Grewal v. Canada

Appearances:

M. Berger, for the appellant.
P. Retsinas and C. Dombrady, for the respondent.

1. Jaswinder Singh GREWAL, the appellant herein, was ordered deported from Canada pursuant to paragraph 32(5)(a) of the Immigration Act [See Note 1 below] (the “Act”) as a consequence of having been found to be a person described in subparagraph 19(1)(c.1)(ii) of the said Act by way of a Deportation Order dated March 4, 1996 at Niagara Falls, Ontario, since the appellant is a person who there are reasonable grounds to believe has committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more. The appellant appealed the Deportation Order pursuant to the provisions of paragraph 70(3)(a) and (b) of the Act. At the commencement of these proceedings, Counsel confirmed that the appellant is challenging here both the legal validity of the Deportation Order in question and is invoking the discretionary jurisdiction of the Appeal Division.

Note 1: As enacted by R.S.C. 1985, (4th Supp.), c.28, s.18.

2. The appellant was represented throughout these proceedings by Mr. Max Berger, Barrister and Solicitor. The Minister for Citizenship and Immigration was represented by two Appeals Officers, Ms. Pat Retsinas and Mr. Charles Dombrady. The hearing was conducted in the English language, a qualified interpreter assisting the appellant and his witnesses as required.
3. By way of clarification, the offence in question in these proceedings is set out as follows within the Deportation Order comprising part of the file Record:

“Subparagraph 19(1)(c.1)(ii) in that there are reasonable grounds to believe that you have committed outside Canada an act that constitutes an offence under s. 190.25 of the New York Penal Law, “CRIMINAL IMPERSONATION IN THE SECOND DEGREE”, an offence that if committed in Canada, would constitute an offence that may be punishable under s. 403 of the Criminal Code, “PERSONATION WITH INTENT” by a maximum term of imprisonment not exceeding ten years.”

4. At the commencement of these proceedings there were presented to the panel certain documents which were subsequently marked as exhibits to the hearing. These documents were submitted by Counsel on behalf of the appellant and were marked respectively as Exhibits A-1 to A-4 inclusive. No objection was registered by the Appeals Officers to the admission of these exhibits. There were no documents submitted by the Minister.
5. It is important to note at the outset that, as confirmed within the documentation comprising the Record and as confirmed by the oral testimony of the appellant during the hearing, Mr. Grewal was determined to be a Convention refugee by the Immigration and Refugee Board on January 17, 1995. A copy of the Notice of Decision of the Board was entered as an exhibit to the Immigration Inquiry held in this matter on March 4, 1996. Further, it is noted that the appellant is not a permanent resident of Canada.
6. Before presenting oral testimony, Counsel advised the panel that there is no dispute by the appellant with respect to the factual bases of the earlier Immigration Inquiry herein. He confirmed that the four witnesses to be presented for the purposes of testimony would be providing evidence by way of support of the equitable grounds of the herein appeal only. The legal validity of the Deportation Order, being questioned here, would be dealt with subsequently by way of oral submissions.
7. The appellant was the first of the four witnesses presented for the purpose of oral testimony here. He confirmed his original arrival in Canada on July 12, 1991 and his subsequent claim to Convention refugee status here. He initially resided in Montreal, where his initial inquiry into the matter of his Convention refugee claim was held. Subsequently, other than for a short stay in Vancouver and area, the appellant has resided mostly within the Metropolitan Toronto region, particularly in Malton. He resides there presently with a friend. He is working in construction work, for the present summer, but has worked during the earlier part of this year as a school bus driver for Khalsa Community School, Mississauga. He will be returning to this employment at the commencement of the new school year in September, 1996. The construction work in which he is presently involved provides him with income during the school-closing only. He provided some evidence concerning the nature of his work as a school bus driver and his personal satisfaction with that. He made reference to Exhibit A-4, correspondence dated June 20, 1996, prepared by the principal of Khalsa Community School where he is employed. This principal also appeared as a witness herein subsequently.
8. The appellant provided considerable evidence with respect to his religious lifestyle and his strong connection with and commitment to the local Sikh community. He spoke of his involvement with two local temples, the Sri Guru Singh Sabha temple at Malton and the Shromini Sikh Sangat temple in Toronto. Although the appellant is not involved in these temple communities in any executive or authoritative manner, he is most involved in service to the members of the communities within the context of temple activities. He explained how he is involved in the distribution of food to members of the congregation, how he cleans the shoes of adherents in attendance at the temple, and how he renders any other service that may be needed: “I make every endeavour to do it”. The description provided by the appellant suggests that his activities involve deeds of a most humble and service-oriented nature.
9. When confronted by Counsel with the possibility of his return to India, if the present appeal were not to succeed, the appellant responded that he has made his home here, that his parents are aged and are dependant on him. His safety is here, as he put it, effectively that he lives in safety in Canada, which, as the panel understands, he suggests would not be the case if he were to return to India. He spoke of having been tortured physically in India and of having been harmed physically as a result of his treatment there. The appellant emphasized here and subsequently in response to questions of the panel that he has no siblings and that he is the only source of support for his parents in India. Since the commencement of his employment with the Khalsa Community School, at the beginning of 1996, he has been sending a substantial sum of money to his parents monthly, at least five hundred dollars as the panel understands. His return to India would end such support and have apparently a negative impact upon the well-being of his parents.
10. In response to further questions of Counsel, the appellant spoke of having committed a “big blunder” here and that he “should be forgiven for what he has done”. He expressed a desire to stay in Canada, to live under Canadian laws, confirming that he would not break Canadian law in the future.
11. In response to questions asked by the Appeals Officer, Ms. Retsinas, the appellant advised that he wished to travel to the U.S.A. in November, 1995 in order to visit old friends residing there. These are friends not relatives, whom he knows from the days when he was living in his village in India. He explained in response to these questions and later in response to questions of the panel, that he has no relatives, even distant ones, in Canada and the U.S.A., all of them resident in India. The panel understood that the appellant felt very lonely, wishing very much to meet again with these old and very close friends, and therefore attempted with Canadian acquaintances to cross into the U.S.A.. He admitted to the Appeals Officer that the attempted entry into the U.S.A. was a matter of “bad judgement” on his part: “I should not have done it … I did… as such I stand for forgiveness”. He claimed that he did not know that what he was doing was wrong. He explained that, in India, such things are taken “casually”, not seriously. If he had been aware that this attempted entry into the U.S.A. with another person’s documentation were wrong, he would not have done so. When questioned as to why he would not simply have waited for the receipt of his own landing documentation, once processed, he said that he had been in Canada “five years”, that no one here knew him from India, that he had no family here, and that he wished therefore very much to see these people. Again, in response to a question of the panel, the appellant asserted that, in India, such a use of another person’s documentation would be considered nothing other than an “ordinary thing”. Such documents are not considered to be of any value in India, according to the appellant.
12. In response to further questions of the panel, the appellant confirmed the nature and regularity of his temple-related attendance and activities. He explained that he has attended at various temples, throughout his previous stay in Canada, whether in Montreal, in Vancouver or in Toronto, each morning and evening. In the case of his recent time in Toronto, he advises that he attends the temple each morning and evening, usually at the same temple during week days and at the second of the two temples in which he is involved on weekends, as the panel understood. He explained that this attendance and the activities related to his temple involvement are fulfilled by him as a consequence of his personal religious convictions only. The panel notes here that, throughout his oral testimony and also throughout the remainder of these proceedings while other witnesses were testifying, the appellant exhibited an air of humility and of passive resignation.
13. The second witness called by Counsel was Dr. P.S. Sandhu, Principal of Khalsa Community School, Mississauga. He informed that he has been in his administrative position at the school since November, 1995. In February, 1996 he appointed the appellant as school bus driver. He provided information concerning the extensive nature of the responsibilities of the appellant with respect to that position and also advised that the appellant at times performs the role of lunch time supervisor for the pupils of the school. He described the appellant as an honest and reliable worker, who fulfils his duties without difficulty and, as the panel understood, with some distinction. He explained how the students are very much enamoured of the appellant and how they would miss him very much if he were to depart Canada. Dr. Sandhu also provided detail with respect to the religious activities of the appellant, referring to him as being very attentive to these matters. His testimony corroborated, in substantial detail, the brief information provided within his correspondence comprising Exhibit A-4. Dr. Sandhu confirmed that part of this building where his school is located comprises a Sikh temple. This is the place where apparently he has observed the appellant in performance of religious activities. Although he has observed him in other temples within the Metropolitan Toronto region, as the panel understood, he is not aware of the details of the appellant’s involvement in those places.
14. The third witness presented by Counsel was Harpal Singh Mann, President of the Shromini Sikh Sangat Toronto, the author of the letter comprising Exhibit A-2. He advised that he knows the appellant from his involvement with the temple community in question here. He provided detail concerning the appellant’s volunteer service in this community, referring to the appellant as being a good and religious man. He explained that he is aware of no complaints about the appellant in the community and emphasized the voluntary nature of the appellant’s service there. In response to questions of the panel, it became quite evident that this witness was not aware of the existing Deportation Order against the appellant and of the bases of the proceedings in question here. He advised in a very frank manner that he knows the appellant only within the context of his particular temple community. He explained that he was requested to come as a witness to speak to the matter of the appellant’s character and evidently was most prepared to do so.
15. The fourth and last witness presented by Counsel was Hardarshan Singh, priest of the Sri Guru Singh Sabha temple in Mississauga. Correspondence prepared by the President of that particular temple community comprises Exhibit A-1 herein. Mr. Singh explained his knowledge of the appellant through the latter’s involvement with the temple in question. He provided some detail concerning the appellant’s involvement in that community, indicating that the appellant washes temple utensils and assists in the cleaning of temple premises. He explained that the appellant does “good work” and that there are no “objections” to his work. He emphasized that the appellant, as do other volunteers within this religious community, provides the services without the benefit of any financial remuneration. Mr. Singh pointed out that the community appreciates the appellant’s work, explaining that this is why the letter comprising Exhibit A-1 was prepared for these proceedings. In response to a question concerning the appellant’s character, Mr. Singh responded that “he’s fine”.
16. The panel notes here that it found the testimony of all three of the appellant’s witnesses to be most credible, sincere and trustworthy in nature. The panel was struck by their willingness to take time from their evidently busy personal lives in order to present evidence solely as to the character and lifestyle of the appellant. The panel found their testimony to be corroborative of some aspects of the appellant’s own testimony and to be of assistance in assessing the bases of the equitable grounds of this appeal.
17. In his final oral submissions, Counsel firstly made argument with respect to the appellant’s challenge to the validity in law of the Deportation Order herein. Effectively, Counsel re-iterated the arguments which he set out at the time of the immigration inquiries before Adjudicator K.J. Thomson. These arguments are of course outlined in the transcript of the inquiry, found within the Record here and are also dealt with at some length in the written decision of the Adjudicator. The panel therefore finds it not to be necessary to repeat these arguments in these reasons.
18. In her own final submissions, the Appeals Officer Ms. Retsinas requested that the Deportation Order be upheld in law, relying upon the reasoning found within the Adjudicator’s decision. She emphasized that there is no contest on the part of the appellant as to the facts of this case, as set out in the record of the immigration inquiry. She queried how it is that a person would be able to personate another person without being also “fraudulent”. She further queried that, if this is not a case of fraud, how is it that the appellant continued his personation of another person for a period of time, even while being questioned by American immigration authorities. The Officer suggested that the appellant “knew” that he was personating someone else at the time. Ms. Retsinas submitted that the test here is a “low threshold” one, and that such a test has been properly applied here.
19. After a detailed review of the oral submissions of both Counsel and of the Appeals Officer, Ms. Retsinas, and after a further detailed review of the arguments of Counsel as set out in the transcript of the immigration inquiry herein, and after further review of the written decision of Adjudicator Thomson, the panel finds itself to be in full agreement with the findings and conclusions of the Adjudicator and therefore concludes that the Deportation Order herein is indeed valid in law.
20. With respect to the appellant’s invocation of the discretionary jurisdiction of the Appeal Division herein, pursuant to the provisions of paragraph 70(3)(b) of the Immigration Act, the panel has taken note of the oral submissions of Counsel and of the Appeals Officer. Counsel emphasized particularly the character of the appellant and the embarrassment which the latter experienced as a result of the commission of the offence here. He made reference to the potential difficulties and hardships which the appellant and his family (in India) would experience if the appellant were required to return to his country of origin. He requested that the panel balance the seriousness of the offence here with the potential difficulties and hardship consequent to removal from Canada. He submitted that there are “sufficient equities” here upon which the panel could base a decision to allow this appeal on compassionate or humanitarian grounds.
21. The Appeals Officer suggested that the appellant had not satisfied the burden of proof on him pursuant to the provisions of paragraph 70(3)(b) of the Act. She submitted that the fact of the Convention refugee status of the appellant is only one factor, a limited one in her assessment, to be considered. She suggested that the appellant had jeopardized such status in Canada for the purpose of a “mere visit” with friends in the U.S.A.. She referred to the appellant’s employment history in Canada as being nothing special, something to be expected of all Canadians. She suggested that the appellant’s service within the Sikh temple communities, as set out in detail by the appellant and by his witnesses earlier, was to be expected of all Sikh faithful. She referred to the appellant as exhibiting the demeanour of an evasive and not straightforward person.
22. The panel has reviewed carefully and in detail the oral and documentary evidence submitted throughout these proceedings, as well as the documentation comprising the file Record, particularly the transcript of the immigration inquiry held earlier and the written decision of Adjudicator Thomson. The panel has also taken into consideration the various submissions presented by Counsel and by the Appeals Officer. Firstly, the panel notes the seriousness of the offence committed by the appellant in his attempt to enter unlawfully the U.S.A. through the use of another person’s identity documentation. Even though Counsel has attempted to characterize this as an offence of a civil as opposed to criminal nature, the panel finds otherwise. The panel notes that the appellant found himself in a particularly privileged position, one of trust. He had been permitted as a consequence of having been determined to be a Convention refugee to remain within the protection of the territorial boundaries of Canada, and had been permitted as well to apply for landing in Canada. During that time, the appellant benefited, as do other persons resident in Canada, from various opportunities. It was his responsibility to respect the laws of the Canadian jurisdiction. Through his actions on this occasion he failed in this responsibility.
23. However, having noted the seriousness of this matter, the panel also takes note of the circumstances within which the appellant finds himself presently. The panel has also reviewed the testimony of the three witnesses of the appellant, which, as noted above, the panel found to be particularly supportive of the appellant. Different than the Appeals Officer, who characterized the appellant’s demeanour to be evasive in nature, the panel found him to be a credible and trustworthy witness. The demeanour of the appellant, in the panel’s view, suggested deep remorse and embarrassment, consequent to the commission of the offence in question here and to the issuing of the Deportation Order against the appellant. The testimonies of the three witnesses presented here, particularly that of Dr. Sandhu, confirm and clarify to some extent this impression and understanding of the panel.
24. Therefore, in light of all of the above, the Appeal Division has determined that the Deportation Order herein is valid in law and has further determined to allow this appeal pursuant to the provisions of paragraph 70(3)(b) of the Immigration Act. In light of this decision to allow the appeal, the Appeal Division further orders that the Deportation Order herein be quashed pursuant to the provisions of paragraph 74(1) of the said Act.

“A. Tom Leousis”

Dated at Toronto this 20th day of December, 1996.