Docket: IMM-5320-13
Citation:
2015 FC 72
Toronto, Ontario, January 19, 2015
PRESENT: The
Honourable Mr. Justice Diner
|
BETWEEN:
|
|
SUCUMAR NADASAPILLAI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review,
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], of the decision of the Immigration Appeal Division
[IAD, Panel] of the Immigration and Refugee Board, dated July 25, 2013
[Decision], which refused the Applicant’s appeal.
II.
Facts
[2]
The Applicant is a permanent resident of Canada. He married Bhanu Rekha Raghu Raman [Ms. Raman] in India on June 12, 2010. Ms. Raman
is a citizen of India. She applied for a permanent resident visa under the
family class category, sponsored by the Applicant.
[3]
The visa officer at the Canadian visa post in New Delhi refused the application on April 7, 2011 on the grounds that Ms. Raman was not
part of the family class. The visa officer found that Ms. Raman had not had the
legal capacity to marry the Applicant because she had not divorced her first
husband prior to the second marriage. The officer also had concerns about the
genuineness of the marriage.
[4]
The Applicant appealed to the IAD from the visa
officer’s decision, which appeal was refused by the IAD. The IAD found that
although Ms. Raman was not legally married before and did have the legal
capacity to marry the Applicant, it found that her current marriage was not
genuine and was entered into primarily for the purpose of acquiring a privilege
under IRPA.
[5]
The IAD stated 3 concerns with regard to the
genuineness and motivation for the marriage:
1.
The vagueness around the role Siva (the
introducer) played in fostering a relationship between the Applicant and Ms.
Raman, in particular, the nature of Ms. Raman’s relationship with Siva;
2.
The haste with which the Applicant and Ms. Raman
were married, given their age and experience; and
3.
Their post-wedding communication.
III.
Analysis
A.
Standard of Review
[6]
Due to section 4 of the Immigration and
Refugee Protection Regulations, SOR/2002-227, the Applicant has an onus to
establish that the spouse is a member of the family class, by establishing that
the marriage (1) is genuine; and (2) was not entered into primarily for the
purpose of acquiring any status or privilege under IRPA.
[7]
The Applicant argues that the IAD erred in its
conclusion that the Applicant had not established that the marriage was
genuine, and that it was not entered into primarily for an IRPA purpose.
[8]
This is a question of fact and is reviewable on
a standard of reasonableness (Singh v Minister of Citizenship and Immigration,
2012 FC 23 at paras 16-17; Dunsmuir v New Brunswick, 2008 SCC 9 at para
51) [Dunsmuir]. As such, the Court’s role is to determine whether the
IAD’s Decision “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir at para 47).
[9]
Significant deference is owed to the IAD on
matters of credibility, especially where the IAD has had the opportunity to
hear and observe the testimony of the applicant (Granata v Minister of Citizenship
and Immigration, 2013 FC 1203 at para 28).
B.
General Credibility
[10]
I recognize that, per the applicable standard of
review, the IAD had the opportunity to hear and observe the Applicant give his
evidence, and to hear Ms. Raman give her evidence, in an oral hearing. It is
therefore in the best position to assess their credibility and the genuineness
of their marriage. Justice Beaudry stated in Sanichara v Minister of Citizenship
and Immigration, 2005 FC 1015:
[20] The IAD, in a hearing de novo, is entitled to
determine the plausibility and credibility of the testimony and other evidence
before it. The weight to be assigned to that evidence is also a matter for the IAD to determine. As long as the
conclusions and inferences drawn by the IAD are reasonably open to it on the record, there is no
basis for interfering with its decision. Where an oral hearing has been held,
more deference is accorded to the credibility findings.
[11]
However, the Court has also found that when
making findings of credibility, they must be clear. In Hilo v Canada (Minister of Employment and Immigration), [1991] FCJ No 228 (CA) [Hilo], Heald JA
held as follows:
The appellant was the only witness who gave
oral testimony before the Board. His evidence was uncontradicted. The only
comments as to his credibility are contained in the short passage quoted supra.
That passage is troublesome because of its ambiguity. It does not amount to an
outright rejection of the appellant's evidence but it appears to cast a
nebulous cloud over its reliability. In my view, the Board was under a
duty to give its reasons for casting doubt upon the appellant's credibility in
clear and unmistakable terms. The Board's credibility assessment quoted
supra is defective because it is couched in vague and general terms. The Board
concluded that the appellant's evidence lacked detail and was sometimes
inconsistent. Surely particulars of the lack of detail and of the
inconsistencies should have been provided. Likewise particulars of his
inability to answer questions should have been made available.
[Emphasis
added]
[12]
Hilo was a pre-Dunsmuir
decision, but the same principles have been upheld since Dunsmuir. For
example, Justice Mactavish held in Zaytoun v Canada (Citizenship and
Immigration), 2014 FC 939 [Zaytoun] :
[7] The Refugee Protection Division is
required to make negative credibility findings in clear and unmistakeable
terms: Hilo v. Canada (Minister of Employment and Immigration
(1991), 130 N.R. 236, 15 Imm. L.R. (2d) 199 (F.C.A.). In this case, the
Board appears to have had doubts about Mr. Zaytoun’s credibility. … To
quote the Federal Court of Appeal in Hilo, this statement “does not amount to an outright rejection of the appellant’s
evidence but it appears to cast a nebulous cloud over its reliability”:
above at para. 6.
[8] The Board cannot have it both
ways. … If the Board did not accept Mr. Zaytoun’s testimony on this point,
it was required to say so clearly, and to provide a proper credibility analysis
justifying its findings.
[Emphasis added]
[13]
In this case, I am of the opinion that all three
of the credibility findings were problematic in and of themselves. Any one of
them are sufficient to overturn the decision because of the small number of
credibility concerns (i.e. three) – given a tribunal record of some 459 pages,
including a hearing record of over 115 pages. I would also note that going
into the hearing, the main issue had been credibility concerning the
Applicant’s prior relationship and ability to marry, because that is the basis
upon which the visa officer rejected the original spousal sponsorship, which
refusal became the subject of the IAD’s de novo appeal. The IAD, and
previously the visa officer, spent the majority of its proceeding, and then
decision, hearing and writing about that very issue. Ultimately, the IAD
concluded that there was no issue with the legal capacity for the Applicant’s
spouse to marry the Applicant.
[14]
The Panel went on to elaborate on the three
areas where it had credibility issues listed in paragraph [5] above, those
being (i) Siva, the introducer, (ii) marriage haste and (iii) lack of
communication. As alluded to, each of the findings when viewed in isolation is
problematic, which is compounded considering that the Panel conjoined (i) and
(ii) when it stated:
[43] When the panel considers these two
factors together, the panel can only conclude that this marriage had
been arranged, through Siva, some time before the Appellant’s arrival in India.
(AR, p 16) [Emphasis added]
[15]
On the issue of the haste of the marriage, the
Panel finds that:
[42] The marriage between the Appellant
and the Applicant was, in the panel’s view, arranged in considerable haste.
This is not a situation of a marriage of two young people arranged by their
parents, where, in the Appellant’s and Applicant’s community, personal feelings
might have little bearing on the arrangement and it is simply a matter of
“getting on with it”. The Appellant and the Applicant are mature individuals.
The Applicant had an unpleasant experience in her relationship with Mr. Raman
and evidently presented herself and thought of herself as married for years. It
is difficult to understand why she would not exercise more caution in
committing herself to the Appellant, with whom she became betrothed within ten
days of meeting him and married him within less than four weeks.
(AR, p 16)
[16]
I do not find that the conclusion with respect
to the “haste” of the marriage was justifiable,
when viewed through the prism of Dunsmuir’s reasonability test. The
Panel was aware that this was an arranged meeting and, for all intents and
purposes, marriage. The Panel found issues with the speed of the wedding,
which took place within 40 days of the original introduction of the couple, and
within 10 days of the couple’s first in-person meeting. Both parties gave
consistent answers that they had decided to pursue the relationship and
commitment within about 3 days of their first meeting. Both explained why they
felt ready for this.
[17]
The Panel criticized the haste based on Ms.
Raman’s troubled past relationship and marriage, and the fact that Ms. Raman
was 38 years of age at the time, i.e., getting on in age for a single mother.
There are two reasons that this is a weak conclusion.
[18]
First, one can easily understand why Ms. Raman
was ready for the companionship that she clearly explained she had longed for:
older couples can be quick in deciding to get married (although haste is
certainly not the exclusive domain of any particular age). Older people are
often ready to move more quickly into a lifelong commitment, as they know what
they want. As Ms. Raman stated in her testimony, “I am
getting older. I am very old now and I don’t know how long I’ll be able to
live. … I found him a good person. So I took two or three days… to think about
it and then decide it” (Transcript, CTR, p 430).
[19]
Second, if the basis of finding haste was one
steeped in a certain culture, it is unfair. In the context of the Refugee
Protection Division, the Court has found that where the Board [RPD] draws
plausibility conclusions about evidence without considering the proper cultural
and socio-political context, this can constitute grounds for quashing a
decision (see: Bhatia v Canada (Minister of Citizenship and Immigration),
2002 FCT 2010 at para 16) [Bhatia] . The Board, must be careful about
imposing western or Canadian paradigms on non-western culture (Bains v Canada (Minister of Employment and Immigration) (1993), 63 FTR 312 [Bains] and I
recognize that both Bains and Bhatia involved refugee claims, not
sponsorship appeals.
[20]
My conclusion on the Panel’s “haste” finding is that it was speculative at best, or
otherwise made without taking into account non-western values.
[21]
On the introducer, the Panel makes much of an
inconsistency that seems more of a point of confusion, when reading the
transcript. The Panel finds that Ms. Raman was inconsistent about the meeting
with Siva, the introducer, who intended to create a successful match. It
concluded that “the Applicant is attempting to downplay
her contact with Siva” (Decision, CTR, p 16, para 41). However, it was
an erroneous finding of fact, made without regard to all the material before
it, for the IAD to find that this was an inconsistency.
[22]
The Panel, after explaining confusing testimony
and the elements of contradiction in regard to Siva, quotes Ms. Raman as
stating that “we never met together and spoke”
(Decision, CTR, p 15, para 40). However, when one reviews the transcript, there
was clearly confusion, whether in interpretation or otherwise, in that Ms.
Raman believed she had been asked whether the three of them had ever met alone
and spoken (Transcript, CTR, pp 431-432). When this confusion is cleared
up, and Ms. Raman is asked whether the three of them and other people were ever
together at the same point during Sucumar’s first visit, she then answers the
question in exactly the same way as her husband did, namely that they “had been all together at the house and [Siva] left after two
days” (Transcript, CTR, p 432).
[23]
The third and final point of credibility for the
Panel is that of communication. The Panel has the following to say:
[44] The panel has examined the 2010
telephone records provided by the Appellant. Calls between what the panel
presumes are the Appellant’s telephone number and the Applicant’s telephone
numbers are, for a newly married couple, fairly infrequently [sic] and mostly
are one minute duration. There is no other evidence of communication between
them. The Appellant has provided photographs of him and the Applicant together,
both at their wedding and on informal outings.
(Decision, AR, p.16)
[24]
I also find this final credibility (post-wedding
communication) finding of the Panel to be problematic. Based on my review of
the entire record, which includes detailed logs of communications between the
Applicant and Ms. Raman, I neither find this to be a justifiable aspect of the
Panel’s conclusions.
[25]
First, I find that the telephone logs have
instances of substantial telephonic communication between the Applicant and Ms.
Raman. As one would expect, some calls were short, and there were various
missed calls. That is normal in any marriage. But there were numerous and
regular calls that took place where the inference is that there were lengthier
conversations.
[26]
Quite apart from the substantial telephone
communication that is evident, there was testimony by the Applicant and Ms.
Raman that they used other methods of communication, such as internet-based
modes (including Skype and Yahoo! Messenger) and what appears to be voice-over
IP technology, called iTalkBB.
[27]
In today’s digital world, there are various ways
of communicating other than the telephone, and the Applicant and Ms. Raman
testified that they used other methods. I see nothing in the Decision that
dealt with this oral evidence on other types of communications.
[28]
In coming to these findings, I am mindful that
the IAD is to be given significant deference on its credibility findings, and
that reviewing judges are to read the decision as a whole rather than take a
microscopic review of credibility findings (including Barm v Canada
(Minister of Citizenship and Immigration), 2008 FC 893 and Rosa v
Canada (Minister of Citizenship and Immigration), 2007 FC 117). In this
case, whether one takes a microscopic or telescopic view of the IAD’s findings,
they are equally problematic. Each of the three findings individually are
flawed, as discussed above. And, viewed as a whole, the big picture also falls
short. The Panel concludes:
[45] The haste in which this marriage was
undertaken and the vagueness around the role of the introducer causes the panel
to have serious doubts as to the genuineness of this marriage. There is more to
the arranging of this marriage than what is being presented to the panel. The
panel is not being told the whole story. This raises serious concerns about the
nature of this marriage.
(Decision, AR, p.16)
[29]
On an application for judicial review, the onus
is on the Applicant to establish that the IAD has committed a reviewable
error. Here, I have found more than one. The comprehensive record, and
picture it paints, depict a compelling story. While it is not my role to decide
the ultimate fate for this couple regarding their future ability to settle in Canada, their sponsorship application merits reconsideration anew, for the reasons provided
above. As such, this application for judicial review is allowed.
[30]
This case does not raise a serious question of
general importance warranting certification, as agreed by the parties.
Email this Content