Date:
20110413
Docket:
IMM-3983-10
Citation: 2011 FC 454
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, April 13, 2011
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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PLACIDE OLEMBO OYEMA
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Respondent
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REASONS FOR JUDGEMENT AND JUDGMENT
[1]
This is an
application for judicial review brought by the Minister of Citizenship and Immigration
under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27, of a
decision of the Immigration and Refugee Board’s Immigration Appeal Division
(the IAD), which allowed the respondent’s appeal of the refusal of his spouse’s
application for permanent residence in the family class.
BACKGROUND
[2]
The
respondent left the Democratic Republic of Congo (the DRC) for Canada in 2002. He
claimed refugee protection, which was granted. He became a permanent resident
on June 14, 2005. He asked Ms. Rose Uya-Numondjo to marry him and she became
his spouse on January 6, 2005. On October 2, 2005, in Québec, he signed a power
of attorney empowering his brother to proceed with the marriage on his behalf
in the DRC. The customary marriage was solemnized on October 15, 2005, and
the civil marriage on November 18, 2005.
[3]
A
visa officer refused the respondent’s sponsorship application on the ground
that he had failed to prove that the marriage was valid under the laws of the DRC.
The visa officer also determined that the respondent’s marriage was not genuine
and had been entered into primarily for the purpose of acquiring a status or
privilege under the Act.
[4]
The
respondent appealed this decision before the IAD. On May 27, 2010, the IAD
allowed the respondent’s appeal. The IAD determined that, given all of the
evidence, the legal validity of the marriage had been established on a balance
of probabilities and the relationship between the respondent and his spouse was
genuine and had not been entered into for the purpose of acquiring any privilege
or status under the Act. This decision is the subject of the current judicial
review.
ISSUES
[5]
The
current application for judicial review raises the following two issues:
1)
Did
the IAD err in determining that the respondent’s marriage was legally valid?
2)
Did
the IAD err in determining that the applicant’s relationship was genuine and
was not entered into for the purpose of acquiring any privilege or status under
the Act?
APPLICABLE
STANDARDS OF REVIEW
[6]
The
first issue raised is the IAD’s interpretation of foreign law, in this case, the
Congolese Family Code (the Congolese Code), in determining whether the marriage
contract was legally valid. The case law of our Court has established that this
type of question must be reviewed on a reasonableness standard (Canada (Minister of
Citizenship and Immigration) v. Saini, 2001 FCA 311, at
para. 26; Butar v. Canada 2006 FC 1281, at para. 9; Wai v. Canada (Minister of
Citizenship and Immigration, 2007 FC 364, at para. 14.
[7]
The
second issue involves the IAD’s assessment of the good faith of the
respondent’s marriage, in light of the evidence before it. According to the
case law, this is also a question of fact that must be reviewed on a
reasonableness standard (Thach v. Canada (Minister of
Citizenship and Immigration), 2008 FC 658, at para. 15).
ANALYSIS
- The
relevant sections of the Congolese Code are found in Appendix A.
1) Did the
IAD err in determining that the respondent’s marriage was legally valid?
[8]
The
applicant submits that the IAD erred in determining that the respondent had
established that his proxy marriage was valid under Congolese law. The
Congolese Code stipulates that marriage by proxy constitutes an exceptional
regime and that its legal validity is subject to prior legal authorization.
[9]
Such
authorization from a justice of the peace is an essential condition in order to
be able to be exempt from the general regime of marriage. The documents
produced made no reference to the existence of such authorization and the
respondent had failed to have his spouse or brother testify on the matter. Thus,
the IAD erred in determining that the respondent’s brother and uncle “had
carried out all of the required procedures in the DRC” for him to be able to
legally marry by proxy while he was still in Canada. Moreover,
the name of the applicant’s proxy appears nowhere on the act of marriage, which
was filled out and signed as if the applicant himself had been present. The IAD
erred by failing to consider these factors.
[10]
In
addition, section 397 of the Congolese Code to which the IAD refers and which
seems to allow a husband to ratify consent in a marriage where consent was not
given or was vitiated does not resolve the issue since the respondent had not
established that Congolese law allowed for the need to obtain legal
authorization to be bypassed. The IAD erroneously lowered the respondent’s
burden of proof by not requiring that this be established.
[11]
Lastly,
the IAD erred in attaching undue weight to the fact that the act of marriage
and the confirmation letter for the customary marriage were genuine documents.
The IAD should have taken into account the legal principle whereby the
appearance of authenticity of a document issued by a foreign state simply
creates a presumption of validity which may be rebutted.
[12]
For
his part, the respondent argues that the Minister called no expert witnesses to
testify about the legality of his marriage and that he impugned its validity by
interpreting the wording of the law only in a general sense. The authenticity
of the documentary evidence with regard to the marriage was never called into
question by the visa officer or the IAD panel. The IAD analyzed all of the
provisions of the Congolese Code and made a distinction between a normal marriage
and a marriage by proxy.
[13]
He
further argues that the IAD was right when it determined that representation by
proxy was part of the provisions addressing the consent of the persons involved
and that the legal provisions regarding the ratification of marriage by consent
applied in this case. The IAD’s interpretation of the scope of section 397,
which deals with the ratification of a lack of consent, is reasonable and is
supported by the text cited. There exists a principle of judicial deference with
regard to decisions of the IAD due to its particular expertise and the Court
should not intervene.
[14]
Did
the IAD disregard an essential condition of a marriage by proxy: that it is
subject to legal authorization? I do not believe so.
[15]
In
the first place, the IAD considered the applicant’s doubts as to the validity
of the respondent’s marriage:
The Minister challenged the validity of this proxy
marriage on the ground that the power of attorney, sworn and executed in Quebec, had not been not signed by a justice
of the peace in the DRC and had not been given for a serious reason, in
accordance with article 351 of book three of the Code (CC of the DRC) and that certain other formal requirements had not
been respected, including those at articles 370 and 373 of book three of
the CC of the DRC. (IAD Decision, at para. 8).
[16]
The
IAD proceeded with the analysis and common-sense interpretation of the
provisions of the Congolese Code, as agreed by the panel and the parties at the
hearing. In spite of the arguments raised by the applicant, the panel
determined that the marriage by proxy was valid in law:
Regarding the first ground for refusal, I am of the opinion that the
marriage by proxy between the appellant and the applicant is valid in law. Even
though on its face, the power of attorney in the record did not fulfill all of
the procedures required by articles 351, 370 and 373 of the CC of the DRC,
the appellant’s explanations on this point were satisfactory. (IAD Decision, at para. 10).
[17]
In
fact, the respondent testified at the hearing that:
• he came to Canada as a refugee;
•
that his life would have been at risk had he returned to the Congo;
•
with the power of attorney, his family, that is, his brother and uncle, had carried
out all of the required procedures in the DRC;
•
it was on that basis that the civil registrar had agreed to confirm the
validity of the customary marriage and solemnize the civil marriage, both of
which were solemnized with the appellant’s and the applicant’s families in
attendance;
•
the signature appearing beside his name on the act of marriage was his brother’s,
not his own; and
•
that the appellant checked for himself with the relevant authorities in the DRC
to make sure that the documents were genuine before he went ahead with his
sponsorship application. (IAD Decision, at para. 9)
[18]
In
addition, the authenticity of the respondent’s marriage documents was never
called into question, either by the IAD or the visa officer:
Furthermore, the civil registrar agreed to provide a confirmation
letter for the customary marriage and to solemnize the civil marriage. Genuine
documents provide evidence of the validity of these marriages. The customary
marriage was confirmed by the mayor and civil registrar of the commune of
Ngaliema, as evidenced by the conformation letter issued on December 2,
2005. The civil marriage was solemnized by the civil registrar’s
representative, as evidenced by the act of marriage issued on November 18,
2005, by the civil registrar and mayor of the commune of Ngaliema, city of Kinshasa.
[19]
The
applicant complains that the IAD attached undue weight to the fact that the act
of marriage and the confirmation letter for the customary marriage were
genuine documents and that it should have considered the fact that the
presumption of their validity could have been rebutted. With respect, I do not
agree with this view. The IAD simply found that the respondent’s explanations and
interpretation of Congolese law were sufficient to support the legal validity
of his marriage. This interpretation does not appear to be unreasonable to me.
[20]
The
respondent also submits that the IAD could not have relied on section 397 of
the Congolese Code to determine that the marriage was valid in law and
disregard irregularities and the lack of legal authorization with regard to the
proxy marriage.
[21]
Section
397 of the Congolese Code reads as follows:
397 An annullable marriage can no
longer be impugned when the cause of its annulability ceases to exist or when,
in the event that the consent of the spouses or other persons who must consent
to the marriage was not given or was vitiated, there has been express or tacit
confirmation.
[22]
This,
section 397 of the Congolese Code allows for the ratification of a lack of
consent. The IAD determined that this provision could apply to the authorization
of a justice of the peace. The IAD chose this interpretation of
Congolese law in the absence of any expert evidence to the contrary. Although
it differs from that of the respondent, the IAD’s interpretation of Congolese
law does not appear unreasonable to me and, as I have previously noted, especially
since the IAD and the parties at the hearing had agreed to a common-sense
interpretation of the provisions of the Congolese Code. As for the validity of
the marriage, given that this finding falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law, the
Court’s intervention is not warranted.
2) Did the
IAD err in determining that the applicant’s relationship was genuine and was
not entered into for the purpose of acquiring any privilege or status under the
Act?
[23]
The
applicant submits that the IAD erred in finding that the marriage was in good
faith. It had no valid reason to overturn the visa officer’s decision,
according to which the marriage was not genuine and that it had been entered
into for the purpose of acquiring a status and for immigration purposes.
[24]
The
respondent, for his part, claims that the IAD made a finding of credibility
based on his testimony, which it found to be trustworthy because he testified
in a direct, spontaneous and sincere manner.
[25]
Under
section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227
(the IRPR):
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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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[26]
In
its decision, the IAD addresses most of the applicant’s concerns and found the
respondent’s testimony credible. The IAD determined that there was evidence of
ongoing communication between the respondent and his spouse from late 2002 or
early 2003 to the present day and that this demonstrated a genuine relationship,
notwithstanding the content of their conversations. The IAD concluded that the
respondent’s explanations for not having visited the DRC, for safety and
financial reasons and because he had not thought that the immigration
procedures would take so long, were reasonable.
[27]
It
is not for the Court to substitute its own finding for that of the panel, as
long as the finding is well-reasoned, takes into consideration the essential
evidence and falls within a range of acceptable outcomes which are defensible
in respect of the facts and law. This decision belongs to that category.
Therefore, the Court’s intervention is not warranted.
CONCLUSION
[28]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ADJUDGES that this
application for judicial review is dismissed.
“Danièle
Tremblay-Lamer”
Certified true translation
Sebastian Desbarats,
Translator
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