Date: 20070907
Docket: IMM-865-07
Citation: 2007
FC 891
Ottawa, Ontario,
September 7, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
CHANTA
OUK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Chanta Ouk, a Canadian citizen, seeks
judicial review of a decision of an Immigration Appeal Division Panel Member,
dated February 5, 2007, dismissing an appeal from a Visa Officer’s denial of
sponsorship of Thorn Sambo, the applicant’s husband, for permanent residence to Canada.
[2]
Ms. Ouk
met Mr. Thorn on an extended trip to Cambodia
in 2001. They remained in contact by telephone when she returned to Canada. In early 2004, the couple
became engaged when Ms. Ouk’s parents travelled to Cambodia to meet Mr. Thorn and his family. Several
months later, Ms. Ouk and Mr. Thorn married in a ceremony in Cambodia. She then applied to sponsor
him to Canada as a member of the family
class pursuant to s. 13(1) of the Immigration and Refugee Protection Act
S.C. 2001, c.27.
[3]
In his Sponsored
Spouse Questionnaire, Mr. Thorn listed five siblings, with none in Canada. When the Visa Officer
contacted one of his brothers and that brother’s wife separately, they each
listed seven siblings. Mr. Thorn responded to this inconsistency by claiming
that they were confused. The Visa Officer denied the visa application, in part
on his finding that the inconsistency disclosed a contrived plan to bring the
family to Canada.
[4]
Ms. Ouk
appealed the Visa Officer’s decision to the Immigration Appeal Division
pursuant to s. 63(1) of the Act. At the hearing, the communication link
with Mr. Thorn in Cambodia was insufficient to allow him
to give testimony by teleconference. Ms. Ouk testified, and provided evidence
to show, that the discrepancy between the stated number of Mr. Thorn’s siblings
was partially explained by a long-term grudge held by Mr. Thorn against his
half-sister, Thorn Sary, the product of an affair between his father and
another woman, whom he did not consider to be his sister. Thorn Sary had been
included by Mr. Thorn’s brother and sister-in-law, while his attitude towards
her had caused him to leave her off the list of his siblings.
[5]
Ms. Ouk
testified that Thorn Sary lived with her family, due to a connection between Ms.
Ouk’s mother and Ms. Thorn’s husband, dating to their meeting in a refugee camp
in Vietnam. This circumstance was the
source of much questioning by the IAD Panel Member.
[6]
The final
name provided by Mr. Thorn’s brother and his wife was alleged to be that of Ms.
Ouk’s mother. This anomaly was not fully explored by the Panel Member, but was
not included in her reasons for denying the appeal and was thus not at issue in
this judicial review. In any event, it was explained by Ms. Ouk as resulting
from confusion over the translation of Cambodian terms for family members.
DECISION OF THE PANEL MEMBER:
[7]
The Panel Member did not find the
explanations of Ms. Ouk and the evidence credible. She further held that the
failure to disclose the existence of Ms. Thorn Sary was a deliberate attempt to
withhold evidence from the Visa Officer which might be detrimental to Mr. Thorn
Sambo’s application for permanent residence. The Panel concluded that the
marriage was not bona fide and was entered into primarily for the
purpose of gaining status under the IPRA. Accordingly, the appeal was
dismissed.
ISSUES:
[8]
Did the
Panel err in finding that the applicant’s marriage was not bona fide?
ANALYSIS:
[9]
The standard of review in deciding
whether a marriage is genuine is patent unreasonableness: Donkor v. Canada
(Minister of Citizenship and Immigration) 2006 FC 1089 [Donkor].
[10]
However, as explained by my
colleague Justice Hughes, the selection of inappropriate criteria to discern
the genuineness of a marriage is an error of law, reviewable on a correctness
standard: Khan v. Canada (Minister of Citizenship and Immigration) 2006 FC 1490 [Khan].
[11]
An
application for sponsorship in the family class by a Canadian citizen or
permanent resident may be denied based on s. 4 of the Immigration and Refugee Protection
Regulations, 2002,
SOR/2002-227, which reads as follows:
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.
[12]
The evaluation
of a marriage for the purpose of Regulation 4 was recently revisited in Donkor,
supra, in which the test from Horbas
v. Canada (Minister of Citizenship and Immigration) [1985] 2 F.C. 359 was restated in these terms:
- The
genuineness of relationship must be considered in the present tense such
that a relationship that may not have been "genuine" at the
outset may have become genuine; and
- Consideration
must be given as to whether the relationship was entered into primarily
for the purpose of acquiring any status or privilege under the Act.
This is a cumulative test, such that both prongs
must be found to be true before a marriage will be found not to be genuine for
the purposes of Regulation 4.
[13]
The criteria for the first part of
the Donkor test, being that which focuses on the ‘genuineness’ of the
marriage, have not been expressly set out: Khan at para. 20. In Khera
v. Canada (Minister of Citizenship and Immigration) 2007 FC 632, the IAD
was held to have reasonably considered such factors as: the length of the
parties' prior relationship before their 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;
their language; their respective interests; family connections in Canada; and,
prior attempts by the sponsoree to come to Canada (at paragraph 10).
[14]
The focus of the examination
under s.4 of the Regulations is on the relation between the couple.
While family connections may be seen as a consideration to be weighed, the
genuineness of the marriage should be a separate question from concerns about
familial connections.
[15]
In this instance, the Panel
appeared to be convinced of the occurrence of the wedding and honeymoon, and
did not go beyond cursory inquiries into the relationship between the sponsor
and sponsoree. The first prong of the Donkor test was not given the
required focus, if the Panel were actually concerned about the genuineness of the
marriage. Relevant factors, such as those enumerated in Khera, supra,
were not addressed either during the hearing or in the Panel’s decision.
[16]
Had the Panel properly found that
the marriage between Ms. Ouk and Mr. Thorn was not genuine, it would have had
to find also that the second step of the Donkor test was not met in
order to refuse the sponsorship on the grounds of s. 4 of the Regulations.
In order for the Panel to find that Ms. Ouk and Mr. Thorn’s marriage was
primarily entered into for the purpose of gaining status or privilege under the
Act, it must be able to show that that finding is based on the evidence.
I can find no analysis or reasoning in the transcript or reasons for the decision,
which supports a finding that the primary purpose of this marriage was to gain
status or privilege under the Act.
[17]
The panel was clearly concerned
about the dynamics of the Thorn family and the odd circumstance of the
sponsoree’s half sister living with the sponsor’s family while being omitted
from the sponsoree’s list of siblings. While this is a valid concern, it should
have been kept clearly separate from the question of the validity of the
marriage between the sponsor and sponsoree. It was open to the appeal panel to
find that the sponsoree is inadmissible for misrepresentation pursuant to s. 40
of the Act or that the marriage is not genuine, but the
distinction between these two avenues of inquiry must be kept clearly separate.
[18]
Accordingly,
I find that the Immigration Appeal Division erred in law by incorrectly
applying the appropriate test to determine the genuineness of the marriage at
issue, and by failing to analyze the relevant criteria to address that test.
The matter should therefore be returned to a differently constituted panel for
a fresh appeal determination.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that: the application is granted
and the matter remitted to a differently constituted Immigration Appeal
Division Panel for redetermination.
“Richard
G. Mosley”
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