Docket: IMM-3586-13
Citation:
2014 FC 902
Ottawa, Ontario, September 19, 2014
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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PARMINDER KAUR GILL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Ms. Parminder Kaur Gill wished to sponsor her spouse,
a citizen of India, for permanent residence in Canada. The officer reviewing
the application dismissed it on the grounds that, while the marriage was genuine,
the couple had entered into it primarily for the purpose of obtaining status
under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
Therefore, Ms. Gill’s husband could not be considered to be a spouse under the Immigration
and Refugee Protection Regulations, SOR/2002-227, s 4(1) (See Annex).
[2]
Ms. Gill appealed the officer’s decision to the
Immigration Appeal Division. The IAD dismissed the appeal, agreeing with the
officer’s conclusion that the marriage was motivated primarily by a desire to
obtain an immigration advantage.
[3]
Ms. Gill argues that the IAD’s decision was
unreasonable because it failed to consider certain relevant factors and
overlooked evidence in her favour. She asks me to set aside the IAD’s decision
and order another panel to reconsider her application.
[4]
I agree with Ms. Gill that the IAD’s decision
was unreasonable. The IAD placed too much emphasis on the fact that her husband’s
parents are already resident in Canada, and on the family’s immigration
history. I must, therefore, allow this application for judicial review.
[5]
The sole issue is whether the IAD’s decision was
unreasonable.
II.
The IAD’s Decision
[6]
The IAD listed five factors that had caused the
officer to reject Ms. Gill’s application:
•
Ms. Gill’s husband’s family is already in Canada, so he has a strong motivation to join them here. He had already tried to move to Canada by way of a student visa, which had been denied. He conceded that he had agreed to
the arranged marriage to Ms. Gill because his parents wanted him to live near them
in Canada.
•
Ms. Gill’s husband had not wished to get married
prior to his parents’ finding this match for him.
•
After the wedding, the couple lived with his
parents for two months and did not have a honeymoon.
•
Relatives of Ms. Gill’s husband had also married
at about the same time, but their sponsorship applications were denied because they
had relied on fraudulent documents.
•
The receipt for the couple’s wedding reception
appeared to be fraudulent because the phone number on it did not exist.
[7]
The IAD applied the approach set out in Gill
v Canada (MCI), 2012 FC 1522. It considered whether the couple entered
into the relationship primarily for the purpose of obtaining status under IRPA,
based on the intentions of one or both of them. It also considered the
genuineness of the marriage based on a variety of factors, including
compatibility, development of the relationship, mutual communication and
knowledge, financial support, and family ties to Canada, and mutual
communication and knowledge.
[8]
The IAD found that some factors pointed to a
genuine marriage – for example, their compatibility and the fact that there was
a child of the marriage – but other circumstances indicated that the marriage
was arranged and entered into primarily for immigration purposes. In
particular, Ms. Gill’s husband’s parents wanted to facilitate their son’s
immigration to Canada. The fact that a fraudulent invoice was provided in
support of the application, according to the IAD, showed that the couple’s
motives were suspect.
[9]
Overall, therefore, the IAD was satisfied that
the marriage was entered into primarily for immigration purposes.
III.
Was the IAD’s decision unreasonable?
[10]
The Minister submits that the IAD’s decision was
reasonable, even though it did not refer to all of the evidence before it.
Further, the IAD cited the main evidence and adequately explained the basis for
its conclusion that the marriage was motivated by immigration purposes,
notwithstanding the evidence that the marriage began as, and has continued over
time to be, a genuine conjugal partnership.
[11]
I disagree. In my view, the IAD unreasonably
emphasized Ms. Gill’s husband’s family’s motivations, as well as the family’s
immigration history. In doing so, the IAD arrived at an unreasonable
conclusion regarding the primary purpose of the marriage.
[12]
The IAD reasoned that Ms. Gill’s husband’s
parents wanted their son to join them in Canada, so they arranged for him to
marry a permanent resident. However, it neglected to take account of the fact
that the parents spend a substantial portion of each year in India, which mitigates the so-called “pull factor” toward Canada. In addition, the parents’
motivation is not necessarily the same as their son’s.
[13]
Further, the IAD deduced from the family’s
immigration history – showing that other family members were trying to
immigrate to Canada, including by way of sponsorship applications – that Ms. Gill’s
husband shared those motivations. In my view, it was unfair to attribute the
alleged desires of other persons to Ms. Gill’s husband, particularly where
there were strong indications that the marriage was, indeed, genuine. The
couple may well have been pleased with the immigration possibilities arising
from the marriage, but that is far from saying that it was their primary
motivation.
[14]
Finally, the IAD relied on Ms. Gill’s husband’s
statement to the officer in which he said he had agreed to the marriage because
his parents wished him to live in Canada. However, the IAD failed to take
account of the couple’s testimony before it in which they clarified that the
immigration advantages of the marriage were secondary to the genuine grounds
for it. The hearing before the IAD was de novo and the evidence before
it, not just the evidence before the officer, had to be considered as a whole (Janjua
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1521 at para
12, and see also El Assadi v. Canada (Citizenship and Immigration), 2014
FC 58 at para 21).
[15]
It is clear that there are two distinct
considerations involved in these kinds of cases – the genuineness of the
marriage and the primary motivation for it. An applicant for permanent
residence is not considered a spouse if the marriage is not genuine or if the
motivation for it was primarily for an immigration purpose. But the two
considerations are related (Grabowski v Canada (MCI), 2011 FC 1488, at
para 24). This means that the stronger the evidence regarding the genuineness
of the marriage (and where there is a child involved, this is strong evidence
on its own), the less likely it is that it was entered into primarily to obtain
an immigration advantage (Gill v MCI, 2010 FC 122, at para 6-8). And vice
versa. The more compelling the proof that the couple was seeking
immigration status, the more likely it will be that the marriage was not
genuine.
[16]
Here, there was strong evidence that the
marriage was genuine – its duration, the fact that the couple had a child
together, and their genuine compatibility. Conversely, the evidence of an
immigration motive for the marriage was weak, attributed primarily to the
desires of other family members, not those of the couple. On this evidence, I
find that the IAD’s decision was unreasonable, as it fell outside the range of
defensible outcomes based on the facts and the law.
IV.
Conclusion and Disposition
[17]
The IAD’s reliance on others’ motivations for
the marriage between Ms. Gill and her husband caused it to render an
unreasonable decision regarding the primary purpose for the couple’s genuine
marriage. Accordingly, I must allow this application for judicial review and
order another panel of the IAD to reconsider the application. Neither party
proposed a question of genuine importance for me to certify, and none is
stated.
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