Docket: IMM-4468-15
Citation:
2016 FC 442
Ottawa, Ontario, April 20, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
|
BETWEEN:
|
|
GEETA RANI
KALSI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision of the Immigration Appeal Division [IAD] of
the Immigration and Refugee Board of Canada. The IAD refused the applicant’s
appeal from the decision of the Visa Officer [Officer] on the basis that the
applicant and her spouse entered into their marriage for the primary purpose of
acquiring status or privilege under the IRPA pursuant to paragraph 4(1)(a) of the
Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR].
[2]
For the reasons that follow I find the IAD erred
unreasonably and the application is allowed.
I.
Background
[3]
The applicant, Geeta Rani Kalsi, was born in
India in 1968 and is now a permanent resident of Canada. She was afflicted with
polio in infancy leading to post-polio residual paralysis. She is dependent on
a wheelchair for her mobility.
[4]
The applicant arrived in Canada in 2006 with her
parents, sponsored by her brother. She resides with, and is dependent upon, her
brother who has retrofitted his home to accommodate the applicant’s special
physical needs. Her brother has also provided financial support to the
applicant since her arrival in Canada.
[5]
The applicant met her spouse, Balbir Singh
Dhillon, a citizen of India, as a result of an advertisement her sister posted
in an India newspaper seeking a husband. They met on January 21, 2011 in India,
he proposed on February 1, 2011 and they married on February 25, 2011. They
lived together in India until the applicant returned to Canada on June 6, 2011.
[6]
It was the applicant’s evidence before the IAD
that she intended to remain, and live in India after the marriage but
subsequently realized that life was too difficult for her as a disabled person.
She returned to Canada and in July, 2012 applied to sponsor her spouse and his
two adult children from a previous marriage for immigration to Canada under the
spousal sponsorship class.
[7]
In May, 2013, the Officer interviewed the spouse
for the purpose of addressing concerns regarding the marriage. The interview
notes indicate that the Officer did not find the spouse to be credible and
forthcoming and concluded that the marriage had been entered into in bad faith
to ensure immigration to Canada with the spouse’s children.
[8]
On May 30, 2013, the Officer refused the
application finding, pursuant to subsection 4(1) of the IRPR that the marriage
to the applicant was not genuine and the parties entered into the marriage
primarily for the purpose of acquiring permanent residence in Canada. The
Officer concluded that the spouse could not be a member of the family class
pursuant to paragraph 117(1)(a) of the IRPR.
II.
Decision under Review
[9]
The IAD dismissed the appeal from the Officer’s
decision pursuant to paragraph 4(1)(a) of the IRPR, finding neither the
applicant or her spouse were credible or forthright on their intentions for
entering into the marriage. Having determined the applicant entered the
marriage for the primary purpose of her spouse’s immigration to Canada, the IAD
found there is no need to assess the bona fides of the marriage.
[10]
The IAD determination that the marriage had been
entered into for the primary purpose of acquiring status or privilege under the
IRPA was the result of a number of plausibility and credibility concerns
arising out of the evidence provided by the applicant and her spouse.
III.
Issues and Analysis
A.
Issues
[11]
The applicant raises issues relating to the vires
and interpretation of subsection 4(1) of the IRPR, bias and the failure to
consider and address relevant evidence.
[12]
I am of the view that the IAD’s failure to
address directly relevant yet contradictory evidence is a reviewable error and
is determinative of the application. I need not address the other issues raised
except to note that both the vires and interpretation arguments advanced
by the applicant have been subject to prior judicial consideration and guidance
(Gill v Canada (Minister of Citizenship and Immigration), 2012 FC 1522,
13 Imm LR (4th) 153; Singh v Canada (Minister of Citizenship and
Immigration), 2014 FC 1077, 467 FTR 153; Burton v Canada (Minister of
Citizenship and Immigration), 2016 FC 345 [Burton]).
B.
Standard of Review
[13]
The parties do not dispute that the
reasonableness standard of review applies to the IAD’s determinations on
questions of fact and mixed fact and law (Burton at paras 13, 15; Dunsmuir
v New Brunswick, [2008] 1 S.C.R. 190 at para 51).
C.
IAD’s Treatment of the Evidence
[14]
The applicant submits that the IAD erred in
ignoring evidence of the genuineness of the marriage such as efforts of the
parties to communicate and the time spent together after marriage. In
addition, the applicant argues that the IAD erred in finding it implausible
that the applicant’s intent was to return to India to be with her spouse after
having come to Canada because of greater accessibility for people with
disabilities. The applicant submits that her evidence that the situation in her
brother’s home was not good, her bedroom was in the living room, and her sister-in-law
was unhappy with her living with them demonstrates why she wished to leave her
brother’s home for India. This evidence was not addressed by the IAD in
reaching its implausibility finding.
[15]
The respondent takes the position that there is
no reason to believe that the IAD engaged in speculation in finding it
implausible that the applicant intended to live in India with her spouse. The
respondent argues that this finding is supported in the IAD’s reasons and there
is no basis to conclude that evidence was overlooked. I respectfully disagree.
[16]
The applicant provided the following testimony
before the IAD, testimony that is in my view directly relevant to the IAD’s
finding that it was implausible that the applicant planned to live in India
with her spouse (Certified Tribunal Record, Volume 2 at pages 300 and 301):
COUNSEL: What made you to decide to marry at 45, 40 years of age?
APPELLANT: I was living with my parents. First I was living with my parents.
That was a different kind of environment. Then I came here to my brother and
sister-in-law so that is something different. So I was thinking that I’ll be
staying dependent on them all my life. So then I thought that I must need a
companion and like a life partner in my life.
COUNSEL: Can you go in more detail to explain what problems you anticipated
or you were facing at this time when you decided to marry?
APPELLANT: Like I cannot go like upstairs; I can’t take the steps. Like my
bed was in the living room. My closet and other stuff was also in the living
room. So my sister-in-law, she was like upset that you made, you know you
turned our living room into a bedroom. So when her friends were you know coming
there they were kind of like criticize me. So then I thought that I should
remove myself from this place [emphasis added].
[17]
The applicant also explained in her testimony
that she originally came to Canada because her parents were coming to Canada to
live with her brother. She testified that she would have been alone with no one
to assist with her care had she remained in India (Certified Tribunal Record,
Volume 2 at page 322).
[18]
The spouse’s father-in-law, who appeared as a
witness before the IAD corroborated the applicant’s experiences with her family
at page 370 of the Certified Tribunal Record, Volume 2: “my son told me that she wants to come here, she doesn’t want
to live in Canada. Then I asked why do you want to leave Canada. She said she
has a problem in her household, her sister-in-law, she fights with her.”
[19]
Finally, the applicant was asked if she will
continue to live with her brother if the appeal before the IAD is not
successful. The applicant’s response was that she has not made plans in the
event she is not successful before the IAD and so will live with her brother
(Certified Tribunal Record, Volume 2 at page 327 and 328). This might be viewed
as contradicting her earlier evidence. However, like the previous evidence
relating to the applicant’s explanation for intending to live in India and the
father-in law’s corroborative statement, it is not addressed by the IAD in
reaching its implausibility finding.
[20]
In Valtchev v Canada (Minister of Citizenship
and Immigration), 2001 FCT 776 at paras 7-8, 208 FTR 267 (TD), Muldoon J
held:
[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.
[8] In Leung v. M.E.I. (1994),
81 F.T.R. 303 (T.D.), Associate Chief Justice Jerome stated at page 307:
[14] Nevertheless, the Board is
under a very clear duty to justify its credibility findings with specific and
clear reference to the evidence.
[15] This duty becomes
particularly important in cases such as this one where the Board has based its
non-credibility finding on perceived "implausibilities" in the
claimants' stories rather than on internal inconsistencies and contradictions
in their narratives or their demeanour while testifying. Findings of
implausibility are inherently subjective assessments which are largely dependant
on the individual Board member's perceptions of what constitutes rational
behaviour. The appropriateness of a particular finding can therefore only be
assessed if the Board's decision clearly identifies all of the facts which form
the basis for their conclusions. The Board will therefore err when it
fails to refer to relevant evidence which could potentially refute their
conclusions of implausibility [emphasis added].
[21]
I recognize that the IAD is an expert tribunal,
and this reviewing Court owes it deference (Burton at para 13). However
as stated in Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) [1998] FCJ 1425 at para 17, 157 FTR 35 (TD) “the more important the evidence that is not mentioned
specifically and analyzed in the agency’s reasons, the more willing a court may
be to infer from the silence that the agency made an erroneous finding of fact “without
regard to the evidence””.
[22]
In this case the IAD failed to directly address
relevant and contradictory evidence relating to its finding that it was
implausible that the applicant intended to remain in India after her marriage.
This implausibility finding was the first made by the IAD and is a finding that
is referred to throughout the IAD’s analysis, and the decision cannot stand
without it. In the circumstances the failure to address the evidence set out
above is a reviewable error.
IV.
Certified Question
[23]
The applicant has proposed the following
question for certification:
Whether section 4(1)(a) of the IRPR requires
a decision maker to decide whether or not at the time of entering into a
relationship described in the section, including marriage, the intention of one
or both of the parties was not bona fides for the purpose of entering
into the relationship, but was instead a sham, a marriage of convenience or not
undertaken in good faith.
[24]
The respondent opposed this request. I have
considered the written submissions of the parties.
[25]
The Federal Court of Appeal has set out the test
for certification of issues for the purposes of an appeal under paragraph 74(d)
of the IRPA on a number of occasions (Zazai v Canada (Minister of
Citizenship and Immigration), 2004 FCA 89 at paras 10-12, 36 Imm LR (3d)
167; Zhang v Canada (Minister of Citizenship and Immigration), 2013 FCA
168 at para 9, 28 Imm LR (4th) 231). These authorities establish that this
Court may certify a question under paragraph 74(d) only where it (1) is
dispositive of the appeal and (2) transcends the interests of the immediate
parties to the litigation, as well as contemplate issues of broad significance
or general importance. Furthermore, the question must arise from the case
itself.
[26]
Here the application has been decided based on
the IAD’s failure to address relevant evidence that directly contradicted one
of the IAD’s core findings, not on the basis of the matters identified in the
applicant’s proposed questions for certification. I therefore decline to
certify the applicant’s proposed question.
Email this Content