Date: 20070918
Docket: IMM-1070-07
Citation: 2007 FC 928
Ottawa, Ontario, September 18, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
JASWANT KAUR NIJJAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Is
Kulbir Singh Nijjar the prodigal husband who saw the error of his ways and
remarried his wife out of love for her and family; or did he marry her in order
to gain entry to Canada? The Immigration Appeal Division of the Immigration and
Refugee Board found that the marriage was not genuine and was entered into
primarily in order that Mr. Nijjar acquire status or privilege in Canada,
contrary to Section 4 of the Immigration and Refugee Protection Regulations.
This is a judicial review of that decision.
FACTS
[2]
Their
families arranged that Mr. Nijjar marry Jaswant Kaur in India in 1974.
They may or may not have had a happy marriage until 1991. That year, Mr Nijjar
left his wife and three children in India in order to visit his
sister in Germany for two
months.
[3]
He
ended up staying in Germany five years. He promptly began an affair with
one of his sister’s German girlfriends, and within a month of his arrival claimed
refugee status. His application was apparently a ploy to remain with the German
woman and to gain a work permit. However, he continued to support his wife and
children back in India.
[4]
In
1996, his refugee claim was rejected, and he returned to India, and to his
wife. All was not well. He was unhappy, abusive and had taken to drink. He said
he wanted a divorce. At first his wife would have nothing to do with it, but
after realizing what he had become and how he was treating her, she initiated
divorce proceedings.
[5]
The
divorce proceeded ex parte. The real ground was adultery, but apparently
Mrs. Nijjar was too embarrassed to say so. The divorce petition is not in the
record, but the decree refers to allegations that Mr. Nijjar had thrown her out
of the house for a five-year period, was complaining about the dowry, and was
drinking. Both Mrs. Nijjar and her brother testified at court to the truth of
the allegations.
[6]
The
divorce came through in 1997, and Mr. Nijjar married his girlfriend in 1998,
which allowed him to return to Germany, on one-year renewable
work permits.
[7]
In
2001, their daughter called Mr. Nijjar to say that Mrs. Nijjar was quite ill
and required a heart operation. He returned to India and stayed
with her for several weeks, and also contributed to the cost of the operation.
During this time, he confessed that his marriage in Germany was not
going well and that he wanted reconciliation. He also came to learn that one of
their sons who had moved to Canada was sponsoring Mrs. Nijjar, a sponsorship
which came true in 2002.
[8]
He
divorced his German wife in 2004, and remarried Mrs. Nijjar in 2005, while she
was visiting India. She was
then living in Canada and thereafter attempted to sponsor him.
[9]
The
visa officer was of the view that the marriage was not genuine. Mrs. Nijjar
appealed, but, as mentioned above, the IAD was of the same view.
STANDARD OF
REVIEW
[10]
The
standard of review for a finding of fact that a party is not in a bona fide
marriage is patent unreasonableness (Grewal v. Canada (Minister of
Citizenship and Immigration), 2003 FC 960, [2003] F.C.J. No. 1223; Jaglal
v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 685, [2003] F.C.J. No. 885).
[11]
A
finding in this context is hardly subject to scientific proof, as a party will
not admit that a marriage is not genuine “and was entered into primarily for
the purpose of acquiring any status or privilege under…” the Immigration and
Refugee Protection Act. By necessity, the decision maker has to tread the
line between inference and conjecture.
[12]
As
noted by Lord Wright in Grant v.
Australian Knitting Mills, Ltd., [1935] All. E.R. Rep. 209,
[1936] A.C. 85: "Mathematical, or strict logical, demonstration is
generally impossible; juries are in practice told that they must act on such
reasonable balance of probabilities as would suffice to determine a reasonable
man to take a decision in the grave affairs of life." Direct evidence is
preferable in that it only contains one possible source of error (fallibility
of assertion) while indirect evidence has, in addition, fallibility of
inference (Phipson on Evidence,
15th Ed., 3rd Suppl., paragraph 1.06).
[13]
The
distinction between conjecture and inference is most important. As stated by
Lord Macmillan in Jones v. Great Western Railway Co. (1930), 47 T.L.R.
39 at 45 (H.L.):
The dividing line between
conjecture and inference is often a very difficult one to draw. A conjecture
may be plausible but it is of no legal value, for its essence is that it is a
mere guess. An inference in the legal sense, on the other hand, is a deduction
from the evidence, and if it is a reasonable deduction it may have the validity
of legal proof.
[14]
The
finding of the IAD that the Nijjars’ were untrustworthy was not patently
unreasonable. Mr. Nijjar did not file a refugee claim in Germany because he
feared persecution. He filed the claim in order to obtain a work permit and to
live with a German woman. When asked about the divorce petition in India, Mr. Nijjar
said the whole thing was a lie, except for the drinking. They wanted a divorce
and left it to the lawyer to draft something up. The petition apparently was in
English, a language of which Mrs. Nijjar claims little knowledge. However, this
does not sit well as she and her brother testified in court as to the truth of
the allegations. Apparently, it is the end that counts, not the truth.
[15]
If
the marriage in Germany was not going well, Mr. Nijjar ran the risk
that his work permit would not be renewed. There is ample material in the
record to justify the IAD’s finding as an inference as opposed to outright
conjecture. It is quite true that some of the language in the reasons given by
the IAD is somewhat loose, and some of the points seized upon appear to be
irrelevant, but nevertheless a reasonable deductive thread runs through them.
[16]
As
noted by Mr. Justice Joyal in Miranda v. Canada (Minister of
Employment and Immigration), 63 F.T.R. 81 (Fed. T.D.), [1993] F.C.J. No.
437:
It is true that artful pleaders can find any number of
errors when dealing with decisions of administrative tribunals. Yet we must
always remind ourselves of what the Supreme Court of Canada said on a criminal
appeal where the grounds for appeal were some 12 errors in the judge's charge
to the jury. In rendering judgment, the Court stated that it had found 18
errors in the judge's charge, but that in the absence of any miscarriage of
justice, the appeal could not succeed.
This is the point I am trying to establish here. One may
look at the decision of the Board, then one may balance it off against the
evidence found in the transcript and the evidence of the claimant himself in
trying to justify his objective as well as subjective fears of persecution.
On the basis of that analysis, I find that the conclusions
reached by the Refugee Board are well-founded on the evidence. There can always
be conflict on the evidence. There is always the possibility of an opposite
decision from a differently constituted Board. Anyone might have reached a
different conclusion. Different conclusions may often be reached if one perhaps
subscribes to different value systems. But in spite of counsel for the applicant's
thorough exposition, I have failed to grasp forcefully the kind of error in the
Board's decision which would justify my intervention. The Board's decision, in
my view, is fully consistent with the evidence.
ORDER
THIS COURT
ORDERS that: the application for judicial review is dismissed. There is
no question for certification.
“Sean Harrington”
______________________________Judge
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