BHUPINDER SINGH MAAN Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2020 FC 118

Date: 20200123 Docket: IMM-2062-19 Citation: 2020 FC 118 Ottawa, Ontario, January 23, 2020 PRESENT: The Honourable Mr. Justice Ahmed BETWEEN: BHUPINDER SINGH MAAN Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Overview [ 1 ] This case concerns the decision of a visa officer in New Delhi, India (the " “Officer” " ) to refuse the Applicant’s application for a work permit as the accompanying spouse of an Indian national who is in Canada on a study permit.

Under the Immigration and Refugee Protection Act , SC 2001, c 27 ( " “ IRPA ” " ), spouses of certain temporary residents are eligible to apply for work permits. [ 2 ] By letter dated February 5, 2019, the Officer refused the work permit application on the basis the Applicant had failed to provide sufficient evidence or explanation to support his claim that the marital relationship to his spouse is genuine or not entered into primarily for the purpose of acquiring a status or privilege under the IRPA . The Officer found the Applicant inadmissible to Canada pursuant to section 40(1) (

a) of the IRPA , which carries a five-year bar on re-entry to Canada under section 40(2) (

a) of the IRPA . [ 3 ] The Applicant submits that the Officer’s decision is unreasonable and that the Officer made findings of fact in a perverse and/or capricious manner. [ 4 ] For the reasons that follow, I am of the view that the Officer’s decision is reasonable and this application for judicial review is dismissed. II. Facts [ 5 ] Mr. Bhupinder Singh Maan (the " “Applicant” " ) is a 25-year-old national of India. The Applicant is recently married to Ms. Pawanpreet Kaur, a 23-year old national of India, who is currently in Canada on a study permit. [ 6 ] The Applicant and Ms. Kaur are both residents of Punjab.

Through family connections, they were set up to be in an arranged marriage. The families met on January 31, 2018, which was around the same time that Ms. Kaur submitted her application for a study permit in Canada. Ms. Kaur had drafted her application on January 29, 2018, and submitted it to her immigration consultant, who filed it on January 31, 2018. The arranged marriage proceeded quickly after the families met, as the Applicant was the eldest of two sons and his family was keen on an early marriage for their son. On February 1, 2018, a small engagement ceremony was held.

The marriage took place on February 4, 2018, with religious ceremonies and a large gathering of friends and family. After the wedding, the couple visited various relatives. Ms. Kaur states in her affidavit that she was with the Applicant’s family for over two months prior to her departure to Canada. [ 7 ] Ms. Kaur received her visa on March 15, 2018. She left for Canada on April 13, 2018. Ms.

Kaur alleges that upon landing, she informed the immigration officer at the airport about her change in marital status. [ 8 ] On or about June 29, 2018, the Applicant submitted his work permit application as an accompanying spouse to the Canadian Visa Officer in New Delhi, India. The Applicant was invited for an interview, and on November 15, 2018, the interview was conducted in New Delhi. [ 9 ] The pre-interview entries on the Global Case Management System ( " “GCMS” " ) indicate that Ms. Kaur had been single when she applied for her student permit, and married shortly before her visa was issued. Ms.

Kaur arrived in Canada soon after the wedding, but did not inform the visa office or the immigration officer at the port of entry that her marital status had changed. [ 10 ] During the interview, the Officer noted several concerns regarding the bona fides of the marriage between the Applicant and Ms. Kaur, such as the incompatibility of education; the hastily finalized marriage; the inability of the Applicant to explain how the wedding could have been arranged in 3-4 days; the Applicant’s lack of knowledge on the fact that Ms.

Kaur had been planning to go to Canada; the fact that the photographs did not show the stated attendance of 250-300 guests at the wedding; the Applicant’s lack of holiday with

Ms. Kaur and the Applicant’s inability to provide an explanation when questioned; the Applicant’s lack of knowledge of Ms. Kaur; andthe limited evidence of contact between the Applicant and Ms. Kaur. [11] By letter dated February 5, 2019, the Officer refused the work permit application. Based on the application, supporting documents,application notes, and interview notes, the Officer found that the Applicant provided insufficient information or explanation regardingthe progression of his relationship with Ms.

Kaur, the wedding, time spent together after the marriage, and their current livingarrangements to support the assertion that their marriage is genuine. The Officer also found that the Applicant provided insufficientevidence or explanation as to the ongoing communication between the couple before and after the marriage. [12] Thus, on a balance of probabilities, the Officer found that the Applicant failed to provide sufficient evidence or explanation that hismarital relationship to his spouse is genuine or not entered into primarily for the purpose of acquiring a status or privilege under theIRPA.

The Officer also found the Applicant inadmissible to Canada pursuant to section 40(1) (

a) of the IRPA, which carries a five-yearbar on re-entry to Canada. [13] This is the decision underlying this application for judicial review. III. Preliminary Issue [14] As the Respondent notes, the Applicant has attempted to place before the Court considerable evidence that was not before theOfficer. Pages 56 to 61 of the Application Record and the supplementary affidavit provide further evidence of a trip made to India inMay 2019.

As stated by the Federal Court of Appeal in Love v Canada (Privacy Commissioner), 2015 FCA 198 at para 17: It is trite law that, in general, a judicial review application is to be determined based on the record that was before theadministrative decision-maker.

The recognized exceptions to this rule are narrow and generally involve only three types ofevidence: general evidence of a background nature that is of assistance to the Court; evidence that is relevant to an allegeddenial of procedural fairness by the decision-maker that is not evident in the record before the decision-maker; or evidencethat demonstrates the complete lack of evidence before a decision-maker for an impugned finding: Association ofUniversities and Colleges of Canada v.

Canadian Copyright Licencing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297 at paras. 18-20; International Relief Fund for the Afflicted and Needy (Canada) v. Canada (NationalRevenue), 2013 FCA 178 , 2013 D.T.C. 5161 at para. 10. [15] The evidence sought to be placed before the Court falls under none of the recognized exceptions. Thus, pages 56 to 61 of theApplication Record and the supplementary affidavit are excluded from consideration before this Court. IV. Issues and Standard of Review [16] The key issues on this application for judicial review are: 1.

Did the Officer err in finding the Applicant to be inadmissible for misrepresentation? 2. Was the Officer’s refusal of the Applicant’s work permit application reasonable? [17] As per the revised standard of review framework set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC65 [Vavilov], the analysis begins with the presumption of reasonableness.

This presumption can be rebutted in two types ofsituations: first, where the legislature has indicated that it intends a different standard to apply, i.e. where it has explicitly prescribed theapplicable standard of review, or where it has provided a statutory appeal mechanism from the administrative decision maker to a court;and second, where the rule of law requires that the standard of correctness be applied, for example in certain categories of legalquestions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questionsrelated to the jurisdictional boundaries between two or more administrative bodies (Vavilov at para 17). [18] In the case at bar, neither exception to the presumption of reasonableness applies.

Therefore, the standard of review isreasonableness for both issues. V. Relevant Provisions [19] Subsection 30(1) of the IRPA reads as follows: Work and study in Canada 30

(1) A foreign national may notwork or study in Canada unlessauthorized to do so under this Act. Études et emploi 30

(1) L’étranger ne peut exercer unemploi au Canada ou y étudier quesous le régime de la présente loi. [20] Under subsections 199(

c) and (

e) of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("“IRPR”"), a foreignnational may apply for a work permit if they are a family member of a person holding a study permit:

Application after entry 199 A foreign national may applyfor a work permit after enteringCanada if they (

a) hold a work permit; (

b) are working in Canada under theauthority of

section 186 and are not abusiness visitor within the meaningof

section 187; (

c) hold a study permit; (

d) hold a temporary resident permitissued under subsection 24(1) of theAct that is valid for at least sixmonths; (

e) are a family member of a persondescribed in any of paragraphs (

a) to(d); […] Demande après l’entrée auCanada 199 L’étranger peut faire unedemande de permis de travail aprèsson entrée au Canada dans les cassuivants :

a) il détient un permis de travail;

b) il travaille au Canada au

titre del’article 186 et n’est pas un visiteurcommercial au sens de l’article 187;

c) il détient un permis d’études;

d) il détient, aux termes duparagraphe 24(1) de la Loi, unpermis de séjour temporaire qui estvalide pour au moins six mois;

e) il est membre de la famille d’unepersonne visée à l’un des alinéas

a) àd); […] [21] Subsection 4(1) of the IRPR reads as follows: Bad faith 4

(1) For the purposes of theseRegulations, a foreign national shallnot be considered a spouse, acommon-law partner or a conjugalpartner of a person if the marriage,common-law partnership or conjugalpartnership (

a) was entered into primarily for thepurpose of acquiring any status orprivilege under the Act; or (

b) is not genuine. Mauvaise foi 4

(1) Pour l’application du présentrèglement, l’étranger n’est pasconsidéré comme étant l’époux, leconjoint de fait ou le partenaireconjugal d’une personne si lemariage ou la relation des conjointsde fait ou des partenaires conjugaux,selon le cas :

a) visait principalement l’acquisitiond’un statut ou d’un privilège sous lerégime de la Loi;

b) n’est pas authentique. VI. Analysis [22] The Applicant sought to apply for an open work permit as the spouse—a "“family member”"—of Ms. Kaur, a foreign nationalholding a study permit. However, as the Officer determined that the Applicant was not in a genuine marriage with Ms. Kaur, he wasfound to be inadmissible under section 40(1)(

a) of the IRPA. The Officer found that the Applicant’s misrepresentation could haveinduced an error to issue the Applicant with an open work permit as the accompanying spouse of a foreign national who holds a studypermit. [23] The Applicant submits that the Officer made an unreasonable decision based on erroneous findings of fact made in a perverseand/or capricious manner. The Applicant submits that he answered every question at the interview, and did not provide any wronginformation. He alleges that there were some moments of nervousness, which is why he did not answer.

The Applicant submits that theOfficer erred in finding that the Applicant and Ms. Kaur were "“incompatible in terms of education”" since the Applicant had obtained adiploma to become more employable. The Applicant submits that it was unreasonable for the Officer to have found it problematic thatthe photographs did not show all the guests in one photo. Moreover, the Applicant points out that he and his wife did not have the"“luxury of a holiday”" after incurring large expenses for the wedding.

As for the Officer’s finding of an incorrect course completiondate, the Applicant submits that he understood the phrase "“completion of the course”" to mean the end of final exams, and not the endof the "“official year”". However, this explanation was not provided to the Officer during the interview. [24] The Respondent submits that subsection 40(1)(

a) of the IRPA is written broadly and may apply in situations even where there is"“an innocent failure to provide material information,”" (Baro v Canada (Citizenship and Immigration), 2007 FC 1299 at para15). The presence of mens rea, premeditation, or intent is not required for a finding of inadmissibility due to misrepresentation. TheRespondent submits that the Applicant provides various explanations that were not before the Officer, in support of his contention thatthe Officer erred. [25] I agree with the Respondent. The GCMS interview notes indicate that the Applicant could not provide answers or explanations on

several of the seemingly straightforward questions, such as how it was possible to arrange a wedding in 3-4 days, and why the Applicant and Ms. Kaur did not go on holiday together after the wedding. Although I would have been prepared to accept that some of the concerns noted by the Officer could be explained by the fact that this was an arranged marriage, the onus was nevertheless on the Applicant to provide sufficient information to address the concerns of the Officer on the genuineness of the marriage.

However, a review of the record reveals that the Applicant simply failed to provide sufficient explanations or evidence to alleviate the Officer’s concerns. Certainly, the Applicant could have better explained some of the questions during the interview as he is attempting to do through the affidavit on this application, but the record shows that he did not.

Based on the Applicant’s lack of explanation or knowledge on aspects including his spouse’s intention to go abroad, details on why the marriage was prepared hastily, how it was prepared so quickly, or why they did not go on holiday, the Officer reasonably concluded that the marriage was not genuine, and that the Applicant was thus inadmissible for misrepresentation. [ 26 ] Given that the Officer did not err in finding the Applicant to be inadmissible for misrepresentation, it was reasonable for the Officer to refuse the Applicant’s work permit application, since the Applicant would no longer be eligible as a " “family member” " of a foreign national holding a study permit, under

section 199 of the IRPR . VII. Certified Question [ 27 ] Counsel for each party was asked if there were any questions requiring certification. They each stated that there were no questions for certification and I concur. VIII. Conclusion [ 28 ] The Officer reasonably found the Applicant to be inadmissible for misrepresentation under section 40(1) (

a) of the IRPA . The Officer’s refusal of the work permit application was also reasonable. This application for judicial review is dismissed. JUDGMENT in IMM-2062-19 THIS COURT’S JUDGMENT is that: 1 . The application for judicial review is dismissed. 2 . There is no question to certify. "Shirzad A." Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2062-19 STYLE OF CAUSE: BHUPINDER SINGH MAAN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: JANUARY 9, 2020 JUDGMENT AND REASONS: AHMED J. DATED: January 23, 2020 APPEARANCES : Maninder Sidhu For The Applicant David Joseph For The Respondent

SOLICITORS OF RECORD : Maninder Sidhu Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent