Date: 20091105
Docket: IMM-2620-09
Citation: 2009 FC 1131
Ottawa, Ontario, November 5, 2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
SUNIL
DUTT SHARMA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The Applicant, Mr.
Sunil Dutt Sharma, is a citizen of India who came to Canada in 2000 on a work
permit. His permit expired on December 31, 2001. A request for an extension was
refused. In spite of this refusal, the Applicant remained in Canada illegally.
During this time, it appears that the Applicant made no efforts to regularize
his status in Canada. Seven years later, on November 22, 2008, the Applicant
was reported for overstaying his visa. On November 25, 2008, the Applicant was
reported for working in Canada without a work permit. As a result, an exclusion
order was issued against the Applicant on December 3, 2008.
[2]
Meanwhile, the
Applicant and Ms. Maliha Nawabi, who met in 2006, were engaged on October 19,
2008 and were married on November 25, 2008. On November 28, 2008, the Applicant
applied for permanent resident status as a member of the Spouse or Common-law
Partner in Canada class. In a decision dated May 4, 2009,
an Immigration Officer refused the application on the basis that, on the
balance of probabilities, the marriage was not genuine and was entered into
primarily for the purpose of acquiring permanent residence in Canada.
[3]
The Applicant seeks
judicial review of that decision.
II. ISSUES
[4]
As clarified during
the oral submissions, this Application raises two issues:
1.
Did the Officer err
in concluding that the marriage was not genuine by failing to have regard to
the documentary evidence submitted by the Applicant?
2.
Did the Officer err
by failing to address whether the marriage had been entered into by the
Applicant primarily for the purpose of acquiring permanent residence in Canada?
III. STATUTORY
FRAMEWORK AND LEGAL TEST
[5]
Pursuant
to provisions in the Immigration and Refugee Protection Act (IRPA) (in
particular s. 12(1)) and the Immigration and Refugee Protection Regulations,
S.O.R./2002-227 (the Regulations) and various policy documents of Citizenship
and Immigration Canada (CIC), a spouse of a Canadian citizen may become
eligible for permanent resident status in Canada as a member of the “spouse or
common-law partner in Canada class”. However, under s. 4 of the Regulations, a
foreign national shall not be considered to be a spouse if the marriage “is not
genuine and was entered into primarily for the purpose of acquiring any status
or privilege under [IRPA]”.
[6]
The interpretation of
s. 4 of the Regulations has been the subject of considerable jurisprudence of
this Court. As stated by Justice Mosley in Donkor v. Canada (Minister of Citizenship and
Immigration), 2006 FC
1089, 299 F.T.R. 262 at paragraph. 12:
.
. . section 4 of the Regulations must be read conjunctively, that is the
questioned relationship must be both not genuine and
entered into primarily for the purpose of acquiring any status or privilege
under the Act. That would seem to follow from a plain reading of the enactment
and is supported by several decisions of this Court.
[emphasis
in original]
[7]
Further guidance was
offered by Justice Hughes in Khan v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1490, [2006] F.C.J. No. 1875 at paragraph 5:
Both
branches of the test must be met before a person cannot be considered a spouse
or partner. While the Applicant bears the onus of proof at this stage to
demonstrate that a reviewable error has occurred, if the Applicant succeeds in
that respect on only of these two branches of the test, then it is open to the
Court to find that a reviewable error has occurred.
IV. ANALYSIS
[8]
I begin by reviewing
the decision.
[9]
I note that the
Officer makes an error in the cover letter dated May 4, 2009 by referring to
Ms. Nawabi as the “common-law partner” of the Applicant. It is not disputed
that the Applicant and Ms. Nawabi entered into a legal marriage and were not in
a common-law relationship. It is obvious from the Decision and Reasons
(contained in the Officer’s Notes to File, which constitute the reasons in this
matter) that the Officer’s error in the cover letter was inadvertent and
inconsequential. It does not constitute grounds to overturn the decision.
[10]
In the Decision and
Reasons, the Officer first reviews the Applicant’s immigration history, noting
that the Applicant was married on the same day as he was reported for working
in Canada without a permit. The Officer next sets
out the test for meeting the requirements of s. 124(a) of the Regulations. Of
particular relevance to the application before her, the Officer notes that s. 4
of the Regulations:
.
. . clarifies that a foreign national will not be considered a spouse “if the
marriage . . . is not genuine and was entered into primarily for the purpose of
acquiring any status or privilege under the [IRPA]”.
[11]
After correctly
identifying the test, the Officer begins her consideration of the genuineness
of the marriage. The Officer refers extensively to the interviews that she
carried out with the Applicant and Ms. Nawabi and points to over 17 areas where
the couple’s answers differed. While some of these responses may seem, to the
reader, to be inconsequential, there is no doubt that many of them were
significant and that, cumulatively, they raise a serious doubt of the
genuineness of the marriage.
[12]
The Officer does not
stop at that point. The Officer explicitly considers the evidence put forward
by the Applicant in support of a "spousal relationship", as follows:
As
evidence of their relationship, the applicant and sponsor provided their
marriage certificate; a government cheque stub sent to the applicant at their
shared address; limited photos (of their engagement, wedding, and a party they
attended for a child's birthday); cellular phone invoices for two phone
numbers, both under the sponsor's name; and a letter from their landlord
attesting to their cohabitation. The applicant and sponsor also provided character
reference letters for the applicant; the sponsor’s bank statements for the past
three months; and various bills/statements addressed to the sponsor, sent to
their address. As the sponsor was already living at that address, I gave little
[weight] to these documents as evidence of their spousal relationship. The
applicant and sponsor both stated that they do not have any joint assets. I
have considered their submissions and find them insufficient as evidence of a
couple who was involved in an intimate relationship.
[13]
What is apparent from
reading the decision as a whole, on the question of the genuineness of the
marriage, is that the Officer was considering the totality of all the evidence
before her. Quite simply, the evidence proffered by the Applicant did not
outweigh the evidence obtained through the personal interviews.
[14]
The Applicant argues
that the Officer erred by failing to explain why some of the information was
rejected or not given weight. In my view, the Officer provided sufficient
explanation. In short, even if every piece of documentary evidence had been
accepted, the Officer was not persuaded that it established that the couple was
in a loving intimate relationship – in other words, a genuine marriage. A
review of the evidence before the Officer shows that this conclusion was open
to the Officer. For example, the letter from the landlord could have been
written about two platonic roommates. The photos of the engagement may have
been evidence that an “engagement” took place but say nothing about the
genuineness of the relationship or marriage. The Officer considered and weighed
all of the evidence.
[15]
The second serious
issue raised by the Applicant is that the Officer did not provide sufficient reasons as
to why she found that the marriage was entered into primarily for the purpose
of acquiring status under IRPA.
[16]
As noted above, s. 4
of the Regulations requires the Officer to consider whether the marriage was
entered into for the purpose of acquiring any status or privilege under the
IRPA. The Applicant bears the burden of demonstrating that his marriage was not
entered into primarily for the purpose of acquiring permanent resident status
in Canada. I recognize that it is difficult for an
Applicant to prove a negative; however, this is the evidentiary burden that
must be met by the Applicant.
[17]
What type of evidence
could satisfy this burden? For one, a “genuine” marriage would weigh
significantly in favour of a marriage that was not entered into for the purpose
of gaining status in Canada. In this case (and, perhaps, in most
situations), there is a strong link between the two prongs of the test. The
timing of a marriage could also be relevant. For example, if the Applicant had
been married while he still had legal status (a valid work permit or otherwise),
this would be significant evidence in his favour. That was not the case before
the Officer.
[18]
The Officer –
reasonably, in my view – had concluded that the marriage was not genuine. Much
of the evidence and observations related to the genuineness of the Applicant’s
marriage is also relevant to whether the marriage was entered into primarily for the purpose of
acquiring permanent residence in Canada.
The lack of genuineness
presents strong evidence that the marriage was entered into for the purpose of
gaining status. Moreover, the Officer had before her the evidence that the
Applicant was married only after he was reported to immigration officials and
that he has a seven-year history of not complying with immigration regulations.
These were relevant considerations that were weighed by the Officer.
[19]
Did the Officer fail
to have regard to certain of the evidence – specifically that the Applicant and
Ms Nawabi were engaged five months prior to his being questioned by the Inland
Enforcement Officer? I do not think so. In the reasons, the Officer notes that
she reviewed photos from their engagement. A review of the FOSS notes contained
in the Certified Tribunal Record also shows that the Officer considered the
photos from the engagement. However, offsetting the engagement photos was the
fact that the Applicant could only produce photos from three occasions, even
though he claims to have been in a relationship for three years.
[20]
I am not
persuaded that the evidence was ignored. Just as it was insufficient to
persuade the Officer that the marriage was genuine, the evidence of the
Applicant’s engagement was insufficient to demonstrate that the marriage itself
was not entered into for the purposes of gaining status in Canada.
[21]
In this
case, it is evident that the Officer considered the evidence before her. The
existence of all of the evidence, including the engagement photos, was weighed
against the substantial evidence that this marriage was entered into primarily
for immigration purposes.
V. CONCLUSION
[22]
Since I am satisfied
that the Officer applied the correct test to the question before her, that she
did not ignore evidence and that, overall, the decision falls within the range
of possible, acceptable outcomes (See Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para. 47; Canada (Minister of Citizenship and
Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59), the Court will not
intervene in the decision.
[23]
Neither party
proposed a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1.
the application for
judicial review is dismissed; and
2.
no question of
general importance is certified.
“Judith A. Snider”
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