted is entered against the accused.

R. v. Alli
Her Majesty the Queen, and
Yavar Alli, Accused
[2015] O.J. No. 1629
2015 ONSC 1716

Court File No.: CR-13-119

 Ontario Superior Court of Justice

R. Leroy J.

Heard: February 23, 24 and 26, 2015.
Judgment: April 2, 2015.
(40 paras.)

·       R. LEROY J.:-- 
1     The Crown theory is that the accused was knowingly complicit in an organization formed to smuggle humans across the US-Canada border, crossing the river at Cornwall for transport to Toronto. To the extent the accused lacked specific details, the Crown contends he was wilfully blind to them. Few facts are in dispute. There was an organization. Its members knew the persons being smuggled did not have the required documentation. Their purpose was to circumvent border-crossing process. It is an offence under the Immigration and Refugee Protection Act, SC 2001, c. 27 (IRPA) to facilitate entry to Canada of persons without examination by an officer -- s. 18, without timely appearance before an officer at a port of entry and without visas or passports -- s. 117. The pertinent legislation is summarized in Appendix A to these reasons.
2     Authorities on both sides of the border were aware of the organization and of this delivery. The humans were of Nigerian origin. The members of the organization were unaware the area around the delivery location was closely monitored by members of the Cornwall Regional Task Force.
3     The accused's older brother was a member of the organization. This was not his first assignation. He awaited delivery by motorboat in a decrepit motel directly across the street from the delivery dock. His role was to receive the illegals from the dock, escort them across street to his vehicle and drive them to Toronto. He did this for the sum of $400.00.
4     The plan on May 24, 2012 required two vehicles for carriage to Toronto.
5     The brother occupied a room two doors north of the south end of the motel on the second floor. The closest police surveillance sourced from two officers occupying the most southerly room on the same floor -- two doors down. Delivery to the dock awaited arrival of the second transport motor vehicle. The second vehicle, operated by the accused, arrived at the motel shortly after 23:00 hours.
6     The six Nigerians entered Canada without required documents and appearances before an officer or attendance at the closest port of entry were not considerations.
7     These are specific intent offences. In addition to the acts and defaults involved in organizing, inducing, aiding or abetting the person to enter Canada without required documents or appearing before an officer, the Crown is required to prove that the accused knew or was wilfully blind to the fact that:

·       i. 
The passengers did not have the requisite documents; 

·       ii. 
The passengers failed to appear before an officer or attend at the nearest port of entry to do so. 
8     The brother pled guilty to these offences. The statement of fact with minor revisions filed to ground conviction on his guilty plea was submitted as agreed fact in the trial. The accused denies the requisite knowledge. He denies knowingly inducing, aiding or abetting the entry into Canada of the Nigerians without documents or reporting.
The Accused
9     Mr. Alli testified. He is 35, married with one child. He resides in North York with his in-laws. His brother resides in Mississauga. At the time, Mr. Alli worked as a tow truck driver. Today he works in building maintenance.
10     Mr. Alli was born in Canada and raised in Guyana. He returned to Canada at age 15 in the care of his brother. By the age of 20 years, Mr. Alli began amassing a criminal record. He encountered nine separate sets of convictions between 1999 and March 2005, four in 1999 and one each in the years 2000, 2001, 2002, 2003 and 2005. He said, and the record does not refute his assertion, he committed to legal income sources over the ensuing seven plus years.
11     He confirmed a symbiotic working relationship with his brother. Mr. Alli has mechanical skills and his brother does motor vehicle bodywork. He said their relationship was conflicted when they operated as business partners. He thought their relationship improved after they dissolved their business. To his knowledge, his brother did not have a criminal record. He trusted the brother. His brother knew of Mr. Alli's criminal record and consequences of further infractions. They continued to assist each other as independent contractors. The business model involved motor vehicle rehabilitation for sale at affordable prices. Mr. Alli observed his brother had many Nigerian customers and seemed active in that community.
12     He said he worked his scheduled tow truck shift through the day on May 24, 2012. He received the first text from his brother around 12:00 noon. At trial, he understood his brother to ask him to give his people a ride back to the city. In his statement to police on May 25, 2012, he described the context as "Hey Man, I need a driver. Can you come help me?" He was to receive the sum of $100 and change for fuel. He had never been to Cornwall before. He talked with his spouse who wrote trip instructions. He did not appreciate the distance. The decision to make the drive was altruistic.
13     Mr. Alli emphasized the significance of the behavioural turnaround in his life. He expected that another conviction signified incarceration and was determined to conduct his affairs within legal parameters. He trusted his brother to honour that commitment and did not expect to be entangled in an illegal venture.
14     While en route to Cornwall, Mr. Alli could not help but hypothesize. It was a conundrum. He said he speculated about why his brother needed his assistance. He did not suspect anything illegal. In Mr. Alli's experience, the brother had not been so inclined. He associated Cornwall with tobacco and alcohol smuggling. There were texts between the brothers through the trip. The authorities had Mr. Alli's cell phone and said they would review the texts of the day forensically against his story. He was not questioned about the texts. I conclude his narrative is consistent with the text communications between brothers and there was nothing in those texts to suggest Mr. Alli had foreshadowing of participation in a human smuggling organization.
Events at the Monte Carlo Motel
15     Mr. Alli entered Cornwall along the east side, exiting from Highway 401 at Boundary Road, turning right at the Highway 2 intersection. It was shortly after twenty-three hundred hours and dark when he arrived. He parked beside his brother's vehicle, observed his brother on the balcony and climbed the stairs. Seth Lazore, another member of the organization was waiting. They had a cigarette, talked briefly about unrelated matters and Lazore departed. Mr. Alli and the brother remained on the balcony for a few minutes. The police officers could not hear the words spoken between them. Mr. Alli said it was then he was tasked to transport the passengers to Toronto.
16     In his statement, Mr. Alli said he learned of the passengers when he arrived at the motel. The brother left the balcony and went downstairs at 23:30. Mr. Alli went to the washroom for ablution. The boat dropped the passengers at 23:40 and departed by 23:42. By 23:51, the brother and passengers were loading the vehicles. Mr. Alli said he was interrupted in the washroom activities by his brother's knock on the door advising it was time to go. He recalled that when he left the room, the passengers assigned to his vehicle were well into the process of loading and seating. He went to the car and moved an infant into a car seat. He said this was an instinctively protective action learned from caring for his own child. He denied any role in loading the passengers' luggage. He confirmed the take down happened as soon as he entered the driver seat.
17     The statement of agreed fact - exhibit #14 states that the defendants assisted with loading passengers' luggage. Intelligence officer Gauthier said he observed both Allis loading passenger luggage. His notes recorded the brother and passengers loading the vehicles, omitting reference to Mr. Alli as participant in that task. He testified to independent recall of observing Mr. Alli load luggage. Mark Evans was coordinator and in steady communication with Officers Gauthier and Barkley -- his notes indicate the brother helped load vehicles but does not mention Mr. Alli.
Mr. Alli's Knowledge
18     Mr. Alli's version is he was unaware of the smuggling component. When he arrived in Cornwall, it was dark and the existence of the river contiguous to the roadway did not register. He was in the bathroom when the boat deposited the passengers on the dock and while they traversed the distance to the parked cars. He did not know the passengers entered Canada while he was in the washroom.
19     He said his brother assured him the venture was legitimate. His said his brother confirmed the passengers were good in the United States and presumed they were good in Canada -- statement Exhibit 13 page 10. He was apprised of the imminent arrival of the passengers. He was not explicitly apprised of the cross border aspect.
20     That take on the situation is belied by what he said later at page 37 of the statement. He said his brother told him "Some of them, they came from the States or whatever, but they don't have Toronto document but they have State paper or whatever. So they are legit in the State but not legit in Canada."
21     Mr. Alli decided to not ask more questions until they returned to Toronto. "Like I was going to wait until we reached back in Toronto and then figure it out...Because obviously I was going to ask him "What's going on?" But I was going to do it at ... when we're out of their faces."
22     The Crown position is this is dispositive admission of knowledge the passengers did not have the necessary documents to enter Canada and by implication knowledge they had not reported. If not actual knowledge, then dispositive admission of suspicion. There is no other reason for the discussion. Mr. Alli's explanation in trial testimony, to the point he understood his brother to say they were United States citizens thereby allowing the inference they had the right to be in Canada, obfuscated the plain admission. The submission is if that was what he thought he should have said as much in the statement. He reported his brother to say "I am picking up some Nigerian people -- Drop them in Toronto for me." The Crown submission is that the descriptors "Nigerian people" and United States citizen are mutually exclusive.
23     The defence position is Mr. Alli was candid. He assisted his brother with many endeavors. The impression is they viewed their respective skill sets as symbiotic. His first words to the brother on arrival were "What do you have for me brother?" There were no indicators of counter-surveillance. They talked openly on the balcony. His trust in his older brother was forged over a lifetime and many transactions. This was not stranger-based intelligence. He knew his brother did business with Nigerian immigrant Canadians. He was in a strange place, unaware of the juxtaposition of the river and United States border. He was not entirely sure if he remained in Ontario.
24     Mr. Alli's engagement was different from those of Alli and Alzehrani -- R. v. Alzehrani 2008 CarswellOnt 6556 and R. v. Alli 2009 CarswellOnt 8881 where the organizations were sophisticated and their involvement repeated many times with supporting wiretap nexus to the accused. They were well paid. Mr. Alli undertook the drive as a favour for $100.00.
25     The passengers entered Canada without required documents and without attending before a border officer. The brother and Seth Lazore knew of these deficiencies. Their purpose was to breach ss. 117, 18, 124 and 131 of the IRPA.
26     The issue is whether or how much the accused knew about it. There is no direct evidence Mr. Alli knew anything about this organization before the brief discussion with his brother on arrival at the motel after Mr. Lazore departed or that he knew the travelers were brought into Canada while he was attending to his needs in the washroom after his brother departed. He was unfamiliar with the terrain and environ and it is unlikely he knew of the juxtaposition of the river, island and motel. I agree with Mr. Stauffer's observation to the point that the officers, and for that matter anyone living near the river, would recognize the sound of the motor boat for what it was, but the same sound insulated by the motel and washroom activities would not necessarily register.
27     I accept that when Mr. Alli exited the motel room, the loading process was well underway and his activity was limited to adjusting the infant in the car seat.
Has the Crown established beyond a reasonable doubt that Mr. Alli either knew or was wilfully blind to the fact he was assisting human smuggling into Canada by delivering them to Toronto?
28     The Crown argues that Mr. Alli knew or suspected the purport of the undertaking. His brother told him the passengers had documentation for presence in the United States but not Canada.
29     There is no onus on Mr. Alli to prove anything. The onus remains throughout on the prosecution. He began the trial presumed innocent.
30     I accept there is a solid evidentiary foundation to support the conclusion that until the discussion with his brother on the balcony, Mr. Alli was legitimately unaware of the organization and conspiracy. He trusted the brother. He knew nothing about the plan. He did not know about the juxtaposition of the river, the island, the border and the dock. He would not connect the sound, if he discerned it at all, of the motorboat. But for the brother's advice he would not connect the timely arrival of the passengers to human smuggling.
31     Wilful blindness substitutes actual knowledge when knowledge is a component of mens rea. To satisfy the requirements of wilful blindness, the Crown must establish Mr. Alli had 1) a subjective realization; 2) of the likely result of his actions; and 3) deliberately avoided actual knowledge while engaging in or pursuing the activity: R. v. Harding (2001), 2001 CanLII 21272 (ON CA), 57 O.R. (3d) 333 (Ont. C.A.). Mr. Alli must have had a real suspicion in his mind that caused him to see the need for inquiry. Culpability can rest on a finding of deliberate ignorance: R. v. Legace (2003), 2003 CanLII 30886 (ON CA), 181 C.C.C. (3d) 12 (Ont. C.A.) at para. 26 and 28.
32     In R. v. Sansregret, [1985] CarswellMan 176 (S.C.C.) the Supreme Court cited Granville Williams (Criminal Law: The General Part, 2nd ed. 1961, at pp. 157-160):

·       Knowledge, then, means either personal knowledge or (in the license cases) imputed knowledge. In either event there is someone with actual knowledge. To the requirement of actual knowledge there is one strictly limited exception. Men readily regard their suspicions as unworthy of them when it is to their advantage to do so. To meet this, the rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge. 

·       In other words, there is a suspicion which the defendant deliberately omits to turn into certain knowledge. This is frequently expressed by saying that he "shut his eyes" to the fact, or that he was "willfully blind". 
33     Granville Williams warned that wilful blindness has narrow application.

·       The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find willful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of willful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. 
34     In summary, mens rea may be established through the use of the wilful blindness doctrine. It is not sufficient to establish the accused ought to have known. The evidence must establish suspicion combined with a conscious decision to refrain from inquiry. An accused cannot deliberately remain ignorant and thereby escape criminal responsibility.
35     This is not a credibility case where the analysis revolves on the credibility of exculpatory explanation.
36     If the only evidence of knowledge derived from the circumstances, including the fairly obvious clandestine context or the anomaly that was Seth Lazore, Mr. Alli's decision might well be seen as negligent. He might have asked about why middle of the night, or why they needed a ride instead of public transit or why his brother was involved at all. It smelled covert but could be negligence and not wilful blindness.
37     The direct evidence of Mr. Alli's knowledge came from him. He knew passenger documentation was problematic and there is the inescapable inference these passengers did not attend before a border officer or to a port of entry. If that is not enough for the requisite knowledge, the fact is he was suspicious. He intended to make further enquiry when they got to Toronto. His window for reflection was brief. He was tired and a long way from home. His brother was less than forthcoming on details. He trusted the brother to keep him safe. It was easier to take the chance and go along with the plan than to ask questions and disrupt the plan. He did not consider the ramifications. It was the wrong decision. Once he heard about documentary deficiencies directly probative to the legitimacy of his part of the undertaking he was on notice. If that notice informed less than actual knowledge and his suspicions aroused as he said, he was obliged to inquire and chose not to because he did not want to know the truth. He preferred to remain deliberately ignorant of the truth.
38     That was not negligence. His brother told him about the passengers' documentary deficiencies and he knew it was a clandestine undertaking. Closing his mind to the implications of his real suspicions was wilful blindness.
39     The Crown proved from his own words he knew that by driving these passengers to Toronto he was aiding in an offence under the IRPA. If such knowledge lacked certainty and particulars at the time he did, in fact, harbour real suspicion and chose to close his eyes to inquiry and the implications.
40     I conclude Mr. Alli is guilty as charged and convictions are entered.



A very unusual case dealing with the sponsorship of parents. In this case, the parents were HIV positive. The sponsor's circumstances were also unusual and distressing. However, the Federal Court upheld the visa officer and the IAD refusal, despite the agreement between the parties to come to a resolution. This case is quite unique,

Saroya v. Canada (Minister of Citizenship and Immigration)
Sarabjit Kaur Saroya, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 407
2015 FC 428

Docket: IMM-6349-14

 Federal Court
Vancouver, British Columbia

Mosley J.

Heard: April 1, 2015.
Judgment: April 8, 2015.
(30 paras.)

1     MOSLEY J.:-- Ms Saroya challenges a decision of the Immigration Appeal Division [IAD] which rejected her appeal of a Visa Officer's decision based on humanitarian and compassionate [H&C] grounds. For the reasons that follow, this application for judicial review is dismissed.
I. Background
2     Ms Saroya is a citizen of India and permanent resident of Canada. She immigrated to Canada under the sponsorship of her first spouse in 2005. They had two daughters. Tragically, these children died in a fire in 2010. Ms Saroya's marriage then broke down. She separated from her ex-husband in 2011. She has suffered from depression since these horrible events.
3     Ms Saroya entered into a common-law relationship when visiting her parents in India. On July 9, 2013, she gave birth to a son in Canada. She sponsored her common law spouse for permanent residence in Canada. At the hearing, counsel for Ms Saroya informed the Court that tragedy has struck again, as the common-law spouse has passed away.
4     Ms Saroya applied to sponsor her parents for Canadian permanent residence. During their medical checks, both were diagnosed as HIV positive. By decision dated February 21, 2013, a Visa Officer refused the application on the ground that both sponsorees were inadmissible for medical reasons.
5     Ms Saroya appealed to the IAD. She did not challenge the validity of the refusal for medical reasons. Rather, she requested relief on H&C grounds. The IAD held a hearing on July 8, 2014. The panel received testimony from Ms Saroya and her mother, who was linked in by telephone. Afterwards, counsel for the Minister gave her consent to allow the appeal. At the panel's request, counsel for the applicant and the Minister provided post-hearing submissions confirming a joint proposal that the appeal be allowed.
6     Despite this joint proposal, the IAD dismissed the appeal by decision dated August 6, 2014, and communicated to the applicant the next day.
7     The IAD found that the applicant did not establish her case on the balance of probabilities. It discussed various relevant H&C factors.
8     The panel began with "improved medical condition". The evidence showed that the parents are asymptomatic and attend a clinic every month. The panel determined that this was a neutral factor.
9     The panel moved on to "excessive demand on Canadian health services". It agreed with the opinion of the medical professional referenced in the Visa Officer's decision. The applicant did not provide contradictory evidence. This was a negative factor.
10     The panel next considered the "availability of health services abroad and in Canada". The parents receive free anti-retroviral medications in India. They presented no evidence of hardship in accessing medical services there. Therefore, allowing the appeal "would result in a direct transfer of health care costs to be entirely borne by the Canadian taxpayer". This was a significant negative factor.
11     Considering the "cost of treatment of the medical condition", the panel endorsed the medical officer's opinion that it will exceed the average Canadian per capita costs over five years. The applicant did not provide contradictory evidence. This was a negative factor.
12     The IAD then looked at the "availability of family support in Canada". The parents only have their daughter and infant grandson in Canada. By contrast, they have eight siblings (and their respective spouses) and 17 or 18 nephews and nieces in India. The IAD concluded that there is far more support for the parents -- and for the applicant -- abroad as opposed to Canada. Moreover, the applicant's precarious financial situation cast doubt on her ability to support her parents in Canada. This was a negative factor.
13     The panel moved on to "psychological dependencies". Counsel for the Minister submitted that, as the sole child, it was the applicant's cultural duty to care for her parents. The panel stated that this cultural duty was not discussed by the applicant in her testimony, evidence or written submissions. The panel also rejected the suggestion that the parents are financially reliant on the applicant for their day-to-day needs. However, the panel accepted that the applicant suffers from serious depression. The panel expressed sympathy for the applicant and attributed "slight positive weight" to this factor.
14     The panel concluded with analysis of the best interests of the child [BIOC], stating that it was "alert, alive and sensitive" to this factor. It rejected the suggestion that placing the child in day care in Canada is a negative option. While it might be preferable and cheaper to have the grandparents available to baby-sit, thus affording "positive weight towards the best interest of [the] child", that weight was not sufficient to override the other negative factors.
15     Upon receiving this decision, Ms Saroya applied for judicial review.
II. Issue
16     The sole issue before the Court is whether the IAD erred in finding that there were insufficient H&C grounds to allow the appeal.
III. Standard of Review
17     The decision under review involves the exercise of discretion and the application of specialized legislation to particular facts. The standard of review is reasonableness: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 52-58.
IV. Analysis
18     The Court expresses its deepest sympathies to Ms Saroya, whose life has taken several tragic turns during the last decade.
19     However, the Court can only intervene if the IAD committed a reviewable error. The record does not disclose any such error in this case. The decision rendered by the IAD falls within the range of outcomes defensible with respect to the facts and the law.
20     As a matter of law, the IAD is entitled to reject a joint submission if it provides reasons for doing so: Fong v Canada (Public Safety and Emergency Preparedness), 2010 FC 1134 at para 31. The fact that counsel for the Minister favoured granting the appeal at the conclusion of the hearing had no binding force on the IAD.
21     The IAD provided adequate reasons here. Although the applicant disputes its conclusions, the Court does not have the function of re-weighing the evidence on judicial review. Since the IAD did not assess the evidence unreasonably, the Court must defer to its exercise of discretion.
22     The Court agrees with the Minister that the IAD did not misapprehend the parents' medical condition. It clearly stated that their condition had not worsened and reasonably ascribed neutral weight to this factor.
23     Counsel for the applicant disputed the medical officer's opinion without offering any evidence in rebuttal. Again, the Court agrees with the Minister that there is no reviewable error. The case law is clear that a medical officer must render a personalized assessment of the circumstances of each individual when medical inadmissibility concerns are raised. If this requirement is met, then a Visa Officer may confirm the medical officer's opinion without further review of the record: see e.g. Hilewitz v Canada (Minister of Citizenship and Immigration), 2005 SCC 57; Canada (Citizenship and Immigration) v Colaco, 2007 FCA 282; Mazhari v Canada (Citizenship and Immigration), 2010 FC 467. It stands to reason that the IAD can properly confirm the Visa Officer's approval of the medical assessment, in the absence of contradictory evidence presented by either party.
24     The medical officer made a finding that the parents would require "publicly funded and expensive" treatment and medication in Canada. This finding was reasonably upheld by the Visa Officer and the IAD. Indeed, the applicant appears to completely misunderstand the decision under review when she suggests that the medication should be available for free in Canada because it is free in India. If the parents could obtain the medication for free in this country, the costs would in all probability be borne by the public health care system, which is funded by the Canadian taxpayer. There is no indication in the record before the Court that pharmaceutical companies provide the medication as a gift to those who need it, either in Canada or in India. That suggestion finds no support in the evidence and cannot be used to undermine the medical officer's opinion.
25     The IAD reasonably evaluated the dependencies between the applicant and her parents. While it questioned the significance of the financial support provided by Ms Saroya to her parents, the IAD accepted that she has a certain psychological dependency due to her depressive state. That is why it attributed slight positive weight to the factor of dependencies. Since this analysis went in her favour, the applicant cannot complain.
26     In fact, the applicant mischaracterizes the matter by suggesting that the IAD's decision will sever her family ties and thereby inflict unusual, underserved or disproportionate hardship upon her and her parents. The IAD decision will simply maintain the status quo. Ms Saroya and her infant son will retain the right to live in Canada. Her parents will remain in India, where they have lived their entire lives. The applicant may continue to visit her family in India, as she has done several times recently. An authority cited by the applicant, Davis v Canada (Citizenship and Immigration), 2011 FC 97, is wholly distinguishable. In that case, the applicant lived in Canada with her father and the government intended to deport her. That would have disrupted an existing relationship of cohabitation.
27     There remains the assessment of the BIOC. The law is settled that a decision-maker conducting an H&C analysis must properly identify and define this factor and then weigh it against the countervailing factors: see e.g. Canada (Minister of Citizenship and Immigration) v Legault, 2002 FCA 125 at para 12 [Legault]. It is equally settled that this factor is not determinative -- despite its importance -- since it will almost always be the case that a child will benefit from continued presence in Canada in the company of his or her parents or other family members: see Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 75; Canada (Minister of Citizenship and Immigration) v Hawthorne, 2002 FCA 475 at paras 2 and 6; Kisana v Canada (Citizenship and Immigration), 2009 FCA 189 at para 24.
28     In this case, the Court is satisfied that the IAD was alert, alive and sensitive to the BIOC. It ascribed positive weight to this factor but reasonably concluded that it did not outweigh the other negative factors.
29     As a whole, the IAD's consideration of the various H&C factors survives review on the standard of reasonableness. On judicial review, the Court cannot "re-examine the weight given to the different factors" by the decision-maker: Legault, above, at para 11.
30     This application is dismissed without costs. The parties did not propose any questions for certification and none are certified.
THIS COURT'S JUDGMENT is that the application is dismissed without costs. No questions are certified.


Friday, April 24, 2015


Applicants must be mindful of contradictions, fabrications, inconsistencies and other problems when providing employment verification letters. In this case, it is interesting that the visa post sent officers to the place of employment for verification. 

Gill v. Canada (Minister of Citizenship and Immigration)

Kulwant Kaur Gill, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 439
2015 FC 452

Docket: IMM-904-14

 Federal Court
Winnipeg, Manitoba

O'Reilly J.

Heard: October 6, 2014.
Judgment: April 10, 2015.
(14 paras.)


·        O'REILLY J.:-- 
I. Overview
1     Ms Kulwant Kaur Gill applied for permanent residence as a skilled worker to the Canadian High Commission in New Delhi. An officer at the High Commission found that Ms Gill was inadmissible to Canada because she had misrepresented or withheld material facts about her work experience.
2     Ms Gill's application (her second) was submitted in 2007. Since then, there have been dozens of contacts between her and officials at the High Commission. In essence, officials have tried to verify Ms Gill's representations about her qualifications and work experience as a seamstress or tailor. Ms Gill provided substantial documentation, yet officials were not satisfied with her evidence.
3     Further, given the concerns about Ms Gill's employment history, two officials attended at the tailor shop where Ms Gill said she worked. They did not find her there. Rather, the proprietor, Mr Bedi (her uncle), said that Ms Gill was unwell and had gone to the doctor. One of the officials telephoned Ms Gill, who said she was shopping for buttons. Ms Gill then telephoned Mr Bedi and told him that, if asked, he should confirm to the Canadian officials that she was out shopping. Mr Bedi asked Ms Gill if she had obtained her medicine. She said "What medicine, uncle, I am in the market". The officials also questioned persons who worked nearby. None of them recognized Ms Gill.
4     In 2013, an officer at the High Commission denied Ms Gill's application for permanent residence, concluding that she had misrepresented or withheld material facts relating to her employment that could have led to an error in the administration of Canada's immigration laws. Accordingly, the officer found that Ms Gill was inadmissible to Canada for a period of two years.
5     Ms Gill argues that the officer's decision was unreasonable because the officer failed to take account of evidence that would have answered any concerns about her employment. In addition, she maintains that she was treated unfairly because she was not given an adequate opportunity to address the officer's concerns. In particular, she was not provided with all of the documents in the officer's possession, including certain so-called "poison pen" letters, sent by persons who alleged that Ms Gill's application was based on fraudulent documents. She asks me to quash the officer's decision and order another officer to reconsider her application.
6     In my view, the officer's decision was not unreasonable as it was based on genuine concerns about the evidence relating to Ms Gill's application. Further, I cannot conclude that Ms Gill was treated unfairly. While she was not provided all of the documentation relied on by the officer, she was informed, multiple times, of the officer's concerns and given more than an adequate opportunity to respond to those concerns. Accordingly, I have no basis for overturning the officer's decision and must dismiss this application for judicial review.
II. Did the Officer render an unreasonable decision or treat Ms Gill unfairly?
7     The issues of unreasonableness and unfairness are related, so I will deal with them together.
8     Ms Gill argues that the officer's decision was unreasonable because the officer appeared not to take account of evidence she supplied in response to the officer's concerns. In addition, she maintains that the officer did not give her sufficient opportunity to meet those concerns.
9     In my view, the officer treated Ms Gill fairly and rendered a reasonable decision.
10     Ms Gill received two letters setting out concerns arising from her application. She responded to them with numerous documents, photos, test scores, and affidavits. She also requested an in-person interview.
11     However, Ms Gill's evidence did not address the main concerns about her application. For example, she was unable to provide satisfactory proof that her trade certificates were genuine. Most importantly, Ms Gill never disputed that she had asked her employer "what medicine Uncle, I am in the market" during Canadian officials' visit to her alleged workplace. Nor did she provide a plausible explanation for her statement. On the evidence, I see no basis for concluding that the officer failed to give appropriate weight to the documentation Ms Gill provided or for finding that the officer's conclusion was unreasonable. On the contrary, the record shows that all of the evidence Ms Gill provided was duly considered.
12     Similarly, on the issue of fairness, Ms Gill was made aware of the numerous concerns about her application. She was entitled to receive notice of those concerns but not, as she argues, to disclosure of all of the documents that gave rise to them (Li v Canada (Minister of Citizenship and Immigration) (1998), 155 FTR 102 at para 23; Talpur v Canada (Minister of Citizenship and Immigration), 2012 FC 25 at para 21; Fang v Canada (Minister of Citizenship and Immigration), 2014 FC 196 at para 19-20).
13     Accordingly, I see no basis for concluding that the officer's decision was unreasonable. Nor can I find that Ms Gill was treated unfairly.
III. Conclusion and Disposition
14     Ms Gill was neither treated unfairly nor subjected to an unreasonable decision by Canadian immigration officials. I must, therefore, dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question of general importance is stated.