Can his son, Barinder Sidhu, be held responsible for his father’s misrepresentation?
DARSHAN Singh Sidhu was implicated in the murder of Jaswinder (Jassi) Kaur Sidhu, 25, a resident of Maple Ridge, in 2000 in Punjab, India. Her husband Sukwinder (Mithu) Singh Sidhu, a poor rickshaw driver, who was also seriously injured in the attack, was not considered suitable by Jassi’s family in B.C.
Following an investigation in India, seven individuals were arrested and charged with conspiracy and murder. Darshan Sidhu was alleged to have arranged the killing on behalf of members of her family in Canada. He was convicted under the Indian Penal Code on October 21, 2005 and sentenced to life imprisonment. He appealed his conviction, according to the Federal Court documents.
On January 1, 2007, Darshan Sidhu applied to become a permanent resident of Canada under the family class, along with his wife and his son, Barinder Singh Sidhu. Barinder Sidhu’s sister, who was in Canada and married to a relative of Jaswinder (Jassi) Kaur, acted as the sponsor. Darshan Singh Sidhu listed his son as an accompanying adult dependent on his application. Canadian immigration authorities were evidently not aware of the father’s criminal history at the time,
In the Schedule 1 Background Declaration to his application for permanent residence in Canada, Darshan Sidhu answered “no” to the question whether he had been the subject of any criminal proceedings. As he was 23 years old at the time, his son signed his own declaration which, he said, was prepared by travel agents. In that declaration, the answer given to the same question was also, in his case truthfully, “no”. The son’s application for permanent residence was joined to his father’s application as the principal applicant.
Meanwhile, on February 15, 2008, an appellate court upheld Darshan Sidhu’s conviction. A further appeal was then made to India’s highest court.
The Federal Court said that it appears that Darshan Sidhu was released on bail pending his appeals at various times. While serving his sentence, he was also periodically released on parole to bring in crops during the harvest season. While he was on one of these forms of release from detention, on May 4, 2008, Barinder Sidhu and his parents landed at the Vancouver airport for entry as permanent residents. All three were interviewed separately at the airport.
Barinder Sidhu testified that he had been given a paper with some questions in Punjabi to answer about himself and that he was not asked about his father’s convictions.
On February 21, 2014, Barinder Sidhu was interviewed at the Canadian Consulate in Chandigarh, India. By this time, Canadian immigration authorities had become aware that a convicted murderer and his family had managed to enter Canada and obtain permanent resident status. The goal of the Chandigarh interview was to confirm Barinder Sidhu’s residency obligations as a permanent resident and to collect information about him, his father and their permanent residency application. Barinder Sidhu was asked to bring his parents to the interview. They did not attend. It appears that they have not returned to Canada and remain in India, according to court documents.
On April 3, 2014, the visa officer approved Barinder Sidhu’s application to return to Canada since he met the residency obligations.
On February 5, 2015, an immigration officer issued a report alleging that Barinder Sidhu was inadmissible on the grounds that he “did not disclose and/or withheld information concerning his father’s conviction, thereby inducing an error in the administration of the [Immigration and Refugee Protection Act]”.
On April 16, 2015, the Supreme Court of India acquitted his father of all charges related to the murder and conspiracy to murder Jaswinder Kaur. He was given “the benefit of the doubt”, the Supreme Court said, as the telephone used to orchestrate the killing by calls to and from Jaswinder Kaur’s family in Canada was not under his exclusive control. His brother also had access to it.
On June 1, 2016, the Immigration Division found that Barinder Sidhu was not inadmissible. It found that he was not responsible for his father’s misrepresentation about his own admissibility. The Immigration Division concluded that if Parliament had intended to attach the inadmissibility of a principal applicant for misrepresentation to all landed dependants, it would have expressly so provided.
The Minister of Citizenship and Immigration appealed this decision to the Immigration Appeal Division (IAD) that dismissed the appeal on August 19, 2017. The IAD found that Barinder Sidhu did not directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induced an error in the administration of the Act. The IAD agreed with the ID’s analysis of the legislative intent of paragraph 40(1)(a) of the Immigration and Refugee Protection Act and found that he did not have an obligation to disclose information about his father’s criminality at the Port of Entry interview.
The sole issue for consideration in this matter was whether the IAD’s decision was reasonable with regard to its findings on misrepresentation and the duty of candour.
Judge Richard Mosley said in his ruling: “It was within the range of defensible outcomes on the facts and the law for the IAD to conclude that the Respondent [Barinder Sidhu] bore no duty of candour to inform on his father at the Port of Entry. The reasons for the decision are transparent, justified and intelligible. That said, I do not agree with the IAD’s analysis that in order for a duty of candour to be found there needed to be some evidence establishing that there was a tacit agreement or conspiracy by the respondent and his father.”
He said that “the matter will be remitted for redetermination by the IAD.”