Date: 20090223
Docket: IMM-2619-08
Citation: 2009 FC 189
Ottawa, Ontario, February 23, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
JOYTIKA
DAS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) of the decision of visa
officer S. Pelletier (the officer) of the visa section of the Embassy of Canada
in Singapore, rendered on March 21, 2008, where the officer determined
that Joytika Das (the Applicant) did not qualify as a member of the family
class.
[2]
The
officer determined that the Applicant’s marriage to her husband Mr. Picklu Das
was not genuine as per section 4 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the Regulations) or was entered primarily for
the purpose of acquiring any status or privilege under the Act (Tribunal
Record, page 10).
Issue
[3]
Did
the officer err in concluding that the Applicant’s marriage to Picklu Das was
not genuine and was entered into primarily for the purpose of acquiring a
status or privilege within the meaning of section 4 of the Regulations?
[4]
For
the following reasons, this application for judicial review shall be allowed.
Factual Background
[5]
The
Applicant is a citizen of Bangladesh and both the Applicant and her husband are
members of the Hindu minority of Bangladesh.
[6]
The
Applicant’s husband, Picklu Das, arrived in Canada from Bangladesh to request
protection as a Convention refugee in September 2000. From the time of his
arrival, he asserted that he had a wife in Bangladesh with the
same name and date of birth as that of the Applicant. He indicated that they
were married on March 24, 1996, more than four years prior to his arrival in Canada (Applicant's
Record, page 13 and Tribunal's Record, page 28).
[7]
The
Applicant’s husband was granted protected person status further to a
Pre-Removal Risk Assessment with regard to his removal to Bangladesh in 2006. He then
applied for permanent residence in Canada and included his wife
in the application as a member of his family.
[8]
The
Applicant was invited to attend an interview on November 28,
2007
at the Canadian High Commission in Dhaka, Bangladesh.
[9]
The
visa officer conducted the interview with an interpreter that lasted 45
minutes, during which time she reviewed the documents brought in by the
Applicant.
[10]
Prior
to the interview, the visa officer found out that the Applicant had applied for
a temporary resident visa (TRV) in 2003. In her TRV application, the Applicant
declared that she was married to a businessman and that she wanted to visit her
brother and sister-in-law in Canada because her sister-in-law was pregnant and
required her assistance. The Applicant did not declare in her TRV application
that her husband, to whom she was allegedly married to since 1996, was
in Canada at that
time, and that he was in the process of claiming refugee protection. Her
application was refused as she did not provide documentation on her husband.
Decision under Review
[11]
The
officer refused the Applicant’s application based on the documents and answers
provided at the interview. The officer concluded that the relationship was not
genuine or was primarily entered into for the purpose of acquiring a status or
privilege under the Act.
[12]
During
the interview, the Applicant failed to demonstrate to the officer that herself
and Mr. Picklu Das shared a genuine relationship for a variety of reasons:
(a) The
Applicant did not submit convincing evidence of communication. The two
telephone bills and a few emails did not satisfy the officer that the Applicant
and Mr. Das shared a husband and wife relationship;
(b) The
Applicant did not submit any credible evidence of the claimed marriage;
(c) There
were some money transfers in the Applicant’s bank account, but the Applicant
did not submit any evidence of the source of funds. There were only two money
transfer receipts submitted. The officer was not satisfied that Mr. Das supported
the Applicant financially;
(d) The
marriage was registered after Mr. Picklu Das left for Canada. The
Applicant did not submit any credible evidence that the marriage was contracted
before he left, except for a self-serving marriage certificate with no other
supporting documentation;
(e) The
Applicant did not declare her husband in her temporary resident visa
application made in March 2003 and she maintained at the interview that she was
going to visit her brother-in-law. The Applicant continued to make false
declarations repeatedly during the interview when questioned on her temporary
resident visa application. The officer did not find the Applicant’s explanation
on this issue credible;
(f) Mr.
Picklu Das has been in Canada since 2000. This is seven years and the
relationship is not documented at all. This negatively affects the Applicant’s
credibility and this is not consistent with a genuine spousal relationship;
(g) The
Applicant demonstrated poor knowledge of her claimed spouse. For example, she
did not know where Mr. Picklu works. This is highly unusual in a spousal
relationship.
Relevant legislation
[13]
Section
4 of the Regulations; establishes that a foreign national shall not be
considered a spouse of a person if the marriage is not genuine and if it was
entered into primarily for the purpose of acquiring any status or privilege
under the Act.
|
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.
|
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.
|
[14]
Subsection
12(3) of the Act discusses the selection of permanent residents from the
refugee class:
|
12. (3) A foreign national, inside or outside
Canada, may be selected as a person who under this Act is a Convention
refugee or as a person in similar circumstances, taking into account Canada’s
humanitarian tradition with respect to the displaced and the persecuted.
|
12.
(3) La
sélection de l’étranger, qu’il soit au Canada ou non, s’effectue,
conformément à la tradition humanitaire du Canada à l’égard des personnes
déplacées ou persécutées, selon qu’il a la qualité, au titre de la présente
loi, de réfugié ou de personne en situation semblable.
|
Standard of review
[15]
Determining
whether the marriage is genuine is a question of mixed fact and law because it
involves applying the facts to the requirements of the Regulations. Therefore,
the appropriate standard of review is reasonableness simpliciter (Nadon
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 59, 158 A.C.W.S. (3d) 470; Mohamed
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 696, 296 F.T.R. 73, at paragraph
39).
[16]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at paragraph 51, the Supreme Court stated that:
…questions of fact, discretion and policy
as well as questions where the legal issues cannot be easily separated from the
factual issues generally attract a standard of reasonableness while many legal
issues attract a standard of correctness. Some legal issues, however, attract
the more deferential standard of reasonableness”.
[17]
Questions
of law are governed by the correctness standard.
Analysis
[18]
Section
4 of the Regulations sets out the two-pronged test to determine when an
Applicant will not be considered a spouse:
1. If
the marriage is not genuine; and
2. If
the marriage was entered into primarily for the purpose of acquiring any status
or privilege under the Act.
[19]
The
use of the word “and” in the wording of section 4 of the Regulations indicates
that both conditions must be met for the section to apply, but a failed
appellant only needs to demonstrate that one of these conditions has not been
met to fall outside the scope of this exclusion.
[20]
In
her decision, the officer determined that the Applicant’s marriage is not
genuine or was entered into primarily for the purpose of acquiring
status or privilege under the Act (Tribunal Record, pages 10 and 11). The
defendant concedes that there is an error in the letter sent to the Applicant
on March 31, 2008, where it is written (… if the marriage is not genuine or …)
instead of and. The Defendant argues that the Court should read page 7
of the Tribunal's Record where it is indicated "… I am not satisfied that
this relationship is genuine for the following reasons and that it was
contracted to facilitate PAS Immigration to Canada ...". Therefore,
the officer did apply the proper test and an improper formulation may be
obviated by a proper application as it is in this case Kadiosha v. Canada
(Minister of Citizenship and Immigration) (2000), 194 F.T.R. 153 (F.C.).
[21]
I have read the Computer
Assisted Immigration Processing System (CAIPS) notes and I find no analysis or
reasoning which supports a finding that the primary purpose of the marriage was
to gain status or privilege under the Act.
Therefore,
I am of the opinion that the officer committed a reviewable error in failing to
analyze the relevant criteria for the test set out in section 4 of the
Regulations (Ouk v. Canada (Minister of Citizenship and Immigration),
2007 FC 891, [2007] F.C.J. No. 1157 (QL).
JUDGMENT
THIS COURT
ORDERS that:
1. This application for judicial
review be allowed. The matter is remitted for redetermination by a newly
appointed officer.
“Michel
Beaudry”
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