Ottawa, Ontario, November 10th, 2006
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] On March 17, 2006, the Immigration and Refugee Board’s Appeal Division (the Board) upheld a visa officer’s decision to reject Mr. Khella’s application to sponsor his wife. The Board agreed with the officer’s conclusion that theirs was not a genuine marriage. Mr. Khella has applied for judicial review of the Board’s decision. Despite the intricate relationships between his wife’s relatives and her numerous attempts to be admitted to Canada, I have found that the Board’s decision must be set aside.
I. Facts
[2] Mr. Khella was born on April 10, 1980, in India. He was sponsored as an accompanying dependent of his parents and became a Canadian permanent resident on April 3, 2000. As for Mrs. Khella (born Palwinder Kaur Sangha), she lives with her parents in the village of Maggowal in India. She was adopted at the age of 16 by her paternal uncle in Canada. However, when he tried to sponsor her to immigrate to Canada as an adopted child, the application was refused. In 1996, at the age of 17, she was sponsored to come to Canada as the fiancée of another individual but the sponsorship was withdrawn. At the age of 19, she applied for a visitor’s visa which was also refused.
[3] This is the second time Mr. Khella has tried to sponsor his wife. He first sponsored her as his fiancée; that application was refused and the Board dismissed Mr. Khella’s appeal on March 24, 2004. In its reasons, the Board questioned the couple’s lengthy engagement, and found it suspect that they had made no concrete plans to marry in more than three years (they had been engaged since January 2001).
[4] Less than two months later, the couple married in India. Mr. Khella applied to sponsor Mrs. Khella again – this time, as his wife. An overseas visa officer interviewed Mrs. Khella in India and refused the sponsorship application in November 2004. Once again, Mr. Khella appealed to the Board. He testified at the hearing and Mrs. Khella testified from India by telephone. The Board dismissed the appeal on March 17, 2006. That is the decision under review.
II. The Impugned Decision
[5] The Board acknowledged from the outset that the spouses’ testimony was consistent in many respects, including the origin of their marriage, Mrs. Khella’s immigration history, the background knowledge regarding their respective circumstances in Canada and India, and their families’ composition. Nevertheless, the Board found that the parties provided inconsistent information which raised credibility issues. In particular, the Board made the following findings:
· The couple provided inconsistent testimony about their marriage arrangements – i.e., when they were finalized;
· Mrs. Khella directly contradicted herself. First, she told the visa officer her adoptive parents did not come to the wedding. Then, she told the Board the couple’s Canadian matchmaker (her adoptive mother) did attend the wedding;
· Mrs. Khella did not address the visa officer’s concerns about why she chose to have the wedding away from her village;
· Mrs. Khella referred to the same relative as both her “biological brother” (before the Board) and her “cousin’s brother” (before the visa officer). The Board concluded this was an attempt to “…create an impression of more distant relationship between her and her biological brother and not an acknowledgement of her adopted status…” The Board found Mrs. Khella was trying to hide from the visa officer the fact that Mr. Khella’s sister had sponsored her biological brother;
· The Board was not satisfied with Mr. Khella’s explanations why he did not meet his future wife immediately after arriving in India for his wedding in May, 2004;
· Similarly, the Board found it suspect that Mr. Khella had visited a cousin in Dubai before going to visit Mrs. Khella in India during a 2005 trip to India. The member wrote: “In my opinion his actions demonstrate intent inconsistent with the development of the relationship with the genuine spousal purpose”;
· Finally, Mrs. Khella has many other relatives in Canada and the Board was not satisfied she intended to live with Mr. Khella once in Canada. This, indeed, appears to have been the primary reason for the Board to find that the marriage was not genuine and that it was entered primarily for the purpose of being admitted to Canada. It is worth quoting paragraph 16 of the Board’s reasons, which captures the gist of the Board’s reasoning:
With respect to the motivation for this marriage I find that the couple’s respective families played a very active role in arranging the match between the appellant [Mr. Khella] and the applicant [Mrs. Khella]. The applicant testified that the appellant’s sister arranged the applicant’s biological brother’s marriage to the appellant’s sister who was left behind in India when her family immigrated to Canada. She also arranged the marriage of the applicant to the appellant with the help of the applicant’s aunt. The applicant’s brother’s engagement took place a month before the applicant’s marriage ceremony. Four months before the applicant’s marriage her brother successfully sponsored the appellant’s sister to Canada. The applicant has immediate family in Canada, which has a history of attempting to assist her and her brother to gain admission to Canada. The applicant was adopted by her father’s brother, and her biological brother was adopted by her father’s sister. The applicant’s aunts and uncles live in Squamish, BC where the appellant’s family resides. The appellant testified during the first appeal hearing in February 26, 2004 that the applicant intends to sponsor her parents and unmarried siblings to Canada so the family can reunite with the applicant’s relatives. At the present hearing the applicant stated that her parents do not want to immigrate to Canada and the remaining siblings will find their match in India, I find her testimony not credible. Based on a history of failed attempts by the applicant’s relatives in Canada and her parents in India to facilitate her admission to Canada since she was sixteen years old I conclude on a balance of probabilities that the family’s main intent is to help the applicant to come [to] Canada. Over and above the family’s intentions, I find that the applicant has reasons to wish to immigrate to Canada, which do not involve a future life together with the appellant. The applicant has family in Canada other than the appellant and would have options away from the appellant.
III. Parties’ Submissions
[6] Mr. Khella argues that the Board erred in several respects. First, he argues that the Board misconstrued Mrs. Khella’s testimony regarding her adoptive mother and the matchmaker. He submits the latter is in fact Mrs. Khella’s aunt and not her adoptive mother. They are in effect two different sisters of her biological father. Thus, the Board erred in finding that Mrs. Khella’s testimony was inconsistent on this issue. Furthermore, he argues the Board misconstrued Mrs. Khella’s testimony about her biological brother, claiming she referred to him in different ways because he had been adopted and was no longer her real brother but her cousin’s brother. Finally, he has refuted the Board’s other credibility findings and addressed the length of time before the couple met, his trip to Dubai in 2005 en route to India, and the Board’s finding that Mrs. Khella’s family wants her to immigrate to Canada. Mr. Khella characterizes all these errors as legal errors.
[7] Mr. Khella also submits that the Board failed to explain why it gave no weight to the couple’s evidence of their communication (phone records, greeting cards, etc…) and why it dismissed the village council headman’s affidavit. He also claims the Board ignored evidence of the couple’s 20-day cohabitation after their wedding, the length of their relationship, and their future plans in Canada.
[8] On the other hand, counsel for the Minister argues that the Board’s assessment of whether the marriage was bona fide was a finding of fact and, as such, should be afforded maximum deference. It was submitted that the Board made its credibility findings because of inconsistent evidence – as between Mr. and Mrs. Khella, and also between Mrs. Khella’s two statements before the visa officer and the Board. Counsel argued it is not this Court’s role to interfere where the Board has assessed the facts and preferred certain evidence over other evidence.
[9] Similarly, counsel for the Minister argues that Mr. Khella’s arguments about the primary purpose for the marriage pertain to how the Board weighed the evidence. Since, as the Minister submits, the Board’s findings were not patently unreasonable, this Court should not interfere.
[10] At the hearing, counsel for the Minister nevertheless conceded that the Board made a mistake in assimilating the matchmaker and the adoptive mother. They are indeed two different persons. Therefore, the Board erred by accusing Mrs. Khella of contradicting herself in saying her adoptive mother did not attend the wedding but her aunt, the matchmaker, did. Similarly, it was conceded that the Board made too much of the fact that Mrs. Khella referred to her biological brother as her cousin’s brother. But according to the Minister, these findings were not central to the Board’s conclusion reached by the Board, and should accordingly be given little significance.
IV. Issues
[11] This application for judicial review raises two issues:
1. What is the appropriate standard of review?
2. Did the Board err in assessing the genuineness of the marriage or its primary purpose?
V. Analysis
[12] Despite Mr. Khella’s arguments to the contrary, all of his submissions relate to the Board’s findings of fact, which are generally entitled to the highest level of deference. The question of whether a marriage is genuine is purely a question of fact as is the determination of the primary purpose of that marriage. Accordingly, when evaluating the Board’s decisions with respect to those issues, this Court has consistently adopted the standard of patent unreasonableness: see, for example, Singh v. Canada (Minister of Citizenship and Immigration), 2005 FC 1673; Ly v. Canada (Minister of Citizenship and Immigration), 2003 FC 1184; Grewal v. Canada (Minister of Citizenship and Immigration), 2003 FC 960; Jaglal v. Canada (Minister of Citizenship and Immigration), 2003 FCT 685; Canada (Minister of Citizenship and Immigration) v. Navarrete, 2006 FC 691.
[13] Section 13 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA),, provides that a Canadian citizen or a permanent resident is entitled to sponsor his or her spouse for admission into Canada as a member of the family class, unless that spouse is disqualified under section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227. That section, as amended in 2004 (SOR/2004-167, s. 3), states:
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4. Bad faith – For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act. |
4. Mauvaise foi – Pour l’application du présent règlement, l’étranger n’est pas considéré comme étant l’époux, le conjoint de fait, le partenaire conjugal ou l’enfant adoptif d’une personne si le mariage, la relation des conjoints de fait ou des partenaires conjugaux ou l’adoption n’est pas authentique et vise principalement l’acquisition d’un statut ou d’un privilège aux termes de la Loi. |
[14] At the onset of its reasons, the Board correctly set out the two-pronged test that determines whether a spouse can be considered as a member of the family class. At paragraph 2 of its reasons, the Board wrote:
The test is [a] two-pronged, that is, in order for a foreign national to be caught by section 4 of the Regulations, the preponderance of reliable evidence must demonstrate that the marriage is not genuine and was entered primarily for the purpose of acquiring a status or privilege under the Immigration and Refugee Protection Act (the “Act”). In order to succeed on appeal, the onus is on an appellant who needs only to establish on a balance of probabilities one of the prongs of the test has not been met.
[15] As a result, I am of the view that the Board applied the correct legal principles and did not err in law. Despite Mr. Khella’s attempts to find errors of a legal nature in the Board’s reasons, all the alleged errors that led the Board to make negative credibility findings against the couple are strictly errors of fact, and must therefore be reviewed against a standard of patent unreasonableness.
[16] Once we discard the Board’s two findings about the Applicant’s adoptive mother’s wedding attendance and the confusion surrounding her biological brother, what is left to conclude the marriage is not bona fide? Very little, it seems to me. To arrive at that conclusion, the Board had to determine that the couple’s marriage was not genuine, and that they married to acquire status under the IRPA. Evidence about Mrs. Khella’s immigration history only pertained to the latter. The Board still had to establish a sufficient evidentiary basis to conclude the marriage was not genuine. If the Board’s reasoning regarding this branch of the test cannot withstand judicial review, Mr. Khella’s application will succeed.
[17] Indeed, the Board itself started by recognizing that the witnesses’ testimony was consistent in many respects, as I outlined above. It then went on to describe what I would consider a series of minor discrepancies and inconsistencies. For example, it made much of the fact that Mrs. Khella would have stated that the date and the location of the marriage ceremony were decided during the couple’s first meeting on May 13, 2004, while Mr. Khella testified that the marriage arrangements were finalized and a date for the marriage was confirmed at the end of April 2004, before his arrival to India on May 1, 2004. While this may appear to be inconsistent, the fact remains that the invitation cards were printed two weeks before the marriage, as Mrs. Khella herself confirmed to the visa officer. There must therefore have been a decision made before May 13, when the couple met for the first time. On that basis, I do not think that this little discrepancy in her answers should be given too much weight.
[18] As to the fact that they only met three days before the wedding while Mr. Khella had been in India for two weeks, Mr. Khella explained that it is not common in the Indian culture for the groom and bride to meet each other before the marriage. This is a perfectly reasonable explanation and the Board failed to provide evidence for its finding that they could have met in the company of chaperones without contravening community customs.
[19] The Board also found that it was not reasonable in the context of a genuine marriage that Mr. Khella would have spent a few days with his cousin on his way to India in 2005. Again, I do not think that this behaviour is inconsistent with the development of a true marital relationship. Mr. Khella testified that he took an extended vacation of more than a month to spend time with his wife. He lived with her for the entire period of his stay in India, he brought gifts to her, he sent her money and he provided evidence of numerous phone calls since he has been engaged to her. Surely, this is more significant than the fact that he spent a few days with his cousin on his way to India.
[20] Finally, the Board found that the marriage was not well attended and not much publicized. However, the evidence does not bear this out. There was a reasonable explanation given for the location of the marriage ceremony a few kilometres away from the bride’s ancestral home. Furthermore, the visa officer and the Board member declined to look at video cassettes apparently showing a large number of people attending the wedding (Mr. Khella testified that there were approximately 300 guests). Equally troubling is the little weight given to the affidavit of the head of the village council “because he did not have all the facts before him nor did he have direct knowledge with respect to the spousal relationship between the Applicant and the Appellant” (Board Reasons, paragraph 12). Yet, the sarpanch testified that he personally knows Mrs. Khella, and that he was present at the marriage. He said the wedding was well attended by the couple’s relatives, friends and members of the community, that they lived together as husband and wife after the marriage, that they are well-known as a married couple within the community, and that “it will be a stigma at the name of the Palwinder Kaur Sangha’s family if she is left alone in India and not granted visa to reunite with her husband in Canada” (Applicant’s Record, page 45).
VI. Conclusion
[21] In the end, one is left with the clear impression that the Board rejected the appeal of the visa officer’s decision on the ground that Mrs. Khella’s numerous attempts to be admitted to Canada demonstrate that she does not really want to be reunited with her husband and live with him. Rather, it shows that she wishes to immigrate to Canada by any means. Even if I was prepared to accept that this is a conclusion the Board could validly draw, and I do not wish to express any view on that matter, I am still of the view that the reasons invoked by the Board to conclude that the marriage is not genuine fall far short of an analysis that could withstand even the most stringent standard of judicial review. As the Board itself recognized, Mr. Khella only needed to establish one of the two prongs in the test already referred to. For the reasons outlined above, I find that the Board’s decision with respect to the genuineness of the marriage was based on erroneous findings of fact and inappropriate inferences. These errors are reviewable under the standard of patent unreasonableness, and the application for judicial review is therefore allowed. The file shall therefore be remitted to a differently constituted panel of the Board’s Immigration Appeal Division for redetermination.
[22] No question was suggested for certification, and none will therefore be certified.
JUDGMENT
THIS COURT ORDERS that: the application for judicial review is allowed. The file shall therefore be remitted to a differently constituted panel of the Board’s Immigration Appeal Division for redetermination.
No question was suggested for certification, and none will therefore be certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1811-06
STYLE OF CAUSE: PALWINDER SINGH KHELLA v. THE MINISTER OF CITIZENSHIP & IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 31, 2006
and JUDGMENT: de Montigny J.
APPEARANCES:
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Baldev S. Sandhu Barrister & Sollicitor
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Helen Park
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SOLICITORS OF RECORD:
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Sandhu Law Office Barrister & Solicitor Surrey, British Columbia
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John H. Sims, Q.C. Deputy Attorney General of Canada
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