Docket: IMM-2296-15
Citation: 2015 FC 1303
Ottawa, Ontario,
November 23, 2015
PRESENT: The Honourable Mr. Justice Barnes
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BETWEEN:
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GURVINDER SINGH
SANDHU
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND
IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review by Gurvinder
Singh Sandhu from a decision of the Immigration Appeal Division of the
Immigration and Refugee Board [the Board]. Mr. Sandhu challenges the
refusal of his application to sponsor his Indian spouse [the applicant] for
permanent residency. At first instance, the application was denied by a visa
officer on the basis of a concern that the marriage was not genuine and had
been entered into primarily to acquire immigration status. The Board upheld that
decision on the basis of its own credibility concerns.
[2]
I appreciate the difficulties inherent in
determining the validity of arranged marriages. However, the Board must always
be mindful of the serious consequences that will flow from a visa refusal in
the face of a bona fide relationship. The task requires careful
appraisal of all the evidence in the applicable cultural context. In this case
the Board’s assessment of the evidence was surprisingly shallow and most of its
credibility determinations were unsound.
[3]
The Board acknowledged some of the evidence
favouring the grant of a visa but was essentially silent about the significance
of other relevant matters. For instance, it acknowledged the fact of a failed
pregnancy and said it carried “some
weight”. However, it made no particular findings
concerning an asserted cohabitation of 6 months facilitated by Mr. Sandhu’s
resignation from his Canadian employment. Mr. Sandhu also returned to
India on two occasions and ultimately moved to Vancouver to be closer to his
wife’s family. The Indian wedding was a significant event involving several
hundred guests. If accepted, these are all strong indications of a bona fide
marriage. The Board’s ultimate treatment of this evidence came down to a
bare assertion that it “does
not overcome the lack of credibility of the witness testimony”.
[4]
The Board’s conclusion was that Mr. Sandhu had
not met the burden of showing both a genuine marriage and one that was not
entered into primarily to acquire immigration status.
[5]
The Board’s credibility concerns were limited to
four discrete areas, not one of which touched directly on the genuineness of
the relationship or its primary purpose. These concerns were described as
follows:
a. At the hearing the witnesses gave
consistent answer on the connection between the appellant and the matchmaker.
However, the explanation the applicant gave to the visa officer - that the
appellant and matchmaker were close friends and had remained in phone contact after
the appellant emigrated. - was significantly different. [emphasis added]
b. At the hearing the witnesses gave
consistent testimony on why the appellant had the falling-out with his
step-father - a dispute over the family land. However, at the interview the
appellant stated that the reason was that they were not on the same “wavelength”,
and he refused to go along with his step-father's plan for him to marry. The
visa officer raised that discrepancy with the appellant and applicant at the
conclusion of the interview. Despite having the opportunity to correct or
clarify his answer, the appellant still did not give the same explanation he
provided at the hearing.
c. The witness testimony regarding
their first meeting on December 7, 2011, and subsequent events was consistent.
Both testified that no decision was made until December 9, 2011.They testified
that on that day the appellant forwarded his agreement to the match through the
matchmaker. The applicant's family relayed their agreement then went to the
appellant's family home to hold an engagement ceremony. At the interview the
applicant told the visa officer that the agreement was reached on December 7,
2011, and that the December 9, 2011, meeting was to set the date of the
marriage.
d. At the interview the applicant
gave inconsistent and vague answers regarding whether she and her family
considered other proposals. The visa officer specifically asked if the family
considered any matches from India. The applicant stated that they had not. Her
testimony at the hearing was not consistent with what she told the visa
officer. At the hearing she stated that the family had considered three prior
proposals, including one from India, but had rejected them for different reasons.
[6]
Even if the above-described inconsistencies
were, in fact, present, they would represent a thin foundation for rejecting
all of the other evidence favouring the genuineness of this marriage. The
fundamental problem, however, with these credibility findings is that they are
not, in every case, supported by the evidentiary record.
[7]
For example, there is no apparent inconsistency
in the evidence concerning the relationship between Mr. Sandhu and the
matchmaker. Both parties testified that there was a long-standing family
relationship. The fact that the applicant described the relationship as “close” is
not inconsistent with Mr. Sandhu’s testimony that there was a personal and a
family connection to the matchmaker over many years.
[8]
There is also no obvious incongruity concerning
the reasons for Mr. Sandhu’s falling out with his step-father. In the visa
interview, Mr. Sandhu stated that they were not on the same “wavelength”
and they disagreed about marriage arrangements. The visa officer failed to ask
for further particulars about what was meant by “wavelength”. When the Board asked
this question, both parties mentioned a disagreement over land in India. There
is no inconsistency between the generic response given to the visa officer and
the more specific answer provided to the Board when particulars were requested.
[9]
There is an acknowledged disagreement in the
record as to the date on which the agreement to marry was reached. The
applicant erred by two days. This, however, is a trivial point where perfect
recall should not have been expected by the Board.
[10]
Finally, there was no inconsistency or vagueness
about whether the applicant’s family had considered other marriage proposals.
The Board clearly overlooked clarifying evidence provided spontaneously at the
visa interview on this issue. This was a glaring error by the Board.
[11]
The Board’s negative credibility assessment does
not stand up in the face of the actual evidence and the decision is therefore
unreasonable.
[12]
I would add that the determination of whether a
person’s primary purpose for marriage is to obtain immigration status
necessarily includes an assessment of the genuineness of the relationship. The
two conjunctive aspects of s 4(1) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 are, thus, linked and must be considered
together.
[13]
There is also nothing inherently objectionable
or suspicious about a desire to seek out a Canadian spouse in an arranged
marriage with a view to family unification. Where both parties have a bona
fide commitment to the long-term maintenance of the marital relationship,
it will be a very rare case where the primary purpose of the marriage can be
reasonably found to be to acquire immigration status. That is so because the
primary purpose of a bona fide marriage has to be a long-term commitment
to the relationship. The collateral advantage of gaining immigration status
would, in almost every case, be secondary to that marital commitment.
[14]
For the foregoing reasons, this application for
judicial review is allowed and the matter is to be redetermined on the merits
by a different decision-maker.
[15]
Neither party proposed a certified question and
no issue of general importance arises on this record.
JUDGMENT
THIS COURT’S JUDGMENT is that this application for judicial review is allowed and the matter is to
be redetermined on the merits by a different decision-maker.
THIS COURT’S FURTHER JUDGMENT is that no
question is certified.
"R.L. Barnes"
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