The Federal Court reviewed the
refusal of Harjit Singh’s spousal sponsorship permanent residence application.
Although the officer accepted that Mr. Singh and his Canadian wife were in a
genuine marriage, the application was refused because Mr. Singh was criminally
inadmissible following a drinking-and-driving conviction. The officer also
concluded that humanitarian and compassionate considerations did not justify an
exemption. The Court found the H&C assessment unreasonable because
important evidence concerning Mr. Singh’s criminal history, remorse, and the
consequences of separating the married couple was inadequately considered.
Key Principle
When assessing H&C relief
from criminal inadmissibility, an officer must consider the applicant’s
circumstances as a whole, including a previously clean criminal record,
evidence of remorse, and the particular consequences of separating spouses. A
conjugal relationship cannot reasonably be treated like an ordinary
relationship with relatives or friends because important aspects of marriage
cannot be maintained through telephone, email or social media, particularly
where the couple intends to start a family.
Background
Mr. Singh, an Indian citizen,
entered Canada in 2011 and made a refugee claim. He married Canadian citizen
Julie Elizabeth Cohen in September 2015 and applied for permanent residence
through spousal sponsorship in June 2016.
In March 2017, Mr. Singh was
charged with impaired driving and driving over the legal blood-alcohol limit.
The impaired-driving charge was withdrawn, while he pleaded guilty to the
remaining summary conviction offence. He received a fine, victim surcharge and
one-year driving prohibition. He paid the fines immediately, participated in
rehabilitation, and later obtained a restricted licence using an ignition
interlock device.
The officer accepted the marriage
as bona fide but found Mr. Singh criminally inadmissible and concluded that the
H&C considerations were insufficient to overcome that inadmissibility.
Court Findings
• Clean Criminal Record Was a
Relevant H&C Factor
The officer reasonably considered
the seriousness of Mr. Singh’s offence and incomplete rehabilitation. However,
there was no meaningful indication that the officer recognized he had no
previous criminal history. The Court found that his otherwise clean record was
a relevant factor that should have formed part of the H&C assessment.
• Remorse Was Not Meaningfully
Considered
Mr. Singh had expressed deep
remorse for his conduct. While genuine rehabilitation may need to be
demonstrated over time, the officer’s decision did not mention his remorse at
all and focused only on court-mandated rehabilitation. The Court held that overlooking
this relevant factor impaired the transparency of the decision.
• Separation of Spouses
Required Individualized Assessment
The officer characterized
separation as a general consequence of relatives living in different countries
and suggested communication technology could maintain relationships. The Court
found this inadequate for spouses. Mr. Singh and Ms. Cohen intended to start a
family, and important aspects of their marriage could not be maintained
remotely. Alternatively, if Ms. Cohen accompanied him to India, her health
concerns and access to medical care required deeper consideration. She faced a
difficult choice between separation from her husband and relocating to an
unfamiliar country with more limited healthcare options.
Outcome
The Federal Court granted
judicial review, set aside the refusal, and remitted the application to a
different officer for reconsideration. No serious question of general
importance was certified.
Case
Citation:
Singh v. Canada (Citizenship and Immigration), 2018 FC 744 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst





