Date: 20090508
Docket: IMM-2554-08
Citation: 2009 FC 479
Ottawa, Ontario, May 8, 2009
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
TROY
ISAAC GLEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Troy Glen, born in Guyana in 1980, became a permanent resident of Canada in 2000. In July 2002 he met Ms. Allison Antoine, a citizen of Grenada, at their mutual workplace. They
had a child together in 2004 and married in June 2005.
[2]
Mr. Glen filed an application to sponsor Ms.
Antoine. After interviewing Ms. Antoine in Grenada in May 2006, a visa officer rejected the application on the basis
that she considered the marriage not to be genuine. Mr. Glen appealed the
decision to the Immigration Appeal Division (IAD). In April 2008, the IAD
dismissed the appeal and upheld the officer’s finding that the marriage was not
genuine and had been entered into primarily for the purpose of securing status
in Canada, contrary to s. 4 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (see Annex A).
[3]
Mr. Glen argues that the IAD erred by failing to
consider his explanations for some of the weaknesses the IAD identified in the
evidence, and misconstrued some of that evidence. He submits that the IAD’s
decision was unreasonable and asks me to order a new hearing.
[4]
I agree with Mr. Glen that the IAD’s treatment
of the evidence was unsatisfactory and, as a result, its conclusion was
unreasonable. I must, therefore, allow this application for judicial review and
order a new hearing.
[5]
The sole question before me is whether the IAD’s
decision was reasonable.
I.
The IAD’s Decision
[6]
The IAD noted the following areas of concern in
the evidence:
(i)
There was no documentary evidence to support Mr.
Glen’s contention that he lived with Ms. Antoine four or five nights a week
between 2002 and 2005 – no photographs, letters, witnesses. Further, Mr. Glen
could not provide the family name of Ms. Antoine’s roommate.
(ii)
Mr. Glen testified that he and Ms. Antoine were
in an exclusive relationship beginning in 2002. However, six months after their
daughter was born, Mr. Glen had a relationship with another woman in 2005, from
which another child was born. Mr. Glen claimed that the latter relationship was
no more than a one-night stand, although he pays the child’s mother child
support. The IAD suggested that Mr. Glen had failed to show any difference
between the two relationships.
(iii)
According to phone records, communication
between Mr. Glen and Ms. Antoine was brief. Letters and cards between them were
all dated after the visa officer had rejected the sponsorship application, in
part, because of an absence of such evidence.
(iv)
While Mr. Glen visited Ms. Antoine in 2006 and
2007, these visits, again, post-dated the visa officer’s decision, in which it
was noted that there had been an absence of visits.
(v)
In general, there was little evidence supporting
a genuine relationship. There were only a few photographs of the wedding and
one of the visits to Grenada.
(vi)
Mr. Glen provides some financial support to Ms.
Antoine. The IAD stated that this money “could be for any number of reasons”.
(vii)
The couple married just days before Ms. Antoine
was removed from Canada. The
IAD rejected Mr. Glen’s assertion that this was a mere coincidence. Further,
there was nothing in the pre-removal interview notes about the upcoming
marriage.
(viii)
Mr. Glen displayed a lack of knowledge about Ms.
Antoine’s life. He did not know the name of her employer or whether she worked
full- or part-time.
[7]
On the basis of these concerns, the IAD
concluded that the marriage was not genuine and was entered into primarily to
assist Ms. Antoine in gaining status in Canada. Accordingly, she could not be considered a “spouse” under s. 4 of
the Regulations.
II.
Is the IAD’s Decision Reasonable?
[8]
In his testimony before the IAD, Mr. Glen
attempted to address a number of the concerns expressed by the IAD. He
maintains that the IAD either ignored or misconstrued his evidence. He asks me
to consider the following:
• Mr. Glen explained to the IAD that he was no
longer in contact with Ms. Antoine’s roommates and, therefore, could not obtain
evidence from them. Further, it was common for persons without status in Canada to keep confidential their family
names. He knew that Ms. Antoine’s roommate’s name was Sherry Ann, but he never
knew her family name.
• Mr. Glen stated that he had an ongoing
relationship with Ms. Antoine while he merely had a one-night relationship with
another woman. He presented evidence supporting the existence of his
relationship with Ms. Antoine. There was no basis for the IAD’s suggestion
that the two relationships were the same.
• The issue of the duration of phone calls was not
raised in the hearing. It was addressed by counsel in final submissions.
Accordingly, Mr. Glen did not have an opportunity to address the IAD’s concern
in this area. In any case, the evidence showed that Mr. Glen and Ms. Antoine
spoke by telephone several times a week.
• While some of the evidence before the IAD arose after
the visa officer’s decision, the IAD had an obligation to consider and weigh it
along with all the other evidence.
• The IAD’s suggestion that the support payments to
Ms. Antoine “could be for any number of reasons” was speculation. There was no
basis for characterizing those payments as anything other than support for his
wife and children.
• Mr. Glen never testified that the timing of the
wedding was a mere coincidence. He said that the timing of the wedding was not
determined by the date of Ms. Antoine’s removal from Canada.
• Mr. Glen knew that Ms. Antoine worked in a
clothing store. At the hearing, he was never asked the name of it.
[9]
In my view, the IAD failed to consider Mr.
Glen’s explanations for many of the areas of concern identified by the IAD in
its decision. Certainly, it was open to the IAD to question the cogency of
those explanations. But it had a duty at least to consider them. Further,
there were areas of Mr. Glen’s testimony that were mischaracterized by the
IAD.
[10]
Accordingly, looking at its reasons as a whole,
against the background of the evidence before it, I find that the IAD’s
decision does not meet the test of being intelligible, justified or
transparent, as established by the Supreme Court of Canada in Dunsmuir
v. New Brunswick, 2008
SCC 9, at para. 47.
III.
Conclusion and Disposition
[11]
It
appears that the IAD failed to take into account Mr. Glen’s testimony in
several areas where the IAD had concerns. In other areas, the IAD misconstrued
the evidence. Accordingly, I must conclude that its decision was unreasonable.
Mr. Glen is entitled to a new hearing before a different panel of the IAD.
Neither party proposed a question of general importance for me to certify, and
none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1. The
application for judicial review is allowed and a new hearing is ordered.
2. No question
of general importance is stated.
“James
W. O’Reilly”
Annex “A”
|
Immigration and Refugee Protection Regulations,
SOR/2002-227
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.
|
Règlements sur l’immigration et la protection des
réfugiés, DORS/2002-227
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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