Docket: IMM-4748-14
Citation:
2015 FC 399
Ottawa, Ontario, March 30, 2015
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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INPANATHAN
THIRUMANEY
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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
[1]
The applicant challenges the legality of a
decision by the Immigration Appeal Division of the Immigration and Refugee
Board of Canada [IAD], dated May 22, 2014, dismissing his appeal from the
decision of a visa officer refusing to grant his wife, Marinathevaki
Inpanathan, a permanent resident visa in the spousal sponsorship category.
[2]
The applicant was born in Sri Lanka and became a
Canadian citizen in 1990. He depends on welfare because he lost his ten fingers
to frostbite in 1994. Since 1990, he has been seeing a psychiatrist for
depression and was also later diagnosed with schizophrenia. On July 7, 2009,
the applicant married his wife, a Sri Lankan national, and an application for
sponsorship was made in 2010. The applicant’s wife had a first interview on
March 2, 2011 and at that time, the visa officer was satisfied that it was a
genuine marriage despite the applicant’s working disability because of the loss
of his fingers. It does not appear that the issue of the applicant’s mental
situation was drawn to the attention of the officer who, upon discovering that
issue, started to have concerns. Following a second interview, the same visa officer
refused the application on June 20, 2011. He came to the conclusion that the
marriage was not genuine. The extent of the applicant’s wife’s knowledge of the
applicant’s mental illness and the nature of same became a major consideration
for doubting of the genuineness of the marriage.
[3]
On appeal, the IAD concluded that the applicant was
sincere; on his part, he had entered the marriage in good faith. However, the
IAD found that the applicant’s wife had entered into the marriage for the
purpose of acquiring a status in Canada. Therefore, the marriage was not
genuine. The IAD noted that the applicant’s wife was not aware of how the
applicant had lost his fingers and was completely unaware of the extent of the
applicant’s mental illnesses. The IAD noted some contradictions between what
the applicant said he had told his wife, and what his wife actually knew, as
well as contradictions in the testimony of the wife. In addition, the IAD
concluded that the lack of knowledge and lack of interest about the mental
illnesses of the applicant on the part of the wife was not indicative of a good
faith relationship. The IAD also noted inherent incompatibilities, including
the handicap and mental condition of the applicant, the twenty-year age
difference and the fact that the applicant and his wife were of different
religions. The IAD concluded that the applicant had not demonstrated on a
balance of probabilities that his marriage was genuine and dismissed the
appeal.
[4]
The only point of issue in this case is whether
the IAD’s decision is reasonable.
[5]
In a nutshell, the applicant argues that the IAD
acted unreasonably in questioning the extent of his wife’s knowledge of his
mental illnesses and in concluding that she had expressed a lack of interest in
such a significant aspect of the applicant’s health. The applicant submits that
the visa officer’s earlier finding was based on the fact that the applicant
appears to continue to suffer from schizophrenia. The IAD didn’t consider the
fact that the applicant was asymptomatic at the time of the marriage and
hearing of the appeal. The IAD ignored highly relevant medical evidence in this
regard from Dr Jacques Bernier, psychiatrist (letter dated March 27, 2014). Also,
the IAD made a factual error by stating that the applicant’s wife only
mentioned sleeping problems at the interview with the visa officer because she
also mentioned that he was thinking a lot and taking a pill for that. The
applicant states that his wife’s testimony was not contradictory: she knew
about his mental health problem and she accepted him as he was. The applicant
also argues that the fact that his wife did not know how he had lost his
fingers was irrelevant. The IAD also completely ignored the documentary
evidence supporting the good faith of the marriage, including testimonials from
family members and proof of financial support. Consequently, the IAD’s decision
is unreasonable.
[6]
According to the respondent, the decision is
reasonable. The IAD is presumed to have considered the psychiatrist’s letter. Moreover,
this evidence is not determinative. Whether the applicant is asymptomatic or
not is simply not relevant here. The applicant was diagnosed with a severe
mental condition. He is also physically handicapped. He does not work and is on
welfare. There is a twenty-year age difference between the spouses. Thus, it
was reasonable for the IAD to find that the applicant’s wife should have known
more about or at least shown more interest in the applicant’s illnesses, loss
of his fingers and siblings. The weight to assign to those factors was for the
IAD to decide. Even if another IAD member may have assessed the evidence
differently, this is not enough to justify an intervention by the Court.
[7]
The present application must fail despite the
able presentation made by the applicant’s learned counsel. The whole appeal
revolves on the particular facts of the case and their interpretation by the
IAD. There is no patent error of fact. This is not a case where, cumulatively, questionable
findings of fact made by the tribunal, render its final conclusion
unreasonable. At the oral hearing before me, applicant’s counsel referred to
the answers provided by the applicant’s wife both before the visa officer and
the IAD. She proposed a different interpretation of the very same answers.
However, it is not the role of this Court to reassess the evidence and
substitute its opinion to the IAD. The conclusion that the marriage was not
genuine was clearly open, based on the evidence on record, including the wife’s
lack of knowledge and lack of interest in the applicant’s mental illnesses and
the loss of his fingers, as well as the various contradictions in her
testimony. In addition, the applicant himself concedes that “his wife had not had a chance to […] get to know him and ask
him questions.” Compatibility is very important in arranged marriages.
It was open for the IAD to conclude that the applicant’s wife “was unable to explain why, despite inherent
incompatibilities, she was nevertheless genuinely committed to a marriage with
the [applicant], other than to acquire a status in Canada”. Consequently,
the IAD’s decision was reasonable.
[8]
The application shall be dismissed. Counsel have
proposed no question for certification.
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