Date: 20040630
Docket: T-2755-95
Citation: 2004 FC 940
IN THE FEDERAL COURT
IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18 of the
Citizenship Act, R.S.C. 1985, c. C-29;
AND IN THE MATTER of a request for Reference to the Federal Court pursuant to section 18 of the Citizenship Act;
AND IN THE MATTER of a Reference to the Court commenced pursuant to
Rule 920 of the former Federal Court Rules, continued pursuant to Rule 169(a)
of the current Federal Court Rules, 1998, as required pursuant to Rule 501 of
the Federal Court Rules, 1998.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
MALKIAT SINGH also known
as Malkiat Singh Bhandol
Respondent
REASONS FOR ORDER AND JUDGMENT
INTRODUCTION
[1] By Request to Admit issued pursuant to Rule 255 of the Federal Court Rules, 1998[1] and dated the 4th of June, 2004, the Minister of Citizenship and Immigration (the "Applicant") requested that Malkiat Singh, also known as Malkiat Singh Bhandol, (the "Respondent") admit, for the purposes of this proceeding only, the truth of the following facts:
1. "Malkiat Singh, son of Ajaib Singh", referred to in exhibits A-5, A-6, A-8, A-9, A-10, A-29 and A-33, filed in this Reference, is the Respondent.
2. There was no further appeal from conviction by the Respondent.
3. The Respondent never returned to serve the unexpired portion of his sentence.
4. The Respondent obtained Canadian Citizenship by false representations or fraud or by knowingly concealing material circumstances.
[2] The exhibits referred to in the foregoing quotation are exhibits to testimony taken by this Court on Commission in Ludhiana, Punjab, India in March, 2002. They can be briefly described as follows:
- exhibit A-5 is a copy of a Charge Sheet listing charges against five persons including "...Malkiat Singh, son of Ajaib Singh, son of Dasaundha Singh, aged 17 years, by appearance 21 years, cultivator, resident of Rauwal..." and extensive reasons for conviction of all five persons charged;
- exhibit A-6 is a copy of reasons from the High Court of Punjab and Haryana, Criminal Appellate Side, sitting at Chandigarh on an appeal by Malkiat Singh, son of Ajaib Singh, son of Dasaundha Singh, 17 years resident of Rauwal, district of Ludhiana, concluding with a dismissal of Malkiat Singh's appeal from the convictions registered against him;
- exhibit A-8 is a copy of a notice of appeal by Malkiat Singh leading to the reasons and dismissal of his appeal that constitute exhibit A-6;
- exhibit A-9 is a copy of Malkiat Singh's petition for release on bail "... during pendency ..." of his appeal just referred to;
- exhibit A-10 is a copy of an order granting Malkiat Singh's petition for release on bail "... as he has already undergone more than four years of imprisonment and there is no likelihood of early hearing of the appeal. ...";
- exhibit A-29 is a copy of a notice of the release of Malkiat Singh on bail on or about the 30th of January, 1978; and
- exhibit A-33 is a copy of a surety bond for the release of Malkiat Singh on bail.
[3] In a response to the foregoing Request to Admit, dated the 7th of June, 2004, counsel for the Respondent advised:
... the Respondent, Malkiat Singh:
1. admits the truth of facts numbered 1, 2, 3 and 4 of the Request to Admit dated June 4, 2004 and filed herein, for the purpose of this proceeding only, reserving to himself all the protection that the law affords pursuant to Section 5 of the Canada Evidence Act and Section 13 of the Canadian Charter of Rights and Freedoms.
[4] Contemporaneously, counsel for the Respondent consented to the form of an order and judgment herein as follows:
WHEREAS, the Respondent requested a Reference to the Court pursuant to s. 18 of the Citizenship Act;
AND WHEREAS the hearing of the Reference, commenced pursuant to rule 920 of the former Federal Court Rules, continued pursuant to rule 169(a) of the current Federal Court Rules, 1998, as required pursuant to rule 501 of the Federal Court Rules, 1998, has begun;
WHEREAS, the Respondent in a Response to Notice to Admit Facts and a Response to Notice to Admit Documents, each dated April 30th, 1998 admitted the truth of certain facts and the authenticity of certain documents;
AND WHEREAS by the affidavit of Mark G. Mason, sworn June 8th, 2004, filed, certain of these documents have been received as evidence in these proceedings;
AND WHEREAS the evidence taken on Commission in Ludhiana, India in March, 2002 has been introduced into the trial record by Orders of the Court made on August 14th , 2002 and September 14th, 2003;
AND WHEREAS the Respondent has now admitted that he is "Malkiat Singh, son of Ajaib Singh", named in exhibits A-5, A-6, A-8, A-9, A-10, A-29 and A-33, filed in this Reference;
AND WHEREAS in two Applications for Permanent Residence completed by him, the Respondent failed to disclose that he had been convicted of crimes in India;
NOW THEREFORE, THIS COURT ORDERS AND ADJUDGES that the Respondent, Malkiat Singh, obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances.
[5] Following a brief hearing on the 21st of June, 2004, at which the Court was satisfied, after hearing from the Respondent and his counsel, that the Respondent understood the implications for himself and for his family members of the recent admissions on his behalf, when taken together with admissions made on his behalf some years ago, and on the basis of the consent order and judgment just quoted, that a consent order and judgment issue, a consent order and judgment issued reflecting that reasons would follow. These are those reasons.
[6] These reasons briefly outline the evidence before this Court leading the Court to conclude that the Respondent obtained his Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances.
SUMMARY OF THE EVIDENCE BEFORE THE COURT THAT HAS BEEN ADMITTED, THAT IS DRAWN FROM DOCUMENTS ADMITTED TO BE AUTHENTIC OR ADDUCED IN EVIDENCE TAKEN ON COMMISSION
[7] The Respondent was born on the 25th of January, 1952 in Rauwal, Punjab, India, the son of Ajaib Singh.[2]
[8] In March of 1974, there lived in Rauwal, Punjab, India, a young man, seventeen (17) years of age, known by the same name as the Respondent and described in documents introduced into evidence before the Court as "...the son of Ajaib Singh...". The young man was a citizen of India and was described as an "agriculturist", or farmer.[3]
[9] On or about the 25th of March, 1974, the Malkiat Singh, son of Ajaib Singh, resident in Rauwal participated with others in the abduction and murder of one Tej Singh. In the course of the abduction, three (3) other persons were wounded. Documentation adduced in evidence taken on commission at Ludhiana, Punjab, India, establishes to the satisfaction of the Court that the Malkiat Singh, son of Ajaib Singh just described, was charged with and convicted of offences, including murder, that he was sentenced to life imprisonment and imprisoned, that he appealed from his conviction, that after spending more than four (4) years in imprisonment, he was released on bail pending the determination of his appeal, that his appeal was dismissed and that, following that dismissal, he did not, as he had undertaken to do, "...present [himself] in front of Chief Judicial Magistrate, Ludhiana for serving my sentence."
[10] As earlier noted in these reasons, on the 7th of June, 2004, counsel on behalf of the Respondent, for the first time, admitted that the Respondent and "Malkiat Singh, son of Ajaib Singh" who was charged with and convicted of murder, among other offences, in relation to the abduction and murder of Tej Singh on or about the 25th of March, 1974, are one and the same person.
[11] According to the two (2) applications for permanent residence in Canada filed by the Respondent, one (1) in 1980 and one (1) in 1981, he was resident in West Germany between sometime in 1978 or 1979 and September, 1980. He entered Canada at Winnipeg, Manitoba, on the 7th of September, 1980 with visitor status until the 21st of November, 1980.[4]
[12] On the 20th of September, 1980, the Respondent married a Canadian citizen who, on the 10th of October, 1980, submitted an application to sponsor him for permanent resident or landed immigrant status.
[13] On the 22nd of October, 1980, the Respondent travelled to The Netherlands to complete outside of Canada his documentation for status in Canada.
[14] On the 30th of October, 1980, the Respondent submitted an application for permanent residence in Canada. On the face of that application for permanent residence, the Respondent answered "no" to the question "have you... been convicted of any crime or offence?"
[15] On the 7th of January, 1981, the Respondent submitted a second application for permanent residence, once again completed in The Netherlands. He again answered in the negative the question of whether he had ever been convicted of any crime or offence.
[16] On the 23rd of February, 1981, the Respondent reentered Canada at Winnipeg as a visitor. His visitor status was extended to the 15th of June, 1981. Further requests for extension of his visitor status were denied. On the 21st of July, 1981, the Respondent was photographed and finger printed by the Royal Canadian Mounted Police in Winnipeg and he was charged with overstaying as a visitor in Canada. On the 5th of October, 1981, he pled guilty to that offence and was fined.
[17] On the 13th of October, 1981, the Respondent was ordered deported and, in the result, on the 20th of October, 1981 he was deported from Canada to India.
[18] On the 2nd of June, 1982, the Respondent received an immigrant visa to Canada as he was married to a Canadian citizen. On the 17th of July, 1982, the Respondent arrived at Toronto and subsequently received landed immigrant status.
[19] On the 24th of May, 1983, the Respondent was divorced from his first wife.
[20] On the 7th of November, 1983, the Respondent sponsored his fiancee to come to Canada from India.
[21] On the 31st of October, 1985, the Respondent took the oath of Canadian citizenship. He was subsequently granted Canadian Citizenship.
[22] Sometime in or about 1986, the attention of the Royal Canadian Mounted Police was drawn to the possibility that the Respondent might have been involved in a murder that took place in India in 1975. On the 30th of October, 1987, the Respondent was interviewed by an officer of the Royal Canadian Mounted Police. The Respondent denied any involvement in a murder and claimed that since he first left India, he had been back to India on two (2) occasions and had encountered no difficulties that one might have expected if he had been identified as a fugitive from justice.
[23] On the 17th of November, 1987, the Respondent was once again interviewed by the same police officer. On this occasion, the Respondent was accompanied by a lawyer. On the advice of the lawyer, the Respondent refused to give any information, statement or finger prints.
[24] In January of 1990, the Royal Canadian Mounted Police received from India, court documents regarding the 1975 trial for the abduction and murder of Tej Singh.
[25] On the 24th of October, 1991, the Respondent obtained a certificate of change of name, changing his name from Malkiat Singh to Malkiat Singh Bhandol.
[26] On the 25th of November, 1991, the appropriate Minister of the day advised the Respondent of his or her intention to make a report to the Governor in Council, pursuant to subsection 10(1) of the Citizenship Act seeking revocation of the Respondent's Canadian citizenship on the basis that he had obtained that citizenship by false representation or fraud or by knowingly concealing material circumstances. The notice specifically identified the relevant allegation as being the Respondent's failure to disclose his previous criminal record in his application for landing or permanent resident status in Canada. By letter dated the 3rd of December, 1991, then counsel for the Respondent requested the appropriate Minister to refer the issue of revocation of the Respondent's citizenship to this Court, pursuant to section 18 of the Citizenship Act. Sections 10 and 18 of the Citizenship Act then and now read as follows:
10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by order of the Governor in Council with respect thereto.
10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu'il est convaincu, sur rapport du ministre, que l'acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d'une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l'intéressé, à compter de la date qui y est fixée_:
a) soit perd sa citoyenneté;
b) soit est réputé ne pas avoir répudié sa citoyenneté.
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.
(2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l'a acquise à raison d'une admission légale au Canada à titre de résident permanent obtenue par l'un de ces trois moyens.
...
...
18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or
(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.
(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
18. (1) Le ministre ne peut procéder à l'établissement du rapport mentionné à l'article 10 sans avoir auparavant avisé l'intéressé de son intention en ce sens et sans que l'une ou l'autre des conditions suivantes ne se soit réalisée_:
a) l'intéressé n'a pas, dans les trente jours suivant la date d'expédition de l'avis, demandé le renvoi de l'affaire devant la Cour;
b) la Cour, saisie de l'affaire, a décidé qu'il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels.
(2) L'avis prévu au paragraphe (1) doit spécifier la faculté qu'a l'intéressé, dans les trente jours suivant sa date d'expédition, de demander au ministre le renvoi de l'affaire devant la Cour. La communication de l'avis peut se faire par courrier recommandé envoyé à la dernière adresse connue de l'intéressé.
(3) La décision de la Cour visée au paragraphe (1) est définitive et, par dérogation à toute autre loi fédérale, non susceptible d'appel.
[27] By "Notice Of Reference" filed the 28th of December, 1995, this proceeding was commenced.
[28] As I noted in reasons herein dated the 14th of August, 2002;
...For various reasons, not of particular relevance to the motions before me, but including the death of the first counsel for the respondent, the reference proceeding did not proceed to the point of instituting a process for the taking of evidence in India or elsewhere for almost three (3) years. On the 15th of December, 1998, my colleague, Mr. Justice McKeown, ordered that the Administrator of this Court prepare and issue a Commission naming me as Commissioner to take the evidence, in Chandigarh, India, or at such other place or places to be specified by the Commissioner for that purpose, of twenty-one (21) witnesses. All of the witnesses were identified by name. All but four (4) of the witnesses were also identified by the titles of the official positions that they occupied.
The same day, a Commission issued to me, identifying the witnesses whose evidence I was commissioned to take, by cross-reference to the Order of Mr. Justice McKeown.
Again on the same day, a "Letter Of Request" issued out of the Court, addressed to the "Judicial Authorities India", ..., noting the proceeding pending in this Court, ...[5]
[29] The "Letter Of Request" requested the accession of the appropriate authorities in India to, and their cooperation in, this Court taking evidence in this proceeding in India. My reasons continued:
The Letter Of Request was apparently referred to the Government of India. Such a request was apparently not familiar to officials of the Government of India. In the result, it was not until mid-October, 2001 that the request was "acceded to", the Canadian High Commission at New Delhi was informed of the accession, and appropriate judicial officials in India were authorized "...to provide the necessary assistance to the Commission appointed by the Federal Court of Canada for securing the attendance of witnesses as named in the Letter of Request." [emphasis added in my reasons]
[30] The Commission was executed at Ludhiana with the kind assistance of the Punjab and Haryana High Court on the 11th, 12th, 13th and 14th of March, 2002. The evidence of thirteen (13) witnesses was taken. Three (3) of such witnesses were not named in the Letter Of Request, they being successors in offices identified in that Letter Of Request of persons named therein.
[31] By Order dated the 14th of August, 2002, the evidence of ten (10) of the witnesses heard at Ludhiana, together with the related exhibits introduced in the course of their evidence, was introduced into the record on this application. A further Letter Of Request was addressed to authorities in India seeking their accession to the taking of the evidence of the substituted witnesses. The Court interpreted responses from Indian authorities dated December, 2002, the 22nd of April, 2003, and the 23rd of May, 2003, as amounting to the requested further accession. In the result, the evidence of the three (3) substitute witnesses, including related exhibits, was introduced into the record of this application by Order dated the 16th of September, 2003.
[32] The balance of the hearing in this matter, that is to say the taking of evidence in Canada and the hearing of argument on behalf of the parties, was set down for five (5) days commencing the 9th of February, 2004. On that date, counsel for the Respondent presented a motion seeking an adjournment of the hearing on the ground that the Respondent was then unfit to instruct counsel and to give evidence. Further, counsel for the Respondent advised that the Respondent intended to change counsel. In the result, after hearing from counsel and counsel for the Applicant supporting the request for an adjournment, an adjournment was granted sine die.[6]
[33] By Order dated the 23rd of March, 2004, the adjournment of the hearing sine die was lifted and this matter was set down for hearing at Vancouver commencing on the 21st of June, 2004 to continue for not more than five (5) days.
[34] Notice of change of solicitor on behalf of the Respondent, with proof of service, was filed on the 26th of March, 2004.
[35] By affidavit of Mark G. Mason contained within a motion record filed the 10th of June, 2004, counsel for the Applicant introduced further documentary evidence herein, earlier admitted by the Respondent to be authentic, that documentation consisting of a photocopy of passport issued to the Respondent by the Government of India on the 14th of September, 1973, photocopies of the Respondent's two (2) applications for permanent residence in Canada earlier referred to and completed by the Respondent on the 30th of October, 1980 and the 7th of January, 1981, and a photocopy of the Respondent's Canadian Citizenship registration issued to him on the 31st of October, 1985. In addition, the Applicant's motion record included a copy of a Request To Admit, for the purposes of this proceeding only, dated the 4th of June, 2004 and the response to that request, both referred to in the "Introduction" to these reasons.
[36] Finally, the Applicant's motion record included a draft consent judgment, as quoted in the "Introduction" to these reasons.
CONCLUSION
[37] I am satisfied that the evidence taken on commission in India in March of 2002 and introduced into the record in this proceeding, together with related exhibits, establishes that one Malkiat Singh, son of Ajaib Singh, was convicted at Ludhiana, Punjab, India in 1975 of offences, including murder. He was sentenced to life imprisonment. He appealed his sentence. He was released on bail after spending some four (4) years in prison, pending the hearing and disposition of his appeal. His appeal was dismissed. He never surrendered himself to serve the balance of his sentence.
[38] Essentially the sole issues, save one, remaining for determination when this Court convened on the 21st of June, 2004 were whether the Malkiat Singh, son of Ajaib Singh, just referred to and the Respondent are the same person, whether or not if they were the same person there had been a further appeal resulting in an acquittal and whether or not, if they were the same person, the Respondent had served the balance of his sentence. All of those issues were effectively determined when counsel on behalf of the Respondent conceded that his client and the convicted Malkiat Singh, son of Ajaib Singh, were the same person, that there had been no further appeal beyond that with respect to which evidence was taken on commission and that the Respondent had never returned to India to serve the unexpired portion of his life sentence.
[39] The final issue that remained then was whether the Respondent's answers to questions on two (2) applications for landing in Canada to the effect that he had not been convicted of any crime or offence, amounted to claims resulting in the Respondent obtaining Canadian Citizenship by false representation or fraud or by knowingly concealing material circumstances. I am satisfied that withholding of material information on an application or, as here, applications for permanent residence in Canada results in an obtaining of Canadian Citizenship, subsequently acquired, by false representation or fraud or by knowingly concealing material circumstances. In Canada (Minister of Citizenship and Immigration) v. Baumgartner[7], Justice McKeown wrote at paragraph [129] of his reasons:
...Under subsection 10(1)[ of the Citizenship Act], the Governor-in-Council may revoke a person's citizenship if it is satisfied that that person has obtained citizenship by false representation. That is, if a person is found to have made misrepresentations in order to obtain landing, he or she cannot legally obtain citizenship because a person must be legally landed in Canada before he or she can qualify for Canadian Citizenship. In any event, the deeming provision [subsection 10(2) of the Citizenship Act] means that such an argument does not have to be made. [8]
[40] In the result, having satisfied myself at the brief hearing on the 21st of June, 2004 on the basis of the representations of counsel for the Respondent and of the Respondent's answers to the Court's questions that the Respondent was not under any disability in consenting to a determination that he had obtained his Canadian Citizenship by false representation or fraud or by knowingly concealing material circumstances, an order and judgment substantially in the form consented to, setting out this Court's conclusion that the Respondent had obtained his Canadian Citizenship by false representation or fraud or by knowingly concealing material circumstances, issued.
__________________________________
J.F.C.
Ottawa, Ontario
June 30, 2004
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-2755-95
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. MALKIAT SINGH BHANDOL
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 21st, 2004
REASONS FOR AN ORDER BY: GIBSON J.
APPEARANCES BY:
Mr. Robert Gosman For the Applicant
Ms. S.R.Chamberlain Q.C. For the Respondent
SOLICITORS OF RECORD:
Department of Justice Canada For the Applicant
Winnipeg, Regional Office
301 - 310 Broadway
Winnipeg, Manitoba
Chamberlain & Doyle For the Respondent
Barristers and Solicitors
Suite #1
7100 River Road
Richmond, British Columbia
[1] S.O.R./98-106.
[2] Exhibits "B" and "C" to the affidavit of Mark G. Mason filed the 10th of June, 2004 and admitted as to their authenticity: Applicant's Amended Trial Record, Tab 3, Documents 5 and 6, and Tab 8.
[3] As to this paragraph and paragraphs [9] and [10], see exhibits A5, A6, A8, A9, A10, A29 and A33 to the evidence taken by this Court on Commission at Ludhiana, Punjab, India in March, 2002.
[4] As to this paragraph and paragraphs [12] to [25], see Applicant's Amended Trial Record, Tab 2, paragraphs 4 to 21 and 23, and Tab 7. The facts alleged in paragraph 18 at Tab 2 have not been admitted. However, when read together with other evidence before the Court, I am satisfied that the generalized statement here drawn from that paragraph cannot be disputed in any material way.
[5] Neutral Citation: 2002 FCT 861.
[6] See Reasons herein dated the 3rd of March, 2004, Neutral Citation 2004 FC 311.
[7] (2001), 211 F.T.R. 197.
[8] See also Justice McKeown's reference to Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850 at paragraph 138 of his reasons and his reasoning and conclusions that follow in paragraphs 139 to 141.