Dhaliwal v. Canada (Minister of Public Safety and Emergency Preparedness), (2015) 475 F.T.R. 120 (FC)

• Judge: Boswell, J.
• Court: Federal Court (Canada)
• Case Date: October 15, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 475 F.T.R. 120 (FC);2015 FC 157

Dhaliwal v. Can. (2015), 475 F.T.R. 120 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. FE.036

Harpreet Kaur Dhaliwal (applicant) v. The Minister of Public Safety and Emergency Preparedness (respondent)

(IMM-1478-14; IMM-3931-13; IMM-3932-13; 2015 FC 157)

Indexed As: Dhaliwal v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court

Boswell, J.

February 6, 2015.

Summary:

The applicant, a citizen of India, married a Canadian citizen (the husband) in 2001. The husband sponsored the applicant's application for permanent residence. The application was initially refused because the visa officer was not satisfied that the marriage was genuine. The officer's decision was overturned by the Immigration Appeal Division (IAD) in November 2002 and the applicant became a permanent resident in July 2003. The marriage was dissolved in November 2003. In 2010, the Immigration Division issued an exclusion order against the applicant, finding that her marriage had not been genuine and was entered into for the purpose of securing permanent residence in Canada. The applicant appealed to the IAD. She made two interlocutory applications. The first contended that the Minister of Public Safety and Emergency Preparedness was estopped from impugning the genuineness of her marriage by virtue of the November 2002 decision of the IAD. The second argued that the interpretation of the applicant's evidence, which she gave in Punjabi, was faulty. The IAD dismissed both applications and the appeal. The applicant applied for judicial review of the dismissal of the applications and the appeal.

The Federal Court dismissed the applications.

Aliens - Topic 4

Definitions and general principles - Children - [See second Aliens - Topic 1799.2 ].

Aliens - Topic 1217

Admission - Immigrants - General - Bars - Misrepresentation of material facts - Dhaliwal, a citizen of India, became a permanent resident of Canada in July 2003 pursuant to an application which was sponsored by her Canadian husband - The marriage was dissolved in November 2003 - The Immigration Division issued an exclusion order against Dhaliwal, finding that her marriage had not been genuine and was entered into for the purpose of securing permanent residence in Canada - Dhaliwal's appeal to the Immigration Appeal Division (IAD) was dismissed - Dhaliwal applied for judicial review, arguing that the IAD failed to distinguish between the issues of whether her marriage was genuine and whether she misrepresented that it was genuine - The Federal Court dismissed the application - Having found that Dhaliwal did not intend to live with her husband as his wife when she came to Canada, it was reasonable for the IAD to find that Dhaliwal was therefore "withholding material facts relating to a relevant matter that induces or could induce an error" in the administration of the Immigration and Refugee Protection Act (s. 40(1)(a)) - When a proposition so central to the application turned out to be false, a finding of inadmissibility for misrepresentation was almost automatic - There was very little to be gained from conducting separate inquiries - See paragraphs 89 to 93.

Aliens - Topic 1217

Admission - Immigrants - General - Bars - Misrepresentation of material facts - Dhaliwal, a citizen of India, became a permanent resident of Canada in July 2003 pursuant to an application which was sponsored by her Canadian husband - The marriage was dissolved in November 2003 - The Immigration Division issued an exclusion order against Dhaliwal, finding that her marriage had not been genuine and was entered into for the purpose of securing permanent residence in Canada - Dhaliwal's appeal to the Immigration Appeal Division (IAD) was dismissed - Dhaliwal applied for judicial review, arguing that the IAD erred by finding that the marriage was not genuine without assessing all of the factors set out in Khera (2007 F.C.), such as the age difference between Dhaliwal and her husband and their respective financial situations - The Federal Court dismissed the application - The IAD's conclusion and factual findings were amply supported by the husband's testimony - If the husband was credible, then IAD's conclusion could not possibly be disturbed by assessing other factors - It was reasonable for the IAD to find that those other factors were irrelevant - See paragraphs 94 to 96.

Aliens - Topic 1217

Admission - Immigrants - General - Bars - Misrepresentation of material facts - [See first Aliens - Topic 1799.2 and Estoppel - Topic 386 ].

Aliens - Topic 1287.2

Admission - Immigrants - Sponsorship - Spouse or common law partner in Canada class - [See first and second Aliens - Topic 1217 ].

Aliens - Topic 1799.2

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Appeals - Humanitarian and compassionate grounds (special relief) - Dhaliwal, a citizen of India, became a permanent resident of Canada in July 2003 pursuant to an application which was sponsored by her Canadian husband - The marriage was dissolved in November 2003 - The Immigration Division issued an exclusion order against Dhaliwal, finding that her marriage had not been genuine and was entered into for the purpose of securing permanent residence in Canada - Dhaliwal's appeal to the Immigration Appeal Division (IAD) was dismissed - Dhaliwal applied for judicial review, arguing that the IAD erred by refusing to grant humanitarian and compassionate (H&C) relief - She submitted that the IAD counted her misrepresentation against her twice by (1) saying that it was a negative factor; and (2) reducing the positive weight of the hardship factor, partially because selling her house and quitting her job would not constitute hardship considering that the acquisition of her home and employment was only possible because she obtained permanent residence through a misrepresentation - The Federal Court dismissed the application - Weighing the H&C factors was not simply a matter of adding up the positive factors and subtracting the negative ones - Rather, it was a qualitative or relative assessment - Dhaliwal had not seriously impeached the IAD's reasoning for deciding that the misrepresentation outweighed the hardship - The fact that she might lose some of the profits that she gained from defrauding her ex-husband and deceiving immigration authorities did not exactly cry out for H&C relief - See paragraphs 104 to 108.

Aliens - Topic 1799.2

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Deportation or removal order - Appeals - Humanitarian and compassionate grounds (special relief) - Dhaliwal, a citizen of India, became a permanent resident of Canada in July 2003 pursuant to an application which was sponsored by her Canadian husband - The marriage was dissolved in November 2003 - Dhaliwal subsequently married an Indian man who had come to Canada and they had two children together - The Immigration Division issued an exclusion order against Dhaliwal, finding that her first marriage had not been genuine and was entered into for the purpose of securing permanent residence in Canada - Dhaliwal's appeal to the Immigration Appeal Division (IAD) was dismissed - Dhaliwal applied for judicial review, arguing that the IAD erred by refusing to grant humanitarian and compassionate (H&C) relief - She submitted that the IAD based its analysis of the best interests of the children on the unfounded assumption that they would have significant family support in India - The Federal Court dismissed the application - The children would likely be accompanied by both of their parents - It was reasonable to characterize the support from two loving parents as significant - Dhaliwal supplied no evidence to suggest that her or her new husband's extended family in India would be unsupportive - See paragraph 109.

Aliens - Topic 1842

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Standard of review - Dhaliwal, a citizen of India, married a Canadian citizen who sponsored her application for permanent residence - The application was initially refused because the visa officer was not satisfied that the marriage was genuine - The officer's decision was overturned by the Immigration Appeal Division (IAD) in 2002 - The marriage was dissolved shortly after Dhaliwal became a permanent resident - In 2010, the Immigration Division issued an exclusion order against Dhaliwal, finding that her marriage had not been genuine and was entered into for the purpose of securing permanent residence in Canada - Dhaliwal appealed to the IAD - An interlocutory application, in which she contended that the Minister of Public Safety and Emergency Preparedness was estopped from impugning the genuineness of her marriage given the IAD's 2002 decision, was dismissed - Dhaliwal applied for judicial review, and argued that whether the preconditions to issue estoppel were met was a question of law reviewable on the correctness standard - The Federal Court held that the reasonableness standard applied when reviewing the IAD's issue estoppel analysis -  See paragraphs 19 to 24.

Aliens - Topic 1842

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Standard of review - Dhaliwal, a citizen of India, became a permanent resident of Canada pursuant to an application which was sponsored by her Canadian husband - The marriage was dissolved shortly after Dhaliwal obtained permanent residence - The Immigration Division issued an exclusion order against Dhaliwal, finding that her marriage had not been genuine and was entered into for the purpose of securing permanent residence in Canada - Dhaliwal appealed to the Immigration Appeal Division (IAD) - She gave her evidence in Punjabi - Subsequently, she filed an interlocutory application which alleged that the interpretation of her evidence was faulty - The IAD dismissed the application - Dhaliwal applied for judicial review - The Federal Court held that the standard of review for all aspects of this issue was correctness - Every aspect was about procedural fairness and access to a constitutional right - See paragraphs 25 and 26.

Aliens - Topic 1847

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Rehearing - Evidence - [See Aliens - Topic 4082 ].

Aliens - Topic 4082

Practice - Hearings - Interpreter - Dhaliwal, a citizen of India, became a permanent resident of Canada pursuant to an application which was sponsored by her Canadian husband - The marriage was dissolved shortly after Dhaliwal obtained permanent residence - The Immigration Division issued an exclusion order against Dhaliwal, finding that her marriage had not been genuine and was entered into for the purpose of securing permanent residence in Canada - Dhaliwal appealed to the Immigration Appeal Division (IAD) - She gave her evidence in Punjabi - Subsequently, she filed an interlocutory application which alleged that the interpretation of her evidence was faulty - The IAD denied Dhaliwal's request to re-hear her evidence, finding that any alleged errors did not have a significant impact on the proceedings or cause any significant prejudice to Dhaliwal - Nor did the IAD consider the interpreter's failure to fully interpret some exchanges between the IAD and Dhaliwal's counsel to be problematic - The Federal Court dismissed Dhaliwal's application for judicial review - The interpretation was not as precise as it could have been - The interpreter occasionally interpreted in the third person instead of the first person, paraphrased, added information that was not said, and was sometimes mistaken - However, despite these imperfections, Dhaliwal always understood what was being said and was herself understood - There was linguistic understanding between the parties on the essential issues - The exchanges between the IAD and counsel that were not interpreted were about purely administrative matters - See paragraphs 61 to 70.

Civil Rights - Topic 2745

Language - Translation of court proceedings - Federal boards and tribunals - [See Aliens - Topic 4082 ].

Civil Rights - Topic 2807

Language - Assistance of an interpreter - Before boards and inquiries - [See Aliens - Topic 4082 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - A visa officer denied Dhaliwal's permanent residence application, which was sponsored by her Canadian husband, on the basis that the marriage was not genuine - The Immigration Appeal Division (IAD) overturned the officer's decision in 2002 - The marriage was dissolved shortly after Dhaliwal obtained permanent residence - In 2010, the Immigration Division issued an exclusion order against Dhaliwal, finding that her marriage had not been genuine and was entered into for the purpose of securing permanent residence in Canada - Dhaliwal appealed and filed an interlocutory application, contending that the Minister of Public Safety and Emergency Preparedness (MPSEP) was estopped from impugning the genuineness of her marriage given the IAD's 2002 decision - The IAD dismissed the application, finding that (1) the 2002 decision was about whether the marriage was genuine while the present proceeding was about whether Dhaliwal had misrepresented that it was genuine; and (2) the 2002 proceeding was between the husband and the Minister of Citizenship and Immigration while the present proceeding was between Dhaliwal and the MPSEP - The Federal Court dismissed Dhaliwal's application for judicial review - It was unreasonable for the IAD to decide that the issues were not the same in the two proceedings, and to find that Dhaliwal was not privy to the 2002 decision - Also, the two Ministers were "on the same team" - Nonetheless, the IAD's decision as a whole was reasonable - It reasonably concluded that it would undermine the intent of s. 40 of the Immigration and Refugee Protection Act if a previous IAD finding that a marriage was likely genuine prevented later panels from deciding whether there had been a material misrepresentation respecting that issue - Moreover, there was significant new evidence that could reasonably justify a decision not to apply issue estoppel even if the preconditions were met - See paragraphs 36 to 54.

Estoppel - Topic 388

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Decisions of administrative tribunals - [See Estoppel - Topic 386 ].

Cases Noticed:

Dhaliwal v. Dhaliwal, [2013] B.C.T.C. Uned. 1376; 36 R.F.L.(7th) 397; 2013 BCSC 1376, refd to. [para. 4].

Ramkissoon v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 283; 6 Imm. L.R.(3d) 223 (T.D.), refd to. [para. 10].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].

Rahman v. Canada (Minister of Citizenship and Immigration) (2006), 302 F.T.R. 232; 2006 FC 1321, not folld. [para. 19].

Chéry v. Canada (Minister of Citizenship and Immigration) (2012), 416 F.T.R. 14; 2012 FC 922, refd to. [para. 21].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 22].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 23].

Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106; 2013 SCC 19, refd to. [para. 23].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 24].

Sohal v. Canada (Minister of Public Safety and Emergency Preparedness), [2011] F.T.R. Uned. 719; 2011 FC 1175, refd to. [para. 26].

Kamara v. Canada (Minister of Citizenship and Immigration) (2011), 385 F.T.R. 122; 2011 FC 243, refd to. [para. 26].

Dhaliwal v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 969; 2011 FC 1097, refd to. [para. 26].

Singh (Resham) v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 779; 2010 FC 1161, refd to. [para. 26].

Licao v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 27; 303 C.R.R.(2d) 228; 2014 FC 89, refd to. [para. 26].

Ouk v. Canada (Minister of Citizenship and Immigration) (2007), 316 F.T.R. 15; 2007 FC 891, refd to. [para. 27].

Khan v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 381; 2008 FC 512, refd to. [para. 27].

Sidhu v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 49; 23 Imm. L.R.(4th) 249; 2014 FC 176, refd to. [para. 28].

Sidhu v. Canada (Minister of Citizenship and Immigration) (2014), 453 F.T.R. 297; 2014 FC 419, refd to. [para. 28].

Khera v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 431; 2007 FC 632, refd to. [para. 28].

Ekici v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 731; 2009 FC 1133, refd to. [para. 28].

Chen v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 873; 75 Imm. L.R.(3d) 282; 2008 FC 1227, refd to. [para. 28].

Aguebor v. Ministre de l'Emploi et de l'Immigration (1993), 160 N.R. 315 (F.C.A.), refd to. [para. 29].

Singh (Jora) v. Minister of Employment and Immigration (1994), 169 N.R. 107 (F.C.A.), refd to. [para. 29].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 30].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397; 47 D.L.R.(3d) 544, refd to. [para. 31].

Canada (Minister of Citizenship and Immigration) v. Peirovdinnabi (2010), 409 N.R. 161; 2010 FCA 267, folld. [para. 31].

Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853; [1966] 2 All E.R. 536 (H.L.), refd to. [para. 43].

Somodi v. Canada (Minister of Citizenship and Immigration), [2010] 4 F.C.R. 26; 395 N.R. 270; 2009 FCA 288, refd to. [para. 44].

Town Investments Ltd. v. Department of Environment, [1978] A.C. 359 (H.L.), refd to. [para. 46].

Ontario (Minister of Community and Social Services) et al. v. Ontario Public Service Employees Union, [2003] 3 S.C.R. 149; 311 N.R. 189; 179 O.A.C. 201; 2003 SCC 64, refd to. [para. 47].

R. v. Tran (Q.D.), [1994] 2 S.C.R. 951; 170 N.R. 81; 133 N.S.R.(2d) 81; 380 A.P.R. 81; 117 D.L.R.(4th) 7, refd to. [para. 55].

Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C.R. 85; 271 N.R. 91; 2001 FCA 191, affing. [2000] 3 F.C.R. 371; 185 F.T.R. 144 (T.D.), refd to. [paras. 55, 65].

Boyal v. Canada (Minister of Citizenship and Immigration) (2000), 181 F.T.R. 158 (T.D.), refd to. [para. 59].

Sellan v. Canada (Minister of Citizenship and Immigration) (2008), 384 N.R. 163; 2008 FCA 381, refd to. [para. 72].

Paulino v. Canada (Minister of Citizenship and Immigration) (2010), 368 F.T.R. 188; 2010 FC 542, refd to. [para. 74].

Mann v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 879; 33 Imm. L.R.(3d) 282; 2003 FC 1479, refd to. [para. 77].

Stuart v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 622; 2012 FC 1139, refd to. [para. 94].

Jiang v. Canada (Minister of Public Safety and Emergency Preparedness), [2013] F.T.R. Uned. 185; 17 Imm. L.R.(4th) 219; 2013 FC 413, not folld. [para. 102].

Ambat v. Canada (Minister of Citizenship and Immigration) (2011), 386 F.T.R. 35; 2011 FC 292, refd to. [para. 106].

Kisana v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 241; 2008 FC 307, affd. [2010] 1 F.C.R. 360; 392 N.R. 163; 2009 FCA 189, refd to. [para. 107].

Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30, [2013] 2 S.C.R. 458; 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 108].

Counsel:

J.S. Mangat, for the applicant;

Stephen Jarvis, for the respondent.

Solicitors of Record:

Mangat Law Professional Corporation, Mississauga, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

These applications for judicial review were heard at Toronto, Ontario, on October 15, 2014, before Boswell, J., of the Federal Court, who delivered the following judgment and reasons at Ottawa, Ontario, on February 6, 2015.