Date: 20100517
Docket: IMM-4463-09
Citation: 2010 FC 542
Ottawa, Ontario, May 17, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
PAULINO
M. PAULINO
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of a decision of the Immigration Appeal Division (IAD) of the Immigration and
Refugee Board, dated August 13, 2009 (Decision), which dismissed the
Applicant’s appeal of a visa officer’s decision to refuse sponsorship of the
Applicant’s spouse, Mimi Paulino.
BACKGROUND
[2]
The Applicant
married Mimi Paulino on September 8, 2006 in the Philippines. He then applied to sponsor her and her
son as members of the family class. His application was refused after an
interview at the Makati
City visa section on May 16,
2007. The grounds for this refusal were that, pursuant to section 4 of the Act,
the marriage was not genuine and was entered into primarily to acquire status
or privilege.
The IAD
dismissed the appeal. The Applicant alleges that the IAD member was biased and
erred in finding that his marriage was not bona fide.
DECISION UNDER REVIEW
[3]
The IAD
determined that two issues flowed from the visa officer’s grounds for refusal:
first, whether the Applicant’s wife was a person described in section 4 of the
Regulations and, as a result, could not be considered a member of the family
class; and second, whether the Applicant is a Canadian citizen. Because the IAD
found that the Applicant’s marriage was not genuine and was entered into
primarily to acquire status or privilege, the IAD declined to address the
second point at issue.
[4]
In
making its determination, the IAD considered the oral evidence of the Applicant
and his wife, as well as the record, the CAIPS notes, the documentary evidence,
and the submissions of counsel.
[5]
The
IAD’s Decision was based on its determination that the Applicant and his wife
were “not credible and not reliable or trustworthy.” It noted that they had
fabricated information with the intent to obtain a temporary resident visa for
the Applicant’s wife and her son to enter Canada in 2006. The IAD held that “the
degree of the couple’s mendacity not only colours their entire testimony, but
also impeaches their credibility.” It found that their evidence was “internally
and externally” inconsistent. Furthermore, the couple had deliberately
“fabricated a complex scheme with the sole purpose to misrepresent the
Applicant’s financial status to excite (sic) a visa officer to grant her
and her son temporary resident visas.” The IAD also determined that the
couple’s
intentional conduct was carried on
throughout the temporary resident visa application process, continued
throughout the sponsorship interview process and after the panel had heard
substantial evidence at the appeal hearing. Their conduct engages public policy
considerations, which strike at the heart of the integrity of the immigration
system. As a result, the panel cannot accept their evidence to the extent that
it is supported by other independent evidence.
[6]
The
IAD examined the couple’s deception in detail, and found that the Applicant’s
wife had misrepresented that she had “$1,000,000,000 Pesos” in her bank
account. On the first day of the hearing, the Applicant submitted that this
money was the combined sum of what he had sent to his wife. It was not until
cross-examination that the Applicant admitted he had lied about this scheme.
His wife also stated that she “lied about everything” because her husband had
instructed her to do so.
[7]
The
couple’s scheme included the Applicant’s making misrepresentations on his
wife’s application for a temporary resident visa. On her visa application, she
claimed that she was going to visit relatives and intended to stay for three
weeks. However, this alleged relative was the wife of the Applicant’s ex-wife’s
brother, whom the Applicant’s wife had never met.
[8]
At
her sponsorship interview in May, 2007, the Applicant’s wife told the visa
officer that she intended to visit a family friend. She also stated that she
did not intend to visit the Applicant. The visa officer refused her claim.
[9]
The
evidence presented by the couple in the hearing before the IAD was
inconsistent. The IAD noted that “sometimes, their evidence seems rehearsed and
collusive,” and that “during [the Applicant’s wife’s] testimony, at times, it
seems [she] was reading or reciting her evidence or both.” The IAD determined
that “the couple’s misrepresentation was not only fatal to their credibility
and trustworthiness, but also calls into question the authenticity of the
documents submitted by the couple, in particular those created overseas.”
[10]
The
IAD found that the couple’s conduct was “indicative of the extent to which they
would go and what they are prepared to do to immigrate to Canada, including a
marriage to allow the [Applicant’s wife] to come to Canada and
possibly, to allow the [Applicant] to sponsor his only living parent with a
live-in caregiver.”
[11]
The
IAD determined that a two-step evaluation of the facts was required: first, to
determine whether the marriage was genuine; and second, to determine whether
the relationship was entered into primarily for the purposes of acquiring
status or privilege. The IAD noted that “to meet the onus…an appellant need
only prove that one of the two prongs does not apply to their relationship.”
[12]
With
regard to the initial decision made by the visa officer, the IAD found that
“most of the visa officer’s concerns are reasonable and tenable.” The IAD
accepted the visa officer’s notes and gave them “considerable weight,” since it
had not been demonstrated that they were not reliable.
[13]
The
IAD then considered the testimony of the couple with regard to their
relationship. It noted that the Applicant’s wife stated that she and the
Applicant were not “boy-friend-girlfriend” before the Applicant returned to Canada. However,
when the wife was asked why she would accept his proposal if they were not, she
then “changed her story to say they were.”
[14]
The
couple presented much documentary evidence to the IAD, including many e-mails.
The IAD noted that these e-mails were obviously “part of wood-shedding for the
temporary resident visa process.” The IAD noted that the couple said they had
learned much about each other within the two weeks after they first met.
However, the IAD found that “if that were the case, it is not clear to the
panel why they needed to provide one another with their life stories.”
[15]
The
couple’s stories with regard to their first meeting, their introduction, and
the introducer, up to the point of their purported engagement, was similar in
detail.
[16]
The
IAD noted that the Applicant had testified that he decided to marry his wife
after her temporary visa application was refused, although his initial plan
included marrying her upon her arrival in Canada. The IAD found that the
Applicant’s explanation did not make sense, since he had proposed to his wife
after a two-week courtship, but then claimed that he decided to marry her after
she was denied a temporary resident visa. Furthermore, the Applicant was still
situated in the U.S. at this time, and had presented “no cogent
evidence about the substantive plans he had for the [wife’s] accommodation had
she been successful in her application for a temporary resident visa.”
[17]
The
IAD did not accept the couple’s evidence: “if they were so much in love and
wished to be together soon, why not marry in March 2006?” Further, it noted
that it did “not make sense that he would be head-over-heels in love with
[her], arrange dishonest steps to get her to Canada on a
temporary resident visa, and then [be] content to see her every fortnight
indefinitely.” It determined that the couple’s actions belied their claims that
they are in love and had engaged in a dishonest scheme because they love each
other so much.
[18]
Although
the couple had introduced copious documents, including letters, photographs,
money transfers, record of telephone calls and the like to support that their
marriage is genuine, the IAD found that “the couple’s demonstrated mendacity
and untrustworthiness, their self-serving evidence, and contradiction inform
the panel that little or no weight should be given to their evidence.”
[19]
The
IAD also held that the incompatibility of the couple’s age was a material
issue, although not by itself determinative of the genuineness of the marriage.
However, in conjunction with the mendacity of the couple, the IAD held that
“the age factor is a distinction which makes a difference.” Furthermore, the
Applicant’s wife had shown a strong desire to live in Canada. The IAD
found that “indeed, age would not be a factor for her if [her] dominant desire
was to live in Canada.”
[20]
The
Applicant had also failed to provide “clear, convincing and cogent evidence”
that he intended to reside in Canada, as required by the Act. Although his work
visa in the U.S. expired in March of 2009, the IAD noted that “nothing
precludes him, however, from continuing to search for job[s] in the USA,” and that
the Applicant had “provided no cogent substantive proof of his efforts to
re-establish himself in Canada.” The IAD was also not convinced with
regard to the differing stories between the Applicant and his wife concerning the
Applicant’s divorce from his ex-wife.
[21]
In
summary, the IAD held that “based on the cogent evidence…the panel cannot
accept the telephone records, the [Applicant’s] subsequent visit, photographs,
and letters as support of a genuine marriage. They are tools created to give a
veneer of genuineness to the marriage.” As such, “little or no weight [was]
ascribed to them.”
[22]
The
Applicant’s wife was held to be a person within the meaning of section 4 of the
Regulations and, accordingly, not a member of the family class.
ISSUES
[23]
The
issues raised by the Applicant can be characterized as follows:
1.
Did
the IAD rely on inappropriate criteria to discern the genuineness of the
marriage and mistakenly find that the marriage was not bona fide?
2.
Did
the IAD breach the principles of procedural fairness by demonstrating a bias
towards the Applicant?
STATUTORY PROVISIONS
[24]
The
following provisions of the Act are applicable in these proceedings:
|
Right to appeal — visa refusal of family class
63. (1) A person who has filed in the prescribed manner an
application to sponsor a foreign national as a member of the family class may
appeal to the Immigration Appeal Division against a decision not to issue the
foreign national a permanent resident visa.
|
Droit d’appel : visa
63. (1) Quiconque a déposé, conformément au
règlement, une demande de parrainage au titre du regroupement familial peut
interjeter appel du refus de délivrer le visa de résident permanent.
|
[25]
The
following provisions of the Immigration and Refugee Protection Regulations,
SOR/2002-227 are also application in these proceedings:
|
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.
|
STANDARD
OF REVIEW
[26]
The
Supreme Court of Canada in Dunsmuir
v. New Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[27]
The
Applicant has raised procedural fairness before the Court, that is, whether the
IAD demonstrated a reasonable apprehension of bias against him. Issues of
procedural fairness are reviewable on a standard of correctness. See Dunsmuir,
above, at paragraphs 126, 129.
[28]
The
Federal Court has previously determined that the standard of review in deciding
whether a marriage is genuine is patent unreasonableness: Donkor
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1089, [2006] F.C.J. No. 1375. However,
a standard of correctness is appropriate when determining whether a decision-maker
relied on inappropriate criteria to make its determination as to the
genuineness of a marriage. See Ouk v. Canada (Minister of
Citizenship and Immigration), 2007 FC 891, [2007] F.C.J. No. 1157. As such,
in determining whether the IAD relied on inappropriate factors in coming to its
conclusion that the Applicant’s marriage was not genuine, the appropriate standard
of review is one of correctness.
ARGUMENTS
The Applicant
Marriage was bona
fide
[29]
An
analysis of section 4 of the Regulations requires: first, an assessment of the
genuineness of the marriage; and second, a determination of whether the
marriage was entered into primarily for the purpose of acquiring status or
privilege. However, the Applicant need only prove that one of these branches
does not apply to his case. See Khera v. Canada (Minister of
Citizenship and Immigration), 2007 FC 632, [2007] F.C.J. No. 886 at
paragraph 6.
[30]
In
determining the genuineness of a marriage, the IAD ought to consider such
factors as: (i) the length of the parties’ prior relationship; (ii) their age
difference; (iii) their former marital status; (iv) their respective financial
situations and employment; (v) their family background; (vi) their knowledge of
each other’s histories; (vii) their language; (viii) their respective
interests; (ix) family connections in Canada; and (x) prior attempts by the sponsoree
to come to Canada: see Khera, above, at paragraph 10.
[31]
It
is clear, based on the IAD’s reasons, that its primary concern with regard to
the Applicant’s credibility was the couple’s admission of misrepresentation on
the Applicant’s wife’s visitor visa application. The IAD determined that they
were not credible because they “admit that they had fabricated information” on
the visitor visa application. The IAD then considered their admitted
misrepresentation for three pages of its Decision, and finally concluded that
“the couple’s misrepresentation is not only fatal to their credibility and
trustworthiness, but also calls into question the authenticity of the documents
submitted by the couple, in particular those created overseas.”
[32]
Although
the IAD accused the Applicant and his wife of providing self-serving evidence
and contradictions in testimony, the IAD made no specific reference to such
things in its Decision to justify disregarding the couple’s evidence. Rather,
the Applicant suggests, the IAD simply punished the Applicant for the
misrepresentation on the visitor visa application. Indeed, it appears that the
IAD’s decision with regard to the genuineness of the marriage is based on its
determination of misrepresentation on the visitor visa application. This is an
error of law.
[33]
The
IAD further erred by speculating about why the Applicant “might do such a
thing.” This speculation occurs repeatedly throughout the reasons, and highlights
the fact that the Applicant was not afforded a fair hearing. Nowhere is this
more evident than when the IAD stated during the hearing that “once a liar
always a liar.” The Applicant contends that this demonstrates that the IAD
concluded that the Applicant’s marriage was not genuine because he admitted to
misrepresenting facts on the visitor visa application.
[34]
The
IAD failed to give any consideration to the compelling argument put forth by
the Applicant that visitor visas are hard to secure and that, as a result,
couples are often not truthful in their applications. The Applicant admitted
knowing this behaviour was unacceptable, but explained that it had occurred
because of the couple’s love and desire to reunite. The IAD, however, failed to
consider this explanation. The Applicant submits that this is striking, since the
IAD’s decision is based predominantly on this fact, and the explanation appears
to be perfectly reasonable.
[35]
In
Ouk, above, which similarly considered a misrepresentation, the Federal
Court held that
it was open to the appeal panel to find
that the sponsoree is inadmissible for misrepresentation pursuant to s. 40 of
the Act or that the marriage is not genuine, but the distinction between these
two avenues of inquiry must be kept clearly separate.
[36]
The
Applicant submits that a similar error was made in the case at hand. When the
IAD finally arrives at an assessment of the genuineness of marriage, it
neglects to consider the relevant factors as enumerated in Khera. Rather,
the Applicant contends, “[its] analysis is replete with speculation and
abstract hypothetical scenarios.”
[37]
Specific
problems in the IAD’s reasons include:
a.
The
issue of “wood-shedding” between the Applicant and his wife;
b.
The
IAD’s concern about why the Applicant did not marry his wife in March 2006 if
they were so much in love;
c.
The
IAD’s continuous reliance on “dishonest steps” take by the Applicant to get his
wife into Canada;
d.
The
IAD’s rejection of the Applicant’s “copious” documentation because of the
couple’s “demonstrable mendacity”;
e.
The
IAD’s focus on the couple’s age gap “in conjunction with the mendacity of the
couple”;
f.
The
IAD’s lengthy and irrelevant assessment of the Applicant and his wife’s
differing accounts of the Applicant’s first divorce;
g.
The
IAD’s rejection of all the Applicant’s documents because “they are tools to
give a veneer of genuineness to the marriage.”
[38]
An
examination of the reasons makes it clear that the IAD decided to punish the
Applicant and his wife for the misrepresentation on the visitor visa
application. Within the 15-page Decision, the IAD devotes only two paragraphs
to the actual genuineness of the marriage. However, even this short assessment
is premised on and permeated by the earlier misrepresentation issue.
[39]
The
IAD also makes a repeated factual error. While the Applicant’s wife provided a
bank letter which stated that she has 1 million pesos in her account, the IAD
erred repeatedly in referring to the “1 billion pesos” the Applicant’s wife
claimed to have. The Applicant submits that this finding was “inaccurate and
tends to over-exaggerate the extent of the misrepresentation in question.”
[40]
Furthermore,
the IAD concluded that the Applicant’s evidence was “internally and externally
inconsistent,” but failed to indicate what it considered to be inconsistent. One
would expect in such lengthy reasons that the panel would at least specify
which inconsistencies led it to disregard all of the Applicant’s “copious”
evidence.
[41]
In
Janjua v. Canada (Minister of Citizenship and Immigration), 2005 FC 1521,
[2005] F.C.J. No. 1897 at paragraph 3, the Member determined that “my task is
not to punish the applicant or appellant for having misled Canada immigration
officials about any aspect of this case but to assess the bona fides of this
marriage as prescribed by law.” In the case at hand, the IAD punished the
Applicant and his wife for misleading the immigration officials in her visitor’s
visa application rather than assessing the bona fides of the marriage.
This error requires the Court’s intervention.
Reasonable
Apprehension of Bias
[42]
The
test for determining whether there is a reasonable apprehension of bias was set
out in Committee for Justice and Liberty v. Canada (National
Energy Board), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118. The Supreme Court
of Canada held that the
apprehension of bias must be a reasonable
one, held by reasonable and right-minded persons, applying themselves to the
question and obtaining thereon the required information… [The] test is “what
would an informed person. Viewing the matter realistically and practically –
and having thought the matter through – conclude.”
[43]
In
this instance, a reasonable person would conclude that the IAD demonstrated
bias. A similar finding was made in Janjua, above, and ought to be made
in the case at hand.
[44]
Examples
of bias can be seen in the IAD’s reasons and also heard in the tapes of the
proceeding and include the following:
a.
The
IAD’s refusal to allow the Applicant’s counsel to question him on redirect
about his wife’s knowledge of his children’s occupations;
b.
The
IAD’s aggressive attitude towards the Applicant, telling him at one point,
after only once attempting to speak during his wife’s testimony, “Mr. Paulino,
I’m going to tell you for the last time. Don’t speak. You sit there and keep
your mouth shut.”
c.
After
apologizing, the IAD stated “You had a long enough time to tell the applicant
whatever you wanted to tell her. You don’t do it here. You understand?”
d.
The
IAD’s statement that “you gotta convince me that you lied before and you’re not
lying now, how do I know when you are not lying; you lied before and could be lying
now…its very hard to undo a lie once you’ve been caught in the act of a lie”;
e.
The
IAD’s interruption of the Applicant’s counsel to say “you know, there’s an old
saying, once a liar always a liar”;
f.
The
IAD’s statement that “I am not clairvoyant. I can’t tell you; but I can tell
you when I am done I can look at myself in the mirror forever and whether a
Court upholds me or not I have absolutely not a jot or tittle of regret”;
g.
After
referring to the Applicant’s wife as Mrs. Paulino, then stating “I think that’s
what she’s calling herself these days.”
[45]
The
Applicant likens the case at hand to that of Janjua, above, in which the
language used in the decision was found to amount to a demonstration of bias.
In the case at hand, the Applicant was not given a fair chance to present his
case before an impartial decision-maker. It was clear throughout the hearing
that the IAD had already made its determination with regard to the marriage and
that it based its Decision almost exclusively on the Applicant’s admitted misrepresentations.
The Applicant alleges that not only was he denied procedural fairness, but that
the IAD’s zealousness and bias precipitated a substantive error, namely
focussing on improper considerations. It is clear that the procedural breaches
in this instance had a material impact on the outcome of the hearing and
warrant judicial intervention.
The Respondent
[46]
The
IAD determined that the Applicant and his wife were not credible, reliable or
trustworthy. This finding was based on numerous grounds:
a.
The
Applicant’s admission of fabricating evidence for his wife’s visitor visa
application;
b.
The
degree of the couple’s previous misrepresentation;
c.
Contradictory
evidence provided by the Applicant with regard to how much money his wife had
in her bank account;
d.
The
fact that the Applicant’s wife’s evidence seemed rehearsed and collusive;
e.
The
e-mail exchange that occurred between the couple after the proposal which
contradicted their evidence that they knew much about each other;
f.
The
inconsistency of the Applicant’s evidence with regard to when he decided to
marry his wife;
g.
The
fact that the IAD did not accept the Applicant’s explanation for lying on the
visitor visa application;
h.
The
lack of evidence with regard to a plan for his wife if she was granted a visitor’s
visa;
i.
The
age discrepancy between the Applicant and his wife.
[47]
The
Respondent contends that a review of the transcript reveals that the IAD showed
no reasonable apprehension of bias, but rather was influenced by the dishonesty
of the Applicant and his wife. The IAD gave the appropriate weight to the
dishonesty of the couple, and then noted the other factors that convinced the
IAD that the marriage was not genuine.
[48]
Moreover,
if the Applicant was concerned with bias, he should have raised the issue at the
first available opportunity. The first available opportunity in this case would
have been the hearing before the IAD. A failure to raise this issue at the
earliest practical opportunity, or to object about a reasonable apprehension of
bias, results in an implied waiver. As stated by the Federal Court of Appeal in
Re: Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1
F.C. 103 at 113, “the only reasonable course of conduct for a party reasonably
apprehensive of bias would be to allege a violation of natural justice at the
earliest practicable opportunity.” In Re: Human Rights Tribunal at
paragraph 13, the Court also noted that the applicant had “participated fully
in the hearing, and must therefore be taken impliedly to have waived its right
to object.”
[49]
The
Respondent submits that the rationale for this principle of waiver is that
“applicants cannot ‘hold on’ to an allegation of bias or ‘refrain’ from making
an objection, to instead hoard it as insurance against future disappointments.”
In this case, the Applicant’s counsel did not raise the issue of an allegation
of bias. Accordingly, he has waived the right to raise it now.
[50]
Regardless,
based on a review of the transcript and the reasons as a whole, the Respondent
contends that there is no evidence of improper conduct on the part of the IAD
that would rise to the level of demonstrating a reasonable apprehension of
bias.
[51]
The
IAD gave a number of reasons for its finding that the Applicant’s marriage was
not bona fide. The Applicant’s arguments are nothing more than a
disagreement about the weight the IAD assigned to the evidence before it. While
the Applicant has asserted that the IAD should have found the marriage genuine
based on the evidence before it, the IAD considered this evidence and then
determined that it merited little weight.
ANALYSIS
[52]
The
Decision as a whole, together with certain comments made by the Officer, reveal
that her assessment of the genuineness of the marriage and whether it was
entered into primarily for the purpose of acquiring any status or privilege
under the Act, was highly influenced by her discovery that the Applicant and
Mimi had lied and fabricated evidence for Mimi’s visitor’s visa application:
The panel finds that the Appellant and
Applicant are not credible and not reliable or trustworthy. They admit that
they had fabricated information with the intent to obtain temporary resident
visas for the Applicant and her son to enter Canada in 2006. The degree of the
couple’s mendacity not only colours their entire testimony, but also impeaches
their credibility. Their evidence was internally and externally inconsistent.
The couple’s conduct was deliberate. They fabricated a complex scheme with the
sole purpose to misrepresent the Applicant’s financial status to excite a visa
officer to grant her and her son temporary resident visas. That intentional
conduct was carried on throughout the temporary resident visa application
process, continued throughout the sponsorship interview process and after the
panel had heard substantial evidence at the appeal hearing. Their conduct
engages public policy considerations, which strike at the heart of the
integrity of the immigration system. As a result, the panel cannot accept their
evidence to the extent that it is supported by other independent evidence.
[53]
The
same preoccupation is evident at paragraph 15 of the Decision:
Some of the couple’s evidence was
internally and externally inconsistent. Sometimes, their evidence seems
rehearsed and collusive. During her testimony, at times, it seems the Applicant
was reading or reciting her evidence or both. The couple’s misrepresentation in
not only fatal to their credibility and trustworthiness, but also calls into
question the authenticity of the documents submitted by the couple, in particular
those created overseas.
[54]
The
Officer fails to explain at this point in the Decision what evidence she is
referring to as being “internally and externally inconsistent” and what
evidence seems “rehearsed and collusive” so that there is no clear basis for a
negative decision outside of the preoccupation with the visitor’s visa process.
The Officer’s attitude and approach, when the Decision is read as a whole, is
that, because this couple lied once, nothing they now say about the genuineness
of their marriage can be believed and that, indeed, the authenticity of the
copious documentation that the couple produced on point is also fatally
undermined.
[55]
The
Officer says that she adopts the factors referred to in Khera, supra,
Chavez, Rodrigo v. Canada (Minister of Citizenship and Immigration), IAD
TA3-24409, February 11, 2005 and Khan v. Canada (Minister of
Citizenship and Immigration), 2006 FC 149m [2006] F.C.J. No. 1875
“where appropriate” but, in the end, everything that might favour the couple is
discounted because of their earlier conduct over the visitor visa. Other
anomalies and inconsistencies are raised, but without the gravitational pull of
the visitor visa issue, they would not be a sufficient justification for
discounting the Applicant’s other evidence that clearly supports the
genuineness of the marriage. This is particularly the case with the vast amount
of documentary evidence which is so extensive that it is difficult to see how
it could have been fabricated. The handling of the documentary evidence, in
fact, is revealing of the Officer’s whole approach in this instance:
The Appellant adduces copious documents,
including letters he purportedly sent and received in his job search and
farewell card from his erstwhile colleagues at the bank as proof that he
intends to reside in Canada. In addition, the couple adduces copious documents,
including letters, photographs, money transfers, record of telephone calls and
the like to support that their marriage is genuine. The couple’s demonstrable
mendacity and untrustworthiness, their self-serving evidence, and
contradictions inform the panel that little or no weight should be given to
their evidence. The panel finds in the context of this case, on the balance of
probabilities, that the Appellant has not rebutted the visa officer’s concern.
[56]
The
Officer refers to “self-serving evidence and contradictions,” but it is not
made clear, apart from their earlier mendacity of the visitor visa, what was
contradictory or self-serving about their evidence that was of relevance to the
issue before the Officer under section 4 of the Act.
[57]
For
example, in paragraph 32 of the Decision, the Officer refers to different
information which the couple gave “about the cause of the dissolution of the
Appellant’s first marriage.” The Applicant has referred to a mental disorder
and Mimi had referred to jealousy over the material possessions of neighbours
and frequent arguments. There is nothing inherently incompatible about these
explanations. Someone with a mental disorder can be jealous and initiate
arguments. The Officer then goes on to speculate about the Applicant’s
relationship with his ex-wife and mentions that he has made provisions for
Mimi’s son. All of this is then subsumed by a general finding that whatever the
couple says is all part of a general scheme of fabrication:
There is evidence that he has made
provisions even now for the Applicant’s son. However, this is likely integral
to the complex scheme the Appellant’s (sic) has fabricated; if he is to
be believed, the full extent of which was not known to the Applicant. The panel
finds that the couple’s shared knowledge, especially in the personal aspect of
their lives, are not reflective of what one reasonably expects to be shared by
a couple in a genuine relationship, who avers to be head-over-heel (sic)
in love with one another.
[58]
Based
on the Officer’s approach, it is clear that the couple cannot win. A detail
(here the provision that the Applicant has made for Mimi’s son) that might
support the genuineness of the relationship is turned around to support a
negative finding because it is likely integral to a complex scheme of
fabrication. All of their supporting documentation, and even positive factors,
are left out of account because they are, according to the Officer, part of a
general scheme of fabrication. The Officer says that “their answer about their
mutual feelings for one other and their plans are vague: nothing is specific.”
Yet there was considerable documentary evidence before the Officer, some of it
pre-dating the visitor visa application, that spontaneously reveals the
couple’s mutual regard and love for each other. All of this evidence is
discounted.
[59]
In
the end, the Decision’s presiding premise is that, because of the admitted
mendacity over the visitor’s visa, the couple cannot be believed about
anything. It may be acceptable in some circumstances for a general negative
credibility finding to be used in this way but, tellingly in this case, the
Officer fails to fully address the reasons offered by the couple for their
conduct over the visitor visa. The Federal Court of Appeal found in Sellan
v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 381, [2008] F.C.J. No. 1685 at
paragraph 3 that
[w]here the Board makes a general finding that the claimant lacks
credibility, that determination is sufficient to dispose of the claim unless
there is independent and credible documentary evidence in the record capable of
supporting a positive disposition of the claim. The claimant bears the onus of
demonstrating there was such evidence.
In the present case the Officer has simply
discounted the plethora of independent and credible documentary evidence
capable of supporting a positive disposition on the grounds that it must all
have been fabricated. However, there is no consideration of how such copious
amounts of documentary evidence could possibly have been fabricated. The end
result is that documentary evidence that supports the claim is simply
disregarded.
[60]
The
Officer’s focus on the visitor visa situation to the exclusion of just about
everything else suggests a closed mind and has led to an unreasonable Decision.
See, for example, Abdel-Khalik v. Canada (Minister of Citizenship and
Immigration), 73 F.T.R. 211, [1994] F.C.J. No. 111 at paragraph 15 (QL).
She does not weigh the positive evidence against the negative. See Cai v. Canada (Minister of
Citizenship and Immigration), 131 F.T.R. 66, [1997] F.C.J. No. 690 at
paragraph 20 (QL). She discounts it so that no real weighing occurs.
[61]
In
my view, when the Decision is read as a whole, the Officer is distracted from
assessing the section 4 factors in accordance with the Khera criteria
and focuses her Decision upon the earlier misrepresentations of the couple.
This amounts to the selection of inappropriate criteria to discern the
genuineness of the marriage and, in my view, is an error of law when reviewed
on a standard of correctness. See Ouk, above, at paragraph 10.
[62]
The
Decision must be returned for reconsideration on this ground alone. There is no
need for me to consider in detail the additional bias issue. The two issues, in
fact, are part of the same problem. The Officer’s decision that, because of the
mendacity over the visitor’s visa application, the copious evidence supporting
the genuineness of the marriage is obviated and should be ignored. I think this
approach evinces a reasonable apprehension of bias. See, for example, Janjua,
above.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is granted and the Decision is quashed. The matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
“James Russell”
Email this Content