Date:
20130816
Docket:
IMM-10951-12
Citation:
2013 FC 877
Montréal, Quebec,
August 16, 2013
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
Citizenship
and Immigration Canada (CIC) denied Mr. Arifur Rahman’s application for
permanent residence under the spouse or common-law partner in Canada class, as defined in section 124 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [the Regulations], finding that he was a foreign national
described in its subsection 4(1), as amended. Upon review of the evidence on
record, the immigration officer [the Officer] concluded that the applicant’s
marriage with his sponsor, Ms. Kamrun, was a “relationship of convenience” and
was entered into primarily for the purpose of acquiring a status or privilege
under the Immigration and Refugee Protection Act, SC 2001, c 27 [the
Act].
[2]
The applicant
seeks judicial review of that decision, arguing that the Officer committed a
reviewable error by focusing on certain interview questions and answers which
disclosed minor contradictions, while ignoring the testimonial and documentary
evidence that was more favourable to his case.
Background
[3]
The
applicant is a forty-nine-year-old citizen of Bangladesh. On January 31, 2008,
he left his native country and made a refugee claim in Canada. He left behind his two minor children, whose mother had passed away in 2000.
[4]
On
May 30, 2012, the applicant’s claim for refugee protection was rejected by the
Immigration and Refugee Board, and leave for judicial review of that decision
was denied by this Court in June 2012.
[5]
On
January 8, 2010, the applicant married Ms. Kamrun, a twenty-nine-year-old
Bangladeshi national and Canadian citizen. He states that he had first met her
on February 8, 2008, at the YMCA in Montreal, and that over the next few
months, their relationship gradually developed into a committed, romantic one.
[6]
This
was Ms. Kamrun’s second marriage. She married her first spouse on February 21,
2004 in an arranged marriage. She sponsored her first husband’s application for
permanent residence in Canada on August 31, 2004, and lived with him until
August 2007. No children were born of that marriage and the couple divorced on
June 17, 2009.
[7]
On
August 19, 2010, the applicant filed an application for permanent residence
under the spouse or common-law partner in Canada class, sponsored by his new
wife.
[8]
The
applicant and his wife were interviewed by the Officer on August 30, 2012 and
September 26, 2012 respectively. On October 12, 2012, the Officer dismissed the
applicant’s application because she was not satisfied that the couple was in a
genuine relationship. Furthermore, the evidence established that, on a balance
of probabilities, the applicant’s marriage with his sponsor was entered into primarily for the
purpose of acquiring a status or privilege under the Act.
Decision under
Review
[9]
The
Officer raised a number of inconsistencies between the answers provided by the
applicant and his sponsor at their interview, along with other deficiencies in
the evidence filed in support of the application, which led her to doubt the
genuineness of their relationship. In her decision, the Officer notably refers
to:
•
The
wedding ceremony and reception: The applicant and his wife both stated that they
were married at the Montreal courthouse, but the more detailed information that
they provided regarding the post-wedding reception was contradictory. Moreover,
the Officer found that no documentary evidence or photographs were submitted to
support the couple’s allegation that the wedding was followed by a religious
ceremony at a mosque;
•
The
little interest associated with this important event: The applicant stated that
there was no ceremony on the day of their marriage because it had been held on
a week day, and they both had had to return to work afterward. The applicant’s
wife did not remember which day of the week the ceremony was held on. Moreover,
the photographs taken at the restaurant where the applicant and his wife
allegedly celebrated their marriage do not establish that it was indeed the
location of a wedding reception;
•
The
absence of the sponsor’s family at the wedding ceremony: Upon examination of
the wedding photographs, the Officer observed that no member of the sponsor’s
family attended her marriage. The sponsor had stated that her mother was
present (although not in the photographs), but her father had not attended the
ceremony as he had to be at work;
•
The
engagement and wedding rings: The Officer found that the rings the applicant
and his wife were wearing were not real wedding rings. Furthermore, neither the
applicant nor his sponsor could remember the name of the jewellery stores where
they purchased the rings;
•
Their
divergent plans for the future: The Officer found that the couple did not have
any common plans for their future life together;
•
The
lack of communication surrounding the applicant’s immigration status: The
applicant stated that his wife was aware of the fact that he was subject to a
removal order, and said that she would follow him to Bangladesh should his
application for permanent residence be refused. However, his sponsor, when
asked in her interview about what she would do should such a situation develop,
spontaneously answered that she would not return to Bangladesh. When confronted
with his wife’s answer, the applicant stated that they had in fact not yet
discussed the matter. The Officer found that this demonstrated a lack of
communication between the spouses on a crucial matter that would affect their
relationship. The Officer stated that she had serious doubts that the
relationship would continue in the event that the permanent residence
application was refused and the applicant returned to his country of origin;
•
The
circumstances of their first meeting: The applicant stated that he had first
met his sponsor at the YMCA in the elevator, he had started a conversation with
her, she had given him her phone number, she had then called him, and they had
met up again two or three days later. Meanwhile, in his application, the
applicant had mentioned that he had first seen his wife while she had been
studying at the YMCA where he had lived, he had started a conversation with
her, and she had called him three days later. However, for her part, the
sponsor stated that they had exchanged phone numbers and the applicant had
called her later that same evening to go out to a restaurant for dinner;
•
Whether
the relationship between the applicant and his wife was known to their
respective families and friends: The applicant stated that he had informed his
parents of his relationship with the sponsor only when they had decided to get
married. The sponsor explained that her parents had been unaware that she had
been dating the applicant and that is why the applicant did not remember the
name of the street where her parents live. The Officer observed that the
applicant provided a list of friends’ names without specifying their relationships
or ties to him or to his wife. The Officer also noted that none of the
photographs of the couple taken with friends or family members established that
they were perceived as a couple in society;
•
Their
period of cohabitation: The applicant stated that the couple moved in together
in either February or March 2010 as they had lived with his in-laws immediately
after having gotten married. Meanwhile, in his application, the applicant
stated that he had started living with his wife as of January 8, 2010, the day
of their wedding ceremony. As for the sponsor, she stated that they had moved
in together two days after the wedding ceremony. When confronted with this
contradiction, the applicant explained that for a month after their marriage,
he had continued living with his roommates while his wife had lived with her
parents. They both confirmed that they had moved in together only in February
2010. The lease on record showed, however, that they had taken possession of
their apartment only on March 1, 2010 for a period of twelve months. The
Officer found the fact that the applicant and his wife had not rented lodgings
prior to their wedding, even though they had been dating for two years by that
point in time, showed that their relationship lacked seriousness;
•
When
and where the marriage proposal was made: The applicant stated that he had
proposed in 2009 in a restaurant but he could not recall its name. For her
part, the sponsor did not recall the date, the place or the circumstances of
her marriage proposal.
[10]
When she confronted the couple with the inconsistencies she
detected between their narratives, the Officer was not
convinced by their
explanations. She believed that their responses to her
interview questions simply sought to fill in the holes of their respective
original statements.
[11]
Accordingly,
the Officer concluded that the applicant was a foreign national described in
subsection 4(1) of the Regulations and refused his application for permanent
residence.
Issue and
Standard of Review
[12]
The only issue raised by the
applicant in his written submissions is whether, based on the evidence on
record, it was reasonable for the Officer to find that the applicant failed to
establish, on a balance of probabilities, that his marriage with his sponsor is
genuine and not entered into primarily for the purpose of acquiring a status or
privilege under the Act.
[13]
The
parties are in agreement that determining
whether a relationship is genuine or entered into for the purpose of acquiring
a status under the Act is primarily a factual determination, reviewable under
the standard of reasonableness (Keo v Canada (Minister of Citizenship and
Immigration), 2011 FC 1456 at para 8 [Keo]; Amayeanvbo v Canada
(Minister of Citizenship and Immigration), 2011 FC 621 at para 26; Zheng v Canada (Minister of
Citizenship and Immigration),
2011 FC 432 at para
18;
Kaur v Canada
(Minister of Citizenship and Immigration), 2010 FC 417 at para
14).
[14]
Such
determinations should generally be left to the immigration officer, as should
the assessment of credibility and the weighing of the evidence. As a result,
this Court can only intervene if the officer’s determinations, and thereby her
decision, are based on erroneous findings of fact made in a perverse,
capricious manner or if she made her decision without regard to the material
before her (Minister of Citizenship and Immigration v Tirer, 2010 FC 414 at paras
10-11 [Tirer]; Singh v Canada (Minister of Citizenship and
Immigration, 2012 FC 23 at paras 16-17 [Singh]).
Analysis
[15]
The
applicant argues that
the Officer committed a reviewable error by focusing on certain interview
questions and answers which disclosed minor contradictions, while ignoring the
testimonial and documentary evidence that was more favourable to the
applicant’s case. This argument does not hold up for two main reasons.
[16]
First,
the Officer was
correct in focusing on and relying upon, in her decision, the discrepancies and
deficiencies that she detected in the evidence. The Officer’s role in this
instance was to review and comment on the evidence put
before her in order to determine, on a balance of probabilities, the
genuineness of the couple’s relationship. In doing so, she was to reasonably
consider both the positive and negative factors in the application. The Officer
was then required to provide the applicant with the reasons for her decision:
she was not required to provide reasons as to why she arrived at a certain
decision, but only the reasons justifying her determination of his application. In his submission, the
applicant states that the Officer failed to consider abundant documentary
evidence which supported the bona fide of his marriage. Yet the
applicant fails to specify any evidence that contradicts or seriously
challenges any of the Officer’s negative findings with regard to his
application.
[17]
Although the
applicant may have preferred the Officer to focus exclusively on the evidence
that, in the applicant’s view, supported his case, this is not what is required
of the decision-maker here (see Tirer, above, at paras 12-14). As such,
even if some of the evidence supported a bona fide relationship, the
applicant’s argument amounts to no more than asking this Court to reassess the evidence in order to re-weigh the positive
and negative findings of his application for the purposes of substituting its
own opinion for that of the decision maker’s. This is not the function of a
judicial review. The decision-maker cannot be criticized for having relied upon
some evidence relating to certain criteria regarding the genuineness of a relationship rather than upon other evidence,
so long as both the negative and positive factors are reasonably assessed (Canada (Minister of Citizenship
and Immigration) v Pierre,
2012 FC 1169 at para 26;
Gangurean v
Canada (Minister of Citizenship and Immigration), 2012 FC 286 at para 11).
[18]
Second,
the Officer’s findings are reasonable and entirely supported by the evidence on
record. Even if some of the reasons found in the decision regarding the
couple’s credibility are less relevant or compelling, on the whole, there is
little in the record to support a finding that the impugned decision was based on erroneous findings of
fact made in a perverse and capricious manner or made without regard to the
evidence at hand.
[19]
The
Officer made the following findings of fact: that there was no corroborative
evidence concerning the religious ceremony that the couple alleged was held in
the mosque following the civil ceremony; that the sponsor’s family members
(including her father) were absent at the wedding ceremony; that the couple
told conflicting narratives regarding the circumstances leading up to and
surrounding the marriage; that there was a lack of evidence showing that the
applicant and his sponsor were perceived as a couple by their family and friends;
and that there was a lack of communication regarding important issues in their
relationship such as the applicant’s status in Canada and their common plans
for the future. Coupled with other inconsistencies she found in the information
the applicant and his wife provided at their respective interviews, the Officer
rejected the application.
[20]
On
his part, the applicant argues that it was unreasonable for the Officer to
expect that the applicant and his wife remember the date, the place and the
circumstances of their first meeting, the marriage proposal itself or the day
of the week that the marriage was held on, as these all had occurred more than
two years prior to their interviews with the Officer. The applicant also argues
that it was unreasonable to expect that the couple would rent a place together
before getting married. Moreover, he argues that it was unreasonable for the
Officer to find, based on Western customs, that the couple’s rings were not
traditional wedding rings, without having first considered the possibility that
Bangladeshi marital customs may differ from Western ones. The applicant also
takes issue with the Officer’s conclusions regarding Ms. Kamrun’s lack of
knowledge of the applicant’s outstanding removal order. The sponsor submits
that she was aware of his unsuccessful refugee claim but it could not be
reasonably expected of her that she also be aware that his removal order may
become enforceable at the end of the refugee application process. The applicant
argues that this is a “technical issue” of which Ms. Kamrun was not informed.
[21]
The
Court should be hesitant to apply the holdings from other
cases, as the determination of the genuineness of a
relationship is a highly fact-driven analysis. When an immigration officer
takes issue with a limited number of questions that were submitted to the
applicant and his or her sponsor, the question is whether the inconsistencies
detected in the evidence are significant enough for the officer to
conclude to a lack of genuineness based solely on those
inconsistencies (see
Singh, above, at paras 24 and Keo, above, at para 24).
[22]
Section
5.20 of Citizenship and Immigration Canada’s IP 8 - Spouse or
Common-law partner
in
Canada class
provides criteria to assist the immigration officer in the determination of the
genuineness of a relationship. The immigration officer is to investigate into
the existence of the following factors: a significant degree of attachment,
both physical and emotional; an exclusive relationship; a mutual and
continuing commitment to a shared life together; and an emotional and
financial interdependency. Specifically for the purposes of an analysis for
subsection 4(1) of the Regulations, the immigration officer is also to refer to
OP 2 -
Processing
Members of the Family Class (the OP 2), which is intended to provide guidance
as to the factors that should be considered in identifying a relationship of
convenience.
[23]
Section 12.1
of OP 2 offers the following factors for the immigration officer to consider :
•
The
circumstances and duration of the courtship;
•
The wedding
itself (where it was celebrated. what type of marriage, who attended it);
•
Whether the
marriage ceremony conformed to the beliefs and culture of the participants;
•
Evidence that
the spouses have lived together.
[24]
Meanwhile,
factors that the immigration officer may consider when assessing a common-law
relationship, as listed in section 12.2 of OP 2, include:
•
How the
couple met and the circumstances that led them to decide to live together.
•
The length of
time the parties knew one another before they established a common-law
relationship.
•
How
convincing is the evidence that the couple have lived together for at least one
year? Is it sufficient?
•
Have the
parties combined their affairs to the extent that a reasonable person would
expect of a couple in a conjugal relationship (vs. what could be expected of
“room-mates”)?
•
Do the couple
demonstrate the level of interdependence expected of persons in a conjugal
relationship?
•
Is there
evidence that the couple has established their own household and lives
separately from their families in a conjugal relationship (rather than a
sibling relationship), even if colocated with other family members? In some
cases, DNA testing may be required to ensure that applicants are not blood
relatives.
[25]
There
also exists considerable jurisprudence
pertaining to an immigration officer’s assessment of the genuineness of
a relationship. For instance, in Keo, above, at
paras 23-26, Justice Martineau states that all the circumstances surrounding
the marriage should be looked at by the officer or panel, who is presumed to
have considered all of the evidence before it, and who should not be criticized
for being punctilious in the assessment.
[26]
I agree that
the Officer’s reasons are not flawless. There are several positive, but also
other relevant negative factors, in the evidence that could have been also used
to assess the application. However, the conclusions she based her decision on
are reasonably drawn, and the factors she relied on, such as the specific circumstances
of their first meeting, the proposal and the wedding ceremony, the significance
of their marriage in the eyes of their respective families and friends, as well
as the couple’s lack of pre-marital planning for marital cohabitation, are within the bounds of those
that are established by the jurisprudence and the Citizenship and Immigration
Canada operational manuals. I am convinced that the impugned decision, when
taken as a whole, in light of the entirety of the evidence and the Officer’s
detailed reasons, falls within “the range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9 at para
47).
[27]
The onus is on an applicant to
provide sufficient evidence to satisfy the decision maker that his or her
relationship is genuine and that he does not fall under subsection 4(1) of the Regulations (Nguyen
v Canada (Minister of Citizenship and Immigration), 2012 FC 587 at para
19). The applicant failed to allege or to provide any evidence before the
Officer that their choice of wedding rings was in accordance with Bangladeshi
customs. Even if this argument could be considered persuasive in other
circumstances, it is not sufficient in this instance to affect a review of the
reasonableness of the Officer’s overall decision.
[28]
Finally,
although I agree that the sponsor’s lack of knowledge
regarding the removal order and the procedures that are followed before a
removal order becomes enforceable was not in and of itself enough to assess
credibility about the genuineness of the couple’s relationship, the fact that
the spouses had not yet contemplated the applicant’s potential removal from
Canada and had no common plans to deal with that situation should it have
occurred, was a relevant and reasonable consideration in her assessment.
[29]
Based on the
foregoing, Mr. Rahman’s application for judicial review is hereby dismissed. No
question of general importance is proposed by counsel and none arises in this
case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. This application for judicial
review is dismissed;
2. No question of general
importance is certified.
“Jocelyne Gagné”
Schedule
Relevant
legislative provisions
Subsection 4(1) and section 124 of
the Regulations read as follows:
[emphasis
added]
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