Date: 20100423
Docket: IMM-4559-09
Citation: 2010 FC 414
Ottawa, Ontario, April 23, 2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Applicants
and
BRUCE
TIRER
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by
the Immigration Appeal Division of the Immigration and Refugee Board (the
Board) dated August 27, 2009, wherein the Board allowed the respondent’s appeal
from a visa officer’s decision to refuse the permanent residence application
made by his spouse, Frida Cibrinovsky.
Factual Background
[2]
The
respondent, Bruce Tirer, is a 52 year old Canadian citizen who is a
self-employed computing specialist. The respondent’s wife, Frida Cibrinovsky,
is a 62 year old Israeli citizen who lives in Israel.
[3]
The
respondent and Mrs. Cibrinovsky were married on May 14, 2005. This is the respondent’s
first marriage. The respondent’s wife is divorced and she teaches music in Israel. Her
daughter lives in Canada and her son lives in Israel. The respondent
sponsored his wife’s application for permanent residence to Canada.
[4]
The
visa officer interviewed the respondent’s wife in Tel Aviv on January 2, 2007. The
visa officer addressed various concerns at the interview, such as the little
time the couple spent together prior to their marriage, the fact that the respondent
never inquired about the status of his wife’s application, the fact that the respondent’s
wife was unaware of significant details about her husband - e.g. if and when he
moved, his current address, their wedding date or the names of his friends who
attended the wedding. The officer also found there was insufficient evidence of
an ongoing relationship and there were discrepancies on the application forms.
[5]
On
February 7, 2007, the visa officer concluded that Mrs. Cibrinovsky was a person
described in section 4 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations) and that the marriage was not genuine and was
entered into primarily for the purpose of acquiring a status or privilege under
the Act. Mrs. Cibrinovsky therefore did not meet the requirements for
immigration to Canada as a member of the family class. Her
application for permanent residence was refused. The reasons for the visa
officer’s decision were provided in the CAIPS interview notes.
[6]
The
respondent appealed the decision to the Board pursuant to subsection 63(1) of
the Act. On August 27, 2009, the Board concluded that the relationship was
genuine and had not been entered into primarily for the purpose of acquiring
any status or privilege under the Act. Consequently, the Board allowed the
appeal.
Impugned Decision
[7]
The
Board granted the appeal primarily for the reasons set out in paragraphs 9, 12
and 13 of its reasons. The Board acknowledged there were discrepancies between
the appellant testimony and the answers given by the appellant at the interview
in 2007 but found that the respondent’s ability to explain the context of the
interview notes was understandably limited because Mrs. Cibrinovsky was in Israel. Also, since
both spouses agreed it was a simple wedding, the Board found the fact that Mrs.
Cibrinovsky did not know the number of people who attended the wedding was not
a major discrepancy. Lastly, given the couple spoke through web-based
communications where telephone numbers are not used, the Board found it was
understandable that Mrs. Cibrinovsky did not know the respondent’s phone
number.
Issues
[8]
This
application raises the following issues:
Did
the Board err in concluding that the relationship was genuine and had not been
entered
into
primarily for the purpose of acquiring any status or privilege under the Act? Did
the
Board
fail to assess the credibility of the spouses or made findings of facts that
were
perverse
or capricious?
Relevant Legislation
[9]
Section
4 of the Regulations establishes that a foreign national shall not be
considered a spouse of a person if the marriage is not genuine and if it was
entered into primarily for the purpose of acquiring any status or privilege
under the Act.
|
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.
|
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.
|
Standard of Review
[10]
Determining
whether a marriage is genuine is a question of mixed fact and law as it
involves applying the facts of the case to the requirements of the Regulations.
Therefore, the appropriate standard of review is reasonableness (Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Khanna v. Canada (Minister of
Citizenship and Immigration), 2008 FC 335, 166 A.C.W.S. (3d) 362; Nadon
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 59, 158 A.C.W.S. (3d) 470).
[11]
The
assessment of credibility and weighing of the evidence fall within the
jurisdiction of the administrative tribunal. The Court will only intervene if
the Board based its decision on an erroneous finding of fact made in a perverse
of capricious manner or if it made its decision without regard to the material
before it (Aguebor v. Canada (Minister of Employment and Immigration),
(1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.)). The applicable standard
of review on credibility issues is reasonableness.
Analysis
[12]
The
language of section 4 of the Regulations requires that a marriage be both
genuine and not entered into for the sake of gaining status under the Act. This
Court has held that an administrative tribunal must comment on the evidence and
information before it and explain why it rejected it, especially if it is
central to the Board’s determination of the issues (Bains v. Canada
(Minister of Employment and Immigration), (1993), 63 F.T.R. 312, 40
A.C.W.S. (3d) 657). The applicants submit the Board rejected the evidence
contradicting the respondent’s testimony without basis and the Board’s reasons
for rejecting this evidence is not supported by the material which was before
it.
[13]
From
the outset, the Court notes that the visa officer identified major
contradictions and credibility concerns in crucial responses by Mrs.
Cibrinovsky at her interview with the officer which took place at the Canadian
Embassy. They constituted the main reason for his refusal and subsequently
constituted the core issue in the appeal. This evidence was before the Board.
[14]
More
particularly, the record demonstrated that Mrs. Cibrinovsky had little or no
knowledge of significant details of her spouse’s life, of details regarding
their wedding and, more particularly, of their wedding date. The visa officer
found there was insufficient evidence of an ongoing relationship. The visa
officer also found that the respondent had shown a serious lack of interest in
his wife’s application and in having her reside in Canada.
[15]
The
respondent alleges that the hearing before the Board is a de novo
process and any deficiencies in the original sponsorship application can be
addressed by the respondent or his wife. In the case at bar, the respondent
asserts that the Board considered Mrs. Cibrinovsky’s discrepancies in the
context of the total testimony provided by the respondent. The respondent also
submits the Board recognized that the fact his wife did not testify did not go
to the heart of their relationship. The nature of the visa officer’s reasons
and concerns were such that the respondent could clarify the issues. According
to the respondent, the applicants focus on issues identified by the Board as
minor issues and, given the totality of the evidence, the Board’s decision is
reasonable.
[16]
Despite
the respondent’s able argument, the Court disagrees.
[17]
Although
the Board raised the issue of discrepancies, the Court finds that the Board
failed to conduct a proper analysis. Indeed, the visa officer’s interview notes
describe Mrs. Cibrinovsky’s lack of knowledge about the relationship in detail
but the Board’s decision only considered the respondent’s knowledge of the relationship.
The Board should also have considered Mrs. Cibrinovsky’s
knowledge of the relationship. Accordingly, the Board failed to address important
material contradictions of the applicant, for instance, the number of guests
who attended the wedding. Instead, the Board relied solely on the respondent’s
assertion and belief without testing the applicant’s contradictions against
relevant facts. The Board clearly ignored essential parts of the evidence
before it and committed a reviewable error.
[18]
Although
Mrs. Cibrinovsky’s credibility was in doubt after the hearing with the visa
officer, she did not testify before the Board. In its reasons, the Board notes
that Mrs. Cibrinovsky did not testify and, as such, discussion in terms of
clarifying inconsistencies and contradictions was somewhat limited. The Board’s
reasons on this issue are set out at paragraph 9 of the Board’s decision:
The Applicant [Appellant -Mr. Trier]
testified at the hearing. The Applicant [Mrs. Cibrinovsky] did not testify.
There was some discussion during the hearing of the contents of the transcript
of the Applicant’s interview at the Canadian Embassy in Israel in 2001. The Panel’s
opinion is that discussion of the content of these notes is constrained by the
fact that the Applicant did not testify. As such, the Appellant’s
ability to explain the content of the interview notes is understandably limited.
The Appellant testified that he and the Applicant met at a party in Canada in 2001. The Applicant was
visiting family and friends. They got along well and spent time together for
the rest of her visit to Canada. He testified that they kept
in touch via telephone and the internet (by free-online calls through Skype and
SlipStream).
[Emphasis
added]
[19]
While
it is true that the respondent testified before the Board, the fact of the
matter is that the Board failed to address the contradictory evidence more
substantially and merely accepted the respondent’s testimony at face value. The
Board did not test its findings against the relevant facts and relevant
objective evidence. (Canada (Minister of
Citizenship and Immigration) v. Heera, [1994] F.C.L. No. 1594
(QL).
[20]
In
these circumstances, the Court is of the view that the Board erred in assessing
the genuineness of the relationship only through the respondent’s version of
events or intentions and by disregarding Mrs. Cibrinovsky’s intentions and
contradictory testimony.
[21]
Hence,
the Court concludes that the Board’s findings are unreasonable as it failed to
consider contradictory evidence and to assess the credibility issue. This constitutes
a reviewable error (Canada (Minister of Citizenship and Immigration) v.
Nyari, 2002 FCT 979, 117 A.C.W.S. (3d) 607; Canada (Minister of
Citizenship and Immigration) v. Champagne, 2008 FC
221, 164 A.C.W.S. (3d) 857).
[22]
For
these reasons, the application for judicial review is allowed. There is no
certified question.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The application for judicial review is
allowed;
2. The matter is to be referred back to the
Board for re-determination by other members;
3. No question is certified.
“Richard
Boivin”
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