Ottawa, Ontario, the 24th day of August 2006
Present: The Honourable Mr. Justice Shore
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] “. . . the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions” (Faryna v. Chorny, [1952] 2 D.L.R. 354 (BCCA)).
NATURE OF THE JUDICIAL PROCEEDING
[2] This is an application for judicial review, under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board dated December 16, 2005, dismissing the applicant’s appeal, under subsection 63(1) of the Act, against the decision to reject the sponsored application for permanent residence of her husband, who was the applicant.
FACTS
[3] The applicant, Danielle Marie Froment, is 46 years of age. She sponsored the application for permanent residence of her husband, Jaswinder Singh Sukhwinder Malhi, who is 36 years of age and a citizen of India.
[4] Ms. Froment was born in an orphanage and spent her youth in several foster homes where she was the victim of violence. She began working at young age. She first lived with an irresponsible, alcoholic man, then subsequently with a man who was violent and beat her. After these two difficult relationships, Ms. Froment decided to remain single.
[5] Ms. Froment began to take care of two young girls who had been abandoned by their mother. After some years, the social services recently allowed her to adopt the girls, who are now eight and nine years old.
[6] Mr. Malhi entered the United States illegally in 1990 (according to his testimony), or in 1992 (according to the appeal record), with forged papers and a false identity. He claimed refugee protection, and his claim was rejected. He married an American woman, and they ended up divorcing.
[7] Ms. Froment and Mr. Malhi met in 2000 during a trip she made to California. Mr. Malhi was the taxi driver who drove her from the Los Angeles airport to her hotel. They saw each other every day for one week, and he then invited her to spend the rest of her holidays with him at his apartment.
[8] During a subsequent trip to California, Ms. Froment and Mr. Malhi married on September 5, 2000. Ms. Froment has visited her husband on several occasions since their wedding.
IMPUGNED DECISION
[9] Even though the IAD was of the view that Ms. Froment’s testimony about her feelings toward Mr. Malhi was credible, it rejected the sponsorship application for permanent residence of Mr. Malhi under section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), concluding that the marriage of Mr. Malhi and Ms. Froment was not genuine and was entered into primarily for the purpose of acquiring a status or privilege under the Act.
[10] The IAD rendered its decision on the basis of the numerous differences between the personal situations of the spouses and the little knowledge they had of each other. They do not speak the same language, as Ms. Froment speaks very little English and Mr. Malhi does not speak any French at all. Ms. Froment is ten years older than Mr. Malhi. They do not share the same religion, as Ms. Froment is a Christian and Mr. Malhi is a Sikh. Mr. Malhi knows very little about Ms. Froment’s daughters, whom she cherishes above all else in life. At the interview at the Canadian consulate, he did not know their first names or birthdates. The IAD was also of the opinion that Mr. Malhi had not been forthcoming with Ms. Froment about his divorce from his first wife and his tenuous status in the United States.
ISSUE
[11] There is only one issue in this case:
1. Did the IAD err in concluding that Mr. Malhi was not a member of a family class because his marriage to Ms. Froment was not genuine?
ANALYSIS
Legislation
[12] Under subsection 63(1) of the Act, a person who sponsors an application for permanent residence may appeal the decision if the application is rejected:
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63(1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa. |
63. 1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent. |
[13] Subsection 67(1) of the Act mentions the circumstances in which an appeal may be allowed:
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67(1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
(a) the decision appealed is wrong in law or fact or mixed law and fact;
(b) a principle of natural justice has not been observed; or
(c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. |
67(1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
a) la décision attaquée est erronée en droit, en fait ou en droit et en fait;
b) il y a eu manquement à un principe de justice naturelle;
c) sauf dans le cas de l’appel du ministre, il y a – compte tenu de l’intérêt supérieur de l’enfant directement touché – des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales. |
[14] Under section 65 of the Act, the IAD can only consider humanitarian considerations if it has been established that the foreign national is a member of the family class:
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65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations. |
65. Dans le cas de l’appel visé aux paragraphes 63(1) ou (2) d’une décision portant sur une demande au titre du regroupement familial, les motifs d’ordre humanitaire ne peuvent être pris en considération que s’il a été statué que l’étranger fait bien partie de cette catégorie et que le répondant a bien la qualité réglementaire. |
[15] Subsection 12(1) of the Act specifies the basis on which a foreign national may be selected as a member of a family class:
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12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident. |
12. (1) La sélection des étrangers de la catégorie « regroupement familial » se fait en fonction de la relation qu’ils ont avec un citoyen canadien ou un résident permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père ou mère ou à titre d’autre membre de la famille prévu par règlement.. |
[16] Under section 4 of the Regulations, in order to be a member of the family class, the relationship between the foreign national and his or her sponsor must be genuine and not solely for the purpose of acquiring any status or privilege under the Act:
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4. 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. 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 |
Standard of review
[17] The appropriate standard of review in this case is that of patent unreasonableness, since a question of fact is involved (Khangura v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 815 (QL), at paragraph 21; Sanichara v. Canada (Minister of Citizenship and Immigration), 2005 FC 1015, [2005] F.C.J. No. 1272 (QL), at paragraph 11; Singh v. Canada (Minister of Citizenship and Immigration), 2002 FCT 347, [2002] F.C.J. No. 461 (QL), at paragraph 17; Canada (Minister of Citizenship and Immigration) v. Savard, 2006 FC 109, [2006] F.C.J. No. 126 (QL), at paragraph 12).
[18] As stated by Mr. Justice Luc Martineau in Singh, supra, at paragraph 18:
The standard of judicial deference that applies to findings of fact and to the weight given to the evidence by the Appeal Division is quite high. Unless the contrary is shown, the Appeal Division is assumed to have considered all the evidence presented to it. The Appeal Division’s decision in this regard must be interpreted as a whole and it should not be subject to microscopic examination. Accordingly, the reviewing Court should refuse to interfere with decisions which assess credibility, provided that the explanations given are rational or reasonable, or that the evidence on the record permits the Appeal Division to reach, as the case may be, a negative inference as to the credibility of an applicant or a witness.
Did the IAD err in concluding that Mr. Malhi was not a member of a family class because his marriage to Ms. Froment was not genuine?
[19] An appeal before the IAD is a hearing de novo of the case. Accordingly, the spouses, more specifically, the applicant, must submit reliable and sufficient evidence showing that the Board’s initial decision was erroneous, that is to say, that the relationship between the spouses actually was genuine (Sanichara, supra, at paragraph 8; Mohamed v. Canada (Minister of Citizenship and Immigration), 2006 FC 696, [2006] F.C.J. No. 881 (QL), at paragraph 40; Morris v. Canada (Minister of Citizenship and Immigration), 2005 FC 369, [2005] F.C.J. No. 469 (QL), at paragraph 5). The spouses must show on a balance of probabilities that the sponsored spouse is not excluded from the family class under section 4 of the Regulations (Singh, supra, at paragraph 16).
[20] In Sanichara, supra, at paragraphs 16-18 and 20, Mr. Justice Michel Beaudry explained the test to be applied under section 4 of the Regulations:
Since the coming into force of section 4 of the Regulations the test to be taken into account in determining whether the spouse can be considered as a member of the family class is as follows. It must be established that: (1) the marriage is not genuine; and (2) the marriage was entered into primarily for the purpose of acquiring any status or privilege under the Act.
The Applicant argues that the IAD erred by failing to apply properly the two-pronged test set out in Horbas, supra. He argues that the IAD erred in failing to consider the intentions of his wife to live with him. I do not agree with this argument.
The element of the spouse’s intention of residing permanently with the sponsoring spouse is no longer present. Since one of the element (that the marriage was entered into primarily for the purpose of acquiring any status or privilege under the Act) is still the same, the “test” set out in Horbas, supra, can still be useful for the purpose of this element. However, the intention no longer needs to be taken into consideration.
. . .
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.
The IAD did not err in concluding that Ms. Froment’s spouse was not a member of the family class
Among other things, the IAD was entitled to consider factors such as age, differences in customs or language.
[21] Ms. Froment alleged that it was unreasonable for the IAD to take into consideration such factors as age, differences in education, religion or customs in determining whether her spouse was a member of the family class.
[22] It is important to underline the fact that the Board considered this evidence, as well as other factors such as Mr. Malhi’s lack of knowledge about the personal background of his spouse and her children.
[23] The IAD stated the following in its reasons:
. . . In the traditional society the applicant comes from, customs and religion are very important; indeed, the applicant claims that he was persecuted in India because of his being a Sikh. The spouses do not speak the same language: the appellant speaks very little English, and the applicant does not speak French. They are not the same age; they are 10 years apart. They are not of the same religion: the appellant is Christian, and the applicant claims to be a practising Sikh; he is also an active member of a Sikh association (according to page 17 of the Appeal Book). Furthermore, the speed with which the applicant asked the appellant, whom he had only known for a few days, to leave her hotel and move in with him is not in keeping with his traditions and cannot be explained by the fact that he wanted to save her money, as he suggested. (Reasons for decision of the IAD, page 2; Panel’s Record [PR], page 3).
[24] Accordingly, as underlined by the IAD, Ms. Froment’s spouse claims to have been persecuted in India because of his Sikh religion. He also testified that he practises this religion and is a member of a Sikh association. It was on the basis of these facts that the IAD stated in its reasons that the differences in age and language and the haste with which he invited Ms. Froment to leave her hotel and move in with him are not in keeping with his traditions.
[25] In Kular v. Canada (Minister of Citizenship and Immigration), [2002] I.A.D.D. No. 373, the IAD stated the following:
The IAD must evaluate the bona fides of a marriage within the cultural context in which it took place. That culture is Sikh not Canadian. They may appear to be discriminatory to some, but the fact remains that these customs exist and govern choice of marriage partners among Sikhs in India.
[26] As far as the specific issue of language is concerned, Ms. Froment stated that the IAD erred in rejecting her application for this reason, among others. The IAD added that Ms. Froment spoke English rather well.
[27] On this point, it emerges from the decision that the IAD mentioned this factor in the context of the cultural differences existing between Ms. Froment and her spouse. It is obvious that the IAD raised this factor not to state that Ms. Froment did not speak English well, but rather to emphasize that the marriage of Ms. Froment and her spouse was not in keeping with his traditions.
[28] In Dhillon, Gurprit Singh v. Canada (Minister of Citizenship and Immigration), [IAB 89‑00571], Sherman, Ariemma, Tisshaw, August 8, 1989, the IAD acknowledged that differences in education and language were generally not sufficient to warrant the rejection of an application. The IAD nevertheless considered these factors, as well as others, such as the sponsor’s lack of knowledge about his spouse, before concluding that this was a marriage entered into for immigration purposes. (See also: Morris v. Canada (Minister of Citizenship and Immigration), 2005 FC 369, [2005] F.C.J. No. 469 (QL), paragraph 8.)
The IAD was correct in concluding that Ms. Froment’s spouse did not have good knowledge of matters concerning her
[29] The evidence shows that Ms. Froment and the applicant married in September 2000, only four months after his divorce in March 2000 (page 34 PR).
[30] Ms. Froment also testified that the applicant had told her that he had initiated divorce proceedings in a previous marriage (422 PR). However, the evidence shows that it was Mr. Malhi’s ex‑spouse who had asked for a divorce (page 46 PR).
[31] The testimony given by Ms. Froment also shows that she knew little about her husband’s status in the United States (403 et seq. PR).
[32] Contrary to what Ms. Froment stated (reply memorandum, paragraph 10 i), her husband was unable to give her children’s names at the interview with the immigration officer, held in November 2001. The IAD had good reason to draw a negative inference from this fact (page 32 PR).
[33] In addition, at the interview with the visa officer, the applicant did not know that Ms. Froment had a biological child who died at a young age. However, at the hearing, she stated that she had spoken to her husband about it (page 32, 401 PR).
[34] It is true that Mr. Malhi was able to name Ms. Froment’s children at the hearing, but the contrary would have been surprising. The applicant had all the time necessary to study the reasons for refusal mentioned by the visa officer in the decision of August 24, 2004. The hearing before the IAD was held on September 30, 2005. Accordingly, the applicant had more than a year to learn the names of the two children.
[35] Moreover, both the visa officer and the IAD asked the applicant about the children’s birthdates and what grades they were in at school. He was unable to answer (page 32, 460-462 PR).
[36] The applicant was unable to tell the visa officer what Ms. Froment enjoyed or what her personality was like. He simply stated that she was tall and thin (page 32 PR).
[37] In addition, at the hearing before the IAD, when asked what he shared in common with Ms. Froment, he simply stated, “I share everything with her” (page 471 PR).
[38] The IAD properly rendered its decision on the basis of the visa officer’s conclusions. It is clear that the IAD also came to its decision on the basis of the other evidence before it (Ni v. Canada (Minister of Citizenship and Immigration), 2005 FC 241, [2005] F.C.J. No. 290 (QL)).
[39] In addition, the IAD was entitled to take into consideration the applicant’s lack of knowledge of Ms. Froment. (Canada (Minister of Citizenship and Immigration), 2006 FC 691, [2006] F.C.J. No. 878 (QL).)
[40] Ms. Froment and her spouse have been married for five years. The letters submitted in evidence by Ms. Froment to show the genuineness of her relationship with the applicant are vague and superficial (pages 262 et seq. PR). (Morris, supra)
[41] In her reply, Ms. Froment mentioned that the IAD did not take into consideration that Mr. Malhi’s father had visited him in Canada and that her children called the applicant “papa Malhi”.
[42] Unless the contrary is shown, the IAD is presumed to have considered all the evidence. Simply not mentioning all the evidence does not rebut this presumption. (Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 (QL); Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.); Woolaston v. Canada (Minister of Manpower and Immigration), [1972] 28 D.L.R. (3d) 489 (S.C.C.), [1972] S.C.J. No. 79 (QL).)
[43] As far as the photocopies of the calling cards are concerned, (pages 227 to 232 PR), they do not prove anything, and the telephone call records (pages 131 to 328 PR) cannot in themselves make up for the major shortcomings in Mr. Malhi’s testimony.
[44] The same applies to the evidence of money transfers. In addition, on this point, it is worth noting that the applicant decided not to send a message with any of these transfers, although it was possible for him to do so (pages 37 et seq. PR).
[45] In addition, these exhibits will have considerably different weight depending on whether or not they were submitted only to the IAD and not to the visa officer who rendered the first decision concerning the genuineness of the marriage. In Tran v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1255, [2001] F.C.J. No. 1703 (QL), the following was stated:
The new evidence before the Appeal Division contradicts the evidence originally given before the visa officer, and this contradiction is not explained. I am of the view that the Appeal Division reasonably concluded that this additional evidence serves to create a veneer of genuineness to the relationship.
[46] In this case, Ms. Froment merely stated her disagreement with the IAD’s assessment of the evidence and the explanations given to justify the numerous and significant shortcomings in the evidence. She is trying to substitute her own opinion for that of the IAD with regard to the findings of fact it made. To sum up, she did not in any way show that these conclusions are patently unreasonable.
[47] A visa officer had first of all concluded that Ms. Froment did not establish that her marriage was genuine and had not been entered into by the applicant to obtain status in Canada. Ms. Froment then had an additional opportunity before the IAD to prove her marriage was genuine. Once again, she was unable to satisfy this second decision-maker that her marriage actually was genuine.
[48] Considering all the reasons mentioned by the IAD and the reasonableness of each one of them, Ms. Froment did not discharge the burden on her so as to show that this Court’s intervention is warranted.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed;
2. No serious question of general importance be certified. The parties did not propose any question to be certified, and the Court is of the opinion that this case turns on its own facts.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-475-06
STYLE OF CAUSE: DANIELLE MARIE FROMENT v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 15, 2006
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
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Stewart Istvanffy
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FOR THE APPLICANT |
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Claudia Gagnon
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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ISTVANFFY VALLIÈRES & ASSOCIÉS Montréal, Quebec
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FOR THE APPLICANT |
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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FOR THE RESPONDENT |