Date:
20130704
Docket:
IMM-9999-12
Citation:
2013 FC 748
Ottawa, Ontario,
July 4, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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SON HUYNH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of a member of the
Immigration Appeal Division of the Immigration and Refugee Protection Board [the
Board], pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act].
[2]
The
Board dismissed the Applicant’s appeal of a visa officer’s decision to refuse
permanent residency status for the Applicant’s wife, by concluding that she was
not a spouse within the meaning of the Act, pursuant to subsection 4(1) of the Act
Regulations [the Regulations].
I. Issues
[3]
The
issues raised in the present application are as follows:
A. Can
the Board make a finding that a foreign national shall not be considered a
spouse if the primary purpose was to acquire any status or privilege under the
Act under section 4(1)(a) of the Regulations, without making a finding on the
genuineness of the marriage?
B. Did
the Board err by failing to apply the presumption of legitimacy and by failing
to give evidentiary weight to the existence of a child of the marriage?
C. Did
the Board commit a legal error by considering the facts at the time of the visa
office interview, rather than at the time of the appeal to the Board?
D. Did
the Board have to consider and apply the Convention on the Rights of the Child?
II. Standard of review
[4]
At
paragraph 2 of its reply to the Respondent’s memorandum of argument, the Applicant
asserts that the applicable standard of review is correctness.
[5]
While
the Respondent does not address the standard of review separately, it does
refer to “the reasonableness” of the Board’s decision on several occasions in
its memorandum of argument.
[6]
All
four issues raised are reviewable on the standard of reasonableness (Gill v Canada (Minister of Citizenship and Immigration), 2012 FC 1522 at para 18; Dunsmuir v New Brunswick, 2008 SCC 9 at para 54). Moreover, even if the standard of correctness
could arguably be applied to the first question, as to whether a finding of genuineness
must be made before making a finding that the primary purpose of the marriage
is immigration, my decision below would not be different.
III. Background
[7]
The
Applicant, Son Huynh, is a 49-year-old Canadian citizen. He has two children
from a previous relationship, aged 19 and 21.
[8]
On
February 16, 2009, the Applicant married To Hung Tran, a 37-year-old Vietnamese
citizen. After Ms. Tran was introduced to the Applicant by her brother, the Applicant
visited Ms. Tran in Vietnam about one month later. During that visit, the Applicant
and Ms. Tran were engaged.
[9]
Ms.
Tran was previously married from 2001 to 2004 to Ngoc Chau Nguyen, a Canadian
citizen. She met Nguyen in December 2000 and married him in October 2001.
Nguyen sponsored an application for permanent residency by Tran shortly after
they were married. This application was denied in August 2002. An appeal was
abandoned in 2003, shortly before they were divorced. Ms. Tran stated that
their relationship broke down because they did not understand each other very
well and that the denial of her permanent residency application caused
difficulty in their relationship.
[10]
On
March 20, 2009, Ms. Tran applied for permanent residency status in Canada, sponsored by the Applicant. On February 23, 2011, the application was refused by a
visa officer. The Applicant appealed this decision to the Board.
[11]
On
December 7, 2011, Ms. Tran gave birth to a son, allegedly fathered by the Applicant.
IV. Analysis
A. Can the Board Make a
Finding that a Foreign National Shall not be Considered a Spouse if the Primary
Purpose Was to Acquire any Status or Privilege Under the Act Under Section
4(1)(A) of the Regulations, Without Making a Finding on the Genuineness of the
Marriage?
[12]
Simply
put, the Board can. The Applicant argues that the Board cannot find that the
primary purpose of the marriage was immigration to Canada, without making a
finding of genuineness. He argues that a proper interpretation of section 4(1)
of the Regulations, in view of the Act as a whole, supports this view.
[13]
The
wording of subsection 4(1) of the Regulations is unambiguous; a finding of bad
faith can involve either a finding that the marriage was entered into
primarily for the purpose of immigration or that the marriage is not
genuine. It is a disjunctive test. This interpretation was recently confirmed
by Chief Justice Paul Crampton in Gill v Canada (Minister of Citizenship and
Immigration), 2012 FC 1522, at paras 28-31.
[14]
Further,
the Regulatory Impact Analysis Statement issued with the change to Section 4,
is instructive and specifically states at pp. 1943 and 1944:
Under the previous provision, it was difficult to
properly identify relationships of convenience…However, a “bad faith”
relationship is present when either of these related factors [a relationship is
not genuine, or it was entered into primarily for the purpose of acquiring any
status or privilege under the Act] is apparent…
(1) Create a disjunctive relationship between the
“genuineness” of the element and the “purpose” element of the bad faith
assessment. This clarifies that a finding of bad faith can be made if either of
these elements is present.
B. Did the Board Err by
Failing to Apply the Presumption of Legitimacy and by Failing to Give Any
Evidentiary Weight to the Existence of a Child of the Marriage?
[15]
The
Applicant argues that the Board’s finding that there is no evidence of the
paternity of the Applicant’s son violates the presumption of paternity and
inappropriately clouds the reasoning process of the Board. However, as the
Applicant’s wife Ms. Tran was not yet pregnant when she married the Applicant,
her son’s birth and the issue of paternity were subsequent to the finding by
the Board of primary purpose being immigration at the time the marriage
happened. As well, the Board specifically did not address the genuineness of
the marriage, and correctly found that it did not have the discretion to
consider humanitarian and compassionate factors if the marriage was entered
into primarily for the purpose of immigration. Nevertheless, the Board did take
into account both the best interests of the child and the paternity issue as
factors in reaching its decision. The Board did not err by failing to
explicitly discuss these issues that post-dated the marriage. Moreover, while
evidence about matters that occurred subsequent to a marriage can be relevant
to considering whether the marriage was entered into primarily for the proposed
acquiring any status or privilege under the Act, it is not determinative.
[16]
In
my view, it was reasonable for the Board to conclude that at the time Ms. Tran
entered the marriage, she did so for the primary purpose of acquiring a status
or privilege under the Act.
C. Did the Board Commit a
Legal Error by Considering the Facts at the Time of the Visa Office Interview,
Rather Than at the Time of the Appeal to the Board?
[17]
The
Board did not commit any error. The Applicant argues that by stating Ms. Tran
was not pregnant at the time of the interview, the Board ignored her pregnancy
at the time of the Appeal.
[18]
While
the Board is required to consider all the evidence before it, it did so here.
The Board acknowledged the birth of the child, and also properly considered the
circumstances of the marriage and credibility issues. Subsection 4(1) of the Act
clearly specifies that the focus should be in the intentions of the parties
when they entered into the marriage, in deciding whether the primary purpose is
to acquire any status or privilege under the Act. The Board considered a number
of factors in reaching its conclusions:
i.
the
inconsistency between Ms. Tran’s explanation for the breakdown of her first
marriage (lack of understanding each other before marriage) and the pace at
which Ms. Tran and the Applicant became engaged, within one to two months of
meeting each other;
ii. the
gap in their ages and difference in personal circumstances, given the Applicant
had two previous adult children from a previous relationship;
iii. no
evidence of common interests;
iv. other
concerns relating to contradictions on the evidence and the fact Ms. Tran’s
brother introduced Ms. Tran to both her spouses.
These are relevant
factors to be considered (Keo v Canada (Minister of Citizenship and
Immigration), 2011 FC 1456, at para 25).
D. Did the Board Have to
Consider and Apply the Convention on the Rights of the Child?
[19]
The
Board did consider the Convention on the Right of the Child, but gave it little
weight in this case. The Board correctly considered the Convention and its
application. There is no ambiguity as to the meaning of Section 4(1) of the
Regulations and application of the Convention on the Rights of the Child is not
a factor in this case (Bell Express Vu Limited Partnership v Rex, 2002
SCC 42 at paras 28-29).
[20]
Moreover,
Section 67(1)(c) and Section 65 of the Act, when read in conjunction, clearly
indicate that where a foreign national is found not to be a member of the
family class, humanitarian and compassionate considerations do not need to be
considered.
[21]
The
Board’s decision was reasonable, transparent and intelligible and ought not to be
reconsidered. The decision was “within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9).
[22]
The
Applicant’s counsel has proposed two questions for certification:
a) When
the Immigration Appeal Division of the Immigration and Refugee Board applies
Section 4 of the Act Regulations, does the Board need, in order to address
properly the question whether the primary purpose of a marriage was gaining
admission to Canada,
i.
either
to assume that the marriage was genuine at the time of marriage or to determine
whether the marriage was genuine at the time of marriage, and
ii.
either
to assume that a child of the mother who may be a child of the marriage was a
child of the marriage or to determine whether the child was a child of the
marriage?
[23]
I
have considered the Respondent’s objection and the Applicant’s reply to whether
either question should be certified. On the basis that these questions do not
concern the proper interpretation of Subsection 4(1) of the Regulations and do
not require any clarification or consideration by the Federal Court of Appeal
in this regard, I agree with the Respondent.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that this application for judicial
review is dismissed and no question is to be certified.
“Michael D. Manson”
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