Date:
20121018
Docket:
IMM-1409-12
Citation:
2012 FC 1217
Toronto, Ontario, October 18, 2012
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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MANJINDER SINGH
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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
is an application for judicial review of a determination by a Member of the
Immigration Appeal Division (IAD) dated January 17, 2011 upholding an appeal
from a decision of a Visa Officer who had determined that the marriage between
the Applicant (appellant) and a woman in India seeking a permanent resident
visa (applicant) was entered into primarily for the purpose of acquiring status
and privilege under the Immigration and Refugee Protection Act, SC 2001,
c 27 (IRPA) and is not genuine.
[2]
The
Applicant is an adult male person born in India and has been granted permanent
residence in Canada in 1989 as a dependent in his family’s sponsorship. He
claims to have married Gurmeet Kaur in India and seeks approval of her
application for a permanent resident visa in Canada.
[3]
The
application by Ms. Kaur was rejected for two reasons. The first was that the
Applicant, Singh, lacked the requisite mental capacity to consent of his own
free will to enter a marriage and that his capacity to do so was undermined by
undue influence. The second ground was whether the Applicant Singh had
demonstrated on a balance of probabilities that the marriage was not entered
into primarily for the purpose of Kaur gaining privilege under IRPA and that
the marriage was genuine. The matter was determined against the Applicant on
both grounds.
[4]
On
the first ground, mental capacity and undue influence, the Applicant’s own
lawyer (at the time) submitted a report from a Registered Clinical and Forensic
Psychologist, Dr. Berry, who provided a lengthy opinion supported by a lengthy
Intellectual & Psychological Evaluation, in which he concluded in bold
letters:
It the opinion of the undersigned that Mr. Manjinder
Singh was not able to consent to his December 26, 2006 marriage to Ms. Gurmeet
Kaur as a result of undue parental influence and his compromised intellectual
functioning.
[5]
At
the hearing before me Applicant’s counsel sought to distance his client from
this opinion, arguing that Dr. Berry had applied the wrong test and did not
have all the necessary qualifications. I take all this with great
circumspection. The Applicant’s own lawyer submitted this document for
consideration and at no time sought to distance his client from that opinion or
to distinguish it as Applicant’s new counsel seeks to do.
[6]
Instead,
Applicant’s former lawyer, some months later, submitted without comment, a
brief one half page letter from a medical doctor, Dr. Bami, who said that he
had been treating the Applicant for some thirteen years and, in his opinion:
Mr. Singh is a competent individual and has the
mental capacity to understand the concept of marriage and to wilfully make
relevant decisions.
[7]
We
do not know what competence Dr. Bami had for expressing this opinion, what, if
any, evaluations were undertaken, and what criteria were used in arriving at
this assessment.
[8]
In
any event the Member of the IAD carefully evaluated the two opinions and was
satisfied that Dr. Berry was correct in his conclusions. I am mindful of
Applicant’s Counsel’s argument as to whether Dr. Berry relied on the Ontario
Substitute Decisions Act in arriving at his opinion and that, Counsel
argues, is not the test for capacity to marry, which he argues is a lower
standard. However Dr. Berry expressly states that his evaluation was not conducted
pursuant to that Act, per se. Applicant’s lawyer at the time
submitted this opinion to the IAD without in any way seeking to distinguish it
or distance his client from it. In effect I view it as an admission against the
interest of that lawyer’s own client. He must live with it.
[9]
In
any event, there was a second ground for refusal of a permanent residence visa,
that of whether there had been demonstrated on a balance of probabilities that
the marriage had not been entered into primarily for the purpose of gaining
privilege under IRPA and was genuine. The Member of the IAD provided lengthy
and detailed reasons as to why, in her opinion, the Applicant had failed to
discharge the burden upon him in this regard. Notwithstanding Applicant’s
present Counsel’s endeavours to criticize the Member’s findings I find that
they are reasonable having regard to the evidence before her, and should not be
set aside.
[10]
Accordingly,
on both issues, I find that there is no basis for setting aside the IAD
Member’s decision. Applicant’s Counsel urged that I certify a question as to
capacity to marry. This is not an appropriate case to do so given that there
were two valid reasons to deny a permanent resident visa.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
The
Application is dismissed;
2.
No
question is certified; and
3.
No
Order as to costs.
“Roger T. Hughes”
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