Date: 20060824
Docket: IMM-475-06
Citation: 2006 FC 1002
Ottawa,
Ontario, the 24th
day of August 2006
Present:
The Honourable Mr.
Justice
Shore
BETWEEN:
DANIELLE
MARIE FROMENT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
“. . . the
real test of the truth of the story of a witness in
such a case must be its harmony with the preponderance of the probabilities
which a practical and informed person would readily recognize as reasonable in
that place and in those conditions” (Faryna v. Chorny, [1952] 2 D.L.R.
354 (BCCA)).
NATURE OF THE JUDICIAL PROCEEDING
[2]
This is an
application for judicial review, under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Immigration Appeal Division (IAD) of the Immigration and Refugee Board
dated December
16, 2005,
dismissing the applicant’s appeal, under subsection 63(1) of the Act,
against the decision to reject the sponsored application for permanent
residence of her husband, who was the applicant.
FACTS
[3]
The
applicant, Danielle Marie Froment, is 46 years of age. She sponsored the
application for permanent residence of her husband, Jaswinder Singh Sukhwinder
Malhi, who is 36 years of age and a citizen of India.
[4]
Ms.
Froment was born in an orphanage and spent her youth in several foster homes
where she was the victim of violence. She began working at young age. She first
lived with an irresponsible, alcoholic man, then subsequently with a man who
was violent and beat her. After these two difficult relationships,
Ms. Froment decided to remain single.
[5]
Ms.
Froment began to take care of two young girls who had been abandoned by their
mother. After some years, the social services recently allowed her to adopt the
girls, who are now eight and nine years old.
[6]
Mr. Malhi
entered the United
States illegally
in 1990 (according to his testimony), or in 1992 (according to the appeal
record), with forged papers and a false identity. He claimed refugee
protection, and his claim was rejected. He married an American woman, and they
ended up divorcing.
[7]
Ms.
Froment and Mr. Malhi met in 2000 during a trip she made to California. Mr. Malhi was the taxi
driver who drove her from the Los
Angeles airport
to her hotel. They saw each other every day for one week, and he then invited
her to spend the rest of her holidays with him at his apartment.
[8]
During a
subsequent trip to California, Ms. Froment and
Mr. Malhi married on September 5, 2000. Ms. Froment has visited her
husband on several occasions since their wedding.
IMPUGNED DECISION
[9]
Even
though the IAD was of the view that Ms. Froment’s testimony about her feelings
toward Mr. Malhi was credible, it rejected the sponsorship application for
permanent residence of Mr. Malhi under section 4 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (Regulations), concluding that
the marriage of Mr. Malhi and Ms. Froment was not genuine and was entered into
primarily for the purpose of acquiring a status or privilege under the Act.
[10]
The IAD
rendered its decision on the basis of the numerous differences between the
personal situations of the spouses and the little knowledge they had of each
other. They do not speak the same language, as Ms. Froment speaks very
little English and Mr. Malhi does not speak any French at all.
Ms. Froment is ten years older than Mr. Malhi. They do not share the
same religion, as Ms. Froment is a Christian and Mr. Malhi is a Sikh.
Mr. Malhi knows very little about Ms. Froment’s daughters, whom she
cherishes above all else in life. At the interview at the Canadian consulate,
he did not know their first names or birthdates. The IAD was also of the
opinion that Mr. Malhi had not been forthcoming with Ms. Froment about
his divorce from his first wife and his tenuous status in the United States.
ISSUE
[11]
There is
only one issue in this case:
1. Did the IAD err in
concluding that Mr. Malhi was not a member of a family class because his
marriage to Ms. Froment was not genuine?
ANALYSIS
Legislation
[12]
Under
subsection 63(1) of the Act, a person who sponsors an application for permanent
residence may appeal the decision if the application is rejected:
63(1) A person who has filed
in the prescribed manner an application to sponsor a foreign national as a
member of the family class may appeal to the Immigration Appeal Division
against a decision not to issue the foreign national a permanent resident
visa.
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63.
1)
Quiconque a déposé, conformément au règlement, une demande de parrainage au
titre du regroupement familial peut interjeter appel du refus de délivrer le
visa de résident permanent.
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[13]
Subsection
67(1) of the Act mentions the circumstances in which an appeal may be allowed:
67(1) To allow an appeal, the
Immigration Appeal Division must be satisfied that, at the time that the
appeal is disposed of,
(a) the decision appealed is
wrong in law or fact or mixed law and fact;
(b) a principle of natural
justice has not been observed; or
(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.
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67(1) Il est fait droit à l’appel
sur preuve qu’au moment où il en est disposé :
a) la décision attaquée est erronée en
droit, en fait ou en droit et en fait;
b) il y a eu manquement à un principe de
justice naturelle;
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.
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[14]
Under
section 65 of the Act, the IAD can only consider humanitarian considerations if
it has been established that the foreign national is a member of the family
class:
65. In an appeal under
subsection 63(1) or (2) respecting an application based on membership in the
family class, the Immigration Appeal Division may not consider humanitarian
and compassionate considerations unless it has decided that the foreign
national is a member of the family class and that their sponsor is a sponsor
within the meaning of the regulations.
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65. Dans le cas de l’appel
visé aux paragraphes 63(1) ou (2) d’une décision portant sur une demande au
titre du regroupement familial, les motifs d’ordre humanitaire ne peuvent
être pris en considération que s’il a été statué que l’étranger fait bien
partie de cette catégorie et que le répondant a bien la qualité
réglementaire.
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[15]
Subsection
12(1) of the Act specifies the basis on which a foreign national may be
selected as a member of a family class:
12. (1) A foreign national may
be selected as a member of the family class on the basis of their relationship
as the spouse, common-law partner, child, parent or other prescribed family
member of a Canadian citizen or permanent resident.
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12.
(1) La
sélection des étrangers de la catégorie « regroupement familial »
se fait en fonction de la relation qu’ils ont avec un citoyen canadien ou un
résident permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père
ou mère ou à titre d’autre membre de la famille prévu par règlement..
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[16]
Under
section 4 of the Regulations, in order to be a member of the family class, the
relationship between the foreign national and his or her sponsor must be
genuine and not solely for the purpose of acquiring any status or privilege
under the Act:
4. For the purposes of
these Regulations, a foreign national shall not be considered a spouse, a
common-law partner, a conjugal partner or an adopted child of a person if the
marriage, common-law partnership, conjugal partnership or adoption is not
genuine and was entered into primarily for the purpose of acquiring any
status or privilege under the Act.
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4.
Pour
l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait, le partenaire conjugal ou l’enfant
adoptif d’une personne si le mariage, la relation des conjoints de fait ou
des partenaires conjugaux ou l’adoption n’est pas authentique et vise
principalement l’acquisition d’un statut ou d’un privilège aux termes de la
Loi
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Standard of review
[17]
The
appropriate standard of review in this case is that of patent unreasonableness,
since a question of fact is involved (Khangura v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 815 (QL), at
paragraph 21; Sanichara v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1015, [2005] F.C.J. No. 1272 (QL), at
paragraph 11; Singh v. Canada (Minister of Citizenship and Immigration),
2002 FCT 347, [2002] F.C.J. No. 461 (QL), at paragraph 17; Canada
(Minister of Citizenship and Immigration) v. Savard, 2006 FC 109,
[2006] F.C.J. No. 126 (QL), at paragraph 12).
[18]
As stated
by Mr. Justice Luc Martineau in Singh, supra, at paragraph 18:
The standard of judicial
deference that applies to findings of fact and to the weight given to the
evidence by the Appeal Division is quite high. Unless the contrary is shown,
the Appeal Division is assumed to have considered all the evidence
presented to it. The Appeal Division’s decision in this regard must be
interpreted as a whole and it should not be subject to microscopic
examination. Accordingly, the reviewing Court should refuse to interfere with
decisions which assess credibility, provided that the explanations given are
rational or reasonable, or that the evidence on the record permits the
Appeal Division to reach, as the case may be, a negative inference as to
the credibility of an applicant or a witness.
Did the IAD err in concluding
that Mr. Malhi was not a member of a family class because his marriage to Ms.
Froment was not genuine?
[19]
An appeal
before the IAD is a hearing de novo of the case. Accordingly, the
spouses, more specifically, the applicant, must submit reliable and sufficient
evidence showing that the Board’s initial decision was erroneous, that is to
say, that the relationship between the spouses actually was genuine (Sanichara,
supra, at paragraph 8; Mohamed v. Canada (Minister of Citizenship and
Immigration), 2006 FC 696, [2006] F.C.J. No. 881 (QL), at
paragraph 40; Morris v. Canada (Minister of Citizenship and Immigration),
2005 FC 369,
[2005] F.C.J. No. 469
(QL), at paragraph 5). The spouses must show on a balance of probabilities
that the sponsored spouse is not excluded from the family class under
section 4 of the Regulations (Singh, supra, at paragraph 16).
[20]
In Sanichara,
supra, at paragraphs 16-18 and 20,
Mr. Justice Michel Beaudry explained the test to be applied
under section 4 of the Regulations:
Since the coming into force of section 4 of the
Regulations the test to be taken into account in determining whether the spouse
can be considered as a member of the family class is as follows. It must be established
that: (1) the marriage is not genuine; and (2) the marriage was entered into
primarily for the purpose of acquiring any status or privilege under the Act.
The Applicant argues that the IAD erred by failing to
apply properly the two-pronged test set out in Horbas, supra. He argues
that the IAD erred in failing to consider the intentions of his wife to live
with him. I do not agree with this argument.
The element of the spouse’s intention of residing
permanently with the sponsoring spouse is no longer present. Since one of the
element (that the marriage was entered into primarily for the purpose of
acquiring any status or privilege under the Act) is still the same, the “test”
set out in Horbas, supra, can still be useful for the purpose of this
element. However, the intention no longer needs to be taken into consideration.
. . .
The IAD, in a hearing de novo, is entitled to
determine the plausibility and credibility of the testimony and other evidence
before it. The weight to be assigned to that evidence is also a matter for the
IAD to determine. As long as the conclusions and inferences drawn by the IAD
are reasonably open to it on the record, there is no basis for interfering with
its decision. Where an oral hearing has been held, more deference is accorded
to the credibility findings.
The IAD did not
err in concluding that Ms. Froment’s spouse was not a member of the family
class
Among other things, the IAD
was entitled to consider factors such as age, differences in customs or
language.
[21]
Ms.
Froment alleged that it was unreasonable for the IAD to take into consideration
such factors as age, differences in education, religion or customs in
determining whether her spouse was a member of the family class.
[22]
It is
important to underline the fact that the Board considered this evidence, as
well as other factors such as Mr. Malhi’s lack of knowledge about the
personal background of his spouse and her children.
[23]
The IAD
stated the following in its reasons:
. . . In the
traditional society the applicant comes from, customs and religion are very
important; indeed, the applicant claims that he was persecuted in India because of his being a Sikh. The
spouses do not speak the same language: the appellant speaks very little
English, and the applicant does not speak French. They are not the same age;
they are 10 years apart. They are not of the same religion: the appellant
is Christian, and the applicant claims to be a practising Sikh; he is also an
active member of a Sikh association (according to page 17 of the Appeal
Book). Furthermore, the speed with which the applicant asked the appellant,
whom he had only known for a few days, to leave her hotel and move in with him
is not in keeping with his traditions and cannot be explained by the fact that
he wanted to save her money, as he suggested. (Reasons for decision of the IAD,
page 2; Panel’s Record [PR], page 3).
[24]
Accordingly,
as underlined by the IAD, Ms. Froment’s spouse claims to have been
persecuted in India because of his Sikh religion.
He also testified that he practises this religion and is a member of a Sikh
association. It was on the basis of these facts that the IAD stated in its
reasons that the differences in age and language and the haste with which he
invited Ms. Froment to leave her hotel and move in with him are not in keeping
with his traditions.
[25]
In Kular v. Canada (Minister of Citizenship and Immigration), [2002] I.A.D.D. No. 373, the IAD stated the following:
The IAD must
evaluate the bona fides of a marriage within the cultural context in which it
took place. That culture is Sikh not Canadian. They may appear to be
discriminatory to some, but the fact remains that these customs exist and
govern choice of marriage partners among Sikhs in India.
[26]
As far as
the specific issue of language is concerned, Ms. Froment stated that the IAD
erred in rejecting her application for this reason, among others. The IAD added
that Ms. Froment spoke English rather well.
[27]
On this
point, it emerges from the decision that the IAD mentioned this factor in the
context of the cultural differences existing between Ms. Froment and her
spouse. It is obvious that the IAD raised this factor not to state that
Ms. Froment did not speak English well, but rather to emphasize that the
marriage of Ms. Froment and her spouse was not in keeping with his traditions.
[28]
In Dhillon,
Gurprit Singh v. Canada (Minister of Citizenship and
Immigration),
[IAB 89‑00571], Sherman, Ariemma, Tisshaw, August 8, 1989, the IAD acknowledged that
differences in education and language were generally not sufficient to warrant
the rejection of an application. The IAD nevertheless considered these factors,
as well as others, such as the sponsor’s lack of knowledge about his spouse,
before concluding that this was a marriage entered into for immigration
purposes. (See also: Morris v. Canada (Minister of Citizenship and Immigration), 2005 FC 369, [2005] F.C.J.
No. 469 (QL), paragraph 8.)
The IAD was correct in concluding that
Ms. Froment’s spouse did not have good knowledge of matters concerning her
[29]
The
evidence shows that Ms. Froment and the applicant married in
September 2000, only four months after his divorce in March 2000
(page 34 PR).
[30]
Ms.
Froment also testified that the applicant had told her that he had initiated
divorce proceedings in a previous marriage (422 PR). However, the evidence
shows that it was Mr. Malhi’s ex‑spouse who had asked for a divorce
(page 46 PR).
[31]
The
testimony given by Ms. Froment also shows that she knew little about her
husband’s status in the United
States (403 et
seq. PR).
[32]
Contrary
to what Ms. Froment stated (reply memorandum, paragraph 10 i), her husband
was unable to give her children’s names at the interview with the immigration
officer, held in November 2001. The IAD had good reason to draw a negative
inference from this fact (page 32 PR).
[33]
In
addition, at the interview with the visa officer, the applicant did not know
that Ms. Froment had a biological child who died at a young age. However,
at the hearing, she stated that she had spoken to her husband about it
(page 32, 401 PR).
[34]
It is true
that Mr. Malhi was able to name Ms. Froment’s children at the hearing, but
the contrary would have been surprising. The applicant had all the time
necessary to study the reasons for refusal mentioned by the visa officer in the
decision of August 24, 2004. The hearing before the IAD was held on
September 30, 2005. Accordingly, the applicant had more than a year to
learn the names of the two children.
[35]
Moreover,
both the visa officer and the IAD asked the applicant about the children’s
birthdates and what grades they were in at school. He was unable to answer
(page 32, 460-462 PR).
[36]
The
applicant was unable to tell the visa officer what Ms. Froment enjoyed or
what her personality was like. He simply stated that she was tall and thin
(page 32 PR).
[37]
In
addition, at the hearing before the IAD, when asked what he shared in common
with Ms. Froment, he simply stated, “I share everything with her”
(page 471 PR).
[38]
The IAD
properly rendered its decision on the basis of the visa officer’s conclusions.
It is clear that the IAD also came to its decision on the basis of the other
evidence before it (Ni v. Canada (Minister of Citizenship and Immigration),
2005 FC 241, [2005] F.C.J. No. 290 (QL)).
[39]
In
addition, the IAD was entitled to take into consideration the applicant’s lack
of knowledge of Ms. Froment. (Canada (Minister of Citizenship and
Immigration), 2006 FC 691, [2006] F.C.J. No. 878 (QL).)
[40]
Ms.
Froment and her spouse have been married for five years. The letters submitted
in evidence by Ms. Froment to show the genuineness of her relationship
with the applicant are vague and superficial (pages 262 et seq.
PR). (Morris, supra)
[41]
In her
reply, Ms. Froment mentioned that the IAD did not take into consideration that
Mr. Malhi’s father had visited him in Canada and that her children called
the applicant “papa Malhi”.
[42]
Unless the
contrary is shown, the IAD is presumed to have considered all the evidence.
Simply not mentioning all the evidence does not rebut this presumption. (Housen
v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 (QL); Florea v.
Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598
(F.C.A.); Woolaston v. Canada (Minister of Manpower and Immigration),
[1972] 28 D.L.R. (3d) 489 (S.C.C.), [1972] S.C.J. No. 79 (QL).)
[43]
As far as
the photocopies of the calling cards are concerned, (pages 227 to 232 PR),
they do not prove anything, and the telephone call records (pages 131 to
328 PR) cannot in themselves make up for the major shortcomings in
Mr. Malhi’s testimony.
[44]
The same
applies to the evidence of money transfers. In addition, on this point, it is
worth noting that the applicant decided not to send a message with any of these
transfers, although it was possible for him to do so (pages 37 et seq.
PR).
[45]
In addition,
these exhibits will have considerably different weight depending on whether or
not they were submitted only to the IAD and not to the visa officer who
rendered the first decision concerning the genuineness of the marriage. In Tran
v. Canada (Minister of Citizenship and Immigration),
2001 FCT 1255, [2001] F.C.J. No. 1703 (QL), the following was
stated:
The new evidence
before the Appeal Division contradicts the evidence originally given before the
visa officer, and this contradiction is not explained. I am of the view that
the Appeal Division reasonably concluded that this additional evidence serves
to create a veneer of genuineness to the relationship.
[46]
In this
case, Ms. Froment merely stated her disagreement with the IAD’s assessment of
the evidence and the explanations given to justify the numerous and significant
shortcomings in the evidence. She is trying to substitute her own opinion for
that of the IAD with regard to the findings of fact it made. To sum up, she did
not in any way show that these conclusions are patently unreasonable.
[47]
A visa
officer had first of all concluded that Ms. Froment did not establish that
her marriage was genuine and had not been entered into by the applicant to
obtain status in Canada. Ms. Froment then had an additional opportunity
before the IAD to prove her marriage was genuine. Once again, she was unable to
satisfy this second decision-maker that her marriage actually was genuine.
[48]
Considering
all the reasons mentioned by the IAD and the reasonableness of each one of
them, Ms. Froment did not discharge the burden on her so as to show that this
Court’s intervention is warranted.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed;
2. No serious question of general importance be
certified. The parties did not propose any question to be certified, and the
Court is of the opinion that this case turns on its own facts.
“Michel
M.J. Shore”
Certified
true translation
Michael
Palles