Date: 20100416
Docket: IMM-4815-09
Citation: 2010 FC 417
Vancouver, British Columbia, April
16, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
SAPINDER
PAL KAUR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant’s application for permanent residence as a member
of the spouse or common-law partner in Canada
class was denied because the officer determined that the applicant’s
relationship with her sponsor was not genuine and was entered into primarily
for the purpose of obtaining permanent residence in Canada.
The applicant seeks to have that decision set aside.
[2]
For the reasons that follow, this
application is dismissed.
I. Background
[3]
The
applicant is a citizen of India. In 2006 she applied for a study permit,
but her application was rejected on the basis that it lacked bona fides.
[4]
On
March 18, 2008, the applicant applied for a work permit. This application was
also rejected on the basis that it lacked bona fides.
[5]
On
June 2, 2008, the applicant again applied for a temporary residence visa, this
time as a visitor. The applicant stated that her marital status was “engaged”.
The applicant listed her fiancé as her current spouse and sponsor. Again, the
application was rejected on the basis that it lacked bona fides.
[6]
The
applicant states that she met her sponsor on May 9, 2007, at London Heathrow Airport. They went
on dates in the United Kingdom for a period of approximately two to three weeks
and then carried on a long distance relationship until she entered Canada using a
fraudulent passport on June 19, 2008. On July 23, 2008, she made a claim for
refugee status. At the hearing the Court was advised that this application was
recently denied.
[7]
On
July 27, 2008, the applicant and her sponsor were married. On September 8,
2008, the applicant made an inland application for permanent residence as
a member of the spouse or common-law partner in Canada class. This
application was rejected on August 21, 2009. It is from this decision
that the applicant seeks judicial review.
[8]
The
officer in the decision reviewed the many discrepancies arising from the
separate interviews she conducted with the applicant and her sponsor. The
applicant and her sponsor were inconsistent with respect to whether he proposed
to her, how their wedding rings were purchased, whether they had a wedding
reception, when they last gathered with their friends, and what each wore to
bed the previous night. The officer determined that “the above-noted
discrepancies, in their totality, demonstrate both the applicant and sponsor's
lack of knowledge regarding significant events in the course of their
relationship as well as ordinary daily events.”
[9]
The
officer discussed each of these discrepancies in some detail and concluded that
they were not indicative of a genuine relationship. The officer considered
whether the applicant’s and her sponsor’s cultural perspective could have
explained the inconsistency as to whether they had a wedding reception or
not. The officer concluded that given the couple’s shared East Indian
background it was unlikely that they misinterpreted the question regarding the
occurrence of the wedding reception.
[10]
The
officer stated: “[B]ased on the discrepant answers the applicant and sponsor
provided at the interview, I am not satisfied that their marriage was not
entered into by the applicant primarily for the purpose of remaining in Canada.” The
officer concluded:
In reviewing all information
on file, including all submissions made by the applicant and the information
obtained during the interview, I conclude, on the balance of
probabilities, that this is not a genuine spousal relationship and was entered
into by the applicant primarily for the purpose of acquiring permanent
residence in Canada. Therefore, the applicant
does not meet the requirements of s. 4 and s. 124(a) of Immigration and
Refugee Protection Regulations and is not a member of the spouse or common
law partner in Canada class.
Consequently, the officer rejected the
applicant's application.
II. Issues
[11]
The
applicant raises a number of issues in her memorandum of argument:
1. Whether the officer erred in law in
reaching her decision in this case?
2. Whether the officer breached
procedural fairness in reaching the decision?
3. Whether the officer based the
decision upon erroneous findings of fact that she made in a perverse or
capricious manner without regard to the material before her?
4. Whether the officer failed to observe
the principle of natural justice in this case?
III. Analysis
1. Whether the officer
erred in law in reaching her decision in this case?
[12]
The
applicant submits that there are two prongs to the test set out in section 4 of
the Regulations: (1) that the relationship is not genuine,
and (2) that the relationship was entered into primarily for the purpose of
acquiring any status or privilege under the Act. She submits that both prongs
of the conjunctive two-part test must be met before an officer can find a
person not to be a spouse or common-law partner for the purpose of
sponsorship: Khan v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1490 and Donkor v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1089. She submits that the
officer failed to consider the second part of the test and therefore committed
a reviewable error.
[13]
The
respondent submits that the evidence the officer relied on to conclude that the
relationship was not genuine was also applicable to the officer's analysis in
determining that the relationship’s primary purpose was to achieve status under
the Act. The respondent contends that the officer made explicit reference to
the second part of the test. Further, it is submitted that there is a
strong link between the two prongs of the test: Sharma v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1131 at paras. 16-18.
[14]
Determinations
of whether a relationship is genuine and entered into for the purpose of obtaining
status under the Act are factual determinations and therefore reviewable on the
reasonableness standard.
[15]
The
applicant is correct that section 4 of the Regulations creates a two-pronged
test to determine whether a relationship is a spousal relationship for the
purposes of sponsorship. The applicant bears the onus of proving (1) that
their relationship is genuine, and (2) that it was not entered into
primarily for the purpose of acquiring any status or privilege under the Act.
In determining that an applicant is not a spouse pursuant to section 4 of
the Regulations, if an officer fails to consider both prongs of the test “it is
open to the court to find that a reviewable error has occurred:” Khan at
para. 5.
[16]
The
officer's reasons in this case were focused on, although not limited to, the
genuineness of the applicant’s marriage. In Sharma at paras. 17-18, Madam
Justice Snider held that there is a strong link between the two prongs of the
test, and that a finding of “lack of genuineness presents strong evidence that
the marriage was entered into for the purpose of gaining status.” In my view,
if the evidence leads to a finding that the marriage is not genuine, then there
is a presumption that it was entered into for the purpose of gaining status. The
burden of establishing a contrary purpose should be placed squarely on the
applicant.
[17]
In
this case, the officer did consider the second part of the test. The officer
stated that “based on the discrepant answers the applicant and sponsor provided
at the interview, I am not satisfied that their marriage was not entered into
by the applicant primarily for the purpose of remaining in Canada.” Given the
linkages between the two prongs of the test this analysis was sufficient.
[18]
The
officer covered both prongs of the test in concluding “that this is not a
genuine spousal relationship and was entered into by the applicant primarily
for the purpose of acquiring permanent residence in Canada.” The
officer did not commit a reviewable error in applying the wrong test or only a
part of the appropriate test.
2. Whether the officer breached procedural fairness in reaching the decision?
[19]
The
applicant submits that the officer breached procedural fairness by providing
inadequate reasons. Specifically, she says that the officer failed to explain
how she reached the conclusion that the applicant married her sponsor primarily
for the purpose of acquiring status under the Act. The applicant submits
that the reasons are so inadequate that they prevent her from effectuating
judicial review.
[20]
The
respondent submits, citing Singh v. Canada (Minister of
Citizenship and Immigration), 2009 FC 620 at para. 8, that the duty to
provide reasons in this context is minimal. The respondent submits that the
officer provided reasons in support of her conclusions on both prongs of the
test, and that these reasons were adequate in the circumstances.
[21]
No
deference is due when procedural fairness is breached: Sketchley v. Canada (Attorney
General),
2005 FCA 404 at para. 53. The correctness standard of review is applied in
determining whether the appropriate level of fairness was provided.
[22]
In
Singh at para. 8, I stated that “the adequacy of reasons must be
examined in the context of the decision.” However, Singh and da
Silva v. Canada (Minister of Citizenship and Immigration), 2007 FC
1138, which is cited therein, both involved applications for a temporary
residence visa.
[23]
This
case involves an application for permanent residence as a member of the in Canada spousal or
common-law partner class. It is not an application for temporary resident
status. The ramification of the officer's determination in this case is
that the couple may be separated. If the relationship is genuine, an
incorrect negative decision can have the tragic consequence of separating
a family. Accordingly, the duty to provide reasons is higher in such cases than
it is in applications for temporary resident status.
[24]
Nonetheless,
I am also of the view that the officer in this case provided adequate reasons
which satisfied her duty of fairness. The officer described in detail the
discrepancies that she noted and explained why these discrepancies led to the
conclusion that the relationship was not genuine. Further, the officer
considered the cultural perspectives of the applicant and her sponsor, but concluded
that these perspectives did not explain the discrepancies found. The officer
expressly stated that her conclusion with respect to the primary purpose of the
marriage was based on the discrepancies found. These reasons were sufficient
to allow the applicant to seek judicial review, and satisfied the duty to
provide reasons in these circumstances.
3. Whether the officer
based the decision upon erroneous findings of fact that she made in a perverse
or capricious manner without regard to the material before her?
[25]
The
applicant submits that the officer disregarded documentary evidence that
supported a finding of a genuine relationship, such as photographs, joint
bank statements, and a doctor's note showing that the applicant had undergone a
therapeutic abortion. The applicant cites Tae v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1096 and Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.) for the
proposition that the officer’s limited treatment of the documentary evidence in
this case constitutes a reviewable error.
[26]
I
agree with the respondent that there is a presumption that the officer
considered all of the evidence that was before her: Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL). This
presumption falls away only when there is evidence provided by the applicant
that is directly contrary to a material finding of the decision-maker and this
evidence is not referred to explicitly: Cepeda-Gutierrez.
[27]
In
this case, the evidence to which the applicant points does support a conclusion
that her relationship with her sponsor is genuine and that it was not entered
into primarily for the purpose of obtaining permanent residence. However,
this evidence is not directly contrary to the material findings of the officer.
The officer's decision was based on the discrepancies between the applicant's
and her sponsor’s responses in their respective interviews. The officer's
decision was not based on a lack of evidence, which the documentary evidence
submitted could have overcome. It was open to the officer to give more weight
to the discrepancies than to the documentary evidence provided. The officer
did note the information submitted by the applicant. I share the view of the
respondent that the applicant is asking this Court to re-weigh the evidence. That
is not the Court’s role.
4. Whether the officer
failed to observe the principle of natural justice in this case?
[28]
The
applicant submits that the officer breached natural justice by allowing the
interview to proceed even though she and her sponsor told the officer that
they were having problems understanding the interpreter. The applicant submits
that the “minor discrepancies” the officer found were due to translation
problems.
[29]
I
agree with the respondent that this submission is without merit. The officer's
notes show that she confirmed that the applicant and her sponsor understood the
interpreter before the interview commenced. The notes also show that she
confirmed with the interpreter that he understood the applicant and her
sponsor. Importantly, neither the applicant nor her sponsor raised any concern
with the quality of the interpretation during the interview, and they only now
raise this argument after receiving a negative decision. If the applicant or
her sponsor had a problem with the interpretation, the onus was on them to
bring this concern to the attention of the officer.
[30]
The
applicant says in her affidavit that they did raise the issue of interpretation
with the officer during their interview. She says:
My husband and I pointed out
to the interviewing officer that we have a difficulty to understand the
interpreter. On the other hand, the interpreter was having a problem to
hear and understand us because of his old age and hearing problems.
[31]
I
do not accept that they raised any such issue with the officer. First, there
is no explanation offered, and none that is obvious, as to why the officer
would proceed with an interview if informed that the interpreter and the
parties were having difficulties understanding each other. Second, the
interpreter was a certified interpreter and, as such, was under a duty to
inform the officer of any such communication concerns; none was made. Third,
the alleged concerns were raised only after the decision was made and there is
no reference to these concerns being raised at the hearing or immediately
following it. Fourth, the interviews held with the applicant and her sponsor
took three hours. The length of the interview, done through translation, considering
the number of questions asked, does not point to any difficulty in
understanding between the interpreter and the officer. Fifth, there is nothing
in the officer’s notes of the answers given to any of the questions asked that suggests
in any way a difficulty in communication; the answers transcribed are
appropriate responses to the questions asked.
[32]
I
also reject the applicant’s submission that the discrepancies found by the
officer were only “minor discrepancies.” The discrepancies noted by the
officer were significant and, when considered in their totality, sufficient to
support the determinations that the officer made.
[33]
The
officer’s reasons were transparent, justifiable and intelligible. She explained
the determinations that she made with respect to both prongs of the two-part
test. In making these determinations, the officer did not ignore evidence nor
did she breach the applicant’s right to natural justice. It cannot be said
that the officer's decision was unreasonable. For these reasons this
application for judicial review is dismissed.
[34]
Neither
party proposed a question for certification. On the facts of this case, there
is no question that may properly be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This
application is dismissed; and
2.
No
question is certified.
“Russel
W. Zinn”
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