Date: 20071026
Docket: IMM-1473-07
Citation: 2007 FC 1108
Ottawa, Ontario, October 26, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
ALBERT ROOPCHAND
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] A visa officer
determined that Albert Roopchand's marriage to Sharmin Richards was not genuine
and that it was entered into for the purpose of acquiring status under the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act). Ms. Richards’
sponsored application to become a permanent resident was, therefore, rejected
on the ground that her marriage fell within the exclusionary provision of
section 4 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations). An appeal was taken to the Immigration Appeal
Division of the Immigration and Refugee Board (IAD or Board), but the IAD
dismissed the appeal because it found that Mr. Roopchand had not met the onus
upon him to demonstrate that the marriage was genuine or was not entered into
primarily for the purpose of acquiring status under the Act.
[2] This
application for judicial review of the negative decision of the IAD is
dismissed because Mr. Roopchand has not demonstrated that the factual findings
of the Board were patently unreasonable.
[3] Section
4 of the Regulations is 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.
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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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[4] The
section raises questions of fact with respect to the intent and purpose of the
sponsored spouse. As a practical matter, a person’s intent is not likely to be
successfully tested by a grilling cross-examination designed to elicit an
admission of fraud or dishonesty. Rather, in the usual case, the trier of fact
will draw inferences from such things as inconsistent or contradictory
statements made by the parties, the knowledge the parties have about each other
and their shared history, the nature, frequency and content of communications
between the parties, any financial support, and any previous attempt by the
applicant spouse to gain admission to Canada.
[5] Questions
of intent and purpose are questions of fact, determined by the IAD after it has
seen, or at least heard, the evidence of the parties. For that reason, this
Court has held that such findings are reviewable on the most deferential
standard of review: patent unreasonableness. See, for example, Khella v. Canada
(Minister of Citizenship and Immigration), [2006] F.C.J. No. 1696 at
paragraph 12.
[6] In
the present case, the IAD relied upon inconsistencies between the evidence of
Mr. Roopchand and his wife and one contradiction within the evidence of
his wife. While the Board may have been a little loose or flowery in its
language when it referred to "the irreconcilable testimonies of the
appellant and the applicant", I am satisfied that nothing turns on this
language. I am equally satisfied that, contrary to Mr. Roopchand's
submissions, the IAD was entitled to rely, as it did, upon the following
material inconsistencies in the evidence:
·
In the sponsored/spouse questionnaire, Ms. Richards stated that
her first contact with Mr. Roopchand was by telephone in 2001. In the same
questionnaire, she also stated that she first met Mr. Roopchand in 2004
and that at that time "we had a social conversation and exchanged
telephone [numbers]". At the hearing, Mr. Roopchand testified that
their first telephone contact was in 2002.
·
Mr. Roopchand testified that he believed his wife is a Baptist
and that her mother is Hindu. Ms. Richards testified that she is a member of
the Full Gospel Church and that her mother is Christian.
·
Ms. Richards had two abortions during the course of their
relationship. Mr. Roopchand testified that his wife paid for both
abortions and that he then reimbursed her by sending her 10,000 Guyanese
dollars for each abortion. Ms. Richards testified that the first abortion
cost 8,000 Guyanese dollars, the second 10,000 Guyanese dollars, and that on
both occasions she used money sent by her husband to pay the bill (that is, her
husband did not reimburse her).
·
Mr. Roopchand testified about going to restaurants, bars and
nightclubs with his wife. He testified that his drink of choice was beer while
Ms. Richards testified that he liked drinking vodka and coconut water
(sometimes with orange juice).
[7] In
addition to those inconsistencies, the IAD also relied upon its findings that:
·
Mr. Roopchand's lack of knowledge with respect to his wife's
abortions was not consistent with a genuine spousal relationship, particularly
in light of his evidence that they spoke daily by telephone. With respect to
the first abortion, Mr. Roopchand did not know when the abortion was
performed, the name of the hospital where the abortion was performed, or the
name of the treating physician. With respect to the second abortion, he did
not know the duration of the pregnancy, the date of the abortion, the name of
the treating physician, or the name of the hospital.
·
Mr. Roopchand and his wife had no knowledge of each other's
banks.
·
Mr. Roopchand did not know the name of his wife's supervisor at
work and was unfamiliar with her co-workers.
·
There was limited documentary evidence supporting contact between
Mr. Roopchand and his wife from 2004 to 2006, and no evidence of contact
in 2001, 2002, and 2003.
[8] I
find that all of those findings were supported by evidence before the IAD.
[9] The
IAD did make one questionable inference and, on one occasion, it did misstate
the evidence before it.
[10] With
respect to the questionable inference, the Board did not find it to be credible
that Mr. Roopchand proposed to Ms. Richards prior to August 5, 2004, but
they only decided to marry in January of 2005. Without more, the effluxion of
time between proposal and acceptance is not necessarily incredible. I am
unable to find, however, any indication in the Board’s reasons that this was a
material finding. I am satisfied that the decision would not have been
different in the absence of this inference.
[11] With
respect to the misstatement of evidence in its reasons, the IAD stated that
Mr. Roopchand drank seven or eight drinks a day. In fact, he testified
that he had seven or eight drinks a week. Again, I do not find this error to
be material. What was relevant and material was the parties' evidence as to
what he drank.
[12] In
addition to raising issues with respect to the Board's findings of
inconsistencies in the evidence, Mr. Roopchand asserts that the Board erred by
"sequentializ[ing] the evidence, rejecting as probative the many pictures
on the Record of the couple together at outings and the wedding as well as
evidence of financial support". It is alleged that the Board considered
only some of the evidence and then rejected other relevant evidence without
considering all of the evidence.
[13] In
my view, the Board did not err as alleged. I am satisfied that the Board
considered all of the evidence before it but then concluded that, in light of
the inconsistencies in the evidence of the parties, their lack of knowledge of
certain facts and the scarcity of evidence confirming contact between the
parties, the photographs and the evidence that Mr. Roopchand sent Ms. Richards
between $1,600.00 and $1,700.00 since 2004 were incapable of establishing the
genuineness and bona fide purpose of the marriage. That was not a
patently unreasonable finding.
[14] In
conclusion, the Board's findings of fact were not patently unreasonable and
they supported the IAD's conclusion that Mr. Roopchand had not met the onus
upon him to demonstrate that the marriage was genuine or not entered into
primarily for the purpose of acquiring status under the Act. The application
for judicial review is therefore dismissed.
[15] Mr.
Roopchand proposed certification of the following question:
Is it necessary for this Court on
judicial review to differentiate between the standard of review to determine
whether the tribunal under review has made an error and the standard of
reversal to determine whether the decision under review should be set aside
once this Court has determined that an error has been made?
[16] This
question does not arise on this determination of the application for judicial
review. No question will be certified.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
“Eleanor R. Dawson”
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