Date: 20091214
Docket: IMM-2948-09
Citation:
2009 FC 1267
Ottawa, Ontario, December 14, 2009
PRESENT:
The Honourable Mr. Justice Boivin
BETWEEN:
ARMEL
BIENVENUE MBOLLO
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision by the Immigration Appeal Division of the Immigration and Refugee
Board (the panel), dated April 15, 2009, refusing the sponsored application by
the applicant’s conjugal partner for a permanent resident visa. The applicant
is self‑represented in this matter.
Issue
[2]
The
following questions arise in this case:
-
Was
it reasonable for the panel to decide that the applicant and Ms. Dihouassila were
not conjugal partners?
-
Did
the immigration officer err in law by not giving the applicant the opportunity
to be heard in his language?
[3]
For
the following reasons, this application for judicial review will be dismissed.
Background
[4]
The
applicant, Armel Bienvenue Mbollo, left the Congo in 1986 and
lived in Cuba from 1986 to
2001. He arrived in Canada as a refugee from the Republic of the Congo in 2001 and
has been a Canadian citizen since March 30, 2006. He lives in Ottawa and works
for the federal government.
[5]
The
applicant and Antoinette Guylène Nganda Dihouassila, a citizen of the Republic
of the Congo, met in Cuba in 1996 when
the applicant was a student and Ms. Dihouassila was on vacation. They met
through her sister, who had gone to school with the applicant. At the end of
her holiday, Ms. Dihouassila returned to the Congo with her
family.
[6]
The
applicant subsequently visited Ms. Dihouassila in the Congo for three
weeks during the Christmas holidays the same year, in 1996. Following that
meeting in 1996, there was no contact between the applicant and Ms. Dihouassila
until 2004, eight years later. The applicant says that he lost contact with his
spouse because of the conflict in the Congo. They found each other
through the Internet when a mutual friend gave each of them the other’s e-mail
address.
[7]
The
applicant and Ms. Dihouassila began a romantic relationship in 2004, which developed
through the exchange of e-mails and telephone calls. There was no physical contact
between the applicant and Ms. Dihouassila during the period between the
Christmas holidays in 1996 and the applicant’s application to sponsor his spouse.
[8]
The
applicant submitted an application to sponsor Ms. Dihouassila in 2006. According
to the sponsorship application, the couple’s relationship had been that of
conjugal partners since August 15, 2006. Among the documents submitted with the
application was proof of money transfers from the applicant to his spouse.
Between September 2004 and June 2006, the applicant sent approximately $1500 to
Ms. Dihouassila, and he noted that the transfers continue to the present.
[9]
A
third meeting between the applicant and his spouse occurred in Ghana in 2007.
This meeting took place after the sponsorship application and more than ten
years after the Christmas holidays they spent together in 1996.
[10]
The
sponsorship application was refused in a letter dated November 2, 2007, on the
basis that the applicant and his spouse were not considered “conjugal partners”
under section 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227
(the Regulations).
[11]
The
applicant appealed that decision and two hearings took place. The purpose of
the second hearing was to allow the applicant’s spouse to testify by telephone
from Brazzaville in the Congo. The applicant, Ms. Dihouassila and two
witnesses made representations during the hearings.
[12]
The
panel denied the sponsorship application on April 15, 2009, and the applicant filed
an application for leave and judicial review on June 10, 2009.
Impugned decision
[13]
The
decision does not address the issue of whether there is a good faith
relationship within the meaning of section 4 of the Regulations. The only issue
is whether the applicant and Ms. Dihouassila are conjugal partners as
defined in section 2 of the Regulations, and the panel determined that the
applicant and his spouse, who resides in the Congo, do not meet
the conjugal partner test under the Regulations.
Relevant legislation
[14]
The
expression “conjugal partner” is defined in section 2 of the Regulations:
|
Interpretation
2. The definitions in this
section apply in these Regulations.
“conjugal
partner”
« partenaire
conjugal »
“conjugal
partner” means, in relation to a sponsor, a foreign national residing outside
Canada who is in a conjugal
relationship with the sponsor and has been in that relationship for a period
of at least one year.
|
Définitions
2. Les définitions qui suivent
s’appliquent au présent règlement.
« partenaire
conjugal »
“conjugal
partner”
« partenaire
conjugal » À l’égard du répondant, l’étranger résidant à l’extérieur du
Canada qui entretient une relation conjugale avec lui depuis au moins un
an.
|
[15]
According
to section 4 of the Regulations, to be a member of the family class, the
relationship between the conjugal partners must be genuine and must not have
been entered into solely for the purpose of acquiring any status or privilege
under the Act:
|
Bad
faith
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.
|
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.
|
Standard of review
[16]
Prior
to the Supreme Court decision in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, patent unreasonableness was the standard of review applicable
to a panel’s decision concerning a sponsorship application based on findings of
fact (Leroux v. Canada (Minister of Citizenship and Immigration), 2007 FC
403, 160 A.C.W.S. (3d) 527 at para. 16; Canada (Minister of Citizenship and
Immigration) v. Navarrete, 2006 FC 691, 294 F.T.R. 242 at para. 17; Sanichara
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1015, 276
F.T.R. 190 at para. 11). Since Dunsmuir, the new standard of
reasonableness applies.
[17]
With
respect to the second issue, questions involving procedural fairness in the
context of immigration officers’ decisions are reviewed on the standard of
correctness, as determined in Lak v. Canada (Minister of Citizenship and Immigration),
2007 FC 350, 156 A.C.W.S. (3d) 904 (see also Yahie at paragraph 18).
1. Was it reasonable for
the panel to decide that the applicant and Ms. Dihouassila were not conjugal
partners?
Arguments of the parties
[18]
The
applicant maintains that the methods used by the panel to verify his knowledge and
that of his spouse were difficult and ineffective and that the analysis was
subjective rather than fact‑based.
[19]
The
applicant claims that the panel did not carefully review the evidence he
presented. In the applicant’s view, the evidence provided i.e., the money
transfer receipts, the photos, love letters and e‑mails constitute
genuine and official actions demonstrating a conjugal union that has existed
for more than two years.
[20]
The
applicant also argues that the panel cannot omit the analysis under section 4
of the Regulations in assessing whether it is a good faith relationship, which
the panel failed to do in this case.
[21]
The
applicant submits that the panel showed a lack of judgment by rigorously
examining facts from almost eight years earlier and believes that there was
never any ambiguity in their intentions or their romantic relationship. On this
point, the applicant maintains that he provided relevant evidence about their
relationship.
[22]
The
respondent submits that it was reasonable for the panel to find that the couple
was not in a conjugal partner relationship because the couple did not
demonstrate that they were conjugal partners as set out in their sponsorship
application.
[23]
Based
on the contradictory evidence, the respondent maintains that it was reasonable
for the panel to find that the applicant and his spouse contradicted each other
when they described their intentions and that the desire to marry or not
reflects different points of view on a crucial element of the panel’s decision.
Future goals do not establish a conjugal relationship, which must exist at the time
the sponsorship application is filed (Leroux at para. 24).
Analysis
[24]
An
appeal before a panel is a hearing de novo. Accordingly, the applicant and
his spouse had to provide sufficient reliable evidence showing that their
conjugal relationship was genuine and that it was not entered into primarily
for the purpose of acquiring a status under the Act (Froment v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1002, 299 F.T.R. 70 at
para. 19, citing Sanichara at para. 8; Mohamed v. Canada (Minister of
Citizenship and Immigration), 2006 FC 696, 296 F.T.R. 73 at para. 40; Morris
v. Canada (Minister of Citizenship and Immigration), 2005 FC 369, 147
A.C.W.S. (3d) 489 at para. 5).
[25]
The
consideration of conjugal partner status under section 2 of the Regulations is
an integral part of interpreting section 4 of the Regulations. If it is not established
on a balance of probabilities that a conjugal relationship exists, the
relationship is not genuine, and it may be inferred that it was entered into
primarily to obtain a status or privilege under the Act.
[26]
The
panel based its analysis on the non-exhaustive factors for identifying a
conjugal relationship as established in M. v. H., [1999] 2 S.C.R. 3, 238
N.R. 179. The weight to be assigned to the different factors varies, and a
flexible method must be adopted in determining whether a conjugal union exists (Cai
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 816, 159 A.C.W.S. (3d) 428 at para.
12).
[27]
The
criteria in M. v. H. were established for couples living in Canada and must be
modified for couples living in different countries. However, as my colleague,
Justice Tremblay-Lamer notes: “Nonetheless, the alleged conjugal
relationship must have a sufficient number of features of a marriage to show
that it is more than just a means of entering Canada as a member
of the family class” (Leroux at para. 23).
[28]
In
this case, the panel applied some of the M. v. H. factors with
flexibility in order to determine whether the applicant and Ms. Dihouassila were
conjugal partners at the time of the sponsorship application. Inter alia,
the panel stated that it considered “the extent to which the parties cohabited
or shared shelter; their sexual and personal behaviour toward each other;
shared duties or services; social connection(s) and perceptions; economic
support and livelihood; and the existence of children to the relationship”.
[29]
After
analyzing the file and applying the factors in the M. v. H.decision,
the panel made the following findings:
1. Cohabitation/sharing shelter
- The panel found that the applicant and
his spouse cohabited for a brief period in Ghana in 2007 and that they did not cohabit
during the period before the sponsorship application was filed.
- In the panel’s view, there was no
evidence of any effort by the applicant or his spouse to see each other in the two
years prior to the sponsorship application. The applicant noted that he could
not afford to visit his spouse more than once, that his spouse was afraid to
come to Canada and that his past political
involvements prevented him from going to the Congo.
2. Engagement to marry
- The panel found that there were several
contradictions in the testimony and written statements of the applicant and Ms. Dihouassila.
- The panel was not able to tell whether
the couple was engaged or whether they intended to marry.
- The panel referred to the testimony of
a close friend who believed that the couple was married but did not know
whether a marriage had actually taken place.
3. Social perception
- The panel relied on the testimony of
the applicant, his spouse and two of the couple’s friends and concluded that the
applicant and his spouse were romantically involved, but that does not support
a finding of a conjugal relationship.
4. Financial and other support
- The panel analyzed the evidence showing
that the applicant actively supported his spouse financially. The panel found
that this support indicated a strong and committed relationship that could
constitute a conjugal union, beyond promises to marry.
- In terms of emotional support, the
panel said that the visa officer found that Ms. Dihouassila knew very little
about the applicant’s life in Canada or, for example, the reasons why he had
travelled to Ghana instead of the Congo to see her in 2007.
5. Existence of children and shared
duties or services
- The panel noted that there are no
children in this relationship and, apart from the funds provided to the spouse,
there were no shared duties or services.
[30]
Despite
the fact that the panel determined that there was a romantic relationship
between the parties, the evidence as a whole shows that it was not a conjugal
relationship as defined in section 2 of the Regulations. The panel found that
“[t]he contact between the two is too limited in several areas including;
intimacy, cohabitation, life-sharing events and knowledge of each others hopes
and dreams.” Although there was evidence showing that the applicant supported Ms. Dihouassila
financially, the evidence also revealed significant contradictions in the file.
That is the case for the intentions of the applicant and his spouse to marry.
For example, there are differences between the testimony of the applicant, Ms.
Dihouassila and a witness, as well as the written sponsorship application and
the notes from the Computer Assisted Immigration Processing System (CAIPS
notes) of the visa officer who met Ms. Dihouassila. Indeed, the applicant
testified that they were never engaged and did not intend to marry whereas
during Ms. Dihouassila’s interview, which took place in French in Kinshasa on May 23,
2007, she replied that both she and the applicant have been planning to marry since
1996 when he met her father and asked him for her hand in marriage. A friend, Kwasi
Tuafo, testified that they intended to marry and that that was the purpose of
the trip to Ghana, but that
also contradicts the applicant’s testimony.
[31]
In
this case, the Court can only observe that the panel recognized the
inconsistency and ambiguity of the testimony given by the applicant, his spouse
and a witness regarding the status of the relationship between the applicant
and his spouse and their future intentions. Most of the evidence consisted of
e-mails and telephone calling cards, which clearly show constant communication
between the applicant and his spouse. However, the Court notes, as the panel
did, that if there is a romantic relationship, it is not sufficient, based on the
record as a whole, to satisfy the test in section 2 of the Regulations.
[32]
In
the Court’s view, the panel did not err and was correct in finding that the
applicant did not provide sufficient evidence to establish that a conjugal
relationship existed. The panel has expertise in determining what constitutes a
“conjugal partner” and, in this case, the Court can find no basis upon which to
intervene.
2. Did the immigration officer err in
law by not giving the applicant the opportunity to be heard in his own
language?
[33]
At
the hearing before this Court, the applicant advanced an argument regarding
procedural fairness and natural justice. He submitted that the presiding member’s
accent made it hard for him to understand the questions. That could explain why
some of the testimony seemed confused at times. Indeed, the transcript shows at
some places that there were comments and discussions around certain gaps in
communication. These communication gaps sometimes occurred because of the English
accent of the presiding member who was speaking French, sometimes because of
the telephone signal of the applicant’s spouse who was testifying by telephone
from Brazzaville in the Congo. Nonetheless, the Court notes that the
hearing took place in French and that the accent problem was resolved by bringing
in an interpreter to rephrase and clarify questions as needed for the applicant
and his spouse
[34]
In
support of this submission, the applicant stated at the hearing before this
Court that the panel had used the expression [translation]
“social activities”, which he had not understood before the panel. A review of
the transcript shows the opposite: not only was the expression [translation] “social activities”
explained and understood at the hearing before the panel, but the applicant’s
spouse also gave examples on this point.
[35]
For
these reasons, the Court is of the view that the transcript in the record discloses
that there was no breach of procedural fairness or natural justice.
[36]
The
application for judicial review is therefore dismissed. No question for
certification has been raised and the record contains none.
JUDGMENT
THE COURT ORDERS
AND ADJUDGES that the application for
judicial review is dismissed. No question is certified.
“Richard
Boivin”
Certified
true translation
Mary
Jo Egan, LLB
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