Docket: IMM-3078-15
Citation:
2016 FC 414
Ottawa, Ontario, April 14, 2016
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
|
PRITPAL SINGH
SAROYA
|
Applicant
|
and
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of
a decision of the Immigration Appeal Division of the Immigration and Refugee
Board of Canada [IAD] dated June 9, 2015 [Decision], which determined that the
Applicant had not discharged the onus upon him to demonstrate that his marriage
did not violate s 4 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations].
II.
BACKGROUND
[2]
The Applicant is a 43-year-old Canadian citizen
who was born in Jalandhar, Punjab, India. He is a member of the Sikh faith. The
Applicant lived in the United States from 1993 to 2003. There, he married his
first wife in 1996. In 2002 they were divorced and the Applicant returned to India. In 2003 the Applicant married his second wife, a permanent residence of Canada, with whom he had a son in September 2004. The Applicant claims that the marriage
ended under acrimonious circumstances in which his then wife made false allegations
of abuse against him and his family. The Applicant and his second wife divorced
in 2008.
[3]
The Applicant traveled to India with his mother to look for a bride in September 2011. There, he met Ramandeep Kaur Saroya
[Ramandeep] through an introduction by a family friend. Ramandeep and her
family learned of the Applicant’s two prior relationships. After making
inquiries in their community, they became satisfied that despite the
accusations made against him, the Applicant was not at fault for the breakdown of
his second marriage. On October 30, 2011, the two married.
[4]
The Applicant and Ramandeep filed a spousal
sponsorship application. On September 10, 2013, Ramandeep was interviewed
by a visa officer who, by way of a letter dated September 30, 2013, refused her
application for permanent residence as a member of the family class on the
grounds that the marriage had been entered into by her primarily for the
purpose of acquiring status or privilege under the Act or was not genuine. The
reasons for the refusal included: the apparent haste of the wedding; a lack of
compatibility between the Applicant and Ramandeep in areas such as age,
education and marital history; Ramandeep’s apparent lack of knowledge of the
Applicant; Ramandeep’s family’s apparent lack of investigation into the
Applicant’s background, including his previous marriages; and the fact that the
Applicant had not visited Ramandeep since their wedding.
[5]
Following the refusal, the Applicant claims to
have visited Ramandeep in India from December 2013 to January 2014, and again
from February to March 2015.
[6]
On June 9, 2015, the IAD denied the Applicant’s
appeal of the visa officer’s decision on grounds that the Applicant had failed
to demonstrate that his marriage did not violate the exclusionary provisions of
s 4 of the Regulations.
III.
DECISION UNDER REVIEW
[7]
The IAD engaged in an assessment of the
available evidence in order to determine whether the primary purpose of the
marriage between the Applicant and Ramandeep was Ramandeep’s immigration. The
Decision acknowledged the need to consider the customs surrounding the practice
of arranged marriages when engaging in such an analysis, making note of the
evidence that confirmed the typical events that occur in arranged marriages in
the Sikh culture.
[8]
The Decision noted the evidence of ongoing
communication between the couple (including each party’s ability to recite the
other’s employment activities and education pursuits) and of the financial
support provided by the Applicant to Ramandeep, concluding that it was
consistent with a genuine marriage.
[9]
Nevertheless, the IAD determined that there were
material concerns regarding the parties’ intentions, including the appearance
of haste in the arrangement of the marriage and the lack of compatibility in
areas such as age, education and marital history. At their hearing, Ramandeep clarified
the details she was aware of regarding the Applicant’s divorce arrangements
with his second wife including the amount of support payment he was responsible
for towards his son.
[10]
However, the IAD held that it was unlikely that Ramandeep’s
family made reasonable efforts to obtain independent assurance of the
Applicant’s compatibility and suitability for their daughter. The only source
of information to support the conclusion that the Applicant was honest and not
at fault in his second marriage was the Applicant himself. The willingness to
take the Applicant’s word and illogical explanations regarding his previous
relationships raised significant doubts about the parties’ intentions in their
marriage.
[11]
Furthermore, the testimony and content of the
hearing raised material concerns about the credibility of the Applicant and Ramandeep
and the reliability of their evidence. For instance: while the Applicant
testified that he is willing to accept his son if the son wants to see him in
the future, Ramandeep testified that they have plans to pursue custody of the
son once she arrives in Canada; the parties gave only generic and unbelievable
suggestions that their daily phone conversations (which they allege tend to
last up to 1.5 or 2 hours) were romantic in nature; the couple’s knowledge and
description of the qualities they appreciate in each other was vague and
generic; and there was inconsistent evidence regarding Ramandeep’s illness
which arose following the marriage.
[12]
The IAD determined that even where generous
allowances were made for the passage of time and faded memory, the evidence of
the Applicant and Ramandeep failed to establish that their relationship was
genuine. When combined, deficiencies in the evidence and lack of reasonable
explanation for the match leave more than mere speculation that the primary
purpose of the arrangement was immigration.
IV.
ISSUE
[13]
The Applicant submits that the following is at
issue in this matter:
- Did the IAD base its decision on
erroneous findings of fact made in a perverse or capricious manner and
without regard to the material before it?
V.
STANDARD OF REVIEW
[14]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[15]
The parties agree and I concur that the standard
of review applicable to the judicial review of an IAD decision and assessment
of whether it made any erroneous findings in a perverse or capricious manner is
reasonableness: Khosa v Canada (Citizenship and Immigration), 2009 SCC
12 at para 58 [Khosa]; Kitomi v Canada (Citizenship and Immigration),
2012 FC 1293 at para 37; Singh v Canada (Citizenship and Immigration),
2002 FCT 347.
[16]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” See Dunsmuir, above, at para 47, and Khosa,
above, at para 59. Put another way, the Court should intervene only if the
Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[17]
The following provisions from the Act are
relevant in this matter:
Application
before entering Canada Visa et documents
|
Visa et
documents
|
11 (1) A
foreign national must, before entering Canada, apply to an officer for a visa
or for any other document required by the regulations. The visa or document
may be issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
|
11 (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
|
Appeal
allowed
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Fondement
de l’appel
|
67 (1) To
allow an appeal, the Immigration Appeal Division must be satisfied that, at
the time that the appeal is disposed of,
|
67 (1) Il est
fait droit à l’appel sur preuve qu’au moment où il en est disposé :
|
(a) the
decision appealed is wrong in law or fact or mixed law and fact;
|
a) la
décision attaquée est erronée en droit, en fait ou en droit et en fait;
|
(b) a
principle of natural justice has not been observed; Or
|
b) il y a eu
manquement à un principe de justice naturelle;
|
(c) other
than in the case of an appeal by the Minister, taking into account the best
interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
|
c) sauf dans
le cas de l’appel du ministre, il y a — compte tenu de l’intérêt supérieur de
l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu
les autres circonstances de l’affaire, la prise de mesures spéciales.
|
[18]
The following provisions from the Regulations
are relevant in this matter:
Bad faith
|
Mauvaise
foi
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4 (1) For the
purposes of these Regulations, a foreign national shall not be considered a
spouse, a common-law partner or a conjugal partner of a person if the
marriage, common-law partnership or conjugal partnership
|
4 (1) Pour
l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait ou le partenaire conjugal d’une personne
si le mariage ou la relation des conjoints de fait ou des partenaires
conjugaux, selon le cas :
|
(a) was
entered into primarily for the purpose of acquiring any status or privilege
under the Act; or
|
a) visait
principalement l’acquisition d’un statut ou d’un privilège sous le régime de
la Loi;
|
(b) is not
genuine.
|
b) n’est pas
authentique.
|
Family
class
|
Catégorie
|
116 For the
purposes of subsection 12(1) of the Act, the family class is hereby
prescribed as a class of persons who may become permanent residents on the
basis of the requirements of this Division.
|
116 Pour
l’application du paragraphe 12(1) de la Loi, la catégorie du regroupement
familial est une catégorie réglementaire de personnes qui peuvent devenir
résidents permanents sur le fondement des exigences prévues à la présente
section.
|
Member
|
Regroupement
familial
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117 (1) A
foreign national is a member of the family class if, with respect to a sponsor,
the foreign national is
|
117 (1)
Appartiennent à la catégorie du regroupement familial du fait de la relation
qu’ils ont avec le répondant les étrangers suivants :
|
(a) the
sponsor's spouse, common-law partner or conjugal partner;
|
a) son époux,
conjoint de fait ou partenaire conjugal;
|
…
|
…
|
VII.
ARGUMENTS
A.
Applicant
[19]
The Applicant submits that the IAD has a duty to
consider all of the evidence and to take into account the parties’ particular
cultural and socio-political context, including the circumstances of an
arranged marriage: Nadasapillai v Canada (Citizenship and Immigration), 2015
FC 72. There was ample evidence of a genuine and committed marital
relationship between the Applicant and Ramandeep and the Decision was grounded
in unreasonable findings that were made without regard to the parties’
particular cultural context.
[20]
The IAD was not satisfied that Ramandeep’s
family had made a reasonable effort to assess the circumstances of the
Applicant’s prior marriages and divorces. The Applicant submits that this
conclusion was unreasonable. The evidence indicates that Ramandeep’s family was
only concerned about the Applicant’s second marriage because it had ended
amidst allegations of abuse. Contrary to the IAD’s account, the family did not
simply accept the Applicant’s explanations at face value; they consulted with
third parties regarding his character and the propensity of his second ex-wife
to lie prior to concluding that he was not at fault in the second marriage. The
IAD’s failure to consider this evidence warrants overturning the Decision, as
it directly contradicts its findings on an issue of central importance.
[21]
The Applicant clearly testified that, while he
wanted a relationship with his son, he decided not to pursue custody out of
concern for his son’s wellbeing and not wanting to subject him to a legal
battle. The IAD’s finding that it was illogical for the Applicant not to fight
for custody if he was not at fault in his second marriage is unreasonable.
[22]
As regards the compatibility between Ramandeep and
the Applicant, the Applicant submits that the IAD had no reasonable basis for
concluding that the parties failed to resolve compatibility concerns. The IAD
provided no indication as to why it was not persuaded by the compelling evidence
that the Applicant and Ramandeep were from the same religion and caste, spoke
the same language, were of the same social status and had family origins in the
same village.
[23]
The Applicant further argues that concerns
regarding the haste of the marriage are clearly unreasonably as the evidence
establishes that discussions between the families regarding the possibility of
marriage spanned approximately 7 or 8 months, which, within the context of the
parties’ culture, is not a fast timeline for an arranged marriage.
[24]
The Applicant says that residents of his home
village were indeed a reliable source of information. Even though he had left
India in 1993, he left at the age of 21 and his community would have known him
well enough to comment on his character. It was unreasonable for the IAD to
conclude otherwise.
[25]
It is reasonable to assume that the Applicant
and Ramandeep would have developed a level of intimacy and romantic feelings
for each other quickly. It was unreasonable for the IAD to conclude that the
couple could not have had romantic telephone conversations. Similarly, given
that the question of whether someone dresses simply is highly subjective. The
IAD had no basis for drawing a negative inference from its comparisons of his
description of Ramandeep with photographs of her and her testimony that the
couple enjoyed shopping together.
[26]
The Applicant submits that the alleged
credibility concerns relate to minor issues with very little relevance to the
genuineness of the parties’ relationship. The IAD placed too much emphasis on
minutiae and marginalities without looking to the evidence that bore directly
on the bona fides of the marital relationship: Tamber v Canada
(Citizenship and Immigration), 2008 FC 951.
B.
Respondent
[27]
The Respondent submits that the IAD was not
required to mention every piece of evidence in its reasons as there is a
presumption that a tribunal has considered all of the submissions that are put
forward: Lai v Canada (Citizenship and Immigration), 2005 FCA 125 at
para 90.
[28]
As regards the IAD’s adverse findings of
credibility, the Respondent submits that the IAD properly exercised its
jurisdiction by providing examples of material inconsistencies in the evidence
that supported its conclusions. The IAD noted the following: the contradictory
and manufactured testimony about the circumstances of the breakdown of the
Applicant’s previous marriage; inconsistencies in the Applicant’s plans for
custody of his son from his previous marriage; and inconsistencies regarding
the Applicant’s knowledge of the dressing habits of Ramandeep. The IAD
reasonably concluded that the cumulative effect of the evidentiary
inconsistencies raised doubts regarding the credibility of the Applicant and Ramandeep,
leading to the conclusion that the marriage was for immigration purposes.
[29]
The Respondent says that the Applicant has
failed to demonstrate that the IAD did not exercise its discretion in good
faith or that it relied on irrelevant or extraneous considerations. The
Applicant has only raised questions of the weight of the evidence and it is
well established that such matters are for the tribunal to decide: Boulis v Minister
of Manpower and Immigration, (1992) 26 DLR (3d) 216 (SCC) at 21; Hoang v
Canada (Employment and Immigration) (1990), 120 NR 193 (FCA).
[30]
The Respondent notes that the test at s 4 of the
Regulations is disjunctive and does not require a bad faith marriage be both
primarily for immigration purposes and non-genuine. It is sufficient for the
IAD to find that only one of these qualities is present.
[31]
The IAD properly reviewed the testimony of the
Applicant and Ramandeep and did not err in the questioning of the manner of Ramandeep’s
assessment of the Applicant’s character and its conclusion that by not
investigating and questioning his previous wives, she and her family failed to
conduct a genuine, deep and independent investigation of the Applicant’s marital
history.
[32]
The Respondent says that the IAD properly
reviewed the submitted evidence and did not base its decision on any erroneous
findings of fact. It then properly exercised its discretion and the Court
should not interfere with its decision.
VIII.
ANALYSIS
[33]
The Applicant has raised a number of issues for
review and I will deal with them in sequence. In general, the Applicant says
that the Decision is based upon unreasonable findings that were made without
regard to the evidence and without proper consideration of the particular
cultural context in which this marriage took place.
A.
Inquiries
[34]
The Applicant says that the IAD’s primary reason
for refusing the appeal was that the IAD was not satisfied that Ramandeep’s
family had made adequate inquiries regarding the Applicant’s background and
previous relationships before agreeing to the marriage.
[35]
A reading of the Decision reveals that this was
a major concern but it is a little more nuanced than the Applicant asserts, and
it was the cumulative effect of the deficiencies that eventually tipped the
scales towards a negative conclusion:
[17] Although some of the evidentiary
deficiencies in this case may not independently show that the marriage is not
genuine, the deficiencies accumulate to a degree that leaves material doubt
about its purpose. As an additional comment, it was notable that the evidence
of the appellant and applicant was notably absent words or phrases of an
emotional and invested nature. They offered almost identical information about
some things but without spontaneous additional personalized evidence to
supplement their recollections. By itself that observation would not be
sufficient to find that the marriage is not genuine: however, when considered
in the context of all of the evidence, it is another cumulative consideration
that weighs negatively in the overall assessment.
[36]
As regards inquiries, the Applicant says that
23. …Contrary to the Panel’s
suggestion, they did not simply accept the Applicant’s account of events at
face value. Rather, they consulted various third parties before concluding that
he had a good character and that he was not at fault in the breakdown of his
second marriage.
[37]
The Applicant points to the following:
24. At 02:33 of the hearing recording,
counsel for the Applicant asked Ramandeep whether she and her family were
concerned about the fact that the Applicant had been married twice before.
Ramandeep replied:
“We had known the family for a long
time but we did do some investigating inquiry done about my husband and found
out that he was innocent in both cases. He didn’t have any bad habits and my
family looked at his family and his qualities and based on these qualities they
agreed to the marriage”.
25. At 02:40, counsel for the
Applicant asked Ramandeep why she and her family believed that the Applicant’s
second wife’s allegations of abuse were false. Ramandeep replied:
“Because we had done some inquiry
about his ex-wife before the marriage and the information that we got, because
she also belonged to the same place in the Punjab, when they first made inquiries
about her, they found that she had made the same complaint about her first
husband, that they were beating her.”
26. At 03:01, counsel for the Minister
asked Ramandeep how she and her family found out that the Applicant was not at
fault in his previous two marriages. Ramandeep replied:
“Some of it was mentioned through
Charanjeet auntie. And somebody had it done through our relatives. And because
my parents knew my in-laws from before my birth, they had known them from
before my birth, and also about people from his village, Dehana (phonetic),
they inquired from there. Because Pritpal’s birthplace was Jalandhar but then
he got educated in Delhi, so we had a few people who came from Delhi and we
inquired from them as well”.
Minister’s counsel then asked who in Delhi
had been contacted, and Ramandeep replied:
“In Delhi, my maternal uncle came
from there and he has friends over there. I don’t know the name of that friend,
but through them they made an inquiry. And in Jalandhar, there was an uncle,
the name was Dilpak (phonetic) the uncle through him he inquired too” (…).
27. This evidence establishes that,
contrary to the Panel’s finding, Ramandeep’s family consulted various
independent sources before concluding that the Applicant was not at fault in
his second marriage. In particular, Ramandeep testified that her family made
inquiries among individuals who were from the same area as the Applicant’s
second wife and learned that she had made false allegations of abuse against
her first husband as well. We submit that this information would reasonably
lead Ramandeep’s family to conclude that the Applicant’s second wife was a liar
and that her allegations against the Applicant were similarly false.
28. Ramandeep also testified that her
family gathered information about the Applicant from his home village as well
as Delhi, where he had lived while he pursued his studies. Given this evidence,
we submit that it was not open to the Panel to find that the Applicant was “the
only real source of information about the prior marriages”. We further submit
that the Panel’s failure to consider this evidence - which directly
contradicted its findings on an issue of central importance - constitutes a
reviewable error which, in and of itself, warrants overturning the decision.
[38]
The Applicant’s list of sources who were
consulted misses the point. Neither the Applicant nor Ramandeep make it clear
how any of the people consulted could have known anything about the Applicant’s
second marriage. He left India in 1993 and lived in the United States from
1993 until November 2003, was married there from 1996 to 2000, and was divorced
in 2002. The Applicant landed in Canada in 2004, but went through a second
marriage in December 2003 in India and then moved to Canada with his second
wife. That marriage resulted in a son who was born in September 2004 before it
ended acrimoniously and the divorce was completed in 2008. The IAD concluded,
with good reason, that although the Applicant and Ramandeep refer to checks and
inquiries by independent parties, this did not really occur and, in the end,
the Applicant’s account of his past was simply accepted at face value:
[15] What remains lacking on a balance
of probabilities is that the applicant’s family made reasonable efforts to
obtain independent assurance of the appellant’s compatibility and suitability.
Examples include the following:
a. The appellant and applicant both testified that enquiries
were made by the applicant’s family to find out what had happened in his prior
marriages but when the evidence is examined closely the only real source of
information about the prior marriages is the appellant. It was not demonstrated
on a balance of probabilities that independent sources of information were used
to arrive at the conclusion that the appellant was honest and not at fault.
b. The applicant testified at some length about the enquiries
that her family made in order to be satisfied that the appellant was not at
fault and that it was not the appellant but his spouses who caused the
divorces. She had told the visa officer that a reason for the first marriage
breakdown was because the appellant’s first wife smoked. At the IAD hearing she
added that this first spouse used heavy illegal drugs and did not want children
and appellant gave the same testimony at the IAD hearing. That evidence was, on
a balance of probabilities, manufactured for the benefit of this appeal because
both of them gave the same evidence but no such information was offered by the
applicant during her interview when it would have been reasonable to do so.
Even allowing for nervousness, heavy drug use and disagreement about children
are more striking characteristics than simply smoking and the failure to
mention those as material reasons for divorce is notable. Furthermore, the
appellant did not know why the applicant had married this woman who was not of
similar cultural background. This evidence left doubts about the credibility of
the couple and about the applicant’s actual knowledge of the appellant at the
interview and, arguably, before agreeing to the match.
c. The circumstances of the second marriage and divorce are
also important in terms of compatibility and suitability because, according to
the appellant, his second wife left his family home in circumstances that
involved the police and allegations of abuse against her by the appellant and
his family. It is reasonable that the applicant and her family would seek assurances
that the allegations of abuse by his second wife were not well-founded. The
appellant testified that in April 2005 his wife called the police and alleged
that she was being abused by himself and his family but that after
investigation the police found no basis to lay any charges against him or his
family. However, he testified that he has not had· any contact with his child
since then because his wife would only permit him to visit with their son if he
was supervised by either his wife or his wife’s sister, arrangements that he
was not willing to accept. He testified that he did not fight for custody
because by the time the divorce agreement was being finalized his son was 2.5
years old and a stranger given they had not seen each other since April 2005
when the child was six months old. He suggested, somewhat unclearly, about
being concerned of frightening his son. The applicant confirmed that she and
her family were given this information before agreeing to the match, that they
appreciated the appellant’s honesty and were satisfied about his suitability
because they knew he was not at fault in his previous marriage breakdown.
d. It is not reasonable that the applicant and her family would
simply accept the appellant’s account of events and his relatively illogical
explanations about such serious matters. His ex-wife has sole custody of their
child, he has not seen his son since the event involving the police, and he
neither sought custody nor pursued any access. Those are illogical outcomes if
the appellant is to be believed that he was not at fault, wants to have
children, and that he wants to see and have relationship with his son. It is
reasonable to expect that the applicant and her family, when presented with
that information, would do some additional and independent investigation before
agreeing to a marriage. Their willingness to take the appellant’s word for it
that he was not at fault and to accept his illogical explanation for why he did
not have custody of or access to his own son raises substantial doubts about
their intentions in the marriage.
e. Reasonable explanation was not provided for the relative
haste between meeting and marriage or how that time afforded opportunity to
acquire sufficient background information. The couple met and agreed to the
proposal all on the same day and were married within the same month. Both of
them testified that they relied substantially on the information given to them
by the mutual family friend but the source of her information about the
appellant is mainly the appellant himself. They referred to historic connection
through their grandmothers but the appellant left India in 1993 so villagers
and the family acquaintance would have little knowledge of positive
characteristics and life events since leaving except what he disclosed himself.
Furthermore, the applicant had less information that [sic] what might
reasonably be expected if independent background checks were conducted, as
previously noted.
[39]
The Applicant says that Ramandeep did give
evidence of independent consultation. However, she only testified as follows
about the Applicant’s second wife:
PRESIDING MEMBER: How do you know she
was lying?
…
A Because we have done some inquiry
about his ex-wife too before the marriage and information we gathered was that
because she also belonged to the same place in Punjab and when they inquired
information about her was that she has made the same complaint about her first
husband, that they were beating her.
[40]
In my view, this evidence is not clear enough as
to who was consulted and why they were in a position to provide reliable
information about the Applicant’s own behaviour in his second marriage. The
fact that the Applicant’s second wife may have made the same complaint about
her first husband is not evidence about the Applicant’s conduct or behaviour towards
his second wife. This evidence suggests that Ramandeep and her family were not
prepared to go far beyond the Applicant’s own account, and it does not displace
the IAD’s general finding that he was the real source of the information.
[41]
Before the Court in this application, the
Applicant has not shown that the IAD was unreasonable in these conclusions. He
has not shown how the alleged independent sources who are cited were able to corroborate
his own version of his second marriage. How could villagers and family acquaintances
have any real knowledge of what happened in the Applicant’s prior marriages?
And in a context where compatibility, suitability and propriety are so
important it has to raise doubts about whether the marriage to Ramandeep did
not require the usual checks because it was entered into for immigration
purposes. The concerns of the IAD regarding these matters were not
unreasonable.
B.
The Applicant’s Son
[42]
The Applicant complains as follows:
29. Another reason why the Panel did
not believe that Ramandeep’s family had made adequate inquiries into the
Applicant’s background was that the Applicant’s explanations regarding his son
were “illogical” (Reasons at para 15(d)). According to the evidence, although the
Applicant wanted a relationship with his son, he did not fight for custody or
access because the breakdown in his relationship with the child’s mother, the
Applicant’s second wife, had been highly acrimonious. In addition to making
false allegations of abuse against the Applicant and his family, his second
wife made it clear that she would do whatever was necessary to prevent him from
having a relationship with their son. The Applicant testified that he did not
fight the matter in court because he did not want to negatively affect his son,
and instead decided to wait until the child was older before seeking a
relationship with him.
30. The Panel stated that the
Applicant’s decision not to fight for custody was “illogical” given his
testimony that he was not at fault in his second marriage, that he wanted to
have children and that he wanted to have a relationship with his son. The
Applicant submits that this determination is unreasonable as he clearly
testified that although he wanted a relationship with his son, he decided not
to pursue custody out of concern for his son’s wellbeing. It is completely
understandable that he did not want to harm his son by subjecting him to what
would certainly have been a hostile and potentially drawn-out legal battle.
31. Moreover, the Panel’s comment that
the Applicant’s decision to fight for custody was inconsistent with his
testimony that he was not at fault in the marriage is entirely unfounded. This
comment implies that a parent would only lose contact with his/her child if
s/he was at fault, which is clearly untrue.
[43]
These arguments somewhat misread the Decision.
The IAD’s point is that the Applicant’s explanation about not wishing to
frighten his son is not a clear explanation for his not pursuing custody (para
15(c)), so that it was not reasonable for the family to simply accept the
Applicant’s account of events. The Applicant said he wants to have children and
that he wants to see and have a relationship with his son. And yet he says he
has not sought a relationship because he does not wish to frighten his son. All
the IAD is saying is that this doesn’t make clear what went on in his second
marriage, and it was unreasonable for the family to just accept the Applicant’s
account on this basis if they were truly concerned about suitability,
compatibility and propriety. I see nothing unreasonable in this finding.
C.
Compatibility
[44]
The Applicant argues as follows on this issue:
32. The Panel also stated in the
Reasons that the visa officer’s concerns regarding the “lack of compatibility”
between Ramandeep and the Applicant had “not been adequately resolved” (Reasons
at para 13). However, the Panel failed to make any negative findings with
respect to the parties’ compatibility. In fact, the Panel explicitly
acknowledged the evidence that the spouses were from the same religion and
caste, spoke the same language, were of the same social status considering that
their fathers had held similar government positions, and had family origins in
the same village through their grandmothers (Reasons at para 13). The Panel
provided no indication why it was not persuaded by this compelling evidence of
compatibility. The Applicant therefore submits that the Panel had no reasonable
basis for concluding that the parties had failed to resolve the officer’s
compatibility concerns.
[45]
The IAD refers to compatibility concerns in
paras 13 and 14 of the Decision:
[13] The evidence as described and summarized
above is consistent with a marriage that is genuine and that was not primarily
for the purpose of immigration. However, there is material evidence in this
case that raises concerns about the underlying intentions of the parties. The
visa officer was concerned about an appearance of haste in this arrangement and
lack of compatibility in significant areas such as age, education and marital
history and those concerns have not been adequately resolved. The appellant and
applicant both referred to the importance of compatibilities such as culture,
language and social status, pointing out that they were from the same religion
and caste. They testified that both of their fathers had held similar
government positions as draftsman and identified the significance of having
family origins in the same village through their grandmothers. Their testimony
was that the appellant’s marital history was considered but satisfactorily
addressed because the appellant was not at fault in the marriage breakdowns. I
acknowledge the appellant’s argument that the visa officer relied on an
assessment of compatibilities that was not grounded in objective evidence but
disagree because, from their own testimony, compatibility and suitability were
important features that were allegedly assessed by the families before agreeing
to the match.
[14] At the IAD hearing, the applicant
clarified what she knew about the divorce agreement regarding the appellant’s
second spouse including the amount of support payment for the appellant’s son.
I find that any difference between her information to the visa officer and the
divorce agreement is not material. It was also reasonably confirmed that the
simple fact of prior marriages is not culturally barred. Both the appellant and
the applicant testified that divorce is not as frowned upon as it once was in
their culture. However, both asserted that the appellant being previously
married was not a problem because the applicant and her family knew that he was
not at fault in his prior marriage breakdowns. From the testimony provided, it
is evident that the applicant’s family wanted to assess the circumstances of the
prior marriages and divorces before agreeing to the match. Divorce may not be a
barrier to genuine marriage but the circumstances of a prior marriage and
divorce were a relevant consideration when the applicant’s family was assessing
compatibility and suitability.
[46]
Once again, however, this brings the IAD back to
the failure of the family to conduct fully independent inquiries so that
compatibility could be truly assessed. The negative finding is that such
inquiries were not made so that compatibility – which the Applicant and
Ramandeep both said was very important – was never really assessed. There is
nothing unreasonable about the IAD’s conclusions on this point.
D.
Haste
[47]
The Applicant puts forward the following
argument:
33. Another reason why the Panel refused
the appeal was that a “reasonable explanation was not provided for the relative
haste between meeting and marriage or how that time afforded opportunity to
acquire sufficient background information”. The Panel determined that the
marriage was conducted in haste because “the couple met and agreed to the
proposal all on the same day and were married within the same month” (para
15(e)). The Applicant submits that this finding is clearly unreasonable because
the evidence established that discussions between the families regarding the
possibility of marriage spanned from March or April 2011 until October 2011,
which is approximately 7 or 8 months. In concluding that this timeframe was
hasty, the Panel failed to consider that within the context of the parties’
culture, this would not be considered a fast timeline for arranging a marriage.
For comparison, in Nadasapillai, the spouses’ wedding took place 40 days
after their first introduction and 10 days after their first in-person meeting.
Justice Diner held that this timeline, which is considerably shorter than the
timeline in the present case, did not reasonably support a conclusion that the
marriage was conducted in haste. The Applicant thus submits that the Panel’s
determination regarding the alleged “haste” of this marriage was unreasonable
and cannot stand.
[48]
The Applicant is quoting the words from para
15(e) of the Decision out of context. The IAD’s point is that, in terms of
their personal time together, there was insufficient time to establish
credibility and acquire sufficient background information to ensure that the
Applicant was a compatible match for Ramandeep. The reasons they said they did
not require more time was because they were able to rely on other sources. But
the Applicant could not show how these other sources would have been able to
provide the compatibility assurances they both say were important. It is again
the lack of independent checks that renders their personal time together
insufficient to ascertain if there was real compatibility. There is nothing
unreasonable in the IAD’s reasoning and findings on this point.
E.
Other Issues
[49]
The Applicant raises other instances where he
feels the IAD was dealing with “Minutiae and
Marginalities.” I agree with the Applicant that these findings are not
sustainable or reasonable:
a)
There is no incompatibility between the
Applicant saying he is willing to accept his son if the son wants to see him in
the future and Ramandeep saying that they want to obtain custody when she
arrives in Canada. Seeing the son and seeking custody are different things
and/or the son’s wishes may well be part of how, why and when the couple will
seek custody;
b)
The IAD’s finding that “romantic
talk” is unusual in a marriage that is arranged has no evidence to
support it and this couple speak to each other every day. The IAD is playing
the expert on romance when it says:
While romantic interest may develop
over time, the earlier conversations between them would not reasonably be such
as described.
c)
There is no inconsistency between the
Applicant’s appreciating that Ramandeep was dressed simply and without
adornment when he first met her and later photographs and descriptions about
going shopping and buying clothes. It is telling to look at the passages in the
transcript where this alleged inconsistency is supposed to have occurred:
A I -- when I -- when I was
-- started looking or tell, maybe 20 -- 2009, December 2009 I think was the
last time I contacted my ex-wife asking her about – to let me see my child,
which she won’t budge. And then I stated the criterias [sic] I was
looking for, that she should be kind-hearted, my future wife should be
kind-hearted. She should be in a noble profession and money shouldn’t be her --
shouldn’t be her first priority. And I would say you can find those in a simple
person only. This person living a simple lifestyle would -- would be -- would
match all these criterias [sic] or the kind of person I was looking for.
And I found that in my current wife.
Q And when you’re saying that
she’s a simple person, can you define that more?
A The dress she was wearing,
there was no makeup, she was not wearing any jewellery, no flashy shoes or no
-- no flashy car they travelled in. That -- and (indiscernible) it’s some kind
of hair or the dress that -- that you guys are wearing, or that the girls are
wearing. Or, I mean, the way she talked. It was – it all (indiscernible) to
(indiscernible).
Q So she never wears
jewellery and she never has makeup, doesn’t wear shiny shoes.
A No, I didn’t say that. I
said she was not wearing jewellery or shoes when she came to see me first day.
She doesn’t wear… I -- when we were staying in Delhi we were going… I would ask
her to wear something and she would say no, she doesn’t want to. She -- she
would only do that after -- if and after I request her. It’s not safe to wear
jewellery in Delhi as well. But even she has – she has three or four set. She
would never wear unless I ask her to. I mean don’t get me wrong. She does like
to dress up but only on special occasions.
PRESIDING MEMBER: I can’t help
but ask or let you know it seems a little incongruous to talk about “she’s
simple, she doesn’t like makeup” and all of that and yet she’s taking a
beautician course.
A That’s not for jewellery
but --
PRESIDING MEMBER: I know;
that’s for makeup.
A She has to do her – she has
to dye hair because her hair are going dark and she feels embarrassed.
PRESIDING MEMBER: Some of us
understand that.
There is nothing vague or generic or
inconsistent about this testimony.
d)
Any inconsistencies in the details about
Ramandeep’s illness following the marriage are reasonably explainable by their
having to live apart. Once again, the IAD relies upon generalities of its own making
without assessing the conditions under which this couple presently lead their
lives:
It is reasonable to expect that
ongoing medical issues for one of the partners in a marriage would be a topic
discussed and of concern to both. It is reasonable to expect that they would
have greater and more similar knowledge about her condition.
Both explained the honeymoon situation
consistently and the difficulties associated with the diagnosis. They also both
said that Ramandeep has recurring problems with skin eruptions. The Applicant
said that they occur on her head as well as her arms, but Ramandeep said she
gets a rash on her arms. This discrepancy is far too microscopic to support an
inconsistency in testimony.
[50]
The IAD made it clear that its negative decision
was based upon cumulative deficiencies. My finding that some of those
deficiencies are not supported by the evidence means that the Court cannot say
whether the Decision would have been negative if these unreasonable findings
had not been made. This means that this matter must go back for
reconsideration. See Jung v Canada (Citizenship and Immigration), 2014
FC 275; Huerta v Canada (Citizenship and Immigration), 2008 FC 586 at
para 21; Igbo v Canada (Citizenship and Immigration), 2009 FC 305 at
para 23.
[51]
Counsel agree there is no question for
certification and the Court concurs.