Docket: IMM-522-16
Citation:
2016 FC 1227
Ottawa, Ontario, November 3, 2016
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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ZHI FA CAI
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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
I.
Introduction
[1]
The Applicant, Zhi Fa Cai [Mr. Cai], challenges
the decision of an Immigration Officer [the officer] who rejected Mr. Cai’s
application for permanent residence. The officer determined that the marriage
between Mr. Cai and his sponsor, Ms. Jacklyn Chu [Ms. Chu], was not genuine or
was entered into primarily for the purpose of acquiring status under the Immigration
and Refugee Protection Act, SC 2001 c 27 [the Act].
[2]
The officer determined that Mr. Cai did not meet
the definition of a spouse or common-law partner and therefore did not meet the
requirements set out in subsection 124(a) of the Immigration and Refugee
Protection Regulations SOR/2002-227 [the Regulations].
[3]
For the reasons that follow, I find the
officer’s decision to be reasonable.
II.
Background
[4]
Mr. Cai is a citizen of the People’s Republic of
China [China]. He was previously married from January 1982 to April 2013. Ms.
Chu is a naturalized Canadian citizen and was previously married from November
1990 to November 2003. Both parties have two adult children from their other
relationships.
[5]
Mr. Cai met Ms. Chu in China in 2004. In 2005,
Mr. Cai decided to send his son to school in Vancouver. He asked Ms. Chu if his
son could board with her and she agreed.
[6]
Mr. Cai and Ms. Chu’s evidence is that they
began an intimate relationship in March 2006 while he was still married to his
first wife. Not until June 2011 was it alleged that Mr. Cai separated after 31
years from his ex-wife but continued to reside with his wife. The only
documentation to support the long term relationship was one photograph from
2012.
[7]
Mr. Cai initially entered Canada on a temporary
resident visa on September 8, 2012. On March 31, 2013, a section 44 report was
completed on Mr. Cai by the Canada Border Services Agency [the CBSA] as a
Chinese arrest warrant had been issued against him. It was determined by the
CBSA that the alleged offence in China corresponded to a charge of fraud over
$5,000.00 in Canada for which there is a maximum prison term of 14 years (well
above the 10 year threshold for serious criminality which bars claims for
refugee protection).
[8]
On April 18, 2013, Mr. Cai and his ex-wife’s
divorce was finalized in China. Mr. Cai attended an inadmissibility interview
with the CBSA on May 3, 2013, and he married Ms. Chu the following day.
[9]
On May 15, 2013, Mr. Cai’s visa extension
application was refused and in September of that same year it was determined
that Mr. Cai was excluded from refugee protection due to serious criminality. On
November 21, 2013, Mr. Cai applied for a Pre-Removal Risk Assessment [PRRA].
Mr. Cai’s PRRA was refused but was sent back by this Court on judicial review
for redetermination and he received a positive restricted PRRA determination
under s. 112(3) of the IRPA on July 23, 2015. This does not allow him to apply
for permanent residency but does allow him protection from removal to China.
[10]
On May 28, 2014, Mr. Cai and Ms. Chu submitted
an application for permanent residence under the spouse/common-law partner class
after their initial application was returned due to a technical defect. Mr. Cai
and Ms. Chu were interviewed by the officer on December 18, 2015. The officer
found among other findings that the majority of documentation submitted in
support of Mr. Cai’s application for permanent residence, including wills naming
each other as beneficiaries, were dated from the year the application was made
not the year the couple was married.
[11]
On December 24, 2015, the officer found that Mr.
Cai did not meet the requirements of the spouse/common-law partner class and
the application for permanent residence was denied. Mr. Cai was notified of the
decision in a letter dated January 7, 2016.
III.
Issues
[12]
The issues raised by Mr. Cai are:
- Was the officer’s
finding that Mr. Cai is not a spouse or common law partner reasonable?
- Did the officer
breach principles of natural justice and the duty of procedural fairness
by relying on extrinsic evidence and failing to inform Mr. Cai of his or
her concerns?
IV.
Standard of Review
[13]
The officer’s decision is reviewable on the reasonableness
standard. The Court must be satisfied as to the existence of justification,
transparency and intelligibility within the decision-making process, and find
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 paras 47-48 [Dunsmuir]).
[14]
Questions involving a breach of procedural
fairness are reviewable on the correctness standard (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa]).
V.
Analysis
[15]
My analysis of the decision is broken down into
four broad areas of concern identified by Mr. Cai: 1) ignored evidence; 2)
absurd inferences; 3) extrinsic evidence; and 4) failure to inform Mr. Cai of the
officer’s concerns. The first two of these areas will be assessed on a
reasonableness standard whereas the last two are concerned with procedural
fairness and I will assess them on a correctness standard.
A.
Ignored Evidence
[16]
Mr. Cai argues that the officer’s decision
indicates he did not read his or Ms. Chu’s statutory declarations. He submits
that much of the documentation provided such as joint account statements,
wills, life insurance policies, and wedding cards was relevant to many of the officer’s
findings but was not included in the officer’s reasons.
[17]
Furthermore, the officer’s insistence on earlier
evidence ignores the fact that Mr. Cai and Ms. Chu had been in a secret
relationship for many years. According to Mr. Cai, the fact the officer asks
for documentation of a secret romance is proof that the statutory declaration
was ignored.
[18]
I agree with Mr. Cai that the statutory
declarations were referred to improperly as letters by the officer. This may be
because they were not in an affidavit form although the document are sworn and
should have been referred to as statutory declarations. Having read through the
declarations in question, I disagree with Mr. Cai that the officer ignored this
evidence. The statutory declarations of both Mr. Cai and Ms. Chu do not explain
why there is no evidence of an alleged seven year romantic relationship. In
fact in neither statutory declaration is it stated by either party that the
relationship was carried out in secret. Neither family ever saw them together
despite their claim of seeing each other frequently while Ms. Chu was in China
on business trips and spent weekends together. I would expect at least some evidence
of a long standing “secret affair” such as
transportation documentation to see each other, cards, texts, emails, gifts or
even pictures. Or that they would have explained how they kept such a long
standing affair secret and why there was no indicium of a long romantic
relationship.
[19]
Mr. Cai submits that the statutory declarations
are consistent in their explanation of when they first met and when they began
cohabiting. Furthermore, his declaration explains why he wanted to separate
from his first wife. Any inconsistency in testimony is explained by confusion
stemming from translation.
[20]
What Mr. Cai fails to explain is how or why he was
involved in two relationships between 2006 and 2011. Nor does he explain why he
and Ms. Chu got married one day after he attended an inadmissibility interview
with the CBSA. The timing of the marriage speaks to an arrangement for the
purpose of acquiring immigration status.
[21]
The officer also found that Mr. Cai knew about
the arrest report prior to his CBSA interview on May 3, 2013. This is despite
Mr. Cai providing the officer with an original Chinese police clearance
certificate dated July 17, 2012, indicating there were no charges against him
at that time. Mr. Cai submits that the officer’s finding supports the argument
that this evidence was ignored. Again I do not agree. The only thing the arrest
report indicates is that Mr. Cai knew the Chinese police did not want to arrest
him on July 17, 2012. Mr. Cai stated that he was not aware of his arrest report
until his visa extension application was refused on May 15, 2013. Ms. Chu
similarly indicated that she was not aware of Mr. Cai’s charges until after their
wedding. However, both Mr. Cai and Ms. Chu attended an inadmissibility interview
regarding allegations of serious criminality with CBSA the day before they were
married (May 3, 2013). Given Mr. Cai and Ms. Chu’s contradictory evidence and
almost a year between the police clearance certificate and the CBSA interview
it was reasonable for the officer to conclude Mr. Cai was aware that the
officer would know of the report prior to the interview.
[22]
There is a presumption that the officer
considered all of the evidence on record (Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ No 598 (FCA)). Additionally, considerable
deference is accorded to the officer as he interviewed the parties and heard
the evidence. Although the argument was never framed that I should reweigh the
evidence, in fact that is what I am being asked to do which is not my role on
judicial review.
B.
Absurd Inferences
[23]
Mr. Cai argues that the officer made absurd
inferences in order to draw adverse credibility findings against him. What Mr.
Cai ignores are the multiple contradictions in both his and Ms. Chu’s evidence.
[24]
In addition to the contradiction noted above, Mr.
Cai and Ms. Chu did not agree on the details of their own wedding. Ms. Chu
could not recall the date of their marriage and there were discrepancies in
their responses as to when they met and when they began cohabiting. In his
affidavit evidence, Mr. Cai explains this inconsistency by simply stating that
he “was confused.” Both named the correct
restaurant where their wedding reception was held but Ms. Chu stated that they celebrated
their marriage at a restaurant in downtown Vancouver and Mr. Cai stated they celebrated
at a restaurant in Richmond. Furthermore, Ms. Chu has not met any of Mr. Cai’s
relatives beyond his two children. Mr. Cai has met Ms. Chu’s parents and sister
only once.
[25]
Mr. Cai submits that there is nothing suspicious
about the fact that he and Ms. Chu married less than a month after his divorce
had been finalized because they had been in a relationship for such a long time.
Therefore, the officer should not have drawn any adverse inference from the
timing of the marriage. Mr. Cai also submits that the boarding arrangement for
his son with Ms. Chu should not detract from the genuineness of their relationship.
Mr. Cai completely ignores the fact that he married Ms. Chu only one day after
his admissibility interview with the CBSA. It was open to the officer to draw a
negative inference on the genuineness of the marriage given the timing of the
wedding so close to his admissibility interview.
[26]
Mr. Cai’s presentation regarding his financial
situation was equally as confused as his marriage details. He indicated on his
permanent resident application that his son met the definition of an eligible
dependent. However at his interview, Mr. Cai indicated that his son was working
and financially supporting him. Mr. Cai explained that his son only began
financially supporting him a year and a half after his application had been
submitted. I agree with the Minister that it was reasonable for the officer to
make adverse credibility findings with respect to Mr. Cai’s financial
independence. If his circumstances did change in this manner, Mr. Cai should
have informed Citizenship and Immigration Canada immediately.
[27]
Mr. Cai also failed to convince the officer of
financial interdependence with Ms. Chu. Little financial documentary evidence
was submitted aside from a joint bank statement that showed very few or no
monthly transactions. The decision does reference that there was a large deposit
of $17,000 made into the joint account on December 5, 2015. Mr. Cai had been
sent a call in letter for an interview on November 11, 2015 for an interview on
December 15, 2015. Other financial documents noted was a bank visa that was
held by the sponsor and her son where the mortgage payments and other monthly
living expenses were made.
[28]
It is not enough to argue that the officer
failed to refer to specific evidence or make a finding of fact that contradicts
evidence before him. There do appear to be discrepancies between the statutory
declarations made by Mr. Cai and Ms. Chu, and the respective answers which they
gave during the course of the December 18, 2015 interview. There is no evidence
that these discrepancies stem from translation or interpretation problems. As
the Minister points out, neither Mr. Cai nor Ms. Chu raised this issue in their
affidavit evidence and therefore there is no factual basis for this argument to
be made on the present application. It was open to the officer to give more
weight to the discrepancies than to the documentary evidence provided (Kaur
v Canada (Citizenship and Immigration), 2010 FC 417 at para 27).
[29]
Mr. Cai’s submissions are a request to reweigh
the positive and negative findings of his application and substitute my own
opinion for that of the officer's which I decline to do.
C.
Extrinsic Evidence
[30]
Mr. Cai submits that the officer breached the
duty of fairness by relying on the Chinese arrest report issued in his name
without disclosing it to him. Mr. Cai argues that even when the use of
extrinsic evidence is contemplated or authorized by an application, an
immigration officer’s duty to disclose, and the applicant’s corresponding
opportunity to respond, is not diminished (Batica v Canada (Minister of
Citizenship and Immigration), 2006 FC 762 at para 15). As the arrest report
was used to impugn his credibility but was not disclosed to him, Mr. Cai argues
that he never had the opportunity to respond to the evidence.
[31]
I do not agree with Mr. Cai as the omission by
the officer was a technical error which occasioned no substantial wrong or
miscarriage of justice (Khosa, above, at para 43). Mr. Cai does
not deny that he knew of the arrest report at the time of the permanent
residence interview. He had already attended an inadmissibility interview with
the CBSA and had previously had his application for an extension of his
temporary resident status rejected on this basis. What he claims is that he did
not know the officer knew about the arrest report. Given Mr. Cai’s knowledge of
the arrest report and its implications to his previous immigration proceedings,
I do not believe that the duty of fairness owed to Mr. Cai called on the
officer to explicitly present him with it or otherwise provide him with an
opportunity to respond.
D.
Failure to Inform Mr. Cai of Officer’s Concerns
[32]
Mr. Cai contends that the officer’s reasons
indicate that the officer had a number of concerns that arose from the
documents submitted in support of the application and that procedural fairness
required that the officer inform him of these concerns so that he could respond
(Muliadi v Canada (Minister of Employment and Immigration), [1986] 2 FC
205 (FCA); Enriquez v Canada (Minister of Citizenship and Immigration),
2012 FC 1091 at paras 26-27).
[33]
Mr. Cai’s position is that the duty of
procedural fairness extends to concerns that the officer had about
inconsistencies that arose between Mr. Cai’s and Ms. Chu’s respective answers
during separate interviews of the spouses, and that the officer was obliged to
provide him and Ms. Chu with a meaningful opportunity to respond to these
concerns (Huang v Canada (Minister of Citizenship and Immigration), 2015
FC 905 at paras 6-9).
[34]
I disagree as the parties were already well
aware the determinative issue to be determined in the interviews was the
genuineness of their marriage. It is not a science but is fact driven and
nuanced. Much of the jurisprudence cited by the Applicant involves cases where
an immigration or visa officer questioned the veracity of documents submitted
in support of an application and failed to apprise the applicant of those
concerns. This is not the case in the present application. The concerns that
the officer had were based on the ostensible lack of evidence (e.g. only one
photo of the couple during their affair) or the timing of when the evidence was
produced (e.g. much of the information relating to the financial
interdependence was generated around the time that the application was
submitted). I find that the officer properly informed Mr. Cai and Ms. Chu of
his concerns and allowed them the opportunity to present their evidence as
completely as possible. The onus to provide sufficient evidence to satisfy the
decision maker of the genuineness of the marriage is on the Applicant.
VI.
Conclusion
[35]
The totality of the decision is reasonable and the
officer made no procedural fairness error. The officer had the benefit of not
only the written material that was also before the court but also interviewed
Mr. Cai and Ms. Chu. It is not for me to reweigh the evidence and it is not for
the Court to grant the application when the decision made is reasonable. I
therefore dismiss the application.
[36]
No question for certification was presented or
arose from the evidence.
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