Docket: IMM-5413-15
Citation:
2016 FC 721
Ottawa, Ontario, June 24, 2016
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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KUMARASRI
SIVAPATHAM MANCHUSASHINY PONNUTHURAI
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicants, Kumarasri Sivapatham and
Manchusashiny Ponnuthurai, apply for judicial review of a decision of the
Immigration Appeal Division of the Immigration and Refugee Board (the IAD). The
IAD dismissed Mr. Sivapatham’s appeal from a visa officer’s refusal of an
application to sponsor his wife, Ms. Ponnuthurai, for immigration to
Canada. The IAD found the Applicants’ marriage is not genuine and had been
entered into primarily for immigration purposes.
[2]
For the reasons that follow, I have concluded
that the IAD was unreasonable in its treatment of the evidence. The application
for judicial review is therefore allowed.
II.
Facts
[3]
Mr. Sivapatham is a permanent resident of
Canada.
[4]
Ms. Ponnuthurai is a citizen of Australia.
[5]
The Applicants first met in person in August
2011. They were engaged and began cohabitating together in September 2011. The
Applicants were legally married on November 15, 2011. This is Mr. Sivapatham’s
first marriage, and Ms. Ponnuthurai’s third.
[6]
On March 7, 2013, Ms. Ponnuthurai applied
for a permanent resident visa as the sponsored spouse of Mr. Sivapatham.
[7]
A visa officer refused the spousal sponsorship
application, finding the marriage was not genuine and entered into primarily
for the purpose of acquiring a status or privilege under the Immigration and
Refugee Protection Act, SC 2001, c 27. Mr. Sivapatham appealed this
decision to the IAD.
III.
The IAD Decision
[8]
Days before the IAD hearing, the Respondent
applied to have an additional ground of refusal added to the appeal, alleging Ms. Ponnuthurai
is inadmissible to Canada for overstaying her temporary resident visa.
[9]
The IAD hearing was held on September 18, 2015.
At the time of the hearing, Ms. Ponnuthurai was eight months pregnant with
a child of the marriage.
[10]
By decision dated November 4, 2015, the IAD
rejected the appeal.
IV.
Issue
[11]
The determinative issue of this judicial review
is whether the IAD was reasonable in its treatment of the evidence of the
genuineness and purpose of the Applicants’ marriage.
V.
Analysis
[12]
The IAD’s assessment of the evidence is subject
to review by this Court against the standard of reasonableness (Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras
57-58 [Khosa]). Deference is owed to the IAD by virtue of its expertise
and special position as trier of fact (Khosa at para 25). Courts will not
interfere with the IAD’s factual findings unless they were “made in a perverse or capricious manner or without regard
for the material before it” (Khosa at para 72; Federal Courts
Act, RSC, 1985, c F-7, s 18.1(4)(d)).
[13]
On the reasonableness standard, the Court
considers whether the decision is justified, transparent, and intelligible, and
falls within the range of possible outcomes defensible in respect of the facts and
the law: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
[14]
The IAD is presumed to have considered all of
the evidence that was before it and is not required to refer to each piece of
evidence in its decision (Florea v Canada (Minister of Employment and Immigration),
[1993] FCJ No 598 (FCA) at para 1). However, the more important the evidence
that is not mentioned specifically and analyzed in the IAD’s reasons, the more
willing a court may be to infer from the silence that the agency made an
erroneous finding of fact “without regard to the
evidence” (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35, at para 17 (FCTD)).
[15]
The Applicants submit that the IAD member
ignored the probative evidence in favour of the genuineness of their marriage,
and ignored the fact that they are cohabiting as a family and in a loving and
stable relationship. The Applicants submit their testimony was largely
consistent, but the IAD focused on minor details and on speculative
plausibility findings.
[16]
The IAD found the Applicants to not be credible,
as their testimony was vague, inconsistent, and contradictory. The IAD had
concerns with the evidence regarding when and how the relationship developed.
Neither Mr. Sivapatham nor Ms. Ponnuthurai could consistently
articulate when or how they first had contact with one another, and there was a
lack of any documentary evidence to corroborate or clarify their contradictory
claims on this point.
[17]
The Applicants concede that their evidence
varied about when they first contacted each other by Skype, but submit this was
minor detail about a conversation four years ago in the context of multiple
contacts by Facebook, Skype, and telephone.
[18]
The IAD expressed concerns that the Applicants
had not met in person at the time of the proposal, particularly given that the
marriage was not arranged. This was clearly problematic for the IAD as Ms.
Ponnuthurai had two previous failed marriages, and the IAD member expected Ms. Ponnuthurai
to be “far more cautious” in ensuring she would
not face the same issues a third time. The IAD found the speed and succession
of the wedding also raised plausibility concerns. While it accepted that a
ceremony took place in November 2013, it found that the marriage was likely
orchestrated to facilitate Ms. Ponnuthurai’s immigration to Canada.
[19]
The Court in Gill v Canada (Citizenship and
Immigration), 2010 FC 122, explained that the IAD must be cautious not to
apply its own understandings of expected conduct when assessing genuineness,
especially when there is a child born of the union:
[6] When the Board is required to
examine the genuineness of a marriage under ss. 63(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, it must proceed with great care
because the consequences of a mistake will be catastrophic to the family. That
is particularly obvious where the family includes a child born of the
relationship. The Board’s task is not an easy one because the genuineness of
personal relationships can be difficult to assess from the outside. Behaviour
that may look suspicious at first glance may be open to simple explanation or
interpretation. […]
[9] In its assessment of this
marriage, the Board noted that “strong countervailing evidence” would be
required to displace the significance of the birth of the child. The problem
with the decision is that the Board’s assessment of that “strong countervailing
evidence” largely concerned trivial, inconclusive or irrelevant matters and
ignored considerable evidence which contradicted its conclusion.
[20]
Here the IAD noted that it had considered Ms. Ponnuthurai’s
pregnancy but concluded the pregnancy did not overcome the concerns with
respect to the purpose and genuineness of the marriage. However, like in Gill,
much of the “strong countervailing evidence”
relied upon by the IAD related to inconclusive or irrelevant matters.
[21]
The IAD disbelieved the Applicants because Ms. Ponnuthurai
agreed to marry Mr. Sivapatham only a few months after they met, while she
was still married to her second husband. However, the documentary evidence
establishes that Ms. Ponnuthurai initiated the divorce much earlier, and
it is not surprising that the Applicants married shortly after the divorce was
finally granted.
[22]
Similarly, the IAD drew a negative inference
because Ms. Ponnuthurai agreed to marry Mr. Sivapatham without
meeting him in person. The IAD reasoned that one would expect Ms. Ponnuthurai,
having already been married twice in the past, to be more cautious before
marrying Mr. Sivapatham. This is an unreasonable basis upon which to
impugn the Applicants’ credibility.
[23]
Finally, the IAD failed to consider why Ms. Ponnuthurai
would marry Mr. Sivapatham. With respect to family, the IAD found that Ms. Ponnuthurai’s
situation in Australia is “not much different”
than her circumstances in Canada. The IAD also found that there were general
similarities between Australia and Canada. These findings are impossible to
reconcile against the conclusion that the marriage was arranged to afford Ms. Ponnuthurai
some benefit or privilege in Canada.
[24]
For the reasons outlined above, the decision of
the IAD is unreasonable. The application for judicial review is allowed and the
matter is remitted to a differently constituted panel of the IAD for
reconsideration on the merits.
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