Date: 20110608
Docket: IMM-6360-10
Citation: 2011 FC 656
Ottawa, Ontario, June 8,
2011
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
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MENNO HENDRICK WIESEHAHAN,
CHUN YAN YANG
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Applicants
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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 a de nova appeal of a decision of the Immigration Appeal Division of
the Immigration and Refugee Board (the Board), dated October 8, 2010, upholding
a decision of a visa officer refusing the male applicant’s application to
sponsor the female applicant from China as a spouse, because the officer
determined that the marriage was entered into in bad faith, contrary to the
then-in-force section 4 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the Regulations).
[2]
Section 4
of the Regulations was amended between the date of the officer’s determination
and the Board hearing. The Board upheld the decision under the amended section
4(1) of the Regulations, the version in force as of the date of the hearing.
[3]
The
difference between the two provisions is that the former version mandated a
conjunctive test for bad faith, in which the marriage had to be “not genuine and
was entered into primarily for the purpose of acquiring any status or privilege
under the Act.” (Emphasis added.) The current version of the test is
disjunctive, requiring only one or the other of “not genuine or entered into
primarily for the purpose of acquiring any status or privilege under the Act”.
FACTS
Background
[4]
The
male applicant, Mr. Wiesehahan, is a 41 year-old citizen of Canada. The female
applicant, Ms. Yang, is a 35 year-old citizen of China. On August
14, 2009, the male applicant applied to sponsor the female applicant from China as his
spouse. Ms. Yang submitted an application for permanent residence in Canada, which was
received on September 21, 2009. Neither applicant has been previously married
nor does either have any children.
[5]
The
male applicant’s father had spent a significant amount of time in China, including
teaching at a middle school in Tianjin. The female applicant
is a cousin of one of his father’s former students, Sun Li. Because of this
relationship, the male applicant’s father had invited the female applicant to
visit them in the summer of 2008. The male applicant’s sister provided a letter
of invitation in support of the female applicant’s visitor’s visa application. Included
in the application was a letter that said that the female applicant was going
to be married to a boyfriend in China. The female applicant
testified that at the time that she completed that application, her English was
not good and she relied upon a friend to help with documentation. She stated
that she had simply signed her name to the documents prepared for her. This
first visa application was refused.
[6]
In
October of 2008, the male applicant accompanied his parents on a trip to China. The
applicants first met on October 12, 2008, when the female applicant picked the male
applicant and his parents up from the train station in Tianjin. The male applicant’s
parents had arranged to stay at Sun Li’s house. Because Sun Li did not have
enough space for the entire family in her apartment, she arranged for, the
female applicant, her cousin, to host the male applicant in a spare bedroom in
the apartment that she shared with her mother.
[7]
The
family arrived in Tianjin on a Sunday. The female applicant had arranged
to take the Monday and Tuesday off work to show the male applicant around Tianjin while his
parents were elsewhere. The male applicant testified that once they met and
realized how much fun they had together, she arranged to take the rest of the
week off work. Although she wanted to take the second week off, too, she was
unable to get the time, but she was able to come home early every day so that
they could spend the afternoons and evenings together. Moreover, because the
family had arranged to spend the weekend prior to their return to Canada in Beijing, the
applicants arranged for the female applicant to join the male applicant’s
family on the trip, so that they could spend more time together.
[8]
In
the male applicant’s words, during the two weeks that he spent in China the
applicants’ relationship evolved tremendously:
It
happened gradually. I mean, the first few days it was I like you, then it was
more, then it was I care about you and I want to see you more. By the end of
the trip it was I don’t want to leave, I don’t want to be apart from her. And
she felt, I know she felt the same way.
[9]
By
the time he left, the male applicant testified that “[a]t that point I would
definitely have called her my girlfriend and although there never really was an
official proposal I almost would have at that point called her a fiancée”.
[10]
The
applicant testified that although there was no official marriage proposal, the
equivalent of a proposal was made in emails dated the 11th and 12th
of November, 2008. In those emails, the female applicant suggests that if she
is unsuccessful in obtaining a visitor’s visa to come to Canada, she and the
male applicant should marry in China and then re-apply for a visa for her. She
then asks the male applicant what he thinks, and whether he would like to marry
her. In his responding email, the male applicant states that he agrees that if
he is unable to get the visitor’s visa arranged, then they should marry in China. He goes on
to state that he wants to marry her and did not realize that it was still a
question.
[11]
In
March of 2009, the female applicant submitted a second application for a
visitor’s visa. On that application, the female applicant had to list the
names, addresses, and relationships of the people or institutions that she will
visit. She lists the male applicant’s father and his sister, both of whom she
listed as “friend”, but not the male applicant. The male applicant testified
that he did not know why she did not include the male applicant’s name. He
stated that “as far as I can see it’s because I was a travelling companion
rather than a destination of a visit.” The male applicant testified that the
purpose of her visit was to be for the applicants to travel around Canada and see how
his family lived – therefore to stay with his sister and her family for several
days, and to visit his parents. When asked why he had not been listed as her
fiancé, the male applicant testified that his Member of Parliament had advised
against it, stating that the application was more likely to be successful if it
identified his sister as the female applicant’s friend. This second visa application,
too, was refused.
[12]
The
male applicant subsequently made two trips to China to visit the
female applicant. On the first trip, they had a civil marriage in China, which was
registered on June 10, 2009. Following the civil ceremony, they had a dinner
with about 12 members of the female applicant’s family. The second trip was in
January 2010, when the couple took a vacation in Hainan, China.
[13]
Throughout
this period, the applicants exchanged numerous emails. The female applicant
also corresponded with the male applicant’s mother and sister.
Decision under review
[14]
In
10 pages of reasons, the Board agreed with the visa officer’s refusal of the female
applicant’s application for immigration to Canada.
[15]
With
regard to the applicant’s burden of proof, the Board first considered whether
the applicants had to demonstrate on a balance of probabilities both that their
marriage was genuine and that it was not entered into for an improper
purpose, or that their marriage was genuine or not entered into for an
improper purpose. This decision turned, as described above, on whether the
applicable Regulations were those dated as of the date of the visa officer’s
determination or as of the date of the Board hearing.
[16]
The
Board concluded that the conjunctive test of the Regulations as they existed at
the time of the Board hearing was applicable. However, as will be discussed
below, the Board’s ultimate decision was that neither element was met.
[17]
The
Board described the evidence that it was considering:
¶3. I have in evidence before me
the Record, additional documentary disclosure from the appellant and the
testimony of the appellant and his mother and father, in person and the
applicant, by telephone….
[18]
The
Board reviewed the concerns that the visa officer had provided with regards to
the initial refusal of their application:
¶3. …These
include conclusions that; [sic] there was short courtship, the appellant and
the applicant were together for only a brief period before and after the
marriage, a lack of evidence of telephone communication, the emails submitted
were substantially focused on matters involving a visa to Canada and that the
marriage had not been consummated.
[19]
The
Board agreed with the visa officer that the female applicant’s English is good
enough that the applicants are able to communicate with one another in English.
[20]
The
Board held, however, that the applicants had failed to satisfy it that their
marriage was genuine or had not been entered into primarily for the purpose of
acquiring some status or privilege under the Act:
¶5. The
testimony of the appellant and the applicant is substantially consistent;
however, there are a number of aspects of the evidence before me that raise
credibility concerns, both in relation to the genuineness of the marriage and
the primary purpose component of the above referenced test.
[21]
In
particular, the Board was concerned about elements of the evidence regarding
(1) the female applicant’s visitor visa applications in May 2008 and March 2009;
(2) the consummation of the applicants’ marriage; and (3) the focus of the
applicants’ emails to one another.
[22]
With
regard to the temporary visa applications, the Board found that they revealed
the following “significant discrepancies” between the evidence as presented at
the hearing and as presented in the applications:
1.
The May
2008 temporary visa application described the female applicant as having worked
in the United Arab Emirates for about 6 months (from November 2003 to April
2004) as a “statistician” for an “accounting” business, but both applicants
testified to the Board that she had worked in a restaurant.
2.
The May
2008 temporary visa application states that the applicant intended to visit the
male applicant’s sister, while the applicants’ testimony revealed that the
intention was to visit the male applicant’s father, but they felt that the visa
would be more likely to be granted if they said otherwise.
3.
The May
2008 temporary visa application includes a letter signed by the female
applicant that appears to refer to the female applicant’s intention to marry a
former boyfriend. At paragraph 7, the Board found that the female applicant’s
explanation for this letter—that her friend helped her to write it and that she
did not look at it before signing—was not credible, because (1) the female
applicant’s language training, which was sufficient to allow her to communicate
with the male applicant, had all been completed by that time, and (2) the
numerous references to a wedding and a boyfriend in the letter would allow even
a “cursory” review by someone with “a limited knowledge of English” to discover
its alleged inaccuracies. The Board concluded as follows:
On
all of the evidence before me, I conclude that the applicant was aware of the
contents of this letter and signed it in an effort to obtain a temporary
visitor visa to Canada, through false
representations.
4.
The
applicants both testified that they had decided to marry at least by November
2008. But in the female applicant’s March 2009 visa application, she did not
mention the male applicant. Moreover, the male applicant’s sister was the only
person who submitted a letter in support of the visa. The Board concluded that
the applicants had not provided the real reason for this omission in their
testimony before it:
¶11. …
On the whole of the evidence before me, I conclude that the appellant and the
applicant made a conscious decision not to mention the appellant, in the
temporary visitor application in March 2009 and not to mention any intention to
get married. The appellant has, in essence, acknowledged that omitting this
pertinent information was designed to induce immigration authorities to issue a
visa, without having the opportunity to consider the withheld information.
5.
Overall,
the Board concluded that the applicants’ credibility was severely tarnished by
these facts:
¶12. The
manner in which the appellant, the applicant and the appellant’s sister
conducted themselves in relation to these temporary visa applications
undermines their credibility, specifically in relation to attempts to obtain a
visa for the applicant and each person was willing to falsify, withhold and
“nuance” the information provided to the visa office to achieve this objective.
[23]
With
regard to the consummation of the marriage, the Board found that the fact that
the applicants had not consummated their marriage was a relevant consideration,
and found that the explanations for the lack of consummation were not credible.
[24]
The
applicants testified that in the area where the female applicant lives, and
based on her family attitudes, the female applicant would be stigmatized if she
married someone and then he left her to return to Canada. They stated
that they were waiting to have their traditional wedding for the time when the
two could live together continually. The male applicant’s father, who had spent
more time in the region than the male applicant, testified to confirm this
understanding of attitudes to marriage. The Board noted, however, that there
was no expert evidence tendered regarding marriage traditions of the female
applicant’s home region.
[25]
The
Board found that even if traditions in the female applicants’ region were as
described, that did not explain why the applicants’ own relationship had
followed such a traditional trajectory. The Board found that the female
applicant’s life was not traditional in many ways:
¶23. There
is no expert evidence before me regarding marriage customs in the Tianjin region of China. I accept that the applicant is from a
village and that the village is likely more traditional than a city setting.
The applicant’s life has been far from a traditional, village one. She studied
English in Malta and has had two trips to UAE,
one to work in a restaurant, the second just as a holiday visit to friends,
which is far from what a traditional village person would have experienced. She
has had considerable contact with the appellant and his father and communicates
frequently with the appellant by email and in English and demonstrates a
sophisticated understanding of the visa applicant process, in relation to Canada. The applicant testified that
“on average” married couples in her area will live together continually after
the marriage. Yet, the experession “on average” affords the possibility fo the
exception to the average situation and certainly her circumstance is
exceptional. The appellant has not shown that she would be substantially
stigmatized by following through with the traditional marriage to a person from
another country and thus being separated for a period of time from her husband
while his sponsorship of her is being processed. …
[26]
The
Board recognized that the jurisprudence is clear that consummation of a
marriage is not in itself an indication that the marriage is not genuine or was
entered into primarily to acquire any status or privilege under the Act. At
paragraphs 17 to 21, the Board considered many of the cases submitted by
counsel for the applicant in favour of this position. The Board found, however,
that none of those cases prevented the Board from considering the consummation of
the applicants’ marriage as one factor in its consideration of their marriage:
¶18. Sexual relations between husband
and wife are but one indicator of the genuineness of a marriage, not a
precondition to a finding of genuineness and like all other indicators, the
degree or existence of one factor does not preclude the finding that a marriage
is genuine.
…
¶20. I accept that how exactly a
marriage will manifest itself, varies from culture to culture and even within
one culture depending on the personalities of the individuals involved.
However, the nature of interpersonal relations between spouses, including the
existence or not of sexual relations is a factor to be considered in
determining whether a marriage is genuine.
[27]
In
this case, the Board found that the applicants were, in fact, waiting for the
female applicant to obtain a visa before they would truly be married.
¶22. It is unusual for a couple to
marry and not consummate their marriage. Indeed, the applicant acknowledged
that it is a rarity in her region for husbands and wives not to marry and then
live together. It is evidence from what the appellant and the applicant told
the visa officer that they only intended to have the traditional wedding
ceremony after the applicant obtained her visa. According to the appellant, the
applicant was the first person to tell him that she could not have sexual
relations with him until there was both a traditional wedding ceremony and she
could live with him, in essence until she was sponsored to Canada. …
[28]
Moreover,
the Board found that the applicants should not have been prevented from living
together, because the male applicant could have moved to China. Indeed, the
Board recognized that the male applicant had testified that he would do that
should the female applicant fail to obtain a visa to Canada:
¶23. …According to the testimony
before me, the appellant intends to travel to China in March 2011, regardless
of the outcome of these proceedings and if the applicant is not granted a visa
he will live with her in China, while reapplying. According
to the appellant he has clear title to his home, which is worth a substantial
amount of money. Given that he has been unemployed for the past two years, the
option of living for a significant time in China with the applicant, was available to
him. …
[29]
As
a result of these factors, the Board held that it was not satisfied that the
marriage had been entered into in good faith:
¶23. … On the whole of the evidence
before me, the fact that the appellant and the applicant have not celebrated
their marriage in the traditional fashion and consummated their marriage
undermines both the claim that the marriage is genuine and that it was not primarily
entered into in order to acquire any status or privilege under the Act.
[30]
Finally,
the Board stated that the applicants’ credibility was undermined by their
history of “false information presented to the visa office, in relation to the
temporary visa applications” and so the Board could not rely purely on their
testimony of their love in order to find good faith:
¶24. …Given the appellant’s
involvement with false information presented to the visa office, in relation to
the temporary visa applications, the appellant has not exhibited a degree of
credibility that permits a conclusion that he is genuinely committed to this
marriage. I simply do not know if he is head over heals in love, believing
everything the applicant tells him, or whether he is involved in yet another
fraudulent visa application. The applicant is far from the shy, traditional
village woman that she has been portrayed as. She has extensively studied,
worked and travelled for pleasure abroad. She has over three years of post
secondary education and works as a chemistry lab technician.
[31]
In
the result, the Board concluded that the applicants had failed to meet their
burden of proof:
¶25. Considering the
misrepresentations in the temporary visa applications, the lack of credible
explanations for non-consummation of the marriage, the fact that the emails are
so focussed on immigration to Canada and credibility concerns in relation to
both the appellant and the applicant, the appellant has not shown, on the
balance of probabilities, either that the marriage was genuine or that it was
not entered into primarily to acquire any status or privilege under the Act
and the appeal is dismissed.
LEGISLATION
[32]
Regulation
117(1)(a) of the Regulations defines which foreign nationals may be considered
members of the spouse or common-law partner in Canada class:
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117. (1) A
foreign national is a member of the family class if, with respect to a
sponsor, the foreign national is
(a) the sponsor's spouse, common-law partner
or conjugal partner;
…
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117. (1) Appartiennent à la catégorie du regroupement familial
du fait de la relation qu’ils ont avec le répondant les étrangers
suivants :
a) son
époux, conjoint de fait ou partenaire conjugal;
…
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[33]
Section
4 of the Regulations
states that a foreign national will not be considered a spouse if the marriage
was not genuine or was entered into primarily for the purpose of acquiring
immigration status:
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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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ISSUES
[34]
The
applicants raise the following issues in their submissions:
1.
Whether
the Board made an unreasonable credibility assessment and improperly analyzed
the evidence before it?
2.
Whether
the Board erred by ignoring corroborating evidence that supported a finding
that the marriage was genuine?
3.
Whether
the Board erred by considering the application under the new Regulations.
STANDARD OF REVIEW
[35]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of (deference) to be accorded
with regard to a particular category of question”: see also Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, per
Justice Binnie at paragraph 53.
[36]
Questions
of natural justice and the duty to act fairly are questions of law to be
determined on the standard of correctness: Kozak v. Canada (Minister of Citizenship and
Immigration),
2006 FCA 124, at paragraph 44; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190, at paras. 55 and 90; and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R.
339 at paragraph 43. However, a breach that was purely technical or resulted in
no substantial wrong or miscarriage of justice, or where the result would not
differ upon reconsideration, will not invalidate the decision: Khosa at
paragraph 43, Yassine v. Canada (Minister of Employment & Immigration),
[1994] F.C.J. No. 949 (Fed. C.A.), Gale v. Canada (Treasury
Board),
2004 FCA 13.
[37]
Questions
of credibility and of the genuineness of a marriage are questions of fact to be
determined on a standard of reasonableness: see, for example, my decisions in Akinmayowa
v. Canada (Citizenship and Immigration), 2011 FC 171, at paragraph
18, and Yadav v. Canada (Minister of Citizenship
& Immigration),
2010 FC 140, at paragraph 50, and the other decisions cited therein.
[38]
In
reviewing the Board's decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, supra, at paragraph 47; Khosa, supra,
at paragraph 59.
ANALYSIS
Issue No. 1: Did the Board make an
unreasonable credibility assessment and improperly analyze the evidence before
it?
[39]
The
applicants submit that the Board erred by failing to make clear or reasonable
credibility findings. The applicants submit that the Board’s reasons do not
reveal what evidence the Board was accepting versus rejecting as not credible.
Furthermore, the applicants submit that where the Board did make credibility
findings, these failed to consider all of the evidence. In particular, the
applicants submit that the Board made the following erroneous credibility
determinations:
1.
The Board
found that the letter attached to the first visa application undermined the
female applicant’s credibility because it referred to the female applicant
being married to a boyfriend. The applicants submit that the Board ought to
have considered the female applicant’s explanation that a friend prepared the
letter and that she did not look it over closely.
2.
The Board
found that the fact that the second visa application did not mention the male
applicant undermined the credibility of both applicants. The applicants submit
that the Board’s conclusion that the male applicant’s explanation was “spur of
the moment” was contradicted by the male applicant’s sisters statutory
declaration, which contained the same explanation—namely, that the male
applicant was seen as her travelling companion and not a “destination.”
3.
The Board
similarly failed to consider the applicants’ explanation as to why they had not
mentioned the marriage in the second visa application—namely, because a Member
of Parliament had so advised.
4.
The Board
rejected the explanations given by the applicants and the male applicant’s
father regarding the non-consummation of the marriage. The Board should not
have required expert evidence beyond that tendered by the applicants and the
male applicant’s father. The Board ought to have positively assessed the
applicants’ evidence in this regard because they were candid about it.
5.
The Board
states in its conclusion that it also finds the emails between the applicants
to be focussed on immigration. This is not supported by the evidence.
[40]
The
respondent submits that the Board’s findings were reasonable and the applicants
are merely asking this Court to reweigh evidence.
[41]
The
Court agrees with the respondent. The Board made clear credibility findings
against the applicants. The Board held that the applicants had failed to
provide explanations that satisfied it regarding its concerns in their
application. The Board specifically considered each of the items impugned by
the applicants. With regard to the female applicant’s explanation for the
letter accompanying her first visa application, the Board found that her
English was good enough at that time for her to have read over the letter, and
that the letter was simple enough that even a cursory knowledge of English
would have highlighted its false claims regarding a boyfriend and marriage. The
Board considered the applicants’ and the male applicant’s sister’s explanation
as to why they did not include the male applicant in the second visa
application. The Board stated that they had themselves admitted that they
omitted his mention because they thought their application would be more likely
to succeed if they did so. This was an admitted misrepresentation by omission.
The Board was reasonable in finding that their credibility was therefore
undermined. The Board also considered the evidence regarding non-consummation
of the marriage, but found that the explanations were not credible because the
female applicant is not a typical traditional village woman, and because the
male applicant is able to live with the female applicant in China. This
conclusion was reasonably open to the Board. The applicants were married in a
civil ceremony, were 40 and 35 years old respectively, and were travelling and
living together. It was reasonably open for the Board to find their explanation
for non-consummation not credible.
[42]
The
Board does not deal with the emails between the applicants in any detail. While
the applicants have demonstrated that there is a lengthy correspondence between
the applicants and that much of it does not relate to immigration matters, the
Board was reasonable in finding that many of the most probative emails do
include immigration concerns. For example, the Board quotes the emails that the
applicants testified constitute their decision to marry, and finds that these
emails indicate that marriage is contingent upon the female applicant’s
successful visa application.
Issue No. 2: Whether the Board erred
by ignoring corroborating evidence that supported a finding that the marriage
was genuine?
[43]
The
applicants submit that the Board erred by failing to consider corroborating
evidence provided by the applicants regarding the good faith of their marriage.
In particular, the applicants state that the following evidence was not
considered in the Board’s decision:
1.
Live
testimony from the male applicant’s parents regarding the good faith of
the applicants’ marriage. The Board heard testimony from both parents who
stated that they had seen the couple together and were certain that the
marriage was genuine. The male applicant’s mother also testified as to the
preparations that her son was making in anticipation of the arrival of the
female applicant, and submitted into evidence numerous emails between herself
and the female applicant. Finally, the parents, upon being questioned on the
point by the Board, specifically affirmed that they did not believe that their
daughter-in-law is only interested in marriage as a means to come to Canada,
explaining that she had never seemed to want to immigrate, but clearly wanted
to be with their son;
2.
A letter
from Sun Li, the female applicant’s cousin, dated February 27, 2010, in
which the cousin affirms that based upon her observations of the couple while
they were in China, for example at their marriage dinner, and based upon her
observations of her cousin’s preparations, she believes that their marriage is
genuine;
3.
A letter
from Gao Kai, an English teacher at the middle school in Tianjin where the male applicant’s
father had worked. The letter explains Mr. Gao’s relationship with the male
applicant’s father, describes how Mr. Gao knows both applicants, and expressed
Mr. Gao’s hope that they “will soon realize their dreams too and live together
happily for ever.”;
4.
Photographs
of the applicants together; and
5.
A statutory
declaration from the male applicant’s younger sister, dated September 9,
2010, in which she explains why the temporary visa applications were completed
by her in the manner in which they were.
[44]
The
applicants submit that the Board erred by focusing only upon the problems that
it found with the two visitor’s visa applications rather than focusing on the
large amount of evidence before it regarding the good faith marriage between
the applicants.
[45]
The
respondent submits that the Board is presumed to have considered all of the
evidence, and that its reasons are clearly supported by the evidence that it
considered. The respondent submits that the applicant is merely contesting the
weight given to the evidence by the Board.
[46]
The
Court agrees with the respondent that the Board need not mention every piece of
evidence, but need only refer to those pieces of evidence that are relevant,
either in support of or contrary to its decision. In this case, the Board
stated that it had before it the testimony of the male applicant’s parents, as
well as the additional documentary disclosure provided by the applicants.
[47]
The
applicants have provided this Court with a series of cases in which the
relevancy of the testimony of family members is affirmed, where appropriate. In
those cases, however, the Board refused to hear the family members’ testimony
at all. In this case, the Board allowed the testimony of all witnesses put
forward by the applicants. The Board specifically referred to the male
applicant’s father’s evidence regarding marriage customs in Tianjin.
[48]
Nevertheless,
the Board concluded that the marriage was not genuine. While the Board did not
expressly reject the testimony from family members and the teacher in China that the
marriage was genuine, the Court can clearly infer such rejection from the
Board’s reasons. The Board found that the marriage was not genuine because the
applicants, including the male applicant’s younger sister, had been willing to
evade the truth in previous visa applications for the female applicant, and
because of the applicants’ own testimony regarding their marriage with respect
to emails and failure to consummate. The evidence referred to by the applicants
refutes neither of these conclusions.
[49]
Similarly,
the letters from the female applicant’s cousin and from Gao Kai, and the
pictures of the applicants together, do not undermine the reasonableness of the
Board’s decision. The Board accepted the applicants’ story regarding how they
had met, how often they had visited one another, and their correspondence with
one another. The Board found, however, that this relationship was one that was
not a genuine marriage and was entered into primarily to attain a benefit or
privilege under the Act. The applicants have not pointed to any evidence that
the Board overlooked that speaks to this finding.
Issue No. 3: Did the Board err
by considering the application under the new Regulations?
[50]
The
Board stated that it was considering the applicants’ claim under the new
section 4 of the Regulations – a section that had been amended between the time
of the applicants’ application and the Board hearing.
[51]
As
described above, the section as it existed at the time of the applicants’
application provided a conjunctive test for bad faith in a marriage:
4. For the purposes of these Regulations, a foreign
national shall not be considered a spouse, a common-law partner, a conjugal
partner or an adopted child of a person if the marriage, common-law
partnership, conjugal partnership or adoption is not genuine and was entered
into primarily for the purpose of acquiring any status or privilege under the
Act.
[52]
In
contrast, the section as it existed at the time of the Board hearing provided a
disjunctive test for bad faith in a marriage:
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.
[53]
The
Board stated that because Board hearings are de novo appeals as opposed
to a review the new Regulations should apply.
[54]
In
this case, the Board found that the applicants failed to satisfy the Board that
their marriage was genuine or that their marriage had not been entered into
primarily for the purpose of acquiring status in Canada.
Accordingly, this issue is only relevant if this application for judicial
review is allowed and referred back to another panel of the Board for
redetermination. Since the Court has concluded the Board’s decision in this
case was reasonably open to the Board, this application will be dismissed.
Accordingly, this issue is not relevant in this application.
CONCLUSION
[55]
For
these reasons, the Court concludes that the Board’s decision in this case was
reasonably open to it and this application for judicial review must be
dismissed.
CERTIFIED QUESTION
[56]
Both
parties advised the Court that this case does not raise a serious question of general
importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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