Date: 20110407
Docket: IMM-3796-10
Citation: 2011 FC 432
Ottawa, Ontario, April 7, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
|
|
GUO QING ZHENG
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application by Guo Qing Zheng, made pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of a
decision made by the Immigration Appeal Division (IAD) of the Immigration and
Refugee Board, dated June 7, 2010, whereby the IAD dismissed an
appeal from a decision of a visa officer refusing a sponsored application for
permanent residence submitted by the Applicant’s wife. The IAD determined that
the Applicant had not demonstrated that his marriage was genuine or that it was
not entered into primarily for the purposes of enabling his wife to acquire
status in Canada.
I. Background
A. Factual
Background
[2]
The
Applicant is originally from the People’s Republic of China (China), but has been
living in Canada since 1995 and has
permanent resident status here. His wife, Ms. Qui Yan Huang, lives in China and has no status in Canada. Both the Applicant and
Ms. Huang were previously married.
[3]
The
Applicant married his former wife in December of 1986. They had three children
together: a daughter (born February 12, 1987) and two sons (born June 22, 1988 and
April 8, 1990). One of the Applicant’s sons was born with a mental disability.
In 1995, the Applicant came to Canada and sought refugee protection. He was unsuccessful, but
remained in the country nevertheless. His former wife successfully filed a
refugee claim in 2002 and, as a result, the Applicant became a permanent resident
of Canada in August of 2004. By
September of 2004, the Applicant was separated from his wife and, on November
3, 2005, they were divorced.
[4]
The
Applicant’s current wife, Ms. Huang, was married to her former husband in
April of 1990. Their union produced a daughter (born November 13,
1987) and a son (born February 22, 1990). Ms. Huang’s former husband
left China for the United
States in
1998. The two were officially divorced via an intermediary on January
31, 2005.
[5]
In
2005, the Applicant went to visit his parents in China. On March 6, 2005, while attending church
service, a mutual friend introduced him to Ms. Huang. They visited with each
other until the Applicant returned to Canada on April 1, 2005. After the Applicant’s return
to Canada, he kept in contact
with Ms. Huang by telephone. In February of 2006, the Applicant visited Ms.
Huang in China for a week, and on
March 2, 2006, he proposed to her over the phone. She accepted. The Applicant
arrived in China on May 9, 2006 and the
two were married on May 22, 2006. The Applicant returned to Canada by himself on June 10,
2006.
[6]
Ms.
Huang filed an application for permanent residence in Canada, in the family class,
with the Hong Kong visa office in July of 2006. She indicated in her
application that both of her children would accompany her to Canada. The Applicant
submitted the necessary forms for sponsorship.
[7]
By
two letters dated April 4, 2007, Ms. Huang was informed that her application
for a permanent resident visa was denied under subsection 11(1) of the IRPA.
The visa officer provided two reasons for the refusal: 1) because the officer
was not satisfied that Ms. Huang’s marriage was genuine and primarily entered
into for a reason other than gaining admission into Canada (thus, Ms. Huang
did not meet the requirements of subsection 12(1) of the IRPA by virtue of
section 4 of the Immigration and Refugee Protection Regulations (IRPR)),
and 2) because Ms. Huang had submitted “fraudulent letters in support of her
application” and was, thus, inadmissible pursuant to paragraph 40(1)(a) of the
IRPA. The Applicant filed a Notice of Appeal, appealing the visa officer’s
decision to the IAD, on June 18, 2007.
[8]
Since
the visa officer’s refusal, the Applicant has visited his wife in China on three occasions:
November 14, 2007 to December 14, 2007, June 15, 2008 to September 11, 2008,
and March 21, 2009 to May 5, 2009.
[9]
In
May of 2008, the Applicant moved back in with his former wife. The Applicant
explained at the IAD hearing that his landlord had asked him to move out because
his son’s outbursts and seizures were disrupting the neighbours. As a result,
he indicated that he had decided to move in with (but still live separately
from) his ex-wife as a tenant, so that they could both share the responsibility
of caring for their disabled son.
B. Impugned
Decision
[10]
The
IAD began its decision by indicating that, after consulting the expert reports,
it appeared unlikely that Ms. Huang had submitted fraudulent documentation in
support of her application for permanent residence. As such, contrary to the
visa officer’s determination, the IAD concluded that Ms. Huang was not
inadmissible pursuant to paragraph 40(1)(a) of the IRPA.
[11]
However,
the IAD decided to dismiss the appeal, nonetheless, on the basis that the Applicant
had not demonstrated, on a balance of probabilities, that his marriage was not
one described in section 4 of the IRPR – i.e. that his marriage was genuine or
was not entered into primarily for the purpose of acquiring any status or
privilege under the IRPA. The IAD came to this conclusion after making a number
of observations.
[12]
First,
the IAD expressed concern with regards to the timing of the couple’s
introduction on March 6, 2005. The IAD found it to be “odd” that the Applicant
would be introduced to his current wife at church while he was still
technically married to his former wife. It also found it to be “odd” that he
would have been interested in starting another relationship “without a
breathing space” between it and his 20-year marriage which was in the process
of winding down.
[13]
Second,
the IAD expressed concern over the circumstances surrounding the proposal. It
indicated that the two had spent “merely a month’s time in each other’s
presence” when the Applicant proposed. Further, it expressed concern over the fact
that Ms. Huang had not met the Applicant’s children prior to agreeing to marry
him. The IAD thought that this was specifically problematic with respect to the
Applicant’s disabled son. Further, it indicated concern that, at the time of
the proposal, the Applicant’s children had not been introduced to Ms. Huang’s
children so that they could determine if they would all “successfully blend
into one family.”
[14]
Third,
the IAD noted that there was “a pull factor” for Ms. Huang to come to Canada: her brother, sister,
and the father of her children live in the United States.
[15]
Fourth,
the IAD noted that the Applicant “never had any intention to live in China with [Ms. Huang].”
In this regard, it noted the Applicant’s testimony that the “environment,
safety, air, human rights” and education were better in Canada than in China
and it also noted that Ms. Huang had testified that she heard from the Applicant
that everything in Canada was better than in China.
[16]
Given
the above, the IAD concluded that, despite certain other evidence - telephone
bills, written correspondence and proof of money transfers - the fundamental
basis of the Applicant’s marriage was not believable.
II. Issue
[17]
This
application raises only one issue:
a) Was
the IAD’s determination as to the bona fides of the Applicant’s marriage
unreasonable?
III. Standard
of Review
[18]
Determining
the bona fides of a marriage for the purposes of section 4 of the IRPR
is a question of mixed law and fact as it involves applying the facts of
the case to the requirements set out in the regulations. As such, the
appropriate standard of review is reasonableness (Provost v Canada (Minister
of Citizenship and Immigration), 2009 FC 1310, 360 FTR 287 at para 23; Das v Canada (Minister of
Citizenship and Immigration), 2009 FC 189, 79 Imm LR (3d) 134 at para
15. As stated by my colleague Justice Michel Shore
in Ma v Canada (Minister of
Citizenship and Immigration), 2010 FC 509, 368 FTR 116 at para 32:
[32] The
Court is cognizant of its place within the Canadian immigration system in cases
such as this. It is established law that an appeal before the IAD is an appeal
de novo... Therefore, the Applicant must convince the IAD, not this Court, that
the marriage is genuine or was not entered into primarily for the purpose of
gaining status under the [IRPA]. This Court's jurisdiction is relegated to that
of review and it is not to tamper with the IAD's discretion if that discretion
was reasonably exercised.
[19]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190 at para 47, described the reasonableness standard as being “concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.”
IV. Analysis
A. Was the IAD’s
Determination as to the Bona Fides of the Applicant’s Marriage Unreasonable?
[20]
Subsection
12(1) of the IRPA indicates that a foreign national may be selected as a member
of the family class on the basis of their relationship as the spouse of a
Canadian citizen or permanent resident. However, section 4 of the IRPR outlines
the conditions under which a foreign national will not be considered a spouse.
At the time the IAD rendered its decision in June of 2010, section 4 read
as follows:
|
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.
|
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.
|
[21]
As
the IAD rightly pointed out in its reasons, the Applicant had the burden of
proving, on a balance of probabilities, either that his relationship to Ms.
Huang was genuine, or that it was not entered into primarily for the purpose of
acquiring any status or privilege under the IRPA. That is to say, in order for
his marriage to Ms. Huang to fall outside the scope of the section 4 exclusion,
he was required to demonstrate that one of the two conditions set out in
section 4 was not satisfied (Das, above at para 19; Ouk v Canada
(Minister of Citizenship and Immigration), 2007 FC 891, 316 FTR 15 at para
12).
[22]
The
Applicant faults the IAD, in part, for not arriving at a reasonable conclusion
as to the genuineness of his marriage based on the factors set out in Khera
v Canada (Minister of Citizenship and Immigration), 2007 FC 632, 158 ACWS
(3d) 813. Although Justice Luc Martineau, in Khera, did make reference
to certain factors used by the IAD in that case, he did so for the purposes of
indicating that they were all factors that the “IAD was allowed to consider”.
He did not do so for the purposes of setting out a test. He indicated, at
paragraph 10:
[…]
Indeed, the IAD was allowed to consider, and considered in its decision,
the length of the parties' prior relationship before their arranged marriage,
their age difference, their former marital or civil status, their respective
financial situation and employment, their family background, their knowledge of
one another's histories (including the applicant's daughters' ages and general
situation), their language, their respective interests, the fact that the
sponsoree's mother, two of his brothers, as well as aunts and cousins were
living in British Columbia, and the fact that the sponsoree had tried to come
to Canada before. […]
[Emphasis
added]
[23]
In
fact, this Court has noted on a number of occasions that no specific test or
set of criteria has been established for determining whether a marriage is
genuine or not for the purposes of section 4 of the IRPR (Ouk, above at
para 13; Khan v Canada (Minister of Citizenship and Immigration), 2006
FC 1490, 154 ACWS (3d) 458). As such, the IAD can not be faulted for
considering a somewhat different set of criteria in the context of the current
case. However, it should be noted, as the Respondent points out, that a number
of criteria considered by the IAD in this case were, in fact, criteria
referenced by the panel in Khera, above: the length of the relationship
prior to marriage, former marital status, family backgrounds, and Ms. Huang’s
family connections to Canada (or the US, in this case).
[24]
The
Applicant further argues that the IAD’s concern over a lack of “breathing
space” between the end of his former marriage and the beginning of his
relationship with Ms. Huang was unreasonable. The Applicant claims that
the IAD ignored his testimonial evidence regarding the fact that he and
his former wife had had a strained relationship for some time prior to their
separation and that, in any event, they had separated without the prospect of
reconciliation in September of 2004, some 6 months prior to his being
introduced to Ms. Huang. Moreover, the Applicant argues that “each individual
is different” and the fact that he was willing to meet someone for the purpose
of “getting to know her” 6 months after separating from his former wife was not
a reasonable basis to doubt the bona fides of his current marriage.
[25]
I do
not find that the IAD ignored the Applicant’s testimonial evidence regarding
the breakdown of his prior marriage. On the contrary, at paragraph 8 of its
reasons, the IAD specifically acknowledged that the Applicant had separated
from his ex-wife in September of 2004. The jurisprudence is clear that the
timing of a relationship can be a relevant consideration when making a
determination as to the applicability of section 4 of the IRPR (Chertyuk v
Canada (Minister of Citizenship and Immigration), 2008 FC 870, 168 ACWS
(3d) 1063 at para 31; Sharma v Canada (Minister of Citizenship and
Immigration), 2009 FC 1131 at para 17; Lin v Canada (Minister of
Citizenship and Immigration), 2010 FC 659 at para 7). In this case, I find
nothing unreasonable about the IAD’s belief that it was “odd” that the Applicant
would have been interested in starting a relationship so quickly after
separating from his former wife given that that the marriage to his former wife
had lasted 20 years, and given that they were not yet, at that point, divorced.
While it would likely have been unreasonable, on this basis alone, to reject
the bona fides of the Applicant’s marriage, this was only one factor
considered by the IAD.
[26]
With
respect to the IAD’s concern over the fact that Ms. Huang and her children had
not met the Applicant’s children prior to the couple’s engagement, the Applicant
argues that because of the love that he and Ms. Huang shared, there was no
reason for them to think that blending the two families would present any
problems that they would be unable to overcome. This was especially so, he
submits, in light of the fact that there were no young children involved. With
respect to the concerns regarding Ms. Huang not meeting his disabled son prior
to the engagement, the Applicant emphasizes his evidence that Ms. Huang was
told about his son prior to the proposal, and the fact that she, “was willing
to take on [his] handicapped son [was] not only reasonable but expected,” given
their love for each other.
[27]
The
IAD acted reasonably in considering the circumstances of the Applicant’s
relationship with Ms. Huang at the time of the proposal. I do not find that it
was unreasonable for the IAD to have expressed concern over the fact that Ms.
Huang agreed to marry the Applicant when neither she nor her children had met any
of his children. Although it is true that, at the time of the proposal, the Applicant’s
children were not young (they were 15, 17, and 19), one of the Applicant’s sons
would, nonetheless, continue to be dependent on the Applicant (and, presumably,
Ms. Huang) as a result of his disability. The IAD’s concern in this regard is
particularly understandable given its finding that, as of the date of the
proposal, the Applicant and Ms. Huang, themselves, had only spent “a month’s
time in each other’s presence.”
[28]
The
Applicant further submits that the IAD’s finding that he never had the
intention to live in China with Ms. Huang was
contrary to the evidence. He argues that his evidence was, in fact, that if all
appeals were to fail, he would think about returning to China.
[29]
It
is true that during the IAD hearing on February 1, 2010, the Applicant did
eventually indicate that he might move to China if all of his appeals failed. However, upon
reviewing the transcript of the hearing, I do not find that the IAD made a reviewable
error in arriving at the conclusion that the Applicant, “never had any
intention to live in China with [Ms. Huang].” It
seems clear enough from the exchange on February 1 that the Applicant’s
intention was always for Ms. Huang to come to Canada. The relevant portion
of the hearing transcript reads:
Q:
…Now if this appeal is not successful, if your wife doesn’t get to come to Canada, what are you going to do?
A:
I will keep appeal.
Q:
I guess living in China is not a possibility for you?
A:
I have children here in Canada attending school, and also I have
mentally challenged kids that need to be taken care of. I apply my wife to come
to Canada to reunite with me is a very normal,
reasonable request. Why my request not allowed ---
Q:
I’m the one asking questions here. Just listen to the question and answer the
question.
A:
Sorry.
Q:
So if your wife doesn’t get to come to Canada and you’re obviously not willing
to move to China, how is this relationship going to work?
A:
I will keep appealing.
Q:
Well, you can only appeal to a point. Eventually all appeals will come to an
end. Then what?
A:
If the appeals come to an end, I have no choice, I have to go back to China.
[30]
The
Applicant was also questioned about the possibility of moving to China during the previous IAD
hearing, held on June 25, 2009. During that hearing, the Applicant indicated
that he, “only [wanted] to sponsor [his] wife to come to Canada.” The exchange, during
that hearing, was as follows:
Q:
Yeah. Was there ever any possibility that you would move to China to live with your wife?
…
A:
I don’t want that.
Q:
Pardon?
A:
I don’t want to have this result.
Q:
Why?
A:
I only want to sponsor my wife to come to Canada.
Q:
But why was there never any discussion of you going there, why was there never
any discussion of you moving to China?
A:
Because in Canada the environment ---
Q:
Pardon, sorry?
A:
Because in Canada the environment, and about, you know,
the very safety here, and the air here and the human rights here and other
things also is better in Canada than in China. And also regarding the kind of
education, environment for the children is better here. It’s better in Canada than in China.
Given the above, it cannot be said that the
IAD’s finding that the Applicant never had the “intention” to live in China with his wife was
contrary to the evidence at all. I find that it was a reasonable determination
of fact which was open to the IAD to make, based on the evidence before it.
[31]
The
onus was on the Applicant to establish either that his marriage was genuine or
that it was not entered into primarily to acquire a status or privilege under
the IRPA. I agree with the Respondent that it was not unreasonable, given the
evidence, for the IAD to conclude that the Applicant had not discharged that
onus. It is clear from the IAD’s reasons, and from the hearing transcripts,
that the IAD considered the evidence submitted by the Applicant in support of
the bona fides of his marriage – the pictures, the phone bills, the
written correspondence and the proof of money transfers. Given its various
concerns, the IAD found that this evidence was insufficient to find that the Applicant
had discharged his burden with respect to section 4 of the IRPR.
[32]
Although
this Court may have arrived at a different conclusion, it is not this Court’s
role to re-weigh the evidence. The decision reached by the IAD was open to it
and accordingly cannot be set aside. As such, this application for judicial
review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is
that:
1. The application for judicial review
is dismissed.
2. There is no question of general
importance to certify.
“ D. G. Near ”
Email this Content