Date: 20110321
Docket: IMM-4508-10
Citation: 2011
FC 341
Ottawa, Ontario,
March 21, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
ASAMENAW ABEBE
|
|
|
|
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, SC 2001, c 27 (the Act) for judicial review of
a decision of the Immigration Appeal Division of the Immigration and Refugee
Protection Board (the Board), dated July 12, 2010, wherein the Board denied the
applicant’s appeal from a refusal of his spouse’s application for permanent
residence as a member of the family class pursuant to
section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the
Regulations).
[2]
The
applicant requests an order setting aside the decision and remitting the matter
back for redetermination by a differently constituted Board.
Background
[3]
Asamenaw
Abebe (the applicant) is an Ethiopian citizen who received Canadian permanent
resident status on February 18, 1994 and became a Canadian citizen on February
23, 2003. He was born on July 27, 1952. The applicant’s wife, Selamawit Asfaw
Zegeye (the spouse) is an Ethiopian citizen who was living as a refugee in South Africa when she was introduced
to the applicant. She was born on August 13, 1977. The applicant entered Canada in 1989 as a group sponsored
refugee.
[4]
On
January 1, 2006, the applicant’s cousin introduced him by telephone to the
woman who is now his spouse. The spouse is a neighbour of the applicant’s
cousin, who lives in South
Africa.
The applicant and his spouse began regularly communicating by telephone. On
November 26, 2006, the applicant traveled to South Africa to meet the spouse in person. They were
married on November 28, 2006 and the applicant returned to Canada on November 30, 2006.
[5]
The
spouse applied for permanent residence as a member of the family class on
February 1, 2007 and she was interviewed on October 9, 2007.
[6]
By
letter dated April 8, 2008, the spouse was informed that her application was
refused because the officer had determined that the marriage was not genuine.
This decision was based on: inconsistent evidence about when the applicant
proposed; the age difference between the applicant and his spouse; lack of
proof of regular contact between the applicant and his spouse; the fact that
the applicant did not send his spouse gifts or money; the spouse’s lack of
knowledge about the applicant’s children; the fact that the spouse never talked
about loving the applicant in the interview; and the lack of logical
progression in their relationship.
[7]
The
applicant was also informed of the decision on April 8, 2008. He then commenced
an appeal to the Board.
[8]
The
applicant returned to South
Africa for
four days in January 2009 to visit his spouse.
[9]
The
Board heard the applicant’s appeal on June 21, 2010.
The Board’s Decision
[10]
The
Board considered the applicant’s testimony at the hearing and the additional
documentary evidence, but concluded that the marriage was not genuine.
[11]
The
Board found that there were significant discrepancies between the information
on the application, the applicant’s testimony at the hearing and the spouse’s
testimony in her interview. Specifically, the Board found that there were
discrepancies about when the applicant proposed. The Board also found that
there was a lack of evolution in the relationship, particularly given how
little time the applicant had spent with his spouse and given that the
applicant did not exchange pictures with his spouse before proposing to her.
The Board also found that the inconsistent evidence about how many times the
applicant has previously been married raised questions about the genuineness of
the marriage, as did the spouse’s lack of knowledge about the applicant’s
children.
[12]
The
Board considered the additional evidence of contact between the applicant and
his spouse, but gave it little weight since it all occurred after the officer’s
decision was rendered. Further, the Board noted that phone bills provided were
not in the applicant’s name.
Issues
[13]
The
applicant characterizes the issue as:
Did the Board err in face, err
in law, breach fairness or exceed jurisdiction in determining that the applicant’s
relationship to his wife is not genuine?
[14]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board
misapprehend or ignore evidence in concluding that the marriage is not genuine?
Applicant’s Written Submissions
[15]
The
applicant submits that the officer erred in assessing the bona fides of
the marriage based on Western paradigms. The applicant submits that, when
considered from an Ethiopian point of view, there are no reasons to believe
that the marriage is not genuine. In particular, the applicant submits that the
age difference and the lack of proof of the “evolution of the relationship” are
perfectly normal in Ethiopian culture and that the officer’s reliance on these
issues to establish that the marriage is not genuine demonstrates an improper
application of Canadian ideals to the facts of the application.
[16]
The
applicant further submits that the Board failed to consider the explanation
offered for the discrepancy in when the applicant proposed. The applicant
submits that he explained the error made by the officer, but that the Board
failed to consider this explanation or disturb the officer’s erroneous finding.
The applicant submits that the failure to explain why it rejected this explanation
constitutes a reviewable error.
[17]
The
applicant also argues that the Board failed to address his explanations for why
the marriage happened so soon after he arrived in South Africa and why he
and his spouse did not spend more time together when he was in South Africa.
[18]
The
applicant submits that the Board erred when it found a discrepancy regarding
the number of times that he has been married. The applicant further submits
that the Board failed to consider the explanations for why his wife did not know
the ages of his children. Finally, the applicant submits that the Board failed
to consider evidence that he uses the phone number even if it is not in his
name and that he had sent his spouse money.
Respondent’s Written Submissions
[19]
The
respondent submits that the Court should not intervene with the Board’s
credibility assessment because the Board had the benefit of hearing the
applicant’s testimony. The respondent further submits that the Court should not
interfere with the Board’s conclusions unless they are unreasonable and based
on irrelevant considerations or disregard evidence.
[20]
The
respondent submits that the issue of whether the marriage is genuine is a
factual one and is reviewable on the standard of patent unreasonableness.
[21]
The
respondent submits that the evidence regarding the date of the applicant’s
proposal to his spouse is inconsistent and that the Board’s conclusion was
therefore reasonable.
[22]
The
respondent also submits that the relationship lacked evolution.
[23]
The
respondent submits that the Board considered the explanation for why the
marriage occurred so soon after the applicant arrived in South Africa and that the Board
reasonably rejected it.
[24]
The
respondent submits that it was reasonable for the Board to find that evidence
of communication from January 2006 until the date of the wedding in November
2006 would support the genuineness of the marriage. The respondent argues that
the Board reasonably concluded that there was no evidence of such
communications.
[25]
The
respondent submits that the spouse lacked knowledge about the applicant. The
respondent submits that the spouse gave incorrect information about how many
times the applicant has previously been married and that the spouse did not
know the ages of the applicant’s children. The respondent suggests that this
lack of knowledge supports the Board’s conclusion that the marriage is not
genuine.
[26]
The
respondent further submits that the evidence provided at the appeal hearing
does not demonstrate the ongoing genuineness of the marriage.
[27]
The
respondent submits that the Board’s conclusion that the marriage is not genuine
is reasonable based on the evidence in the record.
Applicant’s Reply
[28]
The
applicant submits that the respondent has failed to address his arguments, but
rather has simply repeated the Board’s findings and asserted that they are
reasonable.
[29]
Specifically,
the applicant submits that the respondent has failed to respond to the issue of
whether the officer and the Board improperly assessed the genuineness of the
marriage on a Western paradigm. Specifically, the applicant argues that the
concerns about the lack of logical progression of the relationship and the age
difference between the applicant and his spouse, as well as the spouse’s
failure to express her love for her husband, reflects an improper application
of Western ideals to the question of whether the marriage is genuine. The
applicant states that the respondent has failed to address this argument at
all.
[30]
The
applicant also argues that the respondent has failed to address the
explanations offered for the inconsistencies regarding when the applicant
proposed and how many times he has previously been married.
Analysis and Decision
[31]
Issue
1
What is the
appropriate standard of review?
The issue of whether a marriage
is genuine is one of mixed fact and law, which attracts deference. This Court
has held that decisions as to the genuineness of a marriage are reviewable on
the standard of reasonableness (see Provost v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1310, 360 FTR 287 at paragraph
23).
[32]
Issue
2
Did the Board misapprehend
or ignore evidence in concluding that the marriage is not genuine?
The
respondent has failed to address the applicant’s argument that the Board
improperly assessed the genuineness of the marriage against Canadian paradigms.
The applicant relies on Bains v. Candaa (Minister of Employment and
Immigration) (1993), 63 FTR 312, [1993] FCJ No 497 (QL), in which this
Court set aside a negative refugee decision that was based on implausibility
findings. In that decision, the applicant had argued that “Canadian paradigms
do not apply in India” (at paragraph 5) and the present applicant now argues
that, similarly, Canadian paradigms do not apply in Ethiopia.
[33]
This
Court has held that “The ‘genuineness’ of the relationship must be examined
through the eyes of the parties themselves against the cultural background in
which they have lived” (see Farid Khan v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1490, 59 Imm LR (3d) 261 at paragraph
16). Further, although in the context of a refugee decision, this Court has
held in Valtchev v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 776, 208 FTR 267 at paragraph 9
that:
A tribunal must be careful when rendering
a decision based on a lack of plausibility because refugee claimants come from
diverse cultures, and actions which appear implausible when judged from
Canadian standards might be plausible when considered from within the
claimant's milieu.
[34]
Similarly,
this Court recently held in Gill v. Canada (Minister of
Citizenship and Immigration), 2010 FC 122, 362 FTR 281 at paragraph 7
that:
When assessing the genuineness of an
arranged marriage, the Board must be careful not to apply expectations that are
more in keeping with a western marriage. By its very nature, an arranged
marriage, when viewed through a North American cultural lens, will appear
non-genuine.
[35]
The
applicant submits that several of the Board’s concerns about the genuineness of
the marriage arise from its improper application of Canadian paradigms. In
particular, the applicant argues that the age difference between him and his
spouse is not unusual in Ethiopian culture and that it is unusual in their
culture to discuss romantic love with strangers. The applicant further argues
that his culture explains the lack of logical progression in the relationship
and his spouse’s lack of knowledge about his children.
[36]
The
Board makes no mention of the applicant’s suggestion that his culture offers an
explanation for these concerns. Further, the respondent has failed to address
this argument in its submissions. The Board did not find that the applicant’s
testimony was not credible. In the absence of evidence to contradict the
applicant’s sworn testimony on this issue, it was unreasonable for the Board
not to consider whether cultural differences answers its concerns about the
genuineness of the marriage.
[37]
The
applicant has also submitted that the Board erred in finding that he and his
spouse had given inconsistent evidence about when he proposed. The applicant’s
evidence was consistent: he claims that they were introduced on January 1, 2006
and that he proposed in March of the same year. The spouse’s evidence in her
interview was also consistent: she claimed that they were introduced on January
1, 2006 because they were both single and the applicant was looking for a wife
and that she decided to marry him nine months later. The officer asked the
spouse why she had put January 1, 2006 as the date of the proposal on her
application and she explained that the reason why the applicant’s cousin
introduced them was because he knew that the applicant wanted to get married
again, so they both knew that the purpose of the introduction was to see if
they wanted to marry each other. The spouse explained that the applicant had
brought up marriage during their first conversation, but never said in the
interview that the applicant proposed on January 1, 2006.
[38]
Similarly,
the applicant has submitted that the Board erred in finding that, if his
marriage was genuine, it was unreasonable for the spouse not to know how many
times the applicant had previously been married. The applicant explained the
discrepancy at the hearing and his explanation was not challenged. The Board
found that it was unreasonable that the spouse would not offer the same
explanation as the applicant about the inaccurate information. However, the
applicant has explained that his spouse felt intimidated by the officer and
both the Board and the respondent have failed to address this explanation.
[39]
The
respondent’s submissions are unresponsive to the arguments of the applicant. In
the absence of any submissions to the contrary, the applicant has raised valid
arguments that justify this Court’s intervention.
[40]
Accordingly,
the application for judicial review should be allowed.
[41]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[42]
IT IS ORDERED
that the
application for judicial review is allowed, the decision of the Board is set
aside and the matter is referred to a different panel of the Board for
redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27
|
72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
|
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
|
Immigration and Refugee Protection
Regulations,
SOR/2002-227
|
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.
|
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.
|
Email this Content