Date: 20110628
Docket: IMM-5641-10
Citation: 2011 FC 787
Ottawa, Ontario, June 28,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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FANNY ESCOBAR VALENCIA
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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 of a decision of the Immigration Appeal
Division (IAD) of the Immigration and Refugee Board, dated August 19, 2010,
wherein the Applicant’s appeal of a visa officer’s refusal to issue a permanent
resident visa to the Applicant’s husband was dismissed.
[2]
The
IAD found that the marriage was not genuine and was entered into primarily for
the purpose of acquiring status under the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA].
[3]
For
the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[4]
The
Applicant, Fanny Escobar Valencia, is a 58 year old woman
from Colombia. She came
to Canada and obtained
refugee protection in 2002. She is now a Canadian citizen.
[5]
The
Applicant married Raza Ilyas in August 2005. He is a 43 year old citizen of Pakistan. Mr. Raza
came to Canada in 2001
seeking refugee protection. He paid a smuggler $20,000 for passage to Canada. His claim
was denied in the summer of 2003. Prior to the decision of the Refugee
Protection Division, Mr. Raza met the Applicant in English as a Second Language
class in Mississauga. They
recount the development of their relationship as a natural progression from
coffee at Tim Horton’s and movies at the Square One shopping-mall, to the
decision that Mr. Raza would move into the Applicant’s apartment in December
2003.
[6]
After
Mr. Raza’s refugee claim was rejected, he applied for leave and judicial review
of that decision. The judicial review was dismissed in 2004. He applied for a
Pre-Removal Risk Assessment (PRRA) and submitted a Humanitarian and Compassionate
application.
[7]
Mr.
Raza proposed to the Applicant in May 2005, and they married in August of the
same year.
[8]
Mr.
Raza received a negative PRRA decision in December 2005. A departure order was
issued against him in January 2006 and he left Canada on January
17, 2006.
[9]
The
current application for judicial review stems from an application to sponsor
and undertaking for an out-of-Canada partner’s sponsorship submitted by the
Applicant in June 2006. In October 2007, Mr. Raza was interviewed by an
immigration officer at the Canadian High Commission in Pakistan.
[10]
The
immigration officer initially had concerns because educational certificates
submitted by Mr. Raza as part of his application appeared to be fraudulent.
They were later confirmed to be counterfeit documents. When Mr. Raza was
interviewed, he admitted only after repeated questioning that the documents
were forgeries. He was asked if the Applicant knew he had used forged
documents and he replied that she did not. The immigration officer developed
other concerns regarding the genuineness of the relationship between the
spouses over the course of the interview and brought them to the attention of
Mr. Raza. The officer had credibility concerns regarding the truthfulness of Mr.
Raza’s testimony, was concerned that there were serious incompatibilities in
age, culture and relationship between Mr. Raza and the Applicant and expressed
doubt over the lack of evidence of an on-going relationship between the
parties.
[11]
Based
on insufficient evidence that would indicate that the relationship was genuine,
the immigration officer determined that the marriage was not genuine and was
entered into primarily for the purpose of acquiring status under the IRPA. As
a result, Mr. Raza was not considered a spouse and was therefore not a member
of the family class. The immigration officer noted in the Computer Assisted
Immigration Processing System (CAIPS):
[…] the lack of apparent
interest in or knowledge of the sponsor is very strange and it appears the
obtention of Canadian status for the PA was the prime consideration behind the
marriage, as his other attempts, including paying to be smuggled into Canada in order to submit a refugee
claim in an attempt to obtain status had failed. PA could not provide a
suitable explanation as to why he found the SP to be a suitable partner and
evidence of interdependency to establish the relationship has not sufficiently
been provided.
Generally PA could not provide credible
responses at interview and the fact that he submitted fraudulent documentation
as part of his application and then lied about the submission of fraudulent
documents only further creates questions regarding his credibility […]
[12]
The
Applicant was informed of the decision via letter dated July 4, 2008. The
Applicant filed an appeal with the IAD on August 7, 2008. The dismissal of
that appeal is the subject of this application for judicial review.
B. Impugned
Decision
[13]
The
IAD determined that the marriage between the Applicant and Mr. Raza satisfied
both prongs of the test laid out in s 4 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations) – it was not
genuine, and was entered into primarily for the purpose of acquiring status.
The IAD considered the bona fides of the marriage and found several
negative factors that supported its conclusion: insufficient attempts to
combine their affairs; lack of knowledge of each other’s respective faith
practices; e-mail communications and cards that lack substance and are
primarily limited to immigration matters; and the lack of credibility of Mr.
Raza’s testimony with respect to his visa post interview. Additionally, the
IAD found that the timing of the marriage just prior to Mr. Raza’s removal
from Canada supported
the finding that the primary motive of the marriage was Mr. Raza’s
immigration status.
II. Issue
[14]
The
Applicant raises the following issue:
(a) Was the IAD’s decision
unreasonable?
III. Standard of Review
[15]
A
determination as to whether a relationship is genuine or entered into for the
purpose of obtaining status is largely factual in nature and is therefore
reviewable against the reasonableness standard (Kaur v Canada (Minister of
Citizenship and Immigration), 2010 FC 417 at para 14; Yadav v
Canada (Minister of Citizenship & Immigration), 2010 FC 140, 8 Admin LR
(5th) 86 at para 50; Chen v Canada (Minister of Citizenship
and Immigration), 2008 FC 1227, 75 Imm. L.R. (3d) 282 at para 8).
[16]
As
set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 47, reasonableness requires a consideration of the existence of
justification, transparency, and intelligibility within the decision-making
process. It is also concerned with whether the decision falls within a range of
acceptable outcomes that are defensible in respect of the facts and law.
IV. Argument and Analysis
A. Was
the IAD’s Decision Unreasonable?
[17]
Although
recently amended, at the time the decision was made, s 4 of the Regulations
contained a conjunctive test, requiring the impugned relationship to be both
not genuine and entered into primarily for the purpose of acquiring status (Donkor
v Canada (Minister of Citizenship and Immigration), 2006 FC 1089, 299 FTR
262). The section read:
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Bad faith
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.
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Mauvaise foi
4.
Pour l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait, le partenaire conjugal ou l’enfant
adoptif d’une personne si le mariage, la relation des conjoints de fait ou
des partenaires conjugaux ou l’adoption n’est pas authentique et vise principalement
l’acquisition d’un statut ou d’un privilège aux termes de la Loi.
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[18]
The
onus was on the Applicant to show either that her relationship with Mr. Raza
was genuine, or, that the marriage was not entered into primarily for the
purpose of obtaining status. The IAD was not satisfied that the Applicant
discharged this burden.
[19]
The
Applicant disagrees with the IAD’s decision and submits that the panel
misstated the facts and came to unreasonable conclusions.
[20]
For
example, the IAD determined that the timing of the marriage supported the
determination that the marriage was entered into for the purpose of acquiring
status, because the couple married shortly before Mr. Raza was issued with a
departure order. The Applicant argues, however, that the timing of the
marriage actually contradicts this finding. The couple met and started dating
in 2002. Mr. Raza’s refugee claim was not rejected until 2003. The couple
continued dating, and Mr. Raza proposed only in May 2005. The Applicant
suggests that had Mr. Raza entered into a relationship with the Applicant with
the goal of facilitating his immigration to Canada he would
have proposed much sooner. Additionally, the Applicant points out that the
Applicant could have applied to sponsor Mr. Raza as a common-law or conjugal
partner, and therefore the couple had nothing to gain, in terms of immigration
status, by choosing to marry each other. The Applicant argues that their
decision to marry is consistent with the normal progression of a relationship
and thus the determination that the marriage was entered into for immigration
purposes is not reasonable and not supported by the facts.
[21]
The
Applicant also disagrees with the IAD’s determination that the Applicant and
Mr. Raza lack basic knowledge of each other, and submits that the IAD misstated
the facts to come to the conclusion that they lack knowledge of each other’s
religious practices. While the IAD found that their testimonies diverged
significantly when recounting the other’s religious customs, the Applicant
suggests that the couple provided detailed testimony regarding the other
spouse’s religious habits, and that the IAD is being overly microscopic.
[22]
The
IAD also found that the e-mails contained in the record were created to bolster
the Applicant’s appeal which was filed in July 2008. The Applicant again
disagrees with this assessment, arguing that the e-mails do not follow a
logical back-and-forth between the couple because they only represent one third
of the couple’s communications, the complement being made up of text messages
and phone calls.
[23]
To
counter these submissions, the Respondent submits that as the determination
that the Applicant’s marriage is not bona fide is a credibility
determination, it must be afforded an extremely high level of deference. The
Respondent argues that the Applicant has failed to show that the decision was
unreasonable. The onus was on her to demonstrate that the intention behind the
marriage was not primarily directed towards acquiring status or privilege under
the IRPA, and she did not do so to the IAD’s satisfaction. The Respondent
takes the position that the Board’s factual findings were reasonably open to it
and ought not be disturbed by the Court.
[24]
Determining
whether a marriage is genuine, and assessing the true intentions of the parties
as they entered into that marriage is a difficult task fraught with many
potential pitfalls. As I review the record I am cognizant of the challenge
faced by the IAD in hearing such an appeal, and am mindful that as long as the
IAD draws inferences that are reasonably open to it based on the evidence, it
is not appropriate for the Court to interfere, even had I been tempted to come
to a contrary conclusion (Grewal v Canada (Minister of Citizenship and
Immigration), 2003 FC 960, 124 ACWS (3d) 1149 at para 9).
[25]
Where
there has been an oral hearing, and the IAD has had the advantage of hearing
the witnesses testify viva voce, the IAD’s credibility determinations
are entitled to even more deference. The IAD’s determination cannot be set
aside unless the explanations given are clearly irrational or unreasonable, and
the IAD’s decision must be interpreted as a whole (Singh v Canada (Minister of
Citizenship and Immigration), 2002 FCT 347, 113 ACWS (3d) 145 at para
18).
[26]
As
noted by the Respondent, the IAD found that both parties lacked the kind of
knowledge regarding their spouse that would be expected after a period of
cohabitation and marriage, including:
(1) The Applicant did
not know that her husband paid a smuggler to come to Canada until reading the record for the appeal;
(2) The Applicant stated that her
husband had a middle-school level of education when in fact he only attended
primary school;
(3) When Mr. Raza was interviewed
at the visa post he did not know the name of his wife’s employer, where her
bank account was or whether she had a bank account at all;
(4) The Applicant testified that
her husband prayed a minimum of four times a day and attended mosque, while he
initially testified that in Canada he did not pray too much, then stated he
prayed four or five times a day but only attended a mosque sometimes;
(5) The Applicant testified that
she went to church every Sunday, while Mr. Raza stated that she went to church
on Easter.
[27]
Although
the Applicant now attempts to offer alternate explanations for these
discrepancies, I find that reading the decision as a whole, it was reasonably
open to the IAD to draw a negative credibility inference from the testimony of
the Applicant and Mr. Raza.
[28]
For
example, the Applicant submits that the couple met in Canada long after
they had finished their education, and that the difference between primary
school and middle school is only two years. Thus, the IAD is being overly
microscopic in relying on that inconsistency. Mr. Raza claims that he was not
asked about his wife’s bank account or the name of her employer during his
interview at the High Commission, notwithstanding the officer’s CAIPS notes
recording the interview. The Applicant argues that the only person who ever
talked about going to church at Easter was the hearings officer. I reviewed
the transcript. Mr. Raza’s response to the question of “Did your wife ever go
to church while you and her were living together?” is recorded as, “She would
sometime <inaudible> Easter time she used to go” (Certified Tribunal
Record pg 522).
[29]
Though
somewhat plausible, the Applicant’s explanation for why she incorrectly
identified Mr. Raza’s highest level of education is not sufficient to raise a
reviewable error on the part of the IAD when the entire decision is read as a
whole. The IAD had other legitimate concerns regarding the bona fides
of the marriage that the Applicant has not convinced me were unfounded.
[30]
The
Applicant argues that the evidence supports their testimony that the Applicant
sends Mr. Raza money whenever he requires it. However, the IAD noted that the
only financial support corroborated by the submitted documents was several
hundred dollars sent in 2009 and $1000 in 2007. Furthermore, the
Applicant testified that their joint bank account contains no funds, because
she needed the money to spend on other things. The IAD noted that the only
evidence that indicated that the couple was combining their affairs was from
2005, the year they got married. This consisted of Mr. Raza naming the
Applicant as the beneficiary of his pension and benefits plan, and Mr. Raza’s
name appearing on an insurance quote. I agree with the Respondent that it was
reasonable for the IAD to conclude that, weighed against the entirety of the
evidence, these documents are insufficient to establish a genuine marriage.
[31]
The
last issue relates to the e-mails the couple exchanged in 2009. The IAD found
that the e-mails did not contain substantive content in support of a genuine
marriage, but rather often mentioned immigration and the creation of evidence
to bolster their immigration appeal filed in July 2008. The Applicant
disputes this assessment and in her submissions excerpts e-mail communications
between the spouses relating to the weather and each other’s families.
[32]
While
Mr. Raza often asks about the Applicant’s son, and there is discussion of the
weather and other menial affairs, it was reasonably open to the IAD to conclude
that, on a balance of probabilities, the documents did not sufficiently
establish the genuineness of the marriage. Though the exchange suggests that
the parties greatly miss each other’s physical presence, there are many
emphatic comments related to the need to provide evidence for the purpose of
the immigration
appeal. For instance, Mr. Raza in various
e-mails, wrote:
…if u don’t send me masgs and not to many
emails then how u proof our relationship to the immigration that we r together
even u don’t vist me since 3 years so we need stronge proof like phone bills
emails lots of masgs if u realy understand that… (CTR 169)
…and immigration need ur phone bills not
msgs in the phone they neen my number on ur bill ur emails and my emails my
phone bills also now I think only God can help me to get visa becoz he knows
only how much I miss u and how much I thought about u my God knows only u and
me… (CTR 174)
[33]
The
function of this Court on judicial review is not to replace the IAD’s reasoning
with something preferable to the Applicant, even if that alternate reasoning
has a plausible basis. The explanations given by the IAD are not unreasonable,
and the decision as a whole is justified, transparent and intelligible. Based
on the evidence before the IAD, it was not unreasonable to conclude that the
Applicant failed to establish that she and her husband were in a genuine
marriage that Mr. Raza had not entered into primarily for the purpose of acquiring
immigration status. The intervention of this Court is not warranted.
V. Conclusion
[34]
No
question to be certified was proposed and none arises.
[35]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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