Singh Bains v. Canada (Citizenship and Immigration)

Singh Bains v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2023-06-26
Neutral citation
2023 FC 892
File numbers
IMM-3303-22
Decision Content
Date: 20230626
Docket: IMM-3303-22
Citation: 2023 FC 892
Ottawa, Ontario, June 26, 2023
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
AMRITPAL SINGH BAINS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] This is the judicial review of a decision of the Immigration Appeal Division [IAD] upholding the Immigration Division’s [ID] determination that the Applicant is inadmissible to Canada for misrepresentation pursuant to s 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] For the reasons that follow, I am dismissing this application.
Background [3] The Applicant, Amritpal Singh Bains, is a citizen of India. He was found to be inadmissible due to misrepresentation with respect to the genuineness of his marriage to SH.
[4] SH came to Canada as a dependant child on her mother’s permanent residence application. Her father had died in 2004. SH’s mother was granted permanent residence status in 2005.
[5] The Applicant’s and SH’s families are related. Following discussions between the families, in December 2006, SH travelled to India where she married the Applicant. They lived in India for several weeks before SH returned to Canada in early 2007. In May 2007, SH applied to sponsor the Applicant to come to Canada. They were both interviewed by a visa officer in October 2007 and the relationship was found to be bona fide. Several days later, the Applicant was issued a permanent resident visa. He arrived was landed in Canada on January 13, 2008.
[6] At first, the couple lived together in the home of the Applicant’s uncle, Jagir. On January 19, 2008, less than a week after the Applicant arrived in Canada, SH took an overdose of sleeping pills and was hospitalized. The Applicant’s evidence is that SH told him that the overdose was due to the stress of studies and work. Conversely, SH’s evidence is that she was depressed due to the Applicant’s treatment of her since arriving in Canada. On January 21, 2008, SH was discharged from hospital and then stayed at the home of her brother-in-law, Kuldeep, and mother for a short time before moving back in with the Applicant at his uncle’s home.
[7] On March 11, 2008, the Applicant returned to India and to his studies there. SH’s evidence is that the Applicant returned to India without informing her of his plans. The Applicant’s evidence is that SH was aware of his departure. The Applicant returned to Canada on September 8, 2008. The couple never again cohabited.
[8] On August 27, 2008, SH signed a Statutory Declaration which was provided to the Canada Border Services Agency [CBSA]. Among other things, it states that during the three weeks in India following the wedding the Applicant spent very little time with SH. And, within two or three days of his arrival in Canada, he asked to live separately as he was not ready for marriage and had been forced into the marriage by his parents. SH also stated that she believed that the Applicant used her to come to Canada with no intention of living with her as husband and wife, and that he had defrauded her, her family and the Canadian immigration authorities. She subsequently filed an affidavit in this regard sworn on April 19, 2015.
[9] On May 3, 2010, SH filed for divorce, which was granted in April 2011.
[10] SH’s sworn statements led to a report on inadmissibility being prepared pursuant to s 44 of the IRPA.
[11] The ID held an admissibility hearing in October 2015, and the Applicant was found to be inadmissible for misrepresentation due to the implausibility and unreasonableness of his evidence. The ID found that the Applicant’s “evidence concerning his relationship with [SH] and the breakdown of the relationship not to be plausible and reasonable” and that his evidence was “contradictory, vague and rife with implausibilities”.
[12] The Applicant appealed the ID’s decision to the IAD, which dismissed the appeal by decision dated November 3, 2017. The IAD found that there were significant credibility concerns in the Applicant’s evidence and that he was not credible. The IAD concluded that the marriage was not genuine and was entered into primarily to facilitate his immigration to Canada.
[13] The Applicant sought judicial review of the IAD’s decision. Justice Southcott of this Court found the IAD’s decision not to be reasonable on one specific point, being that the IAD had failed to consider corroborative third-party evidence which, on its face, appeared to directly contradict an aspect of SH’s evidence. Specifically, the evidence of the Applicant’s uncle that SH had driven the Applicant to the airport on March 11 2008 (Bains v. Canada (Immigration, Refugees and Citizenship), 2018 FC 659 [Bains]). The decision was remitted to the IAD for redetermination.
[14] Following a de novo hearing held over 10 days from 2019 to 2021, the IAD determined, by a decision dated March 25, 2022, that the removal order made against the Applicant was valid in law. Further, on a balance of probabilities, that there were insufficient humanitarian and compassionate [H&C] considerations, in all of the circumstances of the case, to justify granting special relief to the Applicant.
Decision Under Review [15] The IAD’s decision is 83 pages and 362 paragraphs in length. It is not necessary to summarize the totality of its analysis here.
[16] However, in my view, the IAD’s introductory overview, having first summarized the above procedural history, provides important context and, for that reason, I set it out below:
[5] There are two issues in this appeal:
• Was the decision of the ID legally valid?
• If it was, in all the circumstances of the case, and taking into account the best interests any children directly affected by this decision, are there sufficient humanitarian and compassionate (“H&C”) considerations to warrant special relief to the Appellant?
[6] I had the advantage of hearing testimony from SH in this appeal, along with the Appellant and several witnesses. I will state at the outset that the Appellant, SH and none of the witnesses were credible, for reasons I will discuss in detail below.
[7] Despite my general finding of a lack of credibility on the part of all the witnesses, where there was a conflict in evidence, I prefer SH’s evidence as her testimony had the ‘ring of truth’ regarding important events in the marriage where the Appellant’s did not, particularly regarding the events prior to September 2008. Her testimony was more plausible and congruent with common sense than that of the Appellant and his witnesses.
[8] I have been a decision maker for many years, and I cannot recall another case I have had where the testimony of every single witness was so unreliable. This makes my job exceedingly difficult. Indeed, there is a distressing lack of clarity and consistency with the evidence in this appeal. It is for this reason that I choose to rely more upon the contemporaneous objective documentary evidence wherever possible, as I find it to be much more illuminating and less subject to manipulation.
[9] There was a significant amount of evidence filed in this appeal, but there is evidence which is notably absent, consisting primarily of objective evidence of the Appellant making credible and good faith efforts to salvage his marriage after he left for India in March 2008, and evidence showing he was ever committed to the relationship.
[10] In addition, I also conclude that the way people act often sheds more light on their intentions than what they say. In this case, deeds speak more than words.
[11] Further, the version of events advanced by the Appellant and his family members was found to be wholly unbelievable by two other Board Members. As this is a hearing I must make my own assessment of the evidence independent of the assessments made by other Members at the Board. My assessment is based on the evidence adduced in this hearing and submissions made by the parties. However, after hearing from the Appellant and his witnesses, along with SH, and considering the submissions made regarding that evidence, I too, have reached the conclusion that the Appellant is inadmissible for misrepresentation.
[12] The only thing that is clear to me in this appeal, after hearing days of testimony and perusing thousands of pages of evidence, is that the Appellant never intended to enter into a genuine marriage with SH. An examination of what transpired within days after the Appellant’s landing in Canada bolsters this finding. SH, by her own testimony, admitted that she tried to take her own life with an overdose of pills because she was so distraught when the Appellant told her he did not want to be married to her within a few days of his landing. There is a rift between families that never existed before, where siblings no longer speak to each other.
[13] Something happened that was significant. SH’s explanation of what happened when the Appellant came to Canada makes more sense than the Appellant’s version of events and is supported by my assessment of the evidence.
[14] The court directed me to explain which version I prefer, and I prefer SH’s version, flawed as it is. This leads me to conclude that while SH believed that her marriage to the Appellant was genuine, the Appellant entered into the marriage with SH primarily for immigration purposes. The Appellant’s conduct demonstrates that he pretended to be involved in the marriage at the beginning, but after landing, his efforts were anemic at best.
[15] The testimony of the Appellant was inconsistent with his previous testimony and his documents, and the testimony of his supporting witnesses was hyperbolic, self-serving, and unreliable.
[16] A holistic view of the evidence and close examination of the Appellant’s actions after he landed in Canada leads me to conclude that the Appellant took advantage of SH and her family in order for the Appellant to obtain permanent residence through his marriage to SH. This is a direct misrepresentation. The exclusion order is legally valid.
[17] I also conclude that there are insufficient humanitarian and compassionate considerations present here to warrant special relief to the Appellant. The appeal is dismissed.
Issues and Standard of Review [17] The Applicant identifies the issues in this matter as whether the IAD erred in its findings or assessments conducted pursuant to each of s 67(1)(a), (b) and (c) of the IRPA. These issues all fall under the overarching question of whether the IAD’s decision was reasonable.
[18] The parties submit, and I agree, that the standard of review is that of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 23, 25). On judicial review, the Court “must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov at para 99).
Section 67(1)(a) – Was the decision wrong in law or fact or mixed law and fact?
[19] The parties disagree on the burden of proof. The Applicant asserts that the IAD correctly found that the burden was on the Minister to establish the legal validity of the removal order and that the Applicant is inadmissible for misrepresentation but that the IAD erred in effectively reversing the onus. The Respondent asserts that the IAD erred in finding that the burden rests with the Minister on appeal but, in any event, the IAD properly determined that the Minister met its onus. I have set out the parties positions in greater detail below.
The Applicant’s Position [20] The Applicant submits that the IAD erred in finding that the Minister met its burden of proof. Section 67(1)(a) requires the IAD to conduct a de novo review of the original record and newly-adduced evidence, and determine whether or not the removal order is valid in law. The burden of proof falls on the Minister to establish the legal validity of the removal order and that the Applicant is inadmissible for misrepresentation. The Applicant submits that the Respondent did not meet its burden as it did not adduce any reliable evidence to support its positions and, therefore, the IAD inappropriately shifted the burden to the Applicant to prove his innocence. That is, while the IAD agreed with the Applicant that the Minister bears the burden of proof, the IAD did not properly apply the test as it improperly reversed the onus. The Applicant submits that the Respondent’s position – that the IAD erred in identifying the Minister as the party bearing the burden of proof, but that the decision was nevertheless reasonable – is unintelligible. It was also advantageous to the Respondent to argue that the IAD erred in its assignment of the burden of proof because SH’s “many prior inconsistent statements were indefensible”.
The Respondent’s Position [21] The Respondent submits that the IAD erred in its determination that the Minister bore the onus of demonstrating that the Applicant is inadmissible for misrepresentation. Rather, it is the party that appeals to the IAD from the ID that bears the onus, as suggested by the plain meaning of ss 67(1)(a) and (b). If the Minister was successful before the ID, as was the case in this matter, then it is not logical to require the Minister to demonstrate that the ID erred; it is only logical that the party alleging the errors in the ID proceedings be the one that proves those errors.
[22] The fact that the IAD hearing was de novo did not alter the Applicant’s status when he appeared before the IAD – the ID had found him to be inadmissible. The de novo nature of the hearing simply allowed the Applicant to put before the IAD, without restriction, all of the evidence it wished to call and arguments he wished to make. It did not change the fundamental essence of the proceeding as an appeal from the ID in which the Applicant had to convince the IAD to reverse the ID’s decision for any of the reasons set out in 67(1) of the IRPA. Further, the IAD relied on but Yang v Canada (Citizenship and Immigration), 2019 FC 1484 [Yang] but misread what is at best an ambiguous comment by the Court in that decision. Yang relied on Amergo v Canada (Citizenship and Immigration), 2018 FC 996 at paras 1-5 [Amergo], which was an appeal by the Minister, in which circumstance it was only appropriate that the burden of proof lay with the Minister. It should not be taken as requiring the Minister to bear the burden of proof at all times. Hehar v Canada (Citizenship and Immigration), 2016 FC 1054 [Hehar], also cited in Yang, concerned a visa officer’s decision to refuse a temporary resident visa application for misrepresentation. There, the Court merely affirmed that in such cases the Minister must demonstrate that the Applicant misrepresented material facts. The Respondent submits that Hehar has no relevance to the question of who bears the burden in an appeal of an ID determination that a permanent resident is inadmissible and where a removal order is issued against them.
Analysis i. Burden of Proof
[23] Pursuant to s 40(1)(a) of the IRPA, a permanent resident or a foreign national is inadmissible for misrepresentation 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 that Act.
[24] Rights of appeal are dealt with in Division 7 of the IRPA. Sections 63(3) and (5) address the right to appeal a removal order as well as the right of appeal of the Minister. Sections 66 and 67 concern the disposition of appeals:
Right to appeal removal order
(3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.
…..
Right of appeal — Minister
(5) The Minister may appeal to the Immigration Appeal Division against a decision of the Immigration Division in an admissibility hearing.
Disposition
66 After considering the appeal of a decision, the Immigration Appeal Division shall
(a) allow the appeal in accordance with section 67;
(b) stay the removal order in accordance with section 68; or
(c) dismiss the appeal in accordance with section 69.
67 (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
(a) the decision appealed is wrong in law or fact or mixed law and fact;
(b) a principle of natural justice has not been observed; or
(c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
Effect
(2) If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration.
[25] The IAD dealt with the issue of the burden of proof as a preliminary matter, setting out the party’s respective positions. The IAD quoted paragraph 23 of Yang and did not agree with the Respondent that the case was wrongly decided. The IAD noted that in the de novo appeal, and to establish that the removal order was valid in law and that the Applicant was inadmissible for misrepresentation, the Minister relied on the evidence contained in the record and evidence filed in the appeal, including the testimony of SH. The IAD found that the onus of proving the misrepresentation was on the Minister and that the Minster had met its onus. Further, once that finding had been made by the IAD, the onus shifted to the Applicant to show that there were sufficient H&C considerations to warrant special relief, in spite of the misrepresentation.
[26] As stated in Castellon Viera v Canada (Citizenship and Immigration), 2012 FC 1086, which concerned a decision of the IAD finding that the applicant was inadmissible:
[10] It is now settled that an appeal before the IAD is “a hearing de novo in a broad sense” (Kahlon v Canada (Minister of Employment and Immigration), 1989 FCJ No 104, at para 5 [Kahlon]; Mohamed v Canada (Minister of Employment and Immigration), [1986] 3 FC 90, at paras 9-13 (CA) [Mohamed]; Singh v Canada (Minister of Citizenship and Immigration), 2005 FC 1963, at para 8; Ni v Canada (Minister of Citizenship and Immigration), 2005 FC 241, at para 9; Canada (Minister of Citizenship and Immigration) v Savard, 2006 FC 109, at para 16; Canada (Minister of Citizenship and Immigration) v Venegas, 2006 FC 929, at para 18; Contreras Mendoza v Canada (Minister of Citizenship and Immigration), 2007 FC 934, at paras 17-20 [Contreras Mendoza]).
[11] Accordingly, the IAD is not limited to determining whether the Immigration Division correctly or reasonably concluded that a person seeking admission to Canada was of an inadmissible class. Rather, the IAD is required to determine whether the person is in fact inadmissible (Mohamed, above; Kahlon, above; Contreras Mendoza, above). Contrary to Mr. Castellon’s submissions, there is nothing in the IRPA or the jurisprudence which limits the exercise of de novo jurisdiction by the IAD to situations in which new evidence which was not before the Immigration Division has been adduced.
…..
[26] As noted above, the IAD is not limited to determining whether the Immigration Division correctly or reasonably concluded that a person seeking admission to Canada is of an inadmissible class. Rather, the IAD is required to determine whether the person is in fact inadmissible Page: 9 (Mohamed, above; Kahlon, above; Contreras Mendoza, above; Rattan v Canada (Minister of Employment and Immigration), [1994] FCJ No 32, at para 7 [Rattan]). In other words, on an appeal from the Immigration Division, the IAD is in essentially the same position as was the Immigration Division. In the context of this case, that means that its task was to determine if Mr. Castellon was inadmissible to Canada based on the test set forth in paragraph 37(1)(a) of the IRPA, and the rules of interpretation set forth in section 33. Those rules state, in unambiguous terms, that “[t]he facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.”
(emphasis added)
[27] In Kahlon v. Canada (Minister of Employment & Immigration), [1989] F.C.J. No. 104, referenced in Castellon Viera, the Federal Court of Appeal states at para 5:
The effect of that decision is, in my opinion, that the hearing of an appeal by the Immigration Appeal Board is a hearing de novo in a broad sense. I again agree with the view of Thurlow C.J., expressed in Mohamed, at p. 94:
In my opinion the issue to be decided by the Board on an appeal under section 79 of the Act is not whether the administrative decision taken by a visa officer to refuse an application because the information before him indicated that a person seeking admission to Canada was of a prohibited class was correctly taken but the whole question whether, when the appeal is being heard, the person is in fact one of the prohibited class.
(emphasis in italic original; emphasis in bold added)
(See also: Petinglay v Canada (Citizenship and Immigration), 2019 FC 1371 at para 27)
[28] The Federal Court of Appeal has also held that a true de novo proceeding is “a proceeding where the second decision-maker starts anew: the record below is not before the appeal body and the original decision is ignored in all respects” (Huruglica v. Canada (Citizenship and Immigration), 2016 FCA 93 at para 79).
[29] Rule 6(1) of the Immigration Appeal Division Rules, SOR/2002-230 [IAD Rules] in effect when the IAD made the subject decision (the current version of the IAD Rules contain similar provisions: Immigration Appeal Division Rules, 2022, SOR/2022-277, s. 20(2)) requires the ID to prepare the following for the IAD on appeals of admissibility hearings: (a) a table of contents; (b) the removal order; (c) a transcript of the admissibility hearing; (d) any document accepted as evidence at the admissibility hearing; and (e) any written reasons for the ID’s decision to make the removal order.
[30] In light of this jurisprudence and IAD Rule 6(1), it is clear that IAD appeals under s 67 of the IRPA are not true de novo appeals. Or, put otherwise, they are de novo only “in a broad sense”. The IAD is empowered to make its own determination and, in doing so, it is not limited to reviewing the ID’s reasons and the record that was before the ID. The parties can submit evidence on appeal to the IAD and witnesses can testify and be cross-examined, as was the circumstance when the IAD heard the matter that is now before me.
[31] As to Yang, referred to by the IAD, there it was the applicants who appealed to the IAD. The Court found that the onus on appeal lay with the Minister. The applicants in Yang argued that the IAD erred with respect to the burden of proof imposed by paragraph 40(1)(a) of the IRPA. As in the matter before me, they asserted that the burden of proof had been reversed by the IAD. This Court found that the burden of proof lies on the Minister and rejected the argument that the IAD had reversed that onus, stating:
[23] I do not dispute that the Minister carries the onus of proving an alleged misrepresentation under paragraph 40(1)(a) of the IRPA (Canada (Public Safety and Emergency Preparedness) v Amergo, 2018 FC 996 at para 18; Hehar v Canada (Citizenship and Immigration), 2016 FC 1054 at para 35). I also acknowledge that, as worded, paragraph 14 of the IAD’s Decision could be interpreted as suggesting that the IAD effectively put on the Applicants the onus of demonstrating, on a balance of probabilities, that they did not directly or indirectly misrepresent or withhold material facts relating to a relevant matter that could induce an error in the administration of the IRPA. However, in this case, there is no question that there was a misrepresentation, given Mr. Wang’s concession that he was refused a US visa on four separate occasions and the fact that his May 2013 updated application did not declare these refusals. Furthermore, when the extract singled out by the Applicants is put in context and when the Decision is read as a whole, I have no hesitation to conclude that the IAD performed a thorough evaluation of the evidence submitted by the parties, ensured that the Minister had provided the required evidence, and reasonably concluded that the Minister had met his onus on the misrepresentation and its materiality. In other words, further to my review of the Decision and of the record before the IAD, I do not agree that the IAD erroneously interpreted and misapplied the burden of proof imposed by paragraph 40(1)(a) of the IRPA.
[32] Yang does not discuss the question of whether, as the Respondent submits, the burden of proof shifts to the appealing party on appeal to the IAD. However, it did find in the circumstance before it, where the appeal was brought by the applicants, that the onus was on the Minister. However, this Court has subsequently held that, with respect to the genuineness of a marriage and citing Yang, that “this was an issue on which the burden of proof lay with the Minister at both the ID and the IAD” (Menjivar Melgar v. Canada (Citizenship and Immigration), 2022 FC 1490 at para 62).
[33] In this matter, the parties do not dispute that under s 40(1)(a) of the IRPA the burden of proof lies on the Minister to establish that a permanent resident or foreign national is inadmissible for misrepresentation. The ID’s decision in that regard is the subject of this appeal. The jurisprudence is clear that an appeal before the IAD is not a true de novo hearing. Rather, the IAD is entitled to consider the record before the ID and its decision as well as the new evidence and testimony of the parties. The IAD is not limited to considering whether the ID’s decision was reasonable. It is required to determine if there was a misrepresentation. In my view, this means that the starting point for the burden of proof where s 67(1)(a) of the IRPA is engaged must be the same for the ID and the IAD – the IAD must “essentially [be in] the same position as was the Immigration Division” (Castellon Viera at para 26). Thus, the Minister must prove the alleged misrepresentation on a balance of probabilities. In considering the appeal, the IAD must take into consideration the evidence that was before the ID as well as any new evidence submitted by the parties. Based on the totality of this evidence, as well as the ID’s reasons, the IAD must determine if the Minister has met its burden and if the applicant is inadmissible. That is, based on both of these considerations, whether at the time the appeal is disposed of (i.e. when the IAD makes its decision), the ID’s decision is legally valid.
[34] I conclude that, at the IAD hearing, the Minister was required to establish, on a balance of probabilities, that the ID’s inadmissibly finding was valid, in light of the totality of the evidence before the IAD and the ID’s decision. The IAD did not err in its determination that the Minister bore this burden.
ii. Reversed Onus
The Applicant’s Position [35] The Applicant submits the Minister called no witnesses to corroborate its case and that all of the documents relied on by the Respondent originate from SH, who was found to not be credible. The Applicant claims that he provided objective evidence demonstrating that SH lied repeatedly under oath: to Indian authorities, to Canadian immigration authorities, to her family counsellor, to the Ontario Superior Court, and mislead the IAD when summoned to testify. Further, the only evidence submitted by SH, shopping receipts and a financial record, corroborate the Applicant’s story. The IAD’s decision to let deeds speak louder than words is unintelligible given that the IAD had substantial evidence before it of SH’s misdeeds. The Applicant states that SH “was proven to be a chronic liar who holds little regard for the integrity of administration and judicial institutions. She declined to offer any corroboration of her allegations. The Applicant submits, that by contrast, he amply supported his narrative with several viva voce witnesses, affidavits/statutory declarations and objective documentary evidence”.
[36] Further, the IAD’s reasons for preferring SH’s evidence – because her evidence had the ring of truth regarding important events in the marriage – does not meet the intelligibility standard identified in Vavilov. The decision does not evince a rational chain of analysis given that no credible or reliable evidence was put forward by the Minister to substantiate its case against the Applicant and the IAD does not coherently express how the Respondent met its burden of proof.
[37] The Applicant also submits that the IAD was unduly preoccupied with the undisputed fact that SH overdosed on sleeping pills on January 19, 2008 and was hospitalized for two days. The IAD took the Respondent at its word that the overdose was a suicide attempt motivated by SH’s feeling of being mistreated by the Applicant. The Applicant asserts that there is no corroborative evidence that SH attempted to take her life and that if this was true it is implausible that she would have been discharged from the hospital a day and a half later and resumed cohabitation with the Applicant.
The Respondent’s Position [38] The Respondent submits that the IAD provided a detailed, rational and reasoned explanation for all of its findings which contain no gaps and which reasons, read in conjunction with the record, explain why the IAD found the Applicant’s evidence on key critical issues to be unworthy of belief. Accordingly, even though the IAD erred in imposing the burden of proof on the Minister, the IAD reasonably found that the evidence supported its conclusion on the genuineness of the marriage. While the Applicant claims he provided objective evidence to show that SH lied repeatedly and that the IAD should not have believed her, this ignores the vital point that the IAD made at the beginning of its reasons. Specifically, that it found SH not credible on some aspects of her evidence but, on the critical issue of her marriage to the Applicant and the dissolution of their marriage, her evidence was more credible than that of the Applicant and the various witnesses who testified in his support. The Respondent submits that the IAD’s credibility findings are to be afforded deference.
[39] Further, none of the issues on which the Applicant claims SH was untruthful are germane to the issue that the IAD had to determine – that is, whether the evidence supported the conclusion that the Applicant committed misrepresentation in order to gain permanent resident status in Canada. As the IAD noted, its key task was to assess the evidence relating to the couple’s actions and conduct up to September 2008 when the Applicant returned from India, by which point SH had already decided to seek a divorce. The Respondent summarizes the IAD’s evidentiary findings in that regard and submits that the IAD weighed the competing versions of events and reached reasonable conclusions. The Respondent submits that the Applicant’s disagreement with the conclusions does not make them unreasonable. The problems with SH’s evidence as put forward by the Applicant are all immaterial. As noted by the IAD, each of these alleged instances occurred after the Applicant had obtained permanent residence by misrepresentation and have no bearing on whether the Applicant entered into the marriage under false pretenses. It is also immaterial that none of SH’s family testified, since the IAD had evidence before it which allowed it to conclude that the Applicant is inadmissible for misrepresentation. Accordingly, SH’s failure to call witnesses does not bring into question the reasonableness of the IAD’s decision.
Analysis
[40] It is significant to acknowledge at the outset that the IAD is entitled to make credibility findings and that those finding are owed deference.
[41] As stated by Justice LeBlanc in Yu v. Canada (Citizenship and Immigration), 2016 FC 540:
[13]…it is trite law that credibility findings made by the IAD are to be afforded a significant degree of deference. The IAD is in the best position to assess credibility since it has the opportunity to hear and see the Applicant give evidence in an oral hearing (Barm, at para 11). As such, the weight to be assigned to that evidence is also a matter for the IAD to determine (Sanichara v Canada (Minister of Citizenship and Immigration), 2005 FC 1015, at para 20, 276 FTR 190 [Sanichara]. As long as the conclusions and inferences drawn by the IAD are reasonably open to it on the record, there is no basis for interfering with its decision (Sanichara, at para 20).
[42] Similarly, in Canada (Citizenship and Immigration) v. Munoz Pena, 2020 FC 719, Justice Pentney held that this Court owes deference to the IAD’s assessment of the evidence by virtue of its position as trier of fact (citing Sivapatham v Canada (Citizenship and Immigration), 2016 FC 721 at para 12; Pabla v Canada (Citizenship and Immigration), 2018 FC 1141 at paras 12–13) and that:
[30] The applicant refers to the visa officer’s decision and the inconsistencies he raised. However, the IAD’s role is to determine credibility during the hearing. As long as the conclusions and inferences drawn by the IAD are reasonably open to it based on the evidence, its conclusion should not be interfered with (Yu v Canada (Citizenship and Immigration), 2016 FC 540 at paras 13–14). In addition, the IAD’s role is not limited to the equivalent of judicial review: it has the jurisdiction “to make substantive determinations which may or may not lead it to substitute its own assessment” (Canada (Citizenship and Immigration) v Abdul, 2009 FC 967 at para 30).
[43] I also agree with the Respondent that the Applicant’s submissions ignore a central finding of the IAD. As indicted above, the IAD found none of the witnesses to be credible, for the reasons it set out and described in detail in its decision. However, where there was a conflict in the evidence, the IAD preferred the evidence of SH as it had the “ring of truth”, in particular regarding important events in the marriage, whereas the Applicant’s evidence did not. With respect to events prior to September 2008, SH’s evidence was more plausible and congruent with common sense than that of the Applicant and his witnesses.
[44] The IAD’s reasons make it clear that it was acutely aware of the conflicting evidence and the resultant credibility concerns in the matter before it.
[45] For example, the IAD referred to Justice Southcott’s decision in Bains where the prior IAD decision was found to be unreasonable because of the failure to consider a piece of corroborative evidence. Specifically, the evidence of the Applicant’s uncle that SH drove the Applicant to the airport when the Applicant returned to India which, on its face, appeared to contradict the evidence of SH that she did not know the Applicant was returning to India. The IAD quoted from Justice’ Southcott’s decision, the relevant paragraphs of which are as follows:
[18] My decision to allow this application for judicial review turns on the Applicant’s argument that the IAD ignored relevant evidence. In reaching this conclusion, I am conscious of the difficult task with which the IAD was confronted, as it was obliged to choose between two irreconcilable versions of events. As such, I disagree with Mr. Bain’s submission that the IAD erred by disregarding the principle that an applicant’s sworn testimony is presumed to be true unless there is reason to doubt its truthfulness. While this principle is trite law (see Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 at para 5 (FCA)), it is of little assistance to Mr. Bains. While he testified before the IAD, his ex-wife also provided sworn written testimony which contradicts his evidence in significant respects. The IAD was therefore required, in considering Mr. Bains’ appeal, to determine which of the two versions of events was more credible.
[19] The IAD found the evidence of Mr. Bains’ ex-wife to be more credible. Both parties characterize the IAD’s credibility analysis, resulting in its preference for the ex-wife’s evidence, as turning on conclusions as to plausibility, i.e. a finding that the ex-wife’s version of events was more plausible than that of Mr. Bains. Mr. Bains acknowledges that the IAD is entitled to make plausibility findings but argues that the findings of the IAD in the present case are not based on clear evidence or accepted facts as the jurisprudence requires (see, e.g. Ansar v Canada (Citizenship and Immigration), 2011 FC 1152 at para 17; K.K. v Canada (Citizenship and Immigration), 2014 FC 78 at para 60)).
[20] I concur with the parties’ characterization of the IAD’s credibility analysis as plausibility-based and with the acknowledgement that such an analysis is a tool available to the IAD. Indeed, in considering two conflicting versions of events, an analysis of the extent to which each version is consistent with common sense, taking into account the available evidence and uncontested facts, may in some circumstances be the only means available to an administrative decision-maker to choose between the two competing versions. However, regard should also be given to whether either version of events is inconsistent with other evidence, so as to provide a reason to doubt the credibility of one and prefer the other. My difficulty with the decision in the present case is the IAD’s failure to consider evidence of this latter sort which, on its face, appears to directly contradict an aspect of the evidence of Mr. Bains’ ex-wife.
[46] Justice Southcott also emphasized that he expressed no conclusion as to the significance of the evidence of the Applicant’s uncle, and its apparent corroboration/contradiction of the competing versions of events, other than that this evidence raised a point which required consideration by the IAD in order for the decision to be considered intelligible and therefore reasonable. For this reason, the judicial review was allowed and the matter remitted back to the IAD.
[47] When re-determining the matter, the IAD stated that, in the appeal before it, it had done exactly as Justice Southcott asked: “I have considered both versions of events. Nobody in this appeal is credible in all aspects of their testimony. However, I prefer SH’s version when it comes to significant events in the relationship and what transpired where there is a conflict in evidence. More specifically, SH’s version of what happened prior to the total breakdown in the relationship in August/September 2029 was more credible and reliable” (IAD decision at para 89).
[48] With respect to the evidence at issue in Bains, the IAD set out the conflicting evidence and assessed it and any objective documentary evidence – as it did in each of its many credibility findings. It then considered that: the Applicant’s testimony regarding the same event was inconsistent across his various hearings; the Applicant’s interview evidence given at