Date: 19990805
Docket: IMM-4095-98
BETWEEN:
SIMARJIT KAUR BATH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicant seeks an order setting aside a decision of the Appeal Division of the Immigration and Refugee Board, which decision upheld a visa officer's finding that an engagement between the appellant (Ms. Bath) and the applicant (Mr. Cheema) had been entered into by the applicant for the purpose of entering Canada, and that he had no real intention to permanently reside with his spouse upon arrival in Canada. The applicant's application for permanent residence was refused under subparagraph 6(1)(d)(i) of the Immigration Regulations, 1978, SOR/78-172:
| 6(1) Subject to subsections (1.1), (3.1), (3.2), (4), (5) and (6), where a member of the family class makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the member and the member's accompanying dependants if |
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| (d) in the case of a fiancée, |
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| (i) the sponsor and the fiancée intend to reside together permanently after being married and have not become engaged primarily for the purpose of the fiancée gaining admission to Canada as a member of the family class, . . . |
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[2] The appellant (sponsor) and the applicant have since married and evidence of the marriage was before the Board. The Board commented on the validity of that marriage under the Hindu Marriage Act but nevertheless accepted it as a fact:
| Some question arises as to whether this marriage is valid for the purposes of India law because of the provisions of section 5 of the Hindu Marriage Act which requires that a bridegroom be at least 21 years old before he may marry. Nevertheless, whether valid for the purposes of Indian law or not, a marriage ceremony was performed on February 13, 1998. |
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The Board then went on to discuss the central issue before it:
| The question which arises for determination on this appeal is as follows: Is the applicant [Mr. Cheema] a person who is entitled to an immigrant visa as the appellant's [Ms. Bath's] fiancé or is he barred from obtaining such a visa by virtue of the provisions of section 6(1)(d)(i) of the Regulations? Put another way, does the evidence in this case reveal, on the balance of probabilities, that the appellant and the applicant intend to reside permanently in Canada after being married and have not become engaged primarily for the purpose of the applicant gaining admission to Canada as a member of the family class? |
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| It is important to point out at the outset that section 6(1)(d)(i) of the Regulations requires that inquiry must be made into the intentions of both the appellant and the applicant. It is not sufficient for the appellant to have the intention of residing permanently with the applicant if the applicant does not have the same intention. |
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| Having assessed all of the evidence presented in this case, I have come to the conclusion that while the appellant's intentions with respect to permanent co-habitation are, on the balance of probabilities, genuine, the same cannot be said of the intentions of the applicant. Further, I am of the view that the primary purpose of the engagement in this case, at least as far as the applicant is concerned, was to gain the applicant admission to Canada. |
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[3] The Board referred, in coming to its conclusion, to the history of previous unsuccessful attempts by Mr. Cheema's family to obtain his admission to Canada. When Mr. Cheema was 10 years old, his uncle who resided in Canada tried to sponsor him as an adopted son. This sponsorship failed because the adoption was not properly carried out under Indian law, in spite of the existence of an adoption deed. Several years later, Mr. Cheema's father sought admission to Canada and listed Mr. Cheema as his dependant son. This application was also refused and it was noted that Mr. Cheema (Sr.) was now claiming Mr. Cheema (Jr.) as a dependant son, rather than alleging that he had been adopted. (The adoption deed was still in existence.) After this second refusal, Mr. Cheema's father sought and obtained a court order clearing the adoption deed.
[4] The application to set aside the adoption deed noted that the adoption had originally been undertaken for the purpose of sending the applicant abroad. The Board concluded on the basis of that documentation that the adoption had been entered into dishonestly, for the purpose of gaining admission for Mr. Cheema to Canada:
| The implication which I draw from this document is that an adoption had previously been executed between the applicant's natural father and his uncle which was not a genuine adoption but rather was undertaken only for the purpose of effecting the applicant's admission to Canada. When that purpose was not achieved, application was then made to have any legal implications which might arise from the adoption deed nullified. |
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| Based on this evidence, I would make the following findings of fact in this case on the balance of probabilities. The applicant's family has been concerned for many years now to affect the applicant's admission to Canada as a permanent resident. The family efforts in that regard have not been entirely honest and above-board. In particular, I find that the applicant's family attempted to have the applicant come to Canada as the adopted son of the applicant's uncle despite the fact that the family knew that the adoption was not a genuine one and was undertaken for immigration purposes. |
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| I find further that the applicant's family were instrumental in arranging the engagement of the applicant to the appellant when the applicant was only 15 years old and that the primary purpose of that engagement, at least as far as the applicant's family and the applicant were concerned, was to effect the applicant's admission to Canada as a permanent resident. |
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| I reject the affidavit submitted by the applicant himself attesting to the genuineness of his intentions to reside permanently with the appellant in Canada. I find that this affidavit is simply part of the continued effort made by the applicant and his family to gain admission to Canada at all costs. I give it little weight. |
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| I note as well in this regard that the information which the applicant provided to the visa officer concerning his communications with the appellant differed from what the appellant said herself at the hearing of this appeal. The applicant told the visa officer that he spoke to the appellant on the telephone approximately two or three times a month on a regular basis. The appellant herself said initially that they did not speak on the telephone. When the applicant's information on this score was put to the appellant, the appellant then changed her answer and indicated that she did speak on the telephone to the applicant, but had done so only one or two times. When asked why the applicant would tell the visa officer that they spoke regularly on the telephone, the appellant answered that she did not know. |
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| I found the appellant to be a generally credible witness and I find that this discrepancy between her evidence and that which the applicant provided to the visa officer concerning the telephone call leads me to the conclusion that the applicant was trying to mislead the visa officer in this regard. This calls into question generally the reliability of the evidence provided by the applicant. |
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| It is significant, in my opinion, that in their testimony at the hearing of this appeal, both the appellant and her mother indicated that at the time the engagement was entered into between the appellant and the applicant, neither the appellant nor her mother knew of the previous attempts made by the applicant and his family to effect the applicant admission to Canada. |
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| This confirms me in the view that while the attentions (sic) of the appellant with respect to this relationship are genuine and that she does intend to reside permanently with the applicant, the same cannot be said, on the balance of probabilities, with respect to the applicant. In my view, the evidence, on balance, leads to the conclusion that at least as far as the applicant is concerned, the engagement was undertaking (sic) primarily for effecting his admission to Canada. |
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[5] Counsel for the applicant contested the Board's seeming reliance on evidence of past attempts at immigration and reminded the Board that future intentions are the relevant issue. The Board addressed that argument as follows:
| Counsel for the applicant has pointed out, correctly, that it is the applicant's future intentions which must be assessed and he calls into question the reliance on things which may have been done by the applicant or his family in the past. However, it is in my view, that actions which have been undertaking (sic) by the applicant and his family in the past may be examined and relied on for the purpose of predicting what his future intentions might be. |
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[6] Counsel for the appellant argues that the Board erred because it placed emphasis on the intentions of the appellant's family rather than relying more heavily on his intentions and that it erred in attributing an intention in the past to the applicant to gain admission to Canada when he was too young at the time to form such an intention.
[7] I am not persuaded that the Board erred in referring to the intentions of the applicant's family when assessing the applicant's intention. As the Board noted, the applicant was only 15 years old at the time of the engagement. His family arranged that engagement and subsequent marriage. The applicant's evidence to the visa officer was that initially he had not wanted to get married because he thought he was too young, although he changed his mind after seeing a picture of his fiancé. He also told the visa officer that he was getting married at such a young age because "the middleman was pressuring my father - my father said that this fellow was pressuring him" and that the middleman "was like a family friend - he also had family in the village and we could not refuse". The visa officer noted in his refusal letter that Ms. Bath was more than four years older than Mr. Cheema and that the cultural norm in India is that the husband is four to seven years older than his wife, although an age difference of a couple of years "in favour of the female may be overlooked". Reference was made to the requirements of the Hindu Marriage Act, set out above. Also, the visa officer recalled that at the interview the applicant had indicated that neither his father nor any of his uncles had been engaged at such a young age, he knew of no male that had been engaged or married at such a young age, and he could give no credible explanation as to why his family wanted him to get engaged at such a young age.
[8] I do not read the Board's decision as substituting an assessment of the family's intention for that of the applicant. Rather, the Board took into account the family's intentions as a relevant factor in assessing the applicant's intention. This it was entitled to do, particularly on the facts of this case, where the engagement and subsequent marriage were arranged by the family, the applicant was so young, and there was conflicting evidence concerning the frequency of communication that took place between the applicant and the appellant.
[9] Also, I do not read the Board's decision as relying inappropriately on the applicant's intentions when he was 10 and 13 years of age. The Board was clearly treating the applicant's intentions at that time as coalescing with those of his family. The applicant's assertion that he did not know of the earlier attempts to obtain landing for him is not credible. While a 10 year old might not be actively involved in the procedure concerning his adoption, it is not believable that he did not know of it.
[10] Counsel also argues that a breach of the rules of fairness occurred because the Board discouraged the hearing of additional witnesses after two days of hearing, and found it unnecessary to hear the applicant orally by telephone conference. The relevant portion of the transcript with respect to the latter read:
| COUNSEL: Sir, we have sworn testimony of the Jaswinder Singh, the applicant, and Sher Singh, the one who played the part of matchmaking, (Inaudible) Singh, the Priest who performed the marriage and Mr. Babir Singh (ph) who was at that time the chairman of the village (inaudible). We have (inaudible) --- |
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| INTERPRETER: Just one minute. |
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| COUNSEL: We have made arrangements for the telephone conference. |
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| PRESIDING MEMBER: Now, Counsel, we've got to stop this at some point. This hearing has been going on for two days. I'm not going to hear evidence from another four witnesses. |
| COUNSEL: Sir, this Board has to do in order to do whatever is needed to do justice, this Board has to (inaudible) receive this evidence. You are bound by your (inaudible). |
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| PRESIDING MEMBER: Well, what are those documents you have in front of you? |
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| COUNSEL: These are the copies of the sworn affidavit which is part of the disclosure. |
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| PRESIDING MEMBER: Well, if we have their affidavits why do we need to hear their evidence orally? |
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| COUNSEL: I don't want to examine them, but my learned colleague may. |
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| PRESIDING MEMBER: Sir, what you're saying to me is that you do not wish to lead evidence from them but you have them available for questioning by Mr. Buchanan, should Mr. Buchanan wish to cross-examine them on their affidavits? |
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| PRESIDING MEMBER: Alright. Mr. Buchanan, do you need to question them with respect to their affidavits? |
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| MR. BUCHANAN: I choose not to. |
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| PRESIDING MEMBER: Alright, thank you. So, that leaves the one witness then who is? |
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| PRESIDING MEMBER: And, he will testify in relation to what? |
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| COUNSEL: He went as one of the guests (inaudible) and he will just confirm the wedding. It's up to you, Your Honour. If you feel it will not serve any purpose. |
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| PRESIDING MEMBER: Well, I'm not sure that it will, but if it's fairly contained, concise evidence then I'm prepared to let you call him and you can put your questions to him. |
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I find no breach of the rules of fairness in the Board's decision in this regard.
[11] Counsel for the appellant argues further that the Board erred in rejecting the applicant's affidavit when he had not been cross-examined on it. Reference is made to the decisions in Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services (1985), 51 O.R. (2d) 302 (Ont. Div. Ct.), Kaur v. Canada (Minister of Employment and Immigration) (1993), 21 Imm.L.R. (2d) 301 (F.C.T.D.), Sivaraj v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm.L.R. (2d) 45 (F.C.T.D.) and Li v. Canada (Minister of Citizenship and Immigration) (A-1657-92, July 20, 1994) (F.C.T.D.). The last three cases relate to situations in which the Convention Refugee Determination Division discouraged the introduction of evidence and then relied on the absence of evidence on that very point as a reason for its negative decision. That is not the situation in this case - those cases do not apply.
[12] With respect to the Pitts case, a decision-maker is not required to accept affidavit evidence merely because the affiant has not been cross-examined, any more than a decision-maker is required to accept oral testimony that is not challenged through cross-examination. In both cases, a certain degree of credibility will be given to the evidence, a presumption of credibility exists. The evidence in question, however, must still be assessed in light of the evidence adduced in the case as a whole, and whether it accords with common sense. The Pitts case itself sets out some of the relevant questions: does the witness (affiant) have an interest in the outcome of the litigation; has the witness (affiant) exhibited undue partisanship towards one side of the issue; does the witness (affiant) show a tendency to exaggerate in his (her) testimony; has the witness (affiant) made other statements that cast doubt on his (her) evidence (affidavit); does the evidence make sense - is it probable; is the evidence contradicted (or rendered questionable) by other evidence. In summary, the Board's rejection of the applicant's affidavit cannot be challenged solely on the ground that the applicant was not subjected to cross-examination.
[13] Counsel for the applicant seeks to certify two questions:
| 1. At what age should a minor child be capable of making an independent decision or forming an intention to bind him or her respecting an immigration matter? |
| 2. What weight should the Court place on an affidavit before it that has not been subject to cross-examination? |
[14] Neither question is appropriate for certification. The first question is impossible to answer because it will always depend on the particular facts of the case including, for example, the maturity of the child and the nature of the intention in issue. Counsel refers to the decisions in Neves v. Minister of Employment and Immigration (1987), 2 Imm.L.R. (2d) 309 (I.A.B.), Wynia v. Minister of Manpower & Immigration (August 11, 1970, I.A.B.), and Wittkamper v. Minister of Manpower & Immigration (1969), 61 A.C. 369 (I.A.B.). These decisions are not binding on this Court and, more importantly, they deal with the intention to leave Canada permanently, not an intention to enter into a bona fide marriage. With respect to the applicant's intentions at age 10 and 13, the Board was concerned with the family's intention, not the applicant's intentions alone, divorced from those of his family. The Board clearly assumed that at 15 the applicant could form an intention to enter into a bona fide marriage. Its decision is based on that premise. The Board found, however, that the applicant had not formed that intention. Even if an answer could be given to the first question, in the abstract, it thus would not be dispositive of this case.
[15] The answer to the second question is a matter of trite law, as discussed above. There is no serious question raised by it. Thus it also could not be dispositive of the applicant's case and therefore certification should not be given.
[16] For the reasons given this application must be dismissed.
Judge
OTTAWA, ONTARIO
August 5, 1999