Kaur v. Canada

Appearances:

M. Berger, for the appellant.
J.D. Taylor, for the respondent.

BACKGROUND

1. Manedar Pal KAUR, a permanent resident of Canada, appealed the refusal of the application for permanent residence in Canada of Sarabjit Singh whom she had sponsored as her fiancé in September 1993. The couple subsequently married on February 9, 1997, in India, after the 1995 refusal but prior to the hearing of the appeal.
2. These are the reasons for the decision in the appeal which was heard on April 4, 1997, in Toronto. The applicant, Ms. Kaur, was represented by Max Berger, Barrister and Solicitor, with the respondent Minister of Citizenship and Immigration being represented by J.D. Taylor, Appeals Officer. Documentary evidence included exhibits submitted by the appellant [See Note 1 below] and materials in the Record. Oral testimony was given by the appellant. The panel found her to be a credible and trustworthy witness, giving evidence in a clear, candid and thoughtful manner.

Note 1: Exhibits A-1, and A-2.

3. A visa officer had refused Mr. Singh’s application pursuant to paragraph 6(1)(d) [See Note 2 below] of the Immigration Regulations, 1978, (“the Regulations”), because he believed that the applicant was claiming a fiancé relationship primarily for the purpose of gaining admission to Canada and that he did not intend to reside permanently with his sponsor after being married. In his letter of refusal dated May 17, 1995 [See Note 3 below], the visa officer indicates that, as in this case, the majority of marriages in the Punjab are arranged by parents through relatives, friends and acquaintances. He states:

Note 2: 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 (d) in the case of a fiancée, (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, (ii) there are no legal impediments to the proposed marriage of the sponsor and the fiancée under the laws of the province in which they intend to reside, and (iii) the sponsor and the fiancée have agreed to marry each other within ninety days after the admission of the fiancée, or.

Note 3: Record, pp. 3-4.

Factors which are thoroughly considered by each side before finalizing the arrangement include age, education, religion, family and marital background, earning capacity, etc. The prospective couple are fully briefed about each other’s particulars.

(Typed as per original document with errors and/or omissions)

4. He gives as factors and information considered in reaching his decision the following:

– During your interview you displayed a surprising lack of knowledge regarding details of your sponsor’s personal life. In any arranged relationships which would lead to marriage, the parties are kept fully apprised not only about each other’s particulars but also about each other’s families. You were interviewed almost a year after your alleged engagement with your sponsor yet, you had no idea what her hobbies or interests were.

– You stated that your reason for marrying in Canada was because your paternal uncle died. I find this assertion weak particularly as you agreed it unusual for the oldest son to be married abroad and for the parents not to attend.

(Typed as per original document with errors and/or omissions)

5. Citing the applicant’s lack of knowledge about his sponsor demonstrated at the interview, the visa officer concludes that:

…your claimed fiancee relationship with your sponsor does not conform to the customary practices of the community to which you and your sponsor belong and, therefore, does not appear to have been entered into for any other purpose but to obtain for you permanent residence in Canada.

(Typed as per original document with errors and/or omissions)

PRELIMINARY

6. Appellant’s counsel sought to introduce into evidence a wedding invitation in the Punjabi language for which he requested translation by the interpreter. He submitted that the document in question went directly to the issue of intent of the applicant in that it was an invitation from the groom’s side of the family. He advised that he intended to address it in his questioning of the appellant. The respondent objected in that it had not previously been disclosed and was untranslated. The panel ruled that it is not the practice of the Appeal Division to have interpreters translate documents, and, in any case, to do so would encourage violation of the 20-day disclosure rule. However, because counsel saw the document as going directly to the issue of intent and would question the appellant on it, the panel allowed it in evidence.
7. At the conclusion of the hearing, appellant’s counsel asked that one of three videotapes of the wedding ceremony be kept by the Division as reference for the panel in the event that questions arise in review of the hearing. The respondent objected on the basis of no prior disclosure. The panel was willing to accept that there are videotapes as described by the appellant in her testimony. It ruled that, because appellant’s counsel failed to disclose the materials in accordance with Rule 18 of the Appeals Division [See Note 4 below], accepting the videotapes without the respondent having had an opportunity to view them would prejudice the respondent. The panel noted that the Appeals Officer was not consenting and it ruled that it was not prepared to waive the disclosure rules.

Note 4: 18.(1) Any party shall, in any proceeding, serve on the other party, at least 20 days before the date set for a hearing, a copy of all information, documents, statements and written arguments that the party intends to produce at the hearing, unless the information, documents, statements and written arguments were produced at a conference held in accordance with rule 17. (2) For the purposes of subrule (1), where any information and documents are available to the public, a party may serve, instead of a copy thereof, a written notice that sets out the appropriate titles of, and references for, the information and documents and where they can be obtained. (3) A party who intends to reply, at a hearing, to the evidence referred to in subrule (1) shall, at least 10 days before the date set for the hearing, serve on the other party a copy of the reply.

8. The panel expects that counsel who appear before the Appeal Division to be conversant with the practices and procedures of the Division including the Immigration Appeal Division Rules. Counsel should comply with those practices and procedures.

ISSUES

1. Ground of Refusal

9. Because the tests differ for a “fiancée of convenience” and for a “marriage of convenience”, the panel canvassed both the appellant’s counsel and the Appeals Officer on the impact, if any, of the subsequent marriage on the ground of refusal. Having listened to both counsel, the panel ruled that, despite the subsequent marriage, the ground of refusal in this case is “fiancée of convenience” pursuant to paragraph 6(1)(d) of the Regulations. The panel committed to the inclusion in written reasons of the rationale for this decision. It follows.
10. The applicant was interviewed by the visa officer as the fiancé of the sponsor since that was his status at the time of application. The issue before the visa officer, then, was firstly, whether, at the time of application, both the applicant and the sponsor intended to live together permanently after marriage and, secondly, that their purpose in becoming engaged was not primarily to gain the fiancé’s admission to Canada. If either branch of this test is not met, the visa officer is precluded by paragraph 6(1)(d) from issuing an immigrant visa to a sponsored fiancé. The panel concurs with appellant’s counsel and with the Appeals Officer that, while the marriage is a factor to be taken into account by the panel in considering intent, the appeal to be heard is of refusal as a fiancé of convenience. Further, although the couple is now married, the respondent did not move to amend the ground of refusal.

2. Legal Validity of Refusal by Visa Officer

11. The appeal before the Board is a de novo hearing at which evidence not previously before the visa officer may be presented. If the panel finds such evidence to be credible and trustworthy and such evidence assists the appellant in discharging his or her onus to show that the refusal is not valid in law, there would be no necessity to exercise the discretionary powers of the Appeal Division. Such is the case in this matter. The panel has allowed the appeal in law, based on evidence adduced at the hearing.
12. Appellant’s counsel challenged the legal validity of the refusal in law, as well as in fact. He based his challenge in law on the ‘skimpiness’ of the visa officer’s questions and the brevity of his interview of the applicant, holding that the visa officer had the duty to ask follow-up questions in order to inform himself of the matter before him and that his failure to do so constituted an error in law. The panel finds this argument to have little merit.
13. Due to the de novo nature of an appeal before the Appeal Division, it is for the appellant to show that the applicant is not caught by the ground of refusal. It is not for the respondent to show that the visa officer was correct. Further, while the action of the visa officer may impact on the weight that this panel may give to the visa officer’s evidence, it will not, in and of itself, be determinative of the appeal as the onus is still on the appellant as noted above.

3. Humanitarian and Compassionate Considerations.

14. Appellant’s counsel has asked that, if he is unsuccessful in his legal challenge, the panel consider allowing the appeal using the Appeal Board’s discretionary jurisdiction, if it is satisfied that evidence establishes that there are compassionate or humanitarian considerations sufficient to warrant the granting of special relief. While it would seem unlikely that a panel, having found an applicant to be a fiancé of convenience, would allow the appeal on a compassionate or humanitarian basis, an appeal on such basis does exist. [See Note 5 below] In the case at hand, however, because it has allowed the appeal in law, the panel has not found it necessary to consider the exercise of its discretionary jurisdiction.

Note 5: Dyal Rapinderjit v. M.E.I. (IAD 87-6066), Wlodyka, Anderson, Gillanders, April 25, 1988.

4. Marriage of Appellant and Applicant

15. The question of whether the marriage took place is an issue for the reasons alluded to above. That is, should the panel not be satisfied by the evidence presented that a marriage had taken place, then, clearly, claims to a subsequent marriage would not be a factor to be considered in assessing the intent of the applicant in entering into the engagement. This issue is addressed, therefore, in the “Discussion” section of these reasons.

EVIDENCE

16. The appellant, a 29-year-old Sikh woman, became a permanent resident of Canada in November 1992. She was born and brought up in Malaysia and came to Canada in 1988, living for the first two years with her brother, Ranjit Singh. Since 1990, the appellant has lived with Kewal Manh and his wife, Paramjit. Both were close to her brother, Ranjit Singh, and Kewal Manh, having lived together previously in Canada, with Paramjit being Ranjit’s ex-wife. Paramjit is employed as a packer.
17. Ms. Kaur told the panel that it was her wish, as well as that of her parents, to have an arranged marriage, preferably to a Punjabi man. Her parents looked in Malaysia, and relatives and friends in India sought out a suitable spouse. Her father’s older brother in India acted as negotiator for the family.
18. In 1992, Kewal Manh told her about his first cousin, Sarabjit Singh, whom he described as shy and quiet. She understood that he was five years younger than she and had left school after grade eight to help his father on the farm. She like the sound of him and when she saw his picture liked it very much and sent it on to her parents for their consideration. They also liked him. After she told Kewal Manh that she would marry Sarabjit Singh, Kewal phoned both Sarabjit’s parents and the appellant’s father’s brother in India. In 1993, Sarabjit’s parents sent her, through a family friend, clothes, make-up and a ring in the Sikh custom. In March 1994, her parents, through her aunt, sent clothes and a ring to Sarabjit. The appellant indicated that photographs of this engagement ritual are contained in photo albums. While the couple did not meet until they were married, the appellant told the panel that they spoke to each other by telephone about once a week after they became engaged. She testified that, because both were shy, their conversations were rather general in nature, along the lines of how work was going – his at the farm, hers at the factory; their families’ welfare and, at times, their plans for their wedding. Their telephone conversations were also circumscribed by other family members in both Canada and India taking turns talking. For this reason, in a call that lasted one to one and a half hours, she and Sarabjit would speak together for only five to ten minutes. She estimated that their longest conversations were about 15 – 20 minutes long. These factors and the couple’s innate shyness were the reasons she gave for their not discussing more intimate topics. She testified that they did not write to each other because their parents did not want them to, concurring with the applicant’s interview statement that it is not the custom to write before marriage.
19. The appellant told the panel that the initial wedding plans had been for her to go to India to be married in her fiancé’s house. These plans had changed when her fiancé’s uncle died in November of 1994. She testified that it is customary, out of respect for the deceased person, to hold no happy ceremony in the house for one year. If the visa application had been approved, Sarabjit would have come to Canada to marry her in a civil ceremony and together they would have returned to India after the passing of one year for the Punjabi ceremony. This was the situation in January 1995, when Sarabjit was interviewed. The couple was demoralized by the refusal letter of May 1995. They waited the requisite year and, in January 1997, the appellant flew to India to be married. She described the two-part ceremony in great detail, giving testimony about the wedding and using selected photographs to illustrate such rituals as the application of oil with grass and red thread, the presentation of bangles, and the presentation of sweets and money to the groom. Other photos used by the appellant in her testimony included the bride in ceremonial marriage costume, the groom with his headpiece, the bridal shower before the wedding, relatives dancing at the party the evening before, the decorated wedding car leaving the groom’s family’s home, the ribbon-cutting ceremony in the bride’s village representing the joining of two families, and the wedding ceremony in front of the holy book.
20. She told the panel that the ceremony in the groom’s village and the ceremony in her father’s village had each been captured on videotape and she identified the document in Exhibit A-1 as the invitation sent by the groom’s family to the wedding. The marriage took place on February 9, 1997, after which the couple spent some time together as man and wife.

ANALYSIS

21. The key issue before the panel is the genuineness of the fiancé relationship. The tests are these. Did the applicant and the appellant become engaged with the intention of living permanently together after marriage, and was the purpose of each in becoming engaged not primarily to gain the applicant’s admission to Canada? The onus is on the appellant to provide evidence which satisfies the panel on a balance of probabilities that both questions can be answered in the affirmative.
22. The intentions of the appellant can be fairly easily assessed. She was before the panel and, as indicated earlier, gave evidence in a credible manner. In addition to her obvious fondness for the applicant, she attested to her original liking of him and the growth of their relationship. Her commitment to the relationship is evidenced by her flight to India to marry, when all of their other plans failed. The panel is satisfied that the appellant became engaged to Sarabjit Singh with the intention of living with him permanently after marriage. Likewise, although there is clearly a wish on her part to have him join her in Canada, the panel is satisfied that she did not become engaged to him primarily to gain his admission to Canada.
23. The appellant had no doubt about the applicant’s intentions. However, the panel does not have the applicant before it. Evidence of his intentions in becoming engaged must be adduced from factors other than his own testimony. The subsequent marriage of the applicant to the appellant may be one such factor if the panel is satisfied that such marriage has taken place. In addition to the oral evidence of Ms. Kaur, which the panel found to be credible and trustworthy, documentary evidence in support of the validity of the marriage included the following: a copy of Schedule D (Form of Extract from Hindu Marriage Register) detailing the marriage between Ms. Kaur and Mr. Singh, with the date of marriage being February 9, 1997; a copy of the wedding invitation from the mother of the appellant to the marriage ceremony, to take place on Sunday, February 9, 1997; and copies of photographs of the marriage. Not entered in evidence, but offered for the perusal of the panel and the respondent, were two volumes of original photographs and three videotapes.
24. The panel is satisfied that, on a balance of probabilities, a marriage occurred between the appellant and the applicant. The intentions of both are attested to by their ongoing communication and by their marriage two years subsequent to the refusal of Mr. Singh’s application. With regard to the weight to be given to the untranslated invitation submitted as evidence of the applicant’s intent, [See Note 6 below] the panel gives it little weight. The panel does not, however, question the testimony of the appellant that such an invitation was sent. The photographs and the extract from the Hindu Marriage Register lend greater support to her testimony.

Note 6: Exhibit A-1.

25. Case law has established that the applicant’s attitude, as discerned from the visa officer, may form the basis for determining the requisite intention. [See Note 7 below]

Note 7: Rattan, Sushmendra Kaur v. M.E.I. (F.C.T.D., no. IMM-28-93), Reed, January 19, 1994.

26. Among the visa officer’s serious concerns about the applicant’s intentions was his apparent lack of knowledge of the appellant. The interview took place in January 1995, about eight months after the couple became engaged. The panel is satisfied by the evidence of the appellant that the shyness of each explains to some degree the lack of intimate knowledge. The appellant testified that the two did not talk about ‘hobbies’ and that, therefore, Sarabjit had answered quite honestly at the interview when he was asked about her hobbies. As to her interests, the panel notes that he was not asked about them, according to the interview notes. He did know her birthday, what she did for a living, her education and her family members. The appellant, who referred to Kewal Manh as Sarabjit’s “cousin-brother” throughout her testimony, told the panel that the applicant had told her that in telling the visa officer that her mother and his brother might attend their wedding in Canada, he was referring to Kewal Manh, his “cousin-brother”.
27. The visa officer found the death of the applicant’s uncle to be a weak reason for the couple’s not marrying in India. The panel found the appellant’s explanation of the reasons why they changed their plans and would marry in Canada to be credible. In any event, the two did marry and while this fact is not determinative of intent at the time of the engagement, it is a fact that was not before the visa officer at the time of the interview and it does attest, to some degree, to the applicant’s intent at that time. There appears to be some confusion in the visa officer’s “Statutory Declaration” in that Sarabjit Kaur is referred to as “her” and, while the interview notes indicate that only he was interviewed, the Declaration refers to the “interviewees” (my emphasis added).

CONCLUSION

28. The panel is satisfied that, on a balance of probabilities, the overall evidence at the hearing addresses the concerns set out by the visa officer in his letter of refusal.
29. Accordingly, the panel allows the appeal because the refusal to approve the application for landing is not valid in law.

“S.E. Kitchener”

DATED at Toronto this 27th day of June, 1997.