 
IAD.34.1 (October 2007)  
Disponible en français  
 
Immigration and  
Refugee Board of Canada  
 
Immigration Appeal Division  
 Commission de l’immigration et  
du statut de réfugié du Canada  
 
Section d’appel de l’immigration  
 
 
IAD File No. / No de dossier  de la SAI  :  TA8-13984  
Client ID No. / No ID client  :  3226 -1541  
 
 
Reasons and Decision   Motifs et décision  
 
Removal Order  
 
 
 
Appellant(s)  Appelant (s) 
IQBAL SINGH CHONG  
 
 
Respondent  Intimé  
The Minister of Public Safety and Emergency Preparedness  
Le ministre de la Sécurité publique et de la Protection civile  
 
 
Date(s) and Place  Date(s) et Lieu de  
of Hearing  l’audience  
February 17, 2010  
April 27, 2010  
Aug ust 26, 2010  
Toronto, Ontario  
 
Date of Decision  Date de la Décision  
October 20, 2010  
 
 
Panel  Tribunal  
XXXXXXXXXXXXX  
  
 
Appellant’s Counsel  Conseil de l ’appelant (s) 
XXXXXXXXXXXXXXXXXXXX  
Barrister and Solicitor  
 
Minister’s Counsel  Conseil de l’intimé  
XXXXXXXXXXXXX  
 
2010 CanLII 98220 (CA IRB)
IAD File No. / No de dossier  de la SAI :  TA8 -13984  
Client ID No. / No ID client :  3226 -1541  
 
1 
 
 Reasons for Decision  
 
Introduction  
 
[1] These are the reasons for the decision in the appeal of XXXXXXXXXXXXXXXXX (appellant) 
from an exclusion order made  against him on July 4, 2008 by Member XXXXXXXXXXX of the 
Immigration Division of the Immigration and Refugee Board of Canada, who determined, 
following an admissibility hearing, that the appellant was inadmissible pursuant to section 
40(1)(a) of the Immigr ation and Refugee Protection Act (IRPA ).  Section 40(1)(a) states that a 
permanent resident is inadmissible for directly or indirectly misrepresenting or withholding 
material facts that induce or could induce an error in the administration of IRPA . 
 
Issues  
 
[2] The appellant challenged the legal validity of the exclusion order and also requested 
special relief on humanitarian and compassionate grounds under section 67(1)(c) of IRPA ; he 
asked that the appeal be allowed.   
 
[3] The respondent submitted that the exclu sion order is valid in law and was opposed to any 
special relief; he asked that the appeal be dismissed.  
 
Decision  
 
[4] Having considered the totality of the evidence and the submissions of the parties, I find 
the exclusion order is valid in law.  
 
[5] Moreover, th e appellant has not established  that discretionary relief is warranted in all the 
circumstances of his case.  
 
[6] The appeal is dismissed.  
 
2010 CanLII 98220 (CA IRB)
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2 
 
 Background  
 
[7] The appellant, who is 41 years old, is a citizen of India. He was first interviewed by a 
visa post in 1997,  as he was on his parents’ application for permanent residence.  His sister , 
XXXXXXXXXXX , sponsored her parents.  He was found ineligible because of his age and he was not 
engaged in full -time studies.  His father died on October 29, 1999.  Only his mother  and sister 
landed in Canada on November 1, 2000.   He was sponsored to Canada by his wife XXXXXXXXXXXXXXXXXXX (Ms. XXXXXX ) (sponsoring wife), a Canadian citizen.1  They married on January 9, 2001.2  
This was his first marriage; she had been married before.3  He landed in Canada on May 11, 
2002.  The appellant petitioned  for divorce on March 13, 2003.4  Their divorce became effective 
on January 16, 2004.5  The appellant remarried on February 13, 2005 in India and attempted to 
sponsor his current wife in July  2005, at which time Immigration suspected he had engaged in a 
marriage of convenience with his sponsoring wife.  
 
[8] On December 15, 2005, Citizenship and Immigration Canada ( CIC ) interviewed the 
appellant regarding his marriage to his sponsoring wife.6  On F ebruary 22, 2007, an Immigration 
officer referred the appellant for an admissibility hearing pursuant to section 44(2) of IRPA  to 
determine if the appellant is a person described in section 40(1)(a) of IRPA .7  The report was 
based on the following:  
 
- IS A  PERMANENT RESIDENT…  
- SUBJECT WAS SPONSORED TO CANADA AS A PERMANENT RESIDENT BY HIS 
SPOUSE, XXXXXXXXXXXXXXXXXX, A CANADIAN CITIZEN;  
- SUBJECT ONLY MARRIED HIS SPONSOR TO OBTAIN PERMANENT RESIDENCE 
IN CANADA;8 
 
                                                                 
1  Appeal Record, page 157.  
2  Ibid., page  147.  
3 Ibid., page  147.  
4  Ibid., page 155.  
5  Ibid., page  141.  
6  Ibid., page  127.  
7  Ibid., pages  123 to 124.  
8  Ibid., page  124.  
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3 
 
 [9] An admissibility hearing was convened befor e the Immigration Division of the 
Immigration and Refugee Board of Canada.   Member XXXXXXX delivered a decision issuing an 
exclusion order against the appellant on July 4, 2008.   At the admissibility hearing, which took 
place over two sittings, the burden  of proof was on the Minister to satisfy the Immigration 
Division Member that the appellant is inadmissible.9  The appellant and his sister, XXXXXXX, were 
among those who testified at the admissibility hearing.  
 
[10]  The appellant, who was represented by counse l, testified at the de novo  hearing.  His 
sister also testified at the hearing.   Documentary evidence was filed, including Exhibits A -1 
through A -10.  The hearing took place over three sittings, on February 17, 2010, April 27, 2010 
and August 26, 2010.   
 
Analysis  
 
Legal Validity  
 
[11]  Section 40(1)(a) of IRPA  reads:  
 
40. (1)  Misrepresentation - A permanent resident or a foreign national is inadmissible for 
misrepresentation  
 
(a) 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 this 
Act;  
 
[12]  The section in IRPA  titled “Immigration to Canada ” sets out the requirements before 
entering Canada .  Section 11(1) provides for an examination by an officer bef ore a visa or other 
document can be issued to a foreign national who wishes to enter Canada:  
 
11.  (1) Application before entering Canada - A foreign national must, before entering 
Canada, apply to an officer for a visa or for any other document required by  the regulations. 
The visa or document shall be issued if, following an examination, the officer is satisfied that 
the foreign national is not inadmissible and meets the requirements of this Act.  
 
                                                                 
9  Appeal Record, page  4.  
2010 CanLII 98220 (CA IRB)
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 [13]  Section 15(1) of IRPA  gives an officer explicit authority to conduct examinations where a 
person has made an application to the officer:  
 
15.  (1) Examination by officer  — An officer is authorized to proceed with an examination 
where a person makes an application to the officer in accordance with this Act.  
 
[14]  IRPA  therefore explicitly gives the visa officer jurisdiction to examine the applicant’s 
admissibility to Canada and mandates that the applicant attend at an examination, if required, 
before he can be issued a visa.  The purpose of the examination is to ensure that the foreign 
national is not inadmissible and that he or she mee ts the requirements of IRPA . 
 
[15]  Section 16(1) of IRPA  sets out a clear obligation on the applicant to answer truthfully.  
 
16.  (1) Obligation — answer truthfully  - A person who makes an application must answer 
truthfully all questions put to them for the purpose of the examination and must produce a 
visa and all re levant evidence and documents that the officer reasonably requires.  
 
[16]  The Panel notes  that section 4 of the Immigration and Refugee Protection Regulations (the  
Regulations ) as it read prior to September 30, 2010 and section 4(1) of the Regulations  effective  
September 30, 2010  explicitly governs bad faith family relationships, including marriages of 
convenience:  
 
4.  Bad Faith  - For the purposes of these Regulations, a foreign national shall not be considered 
a spouse, a common -law partner, a conjugal partner  or an adopted child of a person if the 
marriage, common -law partnership, conjugal partnership or adoption is not genuine an d was 
entered into primarily for the purpose of acquiring any status or privilege under the Act.  
 
Bad faith  
4. (1) For the purposes of these Regulations, a foreign national shall not be considered a 
spouse, a common -law partner or a conjugal partner of a person if the marriage, common -law 
partnership or conjugal partnership  
 
(a) was entered into primarily for the purpose of acquiring any status or privilege 
under the Act; or  
 
(b) is not genuine.10 
   
                                                                 
10  SOR/2004 -167, s. 3(E); SOR/2010 -208, s. 1.  As amended September 30, 2010.  
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 [17]  The inclusion of the former section 4 and the current section 4(1) indicates that 
Parliament recognized that marriages may not be genuine and used as a means to acquire status 
or privilege under IRPA .   
 
[18]  I note that Member XXXXXXX referred  to the following from the Federal  Court decision in 
Ramkisson:11  
 
A review of the reasoning of the adjudicator and the IAD reveals that the reference to "who 
has the most to gain" was merely one factor among many that were taken into account when 
assessing the evidence as a whole. The adj udicator particularly noted: the short period of time 
between the applicant’s  landing and her separation from Mr. XXXXX; the short period of time 
between that separation and the commencement of divorce proceedings; the short period of 
time between the comm encement of those proceedings and when the applicant and her 
husband met in New York; the short period of time between the divorce and the applicant’s  
remarriage to her first husband.  
 
In addition, the test that the IAD applied, and was required to apply, was not the XXXXXX  test. 
The IAD was not addressing the bona fides  of a spousal sponsorship application. The 
question the IAD had to answer was whether the applicant made a material misrepresentation, 
when applying for landing as Mr. XXXXX’s spouse. This, indirectly, of course, requires an  
assessment of the bona fides  of the marriage and whether it was entered into by the applicant 
with the intention of residing with Mr. XXXXX, permanently as his spouse. At the same time, 
the analysis of the evidence is dif ferent and the IAD can take into account, as it must, events 
subsequent to those assessed by the visa officer in Port of Spain when the applicant’s 
application for landing on the basis of Mr. XXXXX’s sponsorship was approved.  
 
[19]  The Panel  notes  that the Supr eme Court of Canada in F.H.  v. XXXXXXXXX  ruled that “the 
evidence must always be clear, convincing and cogent in order to satisfy the balance of 
probabilities test.”12 
 
[20]  The appellant’s counsel challenged the legal validity of the Immigration Division’s 
deci sion which is the basis of the exclusion order issued against the appellant.  He submitted 
there were a number of legal and factual errors.    
 
                                                                 
11  XXXXXXXXXX v. Canada (Minister of Citizenship and Immigration ), 2000 CanLII 15534 (F.C.), at paras 7 and 8.  
12  F.H. v. McDougall, [2008] 3 S.C.R. 41, 2008 SCC 53.  
2010 CanLII 98220 (CA IRB)
IAD File No. / No de dossier  de la SAI :  TA8 -13984  
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 [21]  The appellant’s sister, XXXXXX , arranged his marriage with Ms. XXXXXX.  It was finalized 
over the phone.  The ap pellant met her in person on January 5 or 6 and they were married on 
January 9, 2001.  There are photos of their marriage.13  There is also their wedding invitation and 
an affidavit of the Sarpanch of the village in support of their marriage.   There are ver y few 
photos from after the marriage.14   
 
[22]  On the development of the marriage, I note Member XXXXXXX’s finding:    
 
The genesis of the relationship therefore appears to be a simplistic arrangement which lacks 
credence and depth, and calls into question the bona fides  of the marriage.15 
 
[23]  In terms of compatibility, at the time of their marriage, Ms. XXXXXX was older, a divorc ée 
and a single mother with a child; the appellant was a younger inexperienced man.  Member 
XXXXXXX found that their marriage was arranged without an in -depth investigation and 
negotiation.16  The appellant’s mother and sister, XXXXXX, and Ms. XXXXXX’s son did not attend the 
wedding.17  The appellant testified that after marriage his sponsoring wife stayed with him in 
India for one week.  He sa id they consummated the marriage in Canada.   
 
[24]  Appellant’s counsel argued that the trigger for bringing the appellant to immigration’s 
attention was his sponsorship application for his second wife.  At the centre of the matter is the 
certificate of divorce  between the appellant and Ms. XXXXXX, which indicates that their divorce 
became effective January 16, 2004.18  The petition for divorce was signed on March 13, 2003 by 
the appellant and was filed in Court in April 2003.19  It states that the spouses have li ved separate 
and apart since May 18, 2002, which led Immigration to the conclusion that the appellant and his 
first wife only cohabitated for one week after he landed, indicating a marriage of convenience.   
                                                                 
13 Exhib it A -10, pages 28 to 36.  
14 Exhibits A -7 and A -10. 
15  Appeal Record, page 10.  
16 Ibid., pages 10 and 47.  
17  Ibid., page 10.  
18  XXXX., page 141.  
19  Ibid., page 144.  
2010 CanLII 98220 (CA IRB)
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 That the marriage broke down within one  week of t he appellant landing in Canada was a factor 
in Member XXXXXXX’s finding that the marriage was not bona fide .20   
 
[25]  Appellant’s counsel submitted that the divorce document was not credible in light of 
three  other document s, which I note were only produced aft er the first sitting and the testimony 
of the appellant.    
 
[26]  The appellant submitted that the date of separation was an error on the petition.  The 
appellant said that someone who is not a lawyer filled out his petition for divorce.  He and his 
sister did not identify who filled out the forms.  She said the appellant and her husband went to 
the man. Divorce law in Ontario requires a 1 -year separation before the granting of a divorce.   
 
[27]  Appellant’s counsel also submitted that the evidence given at the admis sibility hearing 
was not reliable regarding the separation date.   At the admissibility hearing, the appellant’s 
sworn testimony21 was , “Yes, we lived together for one week; and after one week, we 
separated .”22  I note that the appellant first testified, at t he first sitting of the hearing before the 
Immigration Appeal Division (I AD ), that he moved to his sister’s one week after landing in 
Canada, May 20th or 21st of 2002.   Later in cross -examination, at the second -sitting, he said he 
separated from his spons oring wife after four /five months.  He said in cross -examination that he 
is providing a different answer from the first sitting and the admissibility hearing because 
someone who does immigration cases advised him that he should say whatever is stated in th e 
divorce papers; his current counsel advised him to tell the truth now, after informing him about 
the mistake regarding the separation date in the divorce document.  XXXXXX said the appellant 
moved from his wife’s place maybe in November 2002.  She said t he May 2002 date in the 
divorce document is probably a mistake by the man or by them.  She admitted that at the 
admissibility hearing her sworn testimony was that the appellant left his sponsoring wife’s home 
after a week.23  She said that she did  not lie; she told their previous lawyer the truth but that there 
                                                                 
20  Appeal Record, page 13.  
21  Ibid.,  page 77.  
22  Ibid., page 87.  
23  Ibid., page 35.  
2010 CanLII 98220 (CA IRB)
IAD File No. / No de dossier  de la SAI :  TA8 -13984  
Client ID No. / No ID client :  3226 -1541  
 
8 
 
 were translation issues.  She said their previous lawyer told them that they would go ahead at the 
admissibility hearing with the date in the divorce documents even though he actually stayed 
longer.  She said that the appellant stayed at his previous spouse’s address until November 22, 
2002.  I find that the appellant’s and his sister’s explanations for why they did not previously 
testify that the appellant and his sponsoring wife separated at a later date to be not credible.  
First, there is no evidence that they filed a complaint against the appellant’s previous lawyer 
with the Law Society of Upper Canada given their serious allegation that their lawyer advised 
them to make a misrepresentation before the Immigration  Division Member.  Second, the Panel 
expects that their current lawyer, who has been counsel on record since December 2009, would 
have reviewed the record, the documentary evidence and gone over their version of events well 
before the April 2010 sitting of this hearing.  Therefore, I do not find their reason given, for the 
contradictions in their earlier testimonies at the  first sitting and/or admissibility hearing 
regarding the  divorce document , to be credible . 
 
[28]  I do not find it credible tha t the separation date, as indicated in the petition for divorce, is 
an error.  He claims he did not  lie in the divorce document but that it was an error in the divorce 
papers without identifying who filled out those forms, and that at the admissibility hea ring he 
was simply being consistent with the divorce document. I note that at the admissibility hearing 
the appellant’s sister said that the appellant went to a lawyer to file for his divorce.24  I do not 
find his explanation credible as his 2005 applicatio n to sponsor and undertaking gives May 18, 
2002 as his separation date.  
 
[29]  Appellant’s counsel submitted that three  other documents should be given more weight 
than the divorce document, in light of the appellant’s revised testimony on the date of separation .  
He submitted that both the appellant and XXXXXX admitted that their sworn testimonies at the 
admissibility hearing on the separation date were misrepresentations.  The appellant submitted 
an Eligibility Assessment form of the Ministry of Health and Long -Term Care, which indicates 
the appellant’s address was 28 Nashsmith Street in Brampton.  This was his sponsoring wife’s 
                                                                 
24  Appeal R ecord, page 36.  
2010 CanLII 98220 (CA IRB)
IAD File No. / No de dossier  de la SAI :  TA8 -13984  
Client ID No. / No ID client :  3226 -1541  
 
9 
 
 address.   The handwritten date entered on the form appears as follows: “02/06/03”25  Appellant’s 
counsel submitted that this proves tha t on June 2, 2003 the appellant was residing at Ms. 
XXXXXX’s address, contrary to the divorce document.  The Panel, however, notes that the form has 
an assessment statement which is checked and reads as follows:26   
 
You are eligible for OHIP coverage:  
Elig ibility Effective date  
Year  Month  Day  
2002  08 11 
 
[30]  The Panel  notes  that the handwriting on the form belongs to one person.   The Panel  takes  
judicial notice that OHIP coverage starts three months upon residing in Ontario.27  As the 
appellant landed on May 11 , 2002, I find that a logical conclusion would be that the appellant 
would have become eligible for OHIP on August 11, 2002, which would be three months after 
landing in Canada.   Therefore, on a balance I find the “02/06/03” date refers to June 3, 2002 as 
opposed to June 2, 2003.  Moreover, I cannot ascertain who completed and signed the form.  
Therefore, I give the OHIP Eligibility Assessment form very little weight.  
 
[31]  A charge sheet indicating the appellant did an indecent act in a public place on May 29, 
2002 was also submitted to support the appellant’s submission that the date of separation was not 
May 18, 2002.  This document indicates the address of 28 Nasmith Street.28  The document is 
sworn to on July 4, 2002.   The appellant testified at the second si tting in re -direct that he 
separated from his wife after two/three m onths because he was charged by the police and had to 
go to court and pay fines and that his wife fought with him about this.  He recalled that it took 
three/four months for the charges to  be dismissed.  
 
                                                                 
25  Exhibit A -9. 
26  Ibid.  
27 Section 5(1) of General, R.R.O. 1990, Reg. 552 under the Health Insurance Act  reads:  
  5. (1) Subject to subsection (2) and sections 6 to 6.3, and to subsection 11 (2.1) of the Act, a person shall only   
start rec eiving insured services once the General Manager is satisfied that he or she has been a resident for three 
full consecutive months, and has not stopped being a resident since meeting that three -month waiting period 
requirement.  
28 Exhibit A -8. 
2010 CanLII 98220 (CA IRB)
IAD File No. / No de dossier  de la SAI :  TA8 -13984  
Client ID No. / No ID client :  3226 -1541  
 
10 
 
 [32]  The third document produced in order to counter the separation date in the divorce 
document is a letter from Service Ontario dated August 23, 2010, which reads as follows:   
 
This letter will confirm that our records show Mr. XXXXX lived at the following addresses since 
2002:29 
 
Up to – November 30, 2002  
28 Nasmith Street, Brampton…  
 
December 1, 2002 – September 14, 2004  
3842 Bayswater Crescent, Mississauga…  
 
September 15, 2004 – current  
33 Jack Rabbit Crescent, Brampton  
 
[33]  Appellant’s counsel s ubmitted that the appellant was up to date with changing his address 
with the Ministry of Health and that their records are therefore more reliable than the divorce 
document.  The petition for divorce indicates that the petitioner has resided in 3842 Baysw ater 
Crest since May 2002 and that the respondent has resided in 28 Nasmith St reet  since April 2001 
and that is her current address.30  His Immigra tion application form from 2001 indicates that his 
mother’s and, his sister, XXXXXX’s, address is 3842 Bayswat er Crescent.  A land transfer document 
indicates that XXXXXXXXXXXXX and XXXXXXXXXXXXX registered a property at 33 Jack Rabbit as 
transferees on September 15, 2004.31  Appellant’s counsel submitted that the information related 
to his address in these documen ts coincide with the Service Ontario letter.   While appellant’s 
counsel submitted that the Service Ontario records referred to in the letter are in relation to his 
health card, the letter itself does not specify the source of their records and therefore I give this 
letter very little weight.   
 
[34]  I give more weight to his pre -hearing Personal Information Form ,32 which indicates that 
his address from “May 2002 -May 2002 ” was 28 Nasmith St reet  and from “May 2002 - Sep 2004 ” 
was 3842 Bayswater Cres cent  because by v irtue of his signature he declared  that  “the 
information contained herein is true and correct to the best of my knowledge and belief .”33  This 
                                                                 
29 Exhibit A -10, page 1  
30 Appeal Record, page 148.  
31 Exhibit A -1, pages 2 and 3.  
32 Appeal Record, pages 129 to 135.  
33 Ibid.  
2010 CanLII 98220 (CA IRB)
IAD File No. / No de dossier  de la SAI :  TA8 -13984  
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11 
 
 form is dated December 6, 2005, prior to his interview with CIC and referral to an admissibility 
hearing.  I also give more weight to his Application to Sponsor and Undertaking , in which he 
indicates date of divorce/separation/death as May 18, 2002,34 and by virtue of his signature 
declares  that “the information given on this form and any attached documents is complete , 
correct and fully discloses everything concerning my eligibility to sponsor or co -sign .”  I am 
persuaded by these documents that the date of separation is as indicated in the divorce document, 
May 18, 2002 . 
 
[35]  I do not accept appellant’s counsel’s submissi on that the Eligibility Assessment form, the 
charge sheet and the Service Ontario letter are more credible than the divorce document for 
several reasons.  First, the legal nature of the divorce document carries more weight than these 
three other documents.   Moreover, the appellant’s application to sponsor and undertaking, which 
he signed on July 7, 2005, indicates the date of divorce/separation/death as applicable as May 
18, 2002.35  His pre -hearing personal information form,36 which he signed on December 6, 2005, 
indicates that his address from May 2002 -May 2002 was 28 Nasmith St and from May 2002 to 
September 2004 was 3842 Bayswater Cres.  I also point to the February 22, 2007 declaration of 
the CIC Immigration officer, in which it is indicated that he was s pecifically asked how his 
marriage could break down in one week,37 and there is no mention of a later separation date.  I 
would expect the appellant to have corrected that statement or to have protested the timing in 
some way at that interview if he did act ually separate later than what is indicated in the divorce 
document.    
 
[36]  Appellant’s counsel submitted that the appellant’s statements at the CIC interview, the 
admissibility hearing and this hearing have to be considered in light of his medical condition.   
Evidence on the appellant’s medical condition was presented in Exhibits A -2 and A -3, including 
                                                                 
34  Appeal Record, pages 136 to 140.  
35  XXXX.,  pages  15 to 19.  
36  XXXX., pages 129 to 135.  
37  XXXX., page 127.  
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 his provider details and claims history from the Ministry of Health and Long -Term Care38 and a 
report dated January 21, 2010 from Dr. XXXXXXXXXXXXXX  Dr. XXXXXXXXXXX assessment findings 
include:40 
 
I am informed that Immigration Canada attempted to revoke his immigration status as he was 
unable to clearly explain the details about why his first marriage did not work.  I am not 
surprised, as this man suffered a sign ificant accident, and as a consequence of a head injury, 
he was left with cognitive difficulties, particularly affecting his memory ability…  
… 
 
…this man experiences grave cognitive difficulties as well as headaches, and appears to 
experience communication  deficits that affect his ability to converse with others in an 
effective manner at times.  Evidently this patient lacks the cognitive fitness required to be 
concise, clear, and remember details such as dates, or the chronology of events.  Mr. XXXXX 
also l acks the mental sophistication to engage in logical reasoning, particularly in situation 
that are highly stressful.  
 
In addition to his head injury, Mr. XXXXX developed epileptic seizures in 2005 that are 
controlled via medication…One of the side effect s of this type of medication include a certain 
level of confusion, disorientation that evidently compounds his limitations.  
 
[37]  Appellant’s counsel submitted that a person with such cognitive difficulties would have 
problems answering questions.  The appellant di d not provide details regarding his visits to Dr. 
XXXXXXXX.  He could  not remember going to a lady doctor.  Member XXXXXXX accepted the 
explanation that there was a medical condition resulting in Mr. XXXXX’s memory loss”41 with 
respect  to the time  frame for  reconciliation efforts but did  not find his testimony credible 
otherwise.   Appellant’s counsel asked, “ What can be expected from someone with memory 
loss ?”   His sister,  who went with him to visit Dr. XXXXXXXXX, said that they went one or two times 
and the n specified two times.   She tried to evade answering why they went to Dr. XXXXXXXXXX  The 
report itself is addressed to the appellant’s counsel, and indicates that the appellant attended on 
January 18, 2010 (no other dates mentioned) for an assessment of hi s current psychological 
functioning, at his counsel’s request.  Only after confronted with the report did the appellant’s 
sister admit that appellant’s counsel advised them to visit Dr. XXXXXXX y.    
 
                                                                 
38  Exhibit A -2, pages 1 to 13.  
39  Exhibit A -3, pages 1 to 4.  
40  Ibid., pages 2 and 3.  
41  Appeal Record, page 15.  
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13 
 
 [38]  I find that the appellant was able to answer many questi ons over  two  sittings.  For 
example, the appellant was able to answer fairly quickly the following questions that were asked 
successively by the Panel: name of his wife; when were they married; when did she leave India; 
when did he land; where did he live after arriving in Canada; where did he live after; and when 
did he move to his sister’s.  The Panel  notes  that he did not know or did not remember the 
answers to many questions.  However, when it served to explain himself he was able to 
remember details, s uch as the timing of his charge and its dismissal,  and the processing of that 
charge.  But , he still could  not recall how long after his charge was resolved did he and his 
sponsoring wife separate.   In his pre -hearing personal information form42 he indicate s that his 
general health/medical conditions as “GOOD”.  Therefore, while I accept that the appellant may 
have had some difficulties with regards to precise dates or timeframes due to his medical issues, 
as per Dr. XXXXXXXX ’s assessment, I still find on a balance that his testimony on the later date of 
separation was not credible.   
 
[39]  Appellant’s counsel also pointed to his November 1997 interview with the visa post in 
which he could not recall details about his computer courses.  However, I note that accord ing to 
the CAIPS (Computer Assisted Immigration Processing Systems)  notes the visa officer 
concluded as follows:  
 
I AM SATISFIED THAT XXXXX AND BALJIT DO NOT QUALIFY AS DEPENDENT 
SONS AS THEY ARE OVER 19 AND HAVE NOT BEEN ENGAGED IN AN 
UNINTERRUPED PROGRAM  OF STUDY SINCE THEY TURNED 19.43 
 
[40]  I also note the CIC  officer’s declaration following the interview with the appellant in 
which it is stated:  
 
Subject was not found credible and it is evident that this was a marriage of convenience as he 
had been previousl y removed from his mother’s application and that his mother wanted his 
marriage to be done in Canada as per CAIP S notes.44 
 
                                                                 
42  Appeal Recor d, pages 129 to 135.  
43 Ibid., page 174.  
44  Ibid., page 127.  
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 [41]  It was argued that the appellant was illiterate and that the process, particularly the CIC 
interviewing officer, did not address it a ppropriately.45  Essentially, it was argued that the 
appellant did not understand the process because of his illiteracy and that little or no effort was 
made to address illiteracy issues.  The appellant testified that he can write in Punjabi and read in 
Pun jabi and Hindi.  On a balance, the appellant is not illiterate.   I rely on his testimony and on 
the CAIPS notes from his 1997 interview in arriving at this conclusion.  While he may not have 
understood the process with the CIC interviewing officer, I fail to see how illiteracy or memory 
loss would cause the appellant to repeatedly orally state or fail to protest that he and his 
sponsoring  wife separated a week after landing in Canada.  
 
[42]  There exists a  presumption in law that sworn testimony  should be consid ered truthful, 
unless there is good reason to doubt its veracity.46  Inconsistencies and implausibilities may be 
taken into consideration in assessing the credibility of their evidence, in addition to its rationality 
and common sense.47  I also note Justice XXXXXXX’ s statement  in the XXXXXXXX  case which, 
although a case involving a claim to refugee status, would seem applicable to any immigration 
matter:48 
 
A tribunal may make adverse findings of credibility based on the implausibility of an 
applicant's story provided the inferences drawn can be reasonably said to exist.  However, 
plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented 
are outside the realm of what could reasonably be expected, or where the documentary  
evidence demonstrates that the events could not have happened in the manner asserted by the 
claimant.  
 
[43]  I find the appellant’s testimony on the timing of his separation from his sponsoring wife 
was inconsistent.  His testimony that they separated towards the end of 2002 contradicts his 
divorce document, immigration -related documents and previous sworn statements before the ID 
and this Panel Member .  In immigration documents he made written declarations and in his 
hearings before the ID and the IAD he swore  to tell the truth, yet he now says that he was not 
telling the truth.  His explanation for the contradiction is not reasonable.  I do not find it 
                                                                 
45  Supra, footnote 44.  
46  XXXXXXXXX  v. Canada (Minister of Employment and Immigration) , [1980] 2 F.C. 30 2 (C.A.).  
47  XXXXXXXXX v. Canada (Minister of Employment and Immigration) , [1994] F.C.J. No. 415 (F.C.A.).  
48  XXXXXXXX v. Canada (Minister of Citizenship and Immigration),  [2001] F.C.J. No. 1131, at paragraph 7.  
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 plausible that the appellant, having been put on notice by the CIC officer that the timing of his 
separation from his sponsoring wife - one  week after  landing - was a matter of concern, did not 
indicate an alternate date of separation or protest that statement prior to the second sitting of his 
hearing before the IAD.   It is also not plausible that he would not contradict the separation date 
at the admissibility hearing or even at the first sitting of his hearing before the IAD.  I note that 
his sister’s sworn testimony at this hearing contradicts her earlier sworn testimony before the ID.   
I do not find her tes timony regarding the separation date to be reliable because she is biased, 
clearly in favour of ensuring her brother is not removed from Canada.  For these reasons, I do 
not find his testimony on the timing of his separation from his sponsoring wife to be credible.  
The timing of the separation is material to determining whether the marriage was a marriage of 
convenience.     
 
[44]  Member XXXXXXX made the following finding the reasons for the breakdown of the 
appellant’s  marriage to Ms. XXXXXX:  
 
I find on a bal ance of probabilities that the reasons for the marriage breakdown are spurious 
and unsatisfactory.  The reason appeared conjured up for the sake of putting forward a 
credible explanation for the break up, and this fails.  
 
I note in particular the lack of d etail, specificity, context and cogency to the story.  Despite 
attempts to get some clarity the story stayed the same; the visitor was unnamed; the 
circumstances of the outing were left unspecified; the legitimacy or the illegitimacy of Ms. 
XXXXXX’s concer ns were not addressed and so the apparent paucity in articulating what the 
problems were only points to a story engineered simply to assuage the Panel, or to deflect 
suspicion about the real motivation for marriage.49 
 
[45]  At this hearing the appellant testifie d that Ms. XXXXXX was very argumentative; he gave 
examples such as spilling water while brushing or bathing and wearing shoes in the house.  He 
said she did not  like everything he did and threatened to call the police; she also did not  enjoy 
sex with him.  He testified that he was going out with a friend , XXXX , to see tournaments, leaving 
early and returning in the evening, at different playgrounds in Brampton and Malton; he would 
smoke cigarettes.  She complained about him going out for so long  and his smo king, which he 
                                                                 
49  Appeal Record, page 10.  
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 said he started doing when he came to Canada.  He provided more details but not spontaneously; 
he provided information as asked.  He said she did not  want his friends visiting him.   I find that 
his test imony at the hearing partly makes up f or the deficiencies in his reasons for the marriage 
breakdown as found by Member XXXXXXX.  
 
[46]  I note that at his interview with CIC, the appellant is described as hesitant and was not 
able to explain how all his reasons  for the marriage breakdown  could have o ccurred in one  week.  
He said it was because his health was down.  
 
[47]  I note that the petition indicates that the ground for divorce is separation:  “ The spouses 
have lived separate and apart since 18 May 2002 ” and does not state any reasons for the 
separati on.50  Even if the date of separation is later than the date in the petition, as per the 
appellant’s and his sister’s revised version of the timing of the separation, it still appears that the 
divorce was initiated in advance of the statutory requirement of  one year separation.  Member 
XXXXXXX found as follows:  
 
It appears that the divorce was initiated in advance of the statutory requirement of one year 
cohabitation – or one year residence, sorry, in Ontario.51 
 
[48]  This indicates that the divorce was rushed.  
 
[49]  Appellant’s counsel pointed to a failure to note his illiteracy in Member XXXXXXX’s 
decision where it reads:   
 
… it appears that Mr. XXXXX’s education was actually higher than Ms. XXXXXX’s and so does 
not satisfactorily explain what the problem really was. ”52   
 
[50]  The CAIPS notes show that the appellant did not know about his computer courses.53 
                                                                 
50  Appeal Record,  page 146.  
51  Ibid., page 13.  
52  Ibid., page 12.  
53 Ibid., pages 171 to 174.  
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 [51]  The appellant’s sister testified that attempts at reconciliation were made; she went to see 
Ms. XXXXXX twice without success.  There is very little evidence that his mo ther was not involved 
in reconciliation efforts.  The petition for divorce does not indicate efforts to reconcile.54 
 
[52]  I do not  find it credible that Ms. XXXXXX would enter a quickly arranged marriage and not 
afford the appellant, who has never been in Canad a, more than a week in Canada to adjust to 
and/or adapt to her, a wife he  has barely spent any time with, and a new home in a new country.  
 
[53]  The appellant married XXXXXXXXXXXXXX, thirteen months after the divorce became 
effective.  Member XXXXXXX found that  “this is also a relatively short period of time.”55  
Appellant’s counsel submitted the appellant was already 36 years old by then and asked how 
long he should have waited before remarrying.   
 
[54]  Minister’s counsel submitted that  regardless of how long the a ppellant stayed with his 
sponsoring wife after landing the appellant married his first wife and the appellant’s sister, 
XXXXXXXXX, married his sponsoring wife’s brother, HaXXXXXXXXXXXXXXXXXXXX, as part of a quid 
pro quo  arrangement, thereby securing perman ent residence for himself and for his sponsoring 
wife’s brother.   
 
[55]  Minister’s counsel pointed out that the petition for divorce indicates that Ms. XXXXXX’s 
surname at birth was XXXXXXX  The appellant’s and Ms. XXXXXX’s marriage certif icate states that 
her father’s name is late XXXXXXXXXXXXX and the full address is Village Janoiala Guru.57   
 
[56]  HaXXXXXXXXXXXXXXXXXXXX parents’ names and addresses are indicated on his request for 
exemption for visa requirement form.58  He applied as a spouse of a Canadian  citizen or a 
permanent resident. XXXXXXXXX sponsored XXXXXXXXX for permanent residence when he was 
                                                                 
54  Appeal Record, page 147.  
55  Ibid., page 13.  
56  Ibid., page 147.  
57  Ibid., page 167.  
58  Ibid., page 170.  
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 already in Canada.  His father’s name is XXXX, XXXXXXXXXX.  XXXXXXXXX lived in Village Jandiala 
Guru in India.  His addresses in Canada include 3842 Bayswater Court  (from December 2000 to 
January 2001) and 28 Masmuth Street, Brampton (June 2000 to December 2000).  Appellant’s 
counsel submitted that the appellant’s address was 28 Nasmith Street, Brampton ; not “Masmuth 
St.” .  On a balance, I find “Masmuth ” is an error and that this is the same street as “Nasmith ”.  
The address  “Masmuth” is typed and the letters “m” and “n ” as  well as “u” and “i” are side by 
side on a keyboard.  
 
[57]  The record of solemnization of marriage between XXXXXXXXXXXXXXXXXXXX and RXXXXXXXXXXXXXXXXXXXX  indicates that they were married on December 23, 2000.59  The appellant’s mother 
and his sister , XXXXXXXXX , landed on November 1, 2000.60  XXXXXX approached Ms. XXXXXX for the 
purpose of marriage in the same month.61  The appellant and Ms. XXXXXX married som e two and 
half months later.    
 
[58]  The appellant’s immigrant application form from December 2001 indicates XXXXXXXXXXXXXXX as his sister and her address as 7514 Rockhill Road.  XXXXXXXXX’s visa exemption form 
which was received by CIC on July 12, 2001 indicat es 7514 Rock Hill Road as his current 
address in Canada.   
 
[59]  The appellant’s sister , XXXXXX , admitted that her sister , XXXXXXXXX , lived with her at the 
Bayswater address until the middle of December 2000; she moved out because she got married 
to XXXXXXXXX, less than two  months after landing in Canada.  XXXXXX said she did not  know the 
other parts of XXXXXXXXX’s name.  She said she did not  meet any of XXXXXXXXX’s family , yet she 
attended their wedding; she said they probably were there but she did not  care to  meet them. 
XXXXXX admitted she arranged the appellant’s wedding yet she did not know if his sponsoring wife 
was her sister’s husband’s sister.  I do not find it credible that she would attend XXXXXXXXX’s 
wedding if she was opposed to the wedding and is no w estranged to her.  In arranged marriages, 
                                                                 
59  Appeal Record, page 168.  
60  Ibid.,  page 16.  
61  Ibid., page 16.  
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 she admitted a family background check is conducted.   She named his sponsoring wife’s parents 
XXXXXXXXXXXXX and XXXXXXX, which are the same first names of XXXXXXXXX’s parents as per his 
application for a waiver for a visa.62  She also named Jandiala Gura as their village.   I do not  find 
it credible that she would know this information but not the other parts of XXXXXXXXX’s name.  
Even after confronted with the information contained in his application for a waiver for a visa, 
XXXXXX claimed that she did not know whether these two  individuals are the sponsoring wife’s 
mother and father.  Even if she did not  know before, I do not find it plausible that she would  not 
find out given that the appellant and his sister wer e asked about the relationship between the 
appellant’s wife and his sister’s husband at the admissibility hearing.  She denied that XXXXXXXXX 
lived with her; she explained that that he lived at her address  “is in his papers but not ours ”.   
 
[60]  Appellant’s  counsel submitted that there was no evidence that they are related, except 
common parents’ names.  He submitted it was not clear if they were the same people; it is not 
uncommon in the Indian community that people have the same names and the same villages.  It 
was not established that XXXXXXXXX is the brother of the appellant’s sponsoring wife.  However, 
he submitted that even if it is accepted, though it is not, that this is a case of reciprocal 
marriages, what happened to the other marriage; the appellant a nd the sponsoring wife stayed 
together for over six months.  There is no evidence of what happened with the other marriage.   
 
[61]  The appellant at first did not mention a second sister in Canada.  Later he testified that he 
has a  second sister who is estrange d because she married against the family’s will; he did not  
belong to the same caste.  He said he did not  know if she was alive and that he never saw her 
after she left the house.  He learned that she married this guy when he came to Canada.  He said 
that he does  not remember if XXXXXXXXX ever lived with XXXXXX.  Later he said he was not sure 
but that she might be in Vancouver, she is married and does  not know if she has children.  
However, his immigrant application form from 2001 and his pre -hearing person al information 
form63 from December 2005 indicate XXXXXXXXX as his sister.  She married in December 2000.  
It is not credible that he could mention her in these two forms but did not initially mention her to 
                                                                 
62  Appe al Record, page 169.  
63 Ibid., pages 129 to 135.  
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 the Panel.  When asked if XXXXXXXXX is his sister ’s husband, the appellant testified he did not  
remember the name of his sister’s husband.  He denied that XXXXXXXXX is his sponsored wife’s 
brother because she did not  tell him she has a brother; he denied that they are related; and he 
denied being related  to XXXXXXXXX.  
 
[62]  On a balance, I find that there was a reciprocal marriage because I do not find it credible 
that had the marriage been genuinely arranged, with a view to the marriage lasting, that the 
appellant and XXXXXX would not know the precise detail s of the appellant’s sponsoring wife’s 
immediate family.  This indicates to the Panel  that the appellant lacked knowledge of and 
contact with his sponsoring wife’s family, which is to be expected in an arranged marriage.  
 
[63]  I accept that even if it was a rec iprocal marriage it does not mean that the appellant’s 
marriage to his sponsoring wife was not a real marriage.  A reciprocal marriage does not in of 
itself equal a non -genuine marriage.  However, it is a factor in assessing primary purpose.   I am 
in agre ement with Member XXXXXXX’s finding on the motivation for the marriage , which also 
supports my finding that the marriage’s primary purpose was to acquire status or privilege under 
IRPA : 
 
…there’s evidence of a prior failed attempt to obtain permanent resid ent status by Mr. XXXXX.  
The marriage to Ms. XXXXXX earned him a place in the family class with the consequent 
privilege of acquiring permanent resident status in Canada.  
 
Clearly, his chances of succeeding as an independent application [sic] for permanen t 
residence were  [sic] carefully circumscribed by his lack of a higher education and skills.  By 
virtue of his age as well he could not be sponsored by his sister as the depend ant [sic] of his 
mother.  
 
In fact, as I stated, that attempt had been made but h ad not succeeded because he was too old.  
This left marriage to a permanent resident or Canadian citizen as the only objective means by 
which Mr. XXXXX could acquire permanent residence in Canada.  Therefore, it is not at all 
surprising that this is what h e ultimately did.  
 
There was also a significant pull factor or inducement for Mr. XXXXX to come to Canada.  His 
mother and two sisters were here in Canada and therefore family reunification on a balance of 
probabilities was a motive for the marriage to Ms.  XXXXXXXXX 
 
                                                                 
64 Appeal Record, page 16.  
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 [64]  Contrary to appellant’s counsel submission, at this hearing, the onus is not on the 
Minister but on the appellant to establish that the decision is legally invalid.  On a balance of 
probabilities, after having considered the oral and documentary  evidence and both parties’ 
submissions, I find that the appellant made a misrepresentation by presenting his marriage to Ms. 
XXXXXX as genuine by way of his application for permanent residence and his statements at the 
visa post interview; this fact was m aterial and relevant in determining whether he was a member 
of the family class and on that basis entitled to be granted permanent resident visa.  He was in 
fact granted a permanent resident visa and landed in Canada, inducing an error in the application 
of IRPA .  Simply put, by misrepresenting a material and relevant fact he was found eligible to 
come to Canada and consequently gained permanent resident status.  Therefore he is a person 
caught by section 40(1)(a) of IRPA .  Member XXXXXXX’s decision to make  a removal order is 
legally valid.   
 
Humanitarian and Compassionate Grounds  
 
[65]  The appellant’s counsel argued that humanitarian and compassionate grounds warrant 
special relief.  
 
[66]  Section 67(1)  (c) of IRPA  reads:  
 
Appeal allowed  
 
67.  (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the 
time that the appeal is disposed of,  
… 
 
(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.  
 
[67]  The onus is on the appellant to show why he should not be removed from Canada.  In 
addition to the best interests of a child directly affe cted, the decision in XXXXXXX as confirmed in 
                                                                 
65 XXXXX, Marida v. M.E.I.  (IAB T84 -9623), XXXXXXX, XXXXXXXXX, XXXXXXXXX, August 20, 1985.  
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 Chieu66 outlines a number of non -exhaustive factors that should be considered when the IAD  
exercises its discretionary jurisdiction in removal order appeals, as follows:  
 
(i) the seriousness of the offence or offence s leading to the removal order;  
 
(ii) the possibility of rehabilitation, or, alternatively, the circumstances surrounding the 
failure to meet the conditions of admission;  
 
(iii)  the length of time spent, and the degree to which the appellant is established in Canada;  
 
(iv)  the family in Canada and the dislocation to the family that removal would cause;  
 
(v) the family and community support available to the appellant; and.  
 
(vi)  the degree of hardship that would be caused to the appellant by the appellant’s return to 
his or her coun try of nationality.  
 
[68]  In cases involving misrepresentation, it is important to assess whether the 
misrepresentation was intentional or simply inadvertent or careless.67 
 
[69]  The Panel  also considered the objectives of IRPA .68 
 
[70]  Additionally, the Panel  is guided in the exercise of its humanitarian and compassionate 
jurisdiction by the XXXXXX  case. which states:  
 
…those facts, established by the evidence, w hich would excite in a reasonable man in a 
civilized community a desire to relieve the misfortunes of another —so long as these 
misfortunes warrant the granting of special relief from the effect of the provisions of the 
Immigration Act. 69   
 
The Misrepresen tation  
 
[71]  I find that the appellant was not straightforward about the misrepresentation and therefore 
shows a lack of remorse and insight into his actions.  Minister’s counsel submitted that the 
appellants’ misrepresentation amounted to “deliberate fraud.”  
 
                                                                 
66  XXXXX v. Canada (Minister of Citizenship and Immigration) , [2002] S.C.C. 3.  
67  Villareal,  Teodor  v. M.C.I . (F.C.T.D., no.IMM -1338), XXXXX, April 30, 1999.  
68  See section 3(1) of IRPA . 
69  XXXXXX  v. Canada (Minister of Manpower and Immigration ) (1970), 4 I.A.C. 338 (I.A.B.).  
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 [72]  The Panel  finds the nature of the misrepresentation to be very serious; the appellant 
would have never landed in Canada as a member of his sponsoring wife’s family class; he may 
have also not landed on the ground of inadmissibility for misrepresentation.   
 
[73]  The appellant was not straightforward regarding the nature of his marriage to Ms. XXXXXX.  
Instead, he preferred to admit misrepresenting the date of separation at the admissibility hearing 
and at this hearing.     
 
[74]  Contrary to the appellant’s counsel’s submission, I do not find that the misrepresentation 
was inadvertent; instead I find it was done deliberately. The seriousness of his misrepresentation 
and his lack of remorse is a factor strongly against granting the appellant special relief.  
 
Establishme nt 
 
[75]  In assessing establishment, the Federal Court has held that relevant considerations will 
include:70 
 
(i) length of residence in Canada;  
(ii) the age at which one comes to Canada;  
(iii)  length of residence elsewhere;  
(iv)  frequency of trips abroad and the quality of contact s with people there;  
(v) where one is educated, particularly in adolescence and later years;  
(vi)  where one's immediate family is;  
(vii)  where one's nuclear family lives and the ties that members of the nuclear family have 
with the local community;  
(viii)  where the individual l ives;  
(ix)  where his friends are;  
(x) the existence of professional or employment qualifications which tie one to a place; 
and,  
(xi)  the existence of employment contracts.  
 
                                                                 
70  XXXXXXXXX, Russell v. M.C.I.  (F.C.T.D. , no. IMM -4486 -94), Reed, May 12, 1995, at 10  
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 [76]  The appellant landed  eight  years ago, at the age of 33.  He has a grade 12 education from 
India.71  He has been marginally employed, delivering papers to houses and working in a factory.  
There is some evidence that he has received employment insurance benefits72 for a very brief 
period but there is very little evidence to indicate that he is a burden o n the social assistance 
system.  He has been involved at a Gudwara.73  He said he does  not have a driver’s license  
though he tried to get one.  
 
[77]  Based on his testimony and Dr. XXXXXXXX ’s report , the appellant is partially financially 
dependent on his family  in Canada.   His wife and child live in India and he goes back to India.  
 
[78]  On a balance, I find that the appellant has demonstrated, even taking into account his 
medical issues, little establishment in Canada.  This is not a factor in his favour.  
 
Dislocat ion to Family in Canada  
 
[79]  The appellant’s sister testified at the hearing in support of his appeal.   She has a husband 
and children.   The appellant lives with his mother and his sister and her family (husband and his 
father and their  two  children) in Canada .  His mother visits India every two to three  years.  I note 
that she was not at the hearing in support of his appeal.  I accept that he is very close to his sister, 
who is actively involved in his life and in his immigration matters.  
 
[80]  The appellant has an other sister in Canada with whom he allegedly broke ties because she 
married against the family’s will.  
 
[81]  Therefore, I find that the appellant has family and community support in Canada.   
 
[82]  This is a factor in favour of exercising special relief for him.   
 
                                                                 
71  Appeal Record, page 132.  
72  Ibid., page 133.  
73  Exhibit A -6, page 1.  
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 Hardship to the appellant  
 
[83]  He arrived in Canada at the age of 33 and is now 41 years old.  He has spent the majority 
of his life in India.  The appellant said he has returned to India two to three  times since landing 
in Canada; he went for seven or eight months in 2005.  His testimony on his return visits was 
vague; he could  not remember a lot of details.  However, he did say that his mother was with 
him.   He has a wife and child in India; he also has a brother, nephews and nieces in India.  
 
[84]  The appellant landed in Canada.  Appellant’s counsel submitted Dr. XXXXXXXX ’s report 
points to the psychological risk if deported:74   
 
Mr. XXXXX requires a long -term, stable support system, in order to promote his optimal 
functioning in the wake of a head injury, and he  enjoys this in Canada with his mother and 
sisters.  Due to the patient’s aforementioned symptoms...this man is highly vulnerable to 
psychological hardship if he is to be deported.  The cumulative effects of his emotional 
stressors would likely prove overw helming for him, and encourage a collapse in his overall 
psychological functioning.  In comparison, if is allowed to remain in Canada, I believe that 
this man’s anxiety and depressive symptoms will further improve, and he will strive to lead a 
positive lif e in Canada with his family, despite the permanent challenges he will face due to 
his serious, traumatic accident.  In conclusion, Mr. XXXXX is at psychological risk if he is 
deported.  
 
[85]  The appellant testified that due to his accident he has many medical p roblems, which has 
caused him to be hospitalized in India and in Canada. Based on his testimony and the 
documentary evidence75, I accept that the appellant suffers medical issues.  
 
[86]  The appellant had an accident in India in 1999 and was treated there for his  injuries 
sustained in this accident until he came to Canada.  He also said that he visited his doctor every 
month while he was in India in 2005 because of his injuries.  He also said that “ everytime I go to 
India they prescribe him medicine ”; “ even when I  go back now I see Dr. XXXXX ”.  He said Dr. 
XXXXX is the same doctor who treated him before he came to Canada.  The appellant said that he 
has new treatment with doctors here.   There is little evidence that medical care is not available 
                                                                 
74  Exhibit A -3, page 4.  
75  Exhibit A -2. 
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 for the appellant i n India or that it is better in Canada.  Regardless, not having the best health 
care available does not equal hardship  where adequate health care is available .  
 
[87]  The appellant has his brother, his wife and his son in India.  The appellant’s sister 
XXXXXXXXXX in cross -examination that he has two  brothers in India.  He and his brother own property 
in India; his wife and his son have a separate room in it.  He said his family has farm land as well 
in India.76  His brother supports his wife in India.  He has anot her brother in the UK.   His mother 
travels back to India.  
 
[88]  Hardship has to be more than an inconvenience or the predictable costs associated with 
having to leave Canada.  There was insufficient evidence presented in order for me to find that 
the appellant would face undue hardship if removed from Canada.  This is not a factor in his 
favour.  
 
Best interests of a child  
 
[89]  In making its decision, the Panel  is “alert, alive and sensitive” to, and has not minimized the 
best interests of children who may be adverse ly affected by this decision.77  In assessing the best 
interests of the child, the Panel  has  considered the benefits to the children of the appellants’ non -
removal from Canada, as well as the hardship the children would suffer from either the appellants’ 
removal from Canada or from the voluntary departure of the children should they accompany the 
parent or appellants abroad.78  
 
[90]  The appellant said he has a 3 -year old son.  He was born in India and lives with his mother 
(his wife), his brother and his sister i n law.  The appellant said he has never seen his son in person.  
His sister said he has  not gone to see his son because of the stress of this case.  
 
                                                                 
76  See also Appeal Record, page 173.  
77 XXXXX v. Canada (Minister of Citizenship and Immigration) , 1999 CanLII 699 (S.C.C.) , [1999] 2 S.C.R. 817, at 
paragraph 75.  
78  XXXXXXXXX v. Canada (Minister of Citizenship and Immigration , 2002 FCA 475 (CanLII) , 2002 FCA 475 at para 4.  
2010 CanLII 98220 (CA IRB)
IAD File No. / No de dossier  de la SAI :  TA8 -13984  
Client ID No. / No ID client :  3226 -1541  
 
27 
 
 [91]  The appellant lives with his niece and nephew (between the ages of 9 -13); they live with 
their parents.  
 
[92]  The courts are clear on the importance of considering the best interests of a child; 
however, they have also made it clear that the presence of children is not determinative, nor do 
the children’s best interests always outweigh other factors.79   
 
[93]  I have cons idered that if the appellant were removed, he would no longer be near his 
niece and nephew.  However, they live with their parents and there was no evidence to indicate 
that they would not be able to visit the appellant in India.  The appellant, if removed  to India, 
would be able to see his son and be a part of his child’s life.  I noted that if he were removed, he 
would not be able to sponsor his son to Canada.  However, other than his separation from his 
father, there is no indication that his son’s needs  are not met in India.  This is the country where 
he was born and that he i s familiar with.  
 
[94]  After having carefully examined and weighed the best interests of children in this case, I 
do not find that their interests support the granting of special relief to the appellant.  
 
CONCLUSION  
 
[95]  This appeal is about the integrity of the immigration system.  IRPA  legislates the removal 
of permanent residents for misrepresentation.  However, I note that IRPA  allows an appeal to the 
IAD for special relief in such case s, which indicates that not all misrepresentations must 
necessarily result in an enforced exclusion order to protect system integrity.  
 
[96]  The appellant challenged the legal validity of the ID Member’s decision; having 
considered the evidence and the parties’  submissions, I find that this decision is legally valid.   
 
                                                                 
79  XXXXX v. Canada (MCI ), [1999] 2 S.C.R. 817 at paras 63 and 75; XXXXXXX, supra, at paras 11 -13 and 29; Qureshi 
v. Canada (MCI ), [2000] F.C.J. No. 1551 at paras. 18, 19, 26 (FCTD).  
2010 CanLII 98220 (CA IRB)
IAD File No. / No de dossier  de la SAI :  TA8 -13984  
Client ID No. / No ID client :  3226 -1541  
 
28 
 
 [97]  Placing all of the factors above in the balance, I find that there are insufficient 
humanitarian and compassionate considerations to warrant special relief.  I have found not 
credible the appella nt’s explanations surrounding the misrepresentation.  Moreover, the 
misrepresentation resulted in the appellant obtaining status under IRPA : he was admitted to 
Canada as the spouse of his sponsoring wife.   
 
[98]  The Panel  has not arrived at this decision witho ut carefully assessing and weighing the 
factors above.  I have given significant weight to the nature of his misrepresentation, as well as 
his lack of forthrightness with regards to that misrepresentation.  That his hardship is not outside 
of what is to be  expected if one is removed from Canada has also received considerable weight.  
 
[99]  The Panel  has considered the possibility of a stay  of the exclusion order .  Weighing the 
factors above, the Panel  finds that a stay  is not an appropriate disposition in the ci rcumstances.  
 
[100]  The relevant factors, as identified in Ribic  and as canvassed in the case law, simply must, 
on a balance, support the exercise of discretion.   The negative factors in this case outweigh the 
few positive factors and , as such , I am not prepared  to exercise my discretion pursuant to section 
67(1)(c) of IRPA  and allow the appeal or to stay the removal order pursuant to section 68(1) of 
IRPA .   
 
[101]  The appellant’s appeal is dismissed.   
 
 
2010 CanLII 98220 (CA IRB)
IAD File No. / No de dossier  de la SAI :  TA8 -13984  
Client ID No. / No ID client :  3226 -1541  
 
29 
 
 NOTICE OF DECISION  
 
 The appeal is dismissed . 
 
    “XXXXXXXXXXXXXX”   
   XXXXXXXXXXXXX  
  
 
   October 20, 2010    
   Date  
 
 
Judicial Review – Under section 72 of the Immigration and Refugee 
Protection Act, you may make an application to the Federal Court for 
judicial review of this decision, with leave of that Court.  You may 
wish to get advice from counsel as soon as possible, since there are 
time limits for this application  Contr ôle judiciaire – Aux termes de l’article 72 de la  Loi sur 
l’immigration et la protection des réfugiés, vous pouvez, avec 
l’autorisation de la Cour f édérale, présenter une demande de contrôle 
judiciaire de la décision rendue.  Veuillez consulter un conseil sans 
tarder car cette demande doit être faite dans un délai précis.  
 
2010 CanLII 98220 (CA IRB)

