Date:
20120810
Docket:
IMM-4830-11
Citation:
2012 FC 978
Ottawa, Ontario, August 10, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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NEIL JACKSON MACDONALD
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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
[1]
The
Applicant, Neil Jackson Macdonald, seeks judicial review of a decision of the
Immigration Appeal Division (IAD), dated June 8, 2011, dismissing his appeal of
the refusal to issue a permanent resident visa to his wife and Chinese
national, Zheng Qun Huang.
I. Background
[2]
The
Applicant registered online with Chinese Lovelinks and Cherry Blossoms and
began exchanging emails with Zheng Qun Huang. He also made several trips to
visit her in China. The pair married in March 2007.
[3]
He
brought an application to sponsor his wife for permanent residence in Canada in August 2008.
A visa officer conducted an interview and refused the application on
December 17, 2008, concluding that their marriage was not bona
fide and was entered into primarily for the purpose of gaining status or
privilege under the Immigration and Refugee Protection Act, SC 2001, c
27 (IRPA).
[4]
This
refusal was appealed to the IAD on January 21, 2009. A hearing was held on
March 7, 2011.
II. Decision
Under Review
[5]
The
IAD dismissed the Applicant’s appeal because he had failed to satisfy the onus
of demonstrating, on a balance of probabilities, that his marriage was genuine
and not entered into primarily for the purpose of his wife acquiring permanent
resident status.
[6]
The
IAD decided to base its determination on amended section 4(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations)
requiring the presence of only one of the two criteria to establish “bad faith”
relationships as the law in force at that time, rather than the former section
as addressed in the visa officer’s original decision and applicable when the
appeal was filed on January 21, 2009. Regardless, it was noted that the IAD
would have also dismissed the appeal under former section 4 of the Regulations.
[7]
The
Applicant’s concerns regarding the reliability of the Computer Assisted
Immigration Processing (CAIPS) notes were addressed by the IAD. It found that
there was no evidentiary basis apart from self-serving testimony to conclude
that the visa officer was, in essence, lying about the questions posed and the
responses.
[8]
Regarding
the Applicant’s allegations related to the interpreter, the IAD stated “no
request was made to make the visa officer available for cross-examination, nor
has any complaint been formally lodged other than at the hearing, almost two
and a half years following the December 2008 interview with respect to the
interpreter’s accuracy or independence or the visa officer conclusions and
CAIPS notes.”
[9]
Turning
to the relationship between the Applicant and his wife, the IAD concluded it
was more probable than not that she deliberately chose to create an English
only online profile directed at foreigners overseas to provide her with entry
to a country such as Canada. The IAD found the relationship had “very little
time to evolve and develop.” It referred to various “unresolved concerns”
including: a continued language barrier, the Applicant’s initial intention to
pursue a genuine relationship but at a much slower pace than Zheng Qun Huang,
her failure to share news as to the purchase of a condominium in China, her
questionable involvement in the immigration forms, and her lack of knowledge of
the Applicant’s son from a previous marriage.
[10]
While
the Applicant was considered credible, his wife was not. She was seen as
seeking “a new life in a new land that is not China, but one that is
English-speaking and with one of the first persons she met over the international
website despite the ongoing and considerable language barrier that
significantly limits their communications without a third party interpreter.”
III. Issues
[11]
This
Applicant raises the following issues:
(a) Did
the IAD err by applying amended section 4(1) of the Regulations entering into
force on September 30, 2010 following the interview with the visa officer and
filing of the appeal?
(b) Did the IAD err in its
findings of fact and negative inferences?
(c) Did the IAD ignore
evidence?
(d) Is there a reasonable
apprehension of bias on the part of the IAD Panel Member?
IV. Standard
of Review
[12]
The
parties initially disagreed as to the appropriate standard of review that
should be applied in assessing the first issue regarding the application of the
amended or former section of the Regulations. Both conceded this is a question
of law, however, the Applicant assumed that it requires the correctness
standard while the Respondent argued that deference afforded under the
reasonableness standard is more appropriate in this instance as the IAD is
effectively interpreting its home statute.
[13]
Recent
jurisprudence tends to support the Respondent’s position (see for example Smith
v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 S.C.R. 160 at para 37; Celgene
Corp v Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3 at para 34).
[14]
In
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 54, the
Supreme Court acknowledged that “[d]eference will usually result where a
tribunal is interpreting its own statute or statutes closely connected to its
function, with which it will have particular familiarity.” Similarly, Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009]
1 SCR 339 at para 44 maintains that although “errors of law are generally
governed by the correctness standard” where “the interpretation of the home
statute or a closely related statute by an expert decision-maker is reasonable,
there is no error of law justifying intervention.”
[15]
As
a consequence, the IAD should be afforded some deference in its application and
interpretation of the Regulations by a review of the first issue raised on the
reasonableness standard.
[16]
This
Court also recognizes that decisions of the IAD, as an expert tribunal, are
generally owed deference and should only be set aside where there is an
erroneous finding of fact made in a “perverse and capricious manner or without
regard for the material before it” (see Barm v Canada (Minister of
Citizenship and Immigration), 2008 FC 893, [2008] FCJ no 1106 at paras
11-12; Dudhnath v Canada (Minister of Citizenship and Immigration), 2009
FC 386, [2009] FCJ no 458 at para 15). In particular, the assessment of
whether a marriage is genuine involves a “fact-based inquiry” (see Rosa v Canada (Minister of Citizenship and Immigration), 2007 FC 117, [2007] FCJ no 152 at
para 23) that following the decision in Dunsmuir, above at para 53 would
warrant review based on the reasonableness standard.
[17]
By
contrast, any reasonable apprehension of bias, as an aspect of procedural
fairness, should be reviewed based on the correctness standard (Khosa,
above at para 43).
V. Analysis
A. Did
the IAD Err by Applying Amended Section 4(1) of the Regulations Entering into
Force on September 30, 2010 Following the Interview with the Visa Officer and
Filing of the Appeal?
[18]
Central
to this application is the IAD’s reliance on an amended version of section 4(1)
under the Regulations. While the former and amended versions refer to the same
elements, namely whether a marriage is genuine and entered into primarily for
the purpose of acquiring a status or privilege under the IRPA; the test was
changed from conjunctive to disjunctive.
[19]
Under
the former version, a finding of bad faith required both elements (see Khan
v Canada (Minister of Citizenship and Immigration), 2006 FC 1490, [2006]
FCJ no 1875 at paras 4-5). Amended section 4(1) now permits immigration
officials to make this same finding on being satisfied that the marriage is
either not genuine or entered into primarily for the purpose of acquiring
status.
[20]
The
Applicant contests the use of section 4(1) of the amended Regulations as
imposing a more restrictive approach when the visa officer’s decision and the
filing of an appeal took place prior to the amendments coming into force on September
30, 2010. The Applicant also suggests any delay in hearing the application was
the fault of the IAD.
[21]
Applicant’s
counsel relies on the determination in Elahi v Canada (Minister of
Citizenship and Immigration), 2011 FC 858, [2011] FCJ no 1068 where Justice
Richard Mosley provided a direction that the former conjunctive test be applied
on reconsideration by the IAD on other grounds. The concern was that the
applicant not be prejudiced by the new requirements and the IAD “apply the law
as it read when the applicant initiated her appeal and it was first determined by
the IAD.”
[22]
While
I accept Justice Mosley’s reasoning in that case, it is not directly applicable
to the situation facing the Applicant. The IAD made its original determination
on the basis of the amended regulations but also noted that the appeal would
have failed under the former version. The Applicant’s marriage was not
considered genuine and entered into primarily for the purpose of acquiring
status.
[23]
Addressing
a similar situation in Wiesehahan v Canada (Minister of Citizenship and
Immigration), 2011 FC 656, [2011] FCJ no 831 at paras 50-54, Justice Michael
Kelen accepted the IAD’s application of the amended Regulations as entering
into force between the application and hearing. He referred to recognition of
the IAD that since “hearings are de novo appeals as opposed to a review
the new Regulations should apply.” As in this instance, the IAD was not
satisfied that the marriage was genuine and not entered into primarily for the
purpose of acquiring status. Therefore, the issue was not considered relevant
to the application.
[24]
The
Respondent also draws the Court’s attention to Canadian Citizenship and
Immigration (CIC) Operational Bulletin 238 directing the IAD to apply “the law
that is presently in force and not the law that was in force at the time of the
original decision by the officer.”
[25]
It
was not inappropriate for the IAD to apply amended section 4(1) in the context
of a de novo hearing. By also noting that the Applicant’s marriage
would result in a bad faith finding under either the former or amended
Regulations, the distinction is irrelevant to the IAD’s ultimate determination.
Intervention by the Court is not justified on this ground alone. I must
therefore proceed to consider the other alleged errors raised by the Applicant.
B. Did
the IAD Err in its Findings of Fact and Negative Inferences?
[26]
The
Applicant insists that the IAD erroneously equated an intention to attract
English-speaking men to the desire to enter a country such as Canada through marriage. He claims the IAD did not consider contradictory evidence that the timing
of their introduction in 2006, marriage in 2007 and application for
permanent resident visa in 2008 does not demonstrate a pressing interest in
immigration. He also takes issue with IAD’s emphasis on the lack of a common
language.
[27]
None
of these arguments persuade me that the IAD made its factual findings in a
perverse and capricious manner without regard to the evidence before it. While
the IAD accepted the Applicant’s intentions as credible, it raised doubts
concerning those of his wife. As the Respondent highlights, several factors
were identified for this conclusion including: her intention to seek a
relationship with an English-speaking foreigner, no functional communication
and ongoing dependence of interpreters, no efforts to learn the language after
5 years of marriage, interpreter continues to benefit financially, limited
understanding of details relating to the Applicant, and the speed with which
she pursued the relationship.
[28]
Based
on these factors and evidence, the IAD has provided sufficient justification,
transparency and intelligibility for its conclusions. The Applicant’s issue
with the weighing of these factors does not amount to a reviewable error.
C. Did
the IAD Ignore Evidence?
[29]
Similarly,
the Applicant has not demonstrated that the IAD ignored evidence, but rather
continues to ask this Court to re-weigh that evidence.
[30]
The
Applicant points to objective facts that it claims were ignored by the IAD. These
include the Applicant’s belief that his wife represented “a soul mate in later
years” and the extent of evidence relating to communication on a regular basis.
This evidence was, however, expressly considered in the IAD’s reasons. Although
the Applicant believes it should have been given greater emphasis, this is not
relevant to the Court on judicial review.
[31]
The
Applicant relies on the decision of Justice Frederick Gibson in Sidhu v Canada (Minister of Citizenship and Immigration), 2003 FCT 280, [2003] FCJ no 388 at
para 7 that the motivation of the applicant for a permanent resident visa
should be considered as part of the IAD’s analysis. He also insists that the
IAD should have considered the cultural context, in this instance Oriental women
advertising for suitable Western husbands, based on comments in for example Abebe
v Canada (Minister of Citizenship and Immigration), 2011 FC 341, [2011] FCJ
no 452.
[32]
However,
these cases do not directly apply to the IAD’s decision in this case. The IAD
directed itself to her intention of seeking an English-speaking husband. This
was precisely the IAD’s issue with the nature of the relationship. Its
conclusion was based on various factors. The lack of common language and more
detailed communication was also considered relevant. It was reasonable to
conclude that the marriage was entered into “primarily” for the purposes of
acquiring immigration status.
D. Is
there a Reasonable Apprehension of Bias on the Part of the IAD Panel Member?
[33]
I
must agree with the Respondent that the Applicant has provided no evidence to
support an allegation of bias against the IAD Panel Member. Rendering a
negative decision regarding his appeal does not equate to the high threshold
that must be met to establish a reasonable apprehension of bias (see Committee
for Justice and Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369;
Arrachch v Canada (Minister of Citizenship and Immigration), 2006 FC
999, [2006] FCJ no 1264 at para 20; Arthur v Canada (Attorney General),
2001 FCA 223, [2001] FCJ no 1091).
VI. Proposed Question for
Certification
[34]
The
Applicant proposed the following question for certification:
Given that the Minister has deliberately refrained
from requesting Parliament stipulate the application of section 4(1) of the Immigration
and Refugee Protection Regulations to pending appeals – then the
presumption against retroactivity or retrospectivity in section 43 of the Interpretation
Act must apply such that appeals commenced prior to the enactment of
section 4(1) of the Immigration Refugee Protection Regulations should be
determined in accordance with section 4 of the IRPR.
[35]
The
Respondent opposed certification of this question because it is a statement and
not a question; discloses no serious issue; does not arise on the facts of this
case; and would not be determinative of an appeal.
[36]
I
am inclined to agree with this position. The principles relevant to
certification were considered by the Federal Court of Appeal in Canada
(Minister of Citizenship and Immigration) v Liyanagamage (1994), 176
NR 4, [1994] FCJ no 1637 at para 5. Since the IAD acknowledged that the
Applicant and his wife would not meet the test under the amended or former
regulations, responding to this question, or as alternatively phrased, would
not be determinative of an appeal. I therefore see no basis for
certifying a particular question on the facts of this case.
VII. Conclusion
[37]
The
IAD’s determination regarding the Applicant was reasonable under the
Regulations and in light of the evidence before it. There is no clear evidence
of a reasonable apprehension of bias. In accordance with these reasons, the
application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed. No question is certified.
“
D. G. Near ”
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