Date: 20070629
Docket: IMM-6049-06
Citation: 2007 FC 685
Ottawa, Ontario, June 29, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Applicant
and
MARJORIE ELLEN MATHEW
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
Introduction
[1]
This
is a judicial review application by the Minister of Citizenship and Immigration
(the Minister) who seeks to set aside the decision of the Immigration Appeal
Division of the Immigration and Refugee Board of Canada (the tribunal)
rendered on October 25, 2006, allowing, pursuant to section 65 of the Immigration
and Refugee Protection Act, (the Act) the sponsorship appeal of Marjorie
Ellen Mathew (the appellant) from the decision of a visa officer in Nairobi,
Kenya, who denied, on March 18, 2005, her application to sponsor Gilbert
Kiriagoh Mathew Mogusuh (the applicant) for permanent residence to Canada, whom
she married in Kenya on April 30, 1999.
[2]
The
visa officer’s refusal was based on paragraph 40(1)(a) of the Act which
provides “…a foreign national is inadmissible for misrepresentation for
directly or indirectly misrepresenting or withholding material facts relating
to a relevant matter that induces or could induce an error on the
administration of the Act.”
[3]
On
appeal, counsel for the Minister added, with leave of the tribunal, a second
ground based on section 4 of the Immigration and Refugee Protection Regulations
(the Regulations) which provides no foreign national shall be considered a
spouse “if the marriage is not genuine or was entered into primarily for the
purpose of acquiring any status or privilege under this Act.”
[4]
Attached
as annex A to this judgment are sections 40, 65, 66 and 67 of the Act
and section 4 of the Regulations.
Background
[5]
Marjorie
Mathew, (the appellant) is a retired school teacher and is now 69 years of
age. She is a very religious person who has given time and money to help
others in Africa. She met
Mr. Mogusuh, who is now 35 years of age, in 1991 in Mombassa, Kenya, after she
had worked in Swaziland for 10
months with Canadian Crossroads International.
[6]
Mr.
Mogusuh at an early age was orphaned, raised by his grandmother and then by his
uncle. At the time he met the appellant he had achieved only a grade 10
education having dropped out of school when his aunt and uncle disagreed about
further paying his high school fees.
[7]
After
meeting Mr. Mogusuh, the appellant, whose husband, with whom she had 2
children, passed away in 1974, told him she wanted to sponsor him to finish
school. She sent him $500 dollars in January, 1992, and he went back to
school. She continued to provide for his education and they kept in touch by
letters and telephone. Ms. Mathew returned to Kenya in 1996 to see the
applicant after doing missionary work in Nairobi and that is
when they began to discuss marriage.
[8]
The
appellant returned to Kenya in 1998 and 1999. During the 1999 trip,
she decided she would accept his offer of marriage; they were married in the
office of the Justice of the Peace on April 30, 1999, with four friends present
and they held a small reception later. Mrs. Mathew came back to Canada a day or so
after the marriage but returned later that year to Kenya for her honeymoon then
returning back to Canada. She visited and cohabitated with Mr. Mogusuh
for between a month and three months every year since 1999, except for the year
2006 when she was undergoing treatment for cancer of the tongue.
[9]
After
the marriage she provided for his medical treatments, set him up in business
and purchased a rental property.
[10]
In
August of 1999, she applied to sponsor her spouse for a permanent resident visa
but that application was refused on medical grounds that Mr. Mogusuh was
afflicted both with HIV as well as drug-resistant tuberculosis. She was aware
of his HIV condition before she married him. An appeal from this decision was
filed but was subsequently withdrawn.
[11]
A
second sponsorship application was filed on January 28, 2004. The applicant
was interviewed by a visa officer on January 6, 2005. This application was
refused by the visa officer on grounds of intentional misrepresentation. The
Visa post had received an unsigned “poison pen” letter enclosing a photograph
depicting Mr. Mogusuh sitting beside a woman in a wedding dress signing a
paper. At his interview, he was challenged by the visa officer. In denying Mr.
Mogusuh’s application for permanent residence sponsored by Ms. Mathew, the visa
officer wrote:
“I reached this determination because at the time of our
interview on January 6, 2004, [sic] our office was in possession of a
photograph where you appeared to be engaged in a wedding ceremony with a
woman other than your spouse. When I showed you this photograph, you hesitated
for a long period and then explained that the photograph portrayed your brother’s
wedding at which you were a witness. You stated you could provide proof
that this and I told you I would give you an opportunity to do so prior to
rendering a decision on your case. On January 25, 2005 we received an
envelope of photos and other documentation from you. In this envelope you
provided a series of photos purportedly of your brother’s wedding. One of
the photos included was exactly the same as that shown to you at the time of
interview except that your head had been replaced by the head of another man.
The other photos in this series showed visible scan lines and problems of
lighting and perspective.
The misrepresentation or withholding of this/these material
fact(s) induced or could have induced errors in the administration of the Act
because if an officer had been satisfied that your relationship to ou sponsor
was genuine, you could have been incorrectly found to be a member of the family
class.
[12]
Mrs.
Mathew appealed the visa officer’s decision to the tribunal. She testified in
person, Mr. Mogusuh testified via video-link from Kenya. Her
daughter, Deborah, aged 44, testified in support of the appeal. They were
cross-examined by counsel to the Minister.
[13]
An
appeal before the tribunal in sponsorship cases is a hearing de novo and
additional evidence that was not before the visa officer may be taken into
account on appeal. The burden of proof, on a balance of probabilities, rests
with the appellant.
[14]
Before
the tribunal, counsel for the Minister stated “we have no doubt the marriage is
genuine in the eyes of the sponsor.” He focused on Mr. Mogusuh. He stated
from Mr. Mogusuh’s perspective, the marriage was a marriage of convenience and
his purpose was to gain admission into Canada as a
permanent resident.
[15]
After
hearing the witnesses, the tribunal asked for written argument; both counsel
complied. The Minister’s submissions were lengthy, covering 55 paragraphs over
27 pages. Mr. Mogusuh’s credibility was a central point in his representations.
The Tribunal’s Decision
[16]
The
material findings made by the tribunal were:
1.
While
acknowledging “it is with some difficulty that I try to determine who altered
the photos”, the tribunal found it was likely, upon being confronted by the
visa officer with the photos of his brother’s (cousin’s) wedding, Mr. Mogusuh,
“in order to protect himself from being wrongly accused, ordered the negatives
to be doctored.” It characterized his actions by stating “the doctored photos
were an unsophisticated attempt by the applicant to clear himself of being
wrongly accused of entering into a second marriage.”;
2.
She found
as a fact Mr. Mogusuh had not entered into a second marriage on August 30,
2002. For this determination, she relied upon a copy of the marriage
certificate of the cousin’s wedding where the applicant [Mr. Mogusuh] had
signed as a witness. The tribunal also based its determination on a letter
from the parents of the bride in that wedding who wrote their daughter was not
married to Mr. Mogusuh and is married to Mohamed Shaban. This determination
that Mr. Mogusuh did not marry a second time led the tribunal to state “there
must be some mischief being created by someone, perhaps the author of the
poison pen letter, in regards to the applicant.”;
3.
It held
there was in evidence a certified copy of an entry of the marriage between Mrs.
Mathew and Mr. Mogusuh. The tribunal mentioned the validity of the marriage,
which was prior in time to the “cousin’s” marriage, was not challenged by the
Minister’s counsel;
4.
The
tribunal described an avenue that was available to the appellant in this case
was the discretionary grounds for special relief she quoted from the Chirwa case,
Chirwa v. Canada (Minister of Citizenship and
Immigration) (1970)
4 I.AC. 388, delineating humanitarian and compassionate considerations as
“…taken as those facts, established by the evidence, which would excite in a
reasonable man in a civilized community a desire to relieve the misfortunes of
another…”. She added, “Further included are the interests of any child that
might be affected by the outcome of this appeal and any other consideration
raised at the hearing. The panel also considered the credibility of the
witnesses. It should be noted that not one of these factors is
determinative in itself but all of the circumstances are weighed in the context
of the issued before the panel.”
5.
While not
condoning Mr. Mogusuh’s misrepresentation to the immigration authorities she
stated “it seems what we have here is an intentional misrepresentation that
would not induce an error in the administration of the Act as I did not
find, on a balance of probabilities, that the applicant had entered into a
second marriage. [Emphasis mine]
6.
She found
“that there are humanitarian and compassionate considerations for allowing the
appeal in regards to the doctored photos. In particular, I find that the
parties have a genuine marriage, though unusual, for the following reasons.”
[Emphasis mine]. The tribunal then listed the following considerations for
coming to this conclusion:
• The Minster’s counsel agrees Mrs. Mathew is genuine in her
relationship with Mr. Mogusuh;
• There are documents in evidence showing Mrs. Mathew has
visited Mr. Mogusuh at least five times since the marriage and they have
cohabited each time, a fact which has not been challenged and is corroborated
by photos of them together;
• There is in evidence sufficient proof of written and
telephone contact between the parties for many years;
• Mrs. Mathew has changed her name, her name on her assets,
her will and Mr. Mogusuh and she have entered into a post-nuptial agreement
setting out their rights and obligations in regard to their marriage. The
tribunal had previously found this agreement, dated February 9, 2000, provided
most of her assets, which are considerable, will be passing to her children
upon her death;
• Mrs. Mathew has contributed substantial financial support
for Mr. Mogusuh’s living and his medication;
• While acknowledging there are large age and cultural
differences between them, Mrs. Mathew seems to have risen above these
differences and has become truly devoted to the applicant. There are letters in
evidence in support of their loving relationship and also from the appellant’s
children, from the appellant’s three sisters and brother, her 48-year-old niece
and the Pastor of her church. She added the applicant seems to be taken care
of by the appellant financially and emotionally, having been orphaned himself
and with little hope for the future working as a Coolie. These factors could
well offset disadvantages in their relationship due to the age and cultural
differences, she found.
• She referred to two letters in evidence from a business
associate of Mr. Mogusuh and from another person both of whom have personal
knowledge of the sixth wedding anniversary celebrations between the two,
finding the letter credible;
• Though the wedding ceremony between them was a civil one
and not attended by the appellant’s children she found “to be not a significant
factor in light of the age of the appellant and the fact that the wedding was
held in Kenya, far from her family. I am
of the opinion that the appellant herself felt that she might have difficulty
having her family accept that she married the applicant.”
Analysis
The
Minister’s Position
[17]
Counsel
for the Minister argued four points in this judicial review application.
[18]
First,
he argued the tribunal applied the wrong test under section 65 of the Act.
He states this section required a two-step sequential determination: the
tribunal first had to be satisfied Mr. Mogusuh is a member of the family class,
i.e., is the genuine spouse of Mrs. Mathew and, after having done that, then
proceed to determine whether there are sufficient humanitarian and
compassionate factors to warrant granting Mr. Mogusuh an exemption from any
applicable criteria or obligation under the Act. Essentially, he argued
the tribunal collapsed the issue of genuineness of the marriage with the
H&C factors by providing reasons regarding the bona fides of the
marriage as proof that H&C factors existed.
[19]
Second,
in the H&C context, counsel for the Minster further argued the tribunal
failed to consider an important factor- hardship to Mr. Mogusuh – relying upon
the Federal Court’s decision in Canada (MCI) v. Ibraheem (2006)
FC 1197 and the Overseas Processing Manual.
[20]
Third,
counsel for the Minister submits the tribunal did not have regard to all of the
evidence before it in coming to a finding regarding the issue of credibility.
He states in this case there are two allegations of misrepresentation and that
the tribunal failed to have regard to the second one which arises by
contrasting what he said to the visa officer and what he told the tribunal. He
submits at the interview Mr. Mogusuh told the visa officer he had never seen
the photograph and did not know the identity of the parties but, when
confronted, did admit he was the person in the photo. At the hearing, he
testified he never denied to the visa officer that it was him in the
photograph. Counsel for the Minister submits what he told the tribunal
directly contradicts the events of the interview as per the visa officer’s
CAIPS notes. He submits either Mr. Mogusuh is lying or the officer is. He
states if Mr. Mogusuh is lying, this constitutes a new and separate
misrepresentation and would seriously undermine his credibility. This was
pointed out to the tribunal in written argument but there is no mention of it
in the reasons of the tribunal. He submits the tribunal was obligated to
consider whether he had committed another misrepresentation as it was highly
relevant to his credibility which was already an issue. He concluded stating
the tribunal’s failure to consider this evidence regarding his credibility, regarding
whether he deliberately lied to the tribunal constitutes a reviewable error.
[21]
Fourth,
and finally, he submits the tribunal erred in fact in finding Mr. Mogusuh
credible, a determination which affects the finding that his marriage is bona
fide. He argues the tribunal ultimately found that, notwithstanding the
intentional misrepresentation, the marriage was bona fide. He submits
this finding, in the face of the evidence before the tribunal, is capricious
and patently unreasonable, submitting Mr. Mogusuh’s actions of deliberately
lying to the visa officer in stating that he had never seen the photograph
before and also tampering with the five photographs by replacing the head of
the man in the picture with that of someone else is extreme and ought to have
negatively affected his credibility. To find otherwise is capricious. The
ultimate finding that the marriage is bona fide is based on this flawed
finding of credibility, he says.
The Standard of Review
[22]
Applying
the wrong test or ignoring a relevant factor in the exercise of the discretion
are questions of law not within the tribunal’s expertise and are reviewable on
the standard of correctness, no deference being accorded.
[23]
The
jurisprudence of this Court is constant to the effect a tribunal’s
determination of credibility is a finding of fact reviewable on the basis
provided in section 18.1(4)(d), a finding made in a perverse or capricious
manner or without regard for the material before it. This ground for review is
analogous to the standard of review of patent unreasonableness which the
Minister concedes is the applicable standard.
Conclusions
[24]
After
reading the certified tribunal record including the hearing before the tribunal
and for the reasons expressed below, I conclude this judicial review
application must be allowed. But before expressing those reasons, I cite two
legal principles which I took into account in reaching this decision:
1. The reasons
of an administrative tribunal are not to be read and analysed microscopically.
As stated by Justice Laskin, as he then was, in Boulis v. Minister of
Manpower and Immigration [1974] S.C.R. 874 at 885 where he wrote “its
reasons are not to be read microscopically; it is enough if they show a grasp
of the issues that are raised by section 15(1)(b) and of the evidence addressed
to them, without detailed reference. The record is available as a check on the
Board’s conclusions.”
2. In Canadian
Union of Public Employees, Local 301, v. Montreal (City) [1997] 1
S.C.R. 793 at 844, Justice L’Heureux-Dubé on behalf of the Supreme Court of
Canada stated that Courts are not to re-visit the facts or weigh the evidence
of an administrative tribunal.
[25] Clearly section 65 of the Act
requires a two-step analysis. First, a determination must be made Mr. Mogusuh
is Mrs. Mathew’s spouse. The Minister put in issue the marriage was not
genuine from Mr. Mogusuh’s perspective. That issue had to be determined
first. My reading of the tribunal’s decision is that it was not. Rather, as
counsel for the Minster points out it was only at the H&C stage the
tribunal made a finding of genuineness. This conclusion is inevitable from the
decision itself where it stated “I find that there are humanitarian and
compassionate considerations for allowing the appeal in regards to the doctored
photos. In particular, I find that the parties have a genuine
marriage….” [Emphasis mine]
[26] Parliament’s intent is clear that
before waiving a breach of the Act (here misrepresentation) on H&C
factors, the marriage, if challenged, as it was here, had to be determined to
be genuine.
[27] In coming to this conclusion I do
not say that elements of a genuine marriage cannot inform H&C factors; it
is evident they can. On the other hand, factors leading to the genuineness of a
marriage cannot be a complete substitute for relevant H&C factors
justifying an override of an otherwise valid visa officer’s decision which is a
different purpose than the factors which test whether the marriage is genuine
or not. Support for this conclusion is that, in the Departmental Guidelines,
the factors for allowing an appeal on H&C considerations on a sponsorship
appeal are different than those which are used to test a genuine marriage.
Something more is required and that something more is not present here.
[28] I need not comment on the
Minister’s submission with respect to the tribunal having failed to take into
account the hardship factor except to say hardship is not mentioned as one of
the factors in the Overseas Manual (OP 21-Appeals) while it is a major
consideration for in-Canada applications on H&C grounds for an in-Canada
waiver of regulatory requirements which was the basis of the Federal Court’s
decision in Irimie v. Canada (2000) F.C.J. 1906.
[29] Second, the tribunal determined at
paragraph 21 of its reasons Mr. Mogusuh at the interview said “he at first did
not recognize himself in the photo.” However, as pointed out by the Minister’s
counsel, at the hearing, he denied having said to the visa officer the man in
the picture was not him. Without saying so the tribunal found Mr. Mogusuh to
have lied a second time but drew no impact from such misrepresentation either
in terms of his credibility or how it might affect the H&C factors.
[30] Third, I find the tribunal’s
credibility analysis defective. In fact, there was no credibility analysis but
only the statement “the panel also considered the credibility of the witnesses”
without more.
[31] The tribunal failed to come to
grips with the Minister’s case. These elements are identified in the written
representations submitted to the tribunal by the Minister’s counsel at the
hearing. They include:
• Why he only told Mrs.
Mathew in 1998 he was HIV positive;
• The plausibility of the circumstances of being obligated
to use negatives which produced “funny” photos and the plausibility of not
being able to provide unaltered photos of his cousin’s wedding which were in
the possession of the brother-in-law of the groom;
• The lack of corroborative evidence in many instances;
• The plausibility of meeting the author of the poison pen
letter, their attendance at a police station, yet the Canadian Embassy not
being advised of this fact;
• The rationale given for not advising the family before the
marriage ceremony took place – the cost of the phone call;
[32]
For these reasons, the tribunal’s decision cannot stand.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
this application for judicial review is allowed, the
tribunal’s decision is quashed and the matter is remitted to the Immigration
Appeal Division for re-determination by a different panel. No certified
question was proposed.
“François
Lemieux”
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