Date:
20121010
Docket:
IMM-1060-12
Citation:
2012 FC 1179
Ottawa,
Ontario, October 10, 2012
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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CUNIE BANGAYAN DALUMAY
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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]
This
is an application by Mrs. Cunie Bangayan Dalumay [the Applicant] for
judicial review of a decision of the Immigration
Appeal Division of the Immigration and Refugee Board [IAD], rendered on December
20, 2011, wherein the IAD denied the applicant’s appeal from a visa officer’s
refusal of her application to sponsor her husband, Mr. Jorge Garcia Vasquez,
for a permanent resident visa. The IAD found that the applicant’s marriage was
entered into primarily for the purpose of acquiring a status or privilege under
the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] and was
not genuine, pursuant to subsection 4(1) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [Regulations].
[2]
For the
reasons that follow, I have come to the conclusion that this application for
judicial review should be dismissed.
In light of the
current state of the law, the decision under review is reasonable.
Background
[3]
The
applicant is a 39 year old Canadian citizen of Philippine origin. Since June
14, 2008, she has been married to a 41 year old citizen of Mexico who currently lives in Mexico, but was a failed refugee claimant in Canada at the time of their marriage.
[4]
In
October 2008, the applicant’s husband applied for a permanent resident visa as a member of the
family class pursuant to subsection 12(1) of the Act, with the applicant as his
sponsor. He was interviewed on March 11, 2009, and a visa officer of the
Embassy of Canada in Mexico denied the application on April 15, 2009.
[5]
The officer
found that the circumstances of the couple’s marriage did not appear consistent
with a genuine relationship. This conclusion was based mainly on the fact that the
applicant’s husband is a failed refugee claimant; his claim was dismissed in
2005 and a removal order was issued against him on August 26, 2006. The
applicant’s husband subsequently applied for a work permit; this application
was also refused on June 19, 2007. The officer found that because the applicant’s
husband voluntarily left Canada only after he had married his Canadian sponsor,
he appeared to have entered into this marriage primarily to gain a benefit
under the Act.
[6]
On
appeal de novo before the IAD, the testimony of the applicant and
her spouse as to how they first met, the development of their relationship, and
the circumstances of their eventual marriage was found to be consistent and
credible. The Court therefore relies on the facts as set out in the IAD’s
reasons.
[7]
The
applicant and her husband first met in December 2006 through a common friend. They
later got in touch and the applicant invited her future husband to a singles
party organized at her church in February 2007. After the event, the
applicant’s husband started attending her church and was eventually baptized in
March 2007. The applicant and her husband started developing a closer
relationship in the spring of 2007.
[8]
The
applicant testified that she learned of her husband’s failed refugee claim the
second time they met. She explained that, at the time, he was studying and
working but he was anxious because of his precarious immigration situation. However,
he was not scared to befriend her because he trusted her.
[9]
As
their relationship became more intimate, the couple started talking about their
potential future together and possible marriage. This started around May 2007,
although the applicant felt it was too early in the relationship. In January
2008, the applicant met her husband’s son when he came to visit Canada. In February 2008, the couple moved in together and the applicant purchased a life
insurance policy naming her husband as the beneficiary. When living together,
the applicant and her husband both worked and contributed to the charges of the
household.
[10]
The
applicant’s husband first proposed in December 2007, and reiterated his
proposal on May 19, 2008 in the presence of the applicant’s family and friends
at her uncle’s birthday party. The couple married on June 14, 2008 in a church
wedding attended by her employer, her godparents, and her uncle, cousins and
friends. However, neither his nor her parents were able to attend the wedding for
health and financial reasons.
[11]
The
applicant’s husband returned to Mexico on August 24, 2008, as he was under a
deportation order. The applicant accompanied him on this trip and has traveled
to Mexico once a year since 2008 to visit him and his family. They also
regularly speak on the phone and exchange text messages. The applicant
explained that the trips are costly so that she is unable to travel to Mexico more frequently.
[12]
The
applicant’s husband has been unemployed since returning to Mexico in 2008. He is financially dependant upon the applicant to send him money on a monthly basis
and pay his bills. He has not traveled to Canada since he left, both for
financial reasons and because of his mother’s health. He was also unable to
join his wife in the Philippines for the funeral of her mother in February
2011. However, he did finance a two-week trip to London in August 2009,
allegedly with the money he earned from odd jobs such as cleaning and painting.
The applicant’s husband was still unemployed at the time of the IAD hearing on
November 2, 2011.
[13]
As
for the applicant, she works three jobs (as a retail worker and as a
housekeeper) for a total of 60 to 70 hours per week. She sends her husband some
$300 per month; that is to say approximately half of her disposable monthly
income, after having paid her rent.
[14]
The
IAD stated that the key concerns of the visa officer included the fact that the
applicant was a failed refugee claimant and was subject to a removal order
(which made the development of the relationship not credible), and that their
parents were not present at the wedding. The IAD sought to clarify the issues
of credibility and the motivations of the applicant’s husband, as well as the
compatibility of the couple.
[15]
As
mentioned earlier, the IAD found the applicant’s testimony to be forthright and
credible. However, the IAD stated that it attached a “moderate weight” to the
documentary evidence disclosed in support of the genuineness of the marriage,
which included the applicant’s provision of financial support, communication in
the form of emails, cards and telephone/internet telephone conversations, and
proof of the applicant’s travels to Mexico.
[16]
The
IAD accepted the explanations given by both the applicant and her husband in
regards to their parents’ absence at their wedding. Rather, the factors to
which the IAD attached greater weight were: (1) the status (or lack of status)
of the applicant’s husband in Canada as a failed refugee claimant and the fact
that he was subject to a removal order at time of their marriage; (2) the fact
that even before their marriage the applicant was concerned about her husband’s
access to health care (the applicant explained that her husband has a problem
with his right eye that remained untreated because he did not have sufficient funds
to obtain medical treatment); and (3) the fact that the applicant’s husband is
financially dependant on her and has made little effort to support himself in
Mexico. The IAD noted that while it was sympathetic to the fact that the
applicant’s husband has to look after his mother who is currently sick, he was able
to scrape together enough money for a trip to London.
[17]
Considering
these facts, the IAD found that it was the impending deportation of the
applicant’s husband that motivated him to stay in Canada through marriage to the
applicant. Accordingly, the appeal was dismissed.
Issue and
applicable standard of review
[18]
The
applicant’s arguments in this application for judicial review raise a single
issue: did the IAD err in dismissing the appeal on the basis of its finding
that, from the sponsored spouse’s point of view, their marriage was not genuine
and was entered into primarily for the purpose of acquiring status under the
Act?
[19]
The Supreme
Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 at para
47, [2008] 1 S.C.R. 190 [Dunsmuir] held that a standard of review analysis need not be conducted in
every instance. Where the standard
of review applicable to a particular question before the court is satisfactorily
settled by past
jurisprudence, the reviewing court may adopt that standard of review. It is well established
that the “assessment of applications for permanent residence under the
family class and genuineness of the marriage in particular, involve questions of
mixed fact and law and the established standard of review is reasonableness” (Glen v Canada (Minister of
Citizenship and Immigration),
2011 FC 488 at paras 42-43, [2011] FCJ 607; Keo v Canada (Minister of Citizenship and
Immigration),
2011 FC 1456 at para 7, [2011] FCJ 1755 [Keo]).
[20]
The applicant
referred the Court to Justice Dawson’s account of the reasonableness standard
in Zambrano v Canada (Minister of Citizenship and Immigration), 2008 FC
481 at para 32, [2008] FCJ 601, where she states:
“Review
on the reasonableness standard requires the Court to inquire into the qualities
that make a decision reasonable, which include both the process and the
outcome. Reasonableness is concerned principally with the existence of
justification, transparency, and intelligibility in the decision-making
process. It is also concerned with whether the decision falls within the range
of acceptable outcomes that are defensible
in fact and in law. See: Dunsmuir
at paragraph 47.”
[emphasis
added]
Review of the IAD’s
reasons
[21]
This
application for judicial review raises a question of transitional law. At the
time the visa officer refused the application and at the time the appeal before
the IAD was filed, subsection 4 of the Regulations read as follows:
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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.
[emphasis added]
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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.
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[22]
However, at
the time of the hearing de novo before the IAD and at the time the
decision was rendered, the new subsection 4(1) of the Regulations (as modified
on September 30, 2010), was
in force. The provision now reads as follows:
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Bad
faith
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
(a) was
entered into primarily for the purpose of acquiring any status or privilege
under the Act; or
(b) is
not genuine.
[emphasis added]
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Mauvaise
foi
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 :
a)
visait principalement l’acquisition d’un statut ou d’un privilège sous le
régime de la Loi;
b) n’est
pas authentique.
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[23]
Having
considered that the two-pronged conjunctive test was replaced by a two-pronged
disjunctive test, the IAD did not find it necessary to determine which version of
the Regulations it should apply to its reasons due to the findings that “it
[had] made on the primary purpose and the genuineness of the marriage.” Upon
closer reading of the IAD’s reasons, it is evident that the ultimate
determination was essentially made on the basis of the first prong of the test,
namely the primary intentions of the applicant’s husband. However, the IAD made
it clear that, in its view, the appeal would also have failed under the former
section 4 because the applicant’s marriage was not genuine.
[24]
In
the course of the hearing before this Court, a discussion was raised as to
which version of the Regulations should have been applied in this case. The
parties were invited to file further submissions detailing their respective
positions. The applicant is of the view that the Court should review the
impugned decision of the IAD under the former section 4 because the issue
before me is the reasonableness of the visa officer’s decision that was made
prior to the September 2010 amendments. The respondent argues that a different
approach has been adopted by this Court in similar situations in Wiesehahan v Canada (Minister of Citizenship and Immigration),
2011 FC 656, [2011] FCJ 831 [Wiesehahan] and Macdonald v Canada (Minister of Citizenship and Immigration), 2012 FC 978, [2012] FCJ 1048 [Macdonald].
These cases support the view that the current subsection 4(1) should apply to
appeals heard after September 2010, as IAD hearings are de novo appeals falling
under the new Regulations.
[25]
I
agree with the respondent’s position. First, it is the appeal decision and not
the visa officer’s decision that is subject to the present judicial review,
although they both contain similar findings. Moreover, while in exceptional
cases the Court has found that the former conjunctive test remains applicable
where the IAD made its original determination on the basis of the old version
of the Regulations (Elahi
v Canada (Minister of Citizenship and Immigration), 2011 FC 858 at para 26, [2011]
FCJ 1068)
or where the overall reasonableness of the decision – rather than the applicability
of a particular version of the test – is at issue (Keo, above, at para 14), the
recent jurisprudence of this Court is in favour of maintaining the IAD’s
application of the amended Regulations, as entered into force between the
initiation of the appeal and the hearing (Wiesehahan, above; MacDonald,
above). I will accordingly review the reasonableness of the impugned decision
under the new subsection 4(1) of the Regulations, such that the decision should
stand if either prong of the test is satisfied.
[26]
Having
carefully reviewed the submissions of the parties, the impugned decision and
the transcriptions of the hearings, I am of the view that the IAD reasonably
concluded that
the applicant’s husband was primarily motivated by an enduring intention to remain
in or return to Canada, even if the IAD failed to identify sufficient evidence in
support of its further finding that the marriage was not genuine from a more
general perspective.
[27]
The
applicant relies heavily on the IAD’s finding that the applicant was credible
and had made significant and honest efforts to support her husband for several
years. The applicant also argues that there is not a sufficient evidentiary
basis to conclude that her husband was not credible given the fact that the
testimony of the spouses was explicitly found consistent and credible as to how
they first met, the development of their relationship and the circumstances of
their eventual marriage, and that these facts were corroborated with ample
documentary evidence demonstrating continuity and stability in their
relationship.
[28]
The
respondent submits that the genuineness of the marriage and the ulterior
purposes of the marriage must be assessed considering the perspective of each
of the parties so that, where one party may honestly believe that there is a
genuine marriage that has not been entered into for an improper purpose, the
marriage is not genuine if the other party holds a different perspective. This
view is consistent with my reading of subsection 4(1) of the Regulations and
the jurisprudence of this Court.
[29]
In
Keo, above, Justice Martineau reviewed the pre- and post-September 30, 2010 versions of section 4(1) of the Regulations. The Court noted:
The amendment
made to section 4 of the Regulations is not cosmetic in nature; the use of the word
“or” in the English version and of the words “selon le cas” in the French
version are very clear: if either of the two elements (genuineness of marriage
and intention of the parties) is not met, the exclusion set out in the new
subsection 4(1) of the Regulations applies.
[…]
A marriage
might have been entered into in accordance with all of the statutory
formalities, but, nonetheless, the visa officer or the panel may refuse to
recognize its effects for the purposes of the application of the Act and
Regulations if they find that the marriage did not occur in “good faith”, even
if the expression “non-genuine marriage” is not used in their reasons for
decision. See Vézina v Canada (Citizenship and Immigration), 2011 FC 900
at paragraph 14 (Vézina). In fact, what the immigration laws do not
recognize are situations where the two spouses are complicit to duplicity (a
non-genuine marriage) and/or where the intention of the spouses
or of one of the spouses is primarily to acquire a status or privilege (even if
the other partner may benefit from it). In other jurisdictions, these unions
are sometimes described as “sham” or “white” marriages, whereas in Canada, the manual [OP 2 – Processing Members of the Family Class] uses the
expression “marriage of convenience”.
Consequently,
whether this is a conventional marriage, an arranged marriage or another type
of conjugal relationship, it is essential to find in the couple’s relationship
a mutual commitment to living together to the exclusion of any other
conjugal relationship. The spouses’ physical, emotional, financial and social
interdependence goes hand in hand with this because, after all, in all cultures
and traditions, over and above any religious undertakings, in terms of its
civil effects, marriage is, above all, an indeterminate contract requiring that
spouses help each other and contribute towards the expenses of the marriage in
proportion to their respective means, which certainly includes the activities of
each spouse, or even both together, in the home.
Furthermore,
in M v H, [1999] 2 S.C.R. 3, at paragraph 59, the Supreme Court of Canada
referred to the criteria in Molodowich v Penttinen (1980), 17 RFL (2d)
376 (Ont. Dist. Ct.) to include relationships that are “similar to marriage”.
It spoke of a conjugal relationship based on generally accepted
characteristics: shared shelter, sexual and personal behaviour, services,
social activities, economic support, children and the societal perception of
the couple. However, these elements may be present in varying degrees and not
all are necessary for the relationship to be found conjugal. The same type of
criteria can be found in the manual.
[…]
There is no
single method of analysis. For example, money transfers, the combining of
financial resources, the existence of joint accounts and the purchase of
property in the name of both spouses are certainly indicative of financial
support or interdependence. Something else that can be verified is how the
spouses behave towards one another and towards the authorities in their
respective countries. Do they have children? Do they support each other during
illnesses? Do they give each other gifts? Do they travel together? Do they live
under the same roof when they are in the foreign spouse’s country of origin? In
what way and how often do they communicate when they are separated?
[emphasis
added]
[30]
The
evidence required in establishing the genuineness of the marriage is more
objective as compared to that of the spouses’ true intentions in entering the
marriage, as it speaks to broader aspects of the relationship. However, in my view, each component of the test
set forth in subsection 4(1) of the Regulations requires the panel to analyze
the primary and true intention of the spouses; this analysis calls for an
assessment of their subjective perspectives. In fact, the factors to be
considered in assessing whether a conjugal relationship exists, as set out in
the Manual, include the degree of mutual commitment and support between the
spouses and their expressed intention that the relationship will be one of long
term, in addition to broader financial and social aspects of the relationship.
[31]
The view that there is a certain overlap between the
genuineness of the marriage and the primary purpose of the marriage in the eyes
of the spouses is also supported by the pre-2010 amendments jurisprudence. In Sharma v Canada (Minister
of Citizenship and Immigration), 2009 FC 1131 at
paras 17-18,
[2009]
FCJ 1595,
Justice Snider found that there is some link between the two prongs of the test so that a “lack of genuineness
presents strong evidence that the marriage was entered into primarily for the
purpose of acquiring permanent residence in Canada”. The Court later held that
the lack of bona fides can create a presumption that the marriage was
entered into for the purpose of gaining status (Kaur v Canada (Minister of
Citizenship and Immigration), 2010 FC 417 at para
16, [2010] FCJ 482).
[32]
In the matter
at bar, the IAD did not explicitly take issue with the evidence of the
genuineness of the marriage, but concluded that for both spouses (although to a
greater extent for the applicant’s husband) the marriage was primarily entered into
for the purpose of acquiring status or privilege under the Act. In other words,
the IAD viewed the marriage (or the relationship) as being one-sided. The
applicant subscribed to an insurance policy in which she designated her husband
as the beneficiary, she visited her husband several times in Mexico and paid for all of her expenses, she paid for a trip with her husband and his son, she sends
him money on a monthly basis, she pays his bills, etc.
[33]
The IAD also found
that according to the applicant’s testimony the couple married in part out of
concern for the access of the sponsored spouse to healthcare in Canada. The
applicant argues that this evidence came out of other unrelated questions that
were asked of her during the interview and is insufficient to establish that either
of the spouses had a primary objective to secure, through marriage, healthcare
or legal status in Canada for the sponsored spouse.
[34]
Having
read the transcriptions of the hearing, it appears to me that the applicant
explicitly stated that the couple had discussed the issue in some detail quite early
on in their relationship, and even before they decide to get married:
Q: You said earlier that you didn’t get any legal
advice before you got married.
A: We did. We did, yes.
Q: You got some legal advice before you got married?
A: Yes.
Q: Who did you speak to?
A: He speak to his friend, that someone he knew, and we prepare everything.
Q: Okay.
A: And then that’s how we pass after the wedding all the papers.
Q: You started this in April and you were married – engaged in May and you got
married in June?
A: Yes.
Q: Why were you preparing immigration papers before you were engaged?
A: I’m concerned for him. We preparing because I’m concerned of his situation,
of his health. Then he needs healthcare just in case that he get hurt.
Q: But you weren’t engaged yet. Were you planning to
marry him at that stage?
A: Yes.
Q: Even before he ---
A: Even before he propose, yes.
[35]
Therefore,
I find that the IAD’s concerns in this respect were not unreasonable in the
sense that its conclusion was “within a range of possible, acceptable outcome
which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[36]
Even
though this evidence alone would probably be insufficient to reach a finding
that the marriage was primarily entered
into for purposes of acquiring a status or privilege, the IAD’s main concerns
were related to the true intentions of the sponsored spouse. I note that the applicant’s
husband proposed to her only three months after they met (and only six months
after his application for a work permit was refused) while he was already under
a removal order that he refused to comply with; he made little effort to find
work since his return to Mexico and – with the little money he earned from
small jobs performed in Mexico – he undertook a two-week trip to England,
without the applicant, but did not accompany his wife to the
Philippines for the funeral of her mother.
[37]
Considering
the totality of the evidence, the IAD’s findings that the applicant is “a
credible witness who answered questions in a forthright manner” and “a very
hard-working person who has made considerable financial sacrifices to support
her husband for several years”, or that the spouses’ respective accounts of the
circumstances of their marriage were consistent and credible, does not impede
its finding that the marriage was entered into for purposes of gaining a
benefit under the Act. The evidence before the IAD does,
however, support the finding that the applicant’s husband was not credible or
of good faith.
[38]
Contrary
to what the applicant contends, it is not the applicant’s husband being without
status in Canada that negates the bona fides of the marriage. The
applicant asserts that the proposition of marriage came when her husband was
still trying to regulate his status in Canada, even though he had a removal
order issued against him. She argues that waiting for almost two years before
getting married neutralizes the idea that her spouse was motivated to protect
himself from removal through marriage (Glen
v Canada (Minister of Citizenship and Immigration), 2011 FC 488 at para 46, [2011]
FCJ 607).
[39]
However,
the underlying rationale of the decision before me is more generally informed
by the pre- and post-marriage circumstances of both spouses, including the
timing of the marriage. In the circumstances, the sponsored spouse’s financial
dependence on the applicant could reasonably be considered as a secondary
factor in line with the IAD’s conclusion, even if his economic situation or his
inability to find work in Mexico was not immediately a relevant consideration
in determining his good faith in marrying the applicant.
[40]
The
applicant submits that the evidence supporting the IAD’s negative conclusion did
not meet the required evidentiary test of balance of probabilities. Even if the
credible evidence of the genuineness of her marriage (demonstrating positive
features of a couple, as the applicant puts it) was not fully weighed in the
assessment, the IAD’s decision turned on the failure of the applicant’s husband
to provide sufficient evidence that he entered into the relationship with an
intention to found, raise, and support a family with the applicant. This
finding is reasonable in the circumstances, both as to the underlying reasoning
and as to the outcome, and was sufficient for the IAD to dismiss the appeal.
[41]
No question of general importance was proposed for
certification and none arises from this case.
JUDGMENT
THIS
COURT’S JUDGMENT IS THAT:
1.
This application for judicial
review is hereby dismissed;
2.
No question
is certified.
“Jocelyne
Gagné”
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