REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial
review of a decision by the Immigration Appeal Division (the IAD) of the
Immigration and Refugee Board, dated March 14, 2012, under subsection 72(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The
panel dismissed the applicant’s appeal of the refusal of his wife’s application
for permanent residence, in the family reunification category, on the grounds
that the marriage was not genuine and was entered into primarily for the
purpose of acquiring status, which is contrary to section 4 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (IRPR).
I.
Facts
[2]
The
applicant is a 67 year-old Canadian citizen who was born in Canada. He is also
a citizen of the Ivory Coast by his marriage to Aicha Sangare (wife). He has
worked in finance since 1975. He is on his fourth marriage and he has two
children. His wife is a citizen of the Ivory Coast and is 36 years old. This is
her first marriage and she has no children.
[3]
They
met on the Internet in October 2007 and started a relationship. The applicant
sent approximately $65,000 CAD to the wife between February 2008 and April 2008,
the year that the applicant asked her to marry him. A traditional ceremony took
place in the Ivory Coast on May 31, 2008, in the applicant’s absence. The
applicant married his wife in a civil ceremony on June 5, 2008, during his
first visit to the Ivory Coast, the day he arrived. He stayed for five days.
[4]
The
applicant invested in a car wash and a cafeteria in the Ivory Coast. These two
businesses are managed by his wife. The applicant also paid a sum of $1,000 CAD
per month so that his wife could move into a more spacious apartment. According
to the applicant’s statements, she used part of the money received to provide
for her paralyzed uncle’s needs.
[5]
The
applicant filed a sponsorship application in October 2008 in support of
his wife’s permanent resident visa application, which was rejected in October 2009.
She had attended an interview at the visa office. The appeal before the IAD was dismissed.
II.
Decision
under review
[6]
The
panel came to the conclusion that the applicant did not discharge his burden of
proving that his relationship with his wife is genuine and that his primary
goal is not to help the wife obtain status. It found that, based on the
testimony of the applicant and his wife, the applicant acted in good faith in
his relationship, but she did not and does not foresee living with the
applicant once she comes to Canada.
[7]
In
coming to this conclusion, the panel analyzed the relationship between the
applicant and the wife in light of several criteria used to assess the
genuineness of a relationship, including financial support, the presence of
members of the wife’s family in Canada and how the relationship developed.
[8]
The
panel generally weighed several factors surrounding the circumstances of the
marriage, including the fact that the applicant was married the day he arrived
in the Ivory Coast and that he stayed for only five days, that the couple did
not take a reasonable amount of time to get to know each other and that the
marriage proposal was made even before they had seen each other in person.
[9]
According
to the IAD, the wife was not able to answer the visa officer’s concerns
satisfactorily during her interview. In addition, the panel gave little probative
value to her testimony because she did not specifically explain how the
applicant has the qualities she looks for in a wife.
[10]
As
for the traditional celebration, the panel found that the wife’s testimony lacked
credibility in that she did not remember the date of the celebration.
[11]
As
for the absence of the applicant at this celebration, the panel was not
satisfied by the applicant’s explanation that he was too busy to go to the
Ivory Coast to attend, considering the importance of such a ceremony.
[12]
As
for the large sums sent to the wife, the panel was not satisfied with the
explanations of the wife and the applicant with respect to how they were used.
Despite the fact that financial support is a criterion that generally weighs in
favour of the genuineness of a relationship, the panel believed that that is
not the case in this situation since the sums are considerable. In addition,
the wife’s evasive answers with respect to the use of the money to meet her
sick uncle’s needs have an impact on the wife’s credibility. Finally, at the
time that the wife accepted the marriage proposal, she had a sum of $65,000 CAD,
sent by the applicant.
III. Parties’ submissions
Respondent’s submissions
[13]
First,
the applicant submits that the panel’s decision contains a contradiction with
respect to the panel’s assessment of the applicant’s credibility, which renders
this decision unintelligible. On the one hand, the panel states that it is
persuaded of the applicant’s good faith, that his testimony is credible and
reliable, but on the other hand, it finds that he did not discharge his burden
of proving that the relationship is genuine and that it was not entered into
primarily to obtain status.
[14]
Second,
the applicant submits that the finding that his wife is in a precarious
situation and that she wants to improve her lot by coming to Canada is
unreasonable given that the applicant’s investments in the Ivory Coast have
helped her achieve a good standard of living in her country of origin
and that it did not give any importance to the fact that it was the
applicant who proposed to his wife and sent her money without her asking.
[15]
Third,
the applicant submits that there is a mix-up in the panel’s decision in paragraphs 30
and 33 because it referred to the [Translation] “appellant” and in the passages
in question, it is impossible to know whether it refers to the appellant or his
wife.
Respondent’s
submissions
[16]
The
respondent submits that the IAD’s decision is reasonable in light of the
evidence and the testimony of the applicant and his wife.
[17]
First,
the respondent submits that it is imperative that the evidence show the
genuineness of the relationship of both spouses, but that proving the
genuineness of the intentions of only one of the two spouses is not sufficient.
[18]
Second,
as regards the wife, the respondent submits that it was open to the IAD to draw
a negative conclusion from all the factors, including the age difference between
the applicant and his wife, the absence of a long-term relationship and the traditional
ceremony that took place in the applicant’s absence.
[19]
With
respect to the amounts of money sent, regardless that financial support is
generally perceived to favour a genuine relation, considering the size of the
sum, it was reasonable for the IAD to draw a negative conclusion from it.
IV. Issue
[20]
Did
the panel make an unreasonable decision in finding that the marriage of the wife
was primarily to obtain privilege and is not genuine?
V. Standard of review
[21]
The
applicable standard of review in determining the genuineness of a marriage is
reasonableness, because it is a question of fact that requires deference to the
decision rendered (Ma
v Canada (Minister of Citizenship and Immigration), 2010 FC 509, at paras 31-32,
[2010] WDFL 2919).
VI. Analysis
[22]
The
IAD’s decision is reasonable and no intervention is required by this Court.
[23]
The
conclusion it drew based on all the evidence, including the testimony of the
applicant and his wife, is a reasonable option for the issue put before it (Dunsmuir v New
Brunswick,
2008 SCC 9, at para 47, [2008] 1 S.C.R. 190).
[24]
First,
it is important to point out that this Court has already noted that there is no
specific test to establish whether a marriage is genuine (Zheng v Canada (Minister
of Citizenship and Immigration), 2011 FC 432, at para 23, 388 FTR 61). In Khera
v Canada (Minister of Citizenship and Immigration), 2007 FC 632, at
para 10,
[2007] WDFL 3916, this Court validated the IAD’s approach in which
factors such as the length of the spouses’ relationship, their age
difference, their respective financial situation and employment, their
knowledge of one another’s histories, their language, their
interests and the fact that some members of the wife’s family live in Canada are
relevant in determining whether a marriage is genuine. Therefore, the criterion
that must guide the IAD in its analysis of the facts and evidence is therefore
relevance and it is open to it to take into consideration all the factors it
considers relevant.
[25]
To
come to the conclusion that the wife did not act in good faith, the IAD weighed
the credibility of her testimony. Her testimony as to the reason why she wanted
to marry a man from a different culture, without ever having met him in person,
was vague. She also did not give the IAD a satisfactory explanation as to her
decision to marry a person 30 years her senior, in a hurried manner,
considering that she had not had a long-term relationship with a man before.
She only provided general answers.
[26]
As
to her testimony with respect to the traditional ceremony, it was open to the
IAD to not give it probative value given that she did not remember the date
that it took place, although this type of ceremony is of some importance in the
Ivory Coast, all the more so because she specifically remembered certain other dates
such as the date of the marriage proposal and the civil ceremony. In addition,
the IAD did not find the explanations of the applicant and his wife about his
absence at the traditional ceremony satisfactory and it found that the
traditional ceremony could have taken place at another time, which would have
allowed the applicant to attend.
[27]
In
addition, the wife provided evasive answers with respect to the use of the
money sent by the applicant, stating generally that they went to the cost of
her uncle’s medical treatments, to a business venture that proved to be
unsuccessful and to the payment for her apartment, without, however, being able
to provide specific amounts, which warrants the IAD’s negative finding as to
the wife’s credibility and her true intentions.
[28]
As
to the applicant’s argument that the IAD’s decision is contradictory and must
fail, it is acknowledged that an administrative tribunal’s decision must be
read as a whole and not literally. In fact, it is clear in reading it that the
panel’s finding notes that the applicant was acting in good faith, but that he
did not discharge his burden of proving that his wife was not seeking to
acquire status, a burden that was his to discharge (Nguyen v Canada (Minister
of Citizenship and Immigration) 2004 FC 709, at para 7).
[29]
The
wife was not able to satisfy the IAD, although the applicant testified with
confidence and conviction about his story. The wife’s testimony and the IAD’s
findings about her are reasonable in the circumstances.
[30]
In
its decision, the IAD properly relied on the wife’s testimony in concluding
that she had not acted in good faith. In fact, only she could testify, and not
the applicant who was found to be credible, about her intention to immigrate to
Canada to live with the applicant (Canada (Solicitor General) v Bisla,
88 FTR 312 at paras 9-10, 52 ACWS (3d) 176).
[31]
With
respect to the reference to [Translation] “the appellant” at paragraphs 12,
19, 21, 22, 30 and 33 of the decision, it is clear in reading the relevant passages
that the IAD had intended to refer to the wife. Contrary to what the respondent
claims, a mere error in referring to the wife in the IAD’s decision does not
require this Court’s intervention.
[32]
For
all these reasons, the IAD’s decision is reasonable and justifiable according
to the facts in evidence.
[33]
The
parties, although invited to do so, did not submit questions for certification.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial
review is dismissed and no question is certified.
“Simon
Noël”
_____________________________
Judge
Certified true
translation
Catherine Jones,
Translator
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