Date:
20121219
Docket:
IMM-786-12
Citation:
2012 FC 1522
Ottawa, Ontario,
December 19, 2012
PRESENT: THE
CHIEF JUSTICE
BETWEEN:
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DEPINDER KAUR GILL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
application for judicial review raises a troubling issue. It concerns Ms.
Depinder Kaur Gill’s unsuccessful attempts to sponsor her husband for permanent
residence in Canada.
[2]
Were
it not for an error made by the visa officer who initially reviewed Ms. Kaur
Gill’s sponsorship application, that application likely would have been
successful. However, between the time the sponsorship application was rejected
by the visa officer and rejected again by the Immigration Appeal Division [IAD]
of the Refugee Board of Canada, the legal test applicable to such applications
changed. Unfortunately, her counsel has not been able to identify any principle
of law upon which the Court can rely to keep alive her hope of sponsoring her
husband for permanent residence in Canada.
[3]
Ms.
Kaur Gill asserts that the IAD committed a number of errors in dismissing her
appeal of the visa officer’s rejection of her spousal sponsorship application.
Those alleged errors can be conveniently summarized as follows:
i.
the
IAD unreasonably concluded that her marriage was entered into primarily for the
purpose of acquiring a status or privilege under the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 [IRPA]; and
ii.
the
IAD applied the wrong test in rejecting her application.
[4]
For
the reasons that follow, this application is dismissed.
I. Background
[5]
In
early 2007, Ms. Kaur Gill’s friends put an advertisement in a newspaper seeking
potential candidates for a husband for her. Mr. Gill responded to the
advertisement. It appears that in June 2007, after one of Ms. Kaur Gill’s
friends had many telephone discussions with Mr. Gill, the couple began to have
direct telephone conversations. Ms. Kaur Gill then went to India to meet with both families in July 2007. The couple met in person for the first time
the following month, in Canada. They married in Canada a few weeks later. At
that time, Mr. Gill was under a deportation order.
[6]
The
couple resided together until October 2008, when Mr. Gill left Canada pursuant to the deportation order.
[7]
Ms.
Kaur Gill’s sponsorship application was filed in November 2008. She visited Mr.
Gill in India for extended periods in 2008 and 2009.
[8]
During
one of those visits, in March 2009, they were each interviewed
in New Delhi by the visa officer.
[9]
In
April 2010, the visa officer refused Ms. Kaur Gill’s sponsorship application on
the basis that her marriage to Mr. Gill was not genuine and was entered
into primarily for the purpose of assisting Mr. Gill to acquire permanent residence
in Canada.
II. The
Relevant Legislation
[10]
At
the time of the visa officer’s decision, section 4 of the Immigration and
Refugee Protection Regulations, SOR/2002-2007 [Regulations] set forth a conjunctive test which provided that a foreign national could not be considered to be a spouse within the meaning
of the Regulations if the marriage in question was (i) not genuine, and
(ii) was entered into primarily for the purpose of acquiring any status or
privilege under the IRPA.
[11]
On
September 30, 2010, an amended version of section 4 came into force. In
essence, the amendment changed the test to a disjunctive one, by replacing the
word “and,” as it appeared between the two prongs of the test, with the word
“or.”
[12]
Paragraph
43(c) of the Interpretation
Act,
RSC 1985, c I-21 states:
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43. Where an enactment is
repealed in whole or in part, the repeal does not
…
(c)
affect any right, privilege, obligation or liability acquired, accrued,
accruing or incurred under the enactment so repealed
…
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43. L’abrogation, en tout
ou en partie, n’a pas pour conséquence :
…
c) de porter atteinte aux
droits ou avantages acquis, aux obligations contractées ou aux
responsabilités encourues sous le régime du texte abrogé;
…
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III. The
Decision under Review
[13]
In
January 2012, the IAD dismissed Ms. Kaur Gill’s appeal of the visa officer’s
decision.
[14]
In
the course of reaching its determination, the IAD determined, contrary to the
visa officer’s decision, that the marriage was in fact genuine.
[15]
However, the IAD proceeded to find that Ms. Kaur Gill had not
established, on a balance of probabilities, that the primary purpose of the
marriage was other than to gain status or privilege under the IRPA.
[16]
The
IAD also determined that it should apply the amended version of section 4 of
the Regulations in its assessment of Ms. Kaur Gill’s appeal, because (i) that
appeal proceeds on the basis of a de novo hearing, and (ii) it must
apply the law as it stands at the time of its decision.
IV. Standard
of Review
[17]
The standard of review applicable to the IAD’s conclusion
with respect to the primary purpose of Ms. Kaur Gill’s marriage is
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at paras 51 and 53,
[2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, at para 46, [2009] 1 S.C.R. 339 [Khosa]).
[18]
Broadly speaking, reasonableness is also the standard applicable
to a review of the IAD’s interpretation of the Regulations (Dunsmuir,
above, at para 54; Khosa, above, at para 44; Alberta (Information and
Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, at para
30, [2011] 3 S.C.R. 654 [Alberta Teachers]). However, in this particular case, the
issue of which version of section 4 applies to the IAD’s determination of
appeals of decisions that were made prior to September 30, 2010 engages the
principles of fundamental fairness and natural justice. In my view, the IAD
does not have any specialized expertise with respect to these principles, or,
indeed, with respect to the determination of which version of section 4 is
applicable in a particular hearing. Therefore, the standard of review
applicable in assessing that issue is correctness (Dunsmuir,
above at paras 55, 79 and 90; Khosa, above, at para 43; Alberta
Teachers,
above, at para 46).
V. Analysis
A. Was
the IAD’s conclusion with respect to the primary purpose
of Ms. Kaur Gill’s marriage unreasonable?
[19]
Ms.
Kaur Gill submits that it was perverse and unreasonable for the IAD to conclude
that her marriage to Mr. Gill was entered into primarily for the purpose of
acquiring any status or privilege under the IRPA, given that it also concluded
that the marriage is genuine. She also asserts that the IAD unreasonably
assessed the evidence she adduced regarding the primary purpose of the
marriage. I disagree.
[20]
In
its decision, the IAD appropriately acknowledged that it “is always difficult
to assess the primary purpose of a marriage because the decision to marry is
intensely personal and private.” The IAD also stated:
[W]here there is a genuine marriage, such as I have
determined here, there needs to be compelling evidence that the primary purpose
was other than to be in a genuine marriage, to overcome the implication that,
while gaining admission to Canada was a significant factor, entering into a
genuine marriage was the primary consideration.
[21]
Ultimately,
the IAD concluded that such compelling evidence existed. In reaching this
conclusion, the IAD considered (i) Mr. Gill’s immigration history, (ii) his
credibility, (ii) statements he made during his interview with the visa officer,
and (iv) the fact that he proposed to Ms. Kaur Gill without having met her in
person, notwithstanding that they were both living in Canada during their courtship period.
[22]
With
respect to Mr. Gill’s immigration history, the IAD noted that he first arrived
in Canada in 2000 on a false passport. It observed that he then made an
unsuccessful claim for refugee protection. It declined to draw a negative
inference from this fact, because it did not have evidence regarding the basis
for the rejection of that claim. It then turned to his first marriage, which
occurred in May 2003. In this regard, it noted that there was little, if any,
vetting of compatibility between Mr. Gill and his first wife; and that Mr.
Gill’s explanation for this was that her family was located in Canada. The IAD observed that this explanation was not credible, because there was no
evidence which supported the proposition that marrying in Canada made background checks impractical, unnecessary or onerous. It added that Mr. Gill provided
no plausible explanation for why such background checks were not conducted. It
found that this was significant, because (i) such background checks would have
turned up the fact that his first wife was illiterate, (ii) he testified that
Ms. Kaur Gill’s high level of education was an important consideration for him
and his family at the time he was courting her, and (iii) the evidence did not
establish that the importance of finding a well educated bride changed over
time, for him and his family, between the time he married his first wife and
the time he married Ms. Kaur Gill. In addition, the IAD noted that background
checks may well have disclosed the fact that his first wife was still married
at the time of his marriage to her. It then observed that, rather than waiting
for her divorce, so that he could legally marry her, he separated from her,
apparently, because she could no longer sponsor him. Later on in its decision,
the IAD observed that the evidence suggested that his first marriage “was
likely motivated by his desire to gain admission to Canada.”
[23]
With
respect to Mr. Gill’s credibility, the IAD also made an adverse finding based
on his denial of the events that formed the basis for his conviction of assault
causing bodily harm to his first wife. It made that finding after considering
the findings of the sentencing court. In addition, the IAD found that Mr. Gill
was “often evasive in answering questions on cross-examination” and that he
“frequently had to be asked a question repeatedly in an effort to obtain a
responsive answer.”
[24]
Turning
to Mr. Gill’s interview with the visa officer, the IAD noted that he had made a
number of statements which supported the Minister’s contention that the primary
purpose of the marriage was to gain status or privilege under the IRPA. For
example, he stated that he had to separate from his first wife because their
marriage could not be registered (due to the fact that she was still legally
married to someone else when he married her), and therefore “my marriage was
not acceptable for my case.” In addition, he stated that, while he wanted to
return to India to marry someone of his parents’ choice, he was “temporary in Canada and needed to become permanent here.” He also appeared to acknowledge that he was
searching for a bride who could sponsor him.
[25]
Based
on all of the foregoing, the IAD concluded that Ms. Kaur Gill had not
established, on a balance of probabilities, that the primary purpose of her
marriage to Mr. Gill was other than to gain status or privilege under the IRPA.
[26]
In my view, the
conclusion reached by the IAD was well “within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir, above,
at para 47). It was also appropriately justified, transparent and intelligible.
[27]
This
Court’s ruling in Tamber v Canada (Minister of Citizenship and Immigration),
2008 FC 591 is distinguishable, because the IAD’s above-described conclusion
was based on more than just a finding that the spouse was highly motivated to
immigrate to Canada. Owusu v Canada (Minister of Citizenship and
Immigration), 2006 FC 1195, at para 16 is also distinguishable, because the
IAD’s above-described conclusion was not primarily based on attitudes derived
from our culture.
[28]
Ms.
Kaur Gill submits that it was unreasonable for the IAD to find that her
marriage with Mr. Gill was genuine, and then to conclude that she had not
established that the primary purpose of the marriage was other than to gain
status or privilege under the IRPA.
[29]
I
disagree. A plain reading of section 4 of the Regulations reflects that these
are two distinct tests. If a finding that a marriage is genuine precluded the
possibility of a finding that the marriage was entered into primarily for the
purpose of acquiring any status or privilege under the IRPA, the latter test
would be superfluous. This would offend the presumption against statutory
surplusage. (R v Proulx, 2000 SCC 5, at para 28, [2000] 1 S.C.R. 61).
[30]
It
is well established that while there are strong links between the two tests in
section 4, they are distinct. (Sharma v Canada (Minister of Citizenship and
Immigration) 2009 FC 1131, at para 17; Grabowski v Canada (Minister of Citizenship and Immigration) 2011 FC 1488, at para 24; and Keo v Canada (Minister of Citizenship and Immigration) 2011 FC 1456, at paras
11-12. See also Macdonald v Canada (Minister of Citizenship and Immigration)
2012 FC 978, at paras 18-19; Elahi v. Canada (Minister of Citizenship and
Immigration), 2011 FC 858, at para 12; and Kaur Gill v Canada (Minister of Citizenship and Immigration) 2010 FC 122, at para 13.)
[31]
Ms.
Kaur Gill submits that the IAD’s conclusion regarding the primary purpose of
the marriage was clearly perverse, given that she and Mr. Gill have been
married for over 4.5 years and conceived a child almost three years into their
marriage. Ms. Kaur Gill also notes that, in reaching its conclusion on this
point, the IAD also unreasonably failed to consider and give weight to other
evidence about matters that post-dated the marriage.
[32]
I
acknowledge that evidence about matters that occurred subsequent to a marriage
can be relevant to a consideration of whether the marriage was entered into
primarily for the purpose of acquiring any status or privilege under the IRPA (Kaur
Gill, above, at para 8). However, such evidence is not necessarily
determinative, and it is not necessarily unreasonable for the IAD to fail to
explicitly consider and discuss such evidence.
[33]
This
is because, in contrast to the present tense focus of the first of the two tests
set forth in section 4 of the Regulations, which requires an assessment of
whether the impugned marriage “is not genuine,” the focus of the second
of those tests requires an assessment of whether the marriage “was
entered into primarily for the purpose of acquiring any status or privilege
under the Act” (emphasis added). Accordingly, in assessing whether the latter
test is satisfied, the focus must be upon the intentions of both parties to the
marriage at the time of the marriage. I agree with the Respondent that
testimony by those parties regarding what they were thinking at that time
typically will be the most probative evidence regarding their primary purpose
for entering into the marriage.
[34]
In
my view, it was not unreasonable for the IAD to conclude, for the reasons
described above, that at the time Mr. Gill entered the marriage, he did so
primarily for the purpose of acquiring a status or privilege under the IRPA. In
reaching that conclusion, the IAD did not err by failing to explicitly discuss
evidence about matters that post-dated the marriage. That said, I note that
such evidence was appropriately considered by the IAD in reaching its
conclusion regarding the genuineness of the marriage.
B. Did
the IAD apply the wrong version of section 4 of the Regulations?
[35]
Ms.
Kaur Gill submits that the IAD should have applied the version of section 4
that was in force prior to September 30, 2010, because she filed her Notice of
Appeal on May 7, 2010. She also submits that, once she filed that Notice of
Appeal, she had accruing rights that could not be adversely affected by a
subsequent amendment to section 4, as contemplated by paragraph 43(c) of the Interpretation
Act, above.
[36]
The
Respondent maintains that Ms. Kaur Gill did not have a vested right to the
continuance of the law as it stood at the time she filed her Notice of Appeal (Gustavson
Drilling ((1964) Ltd v Canada (Minister of National Revenue) [1977]1 SCR
271, at page 282, [Gustavson Drilling]). It asserts that because an
appeal before the IAD proceeds on the basis of a hearing de novo (Kahlon
v Canada (Minister of Employment and Immigration),
1989 FCJ No 104, at para 5 [Kahlon]; Castellon
Viera v Canada (Minister of Citizenship and Immigration), 2012 FC 2086, at para 10), the IAD has an obligation to apply
section 4 as it stood at the time the appeal was heard and its decision was
rendered.
[37]
I
recognize that there is something wrong about the fact that Ms. Kaur Gill’s
spousal sponsorship application may be reasonably rejected under the existing
version of the Regulations, even though that application likely would have been
successful at the time it was initially assessed by the visa officer, had the
visa officer not erred in concluding that her marriage is not genuine.
[38]
I
find this result troubling. However, I have not been provided with any
authority that would enable me to find that the IAD’s application of the
Regulations currently in force was contrary to any principle of Canadian law.
In fact, the applicable legal principles support, in a general way, the
Respondent’s position. Accordingly, I am unable to accept Ms. Kaur Gill’s
position that the IAD erred by failing to apply the previous version of the
Regulations in considering her spousal sponsorship application.
[39]
Contrary
to Ms. Kaur Gill’s submissions, a right to have her spousal sponsorship
application determined under the version of the Regulations that was in force
prior to September 30, 2010 did not become accrued and did not begin to accrue
as of the moment she filed her Notice of Appeal with the IAD.
[40]
This
is because persons who make such applications have no accrued or accruing
rights until all of the conditions precedent to the exercise of the right they
hope to obtain under the application have been fulfilled (R. v Puskas,
[1998] 1 S.C.R. 1207, at para 14; Apotex Inc v Canada (Attorney General),
[1994] 1 FC 742, at paras 56-63 (CA); Scott v College of Physicians &
Surgeons of Saskatchewan [1992] SJ No 432, at 718 (CA); Kazi v Canada
(Minister of Citizenship and Immigration), 2003 FC 948, at para 19; Gustavson
Drilling, above). Until a final decision has been made on the application,
the applicant simply has potential future rights that remain to be determined (Bell
Canada v Palmer [1974] 1 FC 186, at paras 12-15 (CA) [Palmer]; McAllister
v Canada (Minister of Citizenship and Immigration), [1996] 2 FC 190, at
paras 53-54); Chu v Canada (Minister of Citizenship and
Immigration), 2006 FC 893, at
paras 67-68). Stated alternatively, the applicant has no more than a hope that
the application will be successful. There are no rights that may be
retroactively or retrospectively affected by a change in the test applicable to
spousal sponsorship applications. To the extent that this Court’s decision in McDoom
v. Canada (Minister of Manpower and Immigration) [1978] 1 FC 323, which
dealt with a significantly different legislative regime, stands for the
contrary position, I respectfully decline to follow that decision.
[41]
The
situation faced by such applicants contrasts with situations in which a party
to legal proceedings has an accrued substantive right (for example, to equal
pay) at the time that party initiates legal proceedings. Pursuant to paragraph
43(c) of the Interpretation Act, above, such accrued rights cannot be
adversely affected as a result of the partial or complete repeal of the
enactment which confers those rights (Palmer, above, at paras 8-15).
[42]
At
first blush, the Respondent’s position that the IAD must apply the law as it
stands at the time of its decision would appear to be correct. That position
was endorsed by this Court in Macdonald v Canada (Minister of Citizenship
and Immigration, 2012 FC 978, at paras 22-25 and Wiesehahan v Canada (Minister of Citizenship and Immigration), 2011 FC 858, at para 54). However, in
those cases, the visa officer and the IAD each determined that the applicant
had failed to establish both of the tests in section 4. As a result, the fact
that section 4 was changed from a conjunctive test to a disjunctive test
between the time of the visa officer’s decision and the time of the IAD’s
decision had no particular significance.
[43]
This
case calls for a closer examination of the issue. In conducting this
examination, it must be kept in mind that the IAD’s hearings are de novo
in nature, and that persons who make applications to sponsor a spouse under the
family class have no accrued or accruing rights until a final decision has been
made on their application.
[44]
In
this context, the version of the Regulations that is applicable to a
determination of an appeal by the IAD is the version that was in force at
the time the parties made their submissions to the IAD. However, if the
parties have a full opportunity to supplement their prior written submissions
with oral submissions at the time of the IAD’s hearing, then the version
of the Regulations which ought to be applied by the IAD is the version that was
in force at that time. I acknowledge that there may be situations in
which a subsequent amendment to the Regulations has no bearing on any of the
submissions that were made by the parties, and that in such situations, it may
be appropriate for the IAD to apply that amended version of the Regulations,
i.e., the version that was in force at the time of its decision.
[45]
Ms.
Kaur Gill submitted her evidence to the IAD beginning in early 2011, well after
the existing version of section 4 came into force. It does not appear that she
made any written submissions to the IAD. However, she had an opportunity to
make oral submissions during the IAD’s hearings on March 18, 2011, at which the
Respondent raised the change in the wording of section 4 as a potential issue,
and on October 25, 2011.
[46]
Accordingly,
the IAD correctly determined that the version of the Regulations that had to be
applied in assessing Ms. Kaur Gill’s application was the current version of
those Regulations.
[47]
I
am not aware of any principle of procedural fairness, due process or natural
justice in this country that required the IAD to apply the version of those
Regulations that existed at the time the visa officer’s decision was made.
VI. Conclusion
[48]
The
IAD’s conclusion that Ms. Kaur Gill had failed to demonstrate, on a balance of
probabilities, that the primary purpose of her marriage to Mr. Gill was not
primarily for the purpose of acquiring any status or privilege under the IRPA,
was reasonable.
[49]
The
IAD correctly determined that the version of the Regulations that had to be
applied in assessing Ms. Kaur Gill’s application was the current version of
those Regulations.
[50]
Accordingly,
this application for judicial review is dismissed
[51]
At
the end of the hearing of this application, Ms. Kaur Gill’s counsel tentatively
proposed two questions for certification regarding the test that the IAD
applied in rejecting her spousal sponsorship application. However, upon
reflection, and after the Respondent confirmed in writing its opposition to
those questions, Ms. Kaur Gill’s counsel submitted that further litigation
would inhibit her effort to reunite with Mr. Gill and that she no longer wished
to have a question certified.
[52]
I
note also that, after I inquired as to whether there are other outstanding
cases that involve a decision made by a visa officer prior to September 30,
2010 and an appeal to the IAD that was heard under the existing Regulations,
the Respondent replied in writing that “[t]here is no information at present to
confirm the volume of cases under these circumstances.”
[53]
Considering
the foregoing, and the absence of any significant divergence in this Court with
respect to the legal test to be applied by the IAD in circumstances such as
those that are the subject of this application for judicial review, I am not
persuaded that this application gives rise to a serious question of general
importance.
JUDGMENT
THIS
COURT ORDERS AND ADJUGES THAT:
1.
This
application is dismissed.
2.
There
is no question for certification.
“Paul
S. Crampton”
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