Date: 20110719
Docket: IMM-5071-10
Citation: 2011
FC 900
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, July 19,
2011
PRESENT: The Honourable
Mr. Justice Martineau
BETWEEN:
|
|
GASTON VÉZINA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application to review the lawfulness of a decision dated July 21,
2010, by the Immigration Appeal Division of the Immigration and Refugee Board
(the panel), dismissing the appeal brought by the applicant under subsection 63(1)
of the of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the Act), against the decision not to issue a permanent residence visa to his
spouse (the female applicant), a citizen of Cuba.
[2]
A
brief summary of the relevant facts is required to appreciate the nature of the
applicant’s appeal before the panel.
[3]
The
applicant is a Canadian citizen, born in Canada in 1937. He pled guilty in 2004
to sexual offences involving a minor; the acts in question go back more than 20
years and the victim is the niece of his former spouse. Having been sentenced
to a prison term of two years less a day followed by two years of probation,
the applicant was released on parole in 2005 and finished serving his sentence
in December 2006; the two years’ probation ended in December 2008.
[4]
About
a year before his conviction, the applicant, who often travelled to Cuba for
his former employer, met the female applicant in February 2003. The female
applicant, who was around 25 years old at the time, was married but was
granted a divorce in September 2003. That being said, since February 2003,
the applicant has made approximately 22 trips to Cuba and has given the female applicant
approximately $20,000 to help her financially. The applicant and the female
applicant, who had already entered into a “promesa” that they would see each
other exclusively, were finally married in Cuba in December 2006.
[5]
In
the meantime, the female applicant applied for a visitor’s visa in March 2004
to come to Canada, stating that the applicant was merely a friend. In July 2004,
she filed a second application, in which she stated that she had been in a
romantic relationship with the applicant since 2003. She admitted that she had
lied and was prevented from filing a new visa application for a period of two
years. Two other visa applications were later filed by the female applicant in
2006 and 2008, but they were also refused by the visa officer.
[6]
In
May 2007, the applicant, then 70 years old and with no intention of
settling in Cuba, made a first application to sponsor the female applicant. The
application was refused on the basis that subparagraph 133(1)(e)(i)
of the Immigration and Refugee Protection Regulations, S.O.R./2002-227
(the Regulations), prevents a person who has been convicted of a criminal
sexual offence from sponsoring another person.
[7]
However,
the applicant is always free to file a new sponsorship application on humanitarian
considerations. This is what he decided to do in March 2009, but this
second application was refused by the visa officer, this time because of the lack
of humanitarian considerations. In September 2009, the applicant filed an
appeal and submitted to the panel a file containing about 40 letters,
e-mails and faxes that were sent between him and the female applicant and
telephone bills listing long distance calls. He also testified at the hearing.
[8]
The
appeal was contested by the respondent, who initially thought that there were
insufficient humanitarian considerations, and, in April 2010, the panel
also agreed to add a second ground for refusal, namely that the marriage was
not genuine and was entered into primarily for the purpose of acquiring a
status in Canada. In July 2010, the panel dismissed the applicant’s appeal,
first because he failed to establish that, on a balance of probabilities, his
relationship with the female applicant was not covered under section 4 of
the Regulations, and second, because there were insufficient humanitarian considerations
to offset the ground for refusal under subparagraph 133(1)(e)(i) of
the Regulations.
[9]
Subsection 4(1)
of the Regulations reads as follows:
|
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.
|
[10]
This
application for judicial review is essentially based on the fact that the panel
decided that the female applicant is excluded from the family class. The
applicant alleges that the panel failed to rule on the genuineness of the
marriage and that the panel’s finding that the marriage was entered into
primarily for the purpose of acquiring a status is also unreasonable. The respondent
submits that the decision must be read as a whole, that the panel did not make
a reviewable error and that the panel’s findings are reasonable in all
respects.
[11]
It
must be remembered that under section 4 of the Regulations, the panel must
ascertain whether the marriage is genuine and whether it was entered into
primarily for the purpose of acquiring any status or privilege under the Act (Mohamed
v. Canada (Minister of Citizenship and Immigration), 2006 FC
696 at para. 35). In this regard, the panel must consider the
relationship in the present tense such that a relationship that may not have
been “genuine” at the outset may have become genuine. Conversely, the panel’s
negative finding as to the genuineness of the marriage creates a presumption
that the second branch of the test was met (Sharma v. Canada (Minister
of Citizenship and Immigration), 2009 FC 1131 at para. 18; Kaur
v. Canada (Minister of Citizenship and Immigration), 2010 FC 417
at paras. 15-17).
[12]
Whether
the issue is the genuineness of a marriage, the foreign national’s true
intentions or the existence of humanitarian considerations, the panel is in the
best position to decide these matters. In short, the questions of fact and questions
of mixed fact and law raised by the applicant in this case are reviewable on
the standard of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9
at para. 47; Bodine v. Canada (Minister of Citizenship and
Immigration), 2008 FC 848 at para. 17, and Singh v. Canada (Minister
of Citizenship and Immigration), 2010 FC 378 at para. 12).
[13]
For
the following reasons, this application for judicial review must be dismissed.
[14]
First,
the panel did not fail to rule on the two branches of the test. Although the
panel never uses the expression “non-genuine marriage” in its reasons for
decision, the Court finds that the phrase “lack of good faith”, used many times
by the panel, goes to the genuineness of the marriage. Second, the panel’s
general finding seems reasonable in light of the evidence in the record and the
applicable law, even though it may not be the only possible outcome.
[15]
In
a broad attack on the weight the panel gave to his testimony and the documents
he filed in support of his appeal, the applicant disputes all the panel’s unfavourable
findings on the good faith of their relationship and the genuineness of the
marriage, as well as on the true intentions of the female applicant.
[16]
The
applicant specifically criticized the panel for not having explicitly referred
in its reasons to the applicant’s passport, which shows the 22 visits he made
to Cuba. The panel did note the financial support of $17,143 that he sent to
the female applicant, but, according to the applicant, it did not give
sufficient weight to this evidence. The same criticism applies to the panel’s lack
of consideration of the written correspondence between the applicant and the
female applicant (except for the letter of December 30, 2007, which is
mentioned), the telephone charges of around $2,000 for calls to Cuba and the 40
or so photos showing the partners together from 2003 to 2009.
[17]
The
applicant also claims that he never intended to live in Cuba; it was therefore
normal that his wife should want to come to Canada. The applicant also claims
that the panel erred in finding that marriage was proposed between the parties
in 2003, two months after they met, but the “promesa” was made in 2004. The
applicant argues that he clearly testified that there is a difference between
the nature of a marriage proposal and a “promesa” in Spanish, which simply
indicates an exclusive relationship.
[18]
The
applicant also argues that it was unreasonable for the panel to draw a negative
conclusion from the female applicant’s reaction to the applicant’s crimes; the
applicant pointed out that she was sad and had asked him for an explanation. Finally,
the applicant admits that at the hearing, he did tell the panel that he would
let the female applicant go if his appeal was not allowed, but this merely
showed that he was discouraged and that he did not intend to be a burden if
they could not live together as a couple in Canada.
[19]
In
short, the applicant is today asking this Court to reassess all the evidence in
the record and to substitute itself for the panel. This is simply not our role
in assessing the lawfulness of the decision under review. The panel has sole
jurisdiction over the facts and it is presumed to have examined all the
evidence and the mere fact of not mentioning evidence in the reasons is not
sufficient to set aside the panel’s general finding and to refer the matter
back for reconsideration (Florea v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 598 (FCA)).
[20]
While
the panel seems to have erred in its reasons for decision by noting that the “promesa” had
been entered into only a few weeks after the spouses had met (and not a year
after), that error is not determinative in this case. Aside from the confusion over
dates, the panel was entitled to include the “promesa” as part of a
marriage proposal, since in the female applicant’s application, signed on March 10,
2009, she stated herself that it was a marriage proposal. The fact remains that
the marriage proposal was rushed and that even though the marriage did not take
place before December 2006, it is simply because the applicant was in
prison in 2004 and 2005.
[21]
The
onus was on the applicant to discharge his burden of proof under section 4
of the Regulations and to satisfy the panel that humanitarian considerations
existed to offset the fact, among others, that the applicant is not eligible to
be a sponsor under subparagraph 133(1)(e)(i) of the Regulations. The
panel gave appropriate consideration to all of the applicant’s testimony and
explanations and nevertheless rejected them by relying on the evidence in the
record and by providing reasons for its decision, which is sufficient in this
case.
[22]
Finally,
it also appears to the Court that the hearing was fair for the applicant. From
the beginning of the hearing, the applicant was advised by the panel that the
good faith of the marriage was at issue. If the applicant did not understand
the importance of having the female applicant testify by telephone at the time,
that was not the panel’s error. The intentions that the panel attributed to the
female applicant were determinative and the panel could reasonably find that
the main purpose of the marriage was to acquire a status in Canada.
[23]
For
the above-noted reasons, this application for judicial review must fail. At the
hearing, counsel agreed before the Court that no serious question of general
importance arises in this case.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that
1. The
application for judicial review is dismissed; and
2. No question
is certified.
“Luc Martineau”
Certified true
translation
Catherine Jones,
Translator
Email this Content