Date: 20120207
Docket: IMM-5080-11
Citation: 2012 FC 168
Montréal, Quebec, February 7,
2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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ARKADY IDLIN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
Overview
[1]
The
heartland of a case is its core substance. Does the overall picture ring true
in its overall essence? True and complete disclosure of information is
considered essential to the integrity of Canada’s
immigration system. Any fabrication or falsification of information is
considered unacceptable and must bear its own consequences.
Introduction
[2]
The
applicant has submitted, per subsection 72(1) of the Immigration and
Protection Act (IRPA), an application for leave and judicial review of a
decision rendered by the Immigration Appeal Division (IAD) dismissing the
applicant’s appeal.
[3]
The
decision under analysis by this Court concluded that the applicant and his wife
were in a non-genuine relationship, one fabricated for the primary purpose of
obtaining immigration status (as per section 4 of the Regulations
(IRPA).
[4]
It
is noted that the applicant had previously sponsored a spouse with whom he
never intended to live in a bona fide, husband and wife relationship; this has
also been taken into measured consideration as to the credibility of the
applicant.
Analysis
[5]
A
number of factors are considered to determine whether a marriage is genuine or
simply entered into for immigration purposes primarily. The weight given these
factors is determined by circumstances specific to each case.
[6]
These
circumstances include the intention of the parties to the marriage, the
duration of the relationship, the length of time the individuals spent
together, the behaviour at the meeting, also the comportment of the couple
during the engagement, at the marriage ceremony itself and subsequent to it,
the extent of knowledge or information in regard to the respective other’s
past, degree or intensity of contact and communication, financial support, if
any, and understanding and/or knowledge in respect of responsibility for the
care of children brought into the relationship, as well as knowledge and
contact with the extended families of the respective partners and a knowledge
of the daily life or routine of the respective “other”.
[7]
In
the refusal decision for sponsorship, the visa officer considered a number of
factors which led to its conclusion:
(a)
no
clear documentary evidence of communications was in evidence for the period
between 2000 and 2009;
(b)
computer
printouts of Skype communications did not give validity to explanations in
respect of the name given by the sponsor for his Skype exchanges;
(c)
no
photos were in evidence of the applicant and his “spouse”, neither of the
marriage, nor from where they had met. The photos in evidence did not
demonstrate an account of the relationship;
(d)
a
hasty marriage took place three days after the arrival of the new “bride” who
had come to Canada on a
temporary visa; all of which had not been indicated on the application for a
visa;
(e)
that
which is known is that the applicant had simply assisted as a business
facilitator in the registration of a company for the new spouse;
(f)
the
applicant was not able to recall the date of the marriage;
(g)
also
other significant information discrepancies were noticed by the immigration
officer between the application form of the applicant and his “spouse”;
(h)
contradictions
in the couple’s versions of events occurred as to whether the couple had even spent
time together in Greece or Turkey and, whether, they had even been to Egypt.
[8]
The
genuineness of a relationship and its purpose under the Act are considered
factual in nature; and, are therefore reviewable on the standard of
reasonableness (Yadav v Canada (Minister of Citizenship and Immigration),
2010 FC 140 and Kaur v Canada (Minister of Citizenship and Immigration),
2010 FC 417): “The existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of fact
and law are of utmost significance to the outcome” (Dunsmuir v New Brunswick,
[2008] 1 S.C.R. 190, para 47).
[9]
The
title given to certain paragraphs does not change the actual outcome if the
word “decision” is placed inappropriately prior to its chronological logical
insertion, as does a paragraph which appears to be a non-sequiter, not change
the essence or overall meaning of the decision when read in context.
[10]
The
application of the new section 4(1) of the Regulations of the IRPA is
appropriate under the current circumstances.
[11]
To
dismiss the appeal, the IAD had to motivate its decision by explaining with
coherent logic that the marriage was not genuine and that it was entered into
to acquire status under the Act. This it did.
[12]
It
is significant to note that even if the IAD would have applied section 4 of the
old regulations, the applicant’s appeal would have been nevertheless dismissed
(as per Justice Marshall Rothstein in Rogerville v Canada (Public Service
Commission Appeal Board), 2001 FCA 142 at para 28; and, as per Justice Marc
Nadon in Jinadasa v Canada (Minister of Citizenship and Immigration), IMM-4691-97,
[1998] FCJ No. 1219 at paras 3, 5 and 7, and in the last few paragraphs of that
decision).
Conclusion
[13]
For
all of the above reasons, the application for judicial review is dismissed. No
question of general importance for certification.
JUDGMENT
THIS COURT
ADJUDICATES that the application for judicial
review is dismissed. No question of general importance for certification.
“Michel M.J. Shore”
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