Date: 20060201
Docket: IMM-3694-05
Citation: 2006 FC
109
BETWEEN:
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Applicant
and
CAROLE SAVARD
Respondent
REASONS FOR
ORDER
HARRINGTON J.
[1] Armed with a computer and the
Internet, Carole Savard and Abderaouf Samadi fell in love! As a result of the
development of this relationship, Ms. Savard attempted unsuccessfully to
sponsor Mr. Samadi as a conjugal partner. The visa officer rejected her
application. However, on appeal to the Immigration Appeal Division (IAD), the
IAD ruled that the couple were indeed in a conjugal relationship and overturned
the visa officer’s decision. The applicant, the Minister of Citizenship and
Immigration, applied for judicial review of this decision of the IAD, and the
Court must now rule on this application.
Facts
[2] Carole Savard and Abderaouf Samadi
met on a website in June 2001. Ms. Savard is a Canadian citizen, while Mr.
Samadi is a citizen of Morocco and a resident of Spain since 1992, where he
lives with other members of his family. After a few keyboard sessions, they
were madly in love and by August 2001, Carole Savard and Abderaouf Samadi were
a couple.
[3] Following an exchange of personal
emails and letters and telephone calls, Ms. Savard travelled to Spain on June
14, 2002 to meet her sweetheart at last. She then made a second trip in
December 2002.
[4] On March 31, 2003, Ms. Savard filed
a sponsorship application for Mr. Samadi in the family reunification class as a
“conjugal partner” and an undertaking, and Mr. Samadi filed his application for
permanent residence in Canada on April 11, 2003. Meanwhile, the lovebirds
continued their relationship and she made two further trips to Spain.
[5] On December 23, 2003, the visa
officer rejected Mr. Samadi’s sponsored application for landing in Canada. The
visa officer found that he did not belong in the family class as he was not
maintaining a conjugal relationship with Ms. Savard within the meaning of
sections 2 and 121 of the Immigration and Refugee Protection Regulations
(IRPR).
[6] Ms. Savard appealed the visa
officer’s decision before the Immigration Appeal Division (IAD). The IAD found
that Ms. Savard had discharged her burden of proof and that there was a
conjugal relationship between her and Mr. Samadi as defined in sections 2 and
121 of the IRPR. The IAD also found that the record indicated that the couple
were in love and intended to live together once he was in Canada.
Parties’ submissions
[7] The Minister argues that the IAD
erred in law and in fact in finding that Ms. Savard and Mr. Samadi had
discharged their onus of establishing that they are conjugal partners within
the meaning of the IRPA and sections 2 and 121 of the IRPR. The Minister
further alleges that the IAD erred in law by failing to conduct the analysis
required under section 4 of the IRPR and failing to provide sufficient or
adequate reasons in support of its decision.
[8] Under the IRPR, to satisfy the
definition of conjugal partner, the relationship must have been maintained for
a period of at least one year as of the date of filing of the sponsorship
application. Moreover, the relationship must be bona fide.
|
2. “conjugal partner”
means, in relation to a sponsor, a foreign national residing outside Canada
who is in a conjugal relationship with the sponsor and has been in that
relationship for a period of at least one year. (partenaire conjugal)
|
2.
« partenaire conjugal » À l’égard du répondant, l’étranger résidant
à l’extérieur du Canada qui entretient une relation conjugale avec lui depuis
au moins un an. (conjugal partner)
|
|
4.
For the purposes of these 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 and was entered into primarily for the purpose of
acquiring any status or privilege under the Act. SOR/2004-167, s. 3(E).
|
4.
Pour l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait, le partenaire conjugal ou l’enfant
adoptif d’une personne si le mariage, la relation des conjoints de fait ou
des partenaires conjugaux ou l’adoption n’est pas authentique et vise
principalement l’acquisition d’un statut ou d’un privilège aux termes de la
Loi. DORS/2004-167, art. 3(A).
|
|
121. The
requirements with respect to a person who is a member of the family class or
a family member of a member of the family class who makes an application
under Division 6 of Part 5 are the following:
|
121. Les
exigences applicables à l’égard de la personne appartenant à la catégorie du
regroupement familial ou des membres de sa famille qui présentent une demande
au titre de la section 6 de la partie 5 sont les suivantes :
|
|
(a) the person
is a family member of the applicant or of the sponsor both at the time
the application is made and, without taking into account whether the person
has attained 22 years of age, at the time of the determination of the
application. SOR/2004‑167, s. 42.
|
a) l’intéressé doit être un membre de la
famille du demandeur ou du répondant au moment où la demande est faite et,
qu’il ait atteint l’âge de vingt-deux ans ou non, au moment où il est statué
sur la demande. DORS/2004-167, art. 42.
|
[9] Ms. Savard, for her part, argues that
the IAD assessed the evidence in great detail and correctly applied the
legislation and the case law for the purpose of determining whether there was a
conjugal relationship between her and Mr. Samadi. Ms. Savard also contends that
the IAD’s reasons explained exactly why it had reached that conclusion. In her
view, the application for judicial review should be dismissed.
[10] The Minister does not deny that it
is quite probable that the two are in fact a couple, but insists nonetheless
that they must adhere to the definition of “conjugal partner” in the IRPA and
sections 2 and 121 of the IRPR, and that this relationship must be genuine, in
accordance with section 4 of the IRPR. In other words, the Minister argues,
first, that the IAD cannot rely on evidence that is subsequent to the
sponsorship application in order to find that they were conjugal partners prior
to the application. Second, the Minister argues that the IAD cannot fail to
conduct an analysis under section 4 of the IRPR in assessing whether the
relationship is genuine.
Issues
[11] There are two issues in this case:
1. What is the
applicable standard of review?
2. Should the IAD
decision be upheld?
Standard of review
[12] As a general rule, this
Court should give substantial deference to the IAD decision, unless it is
patently unreasonable: see Satinder v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 504, [2001] F.C.J. No. 784 (QL), Jaglal v.
Canada (Minister of Citizenship and Immigration),
2003 FCT 685, [2003] F.C.J. No. 885 (QL), Lello
v. Canada (Minister of Citizenship and Immigration), 2005 CF 109, [2005] F.C.J. No. 136 (QL).
[13] However, as my colleague Mr. Justice
Beaudry stated, in Yen v. Canada (Minister of Citizenship and Immigration),
2005 FC 1236, [2005] F.C.J. No. 1501 (QL), the appropriate standard of review
for questions of interpretation of law is correctness.
[14] Since, in the case at bar, the
Minister alleges an error in law concerning the interpretation of the notion of
conjugal partner and in the analysis of bona fides under section 4 of
the IRPR and in the scope of the reasons given by the IAD, the applicable
standard of review is indeed correctness.
Analysis
[15] The IAD’s reasons raise the main
issue herein. According to these, the evidence to be considered is not only the
evidence relevant to the sponsorship period, that is, one year prior to the
filing of the application, but a range of evidence subsequent to the
application. The issue is whether the IAD actually examined the right evidence,
and if so it must be determined whether the reasons reflect its reasoning
clearly and sufficiently.
[16] The parties do not dispute that an
appeal to the IAD is an appeal de novo, as was shown in Amar Singh v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1673, [2005] F.C.J. No. 2071 (QL) and Kahlon v. Canada
(Minister of Employment and Immigration), [1989] F.C.J. No. 104
(QL), 7 Imm. L.R. (2d) 91 (F.C.A.). It is true that normally the IAD may in
fact consider all of the evidence that is adduced before it. However, in this
case, the IAD made no distinction between the evidence pertaining to the
relevant period and the subsequent evidence; this points to an error of law
rather than of fact.
[17] If, as the
Minister argues, the IAD considered the subsequent evidence in order to
determine that the two are indeed conjugal partners, the IAD did not correctly
interpret the language in section 2 of the IRPR, which requires that the
individuals have been in a conjugal relationship for a period of at least one year
at the time of filing of the sponsorship application.
[18] Section 2
of the IRPR defines “conjugal partner” as meaning, “in
relation to a sponsor, a foreign national residing outside Canada who is in a
conjugal relationship with the sponsor and has been in that relationship for a
period of at least one year”. Section 130 of the IRPR defines the “sponsor”. It
appears that, in order to be sponsored as a conjugal partner, Mr. Samadi should
not be living in Canada. If we return to the definitions in the IRPR, according
to section 1, a “common-law partner” means an individual who is cohabiting with
another individual in a conjugal relationship, having so cohabited for a period
of at least one year. It is obvious, therefore, that a “conjugal partner” need not
cohabit for at least one year.
[19] There is a distinction to
be made, therefore, between what is understood by a “common‑law partner”
and a “conjugal partner”. The parties are in agreement that the notion of
“conjugal partner” within the meaning of the IRPR has not been the subject
matter of decisions in the Federal Court. But there are some decisions of the
Supreme Court that can be considered in order to understand more clearly the
notion of “conjugal partner” — in particular M. v. H., [1999] 2 S.C.R. 3
— none of these decisions have an immigration context. See also McCullough v. Canada (Minister of
Citizenship and Immigration), [2004] I.A.D.D. No. 25 and Gibbs v. Canada (Minister of Citizenship
and Immigration), [2004] I.A.D.D. No. 1221.
[20] The problem in this case is that it
is impossible to determine from the IAD’s reasons how the decision-maker
arrived at the finding that Ms. Savard and Mr. Samadi were conjugal partners
within the meaning of section 2 of the IRPR.
[21] This leads to another problem: the
IAD’s reasons are insufficient and do not indicate how the decision-maker
reached its decision. As the Supreme Court held in R. v. Sheppard,
[2002] 1 S.C.R. 869, at para. 15:
The courts frequently say that justice must not only be done
but must be seen to be done, but critics respond that it is difficult to see
how justice can be seen to be done if judges fail to articulate the reasons for
their actions. Trial courts, where the essential findings of facts and drawing
of inferences are done, can only be held properly to account if the reasons for
their adjudication are transparent and accessible to the public and to the
appellate courts.
[22] Clearly, the reasoning underlying a
decision is important when there is an application for judicial review. As I
stated in Blais v. Canada (Attorney General), 2004 FC 1638, (2004),
263 F.T.R. 151, [2004] F.C.J. No. 1996 (QL), at para. 39:
As stated in Nova Scotia (Workers’ Compensation Board) v.
Martin, [2003] 2 S.C.R. 504, factual findings and the record compiled
by an administrative tribunal as well as its informed and expert view will
often be invaluable to a reviewing court.
[23] Although the IAD refers to the
evidence adduced by Ms. Savard, which consists of an array of love letters,
emails, telephone invoices and evidence of trips to Spain, most of this
evidence relates to the period following the filing of the sponsorship
application. It is true that Cepeda-Guiterrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), 157 F.T.R. 35,
held that failure to refer to each item of evidence does not mean that not all
of the evidence was considered. Notwithstanding this contention, absent a
precise distinction between the evidence relating to the sponsorship period and
the evidence subsequent to the application, the Court must assume that the
subsequent evidence was considered.
[24] Moreover, in view of the importance
of distinguishing between the notion of “common‑law partner” and
“conjugal partner” under the IRPR, and in view of the Martin decision, supra,
it would be wrong for this Court to try to reach its own conclusion on this
point. On judicial review, it is essential to illustrate the Court’s reasoning
and set out the important considerations in Ms. Savard’s case. The IAD is unquestionably
an expert tribunal and the Court must defer to its expert opinion, particularly
in relation to the various interpretations and definitions surrounding the
concept of “conjugal partner”. Unfortunately, this notion has not been
sufficiently developed in the IAD’s reasons for the Court to be able to
understand the reasoning behind the IAD’s decision.
[25] As the American poet Henry Wadsworth
Longfellow said, “It is difficult to know at what moment love begins; it is
less difficult to know that it has begun.” In this case, there is apparently no
question that love has begun between Carole Savard and Abderaouf Samadi; but it
would be an error in law, in interpreting the legislation, to overlook when
this love began.
Conclusion
[26] For the aforementioned reasons, the
Court will allow the application for judicial review and order that a rehearing
be held before a new member of the IAD.
[27] I wish to point out that my decision
to allow the application for judicial review does not preclude Ms. Savard from
filing a new sponsorship application having regard to the evidence she might
otherwise provide in order to satisfy the requirements of the IRPA and the
IRPR.
Certification of a question
[28] At the conclusion of the hearing in
this case, I informed the parties that they could propose to me a question to
be certified if they were persuaded that the certification of a question was
appropriate. Even before I could inform the parties of my reasons, Ms. Savard
raised the following question:
[translation] What
are the characteristics of a conjugal relationship in the context of a
sponsorship application and undertaking in favour of a conjugal partner?
Although this question is
important, I am not going to certify it since it is not decisive to any appeal
of my decision.
[29] Ms. Savard now
has until February 7, 2006 to submit another serious question of general
importance for me to examine, and, if applicable, the Minister has until
February 10 to reply to it. Any correspondence shall be conducted through the
local Office in Montréal.
“Sean Harrington”
Ottawa, Ontario
February 1, 2006
Certified true
translation
François Brunet,
LLB, BCL
Email this Content