Date: 20100511
Docket: IMM-1839-09
Citation: 2010 FC 509
Ottawa, Ontario, May 11, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
PHAT
THOAI MA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
The
principles of law on adverse inference are well-established. The leading
statement is to be found in Wigmore, “Evidence in Trials at Common Law”,
1979 (Chadbourn Rev.) at vol. 2, 285, page 192:
…The failure to bring before the tribunal some
circumstance, documents, or witness, when either the party himself or his
opponent claims that the facts would thereby be elucidated, serves to indicate,
as the most natural inference, that the party fears to do so, and this fear is
some evidence that the circumstance or document or witness, if brought, would
have exposed facts unfavourable to the party. These inferences, to be sure,
cannot fairly be made except upon certain conditions; and they are also open
always to explanation by circumstances which make some other hypothesis a more
natural one than the party’s fear of exposure. But the propriety of such an
inference in general is not doubted. (Emphasis added).
[2]
Reasonableness
dictates that in the case of the Immigration and Refugee Board (and all its
divisions), although the rules of evidence in its regard are relaxed,
nevertheless, when evidence is available, or could be made available but not
produced, or when a person can testify, is given the opportunity to testify,
but does not testify, then an adverse inference can be drawn.
[3]
The
adverse inference is drawn not merely from the failure to produce, “but from
non-production when it would be natural for the party to produce” such
evidence: Wigmore, vol. 2 at 199; reference is also made to Barnes v.
Union Steamships Ltd. (1954), 13 W.W.R. 72, aff’d, 14 W.W.R. 673
(B.C.C.A.), adopting and citing Wigmore:
It is certainly a maxim that all evidence
is to be weighed according to the proof which it was in the power of one side
to have produced, and in the power of the other to have contradicted.
[4]
The
Supreme Court of Canada has dealt with this issue in the often referred to
decision of Levesque v. Comeau, [1970] S.C.R. 1010. It was held that a
court must presume that such evidence would adversely affect the plaintiff’s
case, as said by Justice Louis-Philippe Pigeon on behalf of the majority of the
court, at pp. 1012-3.
[5]
In
Johnston v. Murchison, [1995] P.E.I.J. No. 23 (QL), 53 A.C.W.S. (3d)
786, the Prince Edward Island Court of Appeal following Levesque, above,
found that the trial judge erred in failing to draw an adverse inference from
the fact that a key witness to the case was not called to give evidence:
[36] ... Generally speaking, where a plaintiff
is at best able to raise only a possibility a certain condition was the cause
of the plaintiff's condition, the plaintiff's failure to produce evidence,
which may be material to the cause and which is within the power of the
plaintiff to produce, must result in an adverse inference that the evidence
which was not produced, would adversely affect the plaintiff's case. The
weight which may be given to such an adverse inference is clearly within the
discretion of the trial judge; however, the trial judge's failure to draw an
adverse inference, in such circumstances, is an error which goes to the trial
judge's overall assessment of the evidence. (Emphasis added).
[6]
Indeed,
that is the crux of this matter. It would have been natural for the spouse to
have testified at the appeal. It is clear that she, as the spouse, was
particularly and uniquely qualified to give evidence on the material issue in
the appeal, namely, her credibility. She failed to do so. While the Immigration
Appeal Division (IAD) did not explicitly use the language of adverse inference,
it reasonably concluded, after considering all of the evidence before it, that
in the absence of the testimony of the spouse, the evidentiary burden which the
statutory language placed upon the Applicant was not met.
[7]
Moreover,
in that regard, the tribunal’s reasoning was consistent with both logic and
common sense. The Applicant is in fact challenging the weight assigned to the
evidence by the IAD and is asking the Court to substitute a different
assessment; however, as the Federal Court of Appeal stated in Hoang v.
Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 1096
(QL), 24 A.C.W.S. (3d) 1140: “[t]he assessment of the weight of the evidence
is a proper matter for decision by the Board and is not subject to review by
this Court.” No
arguable issue of law arises from this ground of attack”
II. Judicial Review
[8]
This
is an application for judicial review of a February 19, 2009 decision of the
Immigration Appeal Division of the Immigration and Refugee Board (IAD) dismissing
the Applicant’s appeal of a finding that his marriage was not genuine for the
purposes of section 4 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations).
III. Background
[9]
The
Applicant, Mr. Phat Thoai Ma, is a Canadian citizen. He met his wife, Ms.
Angelica Castro Ramirez, a citizen of Mexico, in 2004 and began a
romantic relationship. The two were married in a civil ceremony on December 17,
2005. The couple’s daughter, Melissa, was born in Mexico on March 11,
2009.
[10]
Ms.
Ramirez came to Canada on September 12, 2002, to study English, but
decided to apply for refugee status, which she did on November 16, 2002. Her
claim was denied due to a lack of credibility on March 15, 2005. She left Canada on July 7,
2006, after marrying Mr. Ma.
[11]
Subsequent
to her removal from Canada, Ms. Ramirez submitted an application for landing as
a member of the family class, Mr. Ma having, himself, applied for Ms. Ramirez’
landing under his sponsorship.
[12]
The
Applicant appealed the decision of a visa officer who found Ms. Ramirez was not
a member of the family class because her marriage to Mr. Ma was not considered
genuine for the purposes of the Regulations. The refusal letter specifies the
officer’s decision was based on the following considerations: a lack of
evidence that Ms. Ramirez and the Mr. Ma had lived together; Mr. Ma had not
informed his parents of his relationship with Ms. Ramirez; their different
ethnic backgrounds, religions and ages; as well as the fact that their
religious differences were set aside in favour of a civil union shortly before
Ms. Ramirez was removed from the country.
IV. Decision under Review
[13]
The
IAD found that Mr. Ma had not “met his burden to establish that, on a balance
of probabilities, his marriage to the applicant [Ms. Ramirez] is genuine or
that it was not entered into primarily for immigration purposes” (Applicant’s
Record at p. 8).
[14]
The
IAD stated that the genuineness of a marriage is based on several factors which
may vary from case to case and will be weighed according to the prevailing
circumstances.
[15]
Ms.
Ramirez did not testify at the hearing. The IAD cited the case of Mann v.
Minister of Citizenship and Immigration, IAD (TA3-19094) for the
proposition that the testimony of an applicant is not required on all appeals;
the testimony of the appellant, alone, can suffice to show the bona fides
of their intentions. The IAD went on to state that in some cases the testimony
of an applicant is necessary, for instance, in circumstances wherein an
applicant has a questionable immigration history. The IAD held that Ms.
Ramirez’s immigration history and the timing of her marriage raised questions
in respect of her intentions; therefore, her testimony was necessary to address
these concerns.
[16]
The
IAD found that Ms. Ramirez’s testimony was also necessary to further examine
the discrepancies in regard to her cohabitation with Mr. Ma and religious
differences. The IAD did note evidence of communication between the two, as
well as Mr. Ma’s trips to Mexico and financial support that was given;
nevertheless, serious concerns remained regarding the intentions of
Ms. Ramirez which could not be addressed without her specific and direct
testimony.
[17]
The
IAD had noted that Ms. Ramirez was pregnant and, further, stated that the Mr. Ma
“likely is the child’s father”. It held, nevertheless, that pregnancy is not a
determinative factor when analyzing the genuineness of a marriage. The IAD
stated that no evidence of support by Mr. Ma’s family was offered at the time,
nor was there any evidence that his family had any contact, during that period,
with Ms. Ramirez and no evidence was offered that the family were, at the
time, made aware of the pregnancy.
IV. Issues
[18]
(1)
Did the IAD apply the wrong test for genuineness?
(2)
Did the IAD make an unreasonable decision having regard to all the evidence
before it?
V. Relevant Legislative Provisions
[19]
Section
4 of the Regulations states:
|
Bad faith
4.
For the purposes of these Regulations, a foreign national shall not 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.
|
Mauvaise foi
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.
|
VI. Positions of the Parties
Applicant’s Position
[20]
The
Applicant submits section 4 of the Regulations states that a foreign national
shall not be a member of the family class if a marriage to a sponsor is not
genuine and was entered into primarily for the purposes of immigration. The Applicant
cites the case of Donkor v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1089, 299 F.T.R. 262 for the
proposition that section 4 is examined for both its prongs which are to be met
before a marriage is considered to be genuine. The Applicant submits the IAD
neither referenced this two-pronged approach nor did it analyze the evidence to
indicate that this approach was followed.
[21]
The
Applicant cites IAD jurisprudence to indicate that the conception of a child is
a strong indicator of a genuine marriage. The IAD was aware of this
jurisprudence, but distinguished certain cases on the grounds that they
involved children who were born prior to the refusal of a visa, not after it,
as is the case at bar. The Applicant submits this misconstrues the very purpose
of an appeal before the IAD, which is an appeal de novo.
[22]
The
Applicant submits the IAD’s finding in regard to the couple’s different
religious backgrounds is unreasonable. The Applicant states that he and Ms.
Ramirez resolved the matter of their daughter’s religious upbringing before she
was born and, regardless of what the IAD held, no inconsistencies were
evidenced by the testimony in respect of religion.
Respondent’s Position
[23]
The
Respondent submits the IAD set out the correct legal test and properly applied
it to the decision.
[24]
The
Respondent submits the IAD’s decision is based primarily upon the unexplained
failure of Ms. Ramirez to testify at the hearing. The Respondent cites the case
of Levesque, above, for the proposition that a court must presume that a
failure to produce evidence that would logically be of assistance means the
evidence would adversely affect the Applicant’s case.
[25]
The
Respondent notes that Ms. Ramirez has a questionable immigration history that
calls into question her intentions.
VII. Standard of Review
[26]
Courts
have held that the IAD’s factual findings are to be reviewed on a standard of
reasonableness, having regard to the fact that an appeal before the IAD is a
hearing de novo.
[27]
The
Court, subsequent to discussion and analysis with the parties, recognizes that
section 4 of the Regulations must be interpreted on a standard of correctness
in accordance with the legislator’s intention that the test be conjunctive.
VIII. Analysis
(1) Did the IAD apply the
wrong test for genuineness?
[28]
Subsequent
to an in-depth discussion in the Courtroom with counsel for each party
respectively regarding the interpretation of the genuineness test, the Court is
in full agreement with the Respondent bearing the circumstances of this case.
The IAD did not apply the wrong test for genuineness.
(2) Did the IAD make
an unreasonable decision having regard to all the evidence before it?
[29]
Having
established that the IAD had set out the correct legal test, the Court finds
that the IAD properly applied the test to the evidence and facts before it. It
is clear from the decision that the IAD was not satisfied that there was a
genuine marriage; notwithstanding, the documentation in support of the
relationship, it was only the sponsor who testified and his testimony did not
satisfactorily resolve the material issues of credibility. The IAD could not
resolve the contentious issues because only the sponsored spouse, herself,
could have provided answers to dispel reasonable doubts in regard to the bona
fides of the spousal relationship.
[30]
The
IAD’s conclusions are based upon a continuous and unresolved credibility
concern which relates to factors described by the visa officer in his decision
and Computer Assisted Immigration Processing System (CAIPS) notes. An adequate
evidentiary basis exists for the IAD to suspect the spouse’s motives and to
conclude that her primary purpose for entering the marriage was immigration to Canada, the second prong of
the test under section 4.
IX. Conclusion
[31]
The
standard of reasonableness dictates that this Court is to show deference to the
IAD’s reasoning and not to intervene unless it can be shown that the decision
falls outside a range of “possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9,
372 N.R. 1 at para. 47).
[32]
The
Court is cognizant of its place within the Canadian immigration system in cases
such as this. It is established law that an appeal before the IAD is an appeal de
novo (Provost v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1310, [2009] F.C.J. No. 1683 (QL)
at para. 25). Therefore, the Applicant must convince the IAD, not this Court,
that the marriage is genuine or was not entered into primarily for the
purpose of gaining status under the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA). This Court’s jurisdiction is relegated to that of
review and it is not to tamper with the IAD’s discretion if that discretion was
reasonably exercised.
[33]
The
IAD noted there is evidence to suggest the marriage is genuine; however, it
could not be convinced of this fact, on a balance of probabilities, without the
testimony of Ms. Ramirez, taking into account concerns regarding her intentions
and various evidentiary discrepancies.
[34]
Subsequent
to an analysis of the evidentiary material, the arguments of counsel and
prevalent considerations specified above, the application for judicial review
is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The
application for judicial review be dismissed;
2.
No
serious question of general importance be certified.
“Michel M.J. Shore”
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