Docket: IMM-1621-11
Citation: 2011 FC 1498
Toronto, Ontario, December 20, 2011
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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KUNDAN
SINGH
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Applicant
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and
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THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
At the conclusion of the hearing I informed the
parties that the application would be dismissed. These are my reasons.
[2]
The applicant, Kundan Singh, is a 43 year old
citizen of India. He arrived
in Canada in 2001 and claimed
refugee status on political and religious grounds; his claim was refused.
[3]
In September 2005, the applicant met his sponsor
and they were soon married on December 14, 2005. The sponsor began working as
a housekeeper for an oil drilling company in Fort
McMurray, Alberta. She works
in Alberta three out of four
weeks each month. On her week off, she generally returns to live with the
applicant in their rented basement apartment in Brampton, Ontario.
[4]
The applicant’s native tongue is Punjabi. He
learned English in Toronto
while working as a truck driver. Although he is not yet fluent in English, the
couple say they understand each other. The couple say they are saving to
purchase a home together in the future. They maintain separate bank accounts,
except for one joint account for daily expenses.
[5]
The officer interviewed the applicant and his
sponsor on February 18, 2011 and did not believe in the genuineness of the
couple’s relationship for three main reasons:
(i)
The applicant’s knowledge of his sponsor’s
earnings;
(ii)
The applicant’s proficiency in English; and
(iii)
The lack of documentation.
[6]
At the interview, the sponsor explained that she
has been working in Alberta
over the past three years where she resides for at least three out of four
weeks each month. When questioned on his wife’s salary, the applicant
incorrectly stated that it was $35,000 annually. In fact, the sponsor makes an
annual salary of $118,000; more than triple what the applicant thought she
made. The officer was incredulous that a bona fide couple would live apart for
such long periods of time without the applicant having a better understanding
of his wife’s earnings in Alberta.
[7]
Secondly, the officer acknowledged that the
sponsor only spoke English and that the applicant required an English
interpreter during the interview. The officer found it questionable that a
bona fide couple could maintain a relationship over more than five years with
this significant language barrier. Further, the officer questioned whether the
marriage was initially entered into for immigration purposes based on the
couple’s short courtship before marriage and the applicant’s poor proficiency
in the English language.
[8]
Finally, the officer found that there was a
significant lack of documentation including photos of the couple together and
of documentation supporting their cohabitation. The officer described the
photos that were submitted as staged. The couple gave conflicting responses as
to the location where the photographs were taken only four days earlier. The
applicant said they were taken upstairs in the house where they rent a basement
apartment while his sponsor said they were taken at a friend’s house.
[9]
Based on these observations and findings, the
officer was not satisfied that the applicant and his sponsor were cohabitating
and in a bona fide relationship and the application for permanent residence as
a member of the Spouse in Canada Class was denied.
[10]
The only issue is whether the officer
erred in deciding that the applicant and his sponsor were not cohabiting and
were not in a bona fide relationship.
[11]
To be considered a member of the Spousal Class,
an applicant must be the spouse or common-law partner of a sponsor and cohabit
with that sponsor in Canada. An
applicant will not be considered a spouse or partner of the sponsor if the
marriage or partnership is not genuine or was entered into primarily for the
purpose of acquiring immigration status: Chertyuk v Canada (Minister of
Citizenship and Immigration), 2008 FC 870, [2008] FCJ No 1086 at para 26.
In determining whether a marriage or partnership is genuine, an officer must
assess the credibility of the applicant and make findings of fact based on all
relevant evidence before him or her.
[12]
The applicant submits that the officer made
negative inferences based on minor inconsistencies that he observed during the
separate interviews. The officer identified these inconsistencies to the
applicant and sponsor and gave them an opportunity to provide an explanation.
I agree with the submission of the respondent that the applicant essentially disputes
the weight the officer gave to these discrepancies. It is not the Court’s role
to re-weigh the evidence; rather, the Court must decide whether the officer’s
decision was reasonable based on the evidence that was before him or her.
[13]
The facts in this case are similar to those in Manbodh
v Canada (Minister of Citizenship & Immigration), 2010 FC 190 where an
immigration officer found that the common-law relationship was not genuine and
the couple was not cohabiting based upon the lack of evidence of cohabitation
coupled with the applicant's lack of knowledge about her sponsor's employment.
Justice Boivin found that the applicant had failed to provide valid evidence
for the Court to intervene and that it was not unreasonable for the officer to
conclude that cohabitation had not been proven.
[14]
In this case, the officer evaluated the
documentary evidence provided and found it to be lacking and the photos
staged. Although the officer provided the applicant and the sponsor with an opportunity
to explain inconsistencies and time to submit additional materials, they failed
to convince him that their relationship was genuine. The applicant did not
identify relevant evidence that ran contrary to the officer’s conclusion on a
central issue and for which the officer had not explained his position.
[15]
The applicant may disagree with the officer’s
decision; however, it cannot be said to be unreasonable.
[16]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is dismissed and no question is
certified.
"Russel W. Zinn"
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