Date: 20120131
Docket: IMM-1799-11
Citation: 2012 FC 120
Toronto, Ontario, January 31, 2012
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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SARANJIT
KAUR SANDHU
(a.k.a. SARANJIT
KAUR SANGHA)
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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
[1]
The applicant challenges the decision of the
Immigration Appeal Division of the Immigration and Refugee Board, dated
February 23, 2011, refusing her application to sponsor her spouse, Kulwinder
Singh Sangha, on the basis that their marriage was not genuine and was entered
into primarily for immigration purposes.
[2]
The applicant married her spouse in India on January 19, 2008. Their daughter was born in November 2010.
[3]
This application must be allowed. The Board
Member, Patricia E. McGuire, made a material, unsupported, and speculative
finding of fact regarding this couple’s child.
[4]
The portion of her decision that is problematic
is the following:
In addition, and of
significance, the panel considers that there is a child born to the couple.
There is no contention about paternity. The panel is mindful of the probative
value of a child born to a couple in establishing the genuineness of an
impugned marriage. There is the view that significant weight should be
ascribed to this factor, especially where the paternity is not in issue. A
reason given for this approach includes Federal Court Justice Barnes’ view in Gill
[2010 FC 122, para 8]. In his view, parties to a fraudulent marriage are
unlikely to risk the lifetime responsibilities associated with raising a child,
especially where the parties are of modest means. Nonetheless, the panel is
aware of cases before the IAD where people of modest means or less than modest
means would take this risk without any thought that raising the child is his or
her lifetime responsibility, just to obtain permanent residence status in
Canada.29 The reality of fraudulent immigration marriages (fraud)
is that people who enter into “fraudulent” marriages do
so to obtain a permanent residence visa or a green card. They are unscrupulous
people. They are people with a specific objective – to perpetrate a fraud
against an immigration system, with a dominant purpose, to enter the country.
They are more interested in obtaining a permanent residence visa or green card
than in the person who holds the card and likely a child from a fake marriage.
To such persons, having a child is seen as a means to an end. In Lokmane,
there was sufficient evidence to find that the couple had turned their mind to
having a child to enhance their chance to succeed in the appeal. Thus, while a
child should be given significant probative value in establishing genuineness
of a marriage, it should not be done as a matter of course. Second, a child is
not conclusive proof of the primary purpose of the impugned marriage.
…
In all the
circumstances of this case, it is not unreasonable to conclude that there was
desire to have a child to enhance a successful outcome of the appeal.
29. Lokmane v. Canada (Minister of Citizenship and Immigration),
2009 CanLII 32171 (I.R.B.).
[5]
The Member cites her previous decision in Lokmane
v Canada (Minister of Citizenship and Immigration), 2009 CanLII 32171 as
authority for her statement that, notwithstanding Justice Barnes’ view in Gill,
the panel is aware of cases where people of modest means have a child “just to
obtain permanent residence status in Canada.” Lokmane does not support
that statement; it is not an example where a couple had a child to support
their claim for permanent residency.
[6]
Lokmane involved
a 46-year old Canadian woman who married a 35-year old Moroccan man with “a
keen desire to have children.” The Member found that the sponsor’s age and
health made the possibility of her being able to conceive a child unlikely and
thus, given his desire to have children, the Member found it probable that the
marriage was not genuine.
[7]
There is not a shred of evidence in the record
that supports the Member’s view that this couple had a child to enhance their
chances of obtaining permanent residency in Canada. That finding is perverse
and, in my view, tainted the Member’s other findings, including her findings on
credibility. Furthermore, it was a very significant factor in the Member concluding
that the marriage was fraudulent. The decision must be set aside.
[8]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is allowed, the application is
returned to the Immigration Appeal Division of the Immigration and Refugee
Board for determination by a different member, and no question is certified.
"Russel W. Zinn"
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