Date: 20080918
Docket: IMM-1371-08
Citation: 2008
FC 1055
Toronto, Ontario, September 18, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
NARESH KUMAR DUA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The present
Application challenges an Immigration and Refugee Board (Immigration Appeal
Division) (IAD) decision dated February 22, 2008 which, on a de novo
hearing, effectively agrees with a prior decision of an immigration officer who
found the marriage under consideration is not genuine.
[2]
The pivotal
feature of the decision under review is that the marriage, which is described
as an arranged marriage in India, did not conform with certain traditional
expectations and, as a result, is found not to be genuine.
[3]
The IAD
expressed its expectation of the essential elements of an arranged traditional
marriage in India as follows:
·
Extensive
negotiation preceding the finalization of the arrangement between the two
parties;
·
Compatibility
of the spouses in terms of age, education, marital background, earning
capability, religion and social background,
·
Ceremony
held in presence of family members, relatives, friends and neighbours from both
sides with the couple elaborately dressed, and the wedding solemnized at the
place of the bride’s family;
·
Exchange
of gifts on that same occasion
With respect to these expectations the IAD said this:
From the testimony of the appellant and
the statements of the applicant in her interview, the panel realizes that the allegedly
“arranged” marriage of the spouses is far from being qualified as such:
·
The
appellant proposed to the applicant after only half an hour of negotiations;
·
The
applicant is eight years younger than the appellant, more educated, was never
married before and gave no reason why she accepted to marry the appellant who
is divorces and has two children;
·
The
wedding was held far from the place of the applicant’s family, giving the
impression to avoid publicity;
·
Only a few
people were present at the wedding;
·
The
appellant was wearing jeans at his wedding ceremony and not the traditional
dress;
·
No gifts
were exchanges, no celebration was held and no honeymoon took place.
(IAD decision, pp. 6-7)
[4]
As I
expressed during the course of the hearing of the present Application, in my
opinion, the IAD’s implausibility finding with respect to the elements of the
marriage under consideration does not conform with the law found in Justice
Muldoon’s decision in Valtchev
as
follows:
6. The tribunal
adverts to the principle from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305, that when a refugee claimant
swears to the truth of certain allegations, a presumption is created that those
allegations are true unless there are reasons to doubt their truthfulness.
But the tribunal does not apply the Maldonado principle to this
applicant, and repeatedly disregards his testimony, holding that much of it
appears to it to be implausible. Additionally, the tribunal often substitutes
its own version of events without evidence to support its conclusions.
7. A tribunal may
make adverse findings of credibility based on the implausibility of an
applicant's story provided the inferences drawn can be reasonably said to
exist. However, plausibility findings should be made only in the
clearest of cases, i.e., if the facts as presented are outside the realm of
what could reasonably be expected, or where the documentary evidence
demonstrates that the events could not have happened in the manner asserted by
the claimant. A tribunal must be careful when rendering a decision based on
a lack of plausibility because refugee claimants come from diverse cultures,
and actions which appear implausible when judged from Canadian standards might
be plausible when considered from within the claimant's milieu. [see L.
Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992) at
8.22][Emphasis added]
Valtchev v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131
[5]
The
reviewable error lies in the fact that, even though the IAD set up a standard
for comparison, the decision rendered contains no cogent analysis of the
evidence produced by the Applicant to address the issues expressed in the
standard. Without this analysis, I find that the decision under review is made
in reviewable error.
ORDER
Accordingly the decision under
review is set aside and referred back for redetermination before a differently
constituted panel.
“Douglas R. Campbell”
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