Date: 20111223
Docket:
IMM-2158-11
Citation:
2011 FC 1515
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
December 23, 2011
PRESENT: The Honourable
Mr. Justice Boivin
BETWEEN:
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MARIE CARMELLE JOSEPH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review in accordance with
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c. 27 (the Act), of a decision of the Immigration Appeal Division of the
Immigration and Refugee Board (the panel) dated March 10, 2011, dismissing
the appeal filed by the female applicant of the refusal of the sponsored permanent
resident visa application filed by her spouse under section 4 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
Background
A.
Factual background
[2]
The
female applicant is a 44-year-old Canadian citizen. She was born in Haiti and obtained
permanent residence in Canada in December 1996.
[3]
The
female applicant alleges that she met Grégory Destournel (the applicant) for
the first time in 2002 at the movies while she was in Haiti. The applicant is
now 34 years old and a citizen of Haiti.
[4]
The female applicant asserts that she had lost contact with the
applicant but got back in touch with him in 2008.
[5]
On June 5, 2009, the female applicant married the applicant
in Haiti.
[6]
The female applicant sponsored her spouse’s permanent resident
visa application on July 15, 2009.
[7]
Following an interview with the immigration officer, the applicant’s
permanent residence visa application was refused on May 10, 2010.
[8]
On June 7, 2010, the female applicant appealed this decision
to the panel under subsection 63(1) of the Act.
[9]
The hearing before the panel was held on February 18, 2011.
B. The impugned decision
[10]
In its decision of March 10, 2011, the panel refused the permanent
resident visa application and found that the female applicant had failed to
show that her marriage to the applicant was genuine and not entered into
primarily for the purpose of enabling the applicant to acquire a status or
privilege in Canada.
[11]
The panel noted that the immigration officer denied the permanent
resident visa application because the applicant could not satisfactorily
address some concerns that the immigration officer had about their file. These
concerns included:
a.
Lack of
knowledge of the lives of the female applicant’s
family members who live in France;
b.
Lack
of knowledge of the female applicant’s economic activities in Canada;
c.
Lack
of proof of communication and of transfer of funds;
d.
Lack
of proof of the female applicant’s visit.
[12]
With respect to the female applicant’s testimony during the
hearing, the panel found that several aspects of her story were not credible. Essentially, the panel noted that the female applicant’s
credibility was tainted by the following facts:
a.
In
her testimony, the female applicant explained that she met her spouse for the
first time at the movies in 2002, when she was visiting Haiti. They exchanged
telephone numbers. However, they lost touch afterwards because the female
applicant stated that she had changed her telephone number after an argument
with the applicant. The female applicant could not
give further details regarding the disagreement or the circumstances
surrounding the argument.
b.
The
applicant could not remember the telephone number she had prior to 2008
although she said that she had not changed her telephone number during this
period since her arrival.
This statement contradicted a previous statement of
the female applicant that she had changed her telephone number following the
argument with the applicant.
c.
The
female applicant could not provide an explanation for the contradiction regarding
how long she had known the applicant’s cousin, Maxeau Claude.
d.
The
female applicant’s explanations of the difference in religion between her and
her spouse (the female applicant is Protestant and the applicant is Catholic)
were not clear. The panel stated that this difference showed that there was
“some incompatibility”.
e.
Under
cross-examination, the female applicant did not answer the questions directly,
give any details in her answers or reveal certain relevant information until
she was asked the question several times.
[13]
As a result, the panel found that the female applicant’s conduct, [TRANSLATION]
“taken together with the various examples given previously,
[led] the panel to find that [the female applicant] did not give credible and
trustworthy testimony” (panel’s decision, para. 21).
[14]
However, the panel noted that explanations on the applicant’s lack
of knowledge of the female applicant’s economic activities were satisfactory. The panel added that the evidence also showed that the
applicant had indeed gone to visit her spouse on two occasions: in March 2010
and in September 2010. However, by rejecting the application, at
para. 24 of the decision, the panel stated that [TRANSLATION] “although this
evidence was not called into question, the female applicant’s general lack of
credibility during her testimony leads the panel to find that the visits and
communication with the applicant took place for the primary purpose of persuading
the panel that the relationship was in good faith.”
II.
Issue
[15]
The
issue is the following:
Did the panel commit a reviewable error
in determining the female applicant’s credibility and the genuineness of the
marriage?
III.
Relevant
statutory provisions
[16]
Subsections 12(1)
and 13(1) of the Immigration and Refugee Protection Act provide:
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Family reunification
12. (1) a foreign
national may be selected as a member of the family class on the basis of
their relationship as the spouse, common-law partner, child, parent or other
prescribed family member of a canadian citizen or permanent resident.
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Regroupement familial
12. (1) la sélection des
étrangers de la catégorie « regroupement familial » se fait en
fonction de la relation qu’ils ont avec un citoyen canadien ou un résident
permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père ou mère
ou à titre d’autre membre de la famille prévu par règlement.
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Right to sponsor family
member
13. (1) A Canadian
citizen or permanent resident may, subject to the regulations, sponsor a
foreign national who is a member of the family class.
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Droit au parrainage :
individus
13. (1) Tout citoyen
canadien et tout résident permanent peuvent, sous réserve des règlements,
parrainer l’étranger de la catégorie « regroupement familial ».
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[17]
Subsection 4(1)
of the Immigration and Refugee Protection Regulations states the
following:
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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.
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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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IV.
Applicable
standard of review
[18]
The
panel’s findings on credibility and the genuineness
of the marriage are subject to the reasonableness standard since they only
raise questions of fact (see Yadav v. Canada (Minister of Citizenship
and Immigration), 2010 FC 140, [2010] F.C.J. No. 353; Harris v. Canada
(Minister of Citizenship and Immigration), 2009 FC 932, [2009] F.C.J.
1144). Consequently, the Court must determine whether the panel’s
decision falls within the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47).
V.
Arguments
[19]
Essentially, the female applicant submitted that the panel’s
decision is unreasonable and incorrect. She alleged that
the panel based its decision purely on the peripheral facts that did not relate
to the genuineness of her relationship with her spouse. She also argued that the panel failed to provide reasons
and its finding regarding the lack of credibility is not warranted.
[20]
The respondent reiterated the panel’s findings regarding the
credibility of the female applicant’s testimony. The respondent argued that the female applicant’s testimony was evasive,
lacked spontaneity and was contradictory and submitted that the Court cannot
reassess the female applicant’s explanations or the conclusions drawn by the
panel (Kabir v. Canada (Minister of Citizenship and Immigration),
2002 FCT 907, [2002] F.C.J. 1198). The
respondent submitted that, as trier of fact, only the panel can determine how
much weight to give the evidence (Singh v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 347, [2002] F.C.J. 461). Also, under Khera v. Canada (Minister of
Citizenship and Immigration) 2007 FC 632, [2007] F.C.J. No. 886 and Froment
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1002,
[2006] F.C.J. No. 1273 [Froment], the respondent argued that the panel
can take several factors into consideration in its assessment of the
genuineness of a relationship—such as differences in age, religion, culture or
language.
VI.
Analysis
[21]
After
reading the evidence and hearing the parties, the Court is of the view that the
panel erred in concentrating initially on its analysis of some minor or
secondary inconsistencies to a level that reached a microscopic analysis (Attakora
v. Canada (Minister of Employment and Immigration) (F.C.A.) (1989),
99 N.R. 168, [1989] F.C.J. No. 444 and Djama v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. 531 (F.C.A.), see also Huang
v. Canada (Minister of Employment and Immigration), 2008 FC 346 at
para. 10, 69 Imm L.R. (3d) 286; Chen v. Canada (Minister of Employment
and Immigration), 2007 FC 270 at para. 16, 155 A.C.W.S. (3d) 929). For example,
the panel drew a negative inference and placed too much weight on the fact that
the female applicant had different telephone numbers and that she could not
explain this in detail (panel’s record, pp. 161-164).
[22]
Second,
and more importantly, the panel noted its decision that because there is a [TRANSLATION]
“difference in the spouses’ religions and the fact that the appellant is
protestant and the applicant is catholic shows some incompatibility” (panel’s
record, para. 18). With respect, the panel should not have made such a
statement without supporting its finding on the evidence, which it failed to
do. The Court finds that, in the circumstances, this finding of the panel on “the
incompatibility” of religions is unsubstantiated and is in fact a mere
generalization. Therefore, the panel erred when it failed to explain how there
was “incompatibility” between the religions of the female applicant and the
applicant.
[23]
As
a consequence, the application for judicial review will be allowed.
[24]
There
is no question to certify.
JUDGMENT
THIS COURT
ORDERS that the application for judicial review is allowed and the
matter is remitted for redetermination before a differently constituted panel. No
question is certified.
“Richard
Boivin”
Certified true
translation
Catherine Jones,
Translator
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