Canada (Minister of Citizenship and Immigration) v. Brar, 2002 FCT 442

Date: 20020418

Docket: IMM-2761-01

Neutral Citation: 2002 FCT 442

Ottawa, Ontario, Thursday the 18^th day of April 2002

PRESENT:      THE HONOURABLE MADAM JUSTICE DAWSON

BETWEEN:

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                       Applicant

                                                                              - and -

                                                          AMRITPAL SINGH BRAR

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

DAWSON J.

[1]         The Minister of Citizenship and Immigration brings this application for judicial review of the decision of the Appeal Division of the Immigration and Refugee Board, ("IAD") made on April 23, 2001. In that decision, the IAD overturned the determination of a visa officer that Manjit Kaur Brar ("Mrs. Brar") was not a member of the family class, notwithstanding her marriage to Mr. Amritpal Singh Brar, the respondent.

[2]         Mr. Brar is a Canadian citizen who sponsored Mrs. Brar's application for landing under the family class as his wife.

[3]         The visa officer refused Mrs. Brar's application, after interviewing her, on the ground that the marriage between Mr. and Mrs. Brar had not been entered into so they could reside together permanently, but rather so that Mrs. Brar could gain admission to Canada.

[4]         The issue for the IAD, on the appeal to it from that decision, was whether Mrs. Brar fell within subsection 4(3) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations") which provides:

[5]         The evidence before the IAD consisted of the material before the visa officer, the visa officer's Computer Assisted Immigration Processing System ("CAIPS") notes, a brief affidavit sworn by Mrs. Brar, and the oral testimony of Mr. Brar and the person who had introduced Mr. and Mrs. Brar.

[6]         In its brief oral reasons the IAD found Mr. Brar to be generally credible in giving his evidence. The IAD found the explanation as to how the match was arranged and why Mr. Brar sought a spouse in India to be credible. The wedding was found to have been a well attended affair and the IAD found that there had been substantial contact between the couple since the marriage as Mr. Brar had travelled back to be with his wife for several months. The IAD noted the couple to be of comparable age, to have compatible backgrounds, and that Mr. Brar's knowledge of Mrs. Brar's personal circumstances, family and background was substantial.

[7]         The IAD concluded its reasons as follows:

It is generally preferable to have the applicant testify in these matters in order to assess consistency and evaluate credibility of the applicant, given that it is her intention which must be determined, but it is not mandatory for the applicant to give evidence.

In weighing all the evidence before me, the appellant has established that the applicant married him for purposes other than gaining admission to Canada and that she intended at the time of the marriage to permanently reside with him. She is, therefore, a member of the family class and the appeal is allowed.

THE ISSUES

[8]         The Minister asserted three errors on the part of the IAD:

1.          The IAD erred in law by basing its decision on the opinions and beliefs of Mr. Brar when only Mrs. Brar could give evidence as to her true intentions.

2.          There was insufficient evidence before the IAD for it to find that Mrs. Brar intended to reside permanently with Mr. Brar if allowed to come to Canada.

3.          The IAD failed to take into consideration the lack of consistent and satisfactory explanations for why Mr. Brar's parents did not participate in the wedding arrangements and why Mr. Brar waited five months before beginning sponsorship proceedings. This last point was said to be significant not only for the length of time, but also because Mr. Brar had stated that one of the main reasons for marrying was to find someone to help him look after his parents. Thus, it was said that it was implausible that he would wait five months to file a sponsorship application.

ANALYSIS

(i) The Standard of Review

[9]         It was common ground that the standard of review of decisions of the IAD is generally patent unreasonableness, except for questions involving the interpretation of a statute where the standard becomes correctness.

(ii) Did the IAD err in law by basing its decision as to Mrs. Brar's intent upon the evidence of Mr. Brar?

[10]       The legal principles applicable to applications of this sort are as follows:

a)          The burden of proof is on the applicant for landing to establish the bona fides of the marriage.

b)          To reject an application on the basis of subsection 4(3) of the Regulations, it must be found that there is both a marriage entered into by the sponsored spouse primarily for purposes of immigration, and a lack of intention on his or her part to live permanently with the other spouse.

c)          It is the intent of the sponsored spouse which is relevant, not the sponsor's beliefs and intention.

See: Horbas v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 359 (F.C.T.D.); and Canada (Solicitor General) v. Bisla (1994), 88 F.T.R. 312 (F.C.T.D.).

[11]       From the portion of the IAD's reasons quoted above, it is apparent that the IAD correctly directed itself to these legal principles.

[12]       While generally the sponsored applicant can provide the best evidence of his or her intentions, intent can also be inferred from other facts properly put into evidence. Otherwise, an applicant's own testimony would largely be conclusive on the issue of intent.

[13]       Therefore the IAD did not, in my view, err by stating it is not mandatory for an applicant to give evidence. The IAD recognized that this was certainly the norm and the better practice.

(iii) Was there insufficient evidence before the IAD upon which it could conclude that it was satisfied as to Mrs. Brar's intent?

[14]       The evidence before the IAD evidencing Mrs. Brar's intent was as follows:

a)          The CAIPS notes contain the following information which Mrs. Brar imparted to the visa officer relevant to the issue of her intent:

- What will you do in Canada?

Whatever work I get.

- Have you and your husband ever talked about your future plans you have?

He says whatever work I can find for you I will get for you.

[...]

- I'll explain my concern about this - you and your husband don't seem very compatible?

It is a question of destiny, of who you are destined to marry. You can't do anything about that.

- My concern is that you don't intend to live with your husband, but that you only want to go to Canada.

I married because it was destined.

b)          In her brief, seven paragraph affidavit, Ms. Brar swore:

After our wedding I spent time with my husband outside of our village. Someting [sic] that an unmarried woman in our communitry [sic] would not dare do with a male to whom she was not wedded as it would earn her contempt and ridicule of the entire village if it was latter [sic] to transpire that there had been no genuine marriage and she would as a result lose prospects of marriage and ruin her future, a risk I would not take for any reason whatever.

c)          The person who introduced the couple testified before the IAD that:

Q              If Manjit Kaur was not genuinely married to this man, Mr. Amritpal Singh, and there was to be divorce, what are her prospects of remarriage in India?

A              Divorced - divorces have not happened in my family nor in the appellant's family and I - I don't think the prospects are very good if she divorces to get remarried again. And I don't see any chance of divorce because he went and stayed for four months with her. Otherwise children from here don't even want to be there for a few days or a few days, leave alone so many months.

d)          Letters identified as being written by Mrs. Brar in India and sent to her husband express the difficulty of being apart and a desire to "unite with my husband soon".

[15]       Review on a standard of patent unreasonableness requires the Court to consider the obviousness or immediacy of any defect in the decision under review. A defect apparent on the face of the tribunal's reasons renders the decision patently unreasonable: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 57.

[16]       In Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1">2002 SCC 1, at paragraph 41, the Supreme Court of Canada further clarified that a decision is patently unreasonable where it is unreasonable on its face, unsupported by evidence, or vitiated by a failure to consider the proper factors or to apply the appropriate procedures.

[17]       In the present case, there was evidence to support the conclusion of the IAD as to Mrs. Brar's intent. The IAD applied the proper principles of law. I cannot conclude that the decision was wrong on its face.

[18]       I have considered the Minister's submission that the IAD erred in failing to draw an adverse inference from Mrs. Brar's failure to testify.

[19]       An explanation was given to the IAD for that failure: Mrs. Brar had no telephone and it was difficult to make those arrangements, and Mrs. Brar had been interviewed by the visa officer. The IAD was entitled to weigh this explanation with the other evidence, and was not obliged to draw an adverse inference from the failure of Mrs. Brar to testify.

(iv) Did the IAD fail to consider the lack of certain consistent and satisfactory explanations?

[20]       In my view, this ground of alleged error goes to how the IAD weighed the evidence and its right to determine evidence to be plausible or implausible. No reviewable error has been established on this basis.

[21]       For these reasons, the application for judicial review will be dismissed.

[22]       Counsel posed no question for certification, and no question is certified.

ORDER

[23]            IT IS HEREBY ORDERED THAT:

1.          The application for judicial review is dismissed.

2.          No question is certified.

"Eleanor R. Dawson"

Judge