Date: 20080815
Docket: IMM-926-08
Citation: 2008 FC 951
Ottawa, Ontario, August 15,
2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
BARINDER KAUR TAMBER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Barinder Kaur Tamber from a decision
of the Immigration Appeal Division of the Immigration Refugee Board (Board)
rendered on January 21, 2008. The Board was dealing with an appeal from an earlier
decision by a visa officer denying Ms. Tamber’s application to sponsor her
spouse, Jatinder Singh, for admission to Canada. Both the
visa officer and the Board concluded that the marriage between Ms. Tamber and
Mr. Singh was not genuine and it is from the latter finding that this
application arises.
I. Background
[2]
The
record discloses that Ms. Tamber had previously been married on February 15,
1999, and divorced on October 8, 2000. That marriage was an arranged marriage
and it, too, was the basis of a sponsorship application by Ms. Tamber to permit
the landing of her first husband.
[3]
Mr.
Singh came to Canada in 2001 and
made an unsuccessful claim to refugee protection. His application for judicial
review from that decision was later dismissed.
[4]
Ms.
Tamber and Mr. Singh were introduced by their respective families in June 2003
from which an arrangement to marry was reached. They were officially engaged on
July 12, 2003 and married in Rexdale, Ontario, on
September 27, 2003, before approximately 300 guests.
[5]
Both
Ms. Tamber and Mr. Singh testified that they lived together as wife and husband
in Canada until February 2005 when Mr. Singh returned to India to perfect
the sponsorship application.
[6]
Ms.
Tamber gave birth to a baby boy in Canada on March 11, 2005. The Ontario birth
registration states that Mr. Singh is the father of that child. The results of
DNA tests performed by a reputable laboratory in New Westminster, British
Columbia
identified Mr. Singh as the alleged father with a 99.98% probability of
paternity. The evidence before the Board indicated that the blood samples
obtained from Mr. Singh, Ms. Tamber and the baby were drawn by a physician in India after proof
of their respective identities had been produced. The DNA report was then sent
to the Board by the Applicants’ counsel on August 22, 2007, well in advance of
the hearing.
[7]
The
record contains considerable evidence of ongoing contact between Ms. Tamber and
Mr. Singh subsequent to his return to India. This included evidence
of her three trips to India with her child and a history of frequent telephone
and written communication. Both also testified that they had lived together as
a family over several months in India and that, after Ms. Tamber’s last visit,
their baby was left in the care of Mr. Singh and his parents in India. When the
matter came on for hearing in 2007, it was acknowledged by the Board that Ms.
Tamber was then expecting a second child.
II. The Board Decision
[8]
The
Board dismissed Ms. Tamber’s appeal for credibility reasons. Although the Board
recognized that the DNA and second pregnancy evidence were strong prima
facie indications of a genuine marital relationship, it rejected that
evidence on the basis of perceived concerns about a number of unrelated deficiencies
in the testimony. Those deficiencies included reservations about differences in
the accounts of how the couple were introduced and supposed inconsistencies
about Ms. Tamber’s relationship with her sister and former husband. The Board
also expressed doubt about the location from which certain telephone calls were
placed by Ms. Tamber to India. Although it was nowhere expressly stated
in the decision, the Board obviously concluded that the DNA evidence was
falsified.
[9]
The
Board discounted Mr. Singh’s evidence because it found him “highly motivated to
immigrate to Canada” and because
the marriage took place after his refugee claim was denied. The Board also doubted
the bona fides of the marriage because, as a divorced person, Ms. Tamber
“was something of an unusual choice” for Mr. Singh. The Board drew an inference
that Ms. Tamber was attempting to conceal her continued contact with her first
husband and that that was somehow the motivation for a lack of candour.
III. Issues
[10]
1. Did
the Board breach the duty of procedural fairness in its treatment of the DNA
evidence by failing to indicate a concern about its reliability?
2. Did
the Board make reviewable errors in its analysis of the evidence bearing on the
genuineness of the marriage?
IV. Analysis
[11]
Issues
of procedural fairness are resolved on a standard of correctness: see Sketchley
v. Canada (Attorney
General),
2005 FCA 404, [2006] 3 F.C.R. 392 at paras. 52-55. The Board’s substantive
determination as to whether this was a genuine marriage is a question of mixed
fact and law and must be assessed on the standard of reasonableness. For that
proposition I would adopt the following standard of review analysis by Justice
Michel Beaudry in Nadon v. Canada (Minister of
Citizenship and Immigration), 2007 FC 59, [2007] F.C.J. No. 84 at paras.
12 to 14:
12 On a
number of occasions, this Court has dealt with the appropriate standard of
review for decisions by the Immigration Appeal Division concerning applications
to sponsor family members (Sanichara v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1015, [2005] F.C.J. No. 1272
(F.C.) (QL), at paragraph 11; Mohamed v. Canada (Minister
of Citizenship and Immigration), 2006 FC 696, [2006] F.C.J. No. 881
(F.C.) (QL), at paragraphs 34 and 39; Gavino v. Canada
(Minister of Citizenship and Immigration), 2006 FC 308, [2006] F.C.J.
No. 385 (F.C.) (QL); Deo v. Canada (Minister of Citizenship
and Immigration), 2004 FC 1339, [2004] F.C.J. No. 1612 (F.C.) (QL)).
. . .
14 Determining
whether the marriage is genuine is clearly a question of mixed fact and law
because it involves applying the facts to the requirements of the Regulations.
Therefore, the appropriate standard of review is reasonableness simpliciter (Mohamed, above, paragraph 39):
The officer's finding to the effect that the applicant had not
filed sufficient evidence establishing that her relationship with her husband
was genuine is a mixed question of fact and law. The appropriate standard for
this decision in the context of this judicial review is that of an error of
unreasonableness simpliciter (Baker
v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817).
[12]
The
Board rejected the DNA evidence even though the supporting test documentation
was facially reliable and the Respondent acknowledged that the analysis had
been carried out by a reputable Canadian laboratory. That, however, is not the
primary problem with the Board’s approach to this highly determinative
evidence. If the Board had reservations about the reliability of this testing
or about the continuity of the blood samples, it had a clear duty to advise Ms.
Tamber’s counsel of its concerns. This was a proceeding that spanned two
hearings separated by almost three months and there was no justification for ambushing
the Applicant by essentially ignoring this issue during the testimonial phase.
[13]
The
Board decision states wrongly that it had “specifically questioned the
appellant on how the tests were conducted, canvassing the issue fully”. Through
this comment, the Board implied that it had appropriately put the parties on
notice of its concerns about this evidence. In fact, the only questions that
were put to Ms. Tamber on this issue were from her counsel as is reflected in
the following exchange:
COUNSEL: Where did you do the DNA testing?
APPELLANT: 1st of August 2007.
COUNSEL: Yes, but where? Did you do it in Canada or in India?
APPELLANT: In India.
COUNSEL: So, when you did the DNA testing, did
you go to see a doctor? How was it done?
APPELLANT: From an agency in Canada we received a kit. And the
doctor who conducted the test in India,
he received that kit. (Inaudible).
COUNSEL: Sorry, I didn’t hear that last part.
APPELLANT: And we called the doctor, and he was an
Immigration approved doctor, and when we called him and asked if our kit has
arrived then we made an appointment with him.
COUNSEL: And who is ‘we’?
APPELLANT: Me, my husband, and our baby, Simarpreet
Singh.
COUNSEL: So, did all of you go to that doctor’s
office?
APPELLANT: Yes.
COUNSEL: How did you prove your identity?
APPELLANT: He looked at our passports that we had
in our possession.
COUNSEL: At which passports? Whose passports?
APPELLANT: My passport, my child’s passport, my
husband’s passport.
[14]
Neither
the Board nor the Minister’s counsel attempted to impeach either Mr. Singh or
Ms. Tamber about this evidence and, indeed, Mr. Singh was asked nothing
whatsoever about the issue. The only other comment by the Board about the DNA
evidence suggested that its reliability was not a live issue:
COUNSEL FOR APPELLANT: I have one as a disclosure
that’s dated September 13th, and it consists of one receipt from the
doctor in India who performed the DNA
testing.
MEMBER: Okay.
COUNSEL FOR APPELLANT: And, it was disclosed to the
Minister as well.
MEMBER: Do you have any position with that …
COUNSEL FOR RESPONDENT: No, it’s just a confirmation
really ---
MEMBER: Confirmation.
COUNSEL FOR RESPONDENT: --- of the DNA information.
MEMBER: It doesn’t add anything more.
COUNSEL FOR RESPONDENT: No.
MEMBER: Okay.
Can I see it, please?
Thanks.
Actually I’m not going to include it
because nothing it doesn’t – turns on it. No, we know that she took the DNA
test, and obviously, she paid; unless, of course, the Minister wanted to
question on the doctor himself or whatever, but the receipt that it’s been paid
for doesn’t change that.
[15]
Mr.
Waldman argues that unless and until the Minister raised a concern about the
reliability of this evidence and offered to supervise the process, his clients
could do no more than what they did. I agree. It was, of course, open to the
Minister to supervise the DNA testing and to control the continuity of the
evidence obtained; but it was not appropriate for the Minister to sit silently
until all of the evidence was in and then criticize the process as deficient.
For the same reason it was unfair for the Board to reject this evidence as
unreliable.
[16]
It
is a well accepted principle of natural justice that the Board’s concerns about
the reliability of important documentary evidence must be put to the claimant
either for an explanation or to allow for additional corroboration: see Guo
v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 1185. Had the Board
given any indication that it was not satisfied with the reliability of the DNA
evidence, Ms. Tamber and Mr. Singh would most assuredly have sought
corroborative evidence or offered to repeat the tests under unimpeachable
conditions. The Board’s failure to observe this principle of fairness is,
therefore, fatal to its decision.
[17]
Although
it is unnecessary to address the evidentiary issues raised by the Applicant I
will touch on some of my concerns for the purpose of avoiding a repetition of
the Board’s errors when this matter is re-determined.
[18]
The
Board’s treatment of the evidence in this case is an example of too much
reliance being placed on minutiae and marginalities without enough attention being
paid to the evidence bearing directly on the bona fides of the marital
relationship. The Board essentially ignored much of the evidence supporting the
genuineness of the relationship and instead made its credibility findings on
the strength of doubtful or non-existent problems with peripheral detail. Concerns
about whether Ms. Tamber had relationship difficulties with her sister, where
she was living from time to time after Mr. Singh returned to India and whether
she knew or should have known about the whereabouts of her first husband are
not a particularly sound basis for completely rejecting their testimony and the
documentary evidence. The Board had an obligation to consider the evidence
bearing directly on the relationship including the evidence which confirmed
their common residency in Canada and in India, the birth
of a child followed by a further pregnancy, and that Ms. Tamber left her child
with Mr. Singh and his parents in India following her last trip
there. All of this evidence was inexplicably and wrongly ignored by the Board.
The Board needed to ask itself why Ms. Tamber would travel to India for months
at a time if not to see Mr. Singh. If Mr. Singh was not the father of Ms.
Tamber’s son why would she leave the baby with him in India following
her last visit there. The Board’s speculation about a continuing relationship
with her first husband flies in the face of any concern that that too was a
marriage of convenience and is inconsistent with the uncontradicted evidence
that he had remarried and had fathered a child in that new relationship.
[19]
Furthermore,
the Board’s observation that Mr. Singh was highly motivated to immigrate to Canada is self
evident. Most individuals seeking to come to Canada are highly
motivated to do so. This says little about whether a particular marital
relationship is genuine.
[20]
The
Board’s comment about Ms. Tamber being “something of an unusual choice for Mr.
Singh” is also troubling. This was a point that the visa officer had previously
made and it was surprisingly adopted by the Board. Mr. Singh testified that he
“didn’t give much weight” to Ms. Tamber’s prior divorce and that “anybody can
get divorced”. That testimony was clearly sufficient to dispel any reservations
about Mr. Singh’s “choice” of a bride and the Board’s continued reliance on the
point was inappropriate and unreasonable.
[21]
I
would add that a number of the Board’s findings about supposed testimonial
inconsistencies are not, upon close examination of the evidence, problematic.
For the most part Mr. Singh and Ms. Tamber gave consistent evidence and where
difficulties did arise, they mainly involved trivialities or ambiguities.
[22]
In
the result, I direct that this matter be re-determined by a different panel of
the Board. I would further direct that if the Board has any reservations about
the reliability of the DNA evidence tendered before it, it should make
arrangements to have that testing redone under conditions that will satisfy
those concerns.
JUDGMENT
THIS COURT
ADJUDGES that this application is
allowed with the matter to be remitted to a differently constituted panel of
the Board for re-determination on the merits.
“R.L. Barnes”
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