Date:
20121003
Docket:
IMM-9696-11
Citation:
2012 FC 1169
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario,
October 3, 2012
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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JEAN LYONEL PIERRE
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review filed by the Minister of Citizenship and
Immigration, in accordance with subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA), of the decision by the
Immigration Appeal Division (IAD) of the Immigration and Refugee Board dated
November 25, 2011. This decision allowed the appeal by Jean Lyonel Pierre
(Mr. Pierre) of the visa officer’s decision refusing the sponsorship
application of Isemela Joseph (Ms. Joseph) under section 4 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (IRPR).
[2]
For
the following reasons, the Minister’s application for judicial review is
dismissed.
II. Facts
[3]
In
July 2006, Mr. Pierre met Ms. Joseph during a trip to Haiti.
[4]
On
July 30, 2008, during another trip, Mr. Pierre married Ms. Joseph.
[5]
Ms. Joseph
filed an application for permanent residence in the family reunification class.
On March 12, 2010, the visa officer rejected Ms. Joseph’s application for
permanent residence. The Officer writes:
[Translation]
“Yet the facts presented have not
convinced me that your marriage is genuine and was not entered into for the
sole purpose of immigrating to Canada. Indeed, one expects that the story of
how you met would be credible, that the development of the relationship would
be obvious and that the couple would make the effort to have a moving and
memorable wedding ceremony and to maintain a strong and serious bond through
regular contact. But the facts presented in your interview and the photos and
documents provided do not show it. In addition, the sparse documentation
submitted as evidence of the communication between you does not show the
genuineness of the relationship, an intimacy between you and your sponsor or an
emotional or material investment. Further, you have spoken very little about
your sincere intention to build a life together as spouses” (see page 22
of the Tribunal Record)
[6]
Ms. Pierre
appealed to the IAD. At the hearing, the Minister alleged that there is no
evidence proving that Ms. Joseph’s identity is a ground for rejecting the visa
application. However, The IAD allowed Mr. Pierre’s appeal on the ground that he
“successfully discharged his burden of proof and demonstrated, on a balance of
probabilities, the applicant’s identity, the genuineness of his marriage to her
and the fact that its primary purpose was not to acquire a privilege under the [IRPA]”
(see the IAD decision at para 65).
[7]
On
December 22, 2011, the Minister filed an application for judicial review of the
IAD’s decision.
III. Legislation
[8]
Subsection 12(1)
of the IRPA and subsection 4(1) the IRPR state that:
Family reunification
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Regroupement familial
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12. (1) A
foreign national may be selected as a member of the family class on the basis
of their relationship as the spouse, common-law partner, child, parent or
other prescribed family member of a Canadian citizen or permanent resident.
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12.
(1)
La sélection des étrangers de la catégorie “regroupement familial” se fait en
fonction de la relation qu’ils ont avec un citoyen canadien ou un résident
permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père ou mère
ou à titre d’autre membre de la famille prévu par règlement.
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Bad faith
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Mauvaise foi
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4. (1) For
the purposes of these Regulations, a foreign national shall not be considered
a spouse, a common-law partner or a conjugal partner of a person if the
marriage, common-law partnership or conjugal partnership
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4. (1) Pour l’application
du présent règlement, l’étranger n’est pas considéré comme étant l’époux, le
conjoint de fait ou le partenaire conjugal d’une personne si le mariage ou la
relation des conjoints de fait ou des partenaires conjugaux, selon le cas :
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(a) was entered
into primarily for the purpose of acquiring any status or privilege under the
Act; or
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a) visait principalement l’acquisition
d’un statut ou d’un privilège sous le régime de la Loi;
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(b) is not genuine.
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b) n’est pas authentique.
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IV. Issues
and standard of review
A. Issues
1. Is
the affidavit of Catherine Raymond admissible in this case?
2. Has
Ms. Joseph’s identity been proven?
3. Did
the IAD err in finding that Ms. Joseph belongs to the family reunification
class defined in subsection 12(1) of the IRPA?
B. Standard
of review
[9]
A
decision on the genuineness and nature of a relationship under section 4
of the IRPR is essentially based on facts, such that this type of decision is
subject to the reasonableness standard (Kaur v Canada (Minister of
Citizenship and Immigration), 2010 FC 417, [2010] FCJ No 482, at para 14;
Zheng v Canada (Minister of Citizenship and Immigration), 2011 FC
432, [2011] FCJ No 544, at para 18).
[10]
Further,
“It is established law that an appeal before the IAD is an appeal de novo
(Provost v Canada (Minister of Citizenship and Immigration), 2009
FC 1310, 2009 FC 1310, [2009] FCJ No 1683 (QL), at para 25). Thus,
the applicant must persuade the IAD, and not the Court, that the marriage is
genuine or was not entered into primarily for the purpose of gaining
status under the Immigration and Refugee Protection Act, SC 2001, c 27
(IRPA). This Court’s jurisdiction is relegated to that of review and it is not
to tamper with the IAD’s discretion if that discretion was reasonably exercised”
(see Ma v Canada (Minister of Citizenship and Immigration), 2010
FC 509, 368 FTR 116, at para 32).
[11]
It
is important to note that “reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (see Dunsmuir v New Brunswick, 2008 SCC 9,
at para 47 (Dunsmuir)).
V. Positions
of the parties
A. Position
of the Minister
[12]
The
affidavit of Catherine Raymond is admissible, because contrary to what Mr. Pierre
alleges, the affidavit does not contain any confidential information as part of
the IAD’s alternative dispute resolution. Ms. Raymond’s allegations are
based on the content of the appeal book compiled by the Canada Border Services
Agency. Subsection 81(1) of the Federal Courts Rules (SOR/98-106)
requires that the affiant have a personal knowledge of the facts in the written
testimony. Thus, without concrete evidence of a breach of the confidentiality
obligation imposed by subsection 20(4) of the Immigration Appeal
Division Rules (SOR/2002-230), Ms. Raymond’s affidavit is admissible.
[13]
The
Minister also submitted that the IAD does not take into account several pieces
of evidence in the record. He alleged that Mr. Pierre did not submit any
letters, birthday cards, proof of residential lease in Haiti, or records of
telephone calls or plane tickets. In short, there is no evidence that the
marriage is genuine and, specifically, that there are true emotional ties
between Mr. Pierre and Ms. Joseph.
[14]
Mr. Pierre
filed photos of the marriage ceremony as evidence. However, the spouses signed
the marriage register in an apartment, an unusual procedure to say the least,
according to the Minister.
[15]
The
Minister further submitted that the IAD does not take into account that the
spouses saw each other only six times since they first met in 2006.
[16]
The
Minister also pointed out several contradictions between the spouses’
testimony. Among other things, Ms. Joseph testified that she had
immediately agreed to begin a romantic relationship with Mr. Pierre,
contrary to his statement. She also stated that Mr. Pierre does not have
grandchildren, when he has five. These contradictions, according to the
Minister, clearly establish that the spouses do not know each other.
[17]
The
Minister also noted the lack of emotional interdependence between the spouses. This
lack of affection is due to the fact that there is a great difference in age
between Mr. Pierre and Ms. Joseph. He submitted that Ms. Joseph
agreed to [Translation] “have a
romantic relationship with Mr. Pierre because her family circumstances
were not good. She knew that this man could bring her financial security,
housing and everything she needed”. She stated that [Translation] “her family accepts the age difference because
he gives her mother money and he contributes to her family’s financial
situation” (see the Applicant’s Record at page 138, para 26).
[18]
The
Minister also alleged that Ms. Joseph did not clearly establish her identity
since all the documents filed for that purpose were issued after December 9,
2006. Ms. Joseph alleged that her birth certificate was destroyed by
hurricane Jeanne in 2004. The Minister called into question that she was able
to live for two years without identification. He also called into question the
role that Ms. Joseph gave to Haiti’s national archives in this matter.
B. Position
of Mr. Pierre
[19]
Mr. Pierre
submitted that Ms. Raymond’s affidavit should not be part of the record. Ms. Raymond
alleged in her affidavit that she represented the Minister in the IAD’s
alternative dispute resolution. Her participation in the IAD’s alternative
dispute resolution undermines her credibility because it is impossible to know
whether confidential information was used to support the affidavit. Further, Ms. Raymond
allegedly withheld certain facts in her affidavit of February 6, 2011.
[20]
As
to Ms. Joseph’s identity, according to Mr. Pierre, the IAD reasonably
found that Ms. Joseph’s testimony was plausible and that her documents
were destroyed because of hurricane Jeanne in 2004.
[21]
Moreover,
Mr. Pierre alleged that the Court must consider the IAD’s decision as a
whole to determine whether or not there is reasonableness.
[22]
Mr. Pierre
again stated that he speaks to his spouse by telephone every day and that he
supports her financially. He pointed out that there is a sincere and genuine
romantic relationship that has been evolving between them since 2006.
VI. Analysis
1.
Is the affidavit of Catherine Raymond
admissible in this case?
[23]
Under
subsection 81(1) of the Federal Courts Rules, Ms. Raymond’s
affidavit is admissible. Ms. Raymond drafted the affidavit as Hearing
Officer with the Canada Border Services Agency and representative of the Minister
of Citizenship and Immigration in alternative dispute resolution at the
Immigration Appeal Division. This affidavit also relies on the information
contained in the appeal record written by Border Services. When the admissibility
of an affidavit must be determined, the Court has to take into account the “reality
of the surrounding circumstances. It depends, among other things, on the office
or qualifications of the [affiant] and whether it is probable that a person
holding such office or having such qualifications would, of his own knowledge,
be aware of the particular facts” (see Smith Kline and French Laboratories
Ltd v Novopharm Ltd, [1984] FCJ No 223). In this case, Ms. Raymond
has a personal knowledge of the facts alleged in her affidavit. In addition,
this information is found in the Tribunal Record and they cannot be considered
confidential.
2. Has
Ms. Joseph’s identity been proven?
[24]
The
IAD’s finding that “with no evidence that the identity documents issued are
fraudulent, the appellant has established the applicant’s identity, on a
balance of probabilities” (see the IAD’s decision at para 24) is
reasonable in this case. Ms. Joseph’s explanation that her identification
documents were destroyed by hurricane Jeanne in 2004 is within a range of
possible, acceptable outcomes with respect to the context of the case and the
applicable law (see Dunsmuir, above, at para 47).
3. Did
the IAD err in finding that Ms. Joseph belongs to the family reunification class
defined in subsection 12(1) of the IRPA?
[25]
The
IAD did not err in finding that Ms. Joseph belongs to the family reunification class
defined in subsection 12(1) of the IRPA.
[26]
The
Court notes that the criteria to decide whether a relationship is genuine are
not exhaustive. The case law cited by the Minister, i.e. Bustamante v Canada
(Minister of Citizenship and Immigration), 2011 FC 1198, [2011] FCJ
No 1466, lists some criteria identified by the Supreme Court of Canada. However,
the IAD cannot be criticized for having relied on some evidence relating to
certain criteria rather than others (see Ouk v Canada (Minister of
Citizenship and Immigration), 2007 FC 891, [2007] FCJ No 1157, at
para 13; and Khera v Canada (Minister of Citizenship and
Immigration), 2007 FC 632, [2007] FCJ No 886, at para 7).
[27]
The
RPD’s decision is based on the following criteria:
1.
Compatibility;
2.
Evolution
of the relationship;
3.
Wedding
celebration;
4.
Communication
and travel;
5.
The
spouses’ knowledge of one another
6.
Financial
assistance;
7.
Intention
of the parties to the marriage;
8.
Combined
effect of all the factors and the credibility of the parties.
[28]
In
this case, the last criterion seems vital since it encompasses all the other
criteria. The spouses filed as evidence a registration of religious wedding
ceremony (see page 66 of the applicant’s record), eight photos of their
marriage ceremony (see pages 68-70 of the applicant’s record), 39 money
transfer receipts from Mr. Pierre to Ms. Joseph, totalling approximately
$3,920 in American dollars, not including the shipping of non-perishable
items.
[29]
As
to the credibility of Ms. Joseph and Mr. Pierre, the contradictions
noted by the Minister are minor and do not undermine their entire narrative
because they do not go to the heart of their application (see Akyol v Canada
(Minister of Citizenship and Immigration), 2010 FC 359, at
para 15).
[30]
Considering
the context of the case, the Court notes that the IAD decision is within the
possible outcomes, since Mr. Pierre showed that he entered into a genuine
marriage. According to the Supreme Court of Canada in Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, at para 14, “the reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes. This, it seems to me, is what the Court was saying
in Dunsmuir when it told reviewing courts to look at ‘the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes’ (para 47)”. The Court must show deference toward
the IAD’s decision. The IAD’s decision is reasonable taken as a whole and
refers to all the evidence (see Cepeda-Gutierrez v Canada (Minister
of Citizenship and Immigration), [1998] FCJ No 1425, at para 17).
The Court may have arrived at a different conclusion. However, its role is not
to reassess the same evidence; it is limited to ensuring that the panel has
considered all the evidence in reaching its decision and that its finding is
within the range of possible outcomes.
VII. Conclusion
[31]
For
the above reasons, the IAD’s decision is reasonable and is within the possible
and acceptable outcomes in respect of the facts and law (see Dunsmuir,
above, at para 47). The application for judicial review is therefore dismissed.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that
1.
The
application for judicial review is dismissed; and
2.
There
is no question of general importance to certify.
“André F.J. Scott”
Certified true
translation
Catherine Jones,
Translator
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