Docket: IMM-8322-14
Citation:
2015 FC 736
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, June 11, 2015
Present: The Honourable Mr. Justice Bell
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BETWEEN:
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Vanthan TOP
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of
Vanthan Top (the applicant) filed under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) of a decision dated
November 11, 2014, by a Citizenship and Immigration Canada officer (the
officer) dismissing the applicant’s application for permanent residence. At the
beginning of the hearing, after hearing the parties and for the reasons rendered
from the bench, I ordered that the name of Sothea Say (Ms. Say) be struck as a litigant
and that a joint affidavit that is not compliant with the Federal Courts
Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, or the Federal
Courts Rules, SOR/98-106, not be admitted into evidence.
II.
Alleged facts
[2]
The applicant is a Cambodian citizen. Ms. Say
is a Canadian citizen. The applicant claimed that he met Ms. Say for the
first time in 1993 in Cambodia. They stated that they were engaged in a serious
relationship in February 1995. Ms. Say stated that she left the applicant
in August 1997 and married another man in December 1997. She left Cambodia
for Canada on December 21, 1998. On March 5, 2008, they claimed to
have met by accident in Cambodia when Ms. Say was married to her second
husband. She returned to Canada on April 13, 2008.
[3]
On December 12, 2009, during a conversation
over the Internet, the applicant claimed that Ms. Say allegedly asked him if
he still wanted to marry him, to which he said yes. Ms. Say told the applicant
that she would marry him on the condition that he would never ask about her
former husbands. They were married in Cambodia on April 5, 2010.
[4]
On July 2, 2010, the applicant filed an application
for permanent residence with the Canadian Embassy in Bangkok, Thailand. This application
was dismissed on October 9, 2012. In November 2011, the applicant came
to Canada as a visitor. On November 26, 2012, he filed a second application
for permanent residence in the category of spouses or common-law partners in
Canada, with Ms. Say acting as sponsor. This application was dismissed on December 11,
2014, by the officer. This is the impugned decision.
III.
Impugned decision
[5]
The officer dismissed the sponsorship
application because the applicant replied several times that he did not know
the answer to the officer’s questions, thus showing a lack of knowledge of several
aspects of Ms. Say’s life. The applicant’s lack of knowledge related to
the reasons for Ms. Say’s last two divorces, the agreement between Ms. Say
and her sisters regarding the payment of rent and the agreement between Ms. Say
and her restaurant employees regarding their lodging, among other things. The
officer also noted that Ms. Say had neglected to mention that her former
husband lived with her, her sisters, her husband and two other employees from
her restaurant.
[6]
The officer also read the report from Santé et
Services sociaux of Quebec stating that Ms. Say is pregnant. However, the
officer gives little weight to this document, because there is no mention of
the child’s father.
[7]
The officer found that the marriage was not genuine
and, therefore, rejected the sponsorship application.
IV.
Applicant’s claims
[8]
The applicant argued that the officer did not take
into account Cambodian tradition in its analysis of the husband’s answers to questions
given during the interview with the officer. He argued that it was for this
reason that the applicant was not familiar with the names of the banks with
which his wife does business and the name of her first ex-husband. The applicant
also argued that the officer ignored the evidence that his wife was four months
pregnant with his child.
[9]
The applicant also argued that the Chavez
tests, listed in Chavez v Canada (Minister of Citizenship and Immigration),
[2005] IADD No. 353, No.TA3-24409 at paragraph 3 (Chavez), used to
assess the genuineness of a marriage, are met in this case.
V.
Respondent’s claims
[10]
The respondent argued that the officer’s
decision is reasonable. He claims that the officer adequately noted that the applicant
was not able to reply to several questions on social, financial and historical
aspects of Ms. Say’s life. The respondent also claimed that the officer
noted that the applicant had contradicted Ms. Say on several occasions during
his interview.
VI.
Issues
[11]
After reviewing the parties’ claims and their respective
files, I propose the following question:
- Is the officer’s
decision, in which he concluded that the marriage between the applicant and
Ms. Say is not genuine and was entered into for the sole purpose of
obtaining permanent residence in Canada, unreasonable in the circumstances?
VII.
Standard of review
[12]
The parties agree that the standard of review
applicable to the officer’s decision is that of reasonableness. Indeed, the
question raised in this case is a mixed question of fact and law (Huynh v
Canada (Minister of Citizenship and Immigration), 2013 FC 748 at para 6
(Huynh); Zheng v Canada (Minister of Citizenship and Immigration),
2011 FC 432 at para 18 (Zheng); Kaur v Canada (Minister of
Citizenship and Immigration), 2010 FC 417 at para 14 (Kaur)). Therefore,
this Court will intervene only if the decision is unreasonable, i.e. it falls outside
“a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
VIII.
Analysis
[13]
Subsection 12(1) of the IRPA explains that foreign
nationals may be selected in the "family class" on the basis of their relationship with a Canadian
citizen. Subsection 13(1) of the IRPA specifies, among other things, that
any Canadian citizen may, subject to the regulations, sponsor a foreign
national. Section 123 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the Regulations) states that “[f]or the purposes of subsection 12(1) of the Act, the
spouse or common-law partner in Canada class is hereby prescribed as a class of
persons who may become permanent residents”. Section 124 of the
Regulations specifies the conditions that the foreign national must fulfill to
be part of the spousal class defined at section 123 of the Regulations.
Finally, subsection 4(1) of the Regulations specifies the conditions under
which a foreign national would not be recognized as a spouse.
[14]
According to an analysis under subsection 4(1)
of the Regulations, an immigration officer must determine whether the marriage
is mainly entered into for the purpose of acquiring a status or privilege under
the IRPA or was not genuine (Singh v Canada (Minister of Citizenship and
Immigration), 2014 FC 1077 at para 5 (Singh)). An applicant cannot
obtain the visa required to live with his wife or spouse in Canada if one of
these conclusions is drawn (Ibid). The burden is on the applicant to
show that the marriage is genuine and was not mainly entered into for the
purpose of acquiring any status or privilege under the IRPA (Ouk v Canada (Minister
of Citizenship and Immigration), 2007 FC 891 at para 12 (Ouk)).
[15]
In this case, the applicant made uncorroborated
claims, which do not override the reasonableness of the decision as a whole (Attaallah
v Canada (Minister of Citizenship and Immigration), 2014 FC 522 at para 22).
First, the applicant argued that the officer did not take into account Cambodian
tradition in the analysis of the answers given by the applicant during his interview
with this officer. This argument is erroneous. It was noted in the officer’s
CAIPS notes that:
Unusual in Cambodia for a single male to
want to marry a divorcee (twice divorced!) (Certified Tribunal Record (CTR) at
page 22)
…
Genesis of relationship, including the
chance encounter, is not credible; it is not consistent with the local
traditions and culture, especially them to go to a resort to and have sex while
sponsor’s husband is in town (CTR at page 27).
[16]
Therefore, the officer reasonably analyzed the answers
given by the applicant by taking into account Cambodian culture. In addition, the
Certified Tribunal Record contains no evidence from the applicant on the Cambodian
culture relating to the exchange of financial or personal information between
the members of a couple.
[17]
With respect to the evidence concerning the fact
that Ms. Say is pregnant, the document included in the Certified Tribunal
Record effectively confirms this fact, but as the officer noted, this document did
not include any information regarding the child’s father (CTR at page 34). Therefore,
it was reasonable for the officer to give no weight to this document.
[18]
The applicant also argued that the Chavez
tests are met and, thus, that the officer’s decision is unreasonable. This
argument is also erroneous. The Chavez tests are only factors that may
be taken into account in the analysis of the genuineness of the marriage (Khan
v Canada (Minister of Citizenship and Immigration), 2015 FC 320 at para
22). They are not determinative in themselves. In this case, the officer noted
that the applicant was not able to answer several questions on social, financial
and historical aspects of Ms. Say’s life. The applicant was not able to answer
the questions regarding the amount that Ms. Say’s sister and her
restaurant employees who live with her contribute to the rent, the cost of
their residence and why Ms. Say had divorced her first two husbands (CTR,
CAIPS notes at page 25, the officer’s decision at page 5). The applicant and Ms. Say
also gave contradictory answers regarding the payment of the car. The officer also
noted that although the applicant had stated that Ms. Say’s ex-husband
lived with them, Ms. Say neglected several times to mention this fact. It was
only during the common interview, in the applicant’s presence, that Ms. Say,
confronted with questions from the officer, admitted that her ex-husband lived
with them, in addition to working in her restaurant (CTR at page 5).
[19]
I also note that the CAIPS notes on the record show
that Ms. Say was sponsored by her first husband in 1998 (CTR at page 21). Following
her first divorce, Ms. Say sponsored her second husband in 2006 (CTR at page
16). She also attempted to sponsor her family on two occasions; one of these applications
was refused in 2004 and the other was abandoned (CTR at page 21). The Certified
Tribunal Record also shows that Ms. Say only declared her second marriage in
her sponsorship form (CTR at page 71). This had also been noted by the officer in
his CAIPS notes (CTR at page 21).
[20]
In this case, the officer’s reasons and notes are
clear and intelligible and help the Court understand why he made his decision (Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] SCJ No. 62 at paras 14 to 16).
IX.
Conclusion
[21]
The officer’s decision is reasonable. He adequately
assessed the applicant’s record and it is not appropriate for the Court to intervene.
[22]
The parties proposed no question to be certified.
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