Docket: IMM-5204-13
Citation:
2014 FC 1077
Ottawa, Ontario, November 13, 2014
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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ISREE SINGH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review by
Isree Singh [the Applicant] under subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the IRPA] of a decision by the
Immigration and Refugee Board of Canada, Immigration Appeal Division [the IAD],
dated July 11, 2013, wherein the IAD determined that the Applicant’s marriage met
the definition of the exclusion in subsection 4(1) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [the Regulations].
[2]
I am of the view that this application should be
dismissed as the law stands, however I am certifying a question for the Federal
Court of Appeal asking whether the applicable Regulations are ultra vires
the IRPA. I have found the applicable Regulations intra vires and
binding on me.
II.
Facts
[3]
The Applicant was born in 1958 in Guyana, came to Canada in 1998 and is now a Canadian citizen. He was married twice before the
marriage in issue, but unfortunately both marriages ended unhappily for the
Applicant. His cousin then introduced him to Sabitree Singh [the spouse or
wife], who is a citizen of Guyana and the mother of Antonio Subedar. Her
previous marriage from 1984 had ended in 2006 when her late husband passed
away. After their introduction, she and the Applicant began speaking on the
phone in early June 2008, met in person in Guyana for the first time on July
30, 2008 and were married in Guyana on the same visit, seven days later, on
August 6, 2008.
[4]
The Applicant applied to sponsor his wife once
before, but the application was refused on March 20, 2009 due to insufficient
documentary evidence to demonstrate an ongoing and genuine relationship. The
Applicant did not appeal that decision. The Applicant submitted a second
sponsorship application in January 2010 with additional and more comprehensive
evidence. The spouse was interviewed in Guyana but the visa officer refused the
application and found the spouse entered the marriage for the purpose of
acquiring status or privilege under the IRPA, and that the marriage was not
genuine. The Applicant appealed, the IAD held a hearing, but dismissed the
appeal. This application for judicial review arises from that dismissal.
III.
Analysis
[5]
At issue before the IAD was whether the marriage
was either entered primarily for the purpose of acquiring any status or
privilege under the IRPA (the “primary purpose test”), or was not genuine (the
“genuineness test”) pursuant to subsection 4(1) of the Regulations. Either
finding, as the Regulations are now worded, preclude the spouse from obtaining
the necessary visa to live with her husband in Canada: Dalumay v Canada (Minister of Citizenship and Immigration), 2012 FC 1179 at para 25 [Dalumay].
Subsection 4(1) of the Regulations now states:
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Bad faith
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Mauvaise foi
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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
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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 :
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(a) was
entered into primarily for the purpose of acquiring any status or privilege
under the Act; or
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a) visait
principalement l’acquisition d’un statut ou d’un privilège sous le régime de
la Loi;
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(b) is not
genuine.
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b) n’est pas
authentique.
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[6]
It should be noted that subsection 4(1) was
reformulated in September 2010. Notably, the word “or”
between (a) and (b) was inserted to replace the word “and”,
thereby changing what was a conjunctive definition to a disjunctive definition.
The older version of subsection 4(1) states:
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Bad faith
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Mauvaise foi
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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.
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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.
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[7]
The key difference is that under the former
definition, a marriage originally entered into for the primary purposes of
acquiring status or privilege over time could become a genuine marriage thereby
allowing the foreign spouse to join his or her partner in Canada. As worded now, however, a foreign national who originally entered into a marriage for the
purpose of acquiring status or privilege, but whose marriage grows over time
into a genuine marriage is barred from coming to Canada to live with his or her
lawful spouse. Therefore, as the law now stands, the Applicant’s wife of six
years may not come to Canada to live with her husband even if their marriage is
now genuine.
[8]
At the hearing before the visa officer, the onus
was on the Applicant to prove, on a balance of probabilities, that his marriage
was genuine and was not entered primarily for the purpose of acquiring
status or privilege under the IRPA. As a result of the visa officer’s findings
against the parties on both bases, the appeal to the IAD could only succeed if
the Applicant satisfied both requirements. Likewise, unless the regulations are
ultra vires the IRPA or suffer some other defect, the Applicant may only
succeed on this judicial review if he establishes that both the finding
regarding primary purpose and the finding on genuineness fall outside
the allowable ranges of reasonable outcomes.
A.
Standard of Review
[9]
Judicial review is not an appeal but rather an
assessment of the reasonableness of a decision. This Court has held that
decisions of the IAD, as an expert tribunal, are assessed on the reasonableness
standard and are owed deference, and generally should only be set aside where
there is an erroneous finding of fact made in a “perverse
and capricious manner or without regard for the material before it”,
especially when dealing with questions of mixed fact and law such as
credibility assessment and the genuineness of the marriage: MacDonald v
Canada (Minister of Citizenship and Immigration), 2012 FC 978 at para 16; Dalumay
at para 19; Kaur Barm v Canada (Minister of Citizenship and Immigration),
2008 FC 893 at paras 11-12.
[10]
In Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at para 47, the Supreme Court of Canada explained what is required of a court
reviewing on the reasonableness standard:
A court conducting a review for reasonableness
inquires into the qualities that make a decision reasonable, referring both to
the process of articulating the reasons and to outcomes. In judicial review,
reasonableness 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.
[11]
I will deal with the two parts of subsection
4(1) of the Regulations separately.
B.
4(1)(a): Marriage entered into primarily for the
purpose of acquiring any status or privilege
[12]
Much of Applicant’s argument on paragraph 4(1)(a)
regarding primary purpose amounts to asking this Court to reweigh the evidence
that was before the IAD. The Applicant disagrees strongly with the way the IAD
assessed and evaluated the evidence before it. However, the decision of the IAD
may only be set aside where it is unreasonable in that there is an erroneous
finding of fact made in a perverse and capricious manner or without regard for
the material before it.
[13]
In my view, the Applicant has not identified a
finding of fact made by the IAD in a perverse and capricious manner or without
regard for the material before it in this connection. Based on the evidence
before it, the IAD found, on the correct legal standard, namely on a balance of
probabilities, that the wife (not the Applicant) entered into this marriage
primarily for the purpose of immigrating to Canada with her son. Some of the
key findings in arriving at this conclusion were: the Applicant was the only
marriage candidate presented to his spouse; the spouse had very few
reservations with the proposed match and agreed to marry the Applicant without
first talking or meeting him; the Applicant’s residence status in Canada played
a role in the spouse’s decision to marry him; they agreed to marry after a
30-45 minute long telephone call; the Applicant hadn’t talked nor met his
spouse’s son before agreeing to enter into marriage; the hastiness of the
marriage and the lack of evidence demonstrating that this is a characteristic
of semi-arranged Indo-Caribbean marriages. In my view, all of these findings
were open to the IAD on the record.
[14]
I should note that the issue of arranged
marriage was addressed by both sides at the hearing. While the application
stated that the marriage was arranged (the “arranged”
box was checked off), and while the Applicant described the marriage as a Caribbean “semi-arranged” marriage, the IAD correctly
concluded there was no evidence as to what that particular expression meant.
The IAD was criticized by the Applicant for drawing comparisons with arranged
marriages in India, where the term “arranged” has, as I understand it, a
specific meaning. The marriage in question was not arranged except that the
parties were introduced to the Applicant’s cousin who was also a friend of the
father of the Applicant’s spouse. In view of the evidence, the marriage was not
arranged in any special sense of the word.
[15]
In addition the IAD reasonably considered Indian
marriage culture and customs because the comparison was raised by the
Applicant’s spouse who stated (regarding the size of the wedding): “As is customary with Hindu families in Guyana, there are no big ceremonies done after the first marriage ceremony.” In my view, the
IAD must also be credited with specialized knowledge in this regard. That said,
it is clear the IAD’s decision was not determined by this comparison.
[16]
It was also open, i.e., reasonable for the IAD
to find that the Applicant’s residency in Canada played a role in the wife’s
decision to marry, and to give limited consideration to the spouse’s submission
that she was marrying in order to give her son the opportunity to have a
father. I note that the IAD’s suggestion that the wife chose to immigrate to Canada because Canada is a better place for her child to become someone, was not correct. That
answer was based on a very different question, namely her plans for herself and
her son once in Canada, and not her purpose in marrying the Applicant in the
first place. Overall, and I might not agree with the decision below, it was reasonable
for the IAD to conclude on a balance of probabilities that the Applicant’s
spouse entered into the marriage primarily to immigrate to Canada with her son.
C.
4(1)(b): Genuine marriage
[17]
The foregoing conclusion regarding the primary
purpose of the marriage is sufficient to dispose of this application for
judicial review, as the law now stands, but in this case it is necessary to
also review the IAD’s finding regarding the genuineness of the marriage.
[18]
The Applicant argues that the marriage
subsequently developed genuineness, and submits that a currently genuine
marriage of many years duration should be taken as strong evidence of the
genuineness of the marriage ab initio. The Applicant cites Paulino v Canada (Minister of Citizenship and Immigration), 2010 FC 542 at para 29, a case that
predates the wording changes of subsection 4(1) of the Regulations:
An analysis of section 4 of the Regulations
requires: first, an assessment of the genuineness of the marriage; and second,
a determination of whether the marriage was entered into primarily for the
purpose of acquiring status or privilege. However, the Applicant need only
prove that one of these branches does not apply to his case.
[19]
The excerpt above refers to Khera v Canada (Minister of Citizenship and Immigration), 2007 FC 632 at para 6 [Khera],
which states that a marriage originally entered into to gain status or
privilege under the IRPA may become genuine over time:
Under section 4 of the [Regulations], “a
foreign national shall not be considered a spouse … if the marriage … is not
genuine and was entered into primarily for the purpose of acquiring any status
or privilege under the Act”. According to the case law of this Court, these two
requirements are conjunctive. A conjunctive interpretation leaves open the
possibility that a marriage, which was originally entered into for the purpose
of gaining status under IRPA, may become genuine and therefore not excluded
under the Regulations […] [Emphasis added].
[20]
What hasn’t changed between the old and the new
wording of the Regulations is that the past tense is used in reference to the
primary purpose test (“was entered into”), while the
present tense (“is not genuine”) is used in relation to the genuineness test. Therefore the
relevant time to assess the marriage’s genuineness is the present, while the
relevant time to assess the primary purpose of the marriage is in the past,
i.e., at the time of the marriage. This is made clear by the use, in both the
English and French texts of the Regulations, of the past tense respecting
primary purpose (4(1)(a)) and the present tense for genuineness (4(1)(b)).
[21]
The possibility alluded to in Khera is no
longer permitted by the wording of the new Regulations, as found by this Court
in Keo v Canada (Minister of Citizenship and Immigration), 2011 FC 1456
at para 13:
The amendment made to section 4 of the Regulations
is not cosmetic in nature; the use of the word “or” in the English version and
of the words “selon le cas” in the French version are
very clear: if either of the two elements (genuineness of marriage and
intention of the parties) is not met, the exclusion set out in the new
subsection 4(1) of the Regulations applies.
[22]
The following is the evidence relied upon by the
IAD regarding genuineness, with my comments in parentheses:
i)
the fact the Applicant owns property in Guyana (this was, however, a neutral consideration given that the Applicant lived with his
spouse while there and that his brother looked after the property);
ii)
the Applicant’s financial support (which was
both steady and unquestioned and which in my view is not a negative but a
positive factor in the Applicant’s favour); and
iii)
the Applicant’s visits and very regular calls to
his spouse, and his stated plan to return to Guyana if judicial review is
dismissed (all of which are again positive factors favouring the Applicant).
[23]
That said, the IAD had concerns about the
Applicant’s relationship with his step-son. That concern appears to have been
based on his wife’s unawareness of a nickname the Applicant used for her son.
[24]
In my view the IAD’s finding that the marriage
was not genuine was not reasonable for two reasons. First, the assessment of
the relevant factors was unreasonable. Second, the wrong test was used in that
genuineness is to be separately assessed from primary purpose. I will discuss
each below.
[25]
Regarding the assessment of relevant factors, each
of the factors considered by the IAD actually support (or are neutral) regarding
the genuineness of this marriage except one, namely the husband/step-son
relationship. In my view it was unreasonable to find the marriage is not
genuine based on so trifling a detail. But for this finding regarding the
nickname, this marriage appears to have developed over the years as solidly as
one might expect, given the difficulties caused by the distance between the
parties, and the related challenges caused by the Applicant’s limited ability
to be physically present with his wife and step-son. They live a great distance
apart, which does not appear to be appreciated in a material way by the IAD.
[26]
The IAD also erred in that it assessed the
genuineness of the marriage, not as a stand alone matter to be determined by
the IAD, but as factor to be weighed against its finding on the separate issue
of primary purpose. The IAD stated:
the testimony and documentary evidence in
support of any subsequent development of the relationship after the marriage to
be inadequate to outweigh the initial primary purpose of entering into the
marriage in order for the Applicant and her child to immigrate to Canada for a better future.
In my view it was an error to ask whether
genuineness ‘outweighed’ the primary purpose. That is not how the Regulations
are worded. That is not how the Regulations should be interpreted or construed.
As noted, the Regulations are now disjunctive and describe two different
scenarios. In my view, one of two disjunctive provisions should not be tied to
or determined by the other. One of two disjunctive provisions may not be
deprived of legal effect because of a finding respecting the other. In law, one
may not be ‘outweighed’ by the other. I understand that there may be some
overlapping evidence between primary purpose and genuineness even given the
differences in their temporal focal points, but that does not diminish the
obligation of the IAD to consider the two separately. The interpretation and
application by the IAD of subsection 4(1) of the Regulations was in my view unreasonable
because it is not defensible.
D.
Question to Certify
[27]
The Applicant submits that subsection 4(1) of
the Regulations is ultra vires its enabling statute because it is contrary
to paragraph 3(1)(d) of the IRPA, which provides that one of the statute’s
objectives is “to see that families are reunited in Canada”. According to the Applicant, under the disjunctive test now applicable, a
family may not be reunited, regardless of how genuine their marriage has
become, because of the spouses’ motivations for entering into marriage in the
first place.
[28]
I do not agree with this submission. The
Regulations and Parliament’s intent was to create a disjunctive relationship
between the genuineness and the primary purpose aspects of subsection 4(1) of
the Regulations. Furthermore, subsection 4(1) of the Regulations operates to
support the IRPA’s objective of family reunification rather than to frustrate
it. This was found to be the case with other analogous exceptions to this
general objective. For example, the Federal Court of Appeal found that
excluding a family member as a member of the family class under paragraph
117(9)(d) of the Regulations is not inconsistent with or ultra vires to
the IRPA’s family reunification objective: Azizi v Canada (Minister of
Citizenship and Immigration), 2005 FCA 406 at paras 27-32; dela Fuente v
Canada (Minister of Citizenship and Immigration), 2006 FCA 186 at para 48.
In my opinion, the same logic applies to the present case and therefore
subsection 4(1) of the Regulations is not ultra vires.
[29]
In the result I am unable to grant judicial
review because, as noted above, in order to succeed, the Applicant must obtain
a finding that the IAD acted unreasonably regarding both the primary purpose
and genuineness tests. He has only succeeded on the issue of genuineness even
though I have found the IAD acted unreasonably in respect of its assessment of
the evidence and, in addition, applied the wrong legal test.
[30]
The Applicant submits the following question for
certification:
Is the disjunctive element of subsection 4(1)
of the Immigration and Refugee Protection Regulations, SOR/2002-227 (as
amended SOR/2010-208) ultra vires the enabling statute (the Immigration
and Refugee Protection Act, SC 2001, c 27) because subsection 4(1) would
prohibit the sponsorship of a spouse when the marriage was found to be entered
into primarily for the purpose of gaining status, notwithstanding a finding
that the marriage always was or subsequently became genuine, and would
therefore frustrate the aims and objectives of the Act, in particular section
3(1)(d), “to see that families are reunited in Canada”?
[31]
In my opinion, a positive answer to the proposed
question would be dispositive of the application. Moreover, this issue goes
beyond the interests of the parties and is a question of “broad
significance or general importance”: Zazai v Canada (Minister of Citizenship and Immigration), 2004 FCA 89 at para 11; Zhang v Canada (Minister of Citizenship and Immigration), 2013 FCA 168 at para 9; Kanthasamy v Canada (Minister of Citizenship and Immigration), 2014 FCA 113). Therefore I will
certify the question as set out above.
Conclusion
[32]
I therefore conclude that the application for
judicial review should be dismissed, a question should be certified, the whole
with costs in the cause.
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