 
 IMMIGRATION AND REFUGEE BOARD IMMIGRATION APPEAL DIVISION 
 COMMISSION DE L’IMMIGRATION ET DU STATUT DE RÉFUGIÉ SECTION D’APPEL DE L’IMMIGRATION
 
 IAD File No. / N
o de dossier de la SAI :   VA3-00653 Client ID no. / N
o ID client :   4656-7687   
Reasons and Decision − Motifs et décision 
 
Sponsorship 
   Appellant(s) Appelant(s) 
BENITO KAHL 
   Respondent Intimé 
The Minister of Citizenship and Immigration Le Ministre de la Citoyenneté et de l’Immigration 
   Date(s) and Place Date(s) et Lieu de of Hearing l’audience 
October 18, 2004 Calgary, AB 
 Date of Decision Date de la Décision 
October 20, 2004 
 
 Panel Tribunal 
XXXXXXXXXXXXXXXX 
  Appellant’s Counsel Conseil de l’appelant(s) 
XXXXXXXXXXXXX 
  Minister’s Counsel Conseil de l’intimé 
      
  
La Direction des services de révision et  de traduction de la CISR peut vous procurer les présents motifs de décisi on dans l’autre langue officielle. Vous n’avez qu’à en faire la demande par éc rit à l’adresse suivante : 344,  rue Slater, 14
e  étage, Ottawa (Ontario) K1A 0K1, par courriel à  translation.traduction@irb.gc.ca ou par télécopie au (613) 947-3213. You can obtain the translation of these reasons for decision in the other official language by writing to th e Editing and Translation Services Directorate of the IRB, 344 Slater Street, 14th Floor, Ottawa, Ontario, K1A 0K1, or by sending a request to the following e-mail address: translation.traduction@irb.gc.ca or to facsimile number (613) 947-3213. 
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 Reasons for Decision  
[1] XXXXXXXXXXX (the “appellant”) appeals the re fusal of the sponsored application for a permanent resident visa in Canada for XXXXXXXXXXXXX (the “applicant”) from India. [2] The application was refused
1 because, in the opinion of the visa officer as contained in the refusal letter dated January 20, 2003, the applican t is not considered a spouse of the appellant because their marriage is as described in section 4 of the Immigration Refugee Protection Regulations (the “IRP Regulations”)
2 (the “Bad Faith regulation”), in that the marriage is not genuine and was entered into primarily for th e purpose of acquiring the applicant’s permanent residence in Canada. Consequently, the visa officer determined that the applicant is not a member of the family class whose application as the appellant’s spouse may be sponsored pursuant to section 117(1)(a) of the IRP Regulations.  [3] The Bad Faith regulation provides as follows: 4. Bad faith – For the purposes of these Regulations, no foreign national shall be considered a spouse, a common-law partne r, a conjugal partner or an adopted child of a person if the marriage, comm on-law partnership, conjugal partnership or adoption is not genuine or was entered into primarily for the purpose of acquiring any status or privilege under the Act.   [4] There was no challenge by the respondent with  respect to the legal validity of the marriage. At issue in this case, in a de novo hearing, is whether the applicant falls within the rubric of the Bad Faith regulation. The two-pronged test to be used is a conjunctive one. In order for a foreign national to be caught by the Bad Faith regulation, the preponderance of reliable evidence must demonstrate that the marriage is not genuine and was entered into primarily for the purpose of acquiring a status or privilege under the Immigration and Refugee Protection Act  (the “Act”).
3  In order to succeed on appeal, the appell ant need only establish one of the prongs 
                                                           
1  Record, page 81. 
2  Immigration and Refugee Protection Regulations , SOR/2002 – 227. 4.   For the purpose of theses Regulations, no foreign national shall 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 or was entered into primarily for the purpose of acquiring an status or privilege under the Act. 
3  Immigration and Refugee Protection Act , S.C. 2001, c. 27. 
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 of the test has not been met.   Genuineness of th e marriage is to be determined as at the time of the de novo hearing. The purpose of entering into the marri age is to be determined as at the time of the wedding. As stated above, in order to succeed on appeal, the appellant need only establish one of the prongs of the test has not been met. The onus is on an appellant to demonstrate that the applicant does not fall within the rubric of the Bad Faith regulation. [5] The appellant testified first, followed by the applicant. I have considered the testimony of the witnesses. I have also considered the materials contained in the Record, the additional materials provided by the appellant
4 and the submissions of both counsel.  [6] Counsel for the respondent submitted that th e marriage was non-genuine and referred to the variant backgrounds of the marital parties, the errors and omissions in the statements of the applicant at interview, and the numerous contra dictions at hearing that remained unexplained. Upon reflection, counsel for the appellant concu rred with the submissions of opposing counsel, and provided no additional submissions.  [7] For reasons described below, I find that th e witnesses lack credibility. Moreover, on whatever credible evidence remains in the body of evidence, the appellant has failed to meet the onus on him. I conclude there is insufficient re liable evidence with which to determine the marriage is genuine.  Moreover, I am not satisfied  the marriage was not entered into primarily for the purpose of acquiring a status or privilege under the Act.   [8] The witnesses submitted to a comprehensive ex amination at hearing.  They were each asked to address the genesis of the relationship and its development over time, to the date of hearing.  Each witness provided an irreconcilab le version of events to those annotated and enumerated in the Record in important areas,  some of which are commented upon below. The testimonies regarding this early period in the relationship lack cogency in significant areas, and were vague and indistinct. 
                                                           
4  Exhibit A-1, Appellant’s Disclosure of September 24, 2004. 
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 [9] Issues, including those raised by the visa offi cer as enunciated in the refusal letter and in the CAIPS notes,
5 remained unresolved at hearing’s close.  The appellant has not met the onus on him in the circumstances of this case, in this de novo hearing.  The appeal fails. [10] The appellant was born April 16, 1938 in Roma nia of German descent, was 66 years of age at hearing, and is a Canadian citizen. Th e applicant was born July 6, 1970, and was 33 years of age at date of hearing. I find that this  above noted level of age discrepancy, in the circumstances of this case, is indicative of non-genuineness of this marriage.  [11] The appellant testified that he is retired fr om his prior vocation as a plumber with the University of Calgary, and is presently the r ecipient of 3 pensions. During hearing, it was revealed that he had two children out of wedlock over the years, including one daughter in Germany in the 1950s and one other daughter in  Alberta from a married woman, unbeknownst to that woman’s husband. The appellant also had two prior marriages that produced no children.  [12] The appellant testified that he was introdu ced to the applicant through her school friend XXXXXX, whose sister XXXXX (phoneti cally spelled) had also worked at the University with the appellant. Although the appellant was vague in regards to the date of first conversation with the applicant, he settled on the date of this convers ation as October 1999, when he first talked to the applicant from XXXXXX’s sister’s home. He tes tified that it was extremely difficult to phone the applicant given that she lived in Tibetan Camp Sta tions in the State of Orissa in India, but did manage to have about 5 conversations with her befo re he first traveled to India on about January 22, 2002. [13] The appellant further testified that he met the applicant on arrival in Delhi, stayed at a Tibetan Guest House in the same room for a period of time before journeying to her home village in Orissa, and married her on February  11, 2002. The appellant testified that he was intimate with the applicant while in Delhi when he first arrived in India. The appellant further testified that he stayed with the applicant a sh ort time thereafter and departed for Canada on about February 21, 2002. Clearly, the appellant, who suffered two failed marriages, entered into marriage with the applicant within three week s of meeting her for the first time, and was unaccompanied by any intermediary from Canada dur ing this trip. I find his assertion that he 
                                                           
5  Record, pages 72-76. 
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 would enter into an arranged marriage within 3 weeks of meeting his putative spouse belies credulity.  [14] The appellant testified that he has visite d India twice since marriage, in November- December 2002 and March-April 2003. The appellant testified that he has maintained contact with the applicant mainly by phone when he has been in Canada post-marriage, but was vague in recalling the phone numbers he calls, and I find this vagueness undermines his assertions regarding genuineness of this marriage.  [15] Significantly, the appellant testified that he  did not correspond in writing, including by letter or cards, with either the applicant or her daughter until after his marriage to her. However, the Record contains numerous letters and cards that are dated 1999, 2000, and 2001, purportedly from the appellant to both the applicant and her daughter.
6 When questioned in this regard, the appellant repeatedly stated he did not know the origin of these letters, and then testified that he must have noted some of these dates in error.  Thereafter, when questioned about the handwriting on these cards, he acknowledged that some of the handwriting was his, but other handwriting was not, yet did not proffer any explanation as to who the author or signatory would be in lieu of him. In direct contradiction to his assertion that there was no discussion or communication regarding marriage with the applicant until his arrival in India in late January 2002, the materials refer to the appellant as “your new husband” an d wishing the applicant holiday and New Years greetings for 2000.
7 That same card contains an insufficien tly obliterated date of manufacture of the card as 2002.
8 Cumulatively, I find that these documents  contradict the testimonies at hearing and fatally undermine the credibility of the witne sses regarding their assertions of genuineness of this marriage. [16] When questioned about some of the antecedents  of the applicant and their interaction, the appellant was repeatedly vague and uncertain. For example, the appellant did not know the circumstances of the applicant’s divorce, incl uding when the applicant separated and divorced, and the degree of interaction, if any, between the applicant and her ex-spouse and the applicant’s daughter. I find that the appellant’s testimony was vague, confusing at times, and evasive. I find 
                                                           
6  Record, pages 57-62. 
7  Record, page 58. 
8  Record, page 59. 
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 the appellant’s vagueness regarding the appli cant undermines his assertion regarding ongoing communication in this supposedly genuine marriage.   [17] Further undermining the appellant’s and the applicant’s credibility, the spousal questionnaire
9 contains clear errors which remained unexplained. For example, the applicant’s signed spousal questionnaire indicates that an engagement ceremony occurred, while the appellant testified that there was none. I find these unexplained inconsistencies undermine the appellant’s assertions regarding genuineness of the marriage. [18] At interview, as determined from the CAIPS notes, I find that the applicant displayed a lack of knowledge of the appellant’s circumst ances in Canada, and also provided a vague summary of marital arrangements which conflicts  with the appellant’s testimony. I find these enumerated inconsistencies as contained in the CAIPS notes surrounding marital arrangements significant, given that they are on the issues  of whether, in whose presence, under whose auspices, and under what circumstances the app licant and appellant would undertake to foster and then maintain an interpersonal relationship in this supposed marriage.  [19] The applicant’s testimony is markedly incons istent with various important events and circumstances as described by the appellant at hearing, and furthermore, both of their testimonies contradict some of the materials before me as tendered by the appellant. For example, while the appellant testified that he had only about 5 phone conversations with the applicant from 1999 through 2001, prior to meeting her in 2002, the a pplicant testified that she had 50 to 100 phone conversations with him. Furthermore, while the appellant testified that they had pre-marital intimacy, and that the applicant utilized a diaphr agm as birth control, the applicant emphatically testified that no such birth control was ever use d, and that they only were intimate post-marriage. These inconsistencies are irreconcilable, and I find these unexplained inconsistencies, in regards to the genesis and continuation of their putative relationship, seriously undermine the witnesses’ credibility. I find these inconsistencies to be signif icant and this is a salient factor indicative of non-genuineness of this marriage.   
                                                           
9  Record, page 15. 
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 [20] There are numerous other discrepancies in the evidence leading me to believe the witnesses deliberately misrepresented particular f acts to the panel at hearing. The witnesses were asked to address some of these difficulties with in the above-mentioned areas of evidence, but did not do so satisfactorily. Cogent evidence fails to establish the alleged development of the relationship over time or the timing of the original agreement to marry.  Again, the testimonies at hearing in this area are unreliable.  I am not satisfied the couple remained together at all after their marriage, as alleged.  [21] Much of the evidence in this case, including mo st of the testimonies of the witnesses, in significant areas regarding the initial encounter s and overall development of the relationship lacks cogency.  Issues, including those raised by  the visa officer as enunciated in the refusal letter remained unresolved at hearing’s close.  The witnesses’ knowledge in particular personal areas as enunciated above are clearly not reflec tive of the quality and degree of knowledge one would expect to be shared in a genuine relationship. The irreconcilable nature of the testimonies of the witnesses at hearing leads me to conclude the phone r ecords, letters, and cards tendered are not meaningful.  In short, the appellant has not demonstrated, on a preponderance of credible and trustworthy evidence, that the marriage is a genuine one.   [22] I also conclude the appellant has not show n that the marriage was not entered into primarily for the purpose of acquiring status under the Act. Again, the witnesses’ overall lack of credibility plays a significant role in my finding in this area. The evidence of a development in the relationship over time lacks cogency. Evidence of current meaningful contact is not credible.  At hearing, the witnesses unsuccessfully attempted to portray a false gradual development in the relationship over time since initial contact and the time of marriage.  Cogent evidence fails to establish this fact.  [23] Given the difficulties in the evidence, I am ha rd-pressed to conclude this marriage was entered into for any purpose other than to assist the applicant in acquiring a privilege or status under the Act.  Furthermore, the applicant has a spons orable daughter. The evidence, on balance, supports the conclusion this marriage was engineered primarily to assist the applicant and her daughter in each acquiring the status of membersh ip in the family class and in acquiring the privilege of landed status in Canada, as specified under the Act. I conclude the appellant has not 
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 shown, on balance, that the marriage was not ente red into primarily for the purpose of acquiring any status or privilege under the Act.  I find that this marriage is a marriage of convenience. Conclusion [24] The applicant, XXXXXXXXXXXX, is caught by the Bad Faith regulation. The appeal of XXXXXXXXXXX is therefore dismissed.   
NOTICE OF DECISION 
  The appeal is dismissed.  
 “XXXXXXXXXXXXXXXX” XXXXXXXXXXXXXXXX 
 20 October 2004 Date (day/month/year) 
  
Judicial review – Under section 72 of the Immigration and Refugee Protection Act , you may make an application to the Federal Court for judicial review of this decision, with leave of that Court.  You may wish to get advice from counsel as soon as possible, since there are time limits for this application. 
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