Date: 20080312
Docket: IMM-1637-07
Citation: 2008 FC 335
Toronto, Ontario, March 12,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
RAJIV
KHANNA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant Rajiv Khanna is an adult male permanent resident of Canada. He was born
in India, resided for
a period of time in the United States of America and become a permanent
resident of Canada in November
1999. The Applicant went through a form of marriage with his cousin Seema
Khanna in India in April
1999. Both had been previously married and divorced. The Applicant sought to
sponsor Seema Khanna for a permanent resident visa to enter Canada in the
Family Class category on the basis of the marriage.
[2]
By
a letter dated November 4, 2004 a Visa Officer refused to issue a permanent
resident visa to Seema Khanna stating that the marriage to Rajiv Khanna was not
valid. An appeal was taken from that decision to the Immigration Appeal
Division which, in a written decision dated March 22, 2007, dismissed the
appeal. The Applicant obtained leave to seek this judicial review of that
decision. For the reasons that follow, I find that the Application is
dismissed.
[3]
This
review raises a substantive issue and a procedural issue. The substantive issue
is whether the Visa Officer and the Immigration Appeal Division were correct in
their determination that the Applicant and Seema were not validly married.
Procedurally, the issue is whether the Immigration Appeal Division was correct
in refusing to receive in evidence a print-out of a Wikipedia definition of
“Gotra” and an Internet chat room exchange between one Manish Modi and one
Yashwant Malaiya re: “Gotra”, and if it was not correct, what is the
appropriate result.
[4]
The
Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 S.C.R.
9 has brought much needed clarity to the question of standard of review. There
are only two standards, reasonableness and correctness. The standard of
correctness must be maintained in respect of jurisdictional and some other
questions of law. Reasonableness is a deferential standard to be applied where
the question is one of fact, discretion or policy and shall apply where the
legal and factual issues are intertwined and cannot readily be separated.
[5]
Therefore,
in this case the principal issue is to be reviewed on the standard of
reasonableness. That is, given the record was the Visa Officer’s decision
reasonable and was the Immigration Appeal Division decision reasonable in deciding
that a valid marriage had not been established on the evidence.
[6]
Procedurally,
the issue is, should the Wikipedia definition and Internet chat room definition
of “Gotra” have been admitted into evidence and, if so, would they have been
likely to have any effect on the outcome.
[7]
The
substantive issue is whether the marriage between Rajiv and Seema can, on the
evidence, be considered as a valid marriage. They were married in India. They are
Hindus. They are first cousins. Their mothers were sisters. It is common ground
that section 5(iv) of the Hindu Marriage Act 1955 of India prohibits
marriage between two persons who are within prohibited degrees of relationship
such as first cousins, except when “custom and usage” permits
otherwise. The expression “custom and usage” is defined in subsection
3(a) of that Act:
the expression “custom” and
“usage” signify any rule which, having been continuously and uniformly observed
for a long time, has obtained the force of law among Hindus in any local area,
tribe, community, group or family.
[8]
The
Canadian Immigration and Refugee Protection Regulations, SOR/93-22, section
4 states that a foreign national shall not be considered a spouse if the
marriage was not genuine and entered into primarily for the purpose of acquiring
any status or privilege under the Immigration and Refugee Protection Act,
S.C. 2001, c. 27.
[9]
The
evidence in the record includes several affidavits, all virtually identical in
form attesting that a marriage ceremony was performed “according to Hindu Rites”,
and that “Hindu Law and as per custom and usage governing each other…permits
marriage between the divorcees”. The Applicant submits that, in rendering
its decision, the Immigration Appeal Division ignored this affidavit evidence
and further submits that the affidavits ground a finding that “custom and
usage” allows marriage between first cousins. However, the affidavits do not
address the issue of “custom and usage” in respect of a marriage between
first cousins. Other affidavits simply state that “there was no legal
impediment” to the marriage and that the marriage “is according to law
and not in contravention of any provision of law and even otherwise governed by
Custom and Usage.”
[10]
No
evidence directly addresses the issue of a purported marriage between first
cousins and whether “custom and usage” as it applies to these particular
persons would recognize such a marriage. This is in contrast, for instance, to
the circumstances considered in Canada (MCI) v. Mann, 2004 FC
1338 where the Immigration Appeal Division had before it a legal opinion of a
practicing lawyer in India which relied upon views of a Professor of Laws in an
Indian
University as well as
the evidence of several persons in the relevant communities. In the present
case I find that the Visa Officer and Immigration Appeal Division made a
reasonable decision, on the evidence presented, that no “custom” or “usage”
had been established that would make the marriage valid.
[11]
The
next question is whether the evidence would have been different in any material
way had the Wikipedia evidence or Internet chat room correspondence been
received in evidence. The Wikipedia evidence is general in nature only. It
indicates that in some parts of India marriages between
cross-cousins (between children of brothers and sisters) may be permitted.
However, in the present case Rajiv and Seema are children of two sisters, not
brother and sister. The Wikipedia reference is of no material significance.
The online correspondence is between two unidentified persons and has two pages
of discussion of Gotras, none of which is directly or even generally relevant
to the parties. Even if entered in evidence, there would have been no material
difference to the body of evidence before the Immigration Appeal Division. In
any event that Division, under section 175 of the Immigration and Refugee
Protection Act, supra, is entitled to reject evidence that it does
not consider to be credible or trustworthy in the circumstances. I find that
the rejection of this evidence was reasonable. Wikipedia is an “open source”
reference that can be modified by anyone. There is minimal control over the
accuracy of its content. The source of the Internet chat room correspondence
has not been explained in any way. It was reasonable to exclude each from
evidence.
[12]
Accordingly,
the application is dismissed. No question for certification arises. No Order
as to costs.
JUDGMENT
For the Reasons given:
THIS COURT ADJUDGES that:
1.
The
application is dismissed;
2.
No
question is certified;
3.
No
costs are awarded.
"Roger
T. Hughes"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1637-07
STYLE OF CAUSE: RAJIV
KHANNA v.
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
PLACE OF HEARING: tORONTO, Ontario
DATE OF HEARING: March 11, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: Hughes, J.
DATED: March 12, 2008
APPEARANCES:
Mukesh Bhardwaj
FOR THE APPLICANT
John Provart FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
BHARDWAJ &
BAXI FOR THE
APPLICANT
Barristers
& Solicitors
Toronto, Ontario
John H. Sims,
Q.C. FOR THE
RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
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