Date: 20110105
Docket: IMM-2056-10
Citation: 2011 FC 1
Ottawa, Ontario, January 5, 2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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BIVIANA ELENA MENDOZA PEREZ
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review under s. 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 26 (IRPA or the Act) of the decision
rendered by an immigration officer (officer), dated April 7, 2010, denying the
applicant’s application for permanent resident status under the Spouse or
Common-law partner in Canada class, because the applicant’s marriage was found
to be not genuine, and entered into primarily for the purpose of immigration.
[2]
For
the reasons that follow, the application for judicial review shall be denied.
Facts
[3]
The
applicant is a citizen of Colombia. She left Colombia in July 2005
due to a threat to her life by a militia. She attempted to claim asylum at the
USA/Canada border on August 1, 2005 but was denied because of the
safe-third-country agreement. In October 2005, the applicant re-entered Canada and claimed
asylum for a second time in November 2005. That claim was turned down because
of the earlier refusal. The applicant was told to report for deportation on
November 28, 2005 but did not appear for removal. A warrant for her arrest was
issued on December 12, 2005, and later executed on May 14, 2008.
[4]
While
in Canada, the applicant
became pregnant while in a short lived relationship. She thereafter began a
second relationship with Carlos Alberto Lanza Elvir, whom she married on
June 9, 2006. The applicant claims to have been living with her spouse
since that time. The applicant’s daughter was born in Montreal on September
22, 2006.
[5]
The
applicant’s sponsored application for permanent residence was submitted on
December 17, 2007.
[6]
CIC received an anonymous “tip” in December
2007 alleging that the applicant had married for immigration purposes, and that
the couple had taken a lot of fake photos to prove their marriage. The person
giving the tip also alleged that the applicant and her spouse were living
separately.
[7]
An
interview was held on March 31, 2010 to evaluate the bona fide of the
marriage. The applicant and her spouse were questioned separately, and then
confronted with discrepancies.
Impugned Decision
[8]
The
officer determined that the applicant’s relationship with her sponsor was not
genuine and was entered into primarily for the purpose of obtaining permanent
residence in Canada. This was
due to several discrepancies for which the officer was not satisfied with the
explanations given by the applicant and her sponsor.
Issues
[9]
The
issues are as follows:
a. Did the
officer give intelligent and sufficient reasons for her decision?
b. Did the officer
breach her duty to act fairly by omitting to give any reasons for her decision
concerning the purpose of the marriage with respect to the second part of the
test provided in section 4 of the Immigration and Refugee Protection
Regulations (hereinafter the Regulations or the IRPR)?
c. Did the officer err in identifying what she qualified as
important discrepancies?
Relevant Legislation
[10]
The
relevant legislation is in the attached appendix.
Standard of
review
[11]
Determinations
of whether a relationship is genuine and entered into for the purpose of
obtaining status under the Act are factual determinations and therefore
reviewable on the reasonableness standard (Kaur v Canada (Minister of
Citizenship and Immigration), 2010 FC 417, [2010] FCJ No 482 (QL), para
14). As such, the Court will only intervene if the decision does not fall
within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190,
para 47).
[12]
Questions
relating to the applicant’s right to a fair hearing and natural justice are reviewed
on the standard of correctness (Sketchley v Canada (Attorney
General),
2005 FCA 404, [2006] 3 FCR 392, para 53).
1. Did the
officer breach her duty to act fairly by omitting to give intelligible reasons
for her decision on the authenticity of the relationship?
Applicant’s Argument
[13]
The
applicant submits that the officer’s review of the evidence does not constitute
reasons, and that her conclusions are bald conclusions, not reasons. She
therefore argues that the officer has breached her duty to act fairly, and the
decision should be quashed. The applicant refers to Thalang v Canada (Minister of
Citizenship and Immigration), 2007 FC 743, [2007] FCJ No 1002 (QL),
para 15 for the argument that the duty to give reasons requires that the
reasons be adequate, and that they address the major points in issue.
Respondent’s
Arguments
[14]
The
respondent submits that the officer gave intelligible and sufficient reasons
for her decision.
[15]
The
respondent states that the letter sent to the applicant by the officer, dated
April 7, 2010 clearly indicates that the reason for her refusal is that the
applicant was disqualified under section 4 of the IRPR. The respondent further adds
that the detailed reasons of the officer indicate that CIC received an
anonymous tip alleging that the applicant married her sponsor for “work”
purposes and that they took a lot of deceptive pictures to prove their marriage.
[16]
The
respondent also asserts that the officer described in detail the seven
discrepancies she noted during the interview, after having compared the
applicant’s answers to the sponsor’s replies to the same questions (see pages
10-13 of the applicant’s record).
[17]
The
respondent argues that the officer’s reasons deal with the relevant issues
concerning the application of section 4 of the IRPR. The respondent further advances
that in her reasons, the officer adequately referred to the evidence
that she relied upon in arriving at her decision to demonstrate the path of her
reasoning (Ragupathy v Canada (Minister of Citizenship and Immigration), 2006
FCA 151, [2007] 1 FCR 490, para 14, Doumbouya v Canada (Minister of
Citizenship and Immigration), 2007 FC 1186, 325 FTR 186, paras 47-49).
Analysis
[18]
I
do not find that there has been any breach of procedural fairness here, as the
officer has given intelligible reasons for her findings. The officer has listed
all of the discrepancies that she noted, and it is clear that it is on this
basis that she made her findings on the applicant’s marriage to her sponsor. The
officer’s reasons contain a list of contradictions such as the applicant and
her spouse’s contradiction on their wedding date, the date they moved in
together and the time they leave in the morning, amongst others. As such, it is
possible to understand how the officer came to her conclusion.
2. Did the officer
breach her duty to act fairly by omitting to give any reasons for her decision
concerning the purpose of the marriage with respect to the second part of the
test provided in section 4 of the Immigration and
Refugee Protection Regulations?
Applicant’s Arguments
[19]
The
applicant states that the exclusionary test set out in s. 4 of IRPA requires
reasons for each component (Khan v Canada (Minister of
Citizenship and Immigration), 2006 FC 1490, 59 Imm LR (3d) 251, paras 4-5).
The applicant contends that in this case, it is not even clear that the officer
is aware of the two-pronged nature of the test, given that the officer made no
effort to give separate reasons (Das v Canada (Minister of Citizenship and
Immigration) 2009 FC 189, 79 Imm LR (3d) 134, para 19).
Respondent’s Arguments
[20]
The
respondent submits that the officer made explicit reference to the second part
of the test in her refusal letter (see applicant’s record, pages 4 and 13). The
respondent argues that the officer said that, based on the discrepant answers
that the applicant and her sponsor provided at the interview, she was not
satisfied that their marriage was genuine and considered that it was entered
into primarily for the purpose of acquiring a status or privilege in Canada. The
respondent advances that given the linkages between the two prongs of the test,
this analysis was sufficient (Kaur, para 17). The respondent submits
that the officer covered both prongs of the test in her conclusion.
[21]
The
respondent further refers to Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339, para. 63, for the idea that the reasonableness of the
challenged decision in judicial review is to be assessed not only in light of
the reasons given by the decision-maker, but also considering the reasons that
he or she could have given on the basis of the evidence at his or her disposal.
In light of this, the respondent puts forth that the officer had before her the
evidence that the applicant tried twice to obtain immigration status in Canada through a
refugee claim, which was each time denied, and that she married her sponsor
less than six months after a warrant for her arrest had been issued for a
removal.
Analysis
[22]
Justice
Zinn stated the following at paras 15 and 16 of his recent Kaur decision:
The applicant is correct that section 4 of the Regulations
creates a two-pronged test to determine whether a relationship is a
spousal relationship for the purposes of sponsorship. The applicant
bears the onus of proving (1) that their relationship is genuine, and (2) that
it was not entered into primarily for the purpose of acquiring any status
or privilege under the Act. In determining that an applicant is not
a spouse pursuant to section 4 of the Regulations, if an officer fails to
consider both prongs of the test “it is open to the court to find that a
reviewable error has occurred:” Khan at para. 5.
The officer's reasons in this case were focused on,
although not limited to, the genuineness of the applicant’s marriage. In Sharma
at paras. 17-18, Madam Justice Snider held that there is a strong link
between the two prongs of the test, and that a finding of “lack of genuineness
presents strong evidence that the marriage was entered into for the purpose of
gaining status.” In my view, if the evidence leads to a finding that the
marriage is not genuine, then there is a presumption that it was entered into
for the purpose of gaining status. The burden of establishing a contrary
purpose should be placed squarely on the applicant.
[23]
He
further found that “[t]he officer covered both prongs of the test in
concluding “that this is not a genuine spousal relationship and was entered
into by the applicant primarily for the purpose of acquiring permanent
residence in Canada.” The officer did not commit a reviewable error in applying
the wrong test or only a part of the appropriate test” (Kaur, para 18).
[24]
The
citation in Kaur applies to the case at bar. I therefore cannot find
that the officer made a reviewable error that warrants the Court’s intervention.
3. Did the officer err
in identifying what she qualified as important discrepancies?
Applicant’s Arguments
[25]
The
applicant argues that the discrepancies noted by the officer are so minor so as
to constitute a microscopic examination of a body of each consistent answer by
the spouses during three hours of questioning each, and as such, her conclusion
is unreasonable (Siev v Canada (Minister of Citizenship and Immigration), 2005
FC 736, [2005] FCJ No 912 (QL), para 21).
Respondent’s Arguments
[26]
The
respondent submits that it was reasonable for the officer to rely upon many
important discrepancies in the answers given by the applicant and her sponsor at
their interview.
[27]
The
respondent states that in her reasons, the officer indeed reviewed the many
discrepancies arising from the separate interviews she conducted (see pages 10-13
of the applicant’s record). The respondent suggests that this Court
should reject the applicant’s submission that the discrepancies found by the
officer were only “minor”. The respondent underscores that the
discrepancies noted were significant, and when considered as a whole, they are
sufficient to support the officer's conclusions (Kaur, para 32).
[28]
The
respondent further contends that the discrepancies noted demonstrate both the
applicant and the sponsor’s lack of knowledge regarding significant events in
the course of their relationship as well as ordinary daily events and points to
a relationship where the parties do not have the intimate knowledge of each
other’s affairs that a married couple would normally have (Kaur, para 8).
Analysis
[29]
The
officer identified numerous discrepancies in the answers given by both the
applicant and her sponsor. He confronted them and gave them the opportunity to
respond but was not satisfied with their explanations.
[30]
Read
as a whole, I find that the officer cannot be faulted when she concluded that based
on the evidence, the marriage was not genuine and was entered primarily for the
purpose of acquiring a status or a privilege in Canada.
[31]
No
question for certification was proposed and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for judicial
review be dismissed. No question is certified.
“Michel
Beaudry”
APPENDIX
Immigration and Refugee Protection
Regulations (SOR/2002-227)
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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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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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