Docket: IMM-5031-14
Citation:
2015 FC 193
Ottawa, Ontario, February 16, 2015
PRESENT: The Honourable Mr. Justice S. Noël
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BETWEEN:
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JATINDER SINGH DOSANJH
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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.
Introduction
[1]
This is an application under subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] for
judicial review of the decision of Tim Crowhurst of the Immigration Appeal
Division [IAD], of the Immigration and Refugee Board, dated May 28, 2014, which
dismissed the appeal by the Applicant, Jatinder Singh Dosanjh [the Applicant],
against the refusal of the family class sponsorship application for permanent
residence of his wife from India, Jaspal Kaur Dosanju [Jaspal].
II.
Facts
[2]
The Applicant is a 41-year-old Canadian citizen.
He arrived in Canada in 1998. He made a refugee claim, which was refused. He
remained illegally in Canada until 2004, where he was admitted to Canada as a permanent resident after being sponsored by his first wife, Lakhwant Kaur
Dosanjh [Lakhwant]. Lakhwant is Jaspal’s sister.
[3]
The marriage between the Applicant and Lakhwant
was arranged by the Applicant’s younger brother Harjit, in India. Lakhwant, who was living in Canada, agreed to marry the Applicant. The marriage
between the Applicant and Lakhwant took place on September 4, 2004. At the
time, Harjit was married to Jaspal.
[4]
While in Canada, the Applicant was financially
assisting his brother Harjit and Jaspal along with his parents in India. The Applicant’s first wife, Lakhwant, told him not to send money to his family in India. The Applicant however continued to send money. Lakhwant therefore threw the
Applicant out of the house on May 10, 2009.
[5]
The Applicant traveled to India on May 31, 2009. His brother died that same evening.
[6]
The Applicant and Lakhwant commenced divorce
proceedings in November 2010 and a divorce was granted on March 17, 2011. The
house that the Applicant and Lakhwant initially bought together was transferred
into the name of Lakhwant in August 2012.
[7]
The Applicant went to India on September 12,
2011 and married Jaspal on September 28, 2011. The Applicant submitted an
application to sponsor her for permanent residence in Canada. Jaspal’s three children, whom she had with Harjit, are included as dependents in
her permanent resident application.
[8]
The permanent residence application under the
family class sponsorship was refused in a letter by a visa officer in New Delhi on January 11, 2013. The visa officer challenged the legality of the marriage.
The Applicant appealed this decision to the IAD.
[9]
The IAD dismissed the appeal on May 28, 2014.
This is the decision under review.
III.
Impugned Decision
[10]
The Applicant appeals the refusal of the sponsor’s
application for permanent residence in Canada of Jaspal, from India. Jaspal’s application was refused because the requirements of subsection 12(1) of
IRPA were not met in that Jaspal is a person caught by the exclusionary
provision of subsection 4(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [the Regulations]. Subsection 4(1) concerns marriage, common-law
partnership or conjugal partnership entered in bad faith. To dismiss the
appeal, the IAD must find that the marriage is not genuine or that it was
entered primarily for the purpose of acquiring a status or privilege under
IRPA.
[11]
After explaining the relationship between the
Applicant, his ex-wife Lakhwant, his brother Harjit and his new wife Jaspal,
along with the negative portrait provided of the Applicant’s ex-wife Lakhwant,
the IAD states that the testimonies of the Applicant and Jaspal lack
credibility. The Applicant also breached the IAD’s instruction not to speak to
Jaspal during the lunch break, which impairs the weight that can be attributed
to the Applicant and Jaspal’s testimonies.
[12]
The implausibility of the story behind the
appeal, coupled with the history of immigration between the Applicant, Jaspal
and their families is indicative of a primary purpose of immigration to Canada. The IAD therefore finds that the Applicant has not met his onus, on a balance of
probabilities, to demonstrate that Jaspal is not caught by subsection 4(1) of
the Regulations. This appeal is thus dismissed.
IV.
Parties’ Submissions
[13]
The Applicant submits that the IAD is confused
about the factual family network and that the IAD is substituting its own
views, feelings and prejudice on the matter. The Applicant also states that he
and Jaspal married for genuine and honourable reasons and not to gain Canadian
immigration status. The Respondent retorts by stating that the IAD made no
findings on whether or not the Applicant and Jaspal entered into a genuine
marriage, but rather concluded that they married primarily for immigration
purposes.
[14]
The Applicant further argues that the IAD’s
judgment was clouded by its lack of understanding of the India sub-culture continent. Moreover, the Applicant’s not so ideal immigration history to Canada has no bearing on the marriage between him and Jaspal. The Respondent replies that
the Applicant does not prove the existence of the customs he raises, as no
evidence of the alleged custom was put before the IAD.
[15]
The Applicant finally submits that the IAD
should not have concluded that the telephone call between the Applicant and
Jaspal during the hearing’s lunch break goes to the heart of their credibility.
The Respondent, on the other hand, states that the Applicant simply disagrees
with the IAD’s view of the telephone call and is attempting to have this Court
reweigh the evidence.
V.
Applicant’s Reply
[16]
Contrary to the Respondent’s argument that the
IAD made no findings with regards to the genuineness of the marriage between
the Applicant and Jaspal, the Applicant replies that the IAD’s findings relate
to both subsections (a) and (b) of subsection 4(1) of the Regulations.
Furthermore, in reply to the Respondent’s argument that the Applicant did not
provide any evidence of the alleged customs before the IAD, the Applicant
submits that the custom relating to the legality of the marriage was not an
issue at the hearing since the legality of the marriage “was conceded by the Minister prior to the oral hearing and
was not canvassed during the hearing” (Applicant’s Reply at para 8).
Moreover, evidence of customs was indeed submitted into evidence before the IAD.
The Applicant also argues that the Respondent does not address the Applicant’s
assertion that the IAD was substituting its own Western culture views on the
matter.
VI.
Issue
[17]
After reviewing the parties’ records and
respective submissions, I frame the issue as follows:
- Did the IAD err in concluding that the marriage was entered
primarily for immigration purposes?
VII.
Standard of review
[18]
The question of whether or not the IAD erred in
concluding that the marriage was entered primarily for immigration purposes
attracts the reasonableness standard as it raises questions of mixed fact and
law (Huynh v Canada (Minister of Citizenship and Immigration), 2013 FC
748 at para 6 [Huynh]; Zheng v Canada (Minister of Citizenship and
Immigration), 2011 FC 432 at para 18 [Zheng]). The Court shall only
intervene if it concludes that the decision is unreasonable, and falls outside
the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at para 47).
VIII.
Analysis
[19]
Subsection 12(1) of IRPA explains that 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 or permanent resident.
Subsection 4(1) of the Regulations however highlights the conditions under
which a foreign national will not be considered a spouse. To make a
determination under subsection 4(1), the IAD must determine whether the
marriage was either entered primarily for acquiring status or privilege under
IRPA, or is not genuine (Singh v Canada (Minister of Citizenship and
Immigration), 2014 FC 1077 at para 5 [Singh]). Either finding
precludes the spouse from obtaining the necessary visa to live with her husband
in Canada (Ibid). In order for the Applicant’s marriage to Jaspal to
fall outside the scope of the subsection 4(1) exclusion, he is required to
demonstrate that both conditions set out in subsection 4(1) are not satisfied (Ouk
v Canada (Minister of Citizenship and Immigration), 2007 FC 891 at para 12
[Ouk]; Zheng, supra at para 21). After reviewing the
parties’ records and their respective submissions, I find the IAD decision
reasonable.
[20]
The IAD first addresses the timeline of events
leading up to the marriage between the Applicant and Jaspal. To that effect,
the jurisprudence of this Court explains that the timing of a relationship can
be a relevant consideration when making a determination as to the applicability
of subsection 4(1) of the Regulations (Zheng, supra at
para 25). In the case at bar, the Applicant arrived in Canada in 1998 and made a refugee claim, which was refused. He remained in Canada illegally and only obtained permanent residence status in 2004 after being sponsored
by his first wife, Lakhwant. Lakhwant allegedly kicked the Applicant out of the
house on May 10, 2009. After his brother’s death on May 31, 2009, the Applicant
commenced divorce proceedings with Lakhwant in November 2010, which was granted
in March 2011. Six months later, in September 2011, the Applicant married his ex-wife’s
sister, also his brother’s widow. The house the Applicant and Lakhwant bought
together was only transferred into the Lakhwant’s name in August 2012, almost a
year and a half after the divorce was granted. Based on this chain of events,
the timing of the divorce between the Applicant and Lakhwant and the
Applicant’s subsequent marriage to Jaspal, along with the Applicant’s
immigration history, it was reasonable for the IAD to conclude that the
marriage was entered for the purpose of facilitating Jaspal and her children’s
immigration to Canada.
[21]
Second, the IAD made several negative
credibility findings. The IAD’s credibility findings are findings of fact and
are to be afforded significant deference, as the IAD had the opportunity to
hear and observe the Applicant and hear Jaspal give their oral evidence and is
thus in the best position to assess their credibility (Granata v Canada
(Minister of Citizenship and Immigration), 2013 FC 1203 at para 28 [Granata]).
Here, the IAD questioned the credibility of the Applicant and Jaspal’s
testimony at the hearing regarding the explanation given as to Lakhwant’s
difficult character, the money issues of the Applicant and Jaspal’s family in
India, along with the telephone call the Applicant made to Jaspal during the hearing’s
lunch break after being instructed by the IAD not to get in touch with any of
the parties involved in the matter. More will be said on this in the following
paragraphs. The date of separation between the Applicant and Lakhwant shortly
prior to the Applicant’s brother’s death and the matrimonial home being
transferred to Lakhwant more than a year after the end of the divorce
proceeding also impacted the credibility of the Applicant and Jaspal. Moreover,
contrary to the Applicant’s argument, the IAD did not substitute its own views,
feelings and prejudice on the matter, it instead relied on the facts of the
case to make its determination. Again, the IAD’s finding that the marriage was
entered for the purpose of facilitating Jaspal and her children’s immigration
to Canada is reasonable.
[22]
As for the Applicant’s argument regarding the
error the IAD made in paragraph 13 of its decision with regards to the family
network, it is a minor and immaterial error, and it is not determinative of the
issue (Nsabimana v Canada (Minister of Citizenship and Immigration),
2007 FC 645 at para 4 [Nsabimana]). It does not affect the outcome of
the decision. Indeed, the relationships between all the parties involved are
clearly explained in the rest of the decision.
[23]
On the phone call issue, a reading of the
transcript is telling. At lunch break, the IAD tells the Applicant that he
should not speak to his wife or anyone else with regards to his testimony. At
the beginning of the cross-examination of Jaspal, who testified by phone,
counsel for the Minister inquires about when was the last time she spoke to her
husband:
Q What time is it where you are
right now?
A It’s close to two o’clock in the
morning; quarter to two.
Q Have you been awake waiting for
the phone call today or
did you go to
sleep for a while?
A I was waiting for the phone call.
Q When’s the last time you spoke
with your husband?
A I spoke to him yesterday.
Q How do you think that he did on
his questioning today?
A What?
Q How do you think that he did on
his questioning before we
called you?
A [Foreign language spoken.]
Q Who are you talking to right now?
A I am talking with you.
Q Okay. What was your answer? We
didn’t hear it.
A Ask me again. I did not
understand.
Q How do you think that your husband
did on his questioning
today?
A He gave good answers.
Q How do you know?
A He told me that I have answered my
questions now they
will be calling
you.
Q When did he tell you that?
A He called me that make sure you
haven’t gone to sleep. He
phoned me.
Q So he called you after he answered
the questions today.
A He said “My interview has been
done. Don’t go to sleep.
They will be
calling you.”
From this exchange, it is notable that at
first Jaspal lies when she says that she spoke to her husband “yesterday” when
in reality later on she admits to have spoken to him during the lunch break.
She even says that “he gave good answers” and
justifies the conversation by saying that he called to make sure that she would
not go to sleep.
[24]
Counsel for the Applicant at the IAD decided not
to clarify the matter and not ask any questions after the cross-examination of
counsel for the Minister. During his submissions, counsel for the Applicant did
not address the phone call issue except for a brief comment in reply to counsel
for the Minister’s submissions which dealt with the issue square on.
[25]
As seen earlier, counsel for the Applicant in
this judicial review argued that it was an error on the part of the IAD not to
have asked questions to the Applicant or his wife to obtain further information
on this phone call and that therefore it was wrong to draw a negative
credibility finding because of this. Counsel did not rely on any jurisprudence
and limited himself to a general comment.
[26]
This argument can be refuted on the facts as
they are presented. Clear instructions not to have a discussion with his wife
dealing with the testimony of the Applicant were given by the IAD. These
instructions were not respected. In addition, it is counsel for the Minister
that addressed the issue, and from the transcript it appears that Jaspal at
first lies when saying they spoke “yesterday”, then hesitates even though the
questions asked were clear and understandable and then informs that they had
spoken at noon. Furthermore, counsel for the Applicant decides not to clarify
the matter by not asking further questions nor in his initial, oral
submissions. It is only in reply that he deals with the matter and limits his
comment to submit that Jaspal did not say that they had discussed his
testimony.
[27]
Why would the IAD have the obligation to ask
further questions on this when counsel for the Applicant did not choose to
clarify the telephone conversation? It was up to counsel for the Applicant to
do so and not the IAD. The IAD has the obligation to deal with the evidence as
it was presented at the hearing and to draw any conclusions it may have arrived
at. The IAD reviewed the evidence on this matter and made a negative
credibility finding as it was open to do so. Counsel for the Applicant was not
able to submit any jurisprudence to support his argument on this matter.
Therefore, the undersigned, relying on the facts of this case, finds that the
IAD did not have an obligation to conduct an enquiry into the reasons for the
phone call or the nature and substance of the telephone conversation, and had
the evidence to make a negative credibility finding.
[28]
Counsel for the Applicant submitted a question
for certification:
Where an Appellant telephones his wife (the
Applicant), in contravention of the Board’s instructions not to communicate
with her during break in the hearing, is the Board justified, without more, to
proceed to make negative findings on the credibility of the testimonies of the
Appellant and Applicant, or should the Board, before reaching such an
adverse conclusion, conduct an enquiry into the reason for the phone call and
the nature and substance of the telephone conversation?
[29]
Counsel for the Respondent objected to the
certification of the question because it does not meet the test for
certification. The Applicant made no submissions regarding the certification of
his question.
[30]
The principles governing the certification of a
question pursuant to subsection 74(d) of IRPA were set out by the Federal Court
of Appeal. The question “must be one that transcends the interests of the immediate
parties to the litigation and contemplates issues of broad significance or
general application” (Canada (Minister of Citizenship and Immigration) v
Liyanagamage, [1994] FCJ 1637, 176 NR 4 at paras 4-6). The question must be
serious and of general importance and dispositive of the appeal (Canada (Minister of Citizenship and Immigration) v Zazai, 2004 FCA 89 at paras 11-12; Varela
v Canada (Minister of Citizenship and Immigration), 2009 FCA 145 at paras
22-29).
[31]
In the case at bar, the proposed question does
not meet the test for certification. The question is specific to the facts of
the case, it is neither a question of general importance nor does it contemplate
issues of broad significance and it is not dispositive of the appeal. The
question will therefore not be certified.
IX.
Conclusion
[32]
The decision of the IAD, when read as a whole,
is reasonable. It properly concluded that the Applicant has not met his onus of
proof that, on a balance of probabilities, their relationship is not caught by
subsection 4(1) of the Regulations. The intervention of this Court is not
warranted. As seen above, no question will be certified.
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