Docket : IMM-3815-03
Ottawa, Ontario, this 14th day of June, 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
SHARNJEET KAUR DHILLON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board ("Board"). The Appeal division dismissed the Applicant's appeal and upheld the Visa Officer's ("Officer") decision rendered on February 5th, 2002, wherein the sponsored application was refused. The Officer reached this decision based on a finding that the Applicant, having sponsored Gurpreet Singh Dhillon ( her husband) as a member of the family class, had entered into marriage primarily for the purpose of facilitating his immigration to Canada and indicated in the Reasons for Decision that the husband did not intend to reside permanently with the Applicant. The Appeal Board came to these same conclusions having also found that the relationship was entered into primarily for the purpose of gaining admission to Canada and determined that, should the husband come to Canada, the couple did not intend on permanently residing together.
FACTS
[2] The Applicant was born on December 24th, 1980. She is one of six daughters. The Applicant is a permanent resident in Canada having arrived in November 2000 as the dependant of her parents who were sponsored by her older sister. She testified that her paternal uncle and another family acquaintance acted as mediators to arrange her marriage. The match was first proposed and discussed in January 2001. The Applicant further testified that she went to India with her father and sister at the end of February 2001. She first met her husband on March 7th, 2001. She spoke with him for approximately an hour on March 8th, 2001. They married on March 9th, 2001. The Applicant's two sisters are also married to two of her husband's brothers. Her sister, Kuldip, married on March 5th, 2001 and her sister, Charanjeet, married on the same day as the Applicant. The Applicant testified that the three weddings were held in quick succession so that guests and family members would not have to travel twice to attend the weddings.
[3] The Applicant presented various photographs of her and her husband to the Board: a single one from the four-week stay in India after her wedding in March 2001 and others from her visit to India in December 2002. She also submitted telephone bills showing that calls were placed to her husband's number in India. She also tendered numerous letters she exchanged with her husband in 2001 which were all signed with her name in full. No letters were submitted for 2002 or 2003.
STANDARD OF REVIEW
[4] I agree with the Respondent that, as set out in Tse v Canada (Secretary of State) [1993] A.C.F. No. 1396, decisions of the Immigration Appeal Division of the Immigration and Refugee Board ("Board") should be upheld unless they are patently unreasonable. I also agree that where there the Board has considered all of the relevant factors in deciding the Applicant's case, it is not up to this Court to re-weigh the evidence (see Cherrington v. Canada (Minister of Citizenship and Immigration) [1995] F.C.J. No. 578).
THE BOARD'S DECISION
[5] The Board examined the Officer's decision and came to the same conclusion that the Applicant had entered into marriage primarily for the purpose of facilitating her husband's immigration to Canada. The Board also indicated on page 3 of the Reasons for Decision that, were the husband to come to Canada, the couple did not intend to reside together permanently. The Board reached this decision based on its analysis of the evidence and specifically concluded that:
a. The Applicant is 10 years younger than her husband and testified that she liked her husband because he was vegetarian, wore a turban and had a beard. However, the Board also noted that despite over two years of marriage, as of the Appeal hearing, the Applicant was "hard pressed to relate any other of her husband's features or qualities which she liked or admired";
b. The Board found that the photographs from 2002 were "quite remarkable" because the husband is "completely stone faced in all of them. His body language includes a rigid back and crossed arms. He appears to make a point of maintaining as much distance as possible from the Applicant. In some photos she has her arms around him but there is no reciprocity or affection displayed on his part". The Board found this "peculiar for a married couple since the Applicant lived with her husband for four weeks after their wedding and maintains that they have communicated regularly since" and it was "strange" to them that the husband showed no happiness in a reunion with the Applicant after almost two years. The Board also did not accept counsel for the Applicant's submission that the pictures depict a "normal stance" of a Punjabi married couple and stated that there was no evidence to support that assumption;
c. With regards to the Applicant's assertion that she phoned her husband every couple of weeks, the Board determined that the Applicant lives with her in-laws and that there was no way to prove that she actually placed these calls, nor could it determine that she spoke during these calls as either of her husband's parents or any of his siblings could have been speaking to him on the telephone and not the Applicant;
d. The Board determined that the correspondence between the couple that was submitted included "numerous letters" that "show greater affection and personal connection than any of the other evidence". However, only correspondence from 2001 was submitted and none for 2002, nor 2003. Based on her testimony, the Board determined that Applicant had difficulty explaining why she signed greeting cards to her husband using her full name; and
e. The Board found that the husband "is the sole remaining son of his family in India. Everyone else in his family has immigrated to Canada". It also found that, in the Applicant's family, "her sister, Charanjeet, is the only daughter left in India who did not come to Canada with her family. Given this situation, the [Board found] it very telling that two quick marriages between these families solve all remaining immigration and reunification issues".
[6] The Board concluded by stating on page 3 of the decision:
The [Board] is not persuaded, on a balance of probabilities, that the marriage is genuine. In addition, the [Board] is also not satisfied that the [husband] intends to reside permanently with the [Applicant].
ISSUE
[7] In my view the case at bar raises essentially one issue: did the Board err in dismissing the Applicant's appeal by upholding Officer's decision to refuse the sponsored application?
ANALYSIS
[8] To come to a determination in this matter, I will therefore analyse the Board's decision as it is presented in paragraph 5 above:
A. The couple's relationship
[9] The Applicant's Memorandum of Fact and Law is silent regarding the Board's assertion that the Applicant is 10 years younger than her husband and testified that she liked her husband because he was vegetarian, wore a turban and had a beard; nor does the Applicant address the Board's finding that despite over two years of marriage, as of the Appeal hearing, the Applicant was "hard pressed to relate any other of her husband's features or qualities which she liked or admired".
B. 2002 Photographs
[10] The Applicant alleges that the Board erred in inferring from a few photographs that the marriage was not genuine because of "a lack of affection". Counsel for the Applicant submits that in the context of Punjabi culture it is not customary for people to show affection in public, that the couple are high orthodox Sikhs and that the Applicant emphasized that she was interested in someone who was a religious Sikh. The Applicant therefore claims that the Board failed to take into account the cultural norms when it considered this evidence and thus it was unreasonable for it to draw an adverse inference. However, I note that the Board did not conclude that the marriage was not genuine on the basis of the photographs alone, but took into consideration all of the evidence presented before it. I also note that in its decision the Board specifically addressed the issue of cultural norms and stated on page 3 of its Reasons for Decision that:
The [Board] does not accept the [Applicant's] counsel's submission that this is a normal stance for pictures of a Punjabi married couple. There is no evidence to support that assumption. It was strange to the [Board] that the [husband] showed no happiness in a reunion with the [Applicant] after almost two years.
[11] Furthermore, the Respondent submits that, when confronted with the apparent lack of affection shown in the photographs, the Applicant stated that the pictures were "from the Gurdwara, the holy temple, and it's supposed to be like this". However, based on my review of the transcript as well as the parties submission, I am satisfied that it was only after the Board pointed out that not all of the pictures were taken at the Gurdwara that the Applicant stated "we don't [...] take pictures too close between husband and wife". I am therefore of the opinion that, based on the evidence presented before it, the Board reasonably concluded that the photographs showed a "lack of affection" between the couple and that it was not patently unreasonable to come to such a conclusion.
C. Telephone Bills
[12] The Applicant accepts that the telephone bills in and of themselves do not prove that calls took place between her husband and herself, but adds that this evidence does not support an adverse finding. However, the only mention the Board make with regards to this evidence is on page 3, paragraph 8 of its Reasons for Decision where it states:
The [Applicant] also tendered, [...], telephone bills. These show that calls were placed to the [husband's] number in India. As the [Applicant] asserts that she lives with her in-laws, there is no way to prove that she actually placed these calls or spoke during these calls as either of her husband's parents or any of his siblings could have been speaking to him on the telephone and not the [Applicant].
I therefore find that the Board committed no error in assessing the Applicant's assertions that she phoned her husband every couple of weeks and to determine that the in-law's phone bills did not necessarily support this assertion.
D. Correspondence
[13] Regarding the correspondence, I have carefully reviewed both the parties' submissions as well as the relevant part of the Board's decision which states:
Nevertheless, the [Applicant] could not answer why she signed greeting cards to [her husband] with her full name. The letters tendered are all from 2001. No letters from 2002 or 2003 were tendered.
Counsel for the Applicant submits, based on this part of the decision as well as the exchange captured in the transcript on pages 33 and 58 (contained in the Applicant's Record) that the Board wrongly asserted that the Applicant did not give any explanation for the manner in which she signed her name (see paragraph 41 of the Applicant's Memorandum of Fact and Law). In fact the transcript reveals on page 58 that the following exchange took place when the Applicant was asked why she signed the correspondence using her full name:
Q: [...] is there a reason [...] why almost all of [these letters and cards] are signed with your full name?
A: Just like that, this is how I write, there's no... (my emphasis)
Q: Well, I'm just a little puzzled, because I know that when I write to my husband I certainly don't call him by his full name and then sign my full name when I'm signing the letter.
A: Well each one has his own way and nature of doing things and you also have to do some things what other person likes, so... (my emphasis)
[14] While this exchange is in no way exhaustive, it does provide some basis on which to draw reasonable conclusions. The first answer to the question regarding the Applicant's reason for signing her full name ends with "there's no". Although the sentence is incomplete, it must be considered in context and in full consideration of the fact that the Applicant also replied: "this is how I write". I am therefore of the opinion that the Applicant's reply to the first question does not provide an explanation of her reason for signing her full name when corresponding with her husband.
[15] With regards to the Applicant's reply to the second question I find that her statement is contradictory. On the one hand she states: "each of us has his own way and nature of doing things", which could reasonably be taken to mean that she signed using her full name because that is her way; but she then goes on to say: "you also have to do some things what the other person like so this is how", which on the contrary could reasonably be taken to mean that she signed using her full name to please her husband. With this in mind, I find that while counsel for the Applicant was correct in submitting that she had in fact provided an answer, based on my review of the transcript I cannot find that the answers she provided was "clear". I am therefore inclined to accept the Respondent's submission that it was open for the Board to find this explanation unsatisfactory.
[16] I have also noted that the Applicant's testimony (on pages 48 to 52 of the transcript) also raises the issue of the letters in 2001 being addressed to the Applicant's parents home rather than to her in-laws where she claims to have lived since her marriage (see page 67) . I have therefore determined that the decision, while not exhaustive in its reasons with respect to the correspondence, does take into consideration all of the evidence provided and reasonably concluded based on the Applicant's testimony, both that she had difficulty explaining why she signed greeting cards to her husband using her full name and that only correspondence from 2001 was submitted with none for 2002, nor 2003.
E. Marriage between families
[17] While I accept in principle counsel for the Applicant's argument that the "mere fact that two families were marrying their children does not justify an inference that the marriages are not genuine", I must emphasise that the evidence brought forward in the case at bar raises substantially more than a single"mere fact". Here the onus is on the Applicant to show that the marriage is genuine and I am satisfied, based on my review of all the submissions, that in this case, the Board's decision to dismiss the appeal is reasonably supported and takes into consideration all of the evidence that was before it. Contrary to the Applicant's submissions I cannot conclude that this case was decided exclusively under the Horbas test, nor can I accept the allegation on page 19 of the Memorandum of Fact and Law that "no finding with respect to whether or not the marriage was entered into for the purpose of facilitating the immigration of the Applicant's husband" to Canada was made. The Board clearly states on page 3 of the decision:
The [Board] is not persuaded, on a balance of probabilities, that the marriage is genuine. In addition, the [Board] is also not satisfied that the [husband] intends to reside permanently with the [Applicant].
CONCLUSION
[18] Based on my review of the Officer's decision as well as the parties' submissions, I am of the opinion that the Board's findings are supported by the evidence that was before it and consequently was reasonable. I therefore find that the Board did not err and rendered a decision that took into account all of the evidence that was before it.
[19] The parties were asked if they had any questions for certification to propose and they did not.
ORDER
THIS COURT ORDERS THAT:
- This application for judicial review is denied and no question will be certified.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3815-03
STYLE OF CAUSE: DHILLON v. MCI
PLACE OF HEARING: TORONTO
DATE OF HEARING: Thursday June 10, 2004
REASONS FOR ORDER : Mr. Justice Simon Noël
DATED: June 14th, 2004
APPEARANCES:
Ms. Krassina Kostadinov FOR PLAINTIFF / APPLICANT
Mr. Ian Hicks FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Mr. Lorne Waldman
Waldman & Associates
Toronto, Ontario FOR PLAINTIFF/APPLICANT
Mr. Ian Hicks
Department of Justice
Toronto, Ontario FOR DEFENDANT/ RESPONDENT