[1] These reasons arise out of an application for judicial review of a decision of the Immigration Appeal Division (the "IAD") of the Immigration and Refugee Board wherein the IAD dismissed the appeal of the applicant from the rejection of the sponsored application for permanent residence in Canada of Gurdip Kaur Sidhu (the "applicant's spouse") and her three dependent children. The IAD upheld the refusal of the sponsored application on the ground that the applicant's spouse was not a "member of the family class" as that expression is defined in subsection 2(1) of the Immigration Regulations, 1978[1], by reason of subsection 4(3) of those Regulations. That subsection reads as follows:
| 4(3) The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse.
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4(3) La catégorie des parents ne comprend pas le conjoint qui s'est marié principalement dans le but d'obtenir l'admission au Canada à titre de parent et non dans l'intention de vivre en permanence avec son conjoint.
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The test for application of subsection 4(3) of the Immigration Regulations, 1978 and the decision of the IAD
[2] The test to be applied in determining whether or not an individual is excluded from being a member of the family class is well established. In Horbas v. Canada (Minister of Employment and Immigration)[2], Justice Strayer wrote at pages 367-8:
...the visa officer is directed to have regard to two criteria: first, whether the marriage was entered into primarily for the purpose of gaining admission to Canada, and secondly whether the sponsored spouse has the intention of residing permanently with the other spouse.
[3] In its reasons for decision, the IAD, after summarizing the evidence that was before it, engaged in a reasonably lengthy analysis of that evidence in relation to the question of whether the applicant and his spouse entered into their marriage primarily for the purpose of gaining admission into Canada. It found neither the applicant nor his spouse to be "... particularly credible in testifying to the arrangement of marriage nor the development of a relationship between them." It concluded that the applicant and his spouse had entered into their marriage primarily for the purpose of gaining admission of the applicant's spouse into Canada.
[4] The IAD disposed of the second issue before it, that is, whether there was no intention on the part of the prospective immigrant, that is to say the applicant's spouse, of residing permanently with the sponsoring spouse, very summarily. The IAD wrote: "I also conclude on the same evidence on a balance of probabilities that the applicant does not intend to reside permanently with the appellant as his spouse."
Analysis
[5] Despite the submissions of counsel on behalf of the applicant, I find no reviewable error on the part of the IAD in arriving at the conclusion that the applicant and his spouse entered into their marriage primarily for the purpose of gaining admission into Canada. By contrast, I find reviewable error on the part of the IAD in concluding that, at the time the applicant and his spouse entered into their marriage, there was no intention on the part of the applicant's spouse of residing permanently with the applicant.
[6] In Meelu v. Canada (Minister of Citizenship and Immigration)[3], I wrote at paragraph [14]:
... can it reasonably be said that the applicant's spouse could have any other intention but to permanently reside with the applicant if she were to come to Canada? Canada would certainly represent an environment alien to her experience and one to which she might reasonably be expected to have significant difficulty adapting, even with the aid of her spouse. If this question had been fully examined by the Tribunal, it might very well have been open to it to reach the conclusion that it did. But there is no evidence whatsoever on the record, particularly in the reasons of the Tribunal, to indicate that it engaged in such an examination or analysis. In the circumstances, to fail to engage in that analysis and to rely solely on the analysis regarding the bona fides of the marriage issue to reach a conclusion regarding the intention to reside issue, I am satisfied constitutes a reviewable error.
[7] I am satisfied that precisely the same might be said on the facts of this matter. The applicant is from a small community in Punjab, India. She has little education. She is illiterate. There is nothing in the record before me to indicate that she has any knowledge of Canada, of its climate, of its traditions, of its culture. There is nothing that would indicate that she has any job skills that would allow her to support herself and her three children. Apart from her husband, she has no relatives in Canada. None of these circumstances would appear to have been taken into account by the IAD in its analysis.
[8] Counsel for the respondent referred me to Canada (Minister of Citizenship and Immigration) v. Draper[4] where Justice Simpson wrote at paragraph 12:
I have determined that it was not open to the IAD to conclude that Ms. Peng's intention was to live with Mr. Draper permanently following her arrival in Canada. I have reached this conclusion because of the volume of unexplained and contradictory evidence, the visa officer's conclusion that Ms. Peng was evasive in the interview, and the circumstantial evidence suggesting that Ms. Peng, like her sister who married on the same day, would not live with her new husband.
[9] I am satisfied that the Draper decision is distinguishable. While, as in Draper, the IAD found on the facts of this matter a "... volume of unexplained and contradictory evidence, ...", unlike in Draper, the circumstantial evidence in this matter might well lead to a conclusion that the applicant's spouse, if she were permitted to come to Canada, would essentially have no alternative but to live with her husband and that, knowing that reality, or at least sensing it at the time of her marriage, it was her intent at the time of her marriage to reside permanently with the applicant.
Conclusion
[10] Based on the foregoing brief analysis, this application for judicial review will be allowed. The decision that is under review will be set aside and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[11] When advised of what my decision would be, neither counsel recommended a question for certification. I am satisfied that this matter turns largely on its facts and does not raise a serious question of general importance for certification. No question will be certified.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
March 6, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2091-02
STYLE OF CAUSE: RAJVINDER SINGH SIDHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, MARCH 5, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: THURSDAY, MARCH 6, 2003
APPEARANCES BY: Mr. J. S. Mangat
For the Applicant
Mr. Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD: Mangat & Company
Barristers and Solicitors
#202 - 7420 Airport Road
Mississauga, Ontario
L4T 4E5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20030306
Docket: IMM-2091-02
BETWEEN:
RAJVINDER SINGH SIDHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[2][1985] 2 F.C. 359 (T.D.).
[3](2000), 180 F.T.R. 309.
[4][2002] F.C.J. No. 38 (T.D.).
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