Federal Court Decisions

Date: 20020322

Docket: IMM-2297-01

Neutral citation: 2002 FCT 313

OTTAWA, ONTARIO, THIS 22^nd DAY OF MARCH 2002

PRESENT: THE HONOURABLE MADAM JUSTICE DANIÈLE TREMBLAY-LAMER

BETWEEN:

                                       MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                    Applicant

                                                                            - and -

                                                                      JAGDIP SINGH

                                                                                                                                               Respondent

                                                              REASONS FOR ORDER

[1]                 This is an application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board (IAD) dated April 26, 2001. The IAD allowed the respondent's appeal from the refusal of the sponsored application of his spouse, Sukhwinder Kaur.

[2]                 The respondent, Jagdip Singh, was born on January 10, 1954. He became a permanent resident of Canada on December 24, 1990 and now has Canadian citizenship.

[3]                 The respondent and Ms. Kaur entered into an arranged marriage on December 25, 1998 in India. This was Ms. Kaur's first and the respondent's third marriage. The respondent has a child from his first marriage who was adopted by his sister in Canada.

[4]                 On May 14, 1999, the respondent submitted an undertaking to sponsor Ms. Kaur to Canada. On July 27, 1999, Ms. Kaur submitted an application for permanent residence and she was interviewed by visa officer David Macdonald on November 2, 1999.

[5]                 Mr. Macdonald refused Ms. Kaur's application on the basis that she had entered into marriage with her sponsor primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with her spouse. He based his decision on the following considerations:

           -           It was inconsistent with the normal practice in India for a marriage to be arranged between a couple that is incompatible in age. Age is a factor that is considered to be of prime importance in arranging marriages. An age difference of four to seven years in favour of the male is the acceptable standard.

           -           Ms. Kaur's ignorance of the reasons for the breakdown of the respondent's second marriage was very unusual. Marriage among the Sikhs is regarded as a sacrament and divorce is socially disapproved, even abhorred. There is a general reluctance to match a young never married daughter to a divorced man. When such a union is contemplated, the family of the other partner investigates the circumstances surrounding the divorce to rule out any factors that may jeopardize marital harmony. The prospective partner is fully apprised of those circumstances before his or her consent to the marriage is obtained.

           -           Ms. Kaur was unaware that this was the respondent's third marriage and that he had a child from his first marriage, although she had the respondent's divorce documents which contained this information.

[6]                 For these reasons, Ms. Kaur was found to be a person described in subsection 4(3) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations") and thus a member of the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2. (the "Act"). The respondent appealed this decision to the IAD.

[7]                 The IAD found the respondent and Ms. Kaur's testimony to be credible, trustworthy, and consistent, and that there was substantial evidence of contact between the respondent and Ms. Kaur. It was also satisfied, on a balance of probabilities, that there may have been some problem with the interpretation at the interview in relation to Ms. Kaur's responses to the respondent's previous marriages. Finally, the IAD found that Ms. Kaur and the respondent had overcome the visa officer and Minister's counsel's concern and, despite the difference in age or marital background, held that the evidence indicated a genuine spousal relationship. Therefore, the IAD concluded that Ms. Kaur did not enter the marriage primarily for the purpose of gaining admission to Canada as a member of the family class, and that she intends to reside permanently with the respondent.

[8]                 The applicant submits that this conclusion is perverse and made without regard to the evidence before it. I agree for the following reasons:

[9]                 First, there was no evidence to overcome the concern regarding Ms. Kaur's lack of knowledge at the interview about the respondent's first marriage and his child. When she was interviewed by the visa officer, Ms. Kaur said that this was the respondent's second marriage, when it fact, it was his third. She was also unaware that the respondent had a child. During her testimony before the IAD, Ms. Kaur explained that there had been some difficulty with interpretation at her interview with the visa officer.

[10]            The IAD was satisfied, on a balance of probabilities, that there may have been some problem with the interpretation at the interview in relation to Ms. Kaur's responses to the respondent's previous marriages. This finding was not supported by the evidence. Indeed, the declaration of the visa officer states that Ms. Kaur was interviewed in Punjabi, her native language, and that a qualified interpreter fluent in Punjabi language was used. Furthermore, at no time during the interview did Ms. Kaur indicate that she did not understand the interpreter or that she was confused with the questions put to her. It is clear to me that the IAD's conclusion was made without regard for the material before it.

[11]            Secondly, the IAD found that Ms. Kaur and the respondent's evidence concerning the circumstances of the marriage was consistent. The applicant submits that the respondent's testimony as to how he and Ms. Kaur met was inconsistent with the statement provided by Ms. Kaur during her immigration interview. I agree.

[12]            The respondent stated that he met Ms. Kaur when she accompanied Amarjit to a meeting with him. He stated that Amarjit was the prospective wife, but that after the meeting he decided to marry Ms. Kaur. He stated that the following day he went to Ms. Kaur's parents' house to ask for her hand in marriage. Ms. Kaur, on the other hand, told the visa officer that Amarjit was the "middle man" who first introduced the respondent to her mother and brothers and then her whole family met him. At the IAD hearing, she was unable to say when the respondent asked her parents for her hand in marriage, other than it was within ten days. Ms. Kaur also testified that Amarjit was from her village while at her interview, she stated that Amarjit was from the respondent's village.

[13]            Again, the IAD's finding that the testimony of Ms. Kaur and the respondent was consistent is not based on the evidence before it.

[14]            Although I recognize that it is not the role of this Court to substitute its decision for that of the IAD, in the case at bar, the IAD made findings of fact without regard to the material before it. Decisions based on erroneous findings of facts warrant the intervention of the Court.

[15]            Consequently, the application for judicial review is granted. The matter is referred back for redetermination by a newly constituted panel.

                                                                                                                          "Danièle Tremblay-Lamer"

JUDGE