Date: 20071015
Docket: IMM-1314-07
Citation: 2007 FC 1051
Ottawa, Ontario, October 15,
2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
JASWINDER
KAUR DHALIWAL
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This case
concerns the arranged marriage between Jaswinder Kaur Dhaliwal (the applicant),
a 30-year old divorcee, and Sukhdev Singh Dhaliwal (the husband), a 24-year old
man who has never been married before. Both are East Indian and of the Sikh
religion. The applicant sponsored her husband as a member of the family class.
The Visa Officer rejected the application as he found the marriage not to be
genuine and primarily entered for the purpose of gaining status in Canada. The Immigration Appeal
Division (the IAD) confirmed the Visa Officer’s findings. The applicant then
filed an application for judicial review of the IAD’s decision. For the reasons
that follow, I would dismiss this application for judicial review.
BACKGROUND
[2]
Ms. Dhaliwal
is a Canadian citizen who immigrated to Canada from India in 1993. She obtained her Canadian
citizenship through the sponsorship of her then future husband. She separated
six years later in 1999 and divorced on July 2004 because of her husband’s alcohol
and drug problems. She has two children from this marriage, a boy and a girl.
[3]
The
applicant, Sukhdev Singh Dhaliwal is an agricultural worker who lives on a farm
which he owns in India. He had never been married
before.
[4]
In
September 2004, Ms. Dhaliwal’s uncle and the husband’s brother-in-law arranged
for the two to speak. Ms. Dhaliwal then flew to India with her children to meet the applicant.
They first met on November 29, 2004. Ms. Dhaliwal’s main concerns in terms of a
suitable partner were that he did not drink alcohol nor eat meat and that he shall
treat her children well, as these were among the problematic issues in her
previous marriage.
[5]
The
arranged marriage was celebrated on December 6, 2004 in the presence of 150 to
200 attendees. Ms. Dhaliwal’s children and parents were not present. After the
wedding, Ms. Dhaliwal and her children stayed in India for three weeks. She visited her husband
alone in April but she had to come back earlier than planned as her son was
sick. She said she phoned her husband two to three times a week.
[6]
On
February 3, 2005, she sponsored her husband in his application for permanent
residence in Canada. An interview with the
husband took place in India on April 18, 2005.
[7]
The Visa
Officer refused the application as he found the wedding not to be genuine for
the purposes of section 4 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the Regulations). He based his decision
on the grounds that the applicant and her husband were incompatible in terms of
marital backgrounds. Ms. Dhaliwal is a divorced woman as opposed to the husband
who never married and is 6 years younger. He found this marriage to be unlikely
in the cultural context of a Sikh arranged marriage. In addition, the husband,
at the interview that took place on April 18, 2005, could not provide reasons
for his marriage to a divorced woman. The Visa Officer also considered it unlikely
that no further investigation of Ms. Dhaliwal was made by the husband’s family
to determine whether or not the marriage is desirable. He also found it
improbable that the marriage was held after such a short period of time and
without having arranged a meeting with Ms. Dhaliwal’s children. Furthermore,
the Visa Officer found the wedding pictures staged. Finally, he remarked that
important members of the Ms. Dhaliwal’s family were absent and that the applicant
and her husband do not appear to communicate with each other on a regular
basis.
IMPUGNED DECISION
[8]
Ms.
Dhaliwal appealed this Visa Officer’s refusal to issue a permanent resident
visa to her husband before the IAD. Ms. Dhaliwal, her husband and son testified
at the IAD hearing.
[9]
The IAD
analysed the genuineness and the purpose of the wedding in order to determine
whether or not section 4 of the Regulations applied. The officer found
Ms. Dhaliwal credible. He accepted the facts that she had a difficult first
marriage, that her child suffers from health issues, and that she is a hard
worker. He also believed her motivations to remarry: companionship, financial
and emotional support for herself and her children.
[10]
The IAD
officer however found the husband less credible. He considered unbelievable the
fact that he could not remember his previous application for a visitor visa,
that he regards Ms. Dhaliwal’s children like his own even if he did not meet
them before the marriage as well as his lack of knowledge of details regarding
his wife’s work.
[11]
He then
stated that there is not a “great deal of affection” between them. He
considered they have less knowledge of each other that he would expect of
married persons.
[12]
Finally,
he reiterated that he found Ms. Dhaliwal credible but was not convinced by the
testimony and evidence presented by the husband that the primary purpose of the
marriage is not merely to come to Canada.
The IAD officer then concluded that the onus of proof was not met on
determining the genuineness of the marriage.
ISSUES
[13]
This
application for judicial review essentially raises five issues:
• What
is the appropriate standard of review?
• Did the IAD fail to
observe the principle of procedural fairness?
• Did the IAD err in
failing to consider the “new evidence” provided by the applicant?
• Did the IAD fail to
consider the cultural context?
• Did the IAD err in
making erroneous finding of fact?
STATUTORY SCHEME
[14]
Section 13
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act)
provides that a Canadian citizen or permanent resident can sponsor a member of
the family class. However, section
4 of the Regulations establishes an exception to that provision:
|
4. For the purposes of these Regulations,
a foreign national shall not be considered a spouse, a common-law partner, a
conjugal partner or an adopted child of a person if the marriage, common-law
partnership, conjugal partnership or adoption is not genuine and was entered
into primarily for the purpose of acquiring any status or privilege under the
Act.
|
4. Pour l’application du
présent règlement, l’étranger n’est pas considéré comme étant l’époux, le
conjoint de fait, le partenaire conjugal ou l’enfant adoptif d’une personne
si le mariage, la relation des conjoints de fait ou des partenaires conjugaux
ou l’adoption n’est pas authentique et vise principalement l’acquisition d’un
statut ou d’un privilège aux termes de la Loi.
|
[15]
Section
4(3) of the previous Immigration Regulations established a test in order
for a spouse to be disqualified as a member of the family class. It had to be
proven that a spouse entered into the marriage primarily for the purpose of
gaining admission to Canada as a member of the family
class; and that it was not his or her intention to reside permanently with the
other spouse.
[16]
Since the
coming into force of section 4 of the Regulation, the residency
intention was abolished and a two pronged test was established. A foreign
national is not considered a spouse when the marriage is not genuine; and was
entered into primarily for the purpose of acquiring any status or privilege
under the Act. Justice Mosley analysed this provision in the following
terms:
[18] It is clear that the test to be
applied under the old regulation for determining whether a marriage was genuine
was the time of the marriage itself. However, the new regulation does not state
that this is the time at which the relationship is to be assessed. It speaks in
the present tense for a determination of the genuineness of the relationship
and in the past tense for assessing the purpose for which it was created. This
seems to be consistent with the practice followed by Immigration Officers in assessing
spousal sponsorship applications. It appears, from the cases which the Court
has seen, that in interviews with claimants and their putative spouses the
officers focus on whether there is a continuing relationship.
[19] The drafters of section 4 may thus
have left the door open to marriages of convenience found to be sincere and
enduring at the time of the assessment. But does that avail the applicant in
these proceedings? Regardless of the interpretation to be given to section 4 of
the regulations, the officer in this case, in the exercise of her discretion,
determined that the common law relationship between the applicant and his
spouse was not genuine. It is up to the applicant to demonstrate that this
finding was made in reviewable error.
See: Donkor v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1089.
[17]
The
two conditions are conjunctive and, in order to succeed in her judicial review,
the applicant has to demonstrate that a reviewable error occurred in respect to
only one of these two branches of the test, see: Khan v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1490 at paras. 4-5.
ANALYSIS
Standard of review
[18]
Both
parties agree the applicable standard of review is patent unreasonableness
for findings of fact by a Tribunal in sponsorship matters and on credibility
findings, see: Canada (Minister of Citizenship
and Immigration) v. Navarrette, 2006 FC 691 at para. 17; Singh v. Canada (Minister of Citizenship
and Immigration),
2005 FC 1673 at para. 6. In Rosa v. Canada (Minister of Citizenship
and Immigration),
2007 FC 117 at para. 23, Justice Barnes also observed that the determination of
the genuineness of a marriage is mainly factual and “require[s] the sorting and
weighing of evidence and the assessment of credibility – a process which the
Board is well situated to carry out”. Consequently, the Federal Court should
review these matters with the greatest amount of deference to the impugned
decision-maker.
[19]
As
for questions of procedural fairness, the standard of correctness applies, see:
C.U.P.E. v. Ontario (Minister of Labour), [2003]
1 S.C.R. 539;
Moreau-Bérubé v. New Brunswick (Judicial Council), [2002]
1 S.C.R. 249;
Canada (Attorney General) v.
Sketchley,
2005 FCA 404.
Did
the IAD fail to observe the principle of procedural fairness?
[20]
The
applicant submits
that there was a breach of procedural fairness because the IAD did not take
into consideration the video of her marriage. In his refusal letter, the Visa Officer
stated a concern that the wedding photos looked staged. The applicant thus
submitted to the IAD a video of the wedding to meet this concern. However, that
video was not initially admitted into evidence at the hearing because the IAD
wished to ascertain the necessity of it, mainly as there was a time constraint.
[21]
At the end of the
hearing, the IAD asked the applicant’s counsel if he had something to add:
“…All right. So that’s your case then?” The applicant’s counsel responded in
the affirmative. The IAD member then mentioned that the video was not part of
the case and thus, that he will return it to the applicant. Despite these
opportunities given by the IAD member, the applicant’s counsel did not make any
attempt to revisit the question of the video evidence. Therefore, I believe the
applicant clearly waived her opportunity to introduce this evidence.
[22]
In
any event, I do not believe that the viewing of a wedding video would have made
any difference in the IAD member’s finding that the marriage was not genuine. Consequently,
I can not agree with the applicant’s submission of a breach of procedural
fairness.
Did
the IAD err in failing to consider the “new evidence” provided by the
applicant?
[23]
The applicant
considers that the IAD failed to take into account the documentary evidence that
was tendered to rebut the Visa Officer’s conclusion about lack of regular
contact: an airline ticket and related documentary evidence; evidence of
telephone contact; and written correspondence. In fact, one of the Visa
Officer’s concerns was that “you and your sponsor do not appear to communicate
with each other on a regular basis. There is limited evidence of contact
between you and your sponsor”.
[24]
The IAD officer
stated in his reasons that “all the circumstances and evidence must be weighed
and looked at as a whole so the decision is a reasonable conclusion flowing
from the facts presented”. There is however no specific mention of this
documentary evidence in the IAD’s reasons.
[25]
Nevertheless, the IAD
member did accept they were talking by phone two or three times a week and
accepted that the applicant visited her husband in 2006 (IAD reasons, at para.
8). Even if the airplane ticket and the evidence of telephone contact were not
expressly mentioned, I believe these findings imply that he did consider them.
The written correspondence was however not mentioned whatsoever in the IAD’s
decision.
[26]
Notwithstanding, I
do not believe this justifies allowing the judicial review. The IAD member did
not expressly refer to the written correspondence but I believe it is of minor
significance to the ultimate decision. He did consider most of the evidence and
I do not believe he had to mention every piece of evidence.
[27]
In
Ozdemir v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 331, the Federal Court of Appeal
held that:
[10] Nor will a reviewing court infer
from the failure of reasons for decision specifically to address a particular
item of evidence that the decision-maker must have overlooked it, if the
evidence in question is of little probative value of the fact for which it was
tendered, or if it relates to facts that are of minor significance to the
ultimate decision, given the other material supporting the decision.
Even if he had considered the
correspondence, I do not think it would have had an impact on his final
decision. The IAD member had concerns about the limited knowledge by the
parties of each other. The correspondence does not address this concern. They
are general, undated and without any information contradicting the IAD’s
finding.
Did
the IAD fail to consider the cultural context?
[28]
I agree with the applicant
when she says the IAD had to take into account the particular cultural
background. However, I do not think the IAD member was culturally insensitive or
that his findings were patently unreasonable.
[29]
In fact,
the IAD member did take into consideration the cultural context and found that
the arranged marriage did not conform to Sikh tradition. He was particularly
disturbed by the lack of concern on the part of the husband regarding the
previous divorce of the applicant; the lack of thorough and independent
investigation by the husband’s family; the significant age gap; the hasty
wedding; the lack of participation of important family members; and his limited
knowledge of the applicant and her life in Canada.
[30]
Against
the overwhelming weight of the evidence that this marriage was not in conformity
with Sikh culture, the applicant main explanation for agreeing to this arranged
marriage was destiny. She submits the IAD did not demonstrate openness to the
concept of choosing spouses on the basis of destiny. Notwithstanding, the
applicant did not provide evidence as to the role of destiny in Sikh culture. I
therefore can not agree with her on the alleged cultural insensitivity
regarding destiny.
[31]
Furthermore,
I believe that the IAD was not being insensitive in questioning the sincerity
of the husband’s contention that he regarded the applicant’s children as his
own. At the hearing before the IAD,
the applicant’s counsel tried to explain the husband’s belief by referring to
Indian culture. However, he did not give any corroborating evidence on this
matter. The IAD concluded that “[h]e was quick to state that he regarded the
appellant’s children as his own. However, he did not meet them until after the
marriage even though they were in India before the marriage”. I do not think
this conclusion is patently unreasonable.
Did the IAD err in making
erroneous finding of fact?
[32]
The applicant states
she has difficulty understanding how the IAD could arrive at the conclusion
that her husband had not met the children prior to the wedding despite their
three corroborating testimonies. The applicant submits that the IAD had concern
about the credibility of the husband but never challenged her credibility or
her son’s. She mentioned that no explanation was provided as to why their
testimony was rejected on this point.
[33]
The IAD had the
prerogative to prefer the husband’s original version. In fact, in his first
interview before the Visa Officer’s decision, he said he did not meet the
children until 4 days after the marriage. The respondent submits, rightly so in
my view, that the husband could have changed his version after he learned of
the Visa Officer’s reasons for refusal of his application. Furthermore, the
fact that the applicant and her son corroborated his second version at the
hearing is not relevant; I would simply point out that they are not independent
objective witnesses.
[34]
The
applicant then relies on Gill v. Canada (Minister of
Citizenship and Immigration), IAD VA6-00327 [Gill] to support
her contention that when there are conflicting versions, viva voce
evidence at a hearing is to be preferred over the CAIPS notes of an interview.
However, the facts here are distinguishable from those in the decision Gill
where there were contradictions between viva voce evidence of a credible
witness and the CAIPS notes of an interview conducted through an interpreter
whose proficiency was not established. Here, the husband was found not credible
by the IAD member and, moreover, the interview was conducted in his own native
language. Although the applicant would have preferred the IAD to accept the
second version, it was reasonably open to the IAD to prefer the husband’s
original version.
[35]
Finally,
the applicant contests the IAD’s conclusion that there was a lack of affection
between the parties. She believes that it could not assess the parties’
affection in such an unfamiliar and stressful place, especially when the
parties expressed themselves through an interpreter. Even if I were to find the
IAD’s conclusion hazardous on this point, the decision has to be reviewed globally
and this finding does not damage the overall result.
[36]
I
would therefore dismiss this application for judicial review.
JUDGMENT
THIS COURT ORDERS that the
application for judicial review is dismissed.
"Yves
de Montigny"
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