Date:
20130620
Docket:
IMM-10810-12
Citation:
2013 FC 662
Ottawa, Ontario,
this 20th day of June 2013
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
JASPREET SINGH SANDHAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a member of the
Immigration Appeal Division (the “IAD”) of the Immigration and Refugee Board,
brought under subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27
(the “Act”). The IAD denied the applicant’s appeal of an immigration officer’s
decision to refuse the sponsored application of the applicant’s spouse,
Harpreet Kaur Sandhar, as a member of the family class.
[2]
The
applicant was born in India and was sponsored to come to Canada by his first wife.
[3]
The
applicant landed in Canada on September 8, 2005. After less than a year of
cohabitation with his first wife, they separated and eventually divorced on
September 11, 2008.
[4]
A
relative of the applicant (the “Broker”) proposed and arranged the marriage
between the applicant and his second wife (“Mrs. Sandhar”), who is a citizen of
India and eight years younger than the applicant. Initial talks between the
Broker and Mrs. Sandhar’s family took place in October and November 2010. On
January 25, 2011, the applicant went to India with his family, where he met
Mrs. Sandhar and her family at her residence on January 26, 2011. The couple
agreed to marry and an engagement ceremony was held at a hotel on January 27,
2011. The marriage took place on February 6, 2011 and was followed by a
honeymoon.
[5]
The
applicant remained in India until March 28, 2011. He returned to India from October 10, 2011 to November 15, 2011.
[6]
The
applicant submitted a sponsorship application for his spouse in June 2011 that
was refused by the visa office on October 21, 2011. The immigration officer was
satisfied that the marriage was not genuine and was entered into primarily for
the purpose of acquiring permanent residence in Canada.
[7]
The
applicant appealed to the IAD. At the time of the appeal hearing, the applicant
was 31 years old. The IAD came to the same conclusion as the immigration
officer. The present application is a judicial review of that decision.
* * *
* * * * *
[8]
The
IAD found it odd that Mrs. Sandhar’s parents would agree to marry their only
child to a divorcee without conducting an independent investigation into the
cause of the breakdown of the applicant’s first marriage, particularly given
the circumstances of the applicant’s first marriage and divorce and
contradictory evidence in the statement of claim for this divorce regarding the
length of time the applicant cohabitated with his first wife. The IAD also
found a lack of explanation for the haste of the engagement ceremony and the
wedding ceremony. Moreover, the explanation for why the couple agreed to marry,
despite their incompatibilities, was not persuasive.
[9]
The
IAD found that mistakes on hotel and restaurant bills from the couple’s
honeymoon compounded its suspicion of the genuineness of the marriage.
[10]
Furthermore,
the IAD determined that the couple had conflicting testimony with respect to
their discussions regarding birth control and having a family.
[11]
The
IAD also noted there was a lack of evidence regarding the couple’s ongoing
relationship since their wedding, given the distance between them.
[12]
The
IAD concluded that the marriage was not genuine and was entered into primarily
for the purpose of gaining status or privilege under the Act.
* * * * * * * *
[13]
The
following provision of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the “Regulations”) is relevant:
|
4.
(1) For the purposes of these Regulations, a foreign national shall not be
considered a spouse, a common-law partner or a conjugal partner of a person
if the marriage, common-law partnership or conjugal partnership
(a)
was entered into primarily for the purpose of acquiring any status or
privilege under the Act; or
(b)
is not genuine.
|
4. (1)
Pour l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait ou le partenaire conjugal d’une personne
si le mariage ou la relation des conjoints de fait ou des partenaires
conjugaux, selon le cas :
a) visait principalement
l’acquisition d’un statut ou d’un privilège sous le régime de la Loi;
b) n’est pas
authentique.
|
* * * * * * * *
[14]
The
respondent submits as a preliminary issue that paragraph 7 and Exhibits “A” and
“B” of the applicant’s affidavit filed on March 11, 2013 should be struck or
given no weight as they refer to evidence concerning Mr. Sandhar’s wife’s
pregnancy which post-dates the IAD decision.
[15]
It
is a well-established principle that a judicial review of a decision must be
based on the evidence before the decision-maker (Sidhu v The Minister of
Citizenship and Immigration, 2008 FC 260 at para 22 and the cases cited
therein). Therefore, I find that paragraph 7 and Exhibits “A” and “B” of the
applicant’s affidavit filed on March 11, 2013 is evidence that is inadmissible,
as it was evidence that was not before the IAD.
* * *
* * * * *
[16]
The
issue in this matter is whether the IAD erred in determining that the
applicant’s relationship was not genuine and was entered into for the purpose
of acquiring any privilege or status under the Act.
[17]
The
reasonableness standard applies to the IAD’s factual findings pursuant to
section 4 of the Regulations (Ma v The Minister of Citizenship and
Immigration, 2010 FC 509 at paras 26 and 30-31; The Minister of
Citizenship and Immigration v Oyema, 2011 FC 454 at para 7).
[18]
In
order for a decision to be reasonable, the Court will consider “the existence
of justification, transparency and intelligibility within the decision-making
process” and “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v
New Brunswick, [2008] 1 S.C.R. 190 at para 47).
* * *
* * * * *
[19]
In
the October 23, 2012 decision of Achahue v The Minister of Citizenship and
Immigration, 2012 FC 1210, this Court provided the following guidance
regarding the nature of an appeal of an IAD determination that a marriage was
not genuine and was entered into for the purpose of acquiring a status under
the Act:
[16] It should be noted
that the appeal to the IAD is a de novo appeal, in which the IAD must
consider afresh whether the person sponsored as a spouse, common-law partner or
conjugal partner is a member of the family class (see The Minister of
Employment and Immigration v. Gill (1991), 137 N.R. 373 (F.C.A.) and Kahlon
v. The Minister of Employment and Immigration (1989), 97 N.R. 349
(F.C.A.)).
[17] As established by
the case law, the onus was on the applicant to demonstrate to the IAD, on a
balance of probabilities, that her spouse met the requirements of section 4 of
the Regulations (see, inter alia, Mohammed v. The Minister of
Citizenship and Immigration, 2005 FC 1442 and Mohamed v. The Minister of
Citizenship and Immigration, 2006 FC 696, 296 F.T.R. 73 [Mohamed]).
[18] With respect to
the relevant issue, namely, whether the marriage is genuine or whether it was
entered into for the purpose of acquiring a status under the Act, it is well
established in the case law that reasonableness is the applicable standard (see
Chen v. The Minister of Citizenship and Immigration, 2011 FC 1268, Singh
v. The Minister of Citizenship and Immigration, 2006 FC 565 [Singh]
and Mohamed, above).
[19] This is a question
of fact that boils down to the credibility of the spouses (Sidhu v. The
Minister of Citizenship and Immigration, 2012 FC 515 [Sidhu]). This
Court must therefore show considerable deference in determining whether the
findings are justified, transparent and intelligible and 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
paragraph 47). It is not open to this Court to reassess the evidence that was
before the panel (Zrig v. Canada (The Minister of Citizenship and
Immigration), 2003 FCA 178, [2003] 3 F.C. 761 at paragraph 42).
[20] This Court must
consider the impugned decision as a whole (Singh and Sidhu,
above) and not engage in a microscopic examination of the evidence; nor may
this Court dissect the panel’s decision (Singh citing Carrillo v. The
Minister of Citizenship and Immigration, 2004 FC 548).
[21] I also adopt the
following comments of my colleague, Justice Robert L. Barnes, in Gan v. The
Minister of Public Safety and Emergency Preparedness, 2006 FC 1329, as my
own:
[16] It is not
sufficient for an Applicant seeking judicial review to identify errors with
respect to a few of the Board’s findings of fact or some weaknesses in its
analysis of the evidence. A decision will be maintained if it can be seen to be
supported by other factual findings reasonably made.
[20]
In
my view, even though considerable deference is due to the IAD’s determination,
the present application ought to be allowed.
[21]
I
am persuaded by Gill v The Minister of Citizenship and Immigration, 2010
FC 122, 362 FTR 281 [Gill], that the IAD erred in its treatment of the
arranged marriage and the compatibility of the couple. As Justice Robert Barnes
stated at paragraph 7 of the decision:
[7] When assessing the
genuineness of an arranged marriage, the Board must be careful not to apply
expectations that are more in keeping with a western marriage. By its very
nature, an arranged marriage, when viewed through a North American cultural
lens, will appear non-genuine. When a relationship involves parties exposed to
two cultures, Indian norms and traditions concerning marriage and divorce must
also be applied with some caution.
[22]
In
Gill, Justice Barnes proceeded to analyze the IAD’s treatment of the
arranged marriage by stating the following:
[10] According to
the parties this was an arranged marriage which had been negotiated by their
extended families. The couple met for the first time only seven days before
their wedding on March 25, 2005 in India and have only cohabited for about 40
days since that time. In this context the Board’s apparent concern that
Mr. Sandhu knew very little about Ms. Gill’s life in Canada was misplaced. The same can be said for their disagreement about whether they had
first spoken by telephone. In the situation of a marriage arranged by
third-parties, this is a largely irrelevant point and, in any event, easily
forgotten with the passage of time.
[…]
[12] The Board’s
bare conclusion that Mr. Sandhu and Ms. Gill were not compatible also ignores
their uncontradicted evidence that they were both Sikhs, they both spoke
Punjabi, they both had grade-5 educations, they both held comparable levels of
employment, and they both came from rural settings. The only potential
contradiction to this was the Board’s observation that their respective ages
and Ms. Gill’s status as a divorced person were inconsistent with
prevailing cultural norms in India. The idea of a preferred age differential
does not mean that marriages that fall slightly outside of the range do not
occur. The same can be said for the Indian cultural view on divorce.
Presumably marriages between previously unmarried persons and divorced persons
do take place in India. The evidence also indicated that the Indian cultural
stigma concerning divorce was diminished where no children were born of the
first marriage and where the divorce was seen as the fault of the other party.
In this case, Ms. Gill’s divorce was said to be the result of her first
husband’s adultery and there were no children of that relationship. The Board
failed to take any note of these highly relevant considerations and thus failed
to fulfill the obligation to consider all of the evidence and not just the
evidence that confirmed its negative conclusion.
[Emphasis
added]
[23]
Similarly,
the present case involves an arranged marriage negotiated by the couple’s
extended families. The couple met for the first time only eleven days before
their wedding on February 6, 2011 and in the record before the IAD, the couple
had only been physically in the same country for about 65 days since their
marriage. Given the circumstances of this marriage arranged by third parties, I
believe the IAD’s concern over the fact that the couple agreed to marry after
speaking to each other for only 15 to 20 minutes is misplaced.
[24]
The
IAD repeatedly mentioned its concern that Mrs. Sandhar’s family had not
undertaken background checks related to the applicant’s previous marriage and
divorce, given that the applicant’s first marriage only lasted a few months and
that this should have incited concern on the part of Mrs. Sandhar’s family.
However, the respondent has not pointed to any evidence in the record that
supported the IAD’s concern that it was odd the family had not looked into
this. On the contrary, the applicant refers to testimony before the Board by
Mr. Bains, who is Mrs. Sandhar’s brother-in-law and was the only person
tasked by Mrs. Sandhar’s family to do a background check of the applicant. Mr.
Bains testified that Mrs. Sandhar’s family knew about the divorce but only
asked him to look into the applicant’s character, as found at pages 446 and 447
of the tribunal record:
CROSS-EXAMINATION OF MR. BAINS BY MR. MacDONALD
Q …How many times has Jaspreet Singh been
married?
A Just two times. Like his
(indiscernible) divorce and now with my wife’s niece.
Q And is divorce common in the Punjab?
A At this time, yes. I’d
say. It is but when I got married -- let me tell you what my -- I got married
20 years ago. I didn’t see my wife since my first night. We are living since 20
years together but now everything’s changed so different opinions and different
lot of modernization and everything’s coming up.
Q When did you first
learn that Jaspreet Singh had previously been married?
A It’s when this – Kurwant
[Mrs. Sandhar’s mother] called me then she – we discussed briefly because she
was told by the person interviewed that he (indiscernible), I think. Then I
told her “Okay. I can check the background but people get divorced. Some good
people can get divorced as well. It’s not like somebody got divorced and he’s a
bad person.”
Q So what did you learn about Jaspreet
Singh’s divorce?
A All [Mrs. Sandhar’s
mother] told me he’s been divorced once in Canada and now he’s living by
himself some – in Kelowna. This is his name. Can you find out his character
now?
Q So when you contacted
your friend, I believe it was Karwinder Singh --
A Karwinder Singh.
Q Yeah, what did Karwinder Singh tell you
about the divorce?
A He didn’t tell me anything, I didn’t ask
him about it.
[25]
Moreover,
while the IAD was concerned with the issue of the applicant’s divorce, the IAD
also repeatedly found that there were incompatibilities between the applicant
and his wife (see paragraphs 9 and 13 of the decision). Similar to what was found
in Gill, at paragraph 12, in my view, the IAD’s finding that the couple
had many incompatibilities ignored the uncontradicted evidence before the IAD
that they are both Sikhs, both speak Punjabi, both originate from small
villages near one another in India, both want a family and are only eight years
apart in age.
[26]
I
disagree with the respondent that Gill is distinct from the case at
hand. Although in Gill, at paragraph 8, this Court recognized the
significance of a child when assessing the legitimacy of a marriage, in no way
did the Court indicate that the fact the couple had a child was determinative
of the decision.
[27]
In
my view, the above errors are significant and important enough to render the
impugned decision unreasonable and to warrant the intervention of the Court.
* * *
* * * * *
[28]
For
the above reasons, the application for judicial review is allowed and the
matter is remitted to a differently constituted panel of the IAD for
redetermination.
[29]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for
judicial review is allowed. The decision of a member of the Immigration Appeal
Division (the “IAD”) of the Immigration and Refugee Board of Canada, dated
September 27, 2012, is quashed and the matter is remitted to a differently
constituted panel of the IAD for redetermination.
“Yvon Pinard”
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