Date: 20030807
Docket: IMM-5969-02
Citation: 2003 FC 960
CALGARY, Alberta, Thursday, the 7th day of August, 2003.
Present: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
BALDEV KAUR GREWAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Despite the capable submissions of counsel for the applicant, I have not been persuaded that the Appeal Division of the Immigration and Refugee Board (the Board) committed any error in dismissing the applicant's appeal from the decision of a visa officer refusing the application for permanent residence of the applicant's spouse.
[2] The applicant is a permanent resident of Canada. She was landed on March 14, 1998, from India, after having been sponsored by her husband whom she married, in India, on December 26, 1996. She separated from her husband six months later. Her divorce was granted on April 23, 1999. She remarried on January 28, 2000, while visiting her family in India. Upon her return to Canada on March 22, 2000, she applied to sponsor her husband as a permanent resident. The applicant returned to India to visit and live with her husband in July and August of 2001. During that time, she claims to have become pregnant and suffered a miscarriage. The application to sponsor her husband was refused on May 2, 2001 and the appeal from that decision was heard by the Board on August 26 and 27 , 2002, in Calgary. The appeal was dismissed by decision dated November 6, 2002. The Board found, after hearing the testimony of both the applicant and her husband, that it was not generally credible or trustworthy. It concluded as follows:
Based on the evidence before me, I conclude that the appellant has not satisfied the burden of proof. I find, on a balance of probabilities, the applicant entered the marriage primarily for the purpose of gaining admission to Canada as a member of the family class, and the applicant does not intend to reside permanently with the appellant. Therefore, this appeal is dismissed.
[3] The applicant submits that the Board erred in dismissing the applicant's appeal and in finding that her spouse is a person described in subsection 4(3) of the former Immigration Regulations, 1978, SOR/78-172. That provision stated:
The family does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse.
[4] The applicant takes issue with each of the determinations made by the Board and submits that the board erred in finding that she and her spouse were not compatible. The Board reached this conclusion, says the applicant, without regard to the evidence before it. The Board took into consideration only the fact that the applicant had been married before, whereas her spouse had not, and failed to consider the overwhelming evidence of their marital compatibility, namely their similar ages, educational, religious and social backgrounds.
[5] The applicable standard of review regarding decisions of the Board is patent unreasonableness in relation to questions of fact: Khangura v. Canada (Minister of Citizenship and Immigration) (2000), 191 FT.R. 311(T.D.); Jaglal v. Canada (Minister of Citizenship and Immigration) 2003 FCT 685; Tran v. Canada (Minister of Citizenship and Immigration) (2001), 214 F.T.R. 245 (T.D.). I regard the question of whether a marriage is bona fides as a question of fact and for the reasons that follow, I conclude that the Board's decision was not patently unreasonable. I add, however, that based on a standard of review of reasonableness simpliciter, the decision withstands a probing examination as it is defined in Law Society of New Brunswick v. Ryan 2003 SCC 20, [2003] S.C.J. No 17.
[6] The test for disqualifying a spouse as a member of the family class is articulated in Horbas v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 359 (T.D.) wherein Strayer J.,
as he then was, stated:
It must be kept in mind that in order to reject such an application on the basis of this subsection, it must be found that there is both a marriage entered into by the sponsored spouse primarily for purpose of immigration and lack of intention on his or her part to live permanently with the other spouse.
[7] The applicant is correct that the basis for the Board's finding of marital incompatibility was the applicant's previous marriage. However, there was evidence before the Board concerning the customary practices surrounding arranged marriages in Punjab. The Board did not err in questioning the applicant's credibility in view of her testimony regarding this evidence.
[8] The Board specifically stated that the incompatibility of marital background "...is not, of itself, determinative of the bona fides of the [applicant's] second marriage and I have considered the specific circumstances of this marriage to determine its bona fides." The Board considered the implausibility of the applicant's husband's ignorance of the true details of her marriage breakdown, given the circumstances of the arranged second marriage. It also referred to the applicant's husband's lack of interest in, concern for, and knowledge of her history as indicative of a lack of intent for a lasting relationship. The Board further found that there was no plausible explanation as to why the applicant would so quickly enter a second marriage after the allegedly significant abuse she suffered during her first marriage, nor was there a plausible explanation as to why the applicant's husband and his family would agree to the match with a divorced woman. The documentary evidence and the witnesses' testimony with regard to the pregnancy of 2001 was inconsistent and there were discrepancies between the testimony of the applicant and her husband regarding the surrounding circumstances.
[9] The Board 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 Board to determine. As long as the conclusions and inferences drawn by the Board 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 the credibility findings.
[10] In light of the evidence before the Board, the inferences it drew were reasonable and the reasons for its finding of lack of credibility were set out clearly and comprehensibly. The conclusion, on the first branch of the Horbas test, was not patently unreasonable, nor was it unreasonable. The finding of a lack of credibility could also be used in relation to the second part of the test, i.e., that the applicant's husband does not intend to reside permanently with her: Canada (Solicitor General) v. Bisla (1994) 88 F.T.R. 312 (T.D.) In this respect, it was open to the Board to conclude that the applicant's husband did not meet the onus to convince the board of his intention to reside permanently with the applicant in Canada. The Board additionally noted that nearly all of the applicant's husband's close family live in Canada. Therefore, other options for residence were available to him. One should not expect that a proposed spousal immigrant will state an intention not to reside with the sponsoring spouse. Inferences will usually be made in these cases: Rattan v. Canada (Minister of Employment and Immigration) (1994), 73 F.T.R. 195 (T.D.) The Board did not err in inferring from the above noted factors that the applicant's husband did not have the intention to reside permanently with the applicant in Canada.
[11] In the result, I find that the conclusions of the Board were neither patently unreasonable nor unreasonable. The court's intervention is not warranted.. Counsel did not suggest a question for certification. This matter raises no serious question of general importance.
ORDER
The application for judicial review is dismissed.
No question is certified.
"Carolyn Layden-Stevenson"
JUDGE
CALGARY, Alberta
August 7, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5969-02
STYLE OF CAUSE: Baldev Kaur Grewal v. The Minister
of Citizenship and Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: Wednesday, August 6, 2003
REASONS FOR ORDER AND ORDER : LAYDEN-STEVENSON, J.
DATED: August 7, 2003
APPEARANCES:
Mr. G. Michael Sherritt FOR APPLICANT
Mr. W. Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
Sherritt Greene
Calgary, Alberta FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT