Date: 20100205
Docket: IMM-5686-08
Citation: 2010 FC 122
Ottawa, Ontario, February 5,
2010
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
PARAMJIT
KAUR GILL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by Paramjit Kaur Gill challenging
a decision by the Immigration Appeal Division of the Immigration and Refugee
Board (Board) which found her marriage to Baljit Singh Sandhu not to be genuine
under s. 4 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations). What makes this case somewhat unusual is that
Mr. Sandhu and Ms. Gill are the undisputed parents of a child born in
Canada on August
12, 2006.
I.
Background
[2]
Ms. Gill
entered Canada in 2002 after
having been sponsored for landing by her first husband. That marriage broke
down within a few months allegedly because of the husband’s infidelity. Not
long after the effective breakdown of Ms. Gill’s first marriage,
discussions ensued between Mr. Sandhu’s Canadian relatives and Ms. Gill’s
Indian relatives with a view to arranging their marriage. Those discussions
proved to be fruitful and Ms. Gill flew to India to marry
Mr. Sandhu. They met for the first time on March 18, 2005 and they were married
on March 25, 2005. They apparently cohabited for three weeks in India before
Ms. Gill returned to Canada to go back to work. Ms. Gill
returned to India in November
2005 and lived with Mr. Sandhu for a little over two weeks. It was during
this time that Ms. Gill became pregnant by Mr. Sandhu. Once again,
she returned to Canada to resume her employment. The parties claim to
have maintained frequent contact by telephone and mail, but they have not lived
together since.
[3]
Ms. Gill
applied to sponsor Mr. Sandhu in May 2005 and on November 14, 2005 they
were examined in India by a Visa Officer (Officer). The Officer’s
notes to the file reflect a number of concerns about the bona fides of
the marriage, including a suspicion that Ms. Gill’s first marriage might
have been one of convenience. The Officer also expressed reservations about whether
the marriage conformed with Indian cultural norms and about the couple’s
incompatibility. On March 23, 2006 the Officer refused the sponsorship
application on the basis that the marriage was not genuine and had been entered
into for the purpose of obtaining immigration status for Mr. Sandhu. The
Officer was not then aware of Ms. Gill’s pregnancy. Ms. Gill
appealed the refusal of her application to the Board and submitted DNA evidence
confirming Mr. Sandhu as the father of her child. The Board heard
evidence from Ms. Gill, Mr. Sandhu and Ms. Jatinder Kaur Singh,
Mr. Sandhu’s paternal aunt.
[4]
Notwithstanding
the intervening birth of a child, the Board denied Ms. Gill’s appeal. The
Board found that Ms. Gill and Mr. Sandhu were not credible
specifically with respect to their testimony about compatibility and the manner
in which their relationship developed. The Board also expressed concerns about
the infrequency of their visits since the wedding, an inconsistency about one
telephone call, and the speed with which Ms. Gill entered into a second
marriage. The decision contains other references to the Officer’s concerns
about the marriage not conforming to expected cultural norms and to some
inconsistencies which arose during those initial interviews, but the Board
failed to explicitly adopt those concerns as its own.
II. Issue
[5]
Did
the Board err in its treatment of the evidence concerning the genuineness of the
Applicant’s marriage?
III. Analysis
[6]
When
the Board is required to examine the genuineness of a marriage under ss. 63(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, it must
proceed with great care because the consequences of a mistake will be
catastrophic to the family. That is particularly obvious where the family
includes a child born of the relationship. The Board’s task is not an easy one
because the genuineness of personal relationships can be difficult to assess
from the outside. Behaviour that may look suspicious at first glance may be
open to simple explanation or interpretation. An example of this from this
case involves the Officer’s concern that the wedding photos looked staged and
the parties appeared uncomfortable. The simple answer, of course, is that
almost all wedding photos are staged and, in the context of an arranged
marriage, some personal awkwardness might well be expected. The subsequent
birth of a child would ordinarily be sufficient to dispel any lingering concern
of this sort. Similarly, the Board’s concern that Ms. Gill rushed into a
second marriage can perhaps be explained by the fact that her divorce may have
substantially reduced her prospects for remarriage.
[7]
When
assessing the genuineness of an arranged marriage, the Board must be careful
not to apply expectations that are more in keeping with a western marriage. By
its very nature, an arranged marriage, when viewed through a North American
cultural lens, will appear non-genuine. When a relationship involves parties
exposed to two cultures, Indian norms and traditions concerning marriage and
divorce must also be applied with some caution.
[8]
The
Board was correct in acknowledging that, in the assessment of the legitimacy of
a marriage, great weight must be attributed to the birth of a child. Where
there is no question about paternity, it would not be unreasonable to apply an
evidentiary presumption in favour of the genuineness of such a marriage. There
are many reasons for affording great significance to such an event not the
least of which is that the parties to a fraudulent marriage are unlikely to risk
the lifetime responsibilities associated with raising a child. Such a concern
is heightened in a situation like this where the parents are persons of very
modest means.
[9]
In
its assessment of this marriage, the Board noted that “strong countervailing
evidence” would be required to displace the significance of the birth of the
child. The problem with the decision is that the Board’s assessment of that “strong
countervailing evidence” largely concerned trivial, inconclusive or irrelevant
matters and ignored considerable evidence which contradicted its conclusion.
[10]
According
to the parties this was an arranged marriage which had been negotiated by their
extended families. The couple met for the first time only seven days before
their wedding on March 25, 2005 in India and have only
cohabited for about 40 days since that time. In this context the Board’s
apparent concern that Mr. Sandhu knew very little about Ms. Gill’s
life in Canada was
misplaced. The same can be said for their disagreement about whether they had
first spoken by telephone. In the situation of a marriage arranged by
third-parties, this is a largely irrelevant point and, in any event, easily
forgotten with the passage of time.
[11]
The
Board’s additional concern about the infrequency of Ms. Gill’s travel to India since the
wedding is not adequately explained. Ms. Gill testified that she did not
believe in birth control and was thus reluctant to return there and risk a
second pregnancy. This was a completely rational fear in the face of a
relationship that Citizenship and Immigration Canada had refused to recognize.
Ms. Gill also testified that she had wanted to go to India in August
2008 after Mr. Sandhu’s mother passed away, but this possibility was
stymied by an inability to obtain timely travel documents for her child. She
also said that they frequently communicated by telephone and by mail and that
she wanted the family to be together. This evidence is noted by the Board, but
never assessed. The decision simply sets out the conclusion that “[t]here does
not appear to be any genuine desire on the part of the appellant to be with her
husband”. This is the type of threadbare analysis that runs afoul of the
requirement that reasons be intelligible and justified: see Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59.
The Board’s failure to address the substantial body of evidence which
contradicted its conclusion constitutes a reviewable error: see Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264
at para. 17.
[12]
The
Board’s bare conclusion that Mr. Sandhu and Ms. Gill were not
compatible also ignores their uncontradicted evidence that they were both Sikhs,
they both spoke Punjabi, they both had grade-5 educations, they both held
comparable levels of employment, and they both came from rural settings. The
only potential contradiction to this was the Board’s observation that their
respective ages and Ms. Gill’s status as a divorced person were
inconsistent with prevailing cultural norms in India. The idea
of a preferred age differential does not mean that marriages that fall slightly
outside of the range do not occur. The same can be said for the Indian cultural
view on divorce. Presumably marriages between previously unmarried persons and
divorced persons do take place in India. The evidence also
indicated that the Indian cultural stigma concerning divorce was diminished
where no children were born of the first marriage and where the divorce was
seen as the fault of the other party. In this case, Ms. Gill’s divorce
was said to be the result of her first husband’s adultery and there were no
children of that relationship. The Board failed to take any note of these highly
relevant considerations and thus failed to fulfill the obligation to consider
all of the evidence and not just the evidence that confirmed its negative
conclusion.
[13]
Finally,
the Board treated the two conjunctive elements of s. 4 of the Regulations as
though they were the same. Evidence which bears on the issue of an immigration
motive to obtain status in Canada may well be different from the evidence
which is relevant to the genuineness of a marriage. In this case some
consideration of Mr. Sandhu’s situation in India before his introduction
to Ms. Gill would have been useful in determining whether he had a desire
to leave India for Canada for reasons
other than marriage.
IV. Conclusion
[14]
The
cumulative deficiencies in the Board’s analysis are sufficiently grave that
this matter must be returned for reconsideration on the merits.
[15]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the
matter to be returned for redetermination on the merits by a different
decision-maker.
“ R. L. Barnes ”
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