She says her husband is a sensible man with a wise soul, and that she’s keen to start their new life together in Canada.
What’s holding them up, it appears, is the fact that the 45-year-old man from Brampton is also mentally disabled — and an immigration hearing effectively found that he and his 35-year-old wife from India appeared to be incompatible.
The Federal Court recently quashed a decision by an immigration appeal tribunal that rejected Gurmeet Kaur and Sandeep Singh Grewal as a genuine couple, and accused her of accepting his limitations “in exchange for permanent residence.”
Last month’s court ruling by Justice Nicholas McHaffie raises the question about a mentally challenged person’s ability to consent to a marriage and underscores the unparalleled authority of the immigration regime to approve or disapprove a relationship.
Grewal, 45, finished Grade 5 and operates mentally “well below” his age. He lives with his parents, volunteers at his local temple and earns a meagre income from Ontario disability benefits.
Kaur, 36, completed Grade 10, works as a seamstress and aspires to work in a beauty parlour to do henna. For a long time, she said her parents were unable to match her with a baptized Sikh who wasn’t a “user.”
After their families were introduced for an arranged marriage, they wed in 2017 and he applied to sponsor her to Canada that same year. An immigration officer refused the application and the couple took their case to the appeal tribunal.
At the appeal hearing, questions were raised about the way the two met, the educational and intellectual differences between them, how they communicated — and Grewal’s first marriage in 2011, which was annulled in India three years later after their spousal sponsorship was refused. An appeal to that refusal was later withdrawn.
Grewal testified in a limited capacity at the hearing because the tribunal was not confident that he understood the nature of the proceedings and that he knew sufficiently what it means to tell the truth.
Under her examination, Kaur said her husband had a speech problem, but her mother thought it was a “suitable match” after checking Grewal’s family background, confirming they were from Canada and he was not into drugs and narcotics.
“He’s good-looking and he’s wise, and I saw all these qualities in him; that’s why my mother said that he’s a sensible boy and it’s a decent family, and this is going to be OK for you,” said Kaur, according to the hearing’s transcript.
“I started to gradually understand his talk and now I got married, and then I fell in love with him and I am able to understand him now a little better.”
The couple told the hearing that Grewal would move to India to be with Kaur if their appeal was refused.
However, Kirk Dickenson, the adjudicator presiding over their appeal, was not convinced Grewal “truly understands his marriage and its purpose” despite psychiatric evidence submitted by his family from two doctors that indicated he “seems to understand marriage and wish(es) to have children now.”
“Whatever discussions the appellant has with his wife does not appear to be of substance given his limited ability to converse with the applicant as it relates to their marital relationship,” Dickenson wrote in his ruling against the government’s consent to appeal, insisting on rejecting the couple’s application.
“It seems that the applicant was willing to accept the appellant’s personal, intellectual and economic limitations, since the appellant earns a mere $12,636.00 per year from government disability, in exchange for permanent residence.”
The adjudicator was also critical of her family’s approval of Grewal.
“It appears the applicant as well as her family had no concerns with the appellant not being able to work and is in receipt of disability,” he explained. “This does not add up and the panel makes a negative inference as a result.”
Grewal and Kaur subsequently challenged the tribunal decision at the Federal Court and won in December.
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In overturning that ruling and sending the couple’s case back for reconsideration, the Federal Court underlined some of the assumptions made by the tribunal about marriage and what a person with intellectual disabilities may bring to a relationship.
- The doubt over the approval of Kaur’s family of her husband, given “the educational and intellectual differences between the two,” and Grewal’s “speech limitations and low mental and intellectual development.”
- The substance of the couple’s communication “given the appellant’s mental and intellectual limitations,” and the “continuing theme” that Grewal was unable “to appropriately communicate for the purposes of a marriage to be sustaining.”
- The remark that the couple’s marriage “would deteriorate relatively quickly” after Kaur’s arrival in Canada, similar to Grewal’s first marriage with his ex-wife, who found him “of abnormal brain and is an insane person” in her annulment paper.
“Assessing the genuineness of a marriage in the immigration context can be challenging in any circumstance. The context of an appellant with intellectual disabilities and speech limitations may add a challenge to the task,” McHaffie wrote in his judgment.
“But that challenge must be undertaken without resort to assumptions about marriage, or about what a person with intellectual disabilities may bring to a relationship, that add unwarranted hurdles to the analysis.”
Jewelles Smith, a spokesperson of the Council of Canadians With Disabilities, said those assumptions were unfair and ableist. The United Nations Convention on the Rights of Persons with Disabilities recognizes the equal rights to marry and to found a family on the basis of free and full consent of the intending spouses.
“The immigration folks seem to think there’s no value to marrying this gentleman. His wife valued his other elements such as his character, his wisdom and religious devoutness, where the immigration officers were going, ‘The only thing she sees in him is she gets to immigrate to Canada,’” said Smith. “That’s disturbing and insulting.”
Unfortunately, she said, society still holds some of those biased and prejudiced views, especially against people with communication, learning and mental disabilities.
“If someone has a hard time reading English or French, that’s translated into inability to make decisions for yourself and for the consent or decline,” said Smith.
“What we look for and value in a partner individually is different. I don’t think it’s the right of anybody to decide who we should love and why we love somebody.”
In the current case, the court refuted the tribunal decision based on procedural unfairness because the adjudicator failed to allow Grewal’s counsel to cross-examine the man’s father and litigation guardian, Dilbagh Singh, after a government lawyer already consented to the appeal, preventing the witness from giving further evidence.
If it weren’t because of that legal technicality, the refusal against the couple would likely not have been overturned, suggested University of Ottawa law professor Jamie Liew. She praised the court for going above and beyond to comment on the tribunal’s approach to assessing the genuineness of the couple’s marriage even though a fairness ruling was enough to grant the appeal.
Liew said it would be outrageous if any Canadian with a mental disability or challenge were questioned as to whether they should be able to have a life partner. However, the immigration regime does allow judgment to be placed on a relationship as to whether two people are compatible when this is not a criteria.
“It does reflect on society’s overall premise that only certain kinds of people can have a normal relationship and what is a normal relationship,” said Liew.
“Sponsorship regime requires undertaking (from the sponsors) to support and care for the sponsored spouses. People should be free to choose who they want as a partner and should be willing to take the risk that comes with that.”
Grewal and his family did not respond to the Star’s request for an interview.
Their lawyer, Michael Crane, said trying to assess the genuineness of a marriage is a tough job and immigration officials are not properly trained to decide what principles to follow. He hopes the court ruling can create more awareness among decision-makers of these issues when dealing with cases involving people with disabilities.
“Some foreign cultures don’t perceive intellectual challenges in the same way we do in Canada. That’s not to say their applications may be valid or not valid,” said Crane.
“They will see it in terms of language difficulties and educational deficits, where we see it as someone may have a below typical mental capacity. They are just totally different (perspectives).”
Nicholas Keung is a Toronto-based reporter covering immigration for the Star. Follow him on Twitter: @nkeung
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