Date: 20070417
Docket: IMM-2819-06
Citation: 2007 FC 403
Ottawa,
Ontario, the 17th
day of April 2007
Present:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
JEAN-STÉPHANE
LEROUX
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
Introduction
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision dismissing
the applicant’s appeal to the Immigration Appeal Division (IAD) of the
Immigration and Refugee Board.
Facts
[2]
The
applicant in this proceeding alleges that the applicant for permanent residence,
a 26-year-old Moroccan citizen, is his conjugal partner. It is in this capacity
that he sponsored the latter’s application for permanent residence, which was
filed in Rabat, Morocco, on July 16, 2004.
[3]
The applicant works as a travel agent and met
the applicant for permanent residence in Agadir during a business trip in
January 2003. They saw each other again on February 1, 2003, and spent one night
together.
[4]
In May 2003, the applicant returned to Agadir,
where he spent two weeks with the applicant for permanent residence in a hotel.
He returned in November 2003 and spent two weeks with the applicant for
permanent residence, again at a hotel. From February 2003, they stayed in
contact by mail, Internet and telephone.
[5]
Considering that the applicant for permanent
residence’s chances of obtaining a visitor visa were too slim, the applicant
decided to sponsor an application for permanent residence for the latter.
Accordingly, the applicant for permanent residence filed such an application in
Rabat, Morocco, on July 16, 2004.
[6]
On January 14, 2005, an immigration officer in Rabat concluded that the applicant for
permanent residence was excluded from the family class under section 4 of the Immigration
and Refugee Protection Regulations (Regulations). According to the
immigration officer, the applicant for permanent residence’s relationship with
the applicant [translation] “was
not genuine and was entered into primarily for the
purpose of acquiring a status or privilege under the Act”.
[7]
The applicant appealed to the IAD, and a hearing
de novo was held in February 2006.
The IAD
decision
[8]
In dismissing the appeal, the IAD concluded in
its decision dated May 9, 2006,
that “the appellant has failed to establish, on the
preponderance of the evidence, that his relationship with the applicant is a
conjugal relationship within the meaning of section 2 of the Regulations” and reaffirmed the immigration officer’s opinion that the
relationship was not genuine.
[9]
The IAD noted that the applicant for permanent
residence was unable to mention the common interests he shared with the
applicant. It also noted “it was when they learned that it would be impossible
for the applicant [for permanent residence] to obtain a visitor’s visa that
they thought of sponsorship as a conjugal partner”.
[10]
The IAD noted that during the one-year period
preceding the filing of the application for permanent residence, which it
considered to be “crucial to the
definition of a conjugal relationship”, that is, from July 2003 to July 2004,
the two persons spent only two weeks together, in a hotel in Morocco. In addition, the IAD noted that during this period:
… the relationship between the appellant and the applicant was at its
lowest, to the point where the correspondence between the two of them dwindled
and reflected some serious tensions between them. Furthermore, in general, the
vast majority of e-mails came from the appellant and reflected his feelings for
the applicant, while the content of the applicant’s e-mails related mainly to
permanent residence in Canada.
Legislation
[11]
Subsection 12(1) of the Act explains the basis
for determining whether a foreign national may be selected as a member of the
family class:
|
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.
|
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.
|
[12]
Subsection 13(1) of the Act states the
following:
|
13. (1) A
Canadian citizen or permanent resident may, subject to the regulations,
sponsor a foreign national who is a member of the family class.
|
13. (1)
Tout citoyen canadien et tout résident permanent peuvent, sous réserve des
règlements, parrainer l’étranger de la catégorie « regroupement
familial ».
|
[13]
Under section 4 of the Regulations, in order to qualify
for the family class, the relationship between a foreign national and his or
her sponsor must be genuine and not solely for the purpose of acquiring a status
or privilege under the Act:
|
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.
|
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.
|
[14]
The expression “conjugal partner” is defined as
follows in section 2 of the Regulations:
|
2.… [I]n relation to a sponsor, a foreign
national residing outside Canada who is in a conjugal relationship with the sponsor and has been
in that relationship for a period of at least one year.
|
2. À l’égard
du répondant, l’étranger résidant à l’extérieur du Canada qui entretient une
relation conjugale avec lui depuis au moins un an.
|
[15]
Paragraph 121(a) of the Regulations specifies
that the expression “a period of at least one year” in section 2 means from the
date of the filing of the application for permanent residence in Canada:
|
The requirements with respect to a person
who is a member of the family class or a family member of a member of the
family class who makes an application under Division 6 of Part 5 are the
following:
(a) the person is a family member of the applicant or of the
sponsor both at the time the application is made and, without taking into
account whether the person has attained 22 years of age, at the time of the
determination of the application
|
Les exigences applicables à l’égard de la
personne appartenant à la catégorie du regroupement familial ou des membres
de sa famille qui présentent une demande au titre de la section 6 de la
partie 5 sont les suivantes :
a) l’intéressé doit être un membre de la famille du demandeur
ou du répondant au moment où la demande est faite et, qu’il ait
atteint l’âge de vingt-deux ans ou non, au moment où il est statué sur la
demande
|
Applicable
standards of review
[16]
The standard of review
applicable to an IAD decision concerning a sponsorship application and based on
findings of fact is patent unreasonableness. (Canada (Minister
of Citizenship and Immigration) v. Navarrete, 2006 FC 691, [2006] F.C.J. No. 878 (QL) at
paragraph 17; Sanichara v. Canada (Minister
of Citizenship and Immigration),
2005
FC 1015, [2005]
F.C.J. No. 1272 (QL) at
paragraph 11; Jaglal v. Canada (Minister
of Citizenship and Immigration), 2003
FCT 685, [2003]
F.C.J. No. 885 at paragraph
13.
[17]
However, the
appropriate standard of review for questions of interpretation of law is
necessarily the standard of correctness (Canada (Minister
of Citizenship and Immigration) v. Savard,
2006 FC 109, [2006] F.C.J. No. 126 (QL)).
Analysis
[18]
First of all, I note that an appeal before the
IAD is a hearing de novo. Accordingly, the applicant and the applicant
for permanent residence must submit reliable and sufficient evidence showing
that their conjugal relationship is genuine and was not entered into primarily for
the purpose of acquiring any status or privilege under the Act (Froment v.
Canada (Minister of
Citizenship and Immigration), 2006 FC 1002, [2006] F.C.J. No. 1273 (QL) at
paragraph 19, citing Sanichara, supra, at paragraph 8; Mohamed
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 696, [2006] F.C.J. No. 881 (QL), at
paragraph 40; Morris v. Canada (Minister of Citizenship and Immigration), 2005 FC 369,
[2005] F.C.J. No. 469 (QL), at paragraph 5).
[19]
Contrary to the applicant’s submissions, I am of
the opinion that the consideration of the applicant for permanent residence’s
status as a conjugal partner under section 2 of the Regulations is an integral
part of the interpretation of section 4. If it is not established on a balance
of probabilities that such a relationship exists, it is not a genuine conjugal
relationship, such that it may be inferred that it was entered into primarily
for the purpose of acquiring a status or a privilege under the Act.
[20]
In this case, the ultra petita rule has
not been violated, because the matter of the existence and the nature of the
relationship between the applicant and the applicant for permanent residence is
inextricably woven into the determination of the application of section 4 of
the Regulations and is not a new issue before the tribunal. In addition, the
Minister clearly alleged the absence of a conjugal relationship and asked the
IAD to render a decision on this point. It did not rule beyond what was asked.
[21]
In its analysis, the IAD relied on M. v. H.,
[1999] 2 S.C.R. 3, which specifies seven non-exhaustive factors used to
identify a conjugal relationship, namely, shared shelter, sexual and personal
behaviour, services, social activities, economic support, children, and the
societal perception of the couple. In this judgment, the Supreme Court acknowledged
that the weight to be attached to the various factors may vary infinitely and
hold true for same-sex couples. Accordingly, courts must use a flexible approach
to determine whether a conjugal relationship exists, since relationships of
couples vary (M. v. H., supra, at paragraph 60).
[22]
The applicant submits that these criteria are
not appropriate in the case of a sexual relationship between two partners, one
of whom resides in a Muslim country where homosexuality is prohibited. Several
criteria are impossible to meet, for example, shelter, because they are obviously
separated by immigration restrictions; the presence of children, because it is
not possible to have children naturally (except through adoption); and the
societal perception of the couple, as homosexuality is prohibited and frowned
upon.
[23]
Although this Court has not rendered any
decision about the criteria to be used in an immigration context to determine whether
there is a conjugal relationship, several IAD decisions have recognized that
the criteria in M. v. H. were established for couples living in Canada
and must be modified for couples living in different countries (see: McCullough v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D.
No. 25, Schatens v. Canada (Minister
of Citizenship and Immigration), [2005] I.A.D.D. No. 330, Li v. Canada (Minister of Citizenship and Immigration), [2005] I.A.D.D. No. 3; Porteous
v. Canada (Minister of
Citizenship and Immigration), [2004] I.A.D.D. No. 560). I agree. It seems to
me to be important to keep in mind the restrictions which apply because the
partners live in different countries, some of which have different moral
standards and customs which may have an impact on the degree of tolerance for
conjugal relationships, especially where same-sex partnerss are concerned.
Nevertheless, the alleged conjugal relationship must have a sufficient number
of features of a marriage to show that it is more than just a means of entering
Canada as a member of the
family class.
[24]
In other words, as stated by the IAD in Porteous,
supra, at paragraph 26, a conjugal relationship is more than a precursor,
or plan, to share a conjugal relationship in future.
[25]
First of all, the applicant submits that the IAD
erred in law by mistakenly interpreting section 2 of the Regulations so as to
restrict its analysis to the one-year period preceding the filing of the
application for permanent residence. The applicant submits that this
interpretation of section 2 and paragraph 121(a) of the Regulations is a
reviewable error.
[26]
Section 2 of the Regulations clearly states that
the relationship must have existed “for a period of at least one
year” as acknowledged by Harrington J. at paragraph 17 in Savard, supra:
“[section 2] requires that the individuals have been in a conjugal relationship
for a period of at least one year at the time of filing of the sponsorship
application”. Neither the Regulations nor the Act restricts the examination
exclusively to the twelve-month period preceding the filing of the application.
Therefore, the IAD erred in law in its interpretation of section 2 of the Regulations
by restricting its analysis this way. I realize that in this case, considering
the very short period of cohabitation, this error has little impact, but
because the standard of correctness applies, the Court must rectify this error
in law.
[27]
With regard to the
application of criteria specific to the concept of conjugal partner, the
applicant submits that the IAD did not consider the special situation of a
homosexual relationship and the difficulties this relationship would entail for
a partner residing in a Muslim country where homosexuality is prohibited.
[28]
On this point, I am of
the opinion that it is impossible on reading the reasons to conclude that the
IAD applied the criteria in a flexible manner on the basis of all the relevant
facts in order to determine whether or not the relationship is genuine. The IAD
had to analyze the couple’s situation from the perspective of cohabitation. On
this point, the IAD mentioned that the appellant did not consider living in Morocco and preferred living in Montréal. “It was when they learned that it would be impossible for the
applicant [for permanent residence] to obtain a visitor’s visa that they
thought of sponsorship as a conjugal partner”. As the applicant notes, I am of
the opinion that this fact shows an intention to cohabit. It was not reasonable
for the tribunal to infer that this evidence showed that the relationship was
not genuine.
[29]
Moreover, the IAD
failed to analyze abundant relevant evidence proving the genuineness of the
relationship, including telephone conversations (which were significant because
the applicant for permanent residence had difficulty writing in French), MSN
correspondence, gifts, discussions, evenings, trips, the festivities they attended
together and the use of free Internet telephony.
[30]
All this evidence was
important, as it could assist the tribunal in assessing the nature of the
relationship and its genuineness in a non-traditional situation in which one
partner is a foreign national, where immigration rules prohibit extended visits
and where custom and traditions condemn the sexual orientation and, by the same
token, the relationship itself.
[31]
I realize that a
decision-maker is not required to mention in his or her reasons all the
evidence considered. However, as Evans J. stated in Cepeda-Gutierrez (Minister
of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), at paragraph
17:
… the more important the
evidence that is not mentioned specifically and analyzed in the agency's
reasons, the more willing a court may be to infer from the silence that the
agency made an erroneous finding of fact "without regard to the
evidence": Bains v. Canada (Minister of Employment and Immigration) (1993),
63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation
increases with the relevance of the evidence in question to the disputed facts.
Thus, a blanket statement that the agency has considered all the evidence will
not suffice when the evidence omitted from any discussion in the reasons
appears squarely to contradict the agency's finding of fact. Moreover, when the
agency refers in some detail to evidence supporting its finding, but is silent
on evidence pointing to the opposite conclusion, it may be easier to infer that
the agency overlooked the contradictory evidence when making its finding of
fact.
[32]
In this case, I am of the opinion that the
reasons for decision should have mentioned why this evidence was not
considered. I also note that the IAD drew a negative conclusion about the
genuineness of the relationship on the basis of a fact that had nothing to do
with the conduct of the two partners, that is, the personal interest of the applicant
for permanent residence’s elder brother. Because the behaviour of the brother
of the applicant for permanent residence had no impact on the couple’s
relationship, it was patently unreasonable for the IAD to take this irrelevant
evidence into consideration.
[33]
These errors are material to the outcome of this
case and warrant intervention by this Court.
[34]
For these reasons, the application for judicial
review is allowed. The decision of the IAD is set aside, and the matter is
referred to a differently constituted panel for rehearing and redetermination.
[35]
With regard to the applicant’s argument
concerning the decision-maker’s bias, it will not be necessary to deal with it,
since another decision-maker will hear this matter.
[36]
Counsel for the applicant suggested the
following questions for certification:
[translation]
1.
Is it appropriate to interpret the definition of
conjugal partners in accordance with the judgment in M. v. H. in the
context of the relationship of two same-sex partners residing in two different
countries, that is, a long-distance relationship?
2.
Is it appropriate to interpret the definition of
conjugal partners in accordance with the judgment in M. v. H. in the
context of the relationship of two same-sex partners residing in two different
countries, one of whom lives in a country that prohibits homosexuality?
3.
What are the criteria for the application of the
definition of conjugal partners within the meaning of section 2 of the IRPR?
4.
What are the criteria for the application of the
definition of conjugal partners within the meaning of section 2 of the IRPR
when one of the partners lives in a country that prohibits homosexuality?
[37]
Considering that in M. v. H. the Supreme
Court has already ruled on the generally accepted characteristics for determining
if a relationship is a conjugal one, and considering that such criteria must be
applied flexibly, it seems to me that each case must be decided on its own
facts. Accordingly, the decision-maker will have to consider these
characteristics in light of the individual situation. Therefore, the questions
proposed do not raise any questions of general importance. Accordingly, no
question will be certified.
JUDGMENT
The application for judicial review is allowed.
The decision of the IAD is set aside, and the matter is referred to a
differently constituted panel for rehearing and redetermination.
“Danièle
Tremblay-Lamer”
Certified
true translation
Michael
Palles
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