Docket: IMM-2556-11
Citation: 2011 FC 1370
Toronto,
Ontario, November 28, 2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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NACHHATTAR SINGH AND
SAMARJEET KAUR
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Applicants
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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 of a decision of the Immigration Appeal
Division (IAD) dated 24 March, 2001, wherein it refused the Applicants’ appeal
from a Visa Officer’s decision to refuse Nachhattar Singh’s application to
sponsor Samarjeet Kaur as his spouse for permanent residence in Canada. For the
reasons that follow, I find that the application is dismissed.
[2]
The
Applicant Singh was born in India and has since become a Canadian citizen.
He lives in Windsor,
Ontario where he
runs a garage mechanic business. He has been previously married twice. The
first was a marriage to Rhonda Singh while he was living in the United
States.
They divorced and had no children. The second was a marriage to Shashi Singh in
Canada. They
divorced. They have a son who lives principally with his mother and visits with
his father largely on weekends.
[3]
The
Applicant Singh returned to India in 2006, at which time, apparently at the
request of his ailing father, he met a number of women offered as prospective
new spouses. On November 4, 2007, Singh’s father died. Singh was not in India
at the time but returned to India to attend the funeral. At that time, he
met the Applicant Kaur and married her eight days later. After the wedding Singh
returned to Canada, but has been
back to India six times
during which he has visited with his wife Kaur.
[4]
Singh
sought a permanent resident visa for Kaur as his spouse. A Visa Officer in New Delhi, India
interviewed each of them, together and separately. The Visa Officer expressed
concerns as to the genuineness of the marriage and gave the Applicants an
opportunity to respond. By letter dated October 17, 2008, the Visa Officer advised
the Applicants that Kaur’s application for a permanent resident visa was
refused. The Applicants appealed to the IAD.
[5]
The
Applicants submitted a package of documents to the IAD. A hearing was held
before a Board Member where Singh appeared in person and Kaur by teleconference.
Each of the Applicants gave evidence and submissions were made on their behalf
by their lawyer. That lawyer is not the same lawyer as the lawyer representing
the Applicants at the hearing before me. The Board Member took the matter under
consideration and, on March 24, 2011, provided a lengthy written decision
refusing the appeal. This is a judicial review of that decision.
ISSUES
[6]
The
following issues have emerged through the memoranda of the parties and argument
of Counsel at the hearing before me:
a.
What
is the standard of review?
b.
Did
the Board Member ignore relevant evidence before him?
c.
Did
the Board Member err in making adverse findings of credibility against the
Applicants?
STANDARD
OF REVIEW
[7]
The
issues are essentially fact based. Both Counsel asserted, and I agree, that the
standard of review is reasonableness. In considering the reasonableness of a
decision at issue the Court must be mindful, as the Supreme Court of Canada has
said in Dunsmuir v New Brunswick, 2008 SCC 9 at paragraphs 47 and 48,
that a reasonable conclusion is one that falls within a range of possible
acceptable outcomes. That same Court has stated in Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, at paragraphs 59 to 62, that
a decision of the IAD is to be afforded a high level of deference when
considering reasonableness since the IAD has had the advantage of conducting
hearings and considering the evidence, including the evidence of the Applicants
themselves.
THE
REGULATORY PROVISIONS
[8]
The
decision at issue concerns section 4(1) of the Immigration and Refugee
Protection Regulations (IRPR), SOR/2002-227, as amended:
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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.
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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.
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[9]
These
Regulations require that the Applicants bear the burden of demonstrating
that the marriage was not entered into primarily for the purpose of permitting
the non-Canadian spouse to acquire permanent resident status in Canada (Sharma
v Canada (Minster of Citizenship and Immigration), 2009 FC 1131 at
paragraph 16).
[10]
This
burden must be accepted seriously. A person is seeking to enter Canada as a spouse
of a Canadian. That person’s application is an important matter to be dealt
with by the applicant and the applicant’s professional advisors in a well
prepared and competent manner. An applicant should not, at a later stage,
endeavour to seek reversal of an unfavourable result on the basis of their own naivety,
or lack of preparation or the incompetence of a professional advisor. Where it
is alleged that a professional advisor, such as an immigration consultant or
lawyer, was incompetent, it is not sufficient merely to make such an
allegation; there must be before the Court sufficient evidence to identify the
problem, the scope of the problem, and steps taken to address the problem (see
e.g. Shakiban v Canada (Minister of
Citizenship and Immigration), 2009 FC 1177).
DID THE BOARD MEMBER ERR
IN IGNORING THE EVIDENCE BEFORE HIM?
[11]
Applicants’
Counsel argued that the Board Member ignored two critical pieces of evidence,
namely:
1. a medical
report indicating that the Applicant Kaur had suffered a miscarriage after her
marriage to the Applicant Singh; and
2. the Applicant
Singh had travelled six times to India since his marriage to
the Applicant Kaur and visited with her during those times.
[12]
As
to the medical report, the Board Member does not refer to this report anywhere
in his Reasons. This is not surprising. Neither of the Applicants nor their
Counsel at any time during the proceedings before the Board made any reference
to this report whether in their evidence or in submissions to the Board Member.
The transcript of the hearing shows that the Applicant Kaur was asked, “Do
you have any children from this marriage?” to which she replied, “I do
not have any child as yet.” (Transcript, page 27). Even if one ignores
the positive obligation upon the Applicants to lead evidence as to the
genuineness of the marriage, this was a clear opportunity for evidence as to
the miscarriage to be led. A judicial review such as the present is not to be
seen as simply a second chance or an opportunity for different Counsel to
reshape the case.
[13]
As
to the six visits to India by the Applicant Singh, the Board Member
did address this evidence. At paragraph 38 of his Reasons, he said:
[38] The appellant in many cases did
not answer directly the questions put to him by counsel. He had difficult recalling
exact dates or timeframes. The only exception occurred during the last day of
the hearing when the appellant was able to recall without hesitation and
accurately the dates and duration of his six post-marital visits to India.
[14]
It
is clear that the Board Member was aware of these visits in arriving at his
conclusions, which he stated at paragraph 47 of his Reasons:
[47] While there is corroborative
evidence regarding the appellant’s marriage and post-marital visits to India, these positive facts must be
weighed against the totality of all of the evidence and the manner in which the
evidence was given. With this in mind the panel finds that the appellant has
not established on a balance of probabilities that he and the applicant have
entered into a genuine marriage. Their marriage was also entered into primarily
for the purpose of acquiring status or privilege under the Act.
[15]
It
is not the function of this Court on judicial review to reweigh the evidence so
long as the conclusions reached by the Board Member are within the range of possible
acceptable outcomes(Dunsmuir supra. at para 47). The conclusions reached
by the Board Member are reasonable and within such a range. There is no basis
for setting aside these conclusions.
DID THE BOARD MEMBER ERR IN MAKING
ADVERSE FINDINGS OF CREDIBILITY?
[16]
Applicants’
Counsel at the hearing before me reviewed several findings of the Board Member
in which the Member criticized the evidence provided by the Applicants, the
manner in which that evidence was given, and made a finding that doubt was cast
on the credibility of the Applicant Kaur; and that a “lame excuse” was provided
respecting at least one incident.
[17]
Applicants’
Counsel sought to support some of the apparently contradictory oral testimony
given by the Applicants with reference to other parts of the transcript of the
hearing and to some of the documentary evidence. However, this was simply an
endeavour to re-argue submissions that should have been made at the close of
the hearing before the Board Member. What Counsel at the Board hearing (not
Counsel before me) for the Applicants said in submissions to the Board Member
with reference to the Applicants’ evidence was :
The evidence was given in a very tortuous
manner. It was difficult to extract information, questions were asked many
times over and over again in different way” (Transcript, page 28)
[18]
This
Court must remember that the Board Member had the advantage of hearing the
Applicants’ evidence live, and at least in the case of Singh, in person. It is
clear that the Board Member considered the totality of the evidence (see para
47 of his Reasons, supra). I am not persuaded that relevant evidence was
ignored or misunderstood. As Justice Martineau wrote in Singh v Canada (Minister of
Citizenship and Immigration), 2002 FCT 347 at paragraph 18:
18 The standard of judicial deference
that applies to findings of fact and to the weight given to the evidence by the
Appeal Division is quite high. Unless the contrary is shown, the Appeal
Division is assumed to have considered all the evidence presented to it. The
Appeal Division's decision in this regard must be interpreted as a whole and it
should not be subject to microscopic examination. Accordingly, the reviewing
Court should refuse to interfere with decisions which assess credibility,
provided that the explanations given are rational or reasonable, or that the
evidence on the record permits the Appeal Division to reach, as the case may
be, a negative inference as to the credibility of an applicant or a witness.
CONCLUSION
[19]
As
a result, I do not find any basis upon which the decision of the Board Member
should be set aside on judicial review. The application will be dismissed. Neither
Counsel requested that a question be certified, and I find no basis for doing
so. There are no special reasons to award costs.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT’S JUDGMENT
is that:
1.
The
application is dismissed;
2.
No
question is certified; and
3.
No
costs are awarded.
“Roger
T. Hughes”
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