Date: 20100105
Docket: IMM-2547-09
Citation: 2010 FC 7
Ottawa, Ontario, January 5,
2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
INDERJIT
KAUR DHALIWAL
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision of
the Immigration Appeal Division (the IAD) of the
Immigration and Refugee Protection Board dated May 11, 2009
denying the applicant’s appeal from a visa officer’s refusal to issue a permanent resident visa under the family
class to the applicant’s spouse because the applicant’s marriage
is not genuine and was entered into primarily for the purpose of immigration.
FACTS
Background
[2]
The
fifty (50) year old applicant is a citizen of Canada who
emigrated from India in 1991 with her first husband and her four
children. The applicant separated from her first husband in 1999. Their divorce
was finalized on March 26, 2005. I will refer to the applicant as “Mrs. D.” to
avoid confusion between the applicant in this Court proceeding, the appellant
before the IAD, and the applicant for a permanent resident visa.
[3]
In
2005 Mrs. D. met Ms. Satendra Sharma in a pizza shop. On October 3, 2005 Ms.
Sharma introduced Mrs. D. by telephone to her brother, forty-seven (47) year
old Mr. Chander Parkash Singh Paul (hereinafter referred to as “Mr. Paul”). Mr.
Paul, who is a citizen of India, was previously married to a Swedish
national for a few months from 1990 to 1991, but was otherwise single and
childless.
[4]
Mrs.
D. communicated with Mr. Paul on a number of occasions before travelling to India to meet him
personally in November 2005. The first marriage proposal was allegedly made by Mrs.
D. in November 2005 over the telephone. Mrs. D. travelled to India again in
December 2005 where a second marriage proposal was made on December 26, 2005.
It is unclear who proposed the second time.
[5]
On
January 5, 2006 Mrs. D. married Mr. Paul in Chandigarh, India. Following
their marriage the couple cohabited in Chandigarh until
February 27, 2006 at which time the applicant
returned to Canada. The
applicant made another trip to India from April 14, 2006 to May 31, 2006 to
visit Mr. Paul.
[6]
The
evidence indicates that most of the money for the applicant’s trips was
financed by Mr. Paul’s sister, Ms. Sharma, although Mrs. D. has repaid part
from time to time.
[7]
On
May 1, 2007 Mrs. D. applied to sponsor her spouse Mr. Paul under the family class.
This was one year and four months after the marriage.
Visa officer’s decision
[8]
A
visa officer interviewed Mr. Paul in New Delhi on October 29, 2007.
[9]
The
visa officer found that the couple was incompatible in terms of age and social
background. The visa officer noted that the applicant had a grade ten high
school education, four children from a pervious marriage, and was currently
subsisting on disability support payments. Mr. Paul on the other hand possessed
a Masters of Science Degree in anthropology, is three years younger then the
applicant, and has no children although he was previously married to a Swedish
national between 1990 and 1991.
[10]
Several
aspects of the January 5, 2006 marriage ceremony raised doubts as to the bona
fides of the marriage in the mind of the visa officer:
1.
the
marriage was solemnized only eight days after the marriage proposal;
2.
Mr. Paul’s
family appeared to be in complete attendance, including his Canadian sister;
3.
no members
of applicant’s family were in attendance;
4.
the couple
claimed that over a hundred guests attended but the ceremony’s photos indicate
only about 15 attendees; and
5.
the unusual
nature of the wedding ceremony, evidenced by the ceremony’s photos which
appeared to be staged.
[11]
The
visa officer held that Mr. Paul provided inconsistent and contradictory
statements at the interview. Mr. Paul could not satisfactorily explain the
delay in submitting the sponsorship application more then a year after the
couple’s marriage. The visa officer was similarly unsatisfied with Mr. Paul’s
responses with respect to his incompatibility with the applicant.
[12]
On
December 5, 2007 the visa officer refused to issue Mr. Paul a permanent
residence visa because he or she was of the view that the marriage upon which
the sponsorship rested was not genuine and was entered into primarily for the
purpose of acquiring permanent residence in Canada.
[13]
On
February 14, 2008 Mrs. D. appealed the visa officer’s refusal to the IAD.
Decision under review
[14]
On
May 11, 2009 the IAD upheld the visa officer’s decision and denied Mrs. D’s appeal.
[15]
In
its decision the IAD held that Mrs. D. applicant failed to discharge her onus to
show that the visa officer erred in finding that the applicant’s marriage was
not genuine and entered into primarily for the purpose of acquiring permanent residence.
[16]
Mrs.
D. testified in person followed by Mr. Paul who testified by telephone. The IAD
determined that neither witness was credible by virtue of their vague,
contradictory, and inconsistent testimony.
[17]
The
IAD drew adverse inferences from the applicant’s inability to recall the dates
of her meetings with Ms. Sharma. It was unclear if the applicant first met Ms.
Sharma in June, July, or August 2005. There was also a contradiction in the
couple’s testimony with respect to the first marriage proposal. The applicant
testified she proposed first by telephone while Mr. Paul testified that he made
the first proposal over the telephone in November 2005.
[18]
The
IAD heard from Mrs. D. that she was not thinking about marriage after her
divorce. The IAD held that Mrs. D. could not satisfactorily explain her change
of attitude towards marriage in light of January 5, 2006 marriage. She could
not articulate in detail any positive characteristics which made her attractive
to Mr. Paul. Mr. Paul was similarly unable to address the IAD’s concerns with
respect to his incompatibility with Mrs. D. He could not explain why he
overlooked Mrs. D’s seniority in age over him, her medical conditions, limited
income, and the fact she is a divorced mother of four. Mr. Paul could only
identify “niceness” and “goodness” as the main characteristics that attracted
him to Mrs. D.
[19]
The
IAD held that the sum of inconsistencies and discrepancies in the evidence
indicated that the witnesses deliberately misrepresented particular facts at
the hearing. The IAD concluded that Mrs. D. and Mr. Paul were not credible. Consequently,
Mrs. D. failed to meet her evidentiary burden to prove that her marriage was
genuine and not entered into primarily for the purpose of immigration. The
appeal was therefore dismissed.
LEGISLATION
[20]
Section
4 of the Immigration and Refugee Protection Regulations (IRPR),
S.O.R./2002-227 states that a foreign national will not be considered a spouse
and therefore a member of the family class if the marriage was not genuine and
was entered into primarily for the purpose of acquiring immigration status:
|
4. For the purposes of these Regulations, a foreign national
shall not be considered a spouse, a common-law partner, a conjugal partner or
an adopted child of a person if the marriage, common-law partnership, conjugal
partnership or adoption is not genuine and was entered into primarily for the
purpose of acquiring any status or privilege under the Act.
|
4. Pour l’application
du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint
de fait, le partenaire conjugal ou l’enfant adoptif d’une personne si le
mariage, la relation des conjoints de fait ou des partenaires conjugaux ou
l’adoption n’est pas authentique et vise principalement l’acquisition d’un
statut ou d’un privilège aux termes de la Loi.
|
[21]
Subsection 63(1) of
the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27
grants the sponsor a right of appeal to the Immigration Appeal Division from an
Immigration Officer’s denial of a permanent resident visa under the family class:
|
63.
(1) A person who has filed
in the prescribed manner an application to sponsor a foreign national as a
member of the family class may appeal to the Immigration Appeal Division
against a decision not to issue the foreign national
a permanent
resident visa.
|
63. (1) Quiconque a déposé, conformément au
règlement, une demande de parrainage au titre du regroupement familial peut
interjeter appel du refus de délivrer le visa de résident permanent.
|
ISSUES
[22]
The
first issue raised by the applicant in her memorandum was whether the IAD
failed to apply the two-prong test. At the hearing, after hearing
representations from counsel for Mrs. D, the Court found that the IAD did not
err in applying only one prong of the two-prong test under section 4 of the
Regulations. In fact, the Court thought that the IAD analysis concerned mostly
the genuineness of the marriage, while counsel for Mrs. D. thought that the IAD
analysis concerned mostly whether the marriage was entered into primarily for
acquiring immigration status. These opposite impressions demonstrate that the
IAD’s analysis overlapped, and applied to both prongs of the test under section
4 of the Regulations.
[23]
Accordingly,
counsel for Mrs. D. agreed with the Court on this issue and the Court will not
provide reasons with respect to this issue.
[24]
At
the hearing, the Court also considered an issue raised by counsel for Mrs. D.,
namely that the IAD ought to have considered the applicant’s medical condition
when concluding that the answers were vague and inconsistent. During the course
of this argument, the Court noted that there
should be medical expert evidence to
explain that the vagueness and inconsistencies in Mrs. D’s evidence can be
explained by her medical condition. Many witnesses are vague and inconsistent
and that goes to their credibility, and is not related to any medical
condition. Expert evidence would be necessary to found this argument.
Accordingly, the Court and counsel for Mrs. D. both agreed that the Court need not
deal further with this issue.
[25]
The two remaining issues which counsel relied
upon at the hearing are:
1.
whether the IAD breached the principles of
natural justice by making remarks in its reasons that demonstrate a bias
against the applicant; and
2.
whether the IAD member breached natural justice
by a finding during the hearing (which is on the transcript) that the applicant
was credible, and then making a contradictory finding in its decision that the
applicant was not credible.
STANDARD OF REVIEW
[26]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of (deference) to be accorded
with regard to a particular category of question (see also Khosa v. Canada
(MCI), 2009 SCC 12, per Justice Binnie at paragraph 53).”
[27]
Mrs.
D. alleges reasonable apprehension of bias and a breach of natural justice.
These are reviewable on a correctness standard of review: Alexander v.
Canada (MCI), 2006 FC 1147, [2006]
2 F.C.R. 681, per Justice Dawson at paragraph
24; and my decision in Santos v. Canada (MCI), 2006 FC 1476, at paragraph
7.
[28]
It
is clear that as a result of Dunsmuir, supra and Khosa, supra,
at para. 58 that questions of the reasonableness of the IAD’s decision with
respect to credibility are to be reviewed on a standard of reasonableness: see
my decision in McBean v. Canada (MCI), 2009 FC 1149, per Justice
Gaunthier at para. 27; Strulovitz v. Canada (MCI), 2009 FC 435, per Justice Shore at para. 40.
[29]
In
reviewing the IAD’s decision using a standard of reasonableness, the Court will
consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” (Dunsmuir, supra at paragraph 47, Khosa, supra,
at paragraph 59).
ANALYSIS
Issue No.1: Whether the IAD breached the principles of natural justice by making
remarks in its reasons that demonstrate a bias against the applicant
[30]
Mrs.
D. submits that the IAD displayed a reasonable apprehension of bias in its
reasons based on Mrs. D.’s medical condition, age, parenthood, and employment
status.
[31]
Mrs.
D. cites paragraphs 15 and 21 of the IAD’s reasons as giving rise to a
reasonable apprehension of bias:
¶15 …no
trustworthy evidence was adduced at the hearing to help the panel understand
why the applicant’s sister thought that a disabled, unemployed, divorced woman,
with four adult children, who is older than her brother is a suitable match for
him other than for immigration purpose...
¶21 The
applicant could not adequately explain why he chose a woman, who is older than
him, has mental and other health issues, whose only source of income is the
government program which provides financial and health-related assistance to
adults with a disability, who is estranged from her adult children and
grandchildren, is less educated than him and requires care and assistance to be
a suitable candidate for marriage.
Mrs. D. submits that:
1.
the
above paragraphs mean that a disabled person, with a low level of education,
who is a parent, and is older, cannot be a suitable match for a younger person
who does not face the same barriers; and
2.
such
a conclusion is discriminatory, closed-minded and raises a reasonable
apprehension of bias.
[32]
Mrs.
D. provided the IAD with a physician’s letter which detailed her medical
conditions as follows:
1.
morbid
obesity with oedema of legs (swelling)
2.
hypertension
3.
depression;
and
4. fracture of right ankle causing
severe pain
[33]
The test for a reasonable apprehension of bias was set out by
Justice Grandpré of the Supreme Court of Canada in Committee for Justice and
Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369. The
Court stated at page 394:
As already seen by the quotation above, the apprehension of bias
must be a reasonable one held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information. In
the words of the Court of Appeal, that test is "what would an informed
person, viewing the matter realistically and practically--and having thought
the matter through--conclude. Would he think that it is more likely than not
that Mr. Crowe, whether consciously or unconsciously, would not decide
fairly."
The Court further held that the
standard for impartiality is adjustable in accordance with the circumstances of
the particular tribunal that rendered the decision under review (see also Ahumada v. Canada (MCI), 2001 FCA 97, per Justice Evans at paragraph 21).
[34]
The
IAD panel member extensively questioned Mrs. D. in regard to her suitability as
a match for Mr. Paul:
Q Well, what I’m
curious is as a result of your first marriage or failure of your first marriage,
you suffered from depression. You ultimately had to rely on the government
assistance to help you through and you lost contact with your children. So you
-- why did your husband’s sister, your current husband’s sister thought that you
are a suitable candidate for a match for your husband?
A Well, when she met
me, I was in good spirits and I was doing fairly well and she found me a happy
person and I could get happy with simple things…
…
Q So why do you think
he finds you -- so what qualities do you have that he finds attractive?
A I give him a lot of
attention. I am aware of his needs. I am also a good cook and he enjoys that about
me, as well.
Q When you say you
attend to his needs, can you give me an example?
A Like, the time a
husband and wife spend together and the attention they give each other. When I
am in India, I cook for him. I take care
of his breakfast. I spend time listening to what he says and going -- you know,
we discuss things, and that is the way a man and woman are meant to be and
probably that’s what compatibility is.
[35]
The
transcript reveals the IAD’s efforts to explore the couple’s attraction for
each other. The focus of the inquiry was to reveal Mrs. D’s positive
characteristics that made her attractive to her spouse. She failed to provide a
single characteristic that is not general and common to every relationship.
[36]
The
IAD’s questions are not phrased in a language that betray pre-judgement or an
obsession with one aspect of the applicant’s character. The panel member in
this case did not state its view on a particular subject at the outset as the
member of the Refugee Protection Divison of the Immigration and Refugee Board
member did in Santos, supra, at paragraph 25.
[37]
The
absence of objections to the IAD’s inquiries confirms the Court’s finding that
none of the hearing’s participants considered the topic of the applicant’s
suitability to be inappropriate. An examination of Mr. Paul’s testimony reveals
no improper remarks on the part of the IAD and raises more concerns with
regards to the bona fides of the marriage:
Q What qualities or
characteristics do you like about Inderjit, what--why you married her?
A When I first made
contact with her and when she was here in India, I found her to be a very nice person
and she is a sober kind of nature.
…
Q What does that mean?
A She is a good person.
Q So can you tell us
anything else about what -- other than “a good person”? Like, can you give us
any examples of what you enjoy, why you enjoy her, why you enjoy her company?
…
A Yeah, I like her company.
[38]
Mrs.
D. and Mr. Paul failed to explain to the IAD what rendered them attractive in
each other’s eyes. This inquiry goes to the core of the genuineness analysis.
It does not lie in the mouth of Mrs. D. to complain that the IAD found her to
be unsuitable for marriage to Mr. Paul because of her characteristics when
neither she nor Mr. Paul could associate any positive factors to Mrs. D. beyond
being a “good” or “nice” person.
[39]
In my view, an informed person viewing the matter realistically
and practically would not reasonably conclude that it was more likely than not
that the IAD panel, consciously or unconsciously, decided the case with bias or
a prejudiced mind. A reasonably informed person would conclude that neither
Mrs. D. nor Mr. Paul could articulate any specific characteristic that rendered
Mrs. D. attractive to Mr. Paul or vice versa.
Issue No. 2: Whether the IAD member breached natural justice by making a finding
during the course of the hearing which is on the transcript that the applicant
was credible and then making a contradictory finding in his decision that the
applicant was not credible
[40]
During
the hearing, the IAD member said at page 49 of the transcript, line 29:
… let’s have a brief discussion right now
where … I have outlined at the outset some of the areas of interest in this
case and the appellant (Mrs. D.) provided a reasonable explanation about the
circumstances of her introduction to the applicant and the role the applicant’s
sister played …
[41]
Counsel
for Mrs. D. at the hearing submits that this finding by the presiding member of
the IAD during the course of the hearing is a finding that Mrs. D’s evidence
was “credible”. Mrs. D’s counsel then states that the finding in the reasons of
the IAD member that Mrs. D’s evidence was not credible is contrary to this
finding at the hearing, and this contradiction and inconsistency by the IAD
member amounts to a breach of natural justice.
[42]
Counsel
for the respondent carefully reviewed several examples of inconsistent evidence
from Mrs. D. and Mr. Paul.
[43]
This
evidence from Mrs. D. and Mr. Paul is a reasonable basis for the conclusion of
the IAD that the evidence was not credible or inconsistent. I do not find such
a conclusion inconsistent with the member’s finding during the course of the
hearing. The member did not say that he believed Mrs. D., only that she has
provided a reasonable explanation about the circumstances of her introduction
to Mr. Paul, and the role of Mr. Paul’s sister. This is one small part of the
story.
[44]
I
need not repeat the examples of the inconsistencies in the evidence laboriously
outlined by the respondent at the hearing. Suffice to say the Court is
satisfied that:
1. the Board member’s
finding in his decision, and his comments during the hearing, are not
inconsistent. The finding during the hearing was not a finding as to
credibility, only that Mrs. D has provided a “reasonable explanation”. The IAD
member later weighed that reasonable explanation in relation to other evidence;
and
2. on the evidence it
was reasonably open for the IAD to find that the evidence from both Mr. Paul
and Mrs. D was not credible or consistent.
[45]
The
adverse credibility findings flowed from the IAD’s determination that the
couple misrepresented portions of the evidence during their testimony. There is
no breach of natural justice.
CONCLUSION
[46]
It
is not the role or function of this Court to substitute its opinion for that of
the IAD with respect to the genuineness of the marriage or whether it was
entered into primarily for immigration purposes. The IAD has had the advantage
of seeing Mrs. D while she provided her evidence, and hearing Mr. Paul when he
gave his evidence by telephone. The Court cannot second guess the IAD on these
issues. However, the Court can conclude that the allegations of bias and
inconsistent findings during the hearing in relation to the reasons raise real
issues of natural justice and fairness, which upon careful examination the
Court must conclude they are not well-founded.
[47]
For
these reasons, the Court must conclude that it was reasonably open for the IAD to
find that this was not a genuine marriage and that the marriage was entered
into primarily for immigration purposes.
CERTIFIED QUESTION
[48]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The
application for judicial review is dismissed.
“Michael
A. Kelen”
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