Docket: IMM-3149-15
Citation:
2016 FC 81
Vancouver, British Columbia, January 22, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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JASWINDER KAUR
NAHAL
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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]
The Applicant, a permanent resident of Canada,
is before this Court due to an Immigration Appeal Division [IAD] decision which
dismissed the Applicant’s appeal of a visa officer’s denial of a sponsorship
application for her spouse whose residence is in India.
[2]
Further to having read all the documents; and,
having heard counsel of both parties, the Court has determined on the basis of
significant lacunae in the evidence, implausibilities and a chronology of
evidence in responses to questions by the Applicant and the said spouse, that
the marriage relationship does lack credibility, as was determined by the IAD
on the basis of the inherent logic of the IAD decision which is determined to
be reasonable by this Court.
[3]
As per Dunsmuir v New Brunswick, 2008 SCC
9 at par 48, in this case, the genuineness of the marriage is reviewable on the
basis of reasonableness of the IAD decision, as per the manner in which
reasonableness is explained in the Supreme Court decision as to abiding in its
explanations that are justifiable, transparent and intelligible.
[4]
The Applicant and the sponsor on the basis of
oral responses and submitted evidence had the onus to prove on a balance of
probabilities that the bona fide nature of the marriage as per
subsection 4(1) of the Immigration and Refugee Protection Regulations
[IRPR]. They did not.
[5]
The test for a bad faith marriage is
disjunctive.
[6]
As per subsection 4(1) of the IRPR states:
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Bad faith
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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
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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 :
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(a) was entered into primarily for the purpose of acquiring
any status or privilege under the Act; or
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a) visait
principalement l’acquisition d’un statut ou d’un privilège sous le régime de
la Loi;
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(b) is not genuine.
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b)
n’est pas authentique.
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[7]
A marriage primarily for immigration purposes
was thus refused by an Immigration officer pursuant to subsection 4(1) of the
IRPR.
[8]
The lack of credibility on the part of both the
Applicant and her spouse led to the application of the same subsection by the
IAD in appeal, as did that of the visa officer’s decision.
[9]
It must be recalled that it was for the IAD to
determine the weight given to the evidence as per Froment v Canada (Minister
of Citizenship and Immigration), 2006 FC 1002 at para 20.
[10]
The common chronology of events as per the
history of the couple’s relationship, their shared encounters and
communications were adequately analyzed by the IAD.
[11]
The case cannot be reargued before the Federal
Court. The IAD (as the visa officer previously) did not have to specify each
piece of evidence, separately, in demonstration of its findings. The judgment
of the Supreme Court in Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, sets out guidance
in this regard at para 16:
Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis.
[12]
The Court, therefore, concludes on the basis of
its reading of the entire file and hearing the parties’ submissions that the Applicant’s
application is dismissed.
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