Date: 20110421
Docket: IMM-781-10
Citation: 2011
FC 488
Ottawa, Ontario, April 21, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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TROY ISAAC GLEN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP &
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act), for judicial review of a
decision by the Immigration Appeal Division (the Board), rendered on January
14, 2010, wherein the Board dismissed the applicant’s appeal of a negative
decision by a visa officer of an application for spousal sponsorship.
[2]
The
applicant requests an order quashing the Board’s decision and remitting the
matter back for reconsideration by a differently constituted panel.
Background
[3]
Troy
Isaac Glen (the applicant) is a thirty year old permanent resident of Canada, born in Guyana, who was sponsored
by his mother in 2000.
[4]
The
applicant began dating Allison Antoine, a citizen of Grenada, in 2002. After
discovering that she was pregnant, the applicant claims he proposed to her in
March 2004. She later gave birth to their daughter on July 30, 2004. The couple
married on June 4, 2005, ten days before Ms. Antoine was removed from the
country following a negative refugee claim.
[5]
The
applicant applied to sponsor his wife, but this application was denied on July
10, 2006.
[6]
While
waiting for an appeal before the Board, the applicant visited his wife in
December 2006 and again in December 2007. Following this visit, his wife gave
birth to another daughter on September 7, 2007. Since his wife has been in Grenada, the
applicant has regularly sent money to support her and their children.
[7]
The
applicant also has a child born on January 1, 2005, that was, he claims, the
result of a one-time sexual encounter with a neighbour. He has the support
amounts for this child garnished from his wages.
Procedural History
[8]
The
applicant has a long history of litigation concerning the sponsorship of his
wife.
[9]
In
July 10, 2006, a visa officer found that the couple’s marriage was not
genuine. The officer was concerned that Ms. Antoine lacked knowledge of her
sponsor. The officer also found problems with the date of the marriage, as the
couple married two weeks before Ms. Antoine was deported from Canada, the lack of
evidence on cohabitation and the unconvincing nature of the documentary
evidence supporting the relationship.
[10]
The
applicant’s appeal of the visa officer’s decision was heard by the Board on
April 15, 2008. The Board gave considerable weight to the fact that the couple
have two children together. However, it found that this was not sufficient to
discharge the onus of proving a genuine marriage. The Board found that the
marriage was not genuine and was entered into primarily to assist Ms. Antoine
in gaining status in Canada as a permanent resident. The Board
highlighted the lack of documentary evidence supporting the claim of
cohabitation, the evidence of communication between the couple was limited, the
applicant’s trips to Grenada were arranged only after the visa officer, during
Ms. Antoine’s interview, expressed concerns about the lack of visits, the
applicant displayed a lack of knowledge about Ms. Antoine, the money sent by
the applicant to Grenada “could be for any number of reasons”, there is nothing
in the immigration notes to show that the applicant attended any of Ms.
Antoine’s interviews with immigration officials prior to her removal and the
couple married only days before her removal from Canada. The Board was not
convinced the couple was in a committed and exclusive relationship because the
applicant fathered a child with another woman at a time when he was in a
relationship with Ms. Antoine.
[11]
The
applicant appealed the Board decision and Mr. Justice James O’Reilly allowed
the judicial review in Glen v Canada (Minister of
Citizenship and Immigration), 2009 FC 479. He held that the Board’s
treatment of the evidence was unsatisfactory and therefore unreasonable. Mr.
Justice O’Reilly found that the applicant attempted to address many of the
Board’s concerns in his testimony, but that these explanations were not
considered. Specifically, the applicant explained the lack of evidence of
cohabitation and the short duration of phone calls. He addressed the “one-night
stand” he had with another woman, which produced a child. Mr. Justice O’Reilly
found that the applicant had presented evidence supporting his continued
relationship with Ms. Antoine and that there was no basis for the Board to
suggest that the two relationships were the same. Mr. Justice O’Reilly
concluded that the failure to consider the applicant’s explanations for many of
the issues and to mischaracterize other evidence went to the reasonableness of
the decision. He found that while it was open to the Board to question the
cogency of the applicant’s explanations, it had a duty to at least consider
them.
The Board’s Decision
[12]
The
Board conducted a de novo appeal on January 14, 2010. Once again, the Board
found that the marriage was not bona fide and was entered into primarily
for the purpose of gaining status or privilege under the Act.
[13]
The
Board was concerned by the lack of additional evidence, other than the
testimony of the applicant, demonstrating a genuine relationship from June 2002
to June 2005. There are no pictures from this time and no witnesses were called
to confirm the relationship.
[14]
In
response to this concern, the applicant claimed that any pictures he had of
their time together in Canada were lost in the mail when he attempted to
send them to the visa office. Ms. Antoine, however, claimed that these photos
were lost in the move. The Board finds that this contradiction casts serious
doubt on the evidence that these two individuals had a long term relationship.
[15]
With
regards to the timing of the marriage, the Board questioned why the applicant
had waited so long before marrying Ms. Antoine. The applicant claims that he
proposed to Ms. Antoine in March 2004 and their daughter was born in July 2004,
but the couple did not marry until June 2005. The Board found that logistical
problems such as cost and location must not have been a problem, because they
were married in a small ceremony at Ms. Antoine’s apartment. Rather, the Board
concludes that the parties delayed marriage until it was certain that the
applicant would not be allowed to remain in Canada and as such,
the marriage was directly related to the immigration problems faced by Ms.
Antoine.
[16]
The
Board recognized that the applicant voluntarily sent money on a monthly basis
to Ms. Antoine, but the Board did not believe that this led, on its own, to a
finding of a bona fide marriage between the applicant and Ms. Antoine.
[17]
The
Board also took serious issue with the fact that the applicant fathered a child
with another woman shortly after the birth of his first child with Ms. Antoine.
He has support for this child garnished from his wages as result of a court
order. The applicant testified that this child was as a result of a “one-night
stand” and that Ms. Antoine was aware of the situation. The Board noted,
however, that he failed to present any other evidence, such as his wife’s
testimony or the court order for his garnished child support to support his
claims about the nature of the relationship with the other woman. The Board
found that the evidence presented by the applicant lacked credibility.
[18]
The
Board was also not convinced of the bona fide nature of the marriage
because of the applicant’s infrequent visits to see his wife and children in Grenada. At the time
of the Board hearing in November 2009, the last time he had visited Grenada was in
January 2008. The applicant testified that he has not gone back since then
because he could not afford to do so. The Board believed that if he was truly
in a bona fide relationship, “he would have done everything he possibly
could” to go back to Grenada.
[19]
Although
the applicant submitted lengthy phone records to demonstrate contact with his
wife, the Board was concerned that calls to Grenada usually
lasted only one minute. The applicant testified that he would normally call to
see if Ms. Antoine was home and then call her back using a calling card, which
was much cheaper. The applicant did not, however, provide evidence of these
calling cards or trace the numbers called using these cards. Therefore, the Board
found that the applicant failed to adequately explain why the calls were short
and why there was no other communication, other than the occasional letter or
card.
[20]
For
the Board, however, the “most telling evidence” was that in response to
Minister’s counsel’s questions, the applicant stated, “I would not have gotten
her [Ms. Antoine] pregnant if I did not love her.” Minister’s counsel pointed
out that he also got the mother of his child born in January 2005 pregnant as
well, but the applicant could not explain the difference between the two
relationships. The Board believed that this comment undermined the applicant’s
claims that the marriage was genuine.
[21]
Finally,
the Board notes that the applicant did not accompany Ms. Antoine to any of her
immigration interviews that immediately preceded her deportation. The Board
would expect that in a bona fide relationship, the applicant would have
been there to support his spouse.
[22]
The
Board concludes that although the fact that the couple has two children
together is important, this does not necessarily lead to the finding of a bona
fide marriage. The applicant did not fulfill his onus of providing enough
evidence to convince the tribunal.
Issues
[23]
The
issues are as follows:
1. What is the
applicable standard of review?
2. Did the Board
exhibit a reasonable apprehension of bias?
3. Did the Board err in
its finding that the applicant’s marriage was not genuine and was entered into
primarily for the purpose of acquiring status?
Applicant’s Written Submissions
[24]
The
applicant submits the Board exhibited a reasonable apprehension of bias and
failed to act impartially, have an open mind or provide a fair hearing by
accepting into evidence material submitted in support of the earlier judicial
review, including the transcript of the previous hearing. This was despite the
fact that the first Board decision was remitted back by the Federal Court due
to mischaracterizations of evidence.
[25]
The
applicant further submits that the Board erred on several grounds failing to
pay heed to Mr. Justice O’Reilly’s decision and failing to correct the errors
made in interpreting the evidence. As a result, the applicant submits that
there are so many errors in the decision that it affected the outcome.
[26]
Specifically,
the applicant is concerned about the Board’s findings pertaining to the
following issues.
[27]
The
applicant submits that the Board erred in finding that there was a lack of
evidence of a relationship from June 2002 to June 2005. The applicant included
a sworn affidavit explaining both the relationship and the reasons for the lack
of evidence of the relationship. The Board had a duty to analyze all the
evidence and explain why it prefers to rely on other materials. Further, the
fact that he did not call witnesses to confirm his relationship should not be
fatal to his appeal. The Board had no real reason for rejecting his
explanations in testimony and affidavits because there was no conflicting
evidence, the explanations were not implausible and they were consistent with
rationality and common sense.
[28]
The
applicant submits that he adequately explained the factors affecting the timing
of the marriage and it was an error to draw a negative inference from the
timing. He also explained the lack of evidence of communication between the
applicant and his wife.
[29]
The
applicant submits that the Board’s decision ignores the holding of Mr. Justice
O’Reilly that there was no basis for characterizing the money sent as anything
other than support for his wife and children.
[30]
The
applicant submits that the finding concerning his “one-night stand” ignores Mr.
Justice O’Reilly’s statements that there was no basis to suggest that the two
relationships were the same.
[31]
The
applicant further submits that it was unreasonable for the Board to find that
the applicant’s claims of financial restraints were not enough to justify the
infrequency of his visits to his wife and children.
[32]
The
applicant submits that the Board erroneously relied on documents concerning his
wife’s sister and not his wife in finding that the applicant did not support
his wife in the immigration process. The applicant’s affidavit makes it clear
that he understood his wife’s immigration status and the possibility of her removal
early in his relationship.
Respondent’s Submissions
[33]
The
respondent submits that the applicant failed to show that an informed person,
viewing the matter realistically and practically, would conclude that it is
more likely than not that the decision maker would not decide fairly, which is
the test set out by the Supreme Court for the reasonable apprehension of bias
(see Committee for Justice and Liberty et al v National Energy Board et al,
[1978] 1 S.C.R. 369 at 394). The applicant has not provided any concrete
examples to support his allegation that the Board was biased.
[34]
The
respondent submits that none of the errors alleged by the applicant give rise
to an arguable case for judicial review when analyzed either individually or as
a whole.
[35]
The
respondent submits that the Board did not ignore the applicant’s testimony
about his contact with his wife, but that there was no other evidence to
demonstrate their relationship before their marriage. Furthermore, the
applicant gave contradictory evidence and it was reasonable for the Board to
conclude that these contradictions undermined the applicant’s credibility on
this issue.
[36]
The
respondent submits that the Board’s concerns about the timing of the
applicant’s marriage are reasonable and were not adequately addressed by the
applicant.
[37]
The
respondent submits that the Board’s conclusion that the support is only for the
support of the children is reasonable, particularly considering that the
applicant is also paying child support to his child born to another woman.
[38]
The
respondent submits that it was reasonable for the Board to have concerns about
the applicant’s relationship with another woman with whom he had a child. The
applicant failed to provide evidence other than his own testimony and where
credibility is a concern, it is not unreasonable for the Board to require
corroborating evidence (see Ortiz Juarez v Canada (Minister of Citizenship
and Immigration), 2006 FC 288 at paragraph 7 and Adu v Canada (Minister of
Employment and Immigration), [1995] FCJ No 114).
[39]
The
respondent calculated that the applicant had sufficient funds to visit his wife
and children and it was reasonable for the Board to state that if there was a
genuine relationship, he would have done so.
[40]
Ultimately,
the respondent submits that it is up to the applicant to provide evidence that
he was communicating with his wife. His failure to provide convincing evidence
that explained the brevity of phone calls and lack of mail or e-mails meant
that the Board’s findings that this evidence indicated a lack of genuineness in
the relationship was reasonable.
[41]
In
conclusion, the respondent highlights that the Board is entitled to make
credibility findings based on contradictions in the evidence. The applicant’s
claim to a genuine marriage with his spouse was seriously undermined by the
contradictions and lack of corroborating evidence.
Analysis and Decision
[42]
Issue
1
What is the
appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[43]
Assessments
of applications for permanent residence under the family class and genuineness
of the marriage in particular, involve questions of mixed fact and law and the
established standard of review is reasonableness (see Natt v Canada (Minister of
Citizenship and Immigration), 2009 FC 238, 80 Imm LR (3d) 80 at paragraph 12).
[44]
I
wish to first deal with Issue 3.
[45]
Issue
3
Did the Board err in its
finding that the applicant’s marriage was not genuine and entered into
primarily for the purpose of acquiring status?
I have
reviewed the Board’s decision that the applicant’s and Ms. Antoine’s marriage
was not bona fide and was entered into primarily for the purpose of
getting status or privilege under the Act. I do not agree that the Board’s
decision was reasonable for the reasons that follow.
[46]
The
Board found that the applicant’s and Mrs. Antoine’s decision to get married
just before she was removed to Grenada led to the conclusion that the marriage
was because of Ms. Antoine’s immigration problems. However, the applicant
explained to the Board that he had proposed in March 2004 and that he and Ms.
Antoine had been preparing for the wedding since before she received her notice
of removal and her negative PRRA decision. I find the Board’s handling of this
explanation to be based on speculation that the delay could not have been about
financial issues because Ms. Antoine quit her job after she became pregnant.
However, the applicant testified throughout the hearing that he had financial
difficulties. Ms. Antoine’s leaving her job because of pregnancy does not imply
that the applicant did not have financial concerns.
[47]
Further,
the Board’s decision seemed to say that the support payments made by the
applicant to his family in Grenada did not necessarily
demonstrate a bona fide marriage because he also made Court ordered
support payments to the mother of his child through the “one night stand.” I do
not accept that these two situations can be analogized. For example, the
payments made to the applicant’s wife and children in Grenada were
voluntary. Further, I do not believe that the Court ordered support payments can
have any impact on the assessment of the bona fides of the applicant’s
marriage. As such, I find this aspect of the decision to be unreasonable.
[48]
I
do not accept that simply because the applicant had what he called a “one night
stand” would support a conclusion that the marriage was not valid. In my view,
on the factual basis of this case, the two relationships are not related.
[49]
As
to the Board’s concern that the applicant’s lack of visits to Grenada to see his
family somehow impacted on the bona fides of his marriage, I cannot
agree as the applicant explained that he could not afford to travel to Grenada because of
various expenses.
[50]
For
the above reasons, I find the Board’s decision unreasonable.
[51]
Because
of my finding on this issue, I need not deal with the remaining issue.
[52]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[53]
IT IS ORDERED
that the
application for judicial review is allowed and the matter is referred to a different
panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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12.(1) A foreign national may be selected
as a member of the family class on the basis of their relationship as the
spouse, common-law partner, child, parent or other prescribed family member
of a Canadian citizen or permanent resident.
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12.(1)
La sélection des étrangers de la catégorie « regroupement
familial » se fait en fonction de la relation qu’ils ont avec un citoyen
canadien ou un résident permanent, à titre d’époux, de conjoint de fait,
d’enfant ou de père ou mère ou à titre d’autre membre de la famille prévu par
règlement.
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Immigration and Refugee Protection
Regulations, SOR/2002-227
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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 foreign national has begun a new
conjugal relationship with that person after a previous marriage, common-law
partnership or conjugal partnership with that person was dissolved primarily
so that the foreign national, another foreign national or the sponsor could
acquire any status or privilege under the Act.
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;
(b) a
dependent child of the sponsor;
(c) the
sponsor's mother or father;
(d) the mother
or father of the sponsor's mother or father;
(e) [Repealed,
SOR/2005-61, s. 3]
(f) a person
whose parents are deceased, who is under 18 years of age, who is not a spouse
or common-law partner and who is
(i) a child of
the sponsor's mother or father,
(ii) a child
of a child of the sponsor's mother or father, or
(iii) a child
of the sponsor's child;
(g) a person
under 18 years of age whom the sponsor intends to adopt in Canada if
(i) the
adoption is not being entered into primarily for the purpose of acquiring any
status or privilege under the Act,
(ii) where the
adoption is an international adoption and the country in which the person
resides and their province of intended destination are parties to the Hague
Convention on Adoption, the competent authority of the country and of the
province have approved the adoption in writing as conforming to that
Convention, and
(iii) where
the adoption is an international adoption and either the country in which the
person resides or the person's province of intended destination is not a
party to the Hague Convention on Adoption
(A) the person
has been placed for adoption in the country in which they reside or is
otherwise legally available in that country for adoption and there is no
evidence that the intended adoption is for the purpose of child trafficking
or undue gain within the meaning of the Hague Convention on Adoption, and
(B) the
competent authority of the person's province of intended destination has
stated in writing that it does not object to the adoption; or
(h) a relative
of the sponsor, regardless of age, if the sponsor does not have a spouse, a
common-law partner, a conjugal partner, a child, a mother or father, a
relative who is a child of that mother or father, a relative who is a child
of a child of that mother or father, a mother or father of that mother or
father or a relative who is a child of the mother or father of that mother or
father
(i) who is a
Canadian citizen, Indian or permanent resident, or
(ii) whose
application to enter and remain in Canada as a permanent resident the sponsor
may otherwise sponsor.
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4.1
Pour l’application du présent règlement, l’étranger n’est pas considéré comme
l’époux, le conjoint de fait ou le partenaire conjugal d’une personne s’il
s’est engagé dans une nouvelle relation conjugale avec cette personne après
qu’un mariage antérieur ou une relation de conjoints de fait ou de
partenaires conjugaux antérieure avec celle-ci a été dissous principalement
en vue de lui permettre ou de permettre à un autre étranger ou au répondant
d’acquérir un statut ou un privilège aux termes de la Loi.
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;
b) ses enfants
à charge;
c) ses
parents;
d)
les parents de l’un ou l’autre de ses parents;
e) [Abrogé,
DORS/2005-61, art. 3]
f)
s’ils sont âgés de moins de dix-huit ans, si leurs parents sont décédés et
s’ils n’ont pas d’époux ni de conjoint de fait :
(i)
les enfants de l’un ou l’autre des parents du répondant,
(ii) les
enfants des enfants de l’un ou l’autre de ses parents,
(iii) les
enfants de ses enfants;
g)
la personne âgée de moins de dix-huit ans que le répondant veut adopter au
Canada, si les conditions suivantes sont réunies :
(i)
l’adoption ne vise pas principalement l’acquisition d’un statut ou d’un
privilège aux termes de la Loi,
(ii)
s’il s’agit d’une adoption internationale et que le pays où la personne
réside et la province de destination sont parties à la Convention sur
l’adoption, les autorités compétentes de ce pays et celles de cette province
ont déclaré, par écrit, qu’elles estimaient que l’adoption était conforme à
cette convention,
(iii)
s’il s’agit d’une adoption internationale et que le pays où la personne
réside ou la province de destination n’est pas partie à la Convention sur
l’adoption :
(A)
la personne a été placée en vue de son adoption dans ce pays ou peut par
ailleurs y être légitimement adoptée et rien n’indique que l’adoption
projetée a pour objet la traite de l’enfant ou la réalisation d’un gain indu
au sens de cette convention,
(B)
les autorités compétentes de la province de destination ont déclaré, par
écrit, qu’elles ne s’opposaient pas à l’adoption;
h)
tout autre membre de sa parenté, sans égard à son âge, à défaut d’époux, de
conjoint de fait, de partenaire conjugal, d’enfant, de parents, de membre de
sa famille qui est l’enfant de l’un ou l’autre de ses parents, de membre de
sa famille qui est l’enfant d’un enfant de l’un ou l’autre de ses parents, de
parents de l’un ou l’autre de ses parents ou de membre de sa famille qui est
l’enfant de l’un ou l’autre des parents de l’un ou l’autre de ses parents,
qui est :
(i)
soit un citoyen canadien, un Indien ou un résident permanent,
(ii)
soit une personne susceptible de voir sa demande d’entrée et de séjour au
Canada à titre de résident permanent par ailleurs parrainée par le répondant.
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