Date: 20080220
Docket: IMM-1175-07
Citation: 2008 FC 221
Ottawa,
Ontario, February 20, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
NORMAN
J. CHAMPAGNE
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for
judicial review pursuant to section 72 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the Immigration
Appeal Division (IAD), dated February 28, 2007, wherein the IAD overturned the
refusal of a permanent resident visa for the Respondent’s wife. The visa
officer, in Singapore, Malaysia, had found that the Respondent’s marriage was not
genuine for the purposes of the IRPA, pursuant to section 4 of the Immigration
and Refugee Protection Regulations, SOR/2002-227.
[2]
The
Respondent did not file an application record and he failed to appear at the
scheduled date of the hearing, in Toronto on January 17, 2008. The
Applicant’s counsel insisted that the hearing proceed.
I. The facts
[3]
Mr.
Champagne is a 44-year
old resident of Cornwall, Ontario, where he has lived on an Ontario
Disability Support Pension since 2004. It is unlikely that he will ever be
able to return to work, as he has serious health problems, including epilepsy, liver
problems and complications stemming from a triple bypass open heart surgery in
September 2005 and has had a brain tumour removed. He is facing surgery to
repair problems caused when a vein was removed during the heart surgery.
Before requiring disability benefits, Mr. Champagne worked in
construction and in a factory in Cornwall. Mr. Champagne owns his
home in its entirety and has reasonable financial security.
[4]
From
1975 to 1985, Mr. Champagne worked as a volunteer helping Vietnamese families
settle in Cornwall and made
friends in that community. He also became interested in Southeast
Asia
and has learned to speak some Vietnamese. Two of his friends from that time
are uncles of his wife, My Tran Le. In 1999, when she was 18, the uncles decided
it was time they introduce Mr. Champagne to her and did so while he was on a
three-week visit to Vietnam. He had an epileptic seizure while in Vietnam.
[5]
After
he returned to Canada, Mr. Champagne and Ms. Le maintained some
contact via the internet and by occasional telephone calls. Three years later,
in 2002, Mr. Champagne suggested
marriage. Ms. Le agreed in December of that year, after discussing it with her
parents. Mr. Champagne returned to Vietnam in March 2003, and the
couple married on April 7, 2003. They travelled briefly after their wedding,
and after two weeks Mr. Champagne returned to Canada on April 28,
2003. They stayed in touch by internet, telephone and the occasional letter.
[6]
Mr.
Champagne sponsored Ms. Le from Vietnam as a member of the
family class. That application was refused in April, 2004. He appealed that
decision to the IAD, and it is that decision for which the Minister has sought
judicial review. Between the initial refusal of his wife’s application and the
appeal hearing, Mr. Champagne had open heart surgery.
[7]
A
planned visit by Mr. Champagne to his wife in the
winter of 2005 – 2006 was made impossible by his heart surgery and subsequent recovery.
He did spend a month with her and her family in between the two IAD hearing
dates, in the summer of 2006. The couple remain in regular contact and he
continues to send support in the amount of roughly $50 per month.
II. The visa officer’s
decision
[8]
The
application for a permanent resident visa for the Applicant’s wife was refused
because he found that the marriage was not genuine and had been entered into primarily
for the purpose of acquiring status or privilege under the IRPA.
[9]
The
officer’s reasons can be summarized as follows:
A.
The
facts elicited during the interview did not demonstrate a genuine relationship
between the parties.
B.
Conflicting
information regarding the genesis and nature of the relationship was presented.
C.
The
parties were unable to demonstrate an ongoing and meaningful communication.
D.
The
circumstances of their relationship were inconsistent with the norms and
expectations of their cultures.
E.
The
significant age difference between the parties
F.
There
was strong evidence of pre-existing pull factors to Canada because of
the other relatives already here and who are the primary contact between the
applicant and his spouse.
III. The appellate
decision of February 28, 2007
[10]
The
IAD found that the marriage was genuine and was not entered into primarily for
the purpose of acquiring status in Canada.
[11]
The
panel heard testimony from the appellant, the Applicant’s uncle, Huu Ha Duc and
from the Applicant by teleconference. The panel stated that to assess the genuineness
of a marriage, a broad range of factors had to be considered.
[12]
The
reasons for the appellate decision begin with the following declaration:
The panel found this was a difficult case
to decide. On the one hand, the appellant appeared to be very genuine and the
panel found him to be truthful and credible. On the other hand, the applicant’s
evidence, both from her interview with the visa officer and her testimony by
teleconference at the appeal hearing, was problematic. The appellant himself
admitted that some of her answers were not consistent with his and could not
explain why she said some of the things she said. For example, she stated they
did not talk on the telephone until after they were married; the appellant had
indicated they talked on the telephone between their first meeting in 1999 and
their marriage in 2003. She said at both her interview and at the appeal
hearing that he lives in Toronto. The appellant noted that she
has been writing him letters for years in Cornwall and obviously knows where he lives.
There were a number of unresolved and contradictory issues in the applicant’s
evidence which could cast doubt on the genuineness of the relationship and the
applicant’s intentions in terms of immigrating to Canada.
[13]
Then
the panel went on to conclude that it was influenced by the fact that the
relationship had lasted seven years and the marriage approximately four years.
[14]
This
affirmation is very misleading because the evidence shows the relationship was originated
by the Applicant’s uncles, who in 1999, decided their niece was old enough at
18 to begin the relationship.
[15]
The
time spent together is also deceiving because in fact the parties spent one
week with the Applicant and her uncle. There they communicated and talked about
marriage in late 2002 and agreed to marry in December 2002.
[16]
The
Respondent went to Vietnam in March 2003; married on April 7, 2003 and
spent about two weeks with his wife before returning to Canada on April 28,
2003. He returned to Vietnam from July 13, 2006 to
August 13, 2006.
IV. Unresolved and
contradictory issues
[17]
The
panel began its reasons with the following statement “There were a number of
unresolved and contradictory issues in the applicant’s evidence which could
cast doubt on the genuineness of the relationship and the applicant’s
intentions in terms of immigrating to Canada”.
[18]
Some
of those discrepancies and contradictions in the evidence were:
A.
The
visa officer stated that Ms. Le was unable to communicate with him because of
her inadequacy in the English language;
B.
The
age difference and culture difference. Ms. Le was 18 years old, the respondent
was 43 years old;
C.
The
introduction of the parties was done by Ms. Lee’s uncle. When the uncles
decided she was, at age 18, old enough, their meeting was organized by the
latter;
D.
The
telephone calls made by the respondent to Ms. Le, were made in Ms. Le’s uncle’s
house where the latter translated the conversation because of her inability to
communicate in English;
E.
The
respondent said they talked ever day or week after the marriage. She said they
spoke once a month;
F.
In
2003, they spent one week together and then the respondent went alone to
Thailand before returning to Canada on April 28, 2003.
G.
She
told the officer she thought the respondent resided in Toronto, while he
resides in Cornwall;
H.
She
knew nothing about the respondent’s major surgery in 2005, yet they were
married in 2003.
V. Issue
[19]
Did
the IAD err in its decision?
VI. Standard of review
[20]
The
standard of review when reviewing the genuineness of a marriage for the
purposes of section 4 of the Regulations is patent unreasonableness: Donkor
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1089.
VII. Analysis
[21]
In
Donkor, my colleague Justice Richard G. Mosley held that the language of
section 4 required that a marriage must be both not genuine and entered into
for the sake of gaining status under the IRPA. I reproduce the relevant
section here for ease of reference:
|
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.
|
[22]
The
IAD correctly noted this test, as well as the focus on the intention of the
applicant for permanent residency, as she is the one who wishes to gain status
under the Act. The IAD then considered the evidence before it and decided that
the marriage was genuine and that the permanent resident visa should be
granted.
[23]
The
Minister submits that the panel relied on the belief of Mr. Champagne in the
validity of the marriage rather than on the objective evidence about the
intention of Ms. Le in coming to its determination and is thus in error. She
further contends that the numerous discrepancies between the testimonies of the
couple show that this is not merely an unsupported conclusion, but one which is
insupportable. She argues that the visa officer was right to be concerned
about the age difference between the couple and the inconsistency of the
marriage with the norms, traditions and expectations of Ms. Le’s culture. The
Minister contended at the IAD hearing that this marriage is merely a means for
Ms. Le to immigrate to Canada in order to join her family members
already resident here.
[24]
The
purpose of judicial review is, as is well known to the Minister if not the
self-represented respondent, to determine whether an error has been made which
is sufficient to require determination by a different panel. Given the
standard of review applicable to this case, that of patent unreasonableness, I
must find that the decision of the IAD is perverse, capricious or without
regard to the evidence before it in order to overturn it.
[25]
The
facts of this case overwhelmingly reveal that the marriage between an 18 year
old Vietnamese woman and a 43 year old male Canadian citizen was organized and
arranged by the woman’s uncles with the obvious intent of helping her to immigrate
to Canada.
[26]
She
was unable to communicate with the officer in English and although the
respondent seems to have acquired some knowledge of the Vietnamese language, it
seems impossible for them to have communicated at a distance as they claim.
[27]
Furthermore,
the numerous contradictions and inconsistencies between the parties’ versions
of the facts and events cast grave doubts upon their credibility and the
plausibility of their explanations.
[28]
The
IAD had no valid basis to interfere in the visa officer’s decision, which was clearly
based upon the proven facts of this case.
[29]
Therefore,
the IAD decision dated February 28, 2007 is perverse, capricious and cannot be
sustained by a reasonable interpretation of the evidence. It is thus patently
unreasonable and must be overturned.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application be granted. No questions will
be certified.
"Orville
Frenette"
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