Date:
20130301
Docket:
IMM-4064-12
Citation:
2013 FC 215
Ottawa, Ontario, March 1, 2013
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Applicant
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and
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MEI FANG CHEN
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application by the Minister of Public Safety and Emergency Preparedness,
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the IRPA), for judicial review of the April 12, 2012 decision of
a panel of the Immigration Appeal Division of the Immigration and Refugee Board
(the Panel) allowing the appeal by Mei Fang Chen of a visa officer’s decision
refusing to issue a permanent resident visa to Mu Bao Yang, the Respondent’s
spouse. The refusal was based on section 4 (now subsection 4(1)) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations), and the
officer’s determination that the marriage was not genuine and was entered into primarily
for the purpose of Mu Bao Yang gaining entry into Canada.
I. Background
[2]
The
Respondent and her spouse grew up in the same village in China and eventually began a romantic relationship. The Respondent lived with her brother
from 1993 until 1997, while she and her spouse were dating. In December 1997,
the Respondent learned that she was pregnant. The Respondent and her spouse
submitted that they then began a common-law relationship.
[3]
The
Respondent’s son was born on August 15, 1998. The Respondent found out that she
was pregnant again in early 2005, causing her and her spouse to fear being
punished by the Chinese authorities for violation of China’s birth control
policy. In March 2005, the Respondent arrived in Canada and made a successful
claim for refugee status. On October 11, 2005, her second son was born in Canada. DNA testing confirms that the Respondent and her spouse are the true biological
parents of both boys.
[4]
The
Respondent became a permanent resident of Canada on January 18, 2007. On July
31, 2007, during a two month visit by the Respondent to China she and her spouse married. At the end of that visit she left her younger son in China with her spouse. In 2008 the Respondent returned to China for a three month visit.
This time when she returned to Canada her youngest son accompanied her. Later
in 2008 the youngest son again visited China, returning to Canada in 2010. The Respondent has not been back to China since her second trip in 2008.
[5]
Pursuant
to subsections 11(1) and 12(1) of the IRPA and subsections 116 and 117(1)(a) of
the Regulations, the Respondent sought to sponsor her spouse as a member of the
family class in gaining permanent residence in Canada. The spouse’s application
was refused. The visa officer found that pursuant to section 4 (now subsection
4(1)) of the Regulations, the Respondent’s marriage was not genuine and that
its primary purpose was for her spouse to gain admission to Canada. This finding made the spouse ineligible as a member of the family class. The officer’s decision
was set aside on appeal by the Panel in its Reasons and Decision dated April
12, 2012 (the Decision). The Minister now seeks judicial review of the Decision.
[6]
For
the reasons that follow, the application for judicial review is dismissed.
II. The Decision
[7]
In
its Decision the Panel noted the various documentation filed by the Respondent
in support of the appeal, the authenticity of which was not challenged. This
included a translated certificate from Fuqing City Lin Yang Primary School
disclosing that the Respondent and her spouse were enrolled there from
September 1983 to July 1988 and a translated copy of a certificate issued by
the Chijiao Villigers’ Committee in Chapu Town, Fuqing City stating that the
Respondent and her spouse were born in that village as was, on August 15, 1998,
their eldest son and that in April 2005 the Respondent and her spouse paid a
penalty in order to register the birth of their son so that he could attend
school in China. The evidence also included a Confirmation of Enrolment form
relating to their eldest son and referring to the Respondent and her spouse as
being his parents; numerous photographs of the Respondent and her spouse
together with their children; and, a DNA laboratory report confirming that the
Respondent and her spouse were the biological parents of both of their sons.
[8]
The
Panel gave great weight to its determination that the two children were born to
the Respondent and her spouse. It noted the fact that the Respondent made one
post- marital trip to China where she, her spouse and their children resided as
a family unit for approximately three months, that the Respondent and her
spouse are in regular and frequent communication with each other, that they had
similar plans if the spouse were to immigrate to Canada, and, that they are
also compatible as to age, education, ethnicity and socio-economic background.
[9]
The
Panel noted that there were some contradictions in the evidence given by the
Respondent and her spouse, including that the Respondent stated that she and
her spouse had lived with her brother in China while her spouse stated that
they lived with his brother. The spouse also stated that he registered his
son’s birth certificate, while the Respondent said it was registered by her
brother. The spouse further stated that his brother helped finance the purchase
of the Respondent’s condominium in Toronto while the Respondent stated that it
was her brother who provided the loan. As to her criminal conviction, the
Respondent stated in general terms that her spouse knew of it and, in his
testimony, her spouse confirmed a general knowledge of the Respondent’s conviction.
His incorrect knowledge of her employment in Alberta was, however, consistent
with the Respondent’s evidence that she did not disclose particular information
regarding her criminal conviction to her spouse.
[10]
The
Panel concluded that, upon careful consideration of the oral and documentary
evidence and on the balance of probabilities, the inconsistencies in the
evidence did not denigrate from the other evidence going to the genuineness of
the Respondent’s marriage and allowed the appeal.
III. Issues
[11]
The
Applicant raises only one issue in this application for judicial review - was
the Panel’s determination that the Respondent and her spouse were in a genuine
marriage reasonable?
IV. Standard of review
[12]
The
Supreme Court of Canada has held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to a particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis (Dunsmuir
v New Brunswick, 2008 SCC 9 [Dunsmuir]).
[13]
This
Court has
held that the determination of whether a marriage is genuine is a question of
fact to be evaluated on the reasonableness standard (see Chen v Canada (Minister of Citizenship and Immigration), 2011 FC 1268 at para 4 and Buenavista v Canada (Minister of Citizenship and Immigration), 2008 FC 609 at paras 4 and 5). When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” (see Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa, 2009 SCC 12 at para 59 [Khosa]).
V. Analysis
[14]
The
Minister’s position is that there were significant inconsistencies in four
areas of the evidence given by the Respondent and her spouse whereas, in a
genuine relationship, it would reasonably be expected that they would have
provided consistent evidence. These four areas of evidence are: a) the
registration of their eldest son for school; b) who they lived with as common
law spouses between the years 1997 and 2005; c) when the Respondent purchased
her condominium in Toronto; and, d) the Respondent’s arrest and incarceration
in Alberta. Given these inconsistencies, the Panel’s decision was unreasonable.
[15]
The
position of the Respondent is, in essence, that the Panel carefully considered
and weighed all of the evidence, including the contradictory evidence given by
the Respondent and her spouse, and came to a reasonable decision. As such, this
Court may not substitute its own view of a preferable outcome or reweigh the
evidence. Accordingly, the Panel’s decision must stand.
a) Late Registration of
Eldest Son
[16]
With
respect to the eldest son’s school registration, the Respondent testified
before the Panel that her older brother registered her son for school in 2005, when
the Respondent was already in Canada. The Respondent asked her brother to do
this because if she or her spouse had done so then they would have been
identified by the authorities as having violated China’s birth control policies
and subjected to many sanctions including sterilization; however, in having her
brother register her son they only had to pay a fine. Previously, during the
interview with the officer, the Respondent’s spouse gave evidence that he was
the one who registered his son for school and, with the exception of paying a
fine, he faced no difficulties in doing so. In its application the Minister
adds that the spouse had made no mention of potential sterilization. The
Minister asserts that the Panel failed to address this inconsistency and made
no mention of the spouse’s contrary evidence. Therefore, the Panel’s analysis
surrounding the Respondent’s son’s school registration was unreasonable.
[17]
Paragraphs
60 and 61 of the Decision states as follows:
[60] The appellant stated that she and the applicant
lived with her brother in China. The applicant stated that he and the appellant
lived with his brother. The applicant stated that he registered his son’s birth
certificate. The appellant stated that the birth certificate was registered by
her brother.
[61] The panel, while acknowledging these conflicts
in evidence, notes that regardless of the person with whom the appellant and
applicant lived, that on the balance of probabilities and on the evidence
adduced at this hearing the appellant and applicant lived together for several
years in a common-law relationship. The child was registered in his own name.
At the time of the registration a fine was paid which is consistent with the
testimony given by the appellant with respect to her fear of the birth control
policies of China.
[18]
In
my view, the Panel did recognize the inconsistent evidence as to who registered
the eldest son’s birth certificate. Further, the Computer Assisted Immigration
Processing System notes (CAIPS notes) of the officer generated with respect to
the February 12, 2009 interview of the spouse were before the Panel and read as
follows:
…Did you live together? Yes. From what time to what
time? From Dec 1997 to 2005. That’s the span of 8 years. Were you married? No.
Why? I did propose but her parents objected. How do you explain then that you
were able to live together for 8 years did her parents not object to that? Pi
smiles. She was pregnant and that’s when we started to live together. To have a
baby out of wedlock is against PRC policy. Do you have proof of the fee penalty
for violating/breaching that policy? We did not apply for the Family Register
until 30 March 2005.
We got the baby’s Birth certificate in March 2005. Were you fined at that time?
Yes. Do you have proof? No. Why? I did not keep it. Sir you are not credible….
[19]
And,
when asked why they did not opt to marry in March 2005 before the Respondent’s
departure for Canada, the spouse responded: “If we went to the Marriage
registration office we would need to be enforced with the birth control
surgery. Please explain. After one child we would need to get the birth control
surgery…..”.
[20]
It
seems to me that the evidence before the Panel was consistent in that both the
Respondent and her spouse indicated their eldest son’s birth was late
registered because they were concerned that they would have to pay a penalty or
fine as a result of the birth out of wedlock. Upon the registration they did
pay such a penalty as documented above. Further, at the time of the
registration the Respondent was again pregnant. This gave rise to the another
concern, expressed by both the Respondent and her spouse, that they would be
subject to birth control surgery due to China’s one child policy. It also led
to the Respondent’s departure for Canada where she sought and was granted
refugee status. The sole inconsistency is whether the spouse or the
Respondent’s brother registered the eldest son. The Panel, at paragraphs 60 and
61 of its Decision, specifically acknowledged this inconsistency but elected to
give it little weight when it considered the evidence in whole, stating in that
regard:
[67] Upon careful consideration of the oral and
documentary evidence the panel finds on the balance of probabilities that the
inconsistencies in the evidence do not denigrate from the other evidence going
to the genuineness of the appellant’s marriage. The weight of the evidence
falls on the balance of probabilities in favour of allowing this appeal.
[21]
The
inconsistency as to who registered the eldest son for school was a minor one
which was recognized and addressed by the Panel. Further, the jurisprudence
of this Court confirms that the relative weight to be given to evidence of the
genuineness of a marriage is exclusively up to the officer or panel (see Keo v Canada (Minister of
Citizenship and Immigration),
2011 FC 1456 at para 24), that tribunal decisions are not to be microscopically
reviewed (Chowdhury v Canada (Minister of Citizenship and Immigration),
2006 FC 1155 at para 12) and that considerable deference must be accorded by
this Court to decisions of specialized tribunals such as the Panel (Dunsmuir,
above). Accordingly, I find that it was open to the Panel and reasonable for it
to conclude as it did on this issue.
b) Common Law Place of
Residence
[22]
The Minister
argues that the Panel erred in failing to explain why it disregarded the
discrepancy between the Respondent’s evidence on this issue and that of her
spouse. Specifically, the Respondent testified that she and her husband lived
with her brother before she left for Canada, while her spouse stated that they
lived with his family. The Minister further argues that the
Panel did not specify the alternate evidence it relied on to overcome this
discrepancy and to conclude that the Respondent and her spouse had lived
together in a long term common law relationship. Accordingly, the Minister
asserts that the Panel’s reasons are deficient.
[23]
In
this regard, paragraphs 60 and 61 of the Decision specifically acknowledge this
inconsistency and the Panel went on to conclude that, regardless of the
person(s) with whom the Respondent and her spouse resided, they did live
together for several years in a common-law relationship.
[24]
The
evidence on the record before the Panel included the Respondent and her
spouse’s testimony before the Panel; the Affidavit of the Respondent filed in
support of the appeal and its exhibits which included a translation of the
Confirmation of Enrolment form relating to their eldest son and referring to
the Respondent and her spouse as being his parents; a copy of the Canadian
passport of the younger son confirming his stay in China between June 27, 2007
and September 4, 2008 and between October 12, 2008 and January 2010; the
evidence of both the Respondent and her spouse that the younger son resided
with the spouse during this time; and, statements of the spouse, the
Respondent’s father and a close friend of the Respondent confirming that the
Respondent and her spouse resided together from late 1997 to March 2005 when
she departed for Canada. Based on the testimony of the Respondent and her
spouse and on the DNA laboratory report of Maxxam Analytics Inc., the Panel was
also satisfied on the balance of probabilities that the children are the
children of the relationship of the Respondent and her spouse. That finding was
not challenged in this application.
[25]
In
my view, the Panel addressed the inconsistency in the evidence as to where the
Respondent and her spouse resided during their common law relationship and
reasonably concluded, regardless of same, that based on the whole of the evidence
before it and on the balance of probabilities, the Respondent and her spouse
did live together in a common law relationship in China for a number of years.
In this regard it is also significant that their eldest son was born on August
15, 1998 and that the Respondent became pregnant with the younger son in 2005.
This strongly supports the existence of the ongoing long term relationship.
[26]
Furthermore,
while the Minister argues that the Panel failed to specify what evidence it
relied on to overcome the discrepancy in the evidence and to conclude that the
Respondent and her spouse lived in a long term common law relationship, as I
have noted above, there was various evidence before the Panel that supports
such a conclusion, and there is no indication that any of it was overlooked.
The Panel is presumed to have considered all of the evidence before it (see Khera
v Canada (Minister of Citizenship and Immigration), 2007 FC 632 at para 7 [Khera])
and was not obligated to mention every piece of evidence it relied on (Sanchez
v Canada (Minister of Citizenship and Immigration), 2008 FC 134 at para
11). As a result, the Panel’s conclusion on this matter was reasonable.
c) Date of Purchase of
Condominium
[27]
As
to the condominium purchase, the Minister notes that the Respondent’s testimony
before the Panel was that in April 2008 she purchased a condominium unit in Toronto with money received from various sources, including cash received as wedding gifts.
However, at the same hearing the spouse was unable to say if the Respondent
purchased the unit before or after they married.
[28]
The
Minister acknowledges that the Panel, at paragraph 62 of its Decision,
addressed the ownership of the condominium. However, the Minister takes the
position that because the Panel did not specifically refer to the fact that the
spouse did not know when the unit was purchased and because the Panel failed to
state in its reasons how the fact that the spouse knew that the Respondent
owned the condominium served to establish that they were in a genuine
relationship, that the Panel’s analysis was unreasonable.
[29]
At
the hearing the spouse was asked where he would live if he were to come to Canada. He answered that he would live with his wife and kids. He was then asked if he knew
if his wife owned property in Canada. He replied that he knew she bought
property there. When asked how she got the down payment he stated that his
brother sent money, that she borrowed some “And then when the wedding reception
happen, people bring money as a gift.”
[30]
This
testimony is reflected in the Decision:
[40] The applicant knew that the appellant owned her
own residence in Toronto which, he stated, is where he and his son would reside
were they to immigrate to Canada. The applicant stated that the funds were
required for the down payment to purchase the condominium were derived by
monies lent to the appellant by her brother and the money they received from
wedding gifts…
[62] The applicant stated that his brother helped
finance the down payment for the purchase of the appellant’s condominium in Toronto. The appellant stated that it was her brother who loaned her the money in this
regard. The fact remains that the appellant is the owner of this condominium
and that the applicant knew that the appellant owns a condominium in Toronto.
[31]
When
asked at the hearing about the specific timing of the condominium purchase, the
spouse replied that it was a long time ago and that he had forgotten when it
occurred.
[32]
Based
on the evidence before it, the Panel was aware that the spouse could not recall
exactly when the Respondent purchased the condominium. The fact that the Panel
did not state this in the Decision is not unreasonable or a reviewable error.
Further, the spouse knew and stated that money received as gifts at the July
31, 2007 wedding was used, in part, to fund the down payment for the
condominium. Impliedly then, the condominium purchase in April 2008 was
subsequent to wedding.
[33]
The
Panel need not state in its reasons precisely how “the mere fact” that the
Respondent’s spouse was aware of the fact that she owned a condominium
established that they were in a genuine relationship. The Panel was required to
review and weigh all of the evidence before it in determining if a genuine relationship
existed, or, if it was entered into primarily for the purpose of acquiring any
status or privilege under the IRPA. In this case the Panel found that the
salient point was that the Respondent is the owner of the condominium and that
her spouse knew that she owns a condominium in Toronto. This, when considered with
the all of the other evidence, led to the Panel’s conclusion that, on the
balance of probabilities, the marriage was not entered into primarily for the
purpose of acquiring any status or privilege under the IRPA and that it is a
genuine marriage. As the Panel is presumed to have considered and all the
evidence and weighed it appropriately (see Persaud v Canada (Minister of Citizenship and Immigration), 2012 FC 274 at para 15), and there is
no indication that any evidence was overlooked, the Panel’s conclusion on this
issue was reasonable.
d) The
Respondent’s Conviction
[34]
As
regards to the Respondent’s arrest and incarceration, the Minister points out
that the Respondent’s spouse did not know when the Respondent was arrested or
the reason for the arrest. The Minister acknowledges that the Panel was not
concerned with this lack of knowledge and found that because the Respondent’s
spouse was generally aware that the Respondent had been incarcerated in Alberta that the lack of knowledge was immaterial. However, the Minister asserts that the
Panel had “an obligation to explain in its reasons why it would consider such a
fact immaterial” given that it is reasonable to assume that in a genuine
relationship such a matter would be discussed between spouses.
[35]
The
Panel did address this matter in its reasons:
[63] The appellant stated in general terms that the
applicant knew of her criminal conviction in Alberta and the fact that she was
detained. The applicant in his testimony revealed a general knowledge of the
applicant being detained in Alberta. The applicant gave incorrect evidence as
to the nature of the appellant’s employment in Alberta, which is consistent
with the evidence given by the appellant to the effect that she did not
disclose particular information regarding her criminal conviction to the
applicant.
[36]
It
found, at paragraph 67, upon careful consideration of the oral and documentary
evidence, that on the balance of probabilities the inconsistencies in the
evidence do not denigrate from the other evidence going to the genuineness of
the appellant’s marriage.
[37]
In
my view, with respect to the conviction, there was no inconsistency in the
evidence. The spouse only knew, and therefore could only testify to, general
information pertaining to that event because that was all that he was told by
the Respondent. Further, the Panel in its reasons did indicate why the spouse’s
lack of detailed knowledge as to the Respondent’s conviction was reasonable in the
circumstances and also stated that its Decision was based on its review of all
of the evidence. There was no obligation on the Panel to do more.
[38]
As
to the whole of the application, the standard of reasonableness which
is applicable to the question of the purpose for or genuineness of a marriage
entitles a decision-maker to a high level of deference and such decisions must
be interpreted as a whole (see Khera, above, at paragraph 7). In this
case, the Panel reviewed the evidence and determined that, on the whole, the
Respondent’s marriage to her spouse was genuine and was not entered into
primarily to acquire status under the IRPA. A review of the record does not
reveal that the Decision was “outside the range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (See Dunsmuir at
paragraph 47 and Khosa, above, at paragraph 59).
[39]
With
respect to children of the marriage, this Court has stated that:
When
the Board is required to examine the genuineness of a marriage under ss. 63(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, it must
proceed with great care because the consequences of a mistake will be
catastrophic to the family. That is particularly obvious where the family
includes a child born of the relationship. The subsequent birth of a child
would ordinarily be sufficient to dispel any lingering concern [as to
genuineness.]
…
The
Board was correct in acknowledging that, in the assessment of the legitimacy of
a marriage, great weight must be attributed to the birth of a child. Where
there is no question about paternity, it would not be unreasonable to apply an
evidentiary presumption in favour of the genuineness of such a marriage. There
are many reasons for affording great significance to such an event not the
least of which is that the parties to a fraudulent marriage are unlikely to
risk the lifetime responsibilities associated with raising a child.
See
Gill v Canada (Minister of Citizenship and Immigration), 2010 FC 122 at
paras 6-8.
[40]
In
its Decision the Panel correctly placed great weight on the fact that
Respondent and her spouse have two children together. However, this was not the
only factor that it relied on in determining that “the inconsistencies in the
evidence [did] not denigrate from the other evidence going to the genuineness
of the…marriage.” For example, the Panel noted at paragraphs 56 to 59 of the
Decision that:
-
The
Respondent made one post-marital trip to China, at which time she and her
spouse and their children resided together for over two months;
-
The
Respondent and her spouse are in frequent contact with one another;
-
The
Respondent’s spouse has not made any previous attempts to come to Canada;
-
There
was no persuasive evidence to indicate that the spouse has any close family
members living in Canada besides his wife and younger son;
-
The
Respondent and her spouse share similar plans in the event that her spouse is
able to immigrate to Canada;
-
They
are compatible with regards to age, education, ethnicity and socio-economic
background.
[41]
The
Panel also considered letters submitted by friends and family of the Respondent
and her spouse which speak to their mutual desire to be reunited as a family.
[42]
In
the submission made before me on behalf of the Minister it was argued that the
Respondent’s spouse admitted that his marriage was not genuine and was entered
into primarily for the purpose of gaining entry into Canada when, during his
interview with the officer, he replied “yes” to the officer’s statement “[s]o
it seems to me the purpose of your marriage is to live in [Canada]?”. The
response to that question was not pursued by the officer, who asked no follow
up questions. And, when the spouse’s translated answer is read in the context
of that interview as a whole and the subsequent evidence before the Panel, I do
not think it serves as an admission fatal to the genuineness of the marriage.
[43]
The
jurisprudence of this Court confirms that there is no specific test or set of
tests established for determining whether a marriage or relationship is genuine
and that the relative weight to be given to each is exclusively up to the
officer or panel (see Keo
v Canada (Minister of Citizenship and Immigration), 2011 FC 1456 at para 24;
Zheng v Canada
(Minister of Citizenship and Immigration), 2011 FC 432 at para 23; Ouk
v Canada (Minister of Citizenship and Immigration), 2007 FC 891 at para 13;
Khan v Canada (Minister of Citizenship and Immigration), 2006 FC
1490 at para 20). In this case the Panel used its discretion and, despite the
evidentiary inconsistencies that it noted, concluded that the marriage was
genuine and was not entered into primarily for the purpose of
acquiring any status or privilege under the IRPA.
[44]
The
Applicant also argues that the Panel’s analysis and reasons regarding the four
areas of discrepancy were deficient. However, the Supreme Court of Canada has
recently established that the adequacy of reasons is not a freestanding ground
for quashing a decision (see Newfoundland and Labrador Nurses' Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16 [Newfoundland
Nurses’ Union])
and that:
A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion (Service
Employees' International Union, Local No 333 v Nipawin District Staff Nurses
Assn, [1975] 1 S.C.R. 382, at p 391). In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[45]
As
stated in Gan v Canada (Minister of Public Safety and Emergency Preparedness),
2006 FC 1329 and as quoted in Achahue v Canada (Minister of Citizenship and
Immigration), 2012 FC 1210 at para 21:
It is not sufficient for an Applicant seeking
judicial review to identify errors with respect to a few of the Board’s
findings of fact or some weakness in its analysis of the evidence. A decision
will be maintained if it can be seen to be supported by other factual findings
reasonably made.
[46]
Furthermore,
as Mr. Justice Michael M.J. Shore stated in Kitomi v Canada (Minister of Citizenship and Immigration), 2012 FC 1293 at para 41:
There
is a rebuttable presumption that the IAD has considered the totality of
evidence in assessing whether a marriage is a bad faith marriage (Provost
v Canada (Minister of Citizenship and Immigration), 2009 FC 1310 at para
31). According to the jurisprudence of this Court, the presumption may be
rebutted if the IAD did not, at least, address evidence that is relevant to the
question at issue and contradicts its conclusion on that issue. As Justice John
Maxwell Evans held in Cepeda-Gutierrez:
[17] ... the more important the
evidence that is not mentioned specifically and analyzed in the agency's
reasons, the more willing a court may be to infer from the silence that the
agency made an erroneous finding of fact 'without regard to the evidence' ...
In other words, the agency's burden of explanation increases with the relevance
of the evidence in question to the disputed facts"
[47]
Here
the Panel addressed the discrepancies in the evidence and concluded that the
incidences of marriage outweighed them. The Applicant is ultimately unhappy
with a perceived lack of stated reasons on certain of the issues and with
weight the Panel ascribed to the four areas of inconsistent evidence put
forward in its submission.
[48]
The
role of a reviewing court is to examine the reasons together with the record to
determine if the outcome is within the range of possible, acceptable outcomes.
Having done so I am of the view that the Decision, taken as a whole, is
reasonable. The Panel’s analysis and reasons were adequate and, in any event,
any inadequacy is not in itself sufficient to warrant the quashing of the
Decision. Moreover, it is not the role of the Court to reweigh the evidence.
Accordingly, and for the reasons above, this application is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed. No question of general importance
for certification has been proposed and none arises. There is no order as to
costs.
"Cecily
Y. Strickland"
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