A-955-88
Minister of Employment and Immigration
(Appellant)
v.
Resham Kaur Taggar (Respondent)
INDEXED AS: CANADA (MINISTER OF EMPLOYMENT AND
IMMIGRATION) v. TAGGAR (CA.)
Court of Appeal, Pratte, Stone and Desjardins
JJ.A.—Vancouver, May 11, 1989; Ottawa, June 5,
1989.
Immigration — Appeal from decision of Immigration
Appeal Board to grant immigrant visa overturning visa offic
er's refusal to grant visa — Immigration Act, s. 8(2) — Onus
on applicant to establish admissibility — Validity of marriage
to sponsor — Lack of evidence as to custom permitting
marriage — Board lacking jurisdiction.
This was an appeal by the Minister from the decision of the
Immigration Appeal Board allowing an appeal from a refusal
to grant a visa.
The respondent had sponsored the application for landing of
Ranjit Singh Taggar whom she said was her husband. When he
applied for an immigrant visa, the visa officer found that
although a marriage ceremony had taken place, there was a
question as to the validity of the marriage. The purported
husband was the brother of the respondent's former husband
and under the Hindu Marriage Act, 1955 such a marriage was
null and void unless custom or usage governing both parties
allowed for such a marriage. The visa officer twice refused to
grant a visa for lack of evidence as to such a custom. Despite
subsequent evidence submitted first in a request to reconsider
his rejection, then in a fresh application, the evidence being in
the latter case a declaratory judgment from an Indian court,
the officer found the evidence not to have established the
existence of a custom permitting of such a marriage.
Upon appeal under subsection 79(2) of the Immigration Act,
1976, to the Immigration Appeal Board by the respondent, the
Board found, following Uppal v. Canada (Min. of Employment
& Immigration), that the visa officer had erred in requiring
evidence of a custom permitting the marriage. The Board
concluded that since there was no evidence to disprove the
existence of such a custom, the marriage, having taken place,
was valid. The Board also found that there was, in any event,
evidence of a custom permitting such a marriage.
The issues before the Court of Appeal were: (1) Did the
Immigration Appeal Board have jurisdiction to hear the
appeal?; (2) Did the evidence establish validity of the
marriage?
Held, the appeal should be allowed
The Board was seized with an appeal under subsection 79(2)
of the Immigration Act, 1976 which gives a right of appeal to
the sponsor in an application for landing. Subsection 79(2)
when read in conjunction with subsection 79(1), makes it clear
that the only appeals authorized in the case of an application
for landing are those made by a member of the sponsor's family
class. Accordingly, the Board should first have addressed the
question of its jurisdiction by ruling on the validity of the
marriage, the proof of which for jurisdictional purposes would
be the same as for other purposes. The case of Uppal, upon
which the Board's decision was based, is limited in its applica
tion since in that case counsel for the Minister had conceded
that he had the onus of proving invalidity. Under the applicable
law, it is clear that customs must be clearly proved to exist and
the onus of establishing them rests on those who rely on their
existence. The Board erred in finding that the declaration of
the Indian court constituted evidence of the existence of a
custom allowing of such a marriage. The marriage is invalid
and the appeal did not therefore relate to the refusal of the
application for landing made by a member of the respondent's
family class. That being the case, the Board had assumed a
jurisdiction it did not have.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Hindu Marriage Act, 1955, 1955, Act No. 25 (India), ss.
3(a),(g),(iii), 5(iv), 11.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2(1),
8(1), 9(1),(2),(3),(4), 79(1)(a),(b),(2)(a),(b) ( as am.
by S.C. 1986, c. 13, s. 6).
Immigration Regulations, 1978, SOR/78-172, s. 4(1) (as
am. by SOR/84-140, s. 1).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Uppal v. Canada (Min. of Employment & Immigration)
(1986), 1 Imm. L.R. (2d) 226 (F.C.A.).
AUTHORS CITED
Halsbury's Laws of England, vol. 12, 4th ed. London:
Butterworths, 1975, "Custom", para. 426.
COUNSEL:
Paul F. Partridge for appellant.
William J. Macintosh for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Macintosh, Mair, Riecken & Sherman, Van-
couver, for respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.A.: This is an appeal from a decision
of the Immigration Appeal Board pronounced on
April 21, 1988, allowing an appeal by the respon
dent from the refusal of a visa officer to grant an
immigrant visa to one Ranjit Singh Taggar, an
Indian citizen whom the respondent had sponsored
as her husband.
In order to fully understand the problem to be
resolved, it is necessary to have in mind certain
provisions of the Immigration Act, 1976 [S.C.
1976-77, c. 52] and of the Immigration Regula
tions, 1978 [SOR/78-172]. I will quote them as
they read at the relevant time:
The Immigration Act, 1976:
2. (1) In this Act,
"member of the family class" means a person described in the
regulations as a person whose application for landing may be
sponsored by a Canadian citizen or by a permanent resident;
S. (1) Where a person seeks to come into Canada, the
burden of proving that he has a right to come into Canada or
that his admission would not be contrary to this Act or the
regulations rests on him.
9. (1) Except in such cases as are prescribed, every immi
grant and visitor shall make an application for and obtain a visa
before he appears at a port of entry.
(2) Every person who makes an application for a visa shall
be assessed by a visa officer for the purpose of determining
whether the person appears to be a person who may be granted
landing or entry, as the case may be.
(3) Every person shall answer truthfully all questions put to
him by a visa officer and shall produce such documentation as
may be required by the visa officer for the purpose of establish
ing that his admssion would not be contrary to this Act or the
regulations.
(4) Where a visa officer is satisfied that it would not be
contrary to this Act or the regulations to grant landing or entry,
as the case may be, to a person who has made an application
pursuant to subsection (1), he may issue a visa to that person,
for the purpose of identifying the holder thereof as an immi
grant or visitor, as the case may be, who, in the opinion of the
visa officer, meets the requirements of this Act and the
regulations.
79. (1) Where a person has sponsored an application for
landing made by a member of the family class, an immigration
officer or visa officer, as the case may be, may refuse to
approve the application on the grounds that
(a) the person who sponsored the application does not meet
the requirements of the regulations respecting persons who
sponsor applications for landing, or
(b) the member of the family class does not meet the
requirements of this Act or the regulations,
and the person who sponsored the application shall be informed
of the reasons for the refusal.
(2) A Canadian citizen or permanent resident who has
sponsored an application for landing that is refused pursuant to
subsection (1) may appeal to the Board on either or both of the
following grounds, namely,
(a) on any ground of appeal that involves a question of law
or fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humani
tarian considerations that warrant the granting of special
relief.
The Immigration Regulations, 1978 [as am. by
SOR/84-140, s. 1]:
4. (1) Subject to subsections (2) and (3), every Canadian
citizen and every permanent resident may, if he is residing in
Canada and is at least eighteen years of, sponsor an application
for landing made
(a) by his spouse;
The respondent had sponsored the application
for landing made by Ranjit Singh Taggar whom
she said was her husband. When Ranjit Singh
Taggar applied for an immigrant visa, he therefore
had to establish to the satisfaction of the visa
officer that he was really married to the respon
dent. He could easily prove that, on April 6, 1983,
they had gone through a ceremony of marriage in
India, where he was domiciled. However, a ques
tion arose as to the validity of that marriage. The
respondent had married Ranjit Singh Taggar a
few months after her previous marriage to a broth
er of his had ended in divorce. Under the Hindu
Marriage Act, 1955 [1955, Act. No. 25 (India), ss.
3(a),(g)(iii), 5(iv), 111, a marriage is null and
void if one of the parties "was the wife of the
brother ... of the other" unless "the custom or
* Editor's Note: With the exception of clause 3(a) which is
reproduced at footnote 1, page 580, clauses 3(g)(iii) and 5(iv)
and section 11 read as follows:
3....
(g) " degrees of prohibited relationship" — two persons,
are said to be within the "degrees of prohibited relation
ship"—
(Continued on next page)
usage governing each of them permits of a mar
riage "between the two".' It therefore appeared
that the marriage of the applicant for landing to
the respondent was void unless there existed a
custom permitting of it. As he had no evidence of
such a custom, the visa officer decided, on October
31, 1983, to reject the application for a visa. The
applicant asked for a reconsideration of that deci
sion and, in support of his request, submitted a
letter from an Indian lawyer asserting, on the basis
of certain excerpts from a book entitled Digest of
Customary Law, that the marriage between his
client and the respondent was valid and "just
according to customary law". This prompted the
visa officer to seek the advice of a lawyer that he
described as having had a long experience in the
practice of Indian family law. That lawyer report
ed that, under Indian law, a person who relies on
custom must prove it by clear and unambiguous
evidence since custom is a departure from ordinary
law; he said that he could not find in the material
submitted by the respondent's alleged husband any
evidence of a custom permitting him to marry his
brother's former wife; he concluded that the mar
riage was "void ab initio as declared by Section 11
of the Hindu Marriage Act, 1955". On the basis of
(iii) if one was the wife of the brother or of the father's
or mother's brother or of the grandfather's or grandmoth
er's brother of the other; or
5. A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely:
(iv) the parties are not within the degrees of prohibited
relationship, unless the custom or usage governing each of
them permits of a marriage between the two;
11. Any marriage solemnized after the commencement of
this Act shall be null and void and may, on a petition
presented by either party thereto, be so declared by a decree
of nullity if it contravenes any one of the conditions specified
in clauses (i), (iv) and (y) of section 5.
' Clause 3(a) of the Hindu Marriage Act, 1955 contains the
following definition of the words "custom" and "usage":
3....
(a) the expressions "custom" and "usage" signify any rule
which, having been continuously and uniformly observed for
a long time, has obtained the force of law among Hindus in
any local area, tribe, community, group or family:
Provided that the rule is certain and not unreasonable or
opposed to public policy; and
Provided further that in the case of a rule applicable only
to a family it has not been discontinued by the family;
that opinion, the visa officer wrote Ranjit Singh
Taggar on January 25, 1984, to reiterate his refus
al to issue him a visa.
In December 1984 Ranjit Singh Taggar submit
ted a new application for a visa. His application
for landing was, again, sponsored by the respon
dent. This time, he supplied the visa officer with a
new piece of evidence, namely, copy of a judgment
of an Indian court in an action for a declaration
that he had brought against the respondent. The
action had been commenced on March 7, 1984,
shortly after the final rejection of the first applica
tion for a visa. The judgment was dated August 8,
1984, and declared "that defendant is legally
wedded wife of plaintiff under customs". The visa
officer took the view that this judgment did not
establish the validity of the marriage. Again, he
refused to issue a visa.
The respondent appealed from that decision to
the Immigration Appeal Board under subsection
79(2) of the Immigration Act, 1976 [as am. by
S.C. 1986, c. 13, s. 6]. The Board allowed the
appeal, with one dissent. The majority first found
that the visa officer had erred in requiring evi
dence of a custom permitting of the marriage. In
their view, as it was common ground that the
parties had been married, those who challenged
the validity of that marriage had the onus of
establishing conclusively that the marriage was
invalid. They decided, therefore, that in the
absence of evidence disproving the existence of a
custom authorizing the marriage, the marriage
was to be considered valid. The majority also
found that, in any event, there was evidence of a
custom permitting of the marriage.
Before discussing those findings, it may be
useful to observe that the question that the Board
had to answer was different from the one that had
been put to the visa officer. The Board was seized
of an appeal under subsection 79(2) which gives to
a person who sponsored an application for landing
the right to appeal to the Board from the rejection
of that application. However, when that subsection
is read with subsection 79(1), it becomes apparent
that the only appeals authorized by the subsection
are those that relate to the refusal of an applica
tion for landing made by a member of the spon-
sor's family class. In this case, therefore, the Board
had to rule on the validity of the respondent's
marriage to Ranjit Singh Taggar to determine
whether they had jurisdiction to hear the appeal.
The first finding of the majority of the Board
was that the visa officer could not hold that the
respondent's marriage was invalid unless there was
exclusive evidence disproving the existence of a
custom permitting of it. They based that conclu
sion on the decision of this Court in Uppal v.
Canada (Min. of Employment & Immigration). 2
In that case, in circumstances resembling those of
the present case, the Court held that a marriage
between first cousins which, according to the ap
plicable law of India, was void unless there was a
custom permitting of it, could not be considered to
be invalid in the absence of conclusive evidence
disproving the existence of a custom authorizing
the marriage. In my view, the authority of that
decision (in which I participated) is very limited
since, rightly or wrongly, it was partly based on
the concession made by counsel for the Minister
that he had the onus of proving the invalidity of
the marriage. Here, the situation is different.
If the question is considered in the terms in
which it was put to the visa officer, it should be
remembered that the question that he had to
decide was whether, under the Act and Regula
tions, Ranjit Singh Taggar could be admitted as a
permanent resident. Clearly, in order to be admis
sible, Taggar had to be the husband of the
respondent; clearly, Taggar, under subsection 8(1),
had the onus of proving his admissibility. He
therefore had to prove that he was really the
respondent's husband. The visa officer had to
determine whether that onus had been met. The
evidence before him, as he viewed it, merely
showed that the marriage of Ranjit Singh Taggar
to the respondent was void according to the gener
al law of India unless it was permitted by a custom
which the applicant for landing had been unable to
prove. Could the visa officer rule, in these circum
stances, that the applicant for landing had estab
lished his admissibility? I do not think so. In my
opinion, the only conclusion that could logically be
drawn from that evidence was that it was more
2 (1986), 1 Imm. L.R. (2d) 226 (F.C.A.).
likely than not that the marriage in question was
invalid. In my view, therefore, the majority of the
Board was wrong in deciding otherwise and, on
this point, I think that the dissenting member was
right.
The first question that the Board had to answer,
however, was not that of the admissibility of the
respondent's husband but, rather, that of its juris
diction to hear the appeal. In answering that ques
tion, the Board could obviously not rely on subsec
tion 8(1) of the Act. Does this mean that the
Board should have held the marriage to be proved
for jurisdictional purposes and not proved for other
purposes? Not at all. Under both the law of India
and under our law 3 customs must be clearly
proved to exist and the onus of establishing them
rests upon those who rely on their existence. A
custom that is not established is, therefore, deemed
not to exist. It follows that the only conclusion to
be drawn from the evidence before the Board, if
that evidence is viewed as not establishing the
custom, is that the marriage of the respondent is
invalid and that, as a consequence, her appeal does
not relate to the refusal of an application for
landing made by a member of her family class.
This disposes of the first finding of the Board.
The majority of the Board also found that the
evidence established the existence of a custom
authorizing the marriage of the respondent with
the brother of her former husband. As I under
stand their reasons, they based that finding on the
declaratory judgment that Ranjit Singh Taggar
obtained from an Indian court shortly before
making his last application for a visa. That judg
ment was a judgment "in personam" which, the
respondent agrees, bound only the two parties to
the action. If it had ruled on the existence of
custom authorizing the marriage here in question,
it could have been considered as evidence of the
existence of that custom. However, a reading of
the judgment shows that the existence of a custom
was not an issue in the case and that no evidence
was adduced on that point. The judgment there
fore did not prove the custom. The second finding
3 Halsbury's Laws of England, vol. 12, 4th ed., vbo "cus-
tom", para. 426.
of the majority of the Board is therefore also
wrong.
In my opinion, the Board, in deciding as it did,
assumed a jurisdiction it did not have. I would, for
that reason, set aside its decision.
STONE J.A.: I agree.
DESJARDINS J.A.: I concur.
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