Docket:
IMM-2896-13
Citation: 2014 FC 7
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, January 7, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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KADIO GUY RAYMOND ANDRÉ KOFFI
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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
I. Introduction
[1]
It is well established in the case law of this
Court that there is no specific criterion, or even a set of criteria, to
determine whether a marriage is genuine pursuant to section 4 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations] (Ouk v
Canada (Minister of Citizenship and Immigration), 2007 FC 891 at para 13;
Zheng v Canada (Minister of Citizenship and Immigration), 2011 FC 432 at
para 23; Khan v Canada (Minister of Citizenship and Immigration), 2006 FC
1490 at para 20). It is exclusively up to the visa officer to determine the
relative weight to grant each of the factors, based on the facts, to ensure the
inherent logic of the applicant's story according to the particular clues, or references
made by the applicant himself, meaning the encyclopedia of references, a
dictionary of terms, a picture gallery of the applicant's file in addition to
an assessment to determine whether the facts on file taken together create
harmony or discord (Keo v Canada (Minister of Citizenship and Immigration),
2011 FC 1456 at para 24; Zheng, supra).
II. Introduction
[2]
The applicant is applying for judicial review,
under subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], of a decision by a visa officer dated April 3, 2013,
refusing his permanent resident status on the ground that he was not a member
of the Spouse or Common-law Partner in Canada Class under paragraph 124(a)
of the Regulations.
III. Facts
[3]
The applicant, Kadio Guy Raymond André Koffi, is
a citizen of the Ivory Coast. He arrived in Canada with temporary resident
status as a student, valid until March 31, 2011.
[4]
On February 4, 2010, the applicant met his
spouse, Imelda Palida Kalibi-Desmarais, at a party at a friend's place.
[5]
The applicant and his spouse allegedly began a
relationship after that day, and allegedly travelled to Tunisia together in
July 2010.
[6]
The applicant filed an application to extend his
temporary resident status on April 14, 2011, two weeks after his visa expired.
[7]
On June 25, 2011, the applicant and his spouse
were married.
[8]
On July 29, 2011, the applicant's application
for extension was refused because he did not provide a Quebec Acceptance
Certificate [CAQ].
[9]
On August 1, 2011, the applicant and his wife
began to live together, sharing accommodations with the applicant's cousin.
[10]
On October 26, 2011, the applicant filed an
application for permanent residence in the Spouse or Common-law Partner in
Canada Class, accompanied by a spousal sponsorship application.
[11]
On April 3, 2013, the officer dismissed the
applicant's application for permanent residence, not convinced of the good
faith of the marriage between the applicant and his wife.
IV. Decision presently
under judicial review
[12]
In her decision, the officer found that the
evidence presented by the applicant was insufficient to establish that his
marriage to Ms. Kalibi-Desmarais was in good faith.
[13]
The officer relied on the following factors to
conclude that the applicant's marriage was not genuine:
a.
The applicant provided a certificate from the
Ivory Coast police that indicated he was "single" three months after
his marriage was held;
b.
The couple has been living with other people
since they began living together, despite the fact the applicant receives
financial support from his mother and his wife works full time;
c.
During his interview, the applicant did not
recall whether his wife had met his mother when they travelled together to
Tunisia, and his explanations were confused and evasive;
d.
The marriage between the applicant and his wife
took place without their parents and their explanations for this absence were unclear,
confused and unlikely;
e.
During his interview, the applicant lied to the
officer, making her believe he had paid fines at the Municipal Court of Montreal,
when this was not the case;
f.
The applicant allegedly came to Canada to attend
university, but he failed all his courses during his first session because of
absences, and had similar results in his second session;
g.
The applicant applied for an extension of his
status without providing a valid CAQ despite the fact he had already had to
apply for a CAQ for his initial study permit;
h.
The applicant married his wife less than three
months after his status in Canada had expired;
i.
The applicant contravened the IRPA by studying
in Canada despite his lack of status.
V. Issue
[14]
Did the officer err by finding that the
applicant's marriage was not genuine?
VI. Relevant
legislative provisions
[15]
The following provisions from the Regulations
are applicable and relevant:
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Bad faith
4. (1) For the purposes of these
Regulations, a foreign national shall not be considered a spouse, a
common-law partner or a conjugal partner of a person if the marriage,
common-law partnership or conjugal partnership
(a)
was entered into primarily for the purpose of acquiring any status or
privilege under the Act; or
(b) is
not genuine.
…
Member
124. A foreign national is a member of
the spouse or common-law partner in Canada class if they
(a)
are the spouse or common-law partner of a sponsor and cohabit with that
sponsor in Canada;
(b)
have temporary resident status in Canada; and
(c)
are the subject of a sponsorship application.
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Mauvaise foi
4. (1) Pour l’application du présent
règlement, l’étranger n’est pas considéré comme étant l’époux, le conjoint de
fait ou le partenaire conjugal d’une personne si le mariage ou la relation
des conjoints de fait ou des partenaires conjugaux, selon le cas :
a) visait principalement l’acquisition d’un statut ou d’un
privilège sous le régime de la Loi;
b) n’est pas authentique.
…
Qualité
124. Fait partie de la catégorie des
époux ou conjoints de fait au Canada l’étranger qui remplit les conditions
suivantes :
a) il est l’époux ou le conjoint de fait d’un répondant et vit avec
ce répondant au Canada;
b) il détient le statut de résident temporaire au Canada;
c) une demande de parrainage a été déposée à son égard.
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VII. Standard
of review
[16]
The question of whether a relationship is
genuine or is for the purpose of acquiring a status under the IRPA is a
question of fact subject to the reasonableness standard (Keo v Canada
(Minister of Citizenship and Immigration), 2011 FC 1456 at para 8; Kaur v
Canada (Minister of Citizenship and Immigration), 2010 FC 417 at para 14; Ma
v Canada (Minister of Citizenship and Immigration), 2010 FC 509 at para
32).
[17]
In Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, the Supreme Court of Canada affirmed that the reasonableness
standard "is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But
it is also concerned with whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law" (at para 47).
VIII. Parties'
positions
[18]
The applicant claims that the officer drew
clearly capricious, arbitrary and unreasonable conclusions, taking into
consideration elements that were irrelevant to the assessment of whether the
marriage to his wife was genuine, such as his criminal record that indicated he
was "single" three months after his wedding, his dishonesty towards
the officer regarding unpaid fines and his non-compliance with the Regulations
by studying without a permit. The applicant also claims that the officer erred
by granting significant weight to the fact his mother could not attend his
wedding and by doubting that the couple travelled to Tunisia.
[19]
The respondent claims that, considering all the
evidence on file, it was reasonable for the officer to conclude that the marriage
between the applicant and his wife was essentially to acquire a status or
privilege under the IRPA.
IX. Analysis
[20]
The case law of this Court has clearly
established that there is no particular criterion or even a set of criteria, to
determine whether a marriage is genuine pursuant to section 4 of the
Regulations (Ouk, supra; Zheng, supra; Khan,
supra). It is exclusively up to the visa officer to determine the
relative weight to grant each of the factors, based on the facts, to ensure the
inherent logic of the applicant's story according to the particular clues, or
references made by the applicant himself, meaning the encyclopedia of
references, a dictionary of terms and a picture gallery of the applicant's file
in addition to an assessment to determine whether the facts on file taken
together create harmony or discord (Keo, supra; Zheng, supra).
[21]
In this case, the Court found that is was not
unreasonable for the officer to find that the applicant did not meet his
obligation to show, on a balance of probabilities, that his marriage was
genuine or that he was not essentially aiming to acquire a status or privilege
under the IRPA.
[22]
Contrary to the applicant's claim, the Court feels
that all the factors the officer took into consideration were relevant. It was
completely reasonable for the officer to grant significant weight to the civil
status noted in the applicant's criminal record, as well as his dishonesty
regarding unpaid fines and his non-compliance with the Regulations. Considering
the applicant's story was incoherent and contained serious gaps, the Court
agrees with the respondent that these were material elements in the
application for permanent residence.
[23]
It is clear from the decision that the officer
considered numerous negative factors (not only those listed above) and
came to her decision by finding that these negative factors outweighed the
positive factors in the application. The applicant did not show how the officer
erred in her analysis.
[24]
The Court feels that the evidence on file fully
supports the assessment the officer made and justifies her doubts. In fact,
with respect, there was very little evidence before her that could have led her
to believe that the marriage was authentic.
[25]
With regard to the applicant's claims that the
officer erred by giving unwarranted weight to the fact his mother could not
attend his wedding and doubted that he travelled to Tunisia, the Court feels
that these arguments are without merit. Given the lack of documentary evidence
on file and the insufficient explanations given by the applicant and his spouse
during their testimony, the Court feels that the officer drew reasonable
conclusions on these factors.
[26]
As the respondent noted at paragraph 4 of his
memorandum, the applicant cannot ask the Court to intervene simply because he
does not agree with the officer's assessment of the evidence (Said v Canada
(Minister of Citizenship and Immigration), 2011 FC 1245; Tai v Canada
(Minister of Citizenship and Immigration), 2011 FC 248 at para 49). It is
not the Court's role to reassess the evidence that was before the officer and
make a different finding (Donkor v Canada (Minister of Citizenship and Immigration),
2011 FC 141).
[27]
Overall, the Court finds the impugned decision
belongs to the "range of possible, acceptable outcomes which are
defensible in respect of the facts and law" (Dunsmuir, supra,
at para 47). The officer considered all the evidence and she concluded,
properly, that the many inconsistencies in the file were not sufficiently
explained and therefore, she could not be sure that the application had been
submitted in good faith.
X. Conclusion
[28]
For all the above-noted reasons, the applicant's
application for judicial review is dismissed.
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