Docket: IMM-3454-11
Citation: 2012 FC 287
Ottawa, Ontario, March
2, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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SURJIT KAUR GILL
(SURJIT KAUR CHEEMA)
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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]
The
applicant, Surjit Kaur Gill, seeks judicial review of the decision made on
April 27, 2011, by the Immigration Appeal Division of the Immigration and
Refugee Board rejecting her appeal of a decision to deny her application to
sponsor her husband for permanent residence in Canada.
[2]
This
application is brought under section 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27. For the reasons that follow, the application
is dismissed.
BACKGROUND:
[3]
Ms.
Gill, originally from India, was sponsored by her daughter and became a
permanent resident in 2000. She wishes to sponsor Mr. Brar, a citizen of India.
[4]
The
applicant’s divorce from her second husband, whom she had sponsored, became
effective in October 2007. She then met Mr. Brar in India in January 2008. They
were introduced by a friend of the applicant who is also Mr. Brar’s cousin. She
met him once during that visit but they had apparently been acquaintances
during their youth. The friend encouraged Ms. Gill to consider Mr. Brar as a
prospective husband. She went to India again in July 2008 and met Mr. Brar a
second time. She was not sure of the marriage when she left India in August 2008. In November she decided to marry him and went back to India in December for the wedding.
[5]
In
August 2009 Ms. Gill applied to sponsor her new husband and his son for
permanent residency in Canada. She went back to India for two months in the
fall of 2009. In December 2009, the couple accompanied by Mr. Brar’s son were
interviewed by an Immigration Officer in New Delhi. The interview was conducted
in Punjabi, the language of the couple, without an interpreter.
[6]
The
Immigration Officer rejected the sponsorship application on the basis that the
marriage was not bona fide. In rejecting the application, the Officer
considered that the remarriage of a widow of Ms. Gill’s age (60) was not common
in the Sikh tradition, that it was unusual for a woman her age with children
and grandchildren to remarry, that the marriage was not performed at Mr. Brar’s
residence, that the marriage was arranged in haste, that the marriage was
attended by few people, that the children of both Ms. Chill and Mr. Brar did
not attend the ceremony, that the couple did not live together after the
marriage, that the husband displayed a considerable lack of knowledge of Ms.
Gill’s family and that Mr.’s Brar’s passport still displayed his ex-wife as his
spouse.
[7]
The
applicant appealed the Officer’s decision to the Immigration Appeal Division of
the Immigration and Refugee Board, hereafter “the Board”.
DECISION UNDER
REVIEW:
[8]
The
Board considered that it was not necessary for it to determine whether the 2010
amendments to s.4 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (hereafter the Regulations) applied as it was satisfied that the
marriage was not genuine and was entered into primarily for the purpose of
acquiring status in Canada.
[9]
The
Board noted that the closeness in age of the spouses and the fact that they
shared a common religion and culture supported the application. The Board also
indicated that the telephone records, greetings cards, pictures and supporting
affidavits submitted by the couple supported the application.
[10]
However,
the Board found several inconsistencies in the evidence that it considered to
be fatal to the appeal. The couple gave different versions of when they decided
to get married (November 2008 for Ms. Gill and August 2008 for Mr. Brar). The
couple was inconsistent on the number of occasions they spoke on the phone (2
then 1 time for Ms. Gill, never for Mr. Brar). The marriage was conducted
hastily with little interaction. The Officer’s interview notes contain many
references to Mr. Brar’s lack of knowledge about his new spouse and her family.
[11]
The
couple had also stated that an interpreter they had brought with them to the
interview was sent away by the Officer and that they could not understand the
Officer correctly because she spoke a mix of Punjabi and Hindi. The Board
observed that the Officer’s Computer Assisted Immigration Processing System
(“CAIPS”) notes indicate that the couple understood her and that no incident
happened during the interview.
[12]
The
Board considered the negative and positive evidence and came to the conclusion on
the balance of probabilities that the marriage was not genuine and was done to
gain status.
ISSUES:
[13]
In
the applicant’s written representations it is contended that the Officer
breached the Official Languages Act, RSC, 1985, c 31 (4th Supp) in
conducting the interview in Punjabi instead of in French or English. This
argument was not pressed at the hearing. I am satisfied, in any event, that the
argument has no merit. While the Canadian public has the right to receive
services from the federal government in English or French, the Official
Languages Act does not prevent the conduction of government business in
other languages, especially in immigration cases when the Officer speaks the
native language of the applicant: Abbasi v Canada (Minister of Citizenship
and Immigration), 2010 FC 288 at paras 12-17.
[14]
The
issues that remain are as follows:
1.
Did the Officer breach her duty of procedural fairness?
2.
Was the Board’s decision reasonable and based on all the evidence?
3.
Were the Board’s reasons adequate?
ANALYSIS:
Standard
of Review;
[15]
Where
procedural fairness is in question, as here, the Court must consider whether
the requirements of natural justice in the particular circumstances of the case
have been met:
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; CUPE
v Ontario (Minister of Labour), 2003 SCC 29 at para 100; Velasquez Perez
v Canada (Minister of Citizenship and Immigration), 2011 FC 1336 at para
28.
[16]
The
second issue is one of mixed fact and law and is reviewable upon the standard
of reasonableness: Mendoza Perez v Canada (Minister of Citizenship
and Immigration), 2011 FC 1 at para 11; and Gao v Canada (Minister of Citizenship and Immigration), 2011 FC 368 at para 5. This Court owes
deference to the Board with regards to the weighing of the evidence: Khatoon
v Canada (Minister of Citizenship and Immigration), 2011 FC 1016 at para
17.
[17]
Where
reasons have been provided, as the Board did in this case, their adequacy is also
to be reviewed upon the reasonableness standard: Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at paras 21-22.
[18]
When
the standard of review is reasonableness, the Court will only intervene when
the decision lacks justification, transparency and intelligibility or
if the decision does not fall within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law: Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47.
Did
the Officer breach her duty of procedural fairness?
[19]
The
applicant alleges that the Officer breached procedural fairness in conducting
the interview in a mix of Hindi and Punjabi which the applicant and her husband
could not properly understand. The Board unreasonably discounted this concern
and did not accept the evidence submitted by the applicant, a receipt for the
interpreter’s services. For the Officer to act both as interviewer and
interpreter was a conflict of interest, according to the applicant.
[20]
The
Board preferred the evidence of the Officer’s contemporaneous notes entered
into the CAIPS system immediately following the interview over that of the
applicant and Mr. Brar. The
CAIPS notes do not support the applicant’s version of the facts. With regard to
the receipt from the interpreter the applicant allegedly brought to the
interview, the Board noted that the piece of paper did not prove the presence
of the interpreter and that it would have been easy to obtain a statement from
the interpreter that he accompanied the applicant to the interview but was not
allowed to stay. These findings of fact were reasonably open to the Board to
make on the evidence that it heard and saw.
[21]
In
my view, the Officer did not play the role of interpreter. She simply
communicated in Punjabi with the couple to ease the interview process. As
stated by Justice Pinard in Toma v Canada (Minister of Citizenship
and Immigration), 2006 FC 779 at paragraphs 32-33, it would be strange –
and I would add inefficient – for the Officer to use an interpreter when he or
she can speak the applicant’s language. I conclude that neither the Officer nor
the Board breached procedural fairness.
Was
the Board’s decision reasonable and based on all the evidence?
[22]
The
applicant argues that the Board unreasonably ignored and rejected portions of
her evidence. My review of the certified tribunal record and of the Board’s
reasons for decision did not find support for these submissions.
[23]
The
Board is presumed to have considered all of the evidence and is not required to
mention every piece of evidence in its reasons: Ramos Villegas v Canada (Minister of Citizenship and Immigration), 2011 FC 699 at para 16; and Florea v Canada (Minister of Citizenship and Immigration), [1993] FCJ No 598 (CA).
[24]
Nevertheless,
the Board, in this case, did conduct a comprehensive review of the evidence and
categorized it in terms of evidence in support of the applicant’s appeal and
evidence against the appeal. The Board then reviewed the negative evidence in
detail to explain why it thought that this evidence significantly undermined the
applicant’s claim.
[25]
The
applicant contends that she suffers from a medical condition that caused her
memory to fail during the interview and Board hearing. However, no evidence was
submitted to establish that this would have had a material effect on the
outcome of the appeal.
[26]
In
applying the standard of review of reasonableness, this Court must demonstrate
deference to the Board’s findings of fact: Ma v Canada (Minister of
Citizenship and Immigration), 2010 FC 509 at paras 31-32. In this case, I
am unable to find that the Board’s findings fell outside the range of possible
outcomes defensible in respect of the facts and law.
Were
the Board’s reasons adequate?
[27]
The
applicant submits that the Board’s reasons were insufficient to provide a
reasonable explanation as to why it reached the conclusion that the marriage
did not respect s.4 of the Regulations. They were not, she contends,
sufficiently clear, precise and intelligible for her to know why her appeal
failed.
[28]
In
Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), above, at
paragraph 12, the Supreme Court of Canada has confirmed that in applying the
reasonableness standard, a reviewing court must pay “respectful attention to
the reasons offered or which could be offered in support of a decision” (see
also para 18).
[29]
In
the present case, the Board reviewed all of the evidence and explained clearly
why it found that the evidence demonstrated that the marriage was not genuine
and was entered into for the purpose of gaining status in Canada. The Board’s reasons sufficiently demonstrate the required justification,
transparency and intelligibility within the decision-making process. The
decision was clear and well explained. I therefore conclude that the Board’s
reasons were sufficient.
[30]
No
serious questions of general importance were proposed for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application is dismissed. No questions are certified.
“Richard
G. Mosley”
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