Docket: IMM-8200-14
Citation:
2015 FC 779
[REVISED ENGLISH TRANSLATION]
Ottawa, Ontario, June 23, 2015
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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SOEURETTE SERAPHIN
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], of a decision dated October 27, 2014, of the
Immigration Appeal Division dismissing the appeal of the decision of the
immigration officer [the officer] refusing the application for a permanent resident visa in the
family class filed by her husband, Claude Junior Auguste.
[2]
After having read the parties’ records and
having considered their written and oral submissions, the application for
judicial review shall be dismissed for the reasons outlined below.
I.
Background
[3]
The applicant first arrived in Canada on April
13, 2002, and obtained permanent residence on December 2, 2003, having been
sponsored by her ex-husband. The applicant and Mr. Auguste met each other on
July 5, 2006 in Haiti, when the applicant was there on a visit. In July 2008, Mr.
Auguste asked the applicant to marry him and, on August 9, 2008, they became
engaged. The applicant and Mr. Auguste decided to marry one year later. The
applicant and Mr. Auguste were married on August 29, 2009 in Haiti. In
March 2010, the applicant took steps to bring her sister to Canada, the sister
having lost her daughter in the January 2010 earthquake. In December 2010, the
applicant began the process of sponsoring Mr. Auguste.
[4]
On February 14, 2011, Mr. Auguste went to the
Canadian Embassy in Haiti for an interview with the officer. On February 22,
2011, the officer confirmed the refusal of Mr. Auguste’s application for a
permanent resident visa in the family class. The officer was not satisfied that
the relationship between Mr. Auguste and the applicant was [translation] “genuine
and bona fide”.
[5]
In March 2011, the applicant appealed the
refusal of her sponsorship application for Mr. Auguste to the IAD.
[6]
On November 12, 2014, the IAD dismissed the
applicant’s appeal on the basis that she had not demonstrated that the marriage
had not been entered into primarily for the purposes of acquiring status and
privilege for Mr. Auguste under the IRPA.
II.
Issues
[7]
In the applicant’s view, the IAD erred in the
following ways:
- The IAD employed the wrong legal test to assess
whether the marriage had been entered into primarily for the purposes of
acquiring status or privilege under the IRPA;
- The IAD cast doubt on the genuineness of the
relationship without providing an explanation, thereby failing to comply
with the rules of natural justice; and
- The IAD failed to adequately explain the reasons
for its decision, preventing the appellant from understanding its
reasoning in a manner consistent with the rules of natural justice and
administrative law.
III.
Analysis
[8]
The applicant essentially argues that:
- The IAD did not assess the primary purpose of the marriage
at the time it was entered into, as required by the test under paragraph
4(1)(a) of the IRPR (Singh v Canada (Minister of Citizenship and
Immigration), 2014 FC 1077 at para 20 [Singh]). Indeed,
few elements of the decision refer to the time of the marriage.
- The IAD’s reasons are insufficient to support its
conclusions; and
- The IAD’s reasons are tendentious and fail to take
into account her explanations and those of Mr. Auguste. For example, the
applicant explained that she had only two weeks of vacation per year,
which is why she only visited Haiti once a year, but the IAD did not
consider this explanation.
[9]
In this case, I agree with the respondent that
the IAD applied the correct test with regard to paragraph 4(1)(a) of the
IRPR. Moreover, and as the respondent noted, there is no specific test to
establish whether a marriage is genuine (Stuart v Canada (Minister of
Citizenship and Immigration), 2012 FC 1139 at para 24), and this
principle may be extended to the assessment of the purpose of the marriage (Patry-Shala
v Canada (Minister of Citizenship and Immigration), 2015 FC 187 at paras
8-9). I am also satisfied that the IAD applied the correct standard of proof under
subsection 4(1) of the IRPR, namely, the balance of probabilities (Singh
at para 13).
[10]
Thus, the credibility of the applicant and of Mr.
Auguste are relevant considerations for assessing the primary purpose of the marriage
in 2009. It is for the IAD to determine the weight to be assigned to various
factors when assessing the purpose of the marriage (Canada (Minister of Citizenship
and Immigration) v Chen, 2013 FC 215 at para 39).
[11]
In that sense, I am of the view that there was
sufficient persuasive evidence to justify the IAD’s finding that it did not
believe Mr. Auguste in its assessment of the purpose of the marriage.
[12]
The IAD concluded that the marriage had been
primarily entered into for the purpose of acquiring a status or privilege under
the IRPA. I am satisfied that in this case, the IAD weighed all of the evidence
in reaching this conclusion and the fact that the IAD considered factors that
occurred after the couple had entered into the marriage does not constitute a
reviewable error. Thus, in light of the following factors, I find that it was
reasonable to have concluded that the couple’s marriage falls under the exclusion
at paragraph 4(1)(a) of the IRPR:
- Mr. Auguste apparently professed his love for the
applicant on June 25, 2007, and subsequently decided to marry her after
having met her only a few times;
- Mr. Auguste traveled to Panama from May 6 to May
14, 2008, to buy clothes for the wedding but asked the applicant to marry
him in July 2008;
- Mr. Auguste obtained a notarized document granting
custody of his child to the applicant a few days before his interview with
the officer;
- Mr. Auguste gave contradictory testimony about when
he raised the idea of marriage with the applicant and about when she met
his family for the first time;
- Neither the applicant nor Mr. Auguste were able to
provide clear testimony as to when Mr. Auguste asked the applicant to marry
him.
- Mr. Auguste stated that he had never been in a
serious relationship prior to meeting the applicant, when in fact he had a
child from a previous relationship;
- Mr. Auguste told the visa officer that he was
unaware that the applicant had been married previously and that she had
immigrated to Canada by way of sponsorship;
[13]
It is important to take into account the fact
that the applicant had only traveled to Haiti once a year, for a total of one
month, between July 2006 and August 2009, before the couple entered into the marriage.
Although the applicant explained that she was limited by the amount of annual
leave she could take, the fact remains that the couple had met few times before
deciding to marry. In addition, the fact that the applicant only began the
process of sponsoring her husband in December 2010 casts a negative light on
the purpose of the marriage. I do not accept the applicant’s argument that she
concentrated her efforts first on taking steps to bring her sister, a victim of
the January 2010 earthquake, to Canada, as one process does not preclude the
other.
[14]
Nor do I accept the applicant’s argument that Mr.
Auguste did not understand the officer’s question when she asked him whether he
was aware that the applicant had been married before and that it was by way of
sponsorship that she had immigrated to Canada. In short, the hearing transcript
shows that Mr. Auguste was not a credible witness.
[15]
The Court agrees that the IAD could have fleshed
out its reasons; however, in light of Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland],
the reasons for a decision must be read together with the outcome and the
decision should be upheld where, read as a whole, the decision serves the
purpose of showing whether the result falls within a range of possible outcomes
(Newfoundland at para 14). I believe that the IAD pointed out in its
decision the elements it found to be problematic, which in turn leads us to the
conclusion that the decision falls within a “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).
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