Date: 20071005
Docket: IMM-625-07
Citation: 2007
FC 1028
Ottawa, Ontario, October 5, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
GURPAL SINGH BHANGO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Gurpal
Singh Bhango married Ranjit Kaur in Montréal in 2002. In 2004, he sought
Canadian permanent resident status from within Canada, with the sponsorship of his wife. The
next year, the immigration policy changed in order to ease sponsorship of a
spouse from within Canada.
[2]
Mr. Bhango
is an Indian citizen, whose claim for refugee status was dismissed years ago.
His wife is a Canadian permanent resident. However section 4 of the Immigration
and Refugee Protection Regulations provides that no foreign national shall
be considered a spouse “…if the marriage… is not genuine or was entered into
primarily for the purpose of acquiring any status or privilege under the
[Immigration Refugee Protection] Act” (IRPA). The officer who considered
Mr. Bhango’s case was of the view that he was in bad faith and so rejected
the sponsorship application. Then, she considered humanitarian and
compassionate considerations overall, including whether he would be put to
undue hardship if returned to India. She found his circumstances
did not warrant allowance to remain in Canada while his application for permanent
residency was being processed, and so she dismissed his application. This is a
judicial review of that decision.
[3]
Although I
have come to the conclusion that judicial review should be granted and the
matter sent back to another officer for redetermination, I must emphasize that
there is no evidence of bad faith on the part of the officer, and no reason to
depart from the rule that these matters are dealt with on a no-cost basis.
[4]
In the
case of an H&C application, with spousal sponsorship, which had been filed
before the new policy had come into force 18 February 2005, the application
must be looked at in terms of the new policy, and if wanting is subject to a
normal H&C review (Djeukoua v. Canada (Minister of Citizenship and
Immigration, 2006 FC 1213, [2006] F.C.J. No. 1509). Having found that the
marriage was not genuine or was entered into primarily for the purpose of
acquiring status or privilege under IRPA, it was the officer’s duty to predict
his circumstances if he were returned to India. It was quite appropriate for
her to seek the opinion of a pre-removal risk assessment (PRRA) officer.
[5]
In my
opinion, the decision was patently unreasonable because it focused on the
circumstances in which the couple met, rather than the circumstances of their
marriage. The Immigration and Refugee Board has published guidelines which are
quite helpful in assessing the genuineness, and the intimacy of an alleged
conjugal relationship. That analysis was not done. There is nothing to suggest
that Mr. Bhango and Ms. Kaur are not truly husband and wife, or only became so
sometime after their marriage in October 2002.
[6]
Mr. Bhango
had been married before in India. He produced an Indian Court certificate of divorce issued
in 2000. It indicates that his former wife was the petitioner and that the
matter proceeded ex parte. There were number of grounds, including
desertion. It is an uncontested point of fact that Mr. Bhango was in Canada at that time, not India.
[7]
However,
the authorities here received an anonymous denunciation that the Indian divorce
was fraudulent. It seems that the allegation was not that the court certificate
is counterfeit, but rather that a fraud had been practiced on the Indian Court. When confronted with this
allegation at an interview, Mr. Bhango said that he had heard that his wife had
intended to instigate divorce proceedings, but he only learned of the divorce
some time later, through his father. He was privy to nothing. It is noteworthy
that the judgement indicates that service of the petition upon him had been non-personal
service in India.
[8]
The
officer had some concerns with the fact that Mr. Bhango and Ms. Kaur entered
into a non-legal Sikh religious marriage ceremony in October 2001. He had told
Ms. Kaur that he was divorced. However, she would not allow him into her bed
without at least a religious ceremony. Yet, in subsequent income tax returns
and in an earlier H&C application, he mentioned that he was still married
to his first wife.
[9]
It may
well be that Mr. Bhango was once a rake and a rambling man, not above a little
fiddling on his income tax returns. Accepting the officer’s findings that he was
not credible in this regard, there has to be a connection between credibility
issues and section 4 of the Regulations. That link is missing (Awuah v.
Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1873
(F.C.T.D.) and Owusu v. Canada (Minister of Citizenship and Immigration), 2006 FC 1195, [2006] F.C.J.
No. 1488). However, the declaration he made to the Quebec authorities at the time of his civil
marriage properly identifies the date of his Indian divorce. The Indian certificate
is presumed valid, and there was no adequate examination which could lead to
any suggestion that Mr. Bhango is a bigamist.
[10]
Although
as per the Regulations, Mr. Bhango’s counsel stipulated French as the language
of the proceedings, and although written and oral argument was in French, as
Mr. Bhango personally has better knowledge of English, he requested that these
reasons be first delivered in that language. The style of cause is adjusted
accordingly.
[11]
Consequently,
the application for judicial review shall be allowed. There shall be no order
as to costs.
ORDER
THIS COURT ORDERS that application is granted and
the matter is referred back to a different officer for redetermination. There
is no question of general importance to certify.
“Sean
Harrington”
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