Vancouver, British Columbia, June 13, 2007
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, dated October 25, 2006, wherein the IAD determined that the appeal filed by the applicant, Amarjit Kaur Khera (Gill), should be dismissed.
[2] The applicant is a Canadian citizen who resides in Surrey, B.C. Dalvir Singh Khunkhun (the sponsoree) is a citizen of India who resides in Jalandhar, India. A matchmaker arranged the marriage between the applicant and the sponsoree. Between March 2004 and April 2004, the applicant and sponsoree spoke over the phone three times to one another. In May 2004, they were engaged. On July 17, 2004, the applicant arrived in India. At that time, they met one another in person for the first time. On July 25, 2004, they were married. On August 2, 2004, the applicant returned to Canada. On August 5, 2004, the applicant submitted an application to sponsor the sponsoree. On May 28, 2005, the applicant returned to India to visit the sponsoree. During this period, the sponsoree had his interview at the Canadian High Commission. On June 8, 2005, the applicant returned to Canada.
[3] In a refusal letter dated June 6, 2005, an immigration officer at the Canadian High Commission in New Delhi indicated that she was of the opinion that the marriage of the applicant and the sponsoree was not genuine and had been entered into primarily for the purpose of acquiring a status or a privilege under IRPA. On June 29, 2005, the applicant filed a notice of appeal to the IAD. Almost a year later, on June 28, 2006, the IAD heard the applicant’s appeal. At the time of the appeal in front of the IAD the applicant was 43 years old and the sponsoree was 32 years old.
[4] In a decision dated October 25, 2006, two members of the three-member panel (the Majority) found that the marriage was not genuine and had been entered into primarily for the purpose of acquiring a status or a privilege under IRPA. The Majority found the lack of compatibility between the spouses to be unusual for an arranged marriage. They pointed out that the applicant is a divorcee, the mother of two children, a woman who has a career and who is in a comfortable financial situation. On the other hand, the sponsoree makes a living from farming, does not speak English and has not been married before. They also pointed out that the sponsoree had tried to come to Canada before, but his application was refused. Moreover, the Majority found it implausible that the sponsoree would not know more about the applicant’s daughters since she stressed, throughout the hearing, how important her daughters are to her. As well, the Majority did not accept the sponsoree’s explanation that his failure to mention his stepdaughters in his application form was due to it being filled out by an agent. The Majority found it implausible that the sponsoree would sign and submit such an important document without knowing its contents.
[5] In a decision dated November 17, 2006, one member of the panel (the Minority) concluded that it would have allowed the appeal. He did not draw any negative inferences from the incompatibility of the applicant and the sponsoree with respect to age and marital status. He was satisfied by the totality of the evidence that the initial concerns of the sponsoree’s family with respect to these two issues were completely overshadowed by other factors that favoured the applicant in the eyes of the sponsoree’s family. As well, the Minority pointed out that the applicant does not mind marrying a younger man for whom this is a first marriage. Although the Minority agreed with the Majority that the sponsoree did not demonstrate detailed knowledge about the applicant’s daughters, such as their precise age, he did not find it fatal because, at the IAD hearing, it became clear that the sponsoree had difficulty in even calculating his own age. As well, the Minority noted that the daughters are in Canada and have never met the sponsoree in person. The Minority pointed out that there is no evidence that the application form was even interpreted to the sponsoree; and as such, he gave little weight to the contents of the said application form.
[6] Under subsection 12(1) of IRPA, a foreign national may be selected as a member of the family class on the basis of their relationship as the spouse of a Canadian citizen. Under section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), "a foreign national shall not be considered a spouse … if the marriage … is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act". According to the case law of this Court, these two requirements are conjunctive. A conjunctive interpretation leaves open the possibility that a marriage, which was originally entered into for the purpose of gaining status under IRPA, may become genuine and therefore not excluded under the Regulations (see Donkor v. Canada (Minister of Citizenship and Immigration), 2006 FC 1089 at para. 12; Sanichara v. Canada (Minister of Citizenship and Immigration), 2005 FC 1015 at para. 16; Singh v. Canada (Minister of Citizenship and Immigration), 2006 FC 565 at para. 7).
[7] The appeal before the IAD is a hearing de novo in the broadest sense (Kahlon v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 91 (F.C.A.), 97 N.R. 349). Accordingly, the applicant and the sponsoree bear the onus of proving, on a balance of probabilities, that the sponsored spouse is not excluded under section 4 of the Regulations. The determination of whether a marriage is bona fide therefore involves findings of fact and the sorting and weighing of evidence. Furthermore, the IAD is assumed to have considered all of the evidence presented to it in coming to its decision and its decision must be interpreted as a whole (Singh v. Canada (Minister of Citizenship and Immigration), 2002 FCT 347 at para. 18; Lai v. Canada (Minister of Citizenship and Immigration), 2005 FCA 125 at para. 90 (F.C.A.), 253 D.L.R. (4th) 606). As such, the IAD is given a high level of deference by the Court and the applicable standard of review is that of patent unreasonableness with respect to factual findings (Rosa v. Canada (Minister of Citizenship and Immigration), 2007 FC 117 at para. 23; Ni v. Canada (Minister of Citizenship and Immigration), 2005 FC 241 at para. 10; Dang v. Canada (Minister of Citizenship and Immigration), 2004 FC 1090 at para. 12).
[8] The applicant has not satisfied the Court that the IAD based its decision on an error of law, breached a principle of natural justice or otherwise made a factual finding that is unsupported by the evidence. Overall, I find the decision not patently unreasonable for the following reasons.
[9] The applicant essentially argues that the Majority did not properly assess the totality of the evidence and failed to analyse in its decision relevant evidence or to consider the various explanations given by the sponsoree in his testimony. In particular, she alleges that the Majority did not comment on the telephone bills, photos, letters, affidavits (from the matchmaker, the sponsoree’s mother and one of the applicant’s daughters), and money transfers tendered in support of the applicant’s appeal. Therefore, this demonstrates that the Majority ignored relevant evidence in coming to its decision.
[10] The arguments made by the applicant against the decision rendered by the Majority are all unfounded, in my view, and do not resist a comprehensive reading of their reasons. Indeed, the IAD was allowed to consider, and considered in its decision, the length of the parties' prior relationship before their arranged marriage, their age difference, their former marital or civil status, their respective financial situation and employment, their family background, their knowledge of one another's histories (including the applicant's daughters' ages and general situation), their language, their respective interests, the fact that the sponsoree's mother, two of his brothers, as well as aunts and cousins were living in British Columbia, and the fact that the sponsoree had tried to come to Canada before. In view of these relevant and determinative factors, the mere fact that not all the evidence presented by the applicant was referred to in the decision rendered by the Majority does not permit me to conclude in this case that the latter has failed, as alleged by the applicant, to take that evidence into account in reaching its conclusions.
[11] No suggestion or serious argument has been made by the applicant that the IAD breached a principle of natural justice or failed to apply the correct legal test in assessing whether the exclusionary provisions of section 4 of the Regulations applied in this case. The applicant is essentially asking the Court to reweigh the evidence that was before the IAD. The Majority had very strong reservations with respect to the genuineness of the marriage in view of the lack of compatibility between the spouses. The Majority also questioned the intent of the sponsoree to reside permanently with the applicant and found the sponsoree's primary interest to enter Canada was to join his nuclear family. The Majority's concerns are well articulated and clearly supported by the evidence on record. Overall, I find that the majority's reasoning is not capricious or arbitrary and supports their ultimate conclusion. Although I may have come to a different conclusion, as did the Minority number in this case, it was not patently unreasonable for the majority of the IAD to come to this conclusion based on the evidence before it.
[12] For these reasons, the present application must fail. No question of general importance is raised in this case.
ORDER
THIS COURT ORDERS that the application for judicial review be dismissed. No question is certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6375-06
STYLE OF CAUSE: AMARJIT KHERA v. MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: June 12, 2007
REASONS FOR ORDER: MARTINEAU J.
AND ORDER
APPEARANCES:
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Mr. Baldev Sandhu
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Ms. Hilla Aharon
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SOLICITORS OF RECORD:
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Sandhu Law Office Surrey, BC |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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