Deo v. Canada (Minister of Citizenship and Immigration), 2004 FC 1339

Date: 20040930

Docket: IMM-2318-03

Citation: 2004 FC 1339

Ottawa, Ontario, this 30th day of September, 2004

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                         SURAJ NARAYAN DEO

                                                                                                                                            Applicant

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board, (the "Board"), dated March 17, 2003, wherein it denied the appeal of a visa officer's determination that Lalita Sushil Lata ("Ms. Lata") is not a member of the family class within the meaning of the Immigration Regulations, 1978, S.O.R./78-172 (the "Regulations") because the marriage between she and the applicant was not bona fide.

[2]                The applicant requests an order quashing the decision to deny his wife's sponsored application for permanent residence and remit the application to a differently constituted panel of the Board for determination. Alternatively, the applicant seeks a declaration that the applicant's marriage to Ms. Lata is a bona fide marriage within the meaning of subsection 2(1) of the Regulations.

Background

[3]                The applicant, Suraj Narayan Deo (the "applicant") was born in Fiji and was landed as a permanent resident of Canada on October 20, 1994.

[4]                On February 18, 1989, the applicant married Suman Lata Deo and that marriage was dissolved by a judgment that became effective on April 13, 2000.

[5]                While going through divorce proceedings, the applicant states that his sister introduced him to Ms. Lata, who had previously been married to a Canadian permanent resident.

[6]                The applicant and Ms. Lata were married in a civil ceremony in Fiji on April 13, 2000.

[7]                After the civil marriage ceremony, the applicant returned to Canada and applied to sponsor Ms. Lata's permanent residence application so she could immigrate to Canada.

[8]                By letter dated October 15, 2001, Ms. Lata's application for permanent residence was denied because the visa officer was not satisfied pursuant to subsection 4(3) of the Regulations that Ms. Lata had not married her sponsor (the applicant) "primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse".

[9]                Since Ms. Lata was not a member of the family class, the visa officer held that she came within the category of persons who are inadmissible to Canada pursuant to paragraph 19(2)(d) of the Immigration Act, 1976, R.S.C. 1985, c. I-2.

[10]            The applicant states that he returned to Fiji in July 2002 and married Ms. Lata in a religious ceremony in the presence of about five hundred friends and relatives. The applicant states that after the wedding, he and Ms. Lata went on a five-day honeymoon to Muskart Cove Resort.

[11]            The applicant's appeal of the visa officer's decision was heard on March 17, 2003. The single-member panel dismissed the appeal in an oral decision rendered the same day as the hearing. The Board's written decision was received by the applicant on April 7, 2003.

[12]            The is the judicial review of the Board's determination that Ms. Lata is not a member of the family class within the meaning of the Regulations.

Reasons of the Immigration Appeal Division, Immigration and Refugee Board

[13]            In its decision, dated March 17, 2003, the Board stated that it did not find the testimony of the applicant or Ms. Lata generally credible or trustworthy. Moreover, the Board stated that their evidence contained a number of significant discrepancies and inconsistencies for which satisfactory explanations were not given, their evidence was vague, if not evasive, and included very little detail.

[14]            The Board noted that there were a number of discrepancies relating to the couple's civil and religious marriage ceremonies. There was no satisfactory explanation about why only a civil ceremony was held in April 2000, even though both the applicant's and Ms. Lata's families were in Fiji at the time. The Board stated that there was no plausible reason why, if this was a genuine relationship, both the civil and religious ceremonies were not performed at the same time.

[15]            The Board held that the applicant's actions were not indicative of the intent of a genuine spousal relationship. The applicant waited over two years to return and visit Ms. Lata, and only held a religious ceremony several months after Ms. Lata's permanent residence application was refused even though there did not appear to be financial obstacles to his returning to Fiji. Furthermore, the Board found that there was conflicting evidence over why the religious ceremony was held in Fiji. The applicant testified that they planned for Ms. Lata to get her visa and for the religious ceremony to be held in Canada, while Ms. Lata stated that it was her intention that she would get her visa, they would be married in Fiji and then go to Canada together.

[16]            What the Board found "most disconcerting" however, was the contradictory evidence regarding the use of birth control. The applicant testified that he did not use birth control but that Ms. Lata used pills because they did not want her to become pregnant while they were separated. Ms. Lata, however, testified that there was no use of birth control because they both wanted to have children. This contradiction significantly undermined the testimony of both witnesses in the Board's view.

[17]            Although the applicant and Ms. Lata testified that they had maintained extensive communication with each other between Canada and Fiji, the Board found that the evidence did not support this allegation. First, the couple demonstrated superficial knowledge of each other and were vague about their particular circumstances and the reasons why they married each other. To support this finding, the Board stated that the couple's testimony was inconsistent in the following areas:

1.          How the applicant's family in Canada were related to the applicant;

2.          Whether Ms. Lata had actually ever worked in Fiji (Ms. Lata stated she had been employed for significant amounts of time in Fiji, while the applicant testified that Ms. Lata had never worked);

3.          What gifts were exchanged at the wedding; and

4.          What kind of work Ms. Lata might do in the future.

[18]            The Board did not find the evidence regarding the development of the applicant and Ms. Lata's relationship and their knowledge of each other to be credible. Given the discrepancies and inconsistencies in the evidence, the Board concluded that on a balance of probabilities, Ms. Lata had entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class.

[19]            The Board also concluded that Ms. Lata does not intend to reside permanently with the applicant. This conclusion was based on the conflicting evidence and credibility concerns already raised, and the fact that Ms. Lata has other close relatives in Canada so has other options regarding where to reside. The Board commented (at page 3 of its decision):

. . . Based on the evidence before me, I find that the applicant [Ms. Lata] has either not bothered to learn or remember significant information about the appellant [applicant] and his circumstances or fabricated evidence because this marriage is not bona fide and she does not intend to reside permanently with the appellant.

[20]            Based on these conclusions, the Board held that Ms. Lata is not a member of the family class within the meaning of the Regulations and dismissed the applicant's appeal.

Applicant's Submissions

[21]            The applicant submits that the negative credibility findings of the Board are "grossly perverse, capricious and highly unreasonable" in light of the detailed testimony of Ms. Lata and the applicant regarding their relationship, celebrations of marriage, honeymoon and future plans together.

[22]            The applicant further submits that the Board erred in concluding that there were discrepancies in the testimony regarding the civil and religious marriage ceremonies and argues that the negative credibility finding of the Board was not based on the evidence, but its own subjective opinions. Furthermore, the applicant argues that this area of testimony was not even relevant to the issues of establishing the motivation of marriage and intentions of residing together.

[23]            The applicant submits that the uncontradicted evidence before the Board was as follows: 1) the applicant and Ms. Lata chose to have a civil ceremony in April 2000 so he could sponsor his wife's immigration to Canada and then either perform the religious ceremony either in Canada or Fiji after she received her visa; 2) after Ms. Lata's application was refused, the couple planned to have the religious ceremony because they were missing each other and as per their cultural traditions they had not yet consummated the marriage; and 3) the religious ceremony was performed before five hundred relatives and friends, and then the couple went on a honeymoon. The applicant states that given this testimony and the corroborating evidence, it was an error of fact and law for the Board to reach the conclusions it did.

[24]            The applicant submits that there were no discrepancies between his testimony and that of Ms. Lata regarding the circumstances of the religious ceremony and that it was "highly perverse, capricious, gross and without any basis" for the Board to make a negative credibility finding on this issue.

[25]            The applicant argues that there was no discrepancy in the evidence before the Board regarding the use of birth control. He had testified that he believed his wife was taking a birth control pill, while she testified that she did not use the pill.

[26]            Relying on the hearing transcript, the applicant argues that contrary to the Board's finding, there were no discrepancies regarding Ms. Lata's relatives in Canada, his wife's work history (he stated that she was not working at the present time, not that she had never worked), or the gifts exchanged at the wedding. The applicant argues that the Board's conclusions were therefore illogical and capricious.

[27]            The applicant argues that the Board failed to consider relevant evidence regarding the purpose of his marriage to Ms. Lata and their intention to live together permanently in Canada such as letters, pictures, telephone bills and the testimony before it. Both the applicant and Ms. Lata testified that each had been married and divorced before. Both wanted to have a permanent marital relationship. Given this evidence, the applicant argues that the Board's conclusions are highly unreasonable and without basis.

[28]            Citing Meelu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 25 (T.D.)(QL), the applicant argues that the Board erred by not engaging in an examination or analysis of the applicant's intentions and motivations for marriage, then making the negative findings it did.

[29]            The applicant further submits that the Board erred by stating that there were "discrepancies" and "inconsistencies" regarding his and Ms. Lata's knowledge of each other without itemizing any such problems based on the evidence.

[30]            The applicant argues that the Board did not apply both parts of the legal test set out in subsection 4(3) of the Regulations and established in Horbas v. Canada (Minister of Citizenship and Immigration), [1985] 2 F.C. 359 (F.C.T.D.) and therefore erred.

[31]            The applicant contends that the Board failed to engage in a detailed analysis of Ms. Lata's intentions to reside permanently with the applicant and that its conclusion on this issue is patently unreasonable. It is submitted that based on the totality of the evidence before the Board, the only reasonable inference was that Ms. Lata does indeed intend to reside permanently with the applicant.

[32]            In sum, the applicant argues that the Board's conclusions are illogical, lack any basis in the evidence, are patently unreasonable, perverse, capricious and hence are reviewable by this Court.

Respondent's Submissions

[33]            In the respondent's view, all of the issues raised by the applicant is his submissions amount to the same argument, namely, that the Board made a reviewable finding of fact that warrants this Court's intervention. The respondent submits that the applicant's arguments are without merit.

[34]            In the respondent's view, the passages of hearing transcript relied on by the applicant do not assist him as they are more consistent with the Board's findings that the testimony was vague, if not evasive and lacked detail.

[35]            The respondent submits that it was open to the Board to conclude that the applicant and Ms. Lata knew only the most basic information about each other and had not discussed the future or their plans together. The respondent further submits that the testimony before the Board shows that the couple had memorized dates, names and relevant wage rates, but were unable to disclose any details that would point to a genuine marriage or relationship.

[36]            The respondent submits that the Board viewed the evidence before it as a whole, and reasonably concluded that the couple's marriage was not bona fide.

[37]            Significantly, the respondent points out that the applicant has not specifically challenged the Board's finding that he and Ms. Lata had given contradictory evidence regarding the couple's use of birth control, but instead just calls it perverse or capricious.

[38]            It is submitted that the Meelu, supra decision relied on by the applicant is actually more helpful to the respondent's position, because on facts less favourable than those in the case at bar, the Court upheld the Board's conclusion that the parties' marriage was not bona fide. Moreover, as instructed by the decision in Meelu, supra, the Board in the case at bar engaged in a thorough analysis of Ms. Lata's intention to reside with the applicant, and supported its negative finding not only by inferences drawn from her motivation for marriage, but from the existence of her relatives in Canada and that she did not remember information about her husband or his circumstances. Since, in the respondent's view, the Board's decision was reasonably open to it, this Court should not intervene.

[39]            The respondent submits that even if this Court would have reached different conclusions, deference should be shown to the Board's decision. Where the Board exercises its statutory discretion in good faith and has not relied upon irrelevant or extraneous considerations, the respondent submits that there is no basis for judicial intervention: see for example, Grewal v. Canada (Minister of Employment and Immigration), [1983] F.C.J. No. 129 (C.A.)(QL), Miranda v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 437 (T.D.)(QL).

[40]            The respondent requests that this application for judicial review be dismissed.

Issues

[41]            The issues in this case are:

1.          Did the Board apply the appropriate legal test to the facts of this case?

2.          Has the applicant established any other basis for this Court to quash the Board's decision?

Relevant Legislative Provisions

[42]            Although the Immigration Act, supra, is now repealed, section 192 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") provides that where a notice of appeal was filed before the coming into force date of IRPA, the appeal is continued under the provisions of the former legislation. Thus, it is the Immigration Act and the Regulations which apply to this matter, and not IRPA.

[43]            Subsection 6(2) of the Immigration Act, supra, provides:

[44]            While paragraph 4(1)(a) of the Regulations permits a Canadian citizen or permanent resident to sponsor an application for landing by his or her spouse, subsection 4(3) of the Regulations provide:

Analysis and Decision

[45]            Issue 1

Did the Board apply the appropriate legal test to the facts of this case?

The applicant, who is a permanent resident of Canada, is entitled to sponsor his spouse for admission into Canada as a member of the family class unless she is disqualified under subsection 4(3) of the Immigration Act, supra. The leading authority on this section is Horbas, supra at pages 608 to 609 where Strayer J. (as he then was) stated:

. . . It must be kept in mind that in order to reject such an application on the basis of this subsection, it must be found that there is both a marriage entered into by the sponsored spouse primarily for purposes of immigration and lack of intention on his or her part to live permanently with the other spouse.

[46]            the applicant seems to be arguing that the Board erred in either not applying the two-pronged test set out in subsection 4(3) of the Regulations and Horbas, supra or by analyzing Ms. Lata's intentions regarding the marriage but not the intentions of the applicant. I do not agree with either of these arguments.

[47]            I have reviewed the Board's decision and I am of the view that the Board turned its mind to both prongs of the test. The Board discussed reasons for finding some of the testimony of both the applicant and Ms. Lata not to be credible and for concluding that the marriage was entered into for the purpose of immigration. These reasons included what the Board interpreted as discrepancies and inconsistencies in the couple's evidence. When dealing with the second branch of the Horbas, supra test, the Board could rely on its findings and inferences regarding Ms. Lata's motivation to marry the applicant. As Denault J. stated in Canada (Solicitor General) v. Bisla (1994), 88 F.T.R. 312 at paragraph 12:

Even if the Horbas case sets out a two prong test, it does not necessarily mean that the answers given in response to the first element of the test cannot be used to analyze the second element of the test. In other words, evidence relevant to the issue of entering a marriage primarily for the purpose of gaining admission to Canada can be relevant to the assessment of the intention of residing permanently with the sponsoring spouse.

[48]            In the case at bar, the Board not only relied on the credibility concerns discussed earlier in its reasoning but noted that the applicant had relatives in Canada so she had alternate options of where to reside once in the country. This reasoning indicates to me that the Board applied the appropriate legal test.

[49]            Moreover, the argument that the Board erred by failing to examine the applicant's motivations and intentions cannot succeed. As the clear wording of subsection 4(3) of the Regulations, and cases such as Bisla, supra, establish (at paragraph 10), it is the motivations and intentions of the sponsored applicant (in this case, Ms. Lata), not the sponsoring spouse (in this case, the applicant) which are the focus of the Board's inquiry. While the intentions, motivations and evidence of the sponsoring spouse are certainly highly relevant to the Board's task, in the end it is the sponsored spouse seeking admission to Canada whose qualification must be determined. The Board did not misapply this aspect of the legal test.

[50]            Issue 2

Has the applicant established any other basis for this Court to quash the Board's decision?

The remaining arguments submitted by the applicant deal primarily with the Board's

findings of fact and credibility. The Board is owed a high degree of deference on its findings of fact and credibility. There were certain discrepancies between the testimony of the applicant and Ms. Lata. There was direct contradictory evidence concerning the use of birth control. Ms. Lata testified there was no use of birth control because they both wanted children and the applicant testified that Ms. Lata used pills because they did not want her to become pregnant while they were separated. The applicant and Ms. Lata gave different evidence as to what wedding gifts they gave to each other.

[51]            The Board also noted that there was no satisfactory explanation as to why the applicant and Ms. Lata did not have their civil and religious ceremonies performed at the same time since most members of both families were present in Fiji at the time of the civil ceremony.

[52]            I am of the view that the conclusions reached by the Board with respect to the conflicting evidence and the timing of the marriage ceremonies detailed in paragraphs 50 and 51 above are conclusions a reasonable person could reach and were open to the Board to make. I am satisfied that there were grounds for the Board to conclude on the balance of probabilities that the marriage was entered into primarily for the purpose of gaining admission to Canada as a member of the family class.

[53]            The application for judicial review is therefore dismissed.

[54]            Neither party wished to propose a serious question of general importance for certification.

                                               ORDER

[55]            IT IS ORDERED that the application for judicial review is dismissed.

            "John A. O'Keefe"           

J.F.C.

Ottawa, Ontario

September 30, 2004

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-2318-03

STYLE OF CAUSE: SURAJ NARAYAN DEO

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                 Calgary, Alberta

DATE OF HEARING:                                   May 20, 2004

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                     September 30, 2004

APPEARANCES:

Satnam S. Aujla

FOR APPLICANT

Robert Drummond

FOR RESPONDENT

SOLICITORS OF RECORD:

Aujla Merchant Law Group

Calgary, Alberta

FOR APPLICANT

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT