Date: 20080130
Docket: IMM-59-07
Citation: 2008 FC 91
BETWEEN:
Virginia PASION
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard J.
[1]
This is an application for judicial review of a decision by
the Immigration Appeal Division (the IAD) that the marriage between the female
applicant and her spouse (hereinafter the applicant) was not genuine and was entered
into primarily for the purpose of acquiring status pursuant to the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
* * * * * * *
[2]
The
female applicant is a Canadian and the applicant is a citizen of the Philippines. The female
applicant and the applicant were married on January 7,
2005.
In April 2005 the female applicant filed an application to sponsor the
applicant and his daughter. This application was denied on March 8, 2006. The
female applicant appealed this decision to the IAD, which despite the favourable
recommendation of counsel for the Minister of Citizenship and Immigration (the
Minister), found that:
[4] . . . the
appellant has not succeeded in proving, on a balance of probabilities, that the
relationship is genuine and was not entered into primarily for the purposes of
acquiring any status or privilege under the IRPA, and accordingly, the
appeal is dismissed.
[3]
The
IAD based its decision on the many inconsistencies, contradictions and
improbabilities noted by it in the evidence, especially regarding the testimony
of the female applicant and the applicant:
[23] Overall,
the tribunal found that many of the applicant’s answers were evasive and
sometimes contradictory. The tribunal was not convinced of the credibility of
the applicant and feels that many questions were not answered to the tribunal’s
satisfaction.
[4]
Consequently,
the IAD found that the applicant was excluded from the “family member” category
as defined in subsection 1(3) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the Regulations) and was not a member of the
family class under paragraph 117(1)(a) of the Regulations.
[5]
The
female applicant basically objected to the assessment of the facts by the IAD,
in view of the latter’s conclusions that the applicant was not credible and
that the marriage between himself and the female applicant was not genuine.
[6]
However,
as the respondent pointed out, the IAD did raise the following numerous discrepancies:
-
the
haste with which the applicant asked the female applicant to marry him, even
before he had seen and met her;
-
the
circumstances of the first marriage proposal;
-
the
presence in Canada of the
applicant’s sister as a factor which could be an incentive for him to come to Canada;
-
the
reply given by the applicant when asked whether he married the female applicant
in order to immigrate to Canada: he answered [TRANSLATION] “not
particularly”;
-
the
contradictions in the answers given by the applicant regarding the date he
asked the female applicant to marry him for the second time;
-
the
decision to have a civil marriage in the Philippines rather than a
religious one, although the applicant said he was very religious, and the
various contradictory explanations given by the applicant to explain this
decision;
-
the
absence of the female applicant’s mother and the applicant’s parents at the
marriage;
-
the
contradictions in the evidence submitted regarding the number of persons
present at the marriage and reception;
-
the
lack of frequent and regular contact between the female applicant and
applicant: they spoke twice a month on the telephone and exchanged e-mails, but
no e-mails were entered in evidence; further, the female applicant has never
visited the applicant since their marriage;
- the
contradiction between the testimony by the female applicant and by the
applicant as to whether they discussed plans for their future if the appeal
failed.
[7]
Accordingly,
after reviewing the evidence it appears that the IAD relied on a number of
inconsistencies, contradictions and improbabilities.
[8]
The
female applicant had to show on a balance of probabilities that her marriage
with the applicant was genuine and was not primarily for the purpose of
acquiring any status or privilege under the Act (Morris v. Minister of
Citizenship and Immigration, 2005 FC 369, [2005] F.C.J. No. 469 (T.D.)
(QL)). The question of whether a marriage is genuine is essentially one of fact
and the standard of review applicable to this question is that of patent
unreasonableness (Froment v. Minister of Citizenship and Immigration,
2006 FC 1002, [2006] F.C.J. No. 1273 (T.D.) (QL)). It is also well
settled that the IAD may base its decision on inconsistencies, contradictions
and improbabilities in the evidence (see inter alia Nguyen v. Minister
of Citizenship and Immigration, 2004 FC 709, [2004] F.C.J. No. 882 (T.D.)
(QL), and Grewal v. Minister of Citizenship and Immigration, 2003 FC
960, [2003] F.C.J. No. 1223 (T.D.) (QL)).
[9]
In
the case at bar, the Court in the circumstances does not have to substitute its
own assessment of the facts for that made by the IAD.
[10] At the same
time, the female applicant appeared to some extent to be objecting that the IAD
demonstrated bias in its comments and a closed mind regarding the parties.
[11] The test
applicable to determine whether there was a breach of procedural fairness due
to bias is whether a reasonable and well-informed member of the community would
perceive bias (see Mohamed v. Minister of Citizenship and Immigration,
2006 FC 696, [2006] F.C.J. No. 881 (T.D.) (QL)). In my opinion, the female
applicant did not succeed in showing that a reasonable person would perceive
bias in the case at bar. Rather, it seems to the Court that the female
applicant objected to the weight given by the IAD to certain points, in
particular the fact that the applicant’s daughter called the female applicant “Mommy”
and the fact that the female applicant sent money to the applicant.
[12] The female
applicant also objected to the fact that the IAD waited until 4 a.m. in the Philippines to contact
the applicant so he could testify. However, I note that it was the female
applicant’s counsel who asked the IAD to call the applicant, without ever
mentioning the late hour in the Philippines. Moreover, the IAD did
not consider it necessary to hear the testimony of other witnesses and the
female applicant made no objection in this regard. In my view, in the
circumstances a reasonable person would not perceive bias in the case at bar.
[13] Finally, the
female applicant argued that the IAD had imposed on her a heavier burden than
that of a balance of probabilities.
[14] The burden of
evidence applicable to the question of whether a marriage is genuine is a
question of law, and so the applicable standard of review is that of
correctness (Pushpanathan v. Canada (Minister of Citizenship and Immigration),
[1998] 1 S.C.R. 982). In my view, there is nothing in the IAD’s reasons to
indicate that it was looking for certainty regarding the genuineness of the
female applicant’s marriage to the applicant. The only time the IAD referred to
certainty was when it considered the submissions of counsel for the Minister.
The IAD several times mentioned that the female applicant had not discharged
the burden of proof on a “balance of probabilities”. Accordingly, I feel that
the IAD applied the correct burden of proof.
* * * * * * *
*
[15] For all these
reasons, this Court’s intervention is not warranted and the application for
judicial review is dismissed.
“Yvon
Pinard”
Ottawa, Ontario
January
30, 2008
Certified true translation
Brian McCordick, Translator
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