Docket: IMM-2943-15
Citation:
2016 FC 249
Toronto, Ontario, February 25, 2016
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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RAMANAND
PITAMBER
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
UPON application for
judicial review pursuant to section 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] of a decision of the Immigration Appeal
Division [IAD], dated May 28, 2015, rejecting the Applicant’s appeal of an
immigration officer’s refusal to issue a permanent resident visa to his wife,
Ms. Yoagwattie Bridgmohan [Angela], on the basis that their marriage is not
genuine and was entered into primarily for the purpose of acquiring status or
privilege under IRPA;
AND UPON considering that
this application raises the issue of whether the IAD erred in concluding that
the Applicant’s marriage to Angela was a bad faith marriage pursuant to
Regulation 4 of the Immigration and Refugee Protection Regulations, SOR,
2002-227 [Regulations];
AND UPON considering that
the determination of a bad faith marriage is a question of mixed fact and law,
reviewable on a standard of review of reasonableness, whereby a reviewing court
must examine whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect to the facts and law and whether the
decision-making process is intelligible, justified and transparent (Dunsmuir
v. New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190) [Dunsmuir];
AND UPON considering that
the IAD has expertise in this matter and as such, is owed deference (MacDonald
v Canada (Citizenship and Immigration), 2012 FC 978 at para 16);
AND UPON considering the
Certified Tribunal Record and the oral and written representations of the parties,
this Court is of the view that the application for judicial review should be
dismissed for the following reasons:
[1]
Originally from Guyana, the Applicant became a
permanent resident of Canada in May 1982 and is now a citizen of Canada. The
Applicant has a son in Canada from a first marriage which lasted three (3)
years and which ended in separation in 2000.
[2]
The Applicant and Angela, a citizen of Guyana,
first spoke to each other in August 2007, after the Applicant was shown a photo
of Angela by her uncle. In April 2008, the Applicant travelled to Guyana, where
he met Angela for the first time at the airport, and married her five days
later. From April 2008 onwards, the Applicant and Angela spoke on the telephone
on a daily basis and the Applicant made frequent trips back to Guyana to see
her.
[3]
In 2008, Angela applied for a permanent resident
visa and the Applicant applied to sponsor her. However in March 2009, an
immigration officer rejected the sponsorship application on the basis that he
was not satisfied that their relationship was genuine and that Angela intended
to live with the Applicant permanently in Canada. Initially, the Applicant
instituted an appeal of the immigration officer’s decision, but he withdrew it
once he was informed that his marriage to Angela was not considered valid given
that he had not divorced his previous wife.
[4]
In October 2010, Angela gave birth to the
Applicant’s son, who is now a Canadian citizen.
[5]
In May 2011, the Applicant obtained a divorce
from his previous wife, following which the Applicant and Angela annulled their
marriage and re-married in August 2011.
[6]
In September 2011, the Applicant filed a new
application to sponsor Angela, which was rejected by an immigration officer on October
11, 2012, on the basis that: 1) the marriage is not genuine and that it was entered
into primarily for the purpose of acquiring status or privilege under IRPA; and,
2) the Applicant’s wife is inadmissible for serious criminality pursuant to
paragraph 36(1)(c) of IRPA due to her attempt in November 2005 to use a
fraudulent passport to enter the United States.
[7]
On May 28, 2015, the IAD rejected the
Applicant’s appeal of the immigration officer’s finding of a bad faith marriage
on the grounds that the Applicant had not proven on a balance of probabilities
that the marriage is genuine and was not entered into primarily for the purpose
of acquiring status or privilege under IRPA.
[8]
The Applicant alleges that the IAD committed two
(2) reviewable errors: 1) the IAD applied the wrong legal test in considering
Regulation 4 when it stated that the marriage was entered into for the purpose
of “gaining an advantage in immigrating to Canada”;
and, 2) the IAD ignored relevant evidence and made findings which were
unsupported by the evidence before it. The Respondent submits that the IAD
committed no reviewable error in its decision.
[9]
With respect to the first issue, I find that the
IAD correctly enunciated the test for determining a bad faith marriage namely,
that it must be both genuine and not entered into primarily for the purpose of
acquiring any status or privilege under IRPA. This is apparent from paragraphs
3, 15, 16, 23, 41 and 42 of the IAD’s decision.
[10]
On the second issue raised by the Applicant, the
IAD found that the Applicant’s marriage to Angela was not genuine and was entered
into primarily for the purpose of acquiring status and privilege under IRPA. In
its determination of whether the marriage was genuine, the IAD considered a
number of positive factors, including their child together, the role played by
the Applicant in raising the child when he travels to Guyana, the support he
brings to his wife and son, his frequent travels to Guyana, the communications
between the Applicant and his wife and the designation of the Applicant’s wife
and son as his insurance beneficiaries. The IAD highlighted that in particular,
the birth of a child was a significantly strong indicator that at the present
time the marriage could be genuine.
[11]
However, the IAD found that other negative
factors outweighed the aforementioned positive factors, namely: 1) Angela’s lack
of knowledge regarding the Applicant’s life in Canada, and in particular, his
job history, his relationship with his son from a previous marriage and the
duration of his past marriage; 2) the Applicant’s lack of knowledge of Angela’s
previous migration attempt to the United States using a false Canadian
passport; 3) the Applicant’s inability to remember when their first contact
took place and when they were married; and 4) Angela’s confusion regarding the
date of their second marriage.
[12]
In particular, the IAD found that the divergence
in testimony regarding the Applicant’s contact with his son from his previous
marriage was a significant negative factor in its genuineness analysis.
[13]
The IAD noted that Angela had a low level of
education which resulted in her testifying poorly and that it would not make a
negative inference as to her credibility as a result. The IAD found nonetheless
that her inability to describe in any intelligible manner the circumstances surrounding
her unsuccessful attempt to enter the US illegally in 2005, and in particular,
whether she had walked to Puerto Rico or arrived by boat or by plane, indicated
that she was not being totally forthcoming regarding an event which should have
presumably been significant. This supported the IAD’s finding that her motives
for marrying the Applicant may not have been true love.
[14]
With regards to the anonymous call, the IAD indicated
that it would not give it any weight. In my view, contrary to the Applicant’s
submission, the IAD’s statement that the anonymous call was consistent with its
ultimate finding, does not necessarily mean that it was given any weight in the
IAD’s decision.
[15]
In the end, the IAD found the Applicant and his
wife were not credible on the basis of all these concerns.
[16]
It is trite law that credibility assessments
are fact-based and must be afforded deference from this Court (Nadasapillai
v. Canada (Citizenship and Immigration), 2015 FC 72 at para 9; Granata
v. Canada (Citizenship and Immigration), 2013 FC 1203 at para 28; Dunsmuir,
at para 53). Moreover, the IAD is presumed to have considered all the evidence
before it (Florea v Canada (Minister of Employment and Immigration), [1993]
FCJ No 598 (FCA) (QL).
[17]
In addition, it is not the role of this Court on
judicial review to re-assess and re-weigh the evidence before the IAD, which is
what the Applicant is seeking (Canada (Minister of Citizenship and
Immigration) v Abdo, 2007 FCA 64 at para 13; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 61).
[18]
Given the above, I find it was reasonable for
the IAD, based on the evidence before it, to conclude on a balance of
probabilities that the marriage was not genuine and was entered into primarily
for the purpose of acquiring status or privilege under IRPA. Furthermore, it
was open to the IAD to conclude that Angela was not being totally forthcoming
regarding the circumstances relating to her migration attempt, and that the
significant gaps in her knowledge regarding key facts in her spouse’s life were
significant negative factors. In my view, the inability to recall significant
events is not a matter which relates to one’s level of education. Accordingly, the
IAD’s decision is reasonable and falls within the range of acceptable outcomes
which are defensible in respect to the facts and law.
[19]
On a final note, even though there may appear to
be confusion over which marriage was considered in the analysis of whether the
primary purpose of the marriage was to acquire status and privilege under IRPA,
given the disjunctive nature of the Regulation 4 test and the reasonableness of
the IAD’s conclusion on the lack of genuineness of the marriage, such confusion
is not determinative.
[20]
The parties did not propose any certified
question in the present proceedings.
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