Docket: IMM-2236-11
Citation: 2011 FC 1456
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, December 12, 2011
PRESENT: The Honourable
Mr. Justice Martineau
BETWEEN:
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SESEYSOTHEA KEO
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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]
The
applicant is asking the Court to set aside a decision by the Immigration Appeal
Division of the Immigration and Refugee Board (the panel), dismissing the appeal
he filed under subsection 63(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (Act), against the
refusal by a visa officer to grant his spouse’s sponsored application for
permanent residence.
[2]
A
brief review of the facts is necessary.
[3]
The
applicant is 31-year-old citizen of Cambodian origin. From 1997 to 2003, he was
previously married to a Cambodian citizen, whom he sponsored to come to Canada,
but the couple divorced one year after his first spouse obtained permanent
residence. This is the first marriage for the applicant’s second spouse, who is
26 years old.
[4]
The
applicant stated that he met his second spouse through his mother. The
applicant’s mother had known his future spouse’s grandparents for some time, and
she stated that she had met his future spouse in January 2005 while visiting Cambodia.
But it was
only in the summer of 2006 that the applicant made contact with his future
spouse for the first time. After speaking over the phone, the couple exchanged
photos. On September 11, 2006, the applicant travelled to Cambodia with his
mother to meet his future spouse and celebrate their engagement.
[5]
The
two spouses were married in Cambodia on March 1, 2007. Their marriage is
recognized by the authorities in Cambodia and several guests apparently attended
it. Since then, the applicant, who owns a family-operated convenience store in Montréal,
travelled to Cambodia in September 2008, October 2009 and October 2010. Several
photos of the couple (including members of their families) during the marriage
ceremony and in public places during other visits to Cambodia or abroad (Macau)
were submitted before the panel, as well as proofs of purchase for plane
tickets and calling cards, in particular.
[6]
Credibility
was at the heart of the exercise of the jurisdiction of the two specialized
decision‑making authorities ruling on the genuineness of the marital
relationship and on the couple’s true intentions.
[7]
The
visa officer rendered a negative decision on January 31, 2008, after
interviewing the applicant’s spouse. The visa officer identified a certain
number of problems with respect to the knowledge the spouse’s father had of the
applicant’s past situation. On June 10, 2010, and February 8,
2011, the applicant, his mother and his spouse testified during the de novo
hearing before the panel (his spouse testified over the phone). In its decision
dated February 25, 2011, dismissing the appeal, the panel relied on
several contradictions in the testimonial evidence and documentary evidence
(namely forms) to find that the marriage had not been entered into in good
faith; hence this application for judicial review.
[8]
Essentially,
it was not established to the satisfaction of the visa officer and the panel
that the spouses’ marriage is genuine and was not entered into primarily for
the purpose of acquiring any status or privilege under section 4 of the Immigration and Refugee Protection
Regulations,
SOR/2002‑227 (Regulations). This is
a question of mixed fact and law requiring the specialized expertise of the decision-maker
(Khera v Canada (Minister of Citizenship and Immigration),
2007 FC 632 at paragraph 7 (Khera)).
[9]
In
such a case, the Court’s assessment would be limited to “the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” in the knowledge that “[t]here might
be more than one reasonable outcome”: Dunsmuir v New
Brunswick, 2008 SCC 9 at paragraph 47; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59;
Zheng v Canada (Minister of Citizenship and Immigration), 2011 FC 432 at paragraph
18 (Zheng); Bustamante v Canada (Minister
of Citizenship and Immigration),
2011 FC 1198 at paragraph 20.
[10]
It
should be noted that section 4 of the Regulations was amended between the date that
the application of the applicant’s spouse was refused by the visa officer and
the date of the hearing before the panel. In January 2008, the provision read as follows:
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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.
[Emphasis added.]
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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.
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[11]
As can be seen, section 4 of the Regulations refers to the
following: 1) the genuineness of the relationship; and 2) the intentions
of those involved. The case law has always considered the use of the word “and”
(“et”) to mean that those two elements must coexist to exclude the
foreign national from the family class under subsection 12(1) of the Act: Khan v
Canada (Minister of Citizenship and Immigration),
2006 FC 1490 at paragraph 5; Das v Canada (Minister of Citizenship
and Immigration), 2009 FC 189 at paragraph 19; and Paulino v
Canada (Minister of Citizenship and Immigration), 2010
FC 542 at paragraph 19. Moreover,
there is a close relationship between the two elements mentioned in section 4 of
the Regulations in that the lack of genuineness of the marriage establishes a
presumption that it was entered into primarily for the foreign national to acquire a status
or privilege under the Act: Sharma v Canada (Minister
of Citizenship and Immigration),
2009 FC 1131 at paragraphs 17‑18; Kaur v Canada (Minister
of Citizenship and Immigration),
2010 FC 417 at paragraphs 15-16.
[12]
In
the current version, which has been in force since September 30, 2010, subsection
4(1) of the Regulations now bases the exclusion of a foreign national on a
disjunctive test:
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4. (1) For the purposes of these
Regulations, a foreign national shall not be considered a spouse, a
common-law partner or a conjugal partner of a person if the marriage,
common-law partnership or conjugal partnership
(a) was entered into primarily
for the purpose of acquiring any status or privilege under the Act; or
(b) is not genuine.
[Emphasis added.]
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4. (1) Pour
l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait ou le partenaire conjugal d’une personne
si le mariage ou la relation des conjoints de fait ou des partenaires
conjugaux, selon le cas :
a) visait
principalement l’acquisition d’un statut ou d’un privilège sous le régime de
la Loi;
b) n’est pas authentique.
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[13]
The
amendment made to section 4 of the Regulations is not cosmetic in nature; the
use of the word “or” in the English version and of the words “selon le cas” in
the French version are very clear: if either of the two elements (genuineness
of marriage and intention of the parties) is not met, the exclusion set out in the
new subsection 4(1) of the Regulations applies.
[14]
Regardless,
the two parties agree that the analysis of the reasonability of the decision
rendered by the panel must be carried out according to the former section 4 because
the visa officer rendered his decision under the former version of this
provision. In this case, the panel is not being criticized for failing to
consider the two elements in section 4 of the Regulations, but rather for
rendering an unreasonable decision as a whole.
[15]
First,
it is up to the person who makes an application for permanent residence in the
family class, the sponsored spouse in this case, to prove that his or her
marriage is recognized as genuine in the country where it occurred (subsection
16(1) of the Act). A marriage that is legally recognized according to the law
of the place where it occurred is usually recognized in Canada. See the operational
manual by Citizenship and Immigration Canada (CIC) entitled “OP 2—Processing
Members of the Family Class” (manual).
[16]
We
sometimes talk about an “arranged marriage” to describe a number of situations
that may vary infinitely from one country or culture to another. In cases where
spouses are compelled to get married in the country of origin, we may ask
ourselves whether, without consent from one of the spouses, such a marriage would
be recognized in Canada, like bigamous and polygamous marriages, which are not
legally recognized in our country. Here, the issue is instead a marriage where
the future spouses did not know each other beforehand but wanted to get married
in the female spouse’s country of origin after becoming acquainted through
members of their respective families. The lawfulness of the marriage is not in
question here, but rather its “genuineness” and the “intention” of the spouses.
[17]
It
should be recalled that the Act and Regulations do not provide a definition of
“marriage” and that an arranged marriage or a common-law union are not problematic
for the purposes of the application of section 4 of the Regulations as long as
the couple are in a “conjugal” relationship, that is, a “genuine” relationship.
However, “ . . . the Board must be careful not to apply expectations that
are more in keeping with a western marriage. By its very nature, an arranged
marriage, when viewed through a North American cultural lens, will appear
non-genuine.”: Gill v Canada (Minister of Citizenship and Immigration),
2010 FC 122 at
paragraph 7 (Gill); Abebe v Canada (Minister of
Citizenship and Immigration), 2011 FC 341 at paragraph 34 (Abebe).
[18]
A marriage
might have been entered into in accordance with all of the statutory
formalities, but, nonetheless, the visa officer or the panel may refuse to
recognize its effects for the purposes of the application of the Act and
Regulations if they find that the marriage did not occur in “good faith”, even
if the expression “non-genuine marriage” is not used in their reasons for
decision. See Vézina v Canada (Citizenship and Immigration), 2011 FC 900
at paragraph 14 (Vézina). In fact, what the immigration laws do not recognize
are situations where the two spouses are complicit to duplicity (a non-genuine
marriage) and/or where the intention of the spouses or of one of the spouses is
primarily to acquire a status or privilege (even if the other partner may benefit
from it). In
other jurisdictions, these unions are sometimes described as “sham” or “white” marriages,
whereas in Canada, the manual uses the expression “marriage of convenience”.
[19]
Consequently,
whether this is a conventional marriage, an arranged marriage or another type
of conjugal relationship, it is essential to find in the couple’s relationship
a mutual commitment to living together to the exclusion of any other conjugal
relationship. The spouses’ physical, emotional, financial and social
interdependence goes hand in hand with this because, after all, in all cultures
and traditions, over and above any religious undertakings, in terms of its
civil effects, marriage is, above all, an indeterminate contract requiring that
spouses help each other and contribute towards the expenses of the marriage in
proportion to their respective means, which certainly includes the activities of
each spouse, or even both together, in the home.
[20]
Furthermore,
in M v H, [1999] 2 S.C.R. 3, at paragraph 59, the Supreme Court of Canada
referred to the criteria in Molodowich v Penttinen (1980), 17 RFL (2d)
376 (Ont. Dist. Ct.) to include relationships that are “similar to marriage”. It spoke of a conjugal relationship
based on generally accepted characteristics: shared shelter, sexual and
personal behaviour, services, social activities, economic support, children and
the societal perception of the couple. However, these elements may be present
in varying degrees and not all are necessary for the relationship to be found
conjugal.
The same type of criteria can be found in the manual.
[21]
We
can expect that the conjugal relationship of a legally married couple or a
common-law couple would have the same type of characteristics. That being said,
once the marriage has taken place abroad and one of the spouses has stayed in
his or her country of origin to wait for the other spouse to sponsor him or her
to come reside permanently in Canada, how does one convince the authorities
that it was not a marriage of convenience?
[22]
There
is no single method of analysis. For example, money transfers, the combining of financial
resources, the existence of joint accounts and the purchase of property in the
name of both spouses are certainly indicative of financial support or
interdependence. Something else that can be verified is how the spouses behave
towards one another and towards the authorities in their respective countries. Do they have
children? Do
they support each other during illnesses? Do they give each other
gifts? Do
they travel together? Do they live under the same roof when they are in the
foreign spouse’s country of origin? In what way and how often do they
communicate when they are separated?
[23]
Of
course, credibility is an aspect central to an officer or panel’s analysis of
the genuineness of a relationship. The officer or panel is permitted to examine,
in particular, the circumstances and the length of the relationship, as well as
the marriage itself (location of the wedding, type of wedding, presence of
guests). For example, was the marriage ceremony consistent with the beliefs and
culture of the spouses? Aside from photos of the ceremony or of the spouses in
public places, is there evidence that the spouses actually lived together at
any point after their marriage and honeymoon?
[24]
The
jurisprudence confirms that there is no specific test or set of tests
established for determining whether a marriage or relationship is genuine and
that the relative weight to be given to each is exclusively up to the officer
or panel (Ouk v Canada (Minister of Citizenship and Immigration),
2007 FC 891
at paragraph 13; Zheng, above, at paragraph 23; Khan, above, at paragraph
20).
[25]
For
example, in Khera, above, the Court found that it was
reasonable to assess the length of the spouses’ relationship before 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, their family ties in
Canada and past attempts by the person sponsored to come to Canada.
[26]
Similarly,
the Court decided in Zheng that the panel could not be criticized for
considering the circumstances surrounding how the spouses met, their marriage
proposal or even the existence of a pull factor for the sponsored spouse to come
to Canada despite the existence of material evidence (such as phone bills,
written correspondence or money transfers between the spouses) that was, at
first glance, favourable.
[27]
Finally,
the panel is presumed to have considered all of the evidence before it to
render its decision (Florea v Canada Canada
(Minister of Citizenship and Immigration), [1993] FCJ 598 (FCA); Lai v
Canada (Minister of Citizenship and
Immigration), 2005 FCA 125 at paragraph 90 (FCA)), and the mere fact of
not mentioning all of the evidence is not sufficient to rebut the presumption (GV v Canada (Minister of Citizenship
and Immigration), 2011 FC 900 at paragraph 19; Wiesehahan v Canada (Minister of Citizenship and Immigration),
2011 FC 656 at paragraphs 45-46).
[28]
In
this case, the applicant submits today that the panel failed to analyze the
evidence as a whole and that its analysis with respect to the good faith of the
marriage is unreasonable such that there is reason to set aside his decision
and return the matter for redetermination.
[29]
First,
the applicant claims that the impugned decision does not take into account
relevant factors and that the panel placed excessive weight on trivial aspects
of the spouses’ relationship, such as when the applicant’s mother met his
future spouse for the first time, the dates and sequence of the conversations
between the spouses and their respective families, and the number of photos or
the frequency of calls the spouses exchanged before meeting.
[30]
Second,
the applicant criticizes the panel for failing to consider the fact that it was
an arranged marriage and that the spouses’ respective families had known each
other for a long time. He submits that the panel adopted a North American logic
and reasoning
without taking into account the cultural context and practices in Cambodia in
its assessment of the evidence.
[31]
Third, the applicant criticizes the panel for drawing a
negative inference from the fact that he had already been married and had
sponsored his first wife, also from Cambodia, whom he divorced just one year
after she obtained permanent residence in Canada. The applicant explains that his parents were
unhappy with his first marriage, and that the panel should have found his
explanation sufficient.
[32]
This
application for judicial review must be dismissed. The panel has sole
jurisdiction over the facts; it is therefore important to read the panel’s
decision in its entirety to understand its essence and nuances. Even if another
decision-maker may interpret the facts differently, the panel’s finding that
the applicant failed to discharge the burden of establishing, on a balance of
probabilities, that his marriage to his new spouse is genuine and was not
entered into primarily for the purpose of acquiring any status or privilege
under the Act falls within a range of “possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at paragraph 47).
[33]
The criticisms that the panel failed to consider all of the
evidence and relied on irrelevant criteria to arrive at this finding are
unjustified. It was open to the panel to
place little weight on certain material elements (plane tickets, numerous
photos, calling cards, etc.) given the credibility problems identified in the
decision. Contrary to what the applicant submits, the panel did not engage in a
microscopic analysis of the evidence. Instead, the problem was insufficient
explanations provided with respect to aspects central to the exact
circumstances of their meeting, the organization of their engagement and
marriage, their cohabitation in Cambodia and the maintenance of their long-distance
conjugal relationship.
[34]
Except for mentioning a few specific details (the purchase
of rings), the applicant, his mother and his spouse made no effort to explain
to the panel how, according to Cambodian tradition, a marriage is “arranged”,
whereas here the applicant was more than 30 years old, had already lived in
Canada for several years, had already been married and was divorced. Therefore,
the applicant cannot criticize the panel today for disregarding or ignoring the
fact that it was an “arranged marriage”. However, in both Abebe, above, and
Gill, above, the panel did not raise doubt as to the credibility of the appellants’
testimony, which makes it possible to differentiate these two matters from the
case under consideration.
[35]
The
panel’s negative inferences are supported by the evidence in the record and its
reasoning is not arbitrary or capricious under the circumstances.
[36]
For
example, the panel noted that the applicant’s testimony that his mother met his
future spouse during a trip to Cambodia in 2005 contradicts his statement in
the sponsor’s questionnaire that this first meeting had taken place on
September 11, 2006, that is, at the engagement. The applicant explains that his
mother might have met his future spouse at her grandparents’ house during
previous trips to Cambodia. Then why did the applicant’s mother speak to him
about the young woman only on March 3, 2006, one year later? It was reasonable
for the panel to dismiss the explanation that the applicant had been recently
divorced and had no intention of remarrying.
[37]
What
is more, in his testimony, the applicant stated that he had spoken with his
future spouse for the first time over the phone on June 15, 2006. Yet, in the sponsor’s
questionnaire, he put August 18, 2006, as the date of their first
meeting. The applicant now states that that date was when he had exchanged
photos with his spouse. Moreover, the spouses’ versions of the photos that were
exchanged in August 2006 also present certain discrepancies. The applicant
stated that he had sent five or six photos of himself in his convenience store whereas
his spouse spoke instead of two photos that seemed to have been taken in a
hotel. It should be noted that is it up to the spouses to ensure that the
information in the forms is true, complete and accurate, especially since they
had ample time to make any necessary changes to them.
[38]
That
is not all, however; the circumstances surrounding the marriage proposal are
also nebulous. According to the form completed by the applicant’s spouse, it
was not the applicant’s mother who spoke to her grandparents about marriage, as
the applicant indicated in his testimony, but it was instead their respective
parents who contacted each other by telephone in August 2006, and it was only
later that the spouses spoke over the phone. Yet the applicant stated
that he had gotten in touch with his spouse on June 15, 2006. The panel was
entitled to disbelieve the applicant when he suggested that this was a simple
error.
[39]
At
what point the applicant’s spouse, her parents and her grandparents learned of
the applicant’s divorce is also problematic, as are the circumstances
surrounding the moment and circumstances of the applicant’s meeting with his
first spouse. Was it in 1995 or two years later, in 1997?
[40]
In
fact, the applicant’s first wife’s sponsored application for landing was initially
refused, but the appeal of that refusal was allowed by the panel. Contrary to the
applicant’s past testimony at the first appeal that he had entered into a
romantic relationship with his first spouse in 1995, during the hearing for
this application, he testified that he had met his first spouse for the first
time during a trip to Cambodia in July 1997 and that he had married her
one week later, against his parents’ wishes.
[41]
The
payment of the wedding rings exchanged by the future spouses also raised serious
questions. According to the applicant, each spouse had purchased their own ring.
However, his spouse stated that it was her mother who purchased the applicant’s
ring and the applicant’s mother who purchased hers. When confronted with
this, the applicant explained that his spouse had replied this way because, in
Cambodian culture, each spouse’s mother purchases the other spouse’s ring. Subsequently,
the applicant changed his testimony: he purchased the two rings because he
wanted to show his spouse that he had the financial means to do so. Furthermore,
contrary to his spouse’s statement, the applicant stated that his mother had accompanied
the couple to the market to purchase the rings, but never indicated that his
spouse’s mother was also present. It was reasonably open to the panel to find
that the credibility of the spouses was undermined.
[42]
In
addition, the panel also found it suspicious that the spouses celebrated their
engagement less than a month after exchanging photos and were married nine
months after the date they spoke over the phone for the first time. The very
speed of the events that led to the marriage tends to demonstrate that the
marriage was entered into for immigration purposes, a finding that can be drawn
from the evidence in the record.
[43]
Nevertheless, the panel considered the applicant’s visits
to Cambodia and seemed to recognize that the spouses spent time together in
Cambodia and elsewhere. However, the panel did not believe that the spouses had
lived together or that it was a genuine relationship, as it explained in its
reasons. With respect to the calling cards, the panel found the evidence
inconclusive in itself because it is impossible to verify when the calls were
made and by whom.
[44]
Thus,
the panel doubted that the applicant had cohabitated with his spouse during his
last trip to Cambodia, which lasted three months, even though he testified that
he always stayed with his spouse during his visits there. In fact, the panel
considered each spouse’s lack of knowledge of the basic elements of daily life
of the other is not consistent with the allegation that they lived together.
[45]
For
example, the applicant explained that his spouse took two vacation days during his
three‑month stay in Cambodia, whereas his spouse stated that she took
ten. Furthermore, the applicant’s spouse believed that it was the applicant’s
brother who operated the convenience store in Montréal during his stay in
Cambodia, whereas the applicant stated that it was his sister‑in‑law
who operated it. On another occasion, the panel stated in its decision that,
according to the applicant’s spouse, the applicant had told her about his
divorce during their first phone conversation in June 2006, whereas she told
the immigration officer that she had learned about it when they exchanged
photos in August 2006.
[46]
The above-mentioned findings of fact are not unreasonable
and the Court cannot intervene to substitute its own assessment of the evidence
for that of the panel.
[47]
For
these reasons, this application for judicial review will be dismissed. No
question of general important was proposed by the parties and none will be
certified by the Court.
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