Docket: IMM-5587-11
Citation: 2012 FC 515
Ottawa, Ontario, May 3, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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HARMANPRIT KAUR SIDHU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board,
dated 30 August 2011 (Decision), which refused the Applicant’s appeal. The
Applicant appealed to the IAD from the decision of an immigration officer at
the Canadian High Commission in New Delhi, India (Officer),
in which the Officer refused her husband’s permanent resident application
because he found their marriage was not genuine.
BACKGROUND
[2]
The
Applicant is a 22-year-old Canadian citizen currently living in Toronto. Her husband
(Grewal) is an Indian citizen currently living in India.
[3]
The
Applicant and Grewal are Sikh. This is the first marriage for both of them.
Before they met, the Applicant’s family placed an advertisement in the Sunday
Tribune, an English language newspaper published in Chandigarh, India. Grewal’s
family responded to the advertisement on 10 July 2008 and contacted the
Applicant’s family by telephone. Grewal’s uncle, Bhagwant Singh Grewal
(Bhagwant), a colleague of the Applicant’s father, lives in Toronto; Grewal’s family
sent Bhagwant to investigate the Applicant and her family in July 2008.
[4]
After
Bhagwant gave a positive report to Grewal’s family in India, the
Applicant travelled there to meet Grewal. When she arrived in India on 22 July
2008, the Applicant met Grewal and his family for the first time. They met her
at the airport and escorted her to Ludhiana, India where she
stayed with Pritam Carpanch, a friend of Grewal’s family. The couple celebrated
engagement ceremonies between 24 and 27 July 2008, then celebrated their
wedding on 28 July 2008.
[5]
After
the wedding, they went on their honeymoon to various places in India. The
Applicant returned to Canada on 24 August 2008. Grewal applied for a
permanent resident visa as a member of the Family Class on 9 February 2009 with
the Applicant as his sponsor. The Officer interviewed Grewal on 25 May 2009 and
later found the marriage was not genuine, so he denied Grewal’s application for
permanent residence.
[6]
After
the couple was married, the Applicant travelled twice to India to visit
Grewal. She was in India from 21 May 2009 to 3 June 2009 and from 2
March 2011 to 14 March 2011.
[7]
The
Applicant appealed the Officer’s decision to the IAD on 8 April 2009 under
subsection 63(1) of the Act. To support her appeal, she provided documents from
her three trips to India, including hotel and restaurant bills and plane
tickets. She also provided photos which she said were taken at the various
ceremonies leading up to and including her wedding, as well as many cards
Grewal had sent to her during their marriage. The Applicant also provided
copies of phone records which purported to show phone calls between the couple
while Grewal was in India and she was in Canada.
[8]
The
IAD heard the Appeal over two sittings, the first on 18 May 2011 and the second
on 9 August 2011. In addition to the documentary evidence the Applicant
submitted, she called several witnesses to show her marriage was genuine. The
Applicant testified in person, as did Bhagwant. Grewal, his mother, and a
friend of his family (Brar) testified by telephone from India. At the end
of the second hearing, the IAD gave its Decision orally. It concluded that the
marriage was not genuine, so it dismissed the appeal and denied Grewal a
permanent resident visa. This is the Decision under review in this application.
DECISION
UNDER REVIEW
[9]
In
its oral reasons which it reduced to writing, signed on 30 August 2011, the IAD
noted that neither the Applicant nor the Respondent contested the formal
validity of the marriage. The issue before the IAD was whether the marriage was
genuine under the Immigration and Refugee Protection Regulations SOR/2002-227
(Regulations).
[10]
The
IAD reviewed the events leading up to the engagement and marriage, including
the Applicant’s trip to India on 22 July 2008. It noted that, after she
came back to Canada on 24 August
2008, the Applicant returned to India twice.
Pre-Marriage Evidence
[11]
The
IAD found that the genuineness of the marriage depended in large part on the
couple’s credibility. The IAD noted that Chavez v Canada (Minister of
Citizenship and Immigration), [2005] IADD No 353 established the
factors that must be examined to determine if a marriage is genuine. It found
that, because the marriage was arranged, evidence showing the events leading up
to the marriage were not relevant. The witnesses, other than the couple
themselves, could only speak to the events which led up to the marriage. The
IAD therefore focussed on post-marriage evidence to determine if the marriage
is genuine.
[12]
Although
Bhagwant and Brar testified at the hearing, the IAD found that their testimony
only established the mechanics of how the couple met. Since the IAD was
required to look at the post-marriage evidence, it found that the evidence of
these witnesses could not show whether the marriage was genuine. The IAD found
that Bhagwant and Brar were credible and believed what they said, but found
that their testimony only established that the marriage had taken place, not
that it was genuine.
[13]
The
IAD also examined Brar’s testimony in detail. He testified that he went to the
wedding and later had tea with the couple. He believed the marriage was genuine
but he had not said why he believed this. The IAD believed that he was credible
but found that his belief was not germane to the issue before it.
[14]
The
IAD accepted that there were no obvious incompatibilities in the case. However,
compatible ages, religion, heritage and language, do not lead to the conclusion
that the marriage is genuine. The IAD found that these factors showed the
mechanics of the arrangement, but were not evidence that the marriage was
genuine.
Documentary Evidence
[15]
Looking
at the factors in Chavez, above, the IAD found that there was no
evidence before it of any financial intermingling or gifts from Grewal to the
Applicant. The IAD noted that Grewal is wealthy, but the Applicant is not and
is entirely supported by her father. The couple had also not explained why
there was no financial intermingling or gifts between them.
[16]
The
IAD looked at a life insurance policy the Applicant had bought to cover Grewal
and found that Grewal was unaware that this policy existed. It also noted that
the Applicant testified that she bought the policy on the advice of her lawyer
after the Officer refused Grewal’s application for a permanent resident visa. The
IAD found that the Applicant was not motivated by her marital relationship to
buy the insurance, but had intended to manufacture evidence to support her
appeal.
[17]
The
IAD also looked at the documents the Applicant submitted from her three trips
to India. It found
that the hotel and restaurant bills only showed she was at a hotel and ate a
meal. Applicant’s counsel had not directed her to any of these documents in her
oral testimony to show how they were significant.
[18]
The
IAD also found the phone records did not show the marriage was genuine. These
records showed that two telephones were connected, one in Toronto and one in India. The IAD
noted that some of the calls from the Applicant’s number in Toronto to Grewal’s
number in India occurred while she was in India in May and
June of 2009. Because there was no evidence before it as to who was actually
making the calls, the timing of these calls led the IAD to doubt the probative
value of the phone bills. Further, the IAD said that what was important was not
the fact that calls were made, but the couple’s knowledge of one another
because of the calls.
[19]
The
IAD further found that the greeting cards the Applicant had did not show that
the marriage was genuine. The cards from Grewal to the Applicant were written
in English. Although Grewal testified at the hearing that he could write in
English (see page 554 of the Certified Tribunal Record (CTR)), the IAD found
that he said he could speak English but had not said he could write in English.
Also, there was nothing to show whether the cards were written before or after
the Officer refused Grewal’s permanent resident visa; they were not dated and
there were no envelopes to show when they were sent. The IAD further questioned
why Grewal would send Christmas cards to the Applicant when they are not
Christian. The IAD said that, if they actually celebrated some elements of
Christmas, the Applicant should have submitted evidence to show the weight the
IAD could put on this fact.
[20]
The
IAD also looked at the photos, but found there was no way of knowing when they
were taken.
Oral
Evidence
[21]
In
addition to the documentary evidence, the IAD also examined the oral evidence
and found a number of inconsistencies in the testimony. The IAD noted that
inconsistencies in evidence given by spouses, where they are germane to the
genuineness of the marriage, are significant and found that the inconsistencies
in the couple’s evidence were directly related to the issues in the appeal
before it.
[22]
First,
although the couple testified they spoke on the telephone regularly, the IAD
found the only thing Grewal could say about the Applicant was that she was
pretty. The IAD said that it did not expect him to know much about her before
the wedding, but it expected him to know about her given the amount of time
they said they spoke together. Had they spoken on the phone as suggested by the
phone records, the IAD found that Grewal would know more about the Applicant.
[23]
Second,
the IAD found inconsistencies in the testimony about the Applicant’s first trip
to India in 2008. She
said it took eight hours to get to Ludhiana from the airport and
they had plenty of time to talk with each other on the way because their
families left them alone. Grewal, however, testified that it took three hours
to get to Ludhiana and they had
not talked very much because they had no privacy. The Applicant also said they
shared butter chicken when they stopped for a meal on the way; Grewal, however,
testified he had roti and she had a burger.
[24]
Third,
Grewal testified he had taken English courses for one month after they were
married. The Applicant said he had taken English courses for six months.
[25]
Fourth,
the Applicant said she sleeps on the left side of the bed; he said she switched
sides.
[26]
Fifth,
Grewal said the land his family owned, which he stood to inherit as the only
son, was worth five million rupees; the Applicant said it was worth one million
rupees. The IAD said it could not accept that the couple would not discuss the
value of the land when it was their future security.
[27]
Sixth,
the Applicant said she wanted to become an early childhood educator; Grewal
said that she wanted to become a teacher, but he did not know what kind.
[28]
Seventh,
the Applicant said she had not had any help from a consultant in preparing her
forms, though the CAIPS notes on her file indicated that she had. Grewal
testified he had used a consultant named Harvey to help with
the forms, but did not know if the Applicant had used a consultant as well. The
IAD found that Chavez, above, establishes that the preparation of an
application is something which is presumed to be discussed. It also found the
fact Grewal did not know whether the Applicant had assistance was not an
indication of a genuine marriage.
[29]
Eighth,
the Applicant testified she asked Grewal to practise his English, but Grewal
said she had not asked him to practise.
[30]
Ninth,
the Applicant said she returned to Canada in August 2008, after
being married for only one month because she had to work. It came out at the
hearing that the Applicant began to work in October 2009 – nearly a year after
she returned to Canada. Grewal said she began to work at Tim Horton’s
in 2008, shortly after she returned to Canada after the
wedding and honeymoon. The IAD found the Applicant had not worked at Tim
Horton’s, and, if the marriage was genuine, Grewal would know if his wife was
employed.
[31]
Finally,
the IAD asked the Applicant why the cards were written in English. She said she
had asked Grewal to write them in English. When the Respondent’s counsel asked Grewal
if the Applicant had asked him to write the cards in English, he said no.
Conclusion
[32]
The
IAD found the inconsistencies in the couple’s testimony were not insignificant
or tangential. There was no other evidence besides technical information as to
how they met and celebrated their marriage. It found that the there was no
evidence before it that established that their marriage was genuine. The
insurance policy was contrived for the appeal and the phone records were
unreliable because they showed calls between the couple while she was in India. Further,
the couple’s oral evidence was inconsistent, which also demonstrated that the
marriage was not genuine.
[33]
The
Applicant and Respondent disagreed on whether section 4 of the Regulations
(SOR/2004-167) or the amended subsection 4(1) of the Regulations (SOR/2010-208)
applied. Under the previous section 4, Grewal would not be a spouse for the
purpose of the Act if the marriage was not genuine and was entered into for the
purpose of gaining a permanent resident visa. Under the amended subsection
4(1), Grewal would not be a spouse for the purposes of the Act if the marriage
were not genuine, or it was entered into primarily to support his application
for a permanent resident visa. The IAD found that the marriage was both
not genuine and was entered into primarily for the purpose of gaining permanent
residence in Canada, so Grewal
could not be a spouse under either provision of the Regulations.
STATUORY
PROVISIONS
[34]
The
following provisions of the Act are applicable in this proceeding:
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11. (1) A foreign national must, before
entering
Canada, apply to an officer for a visa or for any other
document required by the regulations. The visa or document may be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
12. (1) A foreign national may be selected as
a member of the family class on the basis of their relationship as the
spouse, common-law partner, child, parent or other prescribed family member of
a Canadian citizen or permanent resident.
[…]
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.
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11. (1)
L’étranger doit, préalablement à son
entrée au Canada,
demander à l’agent les visa et autres documents requis par règlement. L’agent
peut les délivrer sur preuve, à la suite d’un contrôle, que l’étranger n’est
pas interdit de territoire et se conforme à la présente loi.
12. (1) La
sélection des étrangers de la catégorie «regroupement familial» se fait en
fonction de la relation qu’ils ont avec un citoyen canadien ou un résident
permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père ou mère
ou à titre d’autre membre de la famille prévu par règlement.
[…]
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.
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[35]
The
following provisions of the Regulations are also applicable in this proceeding:
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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.
[…]
116. For the purposes of subsection 12(1) of
the Act, the family class is hereby prescribed as a class of persons who may become
permanent residents on the basis of the requirements of this Division.
117. (1) A foreign national is a member of
the family class if, with respect to a sponsor, the foreign national is
(a) the sponsor's spouse, common-law partner or conjugal partner;
[…]
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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.
[…]
116. Pour
l’application du paragraphe 12(1) de la Loi, la catégorie du regroupement
familial est une catégorie réglementaire de personnes qui peuvent devenir
résidents permanents sur le fondement des exigences prévues à la présente
section.
117. (1)
Appartiennent à la catégorie du regroupement familial du fait de la relation
qu’ils ont avec le répondant les étrangers suivants :
a) son époux, conjoint de fait ou partenaire conjugal;
[…]
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ISSUES
[36]
The
Applicant raises the following issues in this application:
a.
Whether
the IAD breached her right to procedural fairness by not putting its concerns
to her;
b.
Whether
the IAD’s conclusion that the marriage was not genuine was reasonable;
c.
Whether
the IAD overemphasized some of the Chavez, above, factors at the expense
of others;
d.
Whether
the IAD’s reasons are adequate.
STANDARD OF
REVIEW
[37]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[38]
The
first issue the Applicant has raised implicates her opportunity to respond to
the case against her (see Dios v Canada (Minister of Citizenship and
Immigration) 2008 FC 1322 at paragraph 22, Adil v Canada (Minister of
Citizenship and Immigration) 2010 FC 987 at paragraph 17, and Rukmangathan
v Canada (Minister of Citizenship and Immigration) 2004 FC 284 at paragraph
22). In Canadian Union of Public Employees
(C.U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29, the Supreme Court of
Canada held at paragraph 100 that the “It is for the courts, not the Minister,
to provide the legal answer to procedural fairness questions.” Further, the
Federal Court of Appeal in Sketchley v Canada (Attorney General) 2005 FCA 404
at paragraph 53 held that the “procedural fairness element is reviewed as a
question of law. No deference is due. The decision-maker has either complied
with the content of the duty of fairness appropriate for the particular
circumstances, or has breached this duty.” The standard of review with respect
to the first issue is correctness.
[39]
Recently, Justice Donald Rennie held that the determination of
whether a marriage is genuine is a question of fact to be evaluated on the
reasonableness standard (see Chen v Canada (Minister
of Citizenship and Immigration) 2011 FC 1268 at paragraph 4.)
Justice Anne Mactavish made a similar finding in Buenavista v Canada (Minister
of Citizenship and Immigration) 2008 FC 609 at paragraphs 4 and 5.
As the Supreme Court of Canada held in Dunsmuir, above, at paragraph 47,
the standard of review on questions of fact is generally reasonableness. The
standard of review on the second issue is reasonableness.
[40]
The third issue the Applicant has raised challenges the IAD’s
application of the factors enumerated in Chavez, above, which guide
decision-makers in assessing whether a marriage is genuine. Which factors go
into the analysis of whether a marriage is genuine involves the IAD’s
interpretation of its enabling statute which, following Dunsmuir, above,
at paragraph 60, will generally be subject to the reasonableness standard. (see
also Smith v Alliance Pipeline Ltd. 2011 SCC 7 at paragraph 28 and Celgene
Corp. v Canada (Attorney General) 2011 SCC 1 at paragraph 33). Further,
where a decision maker is called on to balance factors, the balancing of those
factors is subject to the reasonableness standard (see Suresh v Canada (Minister
of Citizenship and Immigration) 2002 SCC 1 at paragraph 29). The
standard of review on the third issue is reasonableness.
[41]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[42]
As
regards the adequacy of reasons, the Supreme Court of Canada held in Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board) 2011 SCC 62, that this is not a freestanding
ground for quashing a decision (see paragraph 14). Rather, the reviewing court
is to examine the reasons together with the record to determine if the outcome
is within a range of possible, acceptable outcomes. Where the reasons and the
record together show the Decision is in the Dunsmuir range, the Decision
will stand.
ARGUMENTS
The Applicant
The
Decision is Unreasonable
[43]
The
Applicant argues that it was unreasonable for the IAD to conclude that her
marriage to Grewal is not genuine and was entered into primarily to allow
Grewal to gain permanent resident status in Canada. The IAD
ignored relevant evidence, made unreasonable inferences, and drew speculative
conclusions. The IAD also reviewed the evidence before it microscopically.
[44]
The
Applicant notes that Maldonado v Canada (Minister of
Citizenship and Immigration), [1979] FCJ No 248 establishes that
witnesses are presumed to tell the truth unless there is a reason to doubt
their testimony. Conclusions on admissibility cannot be made on speculation,
but must be made on evidence. Further, credible and trustworthy evidence may
not be ignored, and evidence can only be rejected for valid reasons. Although
not all of the evidence before a decision-maker must be mentioned, important
evidence which has not been mentioned and contradicts the IAD’s findings of
fact may lead the Court to infer that it was not considered and that the IAD’s
findings were not based on all of the evidence.
Documentary
Evidence
Phone Bills
[45]
The
IAD found that the phone bills did not demonstrate the marriage to be genuine
and only showed that two phones were connected. It also found that the phone
bills were unreliable because they showed phone calls between Grewal’s number
in India and the
Applicant’s number in Toronto while she was in India. The
Applicant says that phone bills are evidence of communication between spouses,
so they support the marriage as being genuine.
[46]
The
phone bills also corroborate the evidence Grewal’s mother gave at the hearing.
She testified that the couple spoke on the phone every day. When the IAD found
that the phone bills only showed that two phones were connected, it made a
disguised negative credibility finding. It also ignored the couple’s testimony
that they spoke on the phone every day. By finding that the phone bills did not
show that the couple was constantly communicating, the IAD in effect
disbelieved the oral testimony which, following Maldonado, above, it
should have presumed to be true. Such a credibility finding requires clear
reasons which were not given in this case.
[47]
The
IAD also ignored evidence that the Applicant and Grewal know a lot about one
another. Each knows about the other’s background, current job, interests, and
family illnesses. The Applicant points to Owusu v Canada (Minister of
Citizenship and Immigration) 2006 FC 1195 at paragraphs 19 and 20, and
says the IAD must be sensitive to the fact that this is in an overseas
relationship. The lack of such sensitivity in this case renders the Decision
unreasonable.
Financial
Intermingling
[48]
The
IAD’s conclusion that there was no evidence of financial intermingling between
the couple was unreasonable. The evidence before the IAD showed that Grewal’s
uncle paid for the Applicant’s ticket to India in March
2011, which is evidence of financial intermingling. The couple also went
shopping for suits and jewelry when the Applicant was last in India. She says
that there is no reason to conclude that Grewal did not pay for these items, so
it was speculative for the IAD to decide that he had never given the Applicant
any gifts.
[49]
When
the IAD found that Grewal should be supporting the Applicant because he is
wealthy and she is not, it imposed its own standards on their relationship. It
also speculated that the Applicant’s father provides for her and assumed,
without asking, that the Couple had not exchanged gifts during their marriage.
Greeting
Cards
[50]
The
IAD’s treatment of the greeting cards was also unreasonable. The Applicant’s
testimony that she celebrates Christmas and that Grewal can write in English
addressed the IAD’s concerns about the cards. The IAD ignored this testimony
and unreasonably gave no weight to the greeting cards.
Photographs
[51]
The
IAD’s finding that there was no way to determine when the photos were taken was
unreasonable. In the record filed to support the appeal to the IAD, the
Applicant grouped the photos under separate tabs according to the event they
depicted. This was a means by which the IAD could determine when the photos
were taken; the IAD simply ignored this evidence and the Applicant’s testimony
about when the photos were taken.
Plane Tickets
[52]
Although
the IAD mentioned her three trips to India in the Decision, it did
not analyse the plane tickets which show these trips actually occurred. The
tickets were evidence that the Applicant visited Grewal at great expense. The
IAD was required to give reasons why it did not rely on these tickets but it unreasonably
failed to do so
Restaurant
Bills
[53]
In
addition, the Applicant challenges the IAD’s treatment of the restaurant bills
from her trip to India. It is reasonable to infer she went for meals
with someone else besides Grewal because the bills show food purchased for more
than one person. She also testified that she spent time with Grewal on this
trip and says the receipts show this was the case. The IAD did not ask any
questions about these receipts and should have put any concerns it had to the
Applicant.
Oral Evidence
[54]
In
addition to its unreasonable analysis of the documentary evidence, the
Applicant argues the IAD improperly and unreasonably analysed the oral evidence
put forward at the hearing.
The Couple’s
Testimony
[55]
Contrary
to the jurisprudence of this Court, the IAD analysed the couple’s testimony
microscopically. Although the IAD identified inconsistencies in their
testimony, several of those inconsistencies were only tangential to the issue
before the IAD. As examples of this, the Applicant points to the
inconsistencies on the length of the trip from the airport to Grewal’s house,
what they ate when they stopped on the way to Grewal’s house, the side of the
bed she sleeps on, and whether she asked Grewal to speak English. These are
matters which do not go to the genuineness of her marriage to Grewal.
[56]
Although
the couple’s testimony about the length of the car ride on the Applicant’s
first visit to India was inconsistent, the length of the ride is not
relevant. Both of them said the ride was long and they were consistent in their
testimony that Grewal’s family met the Applicant at the airport. They were also
consistent in their testimony that they were able to spend time together;
although she said they spent a lot of time together and he said they spent
hardly any time together. This is an inconsequential and subjective
distinction.
[57]
All
of the inconsistencies identified by the IAD resulted from a microscopic
analysis of the couple’s testimony. It was not reasonable for the IAD to
require knowledge from them about specific details of their lives. On the
totality of the evidence, Grewal and the Applicant know about each other and
their future plans. They also know about each other’s family, current
profession, and were consistent in their testimony about the arranged marriage,
engagement, wedding ceremonies, and their honeymoon. This evidence was
relevant, but the IAD disregarded it.
[58]
The
couple gave consistent testimony. They both testified that Grewal took English
lessons, even though they were not consistent on the length of time. The
important matter is that the Applicant knows how well Grewal spoke English, not
the length of his lessons. She also says they were consistent in their
description of her career aspirations: she wants to be a teacher. What matters
here is that Grewal knows the Applicant’s general career path, not the age of
the students she would like to teach.
[59]
The
couple’s testimony about what occurred around the wedding was also consistent.
Although they were inconsistent with respect to the Applicant’s reason for
returning to Canada, she was
confused herself about her own work history. Grewal is familiar with the
Applicant’s current job, which is all that is relevant to whether their
marriage is genuine.
[60]
Contrary
to the IAD’s finding, there was also no inconsistency in their testimony about
the value of Grewal’s land. Grewal said he did not know the value, as did his
mother and Brar. There is no certainty as to the actual value of the land,
though it is clear that it is worth a lot of money. The Applicant knows Grewal
is wealthy and his general financial situation, which is more significant than
the actual value of the land.
[61]
Further,
contrary to the IAD’s conclusions, the Applicant knows Grewal’s room is cream
or beige and they spent a significant amount of time together while she was in India. Their
backgrounds show they are compatible. The IAD neglected to assess how this
compatibility affected the genuineness of their marriage. Their compatibility
was highly relevant in the cultural context, so it was unreasonable for the IAD
to discount this factor.
[62]
The
IAD did not look at the overall consistency of the couple’s evidence. It
focussed on small details which led it to an unreasonable conclusion. The IAD
also imposed North American cultural standards on the marriage. While it was
incumbent on the IAD to consider the difficulties the couple has faced, it did
not do so.
Other
Witnesses
[63]
The
Applicant further challenges the IAD’s treatment of the testimony of other
witnesses. When it found this testimony was not relevant to whether the
marriage is genuine, it inappropriately applied the Chavez factors,
which include the background of the marriage. The other witnesses also gave
evidence of what occurred post-marriage. This was also relevant in assessing
the genuineness of their marriage and to ignore it was a reviewable error.
Analysis of
the Chavez Factors
[64]
Although
the IAD referred to the Chavez factors throughout the Decision, it
selectively relied on some factors while excluding others. In fact, the IAD
focussed on the provision of financial support to the exclusion of all other
factors. This is shown by its statement that financial intermingling “is one of
the major Chavez indicia.” On the whole, the evidence demonstrated that
the other Chavez factors were met, but the IAD did not analyse them. The
Decision must be returned on this basis alone.
The
IAD Breached the Applicant’s Right to Procedural Fairness
[65]
The
Applicant also argues that the IAD breached her right to procedural fairness when
it did not put its concerns to her so that she could address them. One of the
major factors in the Decision was the lack of financial intermingling, but the
IAD did not put this concern to the Applicant. Had it done so, she would have
been able to explain the situation fully.
[66]
The
IAD also did not put its concerns about the phone calls to the Applicant, so
she was unable to address this issue. She would have explained that these calls
were between her and her father while she was in India and he was
in Toronto. The
Applicant was also given no opportunity to address the IAD’s concern that her
restaurant bills did not show who she dined with. Its failure to ask questions
about the receipts, denied her the opportunity to respond.
[67]
Finally,
the IAD did not put its concerns about the cards and photographs to the
Applicant. Had it done so, she would have been able to describe the times and
places where they were taken. The IAD’s failure to ask the Applicant questions
about the cards and photographs breached her right to procedural fairness.
The
Respondent
[68]
The
Respondent argues the Applicant has not demonstrated that the IAD’s assessment
of her marriage was not reasonable. She has also not demonstrated that the
assessment is outside the Dunsmuir range. For these reasons, the
Decision should stand.
No Breach of Procedural Fairness
[69]
The
Applicant did not demonstrate to the satisfaction of the IAD that her marriage
is genuine. Gao v Canada (Minister of
Citizenship and Immigration) 2011 FC 368, establishes that, on an appeal
to the IAD, the burden is on the appellant who must provide adequate evidence
that a marriage is genuine. Although the IAD found that the Applicant had not
demonstrated that her marriage was genuine, this does not show that it denied
her adequate procedural protections.
The
IAD Considered all the Evidence
[70]
Although
the IAD did not mention all of the evidence the Applicant submitted, it was not
required to mention every piece of evidence before it. In Lai v Canada (Minister of
Citizenship and Immigration) 2005 FCA 125, Justice Malone wrote at
paragraph 90 that
In my analysis, the fact that not all of the evidence presented by
the appellants’ witnesses was referred to in the Board’s reasons does not
indicate that the Board did not take that evidence into account in reaching its
conclusions. Nothing having been shown to the contrary, the Board is assumed to
have weighed and considered R.L.’s evidence (see Florea v. Canada (Minister of Employment and
Immigration),
[1993] F.C.J. No. 598 (C.A.) (QL)). As the
Board’s findings were supported by the evidence, there is no reason to believe
that appellants witnesses were ignored, overlooked or forgotten.
[71]
The
IAD is presumed to have considered all of the evidence that was before it. In
the context of this case where the volume of evidence is large, the fact the
IAD did not mention every piece of evidence in the Decision does not rebut this
presumption.
[72]
The
IAD was entitled to give some pieces of evidence more weight than others, and
the Applicant simply invites the Court to undertake a re-weighing exercise. The
IAD supported its findings by discussing the evidence which the Applicant
submitted to prove her marriage is genuine. Although the Applicant disagrees
with the IAD’s conclusions, such disagreement does not amount to a reviewable
error.
Credibility
[73]
The
IAD made reasonable credibility findings and gave examples of how the
documentary and oral evidence before it was inadequate and inconsistent.
Because the IAD is best positioned to evaluate each witness’s credibility, the
Court should not interfere with this assessment. It was also reasonable for the
IAD to expect the witnesses’ testimony to be corroborated by documentary
evidence. As Justice James Hugesson held in Adu v Canada (Minister of
Employment and Immigration), [1995] FCJ No 114,
The “presumption” that a claimant’s sworn testimony is true is
always rebuttable, and, in appropriate circumstances, may be rebutted by the
failure of the documentary evidence to mention what one would normally expect
it to mention.
[74]
Further,
the Court should not interfere with the IAD’s inferences and conclusions where,
as in this case, they are reasonably open to it. The Court should not look at
the IAD’s credibility findings microscopically, but should review the Decision
as a whole. The Respondent also says that where a result is inevitable, an
error may not require a decision to be set aside. See Yassine v Canada (Minister of
Employment and Immigration), [1994] FCJ No 949 at paragraph 11.
ANALYSIS
[75]
The
duty to inform applicants of concerns and to give them an opportunity to
disabuse officers of those concerns is well recognized in the jurisprudence of
this Court and is summarized by Justice Mosley in Rukmangathan, above,
at paragraph 22:
It is well established that in the
context of visa officer decisions procedural fairness requires that an
applicant be given an opportunity to respond to extrinsic evidence relied upon
by the visa officer and to be apprised of the officer’s concerns arising
therefrom: Muliadi, supra. In my view, the Federal Court of
Appeal’s endorsement in Muliadi, supra, of Lord Parker’s comments
in In re H.K. (An Infant), [1967] 2 Q.B. 617, indicates that the duty of
fairness may require immigration officials to inform applicants of their
concerns with applications so that an applicant may have a chance to “disabuse”
an officer of such concerns, even where such concerns arise from evidence
tendered by the applicant. Other decisions of this court support this
interpretation of Muliadi, supra. See, for example, Fong v.
Canada (Minister of Employment and Immigration), [1990] 3 F.C. 705 (T.D.), John
v. Canada (Minister of Citizenship and
Immigration),
[2003] F.C.J. No. 350 (T.D.)(QL) and Cornea v. Canada (Minister of Citizenship and
Immigration)
(2003), 30 Imm. L.R. (3d) 38 (F.C.T.D.), where it had been held that a visa
officer should apprise an applicant at an interview of her negative impressions
of evidence tendered by the applicant.
[76]
As
Justice Blais pointed out in Liao v Canada (Minister of
Citizenship and Immigration), [2000] FCJ 1926, at paragraphs 16 and 17,
this duty can be discharged by an appropriate line of questioning or reasonable
inquiries:
The duty of fairness owed by visa officers was
explained as follows in Fong v. Canada (M.E.I.) [1990], 11 Imm.L.R. (2d)
205 at 215, where the court adopted the reasoning in Re. K.(H.) (Infant),
[1967] 1 All E.R. 226 :
Even if an
immigration officer is not in a judicial or quasi-judicial capacity, he must at
any rate give the immigrant an opportunity of satisfying him of the matters in
the subsection, and for that purpose let the immigrant know what his immediate
impression is so that the immigrant can disabuse him.
However, this duty to inform the applicant will
be fulfilled if the visa officer adopts an appropriate line of questioning or
makes reasonable inquiries which give the applicant the opportunity to respond
to the visa officer’s concerns. McNair J. concluded in Fong :
“I am also
of the opinion that the visa officer committed a breach of the duty of fairness
by his failure to afford the applicant an adequate opportunity to answer the
specific case against him on the issue of related experience... which could
have been done and should have been done by an appropriate line of questioning
once it became apparent that the application for permanent residence was likely
to fail on that score. This was the course followed by the visa officers in the
Fung and Wang cases.
[...]
I find
there was a further breach of the duty of fairness in the failure of the visa
officer to apprise the applicant by appropriate questions of his immediate
impression regarding the deficiency of proof of intended and related
employment, and the likely consequences thereof, in order to afford the
applicant some opportunity of disabusing the former’s mind of that crucial
impression.”
[77]
In
the present case, the Decision makes it clear that the IAD refers to, and
relies upon, a number of concerns in its Decision regarding the Applicant’s
evidence that were not raised with her or addressed in a line of questioning.
[78]
For
example, the IAD raised concerns about the phone bills. One of the reasons the
IAD found them unreliable was because it saw calls between Toronto and India while the
Applicant was in India, and could not know who was making the calls.
However, the IAD never put this concern to the Applicant with a line of
questioning or provided her with an opportunity to explain. The IAD showed the
Applicant her phone bills, but did not ask about calls placed during her
visits. This is a very specific concern regarding the evidence. The Applicant
could have explained this concern. She testified at the hearing that her
husband called her home phone and, in her affidavit, she explains that her
family in Toronto called her while she was visiting India.
[79]
The
IAD also expressed concern over the receipts from the Applicant’s trip to India. The IAD
said it was not taken to the bills, and that it could not extrapolate any
significance from them other than that the Applicant was at a restaurant and
had a meal. The receipts are identified as from the Applicant’s trip to India. They
provide further support for the genuineness of the relationship. If the IAD had
concerns regarding the restaurant bills, it should have put those concerns to
the Applicant. No questions were posed concerning the receipts.
[80]
The
IAD also expressed concerns regarding the greeting cards and the photographs.
The IAD said it had not been taken through either. With respect to the greeting
cards, the IAD noted that it had not been provided with dates, and thus could
not determine if they were pre- or post-appeal. Regarding the photographs, the
IAD found it had not been taken to them, that it could not identify where the
photographs were taken, that there were individuals in them it did not know,
and that it could not be sure they were not all taken in the same day. If the
IAD had raised these doubts and concerns with the Applicant, she could have
explained the situation. The Applicant, in fact, was taken to both the greeting
cards and photographs. If the IAD had further specific questions, it should
have raised them. Its failure to do so is a breach of natural justice and
procedural fairness.
[81]
In
my view, such concerns were highly material to the Decision and caused the IAD
to exclude or discount evidence that was relevant to the Chavez factors
and the Applicant’s case.
[82]
This
is not a matter of providing the Applicant with a “running score.” The IAD was
well aware of highly material concerns that it decided not to put to the
Applicant and upon which it chose to rely in its Decision. This was unfair and
the matter must be returned for reconsideration on this ground alone.
[83]
Without
going into a detailed discussion on point, I also wish to make it clear that I
agree with the Applicant that the IAD erred in law by failing to refer to and
take into account pre-marriage evidence of relevance to the evolution of the
marriage as required under Chavez, as well as other documentary and vive
voce evidence of relevance to the Chavez factors. These are not issues
of weight as suggested by the Respondent. They are errors of fact that led to
findings that are not supported by the record.
[84]
For
example, in paragraph 30 of the Decision, the IAD deals with the photographs as
follows:
And there is in the photos – and again, I
was not taken to the photos – there are individuals here whom I do not know.
There is no method in any of the exhibits where the photos are found to
ascertain when they were taken, on what trip. It could be all in one day for
all I know. They are supposed to, the photos and cards, are directed to
principals of law as set out in Chavez; factors I am supposed to be
looking at and simply by putting them before me and saying, “Look Member, look
at them, look at the photos,” the photos have to be given meaning within the
facts of the specific case”. It is not like generic vanilla evidence; if it is,
I cannot give it significant weight.
[85]
The
record shows that the Applicant was taken to the photographs at the hearing and
that she identified what was happening in them. Photographs are labelled and
people are identified. The trips to India are identified. The
transcript shows (CTR at pages 507 to 509) Applicant’s counsel took her to
photographs of her engagement ceremony. She identified people in the photographs,
including her parents, siblings, and some neighbours. Her counsel also took her
to photographs at Grewal’s engagement ceremony, where she identified her mother
(CTR at page 510).
[86]
At
pages 64 to 67 of the CTR, photographs are labelled as being from 25 July 2008
and some people in these photographs are identified. At page 82, a label
identifies the couple at the Gurdwara – a Sikh temple – where they were
married. Photographs at page 84 are identified as being from their wedding on
28 July 2008. At page 89 of the CTR, a photograph of the Applicant is labelled
as from the couple’s honeymoon in India. All of this suggests
that there is no basis for the IAD’s conclusion that “it could be all in one
day for all I know.” The IAD may not have believed the identification provided
by the Applicant, but if it did not it was required to raise this issue with
her.
[87]
Counsel
agree there is no question for certification and the Court agrees.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a differently constituted IAD.
2.
There
is no question for certification.
“James
Russell”
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