Date: 20070613
Docket: IMM-6375-06
Citation: 2007
FC 632
Vancouver, British
Columbia,
June 13, 2007
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
AMARJIT
KHERA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review under section 72 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the Immigration
Appeal Division (IAD) of the Immigration and Refugee Board, dated October 25,
2006, wherein the IAD determined that the appeal filed by the applicant,
Amarjit Kaur Khera (Gill), should be dismissed.
[2]
The applicant
is a Canadian citizen who resides in Surrey, B.C. Dalvir Singh Khunkhun (the
sponsoree) is a citizen of India who resides in Jalandhar, India. A matchmaker arranged the
marriage between the applicant and the sponsoree. Between March 2004 and April
2004, the applicant and sponsoree spoke over the phone three times to one
another. In May 2004, they were engaged. On July 17, 2004, the applicant
arrived in India. At that time, they met one
another in person for the first time. On July 25, 2004, they were married. On
August 2, 2004, the applicant returned to Canada. On August 5, 2004, the applicant
submitted an application to sponsor the sponsoree. On May 28, 2005, the
applicant returned to India to visit the sponsoree.
During this period, the sponsoree had his interview at the Canadian High
Commission. On June 8, 2005, the applicant returned to Canada.
[3]
In a
refusal letter dated June 6, 2005, an immigration officer at the Canadian High
Commission in New
Delhi indicated
that she was of the opinion that the marriage of the applicant and the sponsoree
was not genuine and had been entered into primarily for the purpose of acquiring
a status or a privilege under IRPA. On June 29, 2005, the applicant filed a
notice of appeal to the IAD. Almost a year later, on June 28, 2006, the IAD
heard the applicant’s appeal. At the time of the appeal in front of the IAD the
applicant was 43 years old and the sponsoree was 32 years old.
[4]
In a
decision dated October 25, 2006, two members of the three-member panel (the
Majority) found that the marriage was not genuine and had been entered into
primarily for the purpose of acquiring a status or a privilege under IRPA. The
Majority found the lack of compatibility between the spouses to be unusual for
an arranged marriage. They pointed out that the applicant is a divorcee, the
mother of two children, a woman who has a career and who is in a comfortable financial
situation. On the other hand, the sponsoree makes a living from farming, does
not speak English and has not been married before. They also pointed out that
the sponsoree had tried to come to Canada
before, but his application was refused. Moreover, the Majority found it
implausible that the sponsoree would not know more about the applicant’s
daughters since she stressed, throughout the hearing, how important her
daughters are to her. As well, the Majority did not accept the sponsoree’s
explanation that his failure to mention his stepdaughters in his application
form was due to it being filled out by an agent. The Majority found it
implausible that the sponsoree would sign and submit such an important document
without knowing its contents.
[5]
In a decision
dated November 17, 2006, one member of the panel (the Minority) concluded that
it would have allowed the appeal. He did not draw any negative inferences from
the incompatibility of the applicant and the sponsoree with respect to age and
marital status. He was satisfied by the totality of the evidence that the
initial concerns of the sponsoree’s family with respect to these two issues were
completely overshadowed by other factors that favoured the applicant in the
eyes of the sponsoree’s family. As well, the Minority pointed out that the
applicant does not mind marrying a younger man for whom this is a first
marriage. Although the Minority agreed with the Majority that the sponsoree did
not demonstrate detailed knowledge about the applicant’s daughters, such as their
precise age, he did not find it fatal because, at the IAD hearing, it became
clear that the sponsoree had difficulty in even calculating his own age. As
well, the Minority noted that the daughters are in Canada and have never met the sponsoree in
person. The Minority pointed out that there is no evidence that the application
form was even interpreted to the sponsoree; and as such, he gave little weight
to the contents of the said application form.
[6]
Under
subsection 12(1) of IRPA, a foreign national may be selected as a member of the
family class on the basis of their relationship as the spouse of a Canadian
citizen. Under section 4 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the Regulations), "a foreign national shall
not be considered a spouse … if the marriage … is not genuine and was entered
into primarily for the purpose of acquiring any status or privilege under the
Act". According to the case law of this Court, these two requirements are
conjunctive. A conjunctive interpretation leaves open the possibility that a
marriage, which was originally entered into for the purpose of gaining status
under IRPA, may become genuine and therefore not excluded under the Regulations
(see Donkor v. Canada (Minister of Citizenship and Immigration), 2006 FC
1089 at para. 12; Sanichara v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1015 at para. 16; Singh v. Canada (Minister of
Citizenship and Immigration), 2006 FC 565 at para. 7).
[7]
The appeal
before the IAD is a hearing de novo in the broadest sense (Kahlon v. Canada (Minister of Employment and
Immigration)
(1989), 7 Imm. L.R. (2d) 91 (F.C.A.), 97 N.R. 349). Accordingly, the applicant and
the sponsoree bear the onus of proving, on a balance of probabilities, that the
sponsored spouse is not excluded under section 4 of the Regulations. The
determination of whether a marriage is bona fide therefore involves
findings of fact and the sorting and weighing of evidence. Furthermore, the IAD
is assumed to have considered all of the evidence presented to it in coming to
its decision and its decision must be interpreted as a whole (Singh v. Canada (Minister of Citizenship and
Immigration),
2002 FCT 347 at para. 18; Lai v. Canada (Minister of Citizenship and
Immigration), 2005 FCA 125 at para. 90 (F.C.A.), 253 D.L.R. (4th) 606). As
such, the IAD is given a high level of deference by the Court and the
applicable standard of review is that of patent unreasonableness with respect
to factual findings (Rosa v. Canada (Minister of Citizenship and
Immigration),
2007 FC 117 at para. 23; Ni v. Canada (Minister of Citizenship and
Immigration),
2005 FC 241 at para. 10; Dang v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1090 at para. 12).
[8]
The
applicant has not satisfied the Court that the IAD based its decision on an
error of law, breached a principle of natural justice or otherwise made a
factual finding that is unsupported by the evidence. Overall, I find the
decision not patently unreasonable for the following reasons.
[9]
The applicant
essentially argues that the Majority did not properly assess the totality of
the evidence and failed to analyse in its decision relevant evidence or to
consider the various explanations given by the sponsoree in his testimony. In
particular, she alleges that the Majority did not comment on the telephone
bills, photos, letters, affidavits (from the matchmaker, the sponsoree’s mother
and one of the applicant’s daughters), and money transfers tendered in support
of the applicant’s appeal. Therefore, this demonstrates that the Majority
ignored relevant evidence in coming to its decision.
[10]
The arguments
made by the applicant against the decision rendered by the Majority are all
unfounded, in my view, and do not resist a comprehensive reading of their
reasons. Indeed, the IAD was allowed to consider, and considered in its
decision, the length of the parties' prior relationship before their arranged
marriage, their age difference, their former marital or civil status, their respective
financial situation and employment, their family background, their knowledge of
one another's histories (including the applicant's daughters' ages and general
situation), their language, their respective interests, the fact that the
sponsoree's mother, two of his brothers, as well as aunts and cousins were
living in British Columbia, and the fact that the sponsoree had tried to come
to Canada before. In view of these relevant and determinative factors, the mere
fact that not all the evidence presented by the applicant was referred to in
the decision rendered by the Majority does not permit me to conclude in this
case that the latter has failed, as alleged by the applicant, to take that
evidence into account in reaching its conclusions.
[11]
No
suggestion or serious argument has been made by the applicant that the IAD
breached a principle of natural justice or failed to apply the correct legal
test in assessing whether the exclusionary provisions of section 4 of the
Regulations applied in this case. The applicant is essentially asking the Court
to reweigh the evidence that was before the IAD. The Majority had very strong
reservations with respect to the genuineness of the marriage in view of the
lack of compatibility between the spouses. The Majority also questioned the intent
of the sponsoree to reside permanently with the applicant and found the
sponsoree's primary interest to enter Canada
was to join his nuclear family. The Majority's concerns are well articulated
and clearly supported by the evidence on record. Overall, I find that the majority's
reasoning is not capricious or arbitrary and supports their ultimate
conclusion. Although I may have come to a different conclusion, as did the
Minority number in this case, it was not patently unreasonable for the majority
of the IAD to come to this conclusion based on the evidence before it.
[12]
For these
reasons, the present application must fail. No question of general importance
is raised in this case.
ORDER
THIS COURT ORDERS that the application for judicial
review be dismissed. No question is certified.
"Luc
Martineau"
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