Date: 20030523
Docket: IMM-2809-01
Citation: 2003 FCT 646
OTTAWA, ONTARIO, this 23rd day of May 2003
Present: The Honourable Justice Dolores M. Hansen
BETWEEN:
INDRANIL NANDA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Appeal Division (the "IAD"). The applicant appealed an Exclusion Order issued by an adjudicator. On appeal, the applicant challenged the validity of the order and, in the alternative, he argued that having regard to the existence of humanitarian and compassionate considerations he should not be removed from Canada.
[2] The IAD held that the order was valid and concluded that there were no humanitarian or compassionate considerations for the applicant not to be removed from Canada.
Background
[3] The applicant is a 28-year-old citizen of India. In October 1993, in Montreal, the applicant married a Canadian citizen, Amishi Nanda. At the time of the marriage, the applicant was 19 years old and his spouse was 16 years old. Although Ms. Nanda's parents were very much opposed to the marriage, they eventually consented. Following their marriage, Ms. Nanda continued her studies in Canada while her husband attended graduate school in Switzerland. The applicant visited his spouse in Canada on a number of occasions and she, in turn, visited the applicant in Switzerland and in India.
[4] In 1997, Ms. Nanda secretly sponsored the applicant to come to Canada. An immigrant visa was issued to the applicant in Paris, France on May 10, 1999. A traditional wedding celebration was planned for July 9, 1999 in India. After the ceremony, the couple planned to travel together to Canada and arrive on July 15, 1999. Subsequent to the arrival of Ms. Nanda's mother in India and two days before the planned celebration, Ms. Nanda disappeared. Her husband has not seen her since that time.
[5] Sometime before July 15, 1999, Ms. Nanda contacted immigration officials indicating her intention to withdraw or revoke the sponsorship of the applicant. Upon his arrival in Canada on July 15, 1999, the applicant was informed by an immigration official that there were concerns regarding his landing and the processing of his permanent resident visa was adjourned to July 24, 1999. On July 16, 1999, Ms.Nanda sent a fax to CIC providing detailed reasons for her revocation of the sponsorship. She alleged that she has endured years of physical and emotional abuse at the hands of her husband.
[6] On July 24, 1999, the immigration officer found a change in circumstances subsequent to the visa being issued, namely, the sponsorship application had been withdrawn. Accordingly, the officer wrote a report under paragraph 27(2)(a) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") stating that the applicant was inadmissible pursuant to paragraph 19(2)(d) of the Act.
[7] Following an inquiry on May 18, 2000, an Adjudicator issued an Exclusion Order against the applicant.
The Decision under Review
[8] On appeal, the IAD found that notwithstanding the fact an immigrant visa had been issued to the applicant, immigration authorities were entitled to determine whether he was the applicant was still admissible to Canada. Further, the applicant had an obligation to report any material changes in his marriage, including the disappearance of his spouse, to the examining officer at the port of entry which would result in an investigation
[9] The IAD also noted that even if the applicant had been landed on July 15, 1999, the failure to disclose the material changes in his marriage or sponsorship relationship would have made him removable from Canada for misrepresentation.
[10] With respect to the applicant's argument that he should be allowed to stay on the basis of humanitarian and compassionate grounds, the IAD found, on a balance of probabilities, that the applicant had physically abused his wife. The IAD also found that even in the absence of its determination regarding the spousal abuse, the facts did not support the existence of humanitarian or compassionate considerations warranting the quashing of the Exclusion Order or the staying of the removal of the applicant from Canada. The IAD found that the applicant had no family ties in Canada, all of his family resided in India, and the family was well established and able to offer him support. The IAD also found with respect to the applicant's argument concerning the stigma he would suffer associated with his failed marriage and his removal from Canada, he had failed to establish that males in India suffer the same stigma from a failed marriage as a woman.
ISSUES
[11] The applicant raises the following issues:
1. Was the finding of the IAD that the applicant had committed spousal abuse patently unreasonable?
2. Did the IAD commit a reviewable error by ignoring the jurisprudence concerning withdrawal of sponsorship when a visa is issued?
3. Was the refusal of the IAD to exercise its equitable jurisdiction in light of uncontradicted evidence of hardship correct in the circumstances?
Issue 1: Was the finding of the IAD that, on a balance of probabilities, the applicant had committed spousal abuse patently unreasonable?
[12] In addition to the faxed letter from Ms. Nanda dated July 16, 1999, the documentary record before the IAD consisted of a number of letters from Ms. Nanda to the applicant, a close friend, the applicant's parents, and the police; Ms. Nanda's personal journal; a letter from Ms. Nanda's father to the applicant; a letter from Ms. Nanda's father to the applicant's father; a letter from a physician in India; and a letter from the police.
[13] The viva voce evidence at the hearing consisted of the testimony of the applicant and his mother, an individual for whom the applicant worked as a volunteer, and a social worker. The applicant testified that he had never abused his spouse. His mother testified that she had never witnessed any of the alleged abuse.
[14] In reaching the finding at issue, the IAD made the following observations:
-Ms. Nanda provided credible details of the abuse she suffered at the hands of the applicant;
-the journal entries reveal that Ms. Nanda was torn between her family and the applicant and although she loved the applicant and defied the wishes of the parents, the applicant did not trust her;
-Ms. Nanda asked the applicant to forgive her for causing him pain and blamed herself for everything;
-the letter from the police in India, tendered by the applicant, stating that no charges had been laid nor any convictions registered against the applicant did not prove the absence of domestic violence since in Ms. Nanda's letter to the police she only sought safe passage out of India;
-the letter tendered by the applicant from the family physician in India stating that he had never treated Ms. Nanda for any serious or minor injuries did not establish that she had not been abused since in her letter of July 16, 1999 she stated she had not been forthright with the physician about her abuse and many instance of the abuse had occurred in Switzerland;
-the two witnesses called by the applicant at the hearing had no first hand knowledge of the applicant's domestic life; and
-Ms. Nanda's account of the abuse is detailed and internally consistent.
[15] The applicant submits that in light of the evidence before the IAD the finding of spousal abuse is patently unreasonable. Both he and his mother testified under oath that the alleged abuse had never occurred. The IAD's reasons do not indicate that their credibility was impugned nor do they indicate the basis on which their evidence was disbelieved. Although the IAD found Ms. Nanda's account of the abuse to be internally consistent, this unsworn evidence was rebutted by sworn testimony.
[16] In particular, the applicant points to Ms. Nanda's allegation that the abuse occurred on one occasion in front of his mother and on another occasions in front of his mother and the whole family. The applicant's mother testified that she had never witnessed any abuse whatsoever. As well, although in Ms. Nanda's letter of July 16, 1999 she stated that she lied to the physician in India about the cause of her injuries, he reported that he had never treated her for serious or minor injuries.
[17] The applicant submits that it is clear from the documentary evidence that Ms. Nanda's parents opposition to the marriage continued and that they tried to break up the marriage. This is evidenced by Ms. Nanda having sponsored the applicant without her parents knowledge.
[18] The applicant also notes that in Ms. Nanda's lengthy and intimate letter to her friend she speaks of the many virtues of her spouse and does not mention anything about having been abused. Nor is there any reference in her personal journal nor in any of the letters tendered as exhibits except the letter of July 16,1999 to any abuse.
[19] The applicant also maintains that it is significant that the applicant wrote to the police asking for safe passage out of India but did not lodge a complaint of assault. Equally significant, in the applicant's view, is that just prior to the celebration he and his spouse were happily planning what they were going to do upon their arrival in Canada. However, when Ms. Nanda's mother arrived in India for the celebration, Ms. Nanda went to visit her mother and disappeared.
[20] The respondent takes the position that the IAD's extensive reasons reveal a careful and thoughtful analysis of all of the evidence and demonstrate that the finding was reasonable.
[21] I recognize that issues surrounding domestic violence are complex. It is not uncommon for victims of domestic violence to not reveal to anyone the fact of the abuse and to fabricate reasons for the causes of observable injury. Nor is it uncommon for victims of domestic violence to blame themselves for the abuse. I also recognize the challenges in the fact finding process in circumstance such as in the present case. However given the serious nature of these types of allegations and the consequences to both the alleged victim and the alleged perpetrator, the evidence must be carefully scrutinized.
[22] The IAD noted that the applicant provided credible and internally consistent details of the abuse. As an example, the IAD referred to Ms. Nanda's journal entry where she writes that she is always in trouble for saying "something which I do not actually mean", not phrasing "my sentences properly", and speaking in a way that irritates the applicant. In her letter to the immigration officer she stated that she was beaten because she "argued or justified [her] wrong deeds or he did not like my way of expressing my point-of-view or the expression on my face and hand movements irritated him and provoked him".
[23] I agree with the IAD that there is consistency between these two writings. However, Ms. Nanda also stated in the same letter with respect to her visits to the physician in India:
Each time I went to the doctor,... I lied to him that I fell in the bathroom and the tap hurt me or I made up some story. The doctor said that I was his only patient who was getting "hurt" very often and that I should be more careful. I have also to take false injections because I told the doctor that some metallic object, like the tap, had hurt me since I had open wounds.
[24] As set out earlier, the same physician referred to by Ms. Nanda stated that he had never treated her for serious or minor injuries. The IAD found that this letter did not establish that she had not been abused because she had not been forthright with the doctor. However, her fabrication to the doctor was about the cause of the injury and not the existence of the injury. Given Ms. Nanda's statement that she had to make up reasons for numerous injuries and that she received injections, it is clear that these injuries must have been evident to the doctor yet he states in his letter that he never treated her for injuries.
[25] In the same letter, Ms. Nanda also related incidents of abuse that took place in front of the applicant's mother. In her sworn testimony, the applicant's mother denied witnessing any of the incidents.
[26] These two examples alone give rise to serious concerns regarding the credibility of the allegations. While I accept the IAD's view that the July 16, 1999 letter provides a detailed account of the instances of abuse and on its face appears to be a credible account, it is unsworn evidence in circumstances where there is no opportunity to test the credibility. While the letter from the physician is also unsworn, it calls into question the credibility of the account of the allegations. Further, the sworn evidence of the applicant's mother specifically rebuts certain of the allegations. In this latter instance, the IAD did not give any reasons for preferring unsworn evidence over sworn testimony.
[27] Having regard to the fact that the IAD's finding was based entirely on unsworn evidence and with no opportunity to test credibility, and having regard to the other evidence that undermines the allegations of abuse, in my opinion, the IAD's finding is patently unreasonable. The respondent also argues the IAD determined that even in the absence of its finding regarding abuse, the facts of the case did not warrant the granting of equitable relief.
[28] The IAD found that past misconduct, including spousal abuse, was a relevant consideration in determining whether relief should be granted under paragraph 70(3)(b) of the Act. The IAD observed that the applicant's misconduct "does not excite in a reasonable person the desire to grant him special relief under the Act. On the basis of this statement, I am unable to conclude that the finding of abuse did not influence the IAD's consideration of the granting of the equitable relief.
[29] As my conclusion on this issue is determinative, the remaining two issues will not be addressed.
[30] Counsel submitted a question for certification, however, as it does not relate to my determination no question will be certified.
[31] For these reasons, the application for judicial review is allowed and the matter is remitted for reconsideration by a differently constituted panel.
ORDER
THIS COURT HEREBY ORDERS THAT:
1. The application for judicial review is allowed, the May 18, 2001 decision is set aside and the matter is remitted for reconsideration by a differently constitute panel.
2. No question will be certified.
"Dolores M. Hansen"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2809-01
STYLE OF CAUSE: INDRANIL NANDA v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 12, 2002
REASONS FOR ORDER : The Honourable Justice Dolores M. Hansen
DATED: May 23, 2003
APPEARANCES:
Mr. Oborne Barnwell FOR APPLICANT
Ms. Pamela Larmondin FOR RESPONDENT
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