Date: 20000107
Docket: IMM-841-99
BETWEEN:
BEANT SINGH MEELU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of the Appeal Division (the "Tribunal") of the Immigration and Refugee Board wherein the Tribunal concluded:
| The Appeal Division is persuaded that the applicant married primarily for the purpose of gaining admission to Canada as a member of the family class. The appellant failed to establish on a balance of probabilities that the applicant had the intention of residing permanently with the appellant. |
In the foregoing quotation, the "applicant" is the alleged spouse of the applicant on this application for judicial review. References in the quotation to the "appellant" are to the applicant on this application for judicial review. In these reasons, the applicant as referred to in the foregoing quotation will be referred to as the applicant"s "spouse".
[2] The decision of the Tribunal that is under review is dated the 8th of February, 1999.
[3] The applicant has been a permanent resident of Canada since 1992. On the 16th of February, 1997, he went through a form of marriage in India with his spouse. The applicant sponsored the immigration to Canada of his spouse. The applicant"s spouse applied to the Canadian High Commission in New Delhi on the 18th of June, 1997 for permanent residence in Canada as a member of the family class, based on her spouse"s sponsorship. Her application was refused pursuant to paragraph 19(2)(d ) of the Immigration Act1 on the basis that she was a member of an inadmissible class of persons. The inadmissible class of which she was determined to be a member was persons described in subsection 4(3) of the Immigration Regulations, 19782. That subsection reads as follows:
(3) The family class does not include a spouse who entered into the marriage 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.
(3) La catégorie des parents ne comprend pas le conjoint qui s'est marié principalement dans le but d'obtenir l'admission au Canada à titre de parent et non dans l'intention de vivre en permanence avec son conjoint.
[4] The applicant, that is to say the sponsor, appealed the rejection of his spouse"s application for permanent residence in Canada to the Tribunal. It is the decision of the Tribunal on that appeal that is here under review.
[5] The Tribunal rejected the applicant"s appeal essentially on the basis of the following five areas of concern:
| - First, the Tribunal found discrepancies between the evidence of the applicant and of his spouse regarding the arrangement of their marriage. It concluded on this issue: |
| The panel finds that these discrepancies are significant as it indicates a lack of attention and knowledge which is inconsistent with a bona fide spousal relationship. |
| - Second, the Tribunal noted that close relatives of the applicant did not attend the wedding. It wrote: |
| The panel also finds the failure of close relatives to attend the wedding without a satisfactory explanation is troubling. ... The lack of important guests such as close relatives at the wedding is not consistent with a bona fide marriage. |
| - Third, the Tribunal found that the applicant"s spouse gave conflicting evidence as to the location where the wedding took place. Further, it found that she indicated that a cousin of the applicant attended the wedding when in fact he did not. |
| - The Tribunal was also concerned that the applicant"s spouse did not possess a reasonable level of knowledge of the activities of the applicant in Canada. More particularly, she indicated that she was aware the applicant had a job in Canada when in fact he sometimes had two, and on at least one occasion, three jobs. |
| - Finally, the Tribunal was concerned about what it regarded as a lack of communication both in writing and by telephone between the applicant and his spouse, following the wedding. |
[6] Counsel for the applicant urged that the Tribunal erred in its evaluation of the totality of the evidence before it. By contrast, counsel for the respondent urged that the Tribunal"s findings of fact were neither perverse nor capricious, nor did the Tribunal fail to take into account all of the evidence that was before it. In the result, counsel for the respondent urged that the findings and concerns of the Tribunal were reasonably open to it.
[7] At the commencement of the "analysis" portion of its reasons, the Tribunal wrote:
| Following the Federal Court decision in Horbas, a two prong test must be applied in order to disqualify a spouse under subsection 4(3) of the Immigration Regulations, 1978... . First, the marriage must have been entered into primarily for the purpose of gaining the applicant"s admission into Canada as a member of the family class and second, on a balance of probabilities, there must be no intention on the part of the applicant to permanently reside with the appellant. |
The reference to the "Federal Court decision in Horbas" is to Horbas v. Canada (Minister of Employment and Immigration)3.
[8] I am prepared to assume for the purposes of this decision that the decision of the Tribunal as to the first part of the Horbas test was reasonably open to it, although I am satisfied that the totality of the evidence was certainly open to a different interpretation.
[9] On the second part of the test, the Tribunal simply concluded, without analysis:
| The appellant [that is to say, the applicant herein] failed to establish on a balance of probabilities that the applicant [that is to say, the applicant"s spouse herein] had the intention of residing permanently with the appellant. |
[10] In Canada (Solicitor General) v. Bisla4, Mr. Justice Denault wrote 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. |
[11] In Rattan v. Canada (Minister of Employment and Immigration)5, Madame Justice Reed wrote at paragraph 10:
| One does not have to find a specific statement by the relevant spouse that there is no intention to reside permanently with the sponsoring spouse. Indeed, one would hardly expect to find such a statement. Inferences will usually be made in these cases from a number of aspects of the evidence. |
[12] On the facts of this matter, while it might be inferred that the Tribunal relied on its analysis with respect to the first portion of the test in reaching its conclusion regarding the second portion of the test, I conclude that, in relation to the second portion of the test, the Tribunal failed to take into account relevant evidence before it and in so doing erred in a reviewable manner.
[13] At page 18 of the transcript of the hearing before the Tribunal6, the applicant testified that his wife is shy and has led a sheltered life in a village such that she was very nervous at her interview with the visa officer. The applicant"s spouse"s own testimony before the Tribunal, given by long distance telephone and recorded in the transcript, indicates that she did not then speak English although, in other evidence in the Tribunal Record, the applicant"s spouse claimed to read and write English "well" and speak it "with difficulty". She testified that she lived in a small village of approximately 300 houses. The applicant"s spouse"s personal letters that appear in the Tribunal Record are poorly written, if one can believe the translation from her native language Punjabi, and are rather simplistic. While she has completed approximately fourteen years of education, the evidence before the Tribunal indicated that her grades were poor and her matriculation record indicates that she passed courses in "Beautification of Surroundings and Physical & Health Education", which might be interpreted to be consistent with a rather limited or traditional lifestyle. While the transcript of the hearing before the Tribunal indicates that the applicant"s spouse has some relatives in Canada, they appear to be relatively remote from her.
[14] Against the foregoing, can it reasonably be said that the applicant"s spouse could have any other intention but to permanently reside with the applicant if she were to come to Canada? Canada would certainly represent an environment alien to her experience and one to which she might reasonably be expected to have significant difficulty adapting, even with the aid of her spouse. If this question had been fully examined by the Tribunal, it might very well have been open to it to reach the conclusion that it did. But there is no evidence whatsoever on the record, particularly in the reasons of the Tribunal, to indicate that it engaged in such an examination or analysis. In the circumstances, to fail to engage in that analysis and to rely solely on the analysis regarding the bona fides of the marriage issue to reach a conclusion regarding the intention to reside issue, I am satisfied constitutes a reviewable error.
[15] For the foregoing reasons, the decision of the Tribunal that is under review will be set aside and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[16] A teleconference will be arranged with counsel in order to permit them to make submissions on whether this case raises a serious question of general importance.
___________________________
Judge
Ottawa, Ontario
January 7, 2000
__________________
1 R.S.C. 1985, c. I-2.
2 SOR/78-172, as amended.
3 [1985] 2 F.C. 359 (F.C. T. D.).
4 (1994) 88 F.T.R. 312.
5 [1994] F.C.J No. 32 (F.C.T.D.), (not cited before me).
6 Page 038 of the Tribunal Record.
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