Date: 20110418
Docket: IMM-2432-10
Citation: 2011 FC 472
Toronto, Ontario, April 18,
2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Applicant
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and
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YVES FABIEN
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I.
Overview
[1]
Mr. Yves
Fabien, a Canadian citizen, sought to sponsor his spouse, Ms. Feta Delima, to
become a permanent resident of Canada. The couple married in Haiti in December 2006, having met a few
months earlier. A visa officer rejected Mr. Fabien’s application on the ground
that the marriage was not genuine. Mr. Fabien appealed that decision to the
Immigration Appeal Division (IAD) and succeeded.
[2]
The
Minister now seeks to overturn the IAD’s decision on the basis that it was
arrived at unfairly, and was unreasonable. The Minister submits that the IAD
erred by refusing to allow counsel to call Ms. Delima as a witness, and by
failing to take account of the evidence that the visa officer relied on in
concluding that the marriage was not genuine.
[3]
I cannot
conclude that the IAD acted unfairly. Counsel for the Minister simply failed to
pursue his wish to question Ms. Delima at the hearing. However, I agree that
the IAD’s decision was unreasonable in light of the vague and contradictory
evidence before it relating to the marriage. I must, therefore, allow this
application for judicial review.
[4]
The issues
are:
1.
Did the
IAD act unfairly?
2.
Was the
IAD’s decision unreasonable?
II. The Visa Officer’s Decision
[5]
The visa
officer found a number of circumstances that appeared inconsistent with a
genuine marriage between Mr. Fabien and Ms. Delima:
• little ongoing communication between
them;
• little
knowledge on Ms. Delima’s part about Mr. Fabien’s life – his job, salary,
social activities, financial arrangements, previous marriages, other family
members, etc.;
• contradictory
descriptions of the wedding reception and accounts of subsequent visits by Mr.
Fabien to Haiti;
• the
documentary evidence (letters and cards exchanged between them) appeared to
have been contrived to support the application.
[6]
Based on
this evidence, the visa officer concluded that the marriage was not genuine.
III. The IAD’s Decision
[7]
The IAD
set out some of the factors to be considered in deciding whether a couple’s
marriage is genuine:
• the
circumstances surrounding their meeting and the evolution of the relationship:
• the circumstances of their
engagement and marriage;
• their
behaviour before and after the wedding, including communication between them;
• the
involvement of the respective families in the engagement and marriage; and
• their
future plans.
[8]
The IAD
found Mr. Fabien’s testimony to be forthright and credible. Mr. Fabien had
recounted the circumstances when he first met Ms. Delima. They fell in love at
first sight; she then moved in with him. She lived in the house owned in Haiti until the earthquake in January 2010.
[9]
The IAD
accepted Mr. Fabien’s assertion that he had spent $3000 on the wedding, which
was followed by a reception attended by 45 people. It also found that Mr.
Fabien regularly sent money to Ms. Fabien and the couple communicated
frequently by telephone.
[10]
The IAD
was satisfied that Mr. Fabien had resolved the contradictions noted by the visa
officer and was aware of numerous details about his wife’s life in Haiti. It was persuaded that the marriage was
genuine and allowed Mr. Fabien’s appeal.
(1) Did the IAD Act Unfairly?
[11]
At the
hearing before the IAD, counsel for the Minister expressed his intention to
call Ms. Delima to testify by telephone. He asked Mr. Fabien if his spouse was
prepared to testify to explain the answers she had given to the visa officer.
Mr. Fabien said that she was ready and willing.
[12]
Counsel
went on to cross-examine Mr. Fabien. Nothing more was said about the question
of Ms. Delima’s testimony. At the end of his cross-examination, counsel simply
said he had no further questions and thanked the presiding member.
[13]
I can see
no basis for the Minister’s argument that the IAD refused to allow counsel to
call Ms. Delima. Counsel seemed to have abandoned the idea. He made no
objection to the IAD’s conduct of the hearing at the time.
(2) Was the IAD’s Decision
Reasonable?
[14]
Mr. Fabien
obviously impressed the IAD with his candour and sincerity. The IAD concluded
from his testimony that the gaps and contradictions noted by the visa officer
had been filled in and resolved.
[15]
However,
on a review of the transcript of the hearing before the IAD, I cannot find a
basis for the IAD’s conclusion.
[16]
Mr. Fabien
described the frequency of his telephone conversations with Ms. Delima but,
when asked, could say little or nothing about their content. I see no basis for
the IAD’s finding that Mr. Fabien was familiar with many details about his
wife’s life in Haiti. Further, the other gaps in
the couple’s knowledge noted by the visa officer remained.
[17]
With
respect to contradictions, these, too, persisted before the IAD. For example,
before the visa officer, Ms. Delima had stated that they had not had a wedding
reception. Mr. Fabien told the IAD that he had spent $3,000 on a reception for
45 people. Ms. Delima told the visa officer that Mr. Fabien’s last visit to Haiti was in August 2007. Mr. Fabien testified
before the IAD that he visited Haiti often, including in August
2008. Again, I cannot see a basis for the IAD’s conclusion that Mr. Fabien’s
testimony had cleared up these discrepancies.
[18]
Overall, I
find that the IAD’s decision was unreasonable; it was not a possible,
defensible outcome based on the law and the facts.
IV.
Conclusion
and Disposition
[19]
I cannot
find a basis for the Minister’s suggestion that the IAD acted unfairly.
However, based on the evidence before it, I must find that its conclusion -
that Mr. Fabien had provided adequate and persuasive testimony that resolved
the concerns noted by the visa officer – was unreasonable. Therefore, I must
allow this application for judicial review and order a new hearing before a
different panel of the IAD. Neither party proposed a question of general
importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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