Date:
20120719
Docket:
IMM-238-12
Citation:
2012 FC 903
Ottawa, Ontario, July 19, 2012
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
|
HARKAMALJIT KAM NIJJAR
|
|
|
Applicant
|
and
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
Respondent
|
|
|
|
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
Harkamaljit
Kam Nijar [the
Applicant] applies for judicial review of a decision of the Immigration Appeal
Division [the IAD] of the Immigration and Refugee Board dated December 15,
2011, wherein the IAD denied the Applicant’s appeal from a visa officer’s
refusal of her application to sponsor her husband for a permanent resident visa
because the Applicant’s marriage was determined (i) not to be genuine and (ii)
entered into primarily for the purpose of acquiring a status or privilege under
the Act [the Decision]. This application is made pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act].
[2]
The
Applicant is 43 years old and is a Canadian resident and citizen. In India she completed primary school and five years of high school but she did not graduate.
She was married to her first husband on March 23, 2003 and came to Canada from India on October 9, 2004 as a spouse. The Applicant and her husband divorced on November
3, 2008. According to the Applicant’s affidavit evidence, their marriage broke
down because he did not want to have children.
[3]
The
Applicant met her current husband, Harpal Singh Nijjar [the Husband], in India on February 24, 2010.
[4]
Their
meeting was arranged by a matchmaker who is a distant relative directly and by
marriage of both parties.
[5]
The
Husband is 31 year old citizen of India. At their initial meeting in India the Applicant and her Husband [the Couple] spoke alone for approximately one
half-hour [the First Meeting]. The Couple met again the next day, along with
members of the Husband’s family, and decided to marry [the Second Meeting].
[6]
The
Husband has two years of high school education and works as a farm labourer.
The Applicant is currently employed at McDonalds.
[7]
The
Couple’s marriage took place in India on March 7, 2010 and they went on a brief
honeymoon to Kulu Manali. Thereafter, they returned to the Husband’s home and
then made a number of short trips. During this time they also made arrangements
concerning the Husband’s paperwork for immigration to Canada. The Applicant returned to Canada on April 21, 2010.
[8]
The
Applicant discovered that she was pregnant on May 28, 2010 but had a
miscarriage on June 7, 2010.
[9]
The
Husband was interviewed by a visa officer [the Visa Officer] on January 11,
2011 and his sponsorship application was refused on January 12, 2011 [the
Sponsorship Decision].
[10]
On
March 8, 2011, the Applicant travelled back to India to visit her Husband. She
states that during this time the Couple spent time together at home, visited
relatives and friends, and travelled to visit religious and tourist sites.
During the visit, the Applicant also met with a lawyer to complete the
Husband’s immigration papers. She returned to Canada after staying in India for two months.
[11]
On
October 3, 2011, the Couple attended a hearing before the IAD [the Hearing] to
appeal the Sponsorship Decision. The Applicant states in her affidavit that,
prior to the Hearing, she met briefly with the immigration consultant the
Couple hired to represent them [the Consultant]. The Husband met the Consultant
for the first time on the day of the Hearing.
[12]
The
IAD dismissed the Applicant’s appeal on December 15, 2011.
THE DECISION
[13]
The
IAD observed that there are two separate tests for determining who is and who
is not a spouse pursuant to subsection 4(1) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [the Regulations]. It reads:
4. (1) For the purposes of these Regulations, a foreign
national shall not be considered a spouse, a common-law partner or a conjugal
partner of a person if the marriage, common-law partnership or conjugal
partnership
(a) was
entered into primarily for the purpose of acquiring any status or privilege
under the Act; or
(b) is
not genuine.
|
4. (1) Pour l’application du présent règlement, l’étranger
n’est pas considéré comme étant l’époux, le conjoint de fait ou le partenaire
conjugal d’une personne si le mariage ou la relation des conjoints de fait ou
des partenaires conjugaux, selon le cas :
a) visait principalement l’acquisition
d’un statut ou d’un privilège sous le régime de la Loi;
b) n’est pas authentique.
|
The marriage is not
genuine
[14]
The
IAD began with this issue and noted that the existence of a genuine marriage is
a question of fact and “includes a mix of the past, current and future state of
affairs in the relationship.” It stated that the onus of proof is on the Applicant
to show, on a balance of probabilities, that the sponsored individual is not
disqualified as a spouse.
[15]
The
IAD concluded that the evidence did not indicate a genuine spousal relationship
between the Applicant and the Husband, based on “significant gaps,
discrepancies and inconsistencies” in the evidence. The IAD provided the
following examples:
(i)
The
Couple provided no satisfactory explanation about why the Husband and his
family considered the marriage to be an acceptable match given the age
difference between the two and the fact that the Applicant had previously been married;
(ii)
The
IAD found that it was not credible that the Couple and their families would
enter into the marriage so quickly given these “incompatibilities”;
(iii)
The
Husband was not able to explain why this was a good match;
(iv)
The
Husband could not say what the Couple discussed at the First Meeting;
(v)
The
Husband could not say whether the Couple had private discussions at the Second
Meeting;
(vi)
The
Husband could not say why the Applicant had divorced and wanted to remarry;
(vii)
The
Husband could not describe the relationship between the Applicant and the
couple who took the role of her parents at the wedding;
(viii)
The
Husband could not provide details of the Applicant’s miscarriage;
(ix)
The
Husband could not provide details of the Applicant’s living accommodations;
(x)
The
Husband did not know how often the Applicant attends the gurdwara.
[16]
The
IAD concluded that the Husband had not bothered to learn or remember personal
information about the Applicant because he did not intend the marriage to be a
lasting relationship.
[17]
As
discussed below, the Applicant says that seven of these conclusions are
erroneous because the Board ignored relevant evidence.
The marriage was
entered into primarily for the purpose of acquiring a status
or privilege under the Act
[18]
The
IAD also concluded that the marriage was arranged primarily to allow the
Husband to acquire permanent resident status in Canada. In addition to the
evidence described above, the IAD also cited the following evidence on which it
based this conclusion:
- The Husband did
not tell the Applicant that he had travelled abroad to Thailand since the marriage;
- There were
contradictions in the Couple’s evidence regarding:
- Where
the Couple will live in the future;
- Whether
the Couple have discussed sponsoring the Husband’s parents to come to Canada; and
- Whether
the Applicant ever asked her Husband if he intended to marry her in order
to come to Canada.
[19]
The
IAD found that the Couple failed to demonstrate that they have developed or are
developing a genuine spousal relationship.
THE ISSUES
[20]
The
Applicant raises the following issues:
- Did
the IAD ignore and/or misconstrue relevant evidence?
- Was
there a breach of procedural fairness either because the IAD displayed
bias or because the Couple’s immigration consultant was incompetent?
THE STANDARD OF
REVIEW
[21]
Counsel
for the parties agreed at the hearing and I accept that “reasonableness” is the
applicable standard of review.
Issue 1
(i) The Husband’s
knowledge about the breakdown of the Applicant’s first marriage
[22]
The
IAD concluded that
it was not credible that the Husband did not have more knowledge about the
breakdown of the Applicant’s first marriage. The Applicant says, and I agree,
that the IAD ignored the Husband’s testimony on this point, in which he
demonstrated knowledge of the marriage breakdown. He said:
Board: Do you know what the reason was that her
first marriage broke up?
Husband: Well, from whatever little she told me, I
understand that she wanted a baby but however I did not dwell too much on this
subject because she kind of gets tense, so I have not touched these issues much.
[23]
The
Applicant also says that the Husband told the Visa Officer that the Applicant
divorced because she wanted children and her first husband already had
children.
(ii) The
suitability of the match between the Applicant and her Husband
[24]
The
IAD found that it was not credible that the Couple and their families would
enter into a spousal relationship so quickly given their 12 year age difference
and the Applicant’s prior divorce.
[25]
The
Applicant says, and I agree, that the IAD ignored the Husband’s testimony that
his parents were initially reluctant about the marriage. The Husband testified
that he convinced his parents that the Couple shared similar views and that she
was a nice person, after which they agreed that the marriage should proceed.
The Applicant argues that this is evidence that the marriage was well thought
out and not hasty.
(iii) The
Husband’s inability to explain why the match was a good one
[26]
The
IAD found it was not credible that the Husband was unable to explain why his
match with the Applicant was a good one. However, I have determined that the
following evidence was ignored by the Board:
- In
his testimony before the IAD, the Husband described two previous marriage
prospects. One he found to be too highly educated and he rejected the
other because of her appearance;
- The
Husband explained during his interview with the Visa Officer that although
the Applicant was 12 years older she did not look her age. He also
explained that she was from a good family and was a nice girl;
- The
Husband testified before the IAD that he and the Applicant shared similar
views and that she was not too well educated.
[27]
In
my view, this evidence shows that the Husband had in his mind a particular type
of person that he wanted to marry, and that the Applicant fit his criteria.
This provided an explanation for why the match was a good one.
(iv) The
Husband’s knowledge of personal details about the Applicant
[28]
The
IAD concluded that the Husband had insufficient knowledge of the Applicant’s
personal details and circumstances. However, I accept the Applicant’s
submissions that the IAD ignored the following evidence:
- The
Miscarriage – although the Husband did not know the
precise month in which he was advised of the pregnancy or the miscarriage,
he knew the correct days (i.e. the pregnancy occurred on the 28th
or 29th” and the miscarriage occurred on the 7th).
As well phone records showed that they spoke on both dates.
- Living
accommodations – the Husband testified that the Applicant
owned a two-level house in partnership with another person; the Applicant
lived in the upstairs part of the house; the basement was empty and
belonged to the partner; and the Applicant paid $800/month toward the mortgage.
- Applicant’s
employment – the Husband testified that the Applicant works
at McDonalds and has been doing so for the past 4-5 years. He also
testified that the Applicant walked to work, which was about 15 minutes
from her home.
(v) Evidence
regarding the development of a genuine spousal relationship
[29]
The
IAD found that the evidence did not demonstrate that the Couple had developed
or are developing a genuine spousal relationship. However, the Applicant points
to several pieces of evidence which she says contradict the IAD’s finding:
- The
Applicant and her Husband both testified that they went on a honeymoon to
Kulu Manali and stayed at two hotels while there. However, there was some question
based on the receipts and the Husband’s statements to the Visa Officer
about whether they stayed for three or four nights;
- The
Applicant testified about the various places the Couple visited together
during her trips to India in 2010 and 2011;
- The
Applicant and her Husband both testified that the Husband would have to
find a job once he came to Canada;
- “Extensive”
phone records from both the Applicant and her Husband were part of the
record before the IAD. They showed frequent communication between the two
(a total of 660 calls) and, in particular, showed calls on the date the
Applicant learned she was pregnant and on the day of her miscarriage. It
is noteworthy that the IAD seemed to disparage the documentary evidence
about the regular phone communication between the Applicant and her
Husband. For some reason it spoke of the “alleged” communication since the
marriage. This language is unreasonable given that there was no suggestion
that the records were false and given that, in the preceding paragraph of
the Decision, the IAD had described them as part of “favourable evidence”.
- The
Applicant provided evidence from her doctor in Canada confirming her
pregnancy and subsequent miscarriage.
- Wedding
photographs showing a reception and pre- and post-wedding ceremonies and
the honeymoon were provided as part of the record before the IAD;
- The
Applicant testified that her pregnancy was planned.
[30]
However,
there were also discrepancies in the evidence which suggest that the Couple is
not in a genuine spousal relationship. They included:
·
The
fact that the Husband visited Thailand after the marriage. Before the IAD, he
testified that he had told the Applicant about the trip but she testified that
she was not aware that he had travelled outside India after their wedding;
·
The
fact that the Applicant testified that she and her Husband had discussed
sponsoring his parents to come to Canada and had agreed with his parents that
they would come to Canada only after the marriage of another of their sons who
lived in Spain. However, the Husband denied that the subject had been given any
thought and denies having discussed it with his parents;
·
The
fact that the Applicant and her Husband could not accurately describe each
others’ religious observance. The Applicant said her Husband attended the gurdwara
twice a day yet he said he attended once or twice a week. The Applicant said
she attends once or twice a month but the Husband said she never attended.
Conclusion on
the First Issue
[31]
There
is no question that the IAD ignored significant evidence on material issues and
therefore overstated the gaps and inconsistencies in the evidence. This failure
means that it cannot be said that the IAD considered the “totality” of the
evidence. However, in my view, this was only part of the problem with the
Decision. It also fails to squarely address the fact that the Couple conceived
a child and, but for the miscarriage, would now share responsibility for a
sixteen month old toddler. The birth of a child, as
Mr. Justice Barnes of this Court said in Gill v Canada (Citizenship and Immigration), 2010 FC 122 at para 8 should be accorded great
weight by the Board in assessing the genuiness of the marriage. The fact that
the Decision did not focus on this aspect of the evidence also makes it
unreasonable.
[32]
In
view of this conclusion, it is not necessary to consider the second issue.
CERTIFIED
QUESTION
[33]
No
question was posed for certification under section 74 of the Act.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application is allowed. The appeal of the Visa Officer’s disqualification of
the Husband’s as a spouse under subsection 4(1) of the Regulations and the
resulting negative sponsorship Decision of January 12, 2012 is to be
reconsidered by another member of the IAD. Fresh evidence may be filed by both
parties on the reconsideration.
“Sandra
J. Simpson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-238-12
STYLE OF CAUSE: NIJJAR
v MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 27, 2012
REASONS FOR JUDGMENT: SIMPSON
J.
DATED: July 19, 2012
APPEARANCES:
Kamaljit Kaur Lehal
|
FOR THE APPLICANT
|
Hilla Aharon
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
Lehal & Company
Delta, British Columbia
|
FOR THE APPLICANT
|
Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|