Singh v. Canada (Minister of Citizenship and Immigration), 2002 FCT 347

Date: 20020328

Docket: IMM-2430-01

Neutral citation: 2002 FCT 347

BETWEEN:

                                                                     AMRIK SINGH

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MARTINEAU, J.:

[1]                 This is an application for judicial review from the decision of the Appeal Division of the Immigration and Refugee Board dated April 30, 2001, rejecting an appeal made under subsection 77(3) of the Immigration Act ("the Act").

BACKGROUND

[2]                 Amrik Singh ("the applicant") married Manjit Kaur Gaddu ("the applicant's wife") in India on February 1^st, 1998. At that time, the applicant had permission to stay in Canada. He later gained permanent residence status and applied to sponsor his wife for immigration as a member of the "family class". The Immigration Officer, after interviewing the applicant's wife in March 2000, refused her application for permanent residence on the ground that she did not meet the requirements of the Act and the Immigration Regulations, 1978 ("the regulations").

[3]                 The Immigration Officer based his decision on subsection 4(3) of the regulations which prescribes:

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.

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.

[4]                 The Immigration Officer inferred that the applicant's wife had entered into the marriage for the purpose of immigration and that she did not intend to reside permanently with the applicant. In the refusal letter, the Immigration Officer mentioned the following concerns:

a) the denial by the applicant's wife of the mental limitations attributed to her husband;

b) the lack of knowledge of her husband's lack of permanent status at the time of the marriage;

c) age and education level differences between the spouses; and

d) a lack of post wedding correspondence.

[5]                 The applicant appealed to the Appeal Division of the Immigration and Refugee Board.     The Appeal Division heard the appeal on April 30, 2001. The applicant, as well as the applicant's wife and father testified. The Appeal Division came to the same conclusion as the Immigration Officer and rejected the applicant's appeal. The wife's lack of explanation for inconsistencies and contradictions in her evidence, noted by the Appeal Division in its decision, led the members of the panel to find her without credibility. Therefore, they attributed little weight to the positive evidence adduced by the applicant's wife as to her intentions. They also found the evidence of the applicant and his father weak and containing discrepancies. Accordingly, their testimony could not be given much weight.

ISSUE

[6]                 This judicial review is limited to the finding of the Appeal Division that the applicant's wife is not a member of the "family class" defined in the Act and the regulations. The applicant argues that the Appeal Division ignored relevant evidence in rejecting his appeal. He submits that this error renders the decision unreasonable. The applicant bases this claim upon the assertion that the Appeal Division erred in its examination of the facts underlying its findings as to his wife's credibility and intention to reside permanently with him in Canada.

ANALYSIS

[7]                 A determination of exclusion under subsection 4(3) of the regulations is subject to a two-prong test: Horbas v. M.E.I., [1985] 2 F.C. 359. First, a marriage must be entered into primarily for the purpose of gaining admission to Canada. Second, there must be no intention on the part of the prospective immigrant to reside permanently with the sponsoring spouse.

[8]                 In the present case, the concerns of the Appeal Division were:

a)         the meeting of the couple and subsequent marriage arrangements;

b)         the wife's lack of knowledge of her husband's lack of permanent status at time of marriage;

c)         the wife's assertion that her husband is "bright" and her denial of mental limitations; and

d)         the date the phone installation at the wife's parents' home took place.

[9]                 The contradictory evidence can be summarized as follows:

a) The applicant's wife stated in her interview that her husband first saw her while she was going to college and that he and his father subsequently contacted the matchmaker regarding marriage (p. 26 Tribunal record). Before the Appeal Division, she stated that she met her husband at the Lodi festival in the village of Mansoon (p. 118 Transcript). When questioned by the applicant's counsel as to this discrepancy, the applicant's wife stated that she was nervous at the interview and that she withdrew this statement in favour of their meeting in Mansoon (p. 123 Transcript).

The applicant's wife also stated in her interview that after the applicant saw her going to college, that he and his father talked to the matchmaker, who then talked to her parents, who then told her about the match (pp. 26-27 Tribunal record). In her testimony before the Appeal Division, she states that the relationship came about at a meeting of her aunt, grandparents, Amrik Singh and his father (p. 118 Transcript).

The applicant stated to the Appeal Division that he met his wife Manjit "in the house" (p. 21 Transcript) and when asked for details of the meeting, he answered "I can't say" (p. 23 Transcript). He indicated that his father would know. He directed the Board to ask his father for answers to several questions posed.

Mr. Singh, the applicant's father, stated to the Appeal Division that Amrik and Manjit met in the village of Manswy, where he spoke with Manjit's grandfather about a match, then to the matchmaker who then talked with Manjit's parents. Following that discussion, everyone went to Pakhowal where Amrik, his father, and some aunts and uncles met with Manjit's father and grandfather to solidify the match (pp. 60-64 Transcript). In cross-examination, Mr. Singh could not explain his daughter-in law's account of the couple's meeting (pp. 97-98 Transcript). He also states in re-examination that Manjit's mother was present at the discussions (p. 113 Transcript).

b) When asked in her interview about her husband's status in Canada, the applicant's wife stated that she was not told, at the time of the marriage, that her husband did not have permission to stay permanently in Canada (p. 26 Tribunal record). The applicant's father states that the lack of permanent status was discussed when the family met to arrange the marriage with Manjit in attendance (pp. 98-100 Transcript). His explanation for this inconsistency was that Manjit did not understand what was being said at the time of the discussion.

c) When asked at her interview if she had been told that her husband was not "very bright", the applicant's wife replied that he is "bright". After being asked if she was sure, the applicant's wife replied "yes" and later answers "no" when asked if her husband has any physical or mental problems (pp. 26-27 Tribunal record). At the appeal, the applicant's wife admits that he does have mental limitations (p. 121 Transcript) and the applicant's father testifies that Manjit was told about Amrik's limitations during the wedding arrangements (pp. 65-66, 100 Transcript).

d) The applicant's wife stated at her interview that a phone was installed at her parent's home on February 1^st, 1998, the day of the marriage, with the number 866068 (p. 27 Tribunal record). At the appeal, she stated that the phone was installed two or three weeks after the wedding (p. 59 Tribunal record).    

The applicant did not know his wife's phone number by heart and said it was written down at home, while his father stated the new phone number when asked, but could not remember the original number (866068) that had been in place from early 1998 (pp. 71-72 Transcript). He later states that he dials for his son (p. 88 Transcript) and that the in-laws did not have a phone when he and his son were there for the wedding in 1998, but only in the last year (pp. 102-103, 110 Transcript).

[10]            At the hearing, the presiding member of the Appeal Division confronted the applicant's wife with the four concerns noted above and specifically asked her what explanation she had for these inconsistencies. Her answer was that she was "confused" when she went for the interview (p. 137 Transcript).

[11]            Before this Court, the applicant argues that his wife did not deny his mental limitations at her interview and that the Appeal Division misunderstood the context of her answers. This assertion is contrary to the CAIPs notes of the Immigration Officer which indicate that his wife was asked several questions about her husband's mental limitations and that she clearly answered that he did not have such limitations. Further, when questioned by counsel at the appeal, his wife did not explain to the Appeal Division's satisfaction why she denied these limitations at her interview. The Appeal Division did not simply adopt the Immigration Officer's conclusion on this matter as suggested by the applicant. The wife's denial of the applicant's mental limitations, her later withdrawal of this assertion and her failure to explain the change in her statements was the key determinant in the Appeal Division's finding of her lack of credibility, and hence, the weight given to her evidence of her intention to reside permanently with the applicant in Canada.

[12]            The applicant also argues that the Appeal Division misunderstood his wife's comments regarding his status in Canada at the time of the marriage. Again, the CAIPs notes of the Immigration Officer indicate that she did state she was unaware of his lack of permanent status at the time of their marriage. This statement is not clarified in her examination on appeal and is contrary to the father's testimony that she was present when the lack of status was discussed with the family. The Appeal Division drew a negative inference as to her credibility on this basis. They also find it implausible that she would be unaware of such a significant factor in marriage arrangements. This interpretation of the evidence was reasonably open to the Appeal Division.

[13]            As mentioned by Rouleau J. in Canada (Minister of Citizenship and Immigration) v. Agyemang, [1999] F.C.J. No. 776, at paragraph 10:

The purpose of subsection 4(3) of the Regulations is to prevent parties from bypassing, for immigration purposes, the selection criteria with which most immigrants must comply, by artificially creating a family relationship through a form of marriage ...

[14]            Subsection 8(1) of the Act provides:

8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.

8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.

[15]            Also pertinent are paragraph 19(2)(d) and subsection 77(1) of the Act:

19. (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:

...

(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.

19. (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_:

...

d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.

...

77. (1) Where a person has sponsored an application for landing made by a member of the family class, an immigration officer or a visa officer, as the case may be, may refuse to approve the application on the grounds that

(a) the person who sponsored the application does not meet the requirements of the regulations respecting persons who sponsor applications for landing, or

...

77. (1) L'agent d'immigration ou l'agent des visas, selon le cas, peut rejeter une demande parrainée d'établissement présentée par un parent pour l'un ou l'autre des motifs suivants -- don't doit être alors informé le répondant_:

a) le répondant ne remplit pas les conditions fixées par les règlements;

(b) the member of the family class does not meet the requirements of this Act or the regulations,

and the person who sponsored the application shall be informed of the reasons for the refusal.

b) le parent ne remplit pas les conditions fixées par la présente loi et ses règlements.

[16]            The combined effect of the above provisions is clear: the evidentiary burden of showing that a sponsored spouse is not excluded from the "family class" by reason of section 4 of the regulations rests on the spouse and his sponsor. The appropriate standard of proof in such a case is the balance of probabilities or the preponderance of the evidence. See Tran v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1255.

[17]            In Khangura v. Canada (Minister of Citizenship and Immigration) (2000), 191 F.T.R. 311, O'Keefe J. in dismissing an application for judicial review of a decision of the Appeal Division stated:

The appropriate standard of review of the Appeal Division's decision is one of correctness when it is dealing with a question of law and the standard of review when dealing with questions of mixed fact and law is reasonableness simpliciter. Findings of fact made by the Appeal Division should not be overturned unless they are clearly wrong.

[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.

[19]            In the present case, the Appeal Division's findings on the lack of credibility of the applicant's wife are rational and are clearly supported by the evidence. Moreover, the applicant's limited mental abilities were demonstrated throughout his testimony and, accordingly, little reproach can be made to the unreliability of his evidence as to his wife's intentions. An examination of the Appeal Division's transcript also reveals that the father's testimony is rife with contradictions that were not explained. I find that the members of the panel which rendered the impugned decision did, in fact, turn their minds to the positive evidence, including a post marriage visit to India and financial support information. I do not find it fatal that the Appeal Division did not discuss the importance of the marriage ceremony and the subsequent pregnancy and abortion of the applicant's wife in its decision.

[20]            I am of the view that the Appeal Division has not committed any material error, ignored relevant evidence or unreasonably balanced the various elements contained in the evidence. Moreover, I am of the opinion that the members of the panel based their decision on a number of inconsistencies in the evidence that allowed them to reasonably draw the inferences that they did. I find that it was reasonably open to the Appeal Division to conclude, based on the evidence, that the applicant's wife, Manjit Kaur Gaddu, 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 applicant, Amrik Singh.

CONCLUSION

[21]            I conclude that the Appeal Division has not committed any reviewable error in finding that the applicant's wife is not a member of the "family class" as described in the Act and the regulations. Accordingly, the Appeal Division rightly dismissed the appeal for lack of jurisdiction.

[22]            For all those reasons, the application for judicial review is dismissed.

[23]            This matter does not raise a question of general importance for the purpose of certification.

OTTAWA, Ontario

March 28, 2002

                                                                                                                           Judge