Date: 20081016
Docket: IMM-1604-08
Citation: 2008 FC 1172
Toronto, Ontario, October 16, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
KEUN
SUP JIN
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Theirs
is not a marriage made in heaven. It was a bargain: he wanted a son and heir,
she wanted status in Canada. Notwithstanding their worldly interests,
the Immigration Appeal Division decided that the marriage was genuine. For the
reasons that follow, I dismiss the Minister’s application to quash that
decision.
Background
[2]
Mr.
Jin is 73. He was born in Korea but resides in Canada. He is a
citizen of both countries. He testified that his first marriage to Jeong Soon
Han, which lasted nearly 40 years, was arranged by their parents. They married
in 1961 and apparently had two children, a son and a daughter. Mr. Jin and his
daughter are estranged. His son, Bong Ho Jin, committed suicide in 1993, at
the age of 30. Mr. Jin, wanting an heir, suggested to his wife that they adopt
a son. She refused, precipitating their separation. They were formally
divorced in 2000.
[3]
Mr.
Jin says that he first met his second wife, Chun Ox Kim, at a boarding house in
Toronto in April
1998. They were both living there; Mr. Jin because his marriage to his first
wife had broken down, and Ms. Kim because she was looking to live permanently
in North America. Within a week of their meeting, they were discussing
marriage and the fact that Mr. Jin wished to have a son. They were eventually
married in March 2001, during a trip Ms. Kim made to Canada.
[4]
Ms.
Kim is 25 years younger than Mr. Jin and she has an interesting past. She was
born in China, which is
where she married her first husband. She says that this was a marriage
arranged by her family. They divorced in May 1995, but there was a daughter
born of this marriage. Initially,the father was granted custody of the
daughter, but that was changed in 2000, after Ms. Kim met Mr. Jin. Since then,
Ms. Kim has had custody of her daughter, who now attends university in Korea.
[5]
Ms.
Kim married her second husband, Jaeyeol Cho, in November 1995. She says that
this marriage was arranged by a business associate of her father. Mr. Cho is a
Korean national. The panel found that at least one of her reasons for marrying
Mr. Cho was to gain admission to Korea. This marriage soon
broke down. The marriage ended in divorce - the first time - in May 1999.
[6]
Following
her separation from Mr. Cho, Ms. Kim paid a smuggler to bring her into the United
States
in 1998, in the hope of earning some money there. She was apparently taken as
far as Mexico, but came to
view the arrangement as a scam and felt that she was putting herself at risk
trying to cross the Mexico-U.S. border. She then decided to come to Canada, where she
could gain entry without a visa. At the Toronto boarding
house where she ended up, she met Mr. Jin and their bargain was struck and she
returned to Korea.
[7]
Ms.
Kim remarried Mr. Cho in November 2000 for the sole purpose of facilitating an
adoption of an infant boy, Seung Joon Jin, who was later registered in Korea as the son
of Mr. Jin and Ms. Kim. Ms. Kim and Mr. Cho divorced - the second time - in
January 2001.
[8]
Mr.
Jin’s first application to sponsor his wife’s entry into Canada as a
permanent resident was refused in January 2002. Mr. Jin withdrew his appeal of
that decision in November 2002. The panel found that the withdrawal of that
application may have been partially motivated because it included Ms. Kim’s daughter,
who had health problems. She is not listed on the second application which
lies at the base of this application for review.
[9]
The
second application for permanent residency was also refused by an officer.
However, an appeal to the IAD was allowed by decision dated March 6, 2008. The
panel found that the marriage had been entered into in order for Ms. Kim to be
able to gain entry into Canada; however, it also found that their seven
year marriage was genuine, and thus was not caught by section 4 of the Immigration
and Refugee Protection Regulations, SOR 2002-227, which provides as
follows:
|
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.
|
Issues
[10]
The
Minister, the applicant in this review, submits that there are two issues for
decision on this application:
(a)
Whether,
in finding that the marriage was genuine, the IAD misinterpreted section 4 of
the Regulations; and
(b)
Whether
the IAD failed to assess the credibility of the witnesses, or made findings of
fact that were perverse or capricious.
Did the panel err in
interpreting section 4 of the Regulations?
[11]
The
Minister submits that the panel erred in law by misinterpreting the Regulations.
The panel found that Mr. Jin and Ms. Kim had entered into a type of quid pro
quo marriage. His purpose was to have a son and heir and her purpose was
to obtain status in Canada. The Minister submits that the panel
effectively found that because these parties had maintained and pursued the
purpose of obtaining status for her in Canada, a genuine
marriage existed between them. It is submitted that such an interpretation
disregards the intent of section 4, which is to protect the integrity of Canada’s
immigration system.
[12]
If
the panel had found that this marriage was genuine on the sole basis that for
seven years, the couple had maintained and pursued the purpose of gaining
status in Canada for Ms. Kim,
I would agree with the Minister. However, the panel had other reasons for
finding as it did.
[13]
Although
the panel found that each party had benefited from the relationship – he gained
a son and she gained financial security – it was satisfied that Ms. Kim “will
continue in her relationship with [Mr. Jin] and is not likely to abandon the
marriage if she were to gain admission to Canada, or even if she does not”
(emphasis added). The panel reached this conclusion based on its findings that:
(a) they have been married for 7 years, (b) they have adopted a child, (c)
they have seen each other regularly, (d) Mr. Jin has provided Ms. Kim with
significant financial support, and (e) they first made efforts to have a child
of their own, then arranged an adoption - she having to remarry her former
spouse to this end - and were eventually married in Canada, after which they registered
the adoptive son as their own in Korea. As the panel put it, “if the marriage
continues with the appellant and applicant in an ongoing relationship it is, in
effect, a genuine marriage”. The panel, on the evidence, concluded that the
marriage would continue.
[14]
As
was noted by Justice Hughes in Khan v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1875, 2006 FC 1490, at
para. 14, “genuineness is revealed by a shared relationship of some permanence,
interdependence, shared responsibilities and a serious commitment.” In my
view, that is the correct standard and is the standard against which the panel
judged this marriage. It did not misinterpret or misapply the Regulation.
Did the panel err in
failing to assess credibility?
[15]
The
Minister submits that the panel failed to properly assess the credibility of
the evidence of Mr. Jin and Ms. Kim, or that it failed to assess their
credibility at all. Relying on Canada (Minister of
Citizenship and Immigration) v. Nyari, [2002] F.C.J. No.
1312, 2002 FCT 979, the Minister submits that this constitutes a reviewable
error.
[16]
In
this respect, the Minister has pointed out a number of inconsistencies,
discrepancies and contradictions in the evidence of the couple, and submits
that these were material to the issues to be determined by the panel. In the
Minister’s view, the panel’s failure to examine these problems with the evidence,
and assess the credibility of Mr. Jin and Ms. Kim accordingly, renders its factual
findings based on their evidence perverse or capricious.
[17]
The
Court notes that the panel did address the issues which concern the Minister,
albeit rather perfunctorily. It wrote:
The panel heard testimony
about other issues. There were a number of inconsistencies in accounts
including the fact that the applicant initially told the visa officer that she
was pregnant with the appellant’s child before acknowledging that the child was
adopted. The evidence about the adoption, for example, why the appellant
couldn’t marry the applicant and adopt the child himself is not entirely
clear. And how the appellant’s son ended up being listed on the appellant’s
family Registry form as his natural son was never fully explained. However,
these issues do not undermine the panel’s conclusion that the appellant and
applicant share a marriage that is ongoing and that will likely continue
whether the applicant comes to Canada or not.
[18]
While
it might have been preferable for the panel to have undertaken a more fulsome
analysis, I cannot agree with the Minister that the brevity of its discussion results
in a reviewable error.
[19]
The
Minister also challenges the panel’s finding that the marriage will survive,
arguing that this finding is based solely on Ms. Kim’s statement to a visa
officer that “she has been with him so long and their child is growing, and
he’s been supporting her and the child for several years, she cannot leave
him”. However, a careful reading of the panel’s decision indicates that it did
not rely solely on her testimony in reaching its conclusion that the
relationship would continue. This is what the panel wrote with respect to the
relationship:
This is a type of quid pro quo
marriage that happens all the time, with perhaps varying degrees of love or
affection. The panel is of the opinion that this dynamic is also at work in
this relationship, and even if there is an immigration interest of the
applicant, the panel is hard pressed to envisage her leaving this marriage, if
she was to gain admission to Canada or indeed if she does not given
the benefits she derives from the relationship. And if the marriage
continues with the appellant and applicant in an ongoing relationship it is, in
effect, a genuine marriage. (emphasis added)
[20]
The
benefits Ms. Kim derives from the relationship – a son and financial security –
were evident from documentary evidence before the panel, in addition to the couple’s
testimony. Accordingly, an assessment of their overall credibility was not crucial
to the panel’s analysis of whether or not their marriage will continue.
[21]
No
question was proposed for certification. On the facts, no question is
certifiable.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1. This application is dismissed;
and
2. No question is certified.
"Russel W. Zinn"
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