Date: 20081210
Docket: IMM-1097-08
Citation: 2008 FC 1365
Montréal, Quebec, December 10, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
IRYNA
BAHDANAVA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review made pursuant to section 72
of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA),
of a decision of an Immigration Officer, (the Officer) dated February 12,
2008, that refused the applicant’s application after finding that the applicant and
her sponsor’s first marriage was dissolved for the primary purpose of obtaining
permanent resident status in Canada.
II. Facts
[2]
The
applicant and her sponsor were first married in their country of origin, Belarus, in 1979. They have
two adult sons, Danil, born in 1979, and Pavel, born in 1984. Their marriage
dissolved in January 2000, after Mr. Bahdanau began a relationship with Ms. Liudmila
Kashkan.
[3]
Mr. Bahdanau
and Ms. Kashkan married in October 2000 and immigrated to Canada on June 28, 2004
with Danil and Pavel as dependents. The relationship between Mr. Bahdanau
and Ms. Kashkan ended in August 2004, apparently because she did not wish
to live with Danil and Pavel. Ms. Kashkan did not live with Mr. Bahdanau
in Canada and was in a
relationship with another man. She returned to Belarus and gave birth to a child from that other
relationship in October 2004.
[4]
Ms. Bahdanava
came to Canada on a visitor’s visa in
May 2005 to visit her sons who allegedly arranged for their parents to meet up
again and the two rekindled their relationship. Mr. Bahdanau and the
applicant were remarried in June 2006 and he subsequently applied to sponsor
her as a permanent resident.
III. The impugned decision
[5]
The Officer
found the explanation given for Ms. Kashkan’s refusal to live with
Mr. Bahdanau in Canada to be unreasonable and was therefore of the opinion
that their marriage was one of convenience for the purpose of obtaining
permanent resident status. The Officer found that the explanation of the
resumption of the marriage between the applicant and her husband sounded staged
and that Ms. Bahdanava came to Canada with the intention of renewing the
relationship and staying in Canada. He therefore found that their first marriage had been
dissolved for immigration purposes and the second marriage was therefore an
excluded relationship pursuant to section 4.1 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations).
IV. Issues
[6]
The
central issues in this case are as follows:
1.
Was it unreasonable for
the Officer to find that the marriage between Mr. Bahdanau and Ms. Kashkan
was a marriage of convenience?
2.
Did the Officer
breach the duty of procedural fairness?
V. The legislation
[7]
Section
4.1 of the Regulations reads as follows:
|
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 foreign national has begun a new conjugal relationship with that
person after a previous marriage, common-law partnership or conjugal
partnership with that person was dissolved primarily so that the foreign
national, another foreign national or the sponsor could acquire any status or
privilege under the Act.
|
4.1 Pour l’application du présent règlement, l’étranger
n’est pas considéré comme l’époux, le conjoint de fait ou le partenaire
conjugal d’une personne s’il s’est engagé dans une nouvelle relation
conjugale avec cette personne après qu’un mariage antérieur ou une relation
de conjoints de fait ou de partenaires conjugaux antérieure avec celle-ci a
été dissous principalement en vue de lui permettre ou de permettre à un autre
étranger ou au répondant d’acquérir un statut ou un privilège aux termes de
la Loi.
|
VI. Analysis
Standard of review
[8]
The Officer’s
finding of fact that the marriage between Mr. Bahdanau and Ms. Kashkan is
one of convenience is reviewable on a reasonableness standard and consequently
his decision must be justifiable, transparent and intelligible within the
decision-making process (Dunsmuir v. New Brunswick, 2008 SCC
9), and should
be vacated only if perverse, capricious, not based on the evidence or based on
an important mischaracterization of material facts. But on the other hand, a
breach of procedural fairness is cause to set the resultant decision aside,
unless there is no possible way that another outcome could have been reached.
Marriage of convenience
[9]
The
Officer focused on the facts surrounding the breakdown in the relationship
between Mr. Bahdanau and Ms. Kashkan, ignoring the evidence that they
had been married and lived together for four years in Belarus prior to their
immigration to Canada.
[10]
The Officer
also mischaracterized the evidence by stating several times that Mr. Bahdanau
and his sons were sponsored to Canada by Ms. Kashkan while in fact the
couple immigrated to Canada as independent
immigrants. Their marriage occurred long before Ms. Kashkan had any status
in Canada. The Officer’s decision
indicates that the motive ascribed to this marriage is based on a
misapprehension of the evidence. The Officer also appears to have ignored the
evidence about the cause of the marital breakdown.
[11]
Those
are important facts that the Officer appears to have ignored or mischaracterized.
Consequently the Court cannot conclude, as does the respondent, that these
errors are immaterial and that the Officer could not have concluded differently
had he analyzed and weighed the proof properly.
[12]
Seeing
that the Officer apparently ignored Mr. Bahdanau and Ms. Kashkan’s
evidence that they had been married and lived together for four years in
Belarus prior to their immigration to Canada, and ignored also the cause of
their marriage’s failure, the Court concludes that the Officer mischaracterized
the evidence by deciding that Mr. Bahdanau had married Ms. Kashkan
because she was able to get permanent resident status for him. This
mischaracterization of the means by which Mr. Bahdanau gained status as
sponsorship rather than dependency is a crucial one that seems to have
influenced negatively the prism through which the Officer viewed the entire
file.
[13]
Such
an error is sufficiently important to render the decision that followed
unreasonable without the necessity to address the other issue concerning the
alleged breach of procedural fairness.
For these reasons, this Court concludes that the
Officer committed a reviewable error, by ignoring important material facts that
lead to a mischaracterization of the means by which the applicant gained status
and this error is such that it renders his decision unreasonable. Therefore,
the judicial review will be allowed and the decision will be set aside.
[14]
The
Court
agrees with the parties that there is no question of general interest to
certify.
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