Docket: IMM-978-11
2011
FC 1097
Ottawa, Ontario, September 26, 2011
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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HARDIAL SINGH DHALIWAL
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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]
This
is an application for judicial review under s 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (“IRPA”), of a decision by the
Immigration Appeal Division (“IAD”) of the Immigation and Refugee Board, dated
January 21, 2011, whereby the IAD ordered that the sponsorship appeal of the Applicant
for his spouse and her children be dismissed.
[2]
Mr.
Dhaliwal challenges the IAD decision on the grounds that his right to
procedural fairness has been breached. More particularly, Mr. Dhaliwal argues
that the interpretation at his IAD appeal hearing was so poor that it
constituted a breach of natural justice. He also argues that the IAD should
not have relied on the visa officer’s computer notes of their interview without
an affidavit to support them. Finally, he submits that the IAD should have
permitted his witness, who had provided an affidavit, to testify.
[3]
Having
carefully considered the record as well as the written and oral submissions of
the parties, I have come to the conclusion that this application for judicial
review ought to be dismissed. The following are my reasons.
BACKGROUND
[4]
The
Applicant, Hardial Singh Dhaliwal, is 54 years old and was landed in Canada on April 1,
1999. He was previously married in February 1972 and divorced on October 20,
2006. The Applicant has four children from that marriage, aged 29 to 37 years
old; he has no contact with them, and claims that his former spouse “poisoned”
the children’s mind and alienated them from him. Alleging feelings of
loneliness and helplessness, he sought to remarry.
[5]
Mrs.
Dhaliwal (formerly Karamjit Kaur) is a 45 year old citizen of India. Her first
husband died in 1993. She has three children from that marriage, aged 27, 24
and 20. Her eldest son no longer resides with her, and is allegedly involved
in terrorist activities.
[6]
The
Applicant testified that the marriage was arranged by Sant Dharam Das, a
religious teacher who is well known and trusted by both Mr. and Mrs. Dhaliwal.
Sant Dharam Das talked to the Applicant about Mrs. Dhaliwal in 2007, and the
Applicant flew to India, where he met her for the first time on
February 2, 2008, in her village. They were married on February 14, 2008.
[7]
On
July 16, 2009, Mr. and Mrs. Dhaliwal were interviewed separately by Visa
Officer Keshub in New Delhi, India. The officer refused
Mrs. Dhaliwal’s application for a permanent resident visa on the same day. In
the refusal letter, the following reasons were provided:
·
The
officer noted that their wedding photos showed a large gathering which is not
the norm in their community for second marriages with partners who have grown
children. The marriage was held in a city away from the usual place of
residence of both the families.
·
Mrs.
Dhaliwal could not name Mr. Dhaliwal’s native village. Most of the
post-marriage photos were taken on the same day; were posed, and appeared to
have been created to support the application. The officer was not satisfied
that they had spent any time together after their marriage.
·
Mrs.
Dhaliwal said that after the marriage she has been residing with Mr. Dhaliwal’s
aunt in Faridkot. However, Mrs. Dhaliwal gave her first husband’s native village of Langiana
as her mailing address.
·
The
officer was not satisfied that Mr. and Mrs. Dhaliwal kept in touch after the
marriage. The telephone bills could reflect calls to Mr. Dhaliwal’s relatives
in Faridkot, rather than calls to Mrs. Dhaliwal.
·
The
officer did not find it credible that Mrs. Dhaliwal would be marrying, now that
one son was married and her children were grown, rather than 16 years ago when
she had young children.
[8]
On
September 8, 2009, Mr. Dhaliwal appealed the refusal to the IAD. At the
hearing, the Applicant and his spouse required the services of an interpreter
in giving their testimony.
THE IMPUGNED DECISION
[9]
The
member based its negative determination of the genuineness and the intent of
the parties as to their marriage, on a finding that there are significant
implausibilities, discrepancies and inconsistencies in the evidence, which
further contribute to undermine the credibility of both the Applicant and his
wife. The member considered the following factors in making his decision:
·
The
foundational documents of the sponsorship application and questionnaires: Those
documents are attested as true by the parties. Yet the parties showed
indifference and neglect as to the accuracy or truthfulness of the information
provided to immigration officials. While the Applicant and his wife have
little formal education, illiteracy cannot be used as an excuse since Mrs.
Dhaliwal’s children are educated and could have assisted her.
·
The
immigration officer’s notes: Counsel for the Applicant put forth that a
limited weight should be placed on Mrs. Dhaliwal’s interview. As per s
175(1)(c) of the IRPA, members can consider all credible and trustworthy
evidence as a basis for a decision. Interview notes are generally considered
to be credible and trustworthy.
·
The
genesis of the relationship: The Applicant did not explain why he so
eagerly married Mrs. Dhaliwal considering her son’s involvement in terrorist
activities. The Applicant did not conduct any sort of investigation as to Mrs.
Dhaliwal’s past, prior to marrying her. Moreover, Mrs. Dhaliwal was also quick
to agree to marry the Applicant, a man estranged from almost all of his close
relatives.
·
Other
implausibilities and discrepancies:
o There are
various discrepancies in their testimonies, namely the date of their first
meeting, what family members of Mr. Dhaliwal his spouse met prior to the
wedding, where Mrs. Dhaliwal’s eldest son and family has been residing, the
extent of financial support provided by Mr. Dhaliwal to his wife, details
regarding Mr. Dhaliwal’s work in 2009 and his current work, etc.
o The parties
did not demonstrate the depth and extent of knowledge of each other and their
circumstances, as would be expected in a genuine spousal relationship, given
the extent of the alleged contact and communication.
o Several
documents applied for and acquired after the marriage demonstrate an intention
contrary to that of a long-lasting relationship. For example, the name of her
late husband appeared on Mrs. Dhaliwal’s passport, telephone bill, police
clearance certificate and affidavit of birth.
[10]
On
the basis of the evidence, the officer concluded that the marriage was entered
into primarily for Mrs. Dhaliwal and two of her children to acquire permanent
resident status in Canada.
ISSUES
[11]
The
following issues arise in this application for judicial review:
a) Did the IAD breach the
principle of natural justice in failing to provide adequate interpretation at
the hearing?
b) Did the IAD err in relying
on the visa officer’s CAIPS notes because they were not supported by an
affidavit?
c) Did the IAD breach the
principle of natural justice in refusing to hear an additional witness?
ANALYSIS
[12]
It
is well established that issues of procedural fairness are to be reviewed on a
standard of correctness. In other words, a decision must usually be set aside when
a breach of natural justice has occurred (Sketchley v Canada (Attorney
General),
2005 FCA 404, [2006] FCR 392 (FCA); Canadian Union of Public Employees v Ontario (Minister of
Labour),
2003 SCC 29, [2003] 1 S.C.R. 539).
[13]
On
the other hand, the weight to be given to the Computer Assisted Immigration
Processing System (“CAIPS”) notes is a question of law falling within the
expertise of the member. As such, it attracts a standard of reasonableness.
Accordingly, the decision must be upheld if it falls “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and the
law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190).
a) Did the IAD breach the principle of
natural justice in failing to provide adequate interpretation at the hearing?
[14]
Counsel
for the Applicant submitted that the Applicant was denied a fair hearing due to
the failure of the IAD to ensure that the interpretation provided was
competent. Relying on two affidavits by Mr. Sarb Sandhu, an interpreter who is
regularly retained by the Tribunal, the Applicant maintains that there were
material errors in the interpretation both from English to Punjabi and from
Punjabi to English. These errors allegedly resulted in omissions, additions
and misinterpretations during the testimony, and they could not be detected by
the Applicant and his wife as they do not understand English.
[15]
I
agree with counsel for the Respondent that Mr. Dhaliwal waived his right to
object to the quality of interpretation at his hearing. It is well established
that complaints about the quality of interpretation must be made at the
earliest opportunity (Mohammadian v Canada (MCI), [2000] 3 FC
371 at para 27, [2000] FCJ no 309 (QL) [Mohammadian]). Failure to do so
results in a waiver of the right to object to the interpretation on judicial
review (Bal v Canada (MCI), 2008 FC
1178 at para 31, [2008] FCJ no 1460 (QL)) .
[16]
It
is true that neither Mr. Dhaliwal nor his spouse speaks English, thus making it
difficult for them to raise concerns with the adequacy of the interpretation.
But the Applicant was represented by a Punjabi speaking counsel, who took no
issue with the calibre of interpretation at the IAD hearing. During Mr. Dhaliwal’s
five hour IAD hearing, counsel raised concerns six times about possible
misinterpretations or words that may not have been clear or heard. Each
concern was addressed by the interpreter or the IAD member, who asked the
Applicant on multiple occasions to slow down, to repeat inaudible answers and
to answer in segments to allow for accurate and complete interpretation. The member
took every step to ensure that the interpretation was accurate, and counsel
appeared to be satisfied that her concerns had been addressed. Never did she
complain about the quality of interpretation at the hearing, in her lengthy
written submissions to the IAD after the hearing or in her reply.
[17]
Having
carefully reviewed the transcript of the hearing, I therefore come to the
conclusion that the Applicant (through his counsel) must be taken to have
waived his right to object to the quality of the interpretation. As Justice
Pelletier said in Mohammadian, above, at para 25:
There is a powerful argument in favour of
such a requirement arising from judicial economy. If applicants are permitted
to obtain judicial review of adverse decisions by remaining silent in the face
of known problems of interpretation, they will remain silent. This will result
in a duplication of hearings. It seems a better policy to provide an incentive
to make the original hearing as fair as possible and to avoid repetitious
proceedings. Applicants should be required to complain at the first
opportunity when it is reasonable to expect them to do so.
[18]
In
any event, I find that the interpretation was adequate and that the alleged
errors were immaterial. As the Supreme Court stated in R v Tran, [1994]
2 SCR 951, [1994] SCJ no 16 (QL) [Tran] although the standard of
interpretation is high, it is not one of perfection. An interpreter auditing a
hearing recording can always find instances of interpretation that are not
perfect, as recognized by this Court in Boyal v Canada (MCI), [2000] FCJ
no 72, 95 ACWS (3d) 139 (FC). In order to meet the standard of continuous,
precise, impartial and contemporaneous interpretation set out in Tran,
above, however, the interpretation does not have to be perfect. What matters
is that persons who do not speak and understand one of the official languages,
be able to tell their story and that the interpretation be of such quality that
they are not impeached in their ability to make their case (see Lawal v Canada (MCI), 2008 FC
861, at para 26, [2008] FCJ no 1082 (FC)).
[19]
In
the case at bar, counsel for the Applicant relied on the affidavits of Mr. Sarb
Sandhu. These affidavits, essentially to the same effect, are replete with
arguments and conclusions on legal issues such as materiality, procedural
fairness and credibility assessment. Since an affidavit should be limited to
facts, pursuant to Rule 81(1) of the Federal Courts Rules, SOR/98-106,
these portions of the affidavits ought not to be considered by the Court.
[20]
Mr.
Dhaliwal relied on the affidavits of Mr. Sandhu to show that the interpretation
at his hearing was so inadequate that it constituted a breach of natural
justice. Counsel for the Applicant made much of the fact that the Respondent
did not tender any evidence to challenge or rebut the findings of Mr. Sandhu
and did not cross-examine him. While this is certainly a factor that can be
taken into consideration in assessing the evidence, it is always up to the
trier of fact to assess the probative value of expert evidence, even where that
evidence is uncontradicted (R v Molodowic, 2000 SCC 16 at paras 7-10,
[2000] 1 S.C.R. 420).
[21]
Having
read the affidavits and the transcript, I see no proof of material errors
justifying the Federal Court’s intervention. If anything, the excerpts
presented by Mr. Sandhu demonstrate that the interpreter was extremely cautious
as she asked the spouse to repeat herself if she was not certain she had heard
her correctly, and to slow down in order that the interpretation could be more
accurate. Mr. Dhaliwal has not demonstrated that the interpretation negatively
impacted the hearing. The Applicant and Mr. Sandhu may not have liked the
interpreter’s choice of words, but the interpretation conveyed the same message
as Mr. Sandhu’s own interpretation. As a result, I find that the
interpretation was adequate and met the standard set by the Supreme Court in Tran,
above.
b) Did the IAD err in relying on the visa
officer’s CAIPS notes because they were not supported by an affidavit?
[22]
Counsel
for the Applicant further submitted that the IAD erred in relying on the visa
officer’s CAIPS notes, because they were not supported by an affidavit.
Relying on Tharmavarathan v Canada (MCI), 2010 FC 985, [2010] FCJ no
1226 (QL) and Tajgardoon v Canada (MCI), [2001] FC 591, [2000] FCJ no
1450 (QL) counsel argued that CAIPS notes are no more than allegations of fact,
and not evidence, when unsupported by an affidavit. Furthermore, it was
contended that CAIPS notes are inherently unreliable as they are not a
transcription of the interview, but rather notes of the immigration officer
with regard to the interview.
[23]
This
argument can be easily disposed of. First of all, the IAD is an administrative
tribunal and, as such, is not bound by the rules of evidence governing this
Court. Indeed, ss 175(a) and (b) of the IRPA explicitly states that the
IAD “is not bound by any legal or technical rules of evidence”, and allows it
to base its decision on all evidence that “it considers credible or trustworthy
in the circumstances”. The cases relied upon by the Applicant must therefore
be distinguished, as they dealt with the use of CAIPS notes before this Court
and not before the IAD.
[24]
The
assessment of whether the CAIPS notes are credible or trustworthy is a matter
to be determined by the IAD member, based on the evidence in each particular
case. Mr. Dhaliwal’s reliance on two IAD decisions does not assist his
argument, as it is clear in both of those cases that weight was not given to
the CAIPS notes for reasons that had nothing to do with their admissibility. In
both of these cases, the IAD favoured the oral testimonies at the hearing over
the CAIPS notes for a number of reasons that had more to do with the
credibility of the appellant and his spouse than with technical formalities. In
particular, the testimonies of the appellant and his wife were consistent and
there was documentary evidence establishing the genuineness of the marriage. The
IAD found that the visa officer’s concerns had been adequately dealt with at
the de novo hearing.
[25]
In
the present case, the member found that there were contradictions between Mr.
Dhaliwal’s oral testimony and that of his wife, as well as with the documentary
evidence. As already mentioned, the member noted the following: the lack of
accuracy and truthfulness in the documentary evidence; discrepancies as to when
and how the Applicant learned about the involvement of his spouse’s son in terrorist
activities; the lack of satisfactory explanation as to why the Applicant did
not further investigate the circumstances of his spouse before the marriage;
the lack of satisfactory explanation as to why the Applicant’s spouse consented
to marry someone who is estranged from most of his relatives; where his spouse’s
eldest son has been residing; where his spouse’s family has been residing; the
date of the Applicant and his spouse’s first meeting; where the Applicant’s spouse
resided after the marriage; when the Applicant returned to Canada; and the
extent of financial support provided by the Applicant to his spouse. Further,
I note that Mr. Dhaliwal and his wife did not deny the statements contained in
the visa officer’s CAIPS notes of their interviews, or testify that the record
of the interview was inaccurate. On that basis, the IAD member could
reasonably conclude that the concerns of the visa officer were not dispelled
before the IAD and that the CAIPS notes could be considered as credible and
trustworthy.
c) Did the IAD breach the
principle of natural justice in refusing to hear an additional witness?
[26]
Finally,
counsel for the Applicant argued that the IAD erred in refusing to hear the
testimony of Mr. Hardev Singh Dhaliwal, the Applicant’s long-time friend and
distant relative of his wife. Mr. Hardev Singh Dhaliwal had disclosed a
summary of his intended viva voce evidence in an affidavit, and his
intended evidence included personal knowledge of the relationship between the
Applicant and his wife, of the genesis of the relationship and the on-going
nature of it. In doing so, counsel submits that the IAD disallowed the
Applicant from fairly prosecuting his appeal and sacrificed his appeal at the
altar of administrative efficiency.
[27]
Once
again, this argument must be rejected. The member was not required to hear all
viva voce evidence. The IAD is to be shown much deference in its choice
of procedure, provided that the Applicant is given adequate opportunity to be
heard. The Applicant relied on Kamtasingh v Canada (MCI), 2010 FC 45,
[2010] FCJ no 45 (QL) [Kamtasingh] in support of his claim that close
family members and friends must be heard without any reservation when
credibility is at issue. However, Kamtasingh, above, must be
distinguished from the case at bar because it involved an unrepresented litigant,
which imposes a higher degree of procedural fairness on the member. In the
present case, the Applicant was fully represented by counsel. It was left to
counsel for the Applicant to devise an efficient way to present his client’s
case given the allotted time for the hearing.
[28]
Both
counsel were informed of the allotted time for the hearing almost two months
before the hearing. At the outset of the hearing, the member noted that the
hearing, as agreed, had been set for half a day, which meant that each party
were to have an hour and a half to present their case. The member even
mentioned that the Applicant could have requested more time in advance.
Counsel for the Applicant answered that she did not require more time. In
fact, Mr. Dhaliwal’s hearing extended well over half a day, as it started at 9:00
a.m. and ended at 2:00 p.m. Moreover, the IAD member reminded counsel for the
Applicant of the time and her responsibility to manage her witnesses during the
hearing, assisted in focusing the questioning on relevant matters, and
restricted the time for cross-examination by the Respondent’s counsel.
Accordingly, it cannot be said that the member was not open to hear all the
testimonies, or that she sacrificed the fairness of the procedure on the altar
of administrative expediency.
[29]
Be
that as it may, it is not entirely clear what Mr. Hardev Singh Dhaliwal could
have added in oral testimony to his affidavit. No further affidavit was filed
in this Court as to what he could possibly have said. Moreover, the testimony
of that witness would most probably have been immaterial, as the decision
itself was based on contradictions between Mr. Dahliwal and his wife, and
internal inconsistencies in the documents. Accordingly, I am unable to find
that the IAD breached its duty of procedural fairness in refusing to allow Mr.
Hardev Singh Dhaliwal to testify.
[30]
For
all of the foregoing reasons, I have come to the conclusion that this
application for judicial review must be dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
The parties have not proposed a question of general importance, and none will
be certified.
"Yves
de Montigny"
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