Docket: IMM-4470-15
Citation:
2016 FC 540
Ottawa, Ontario, May 13,
2016
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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LI JUN YU
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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]
This is an application for judicial review of a
decision of the Immigration Appeal Division of the Immigration and Refugee
Board of Canada (IAD) to uphold an immigration visa officer’s (the Officer)
decision. The decision refused the sponsored application for permanent
residence in Canada of Min Teng from China, on the grounds that the marriage
entered into by the Applicant and Ms. Teng is not genuine or was entered into
for immigration purposes under subsection 4(1) of the Immigration and
Refugee Protection Regulations, SOR 2002-227 (Regulations).
II.
Background
[2]
The Applicant is a 26 year-old male born in Fujjian Province, China. He became a permanent resident in August 1998 and obtained
Canadian citizenship in or around 2003.
[3]
In October 2009, the Applicant travelled to China with his mother who introduced the Applicant to several different women. One of those
women was Min Teng. She married the Applicant in July 2011.
[4]
In September 2012, the Applicant submitted a
spousal sponsorship application. They were interviewed by the Officer at the
Canadian Consulate General in Hong Kong in April 2013. The Applicant’s
sponsorship application was denied soon after.
[5]
On August 31, 2015, the IAD dismissed the
Applicant’s appeal of the immigration officer’s decision to refuse Ms. Teng’s
sponsorship application.
[6]
The IAD found the following notable
contradictions and inconsistencies in the couple’s testimony:
a)
The Applicant testified that he typed his wife’s
sponsorship application sponsored spouse questionnaire. The questionnaire
states that the couple’s mothers were neighbours and that Ms. Teng was born in
the same town as the Applicant. However, when cross-examined, the Applicant
denied knowing Ms. Teng as a child. He stated that Ms. Teng was raised by her
maternal grandparents. He eventually admitted to seeing Ms. Teng in the village
as a child, but maintained that he had never met her.
b) Ms. Teng testified that she had always lived with and had been cared
for by her biological parents and that she was never the Applicant’s neighbour.
These statements were contradicted by the Applicant’s mother, who testified
that Ms. Teng lived with her adoptive parents.
c) Ms. Teng added an addendum to her sponsorship application which
stated that she met the Applicant for the first time at her aunt’s house. This
account was contradicted by the Applicant’s mother who identified another
person’s home as the place of the first encounter. This person did not even
live in the same village as Ms. Teng’s aunt.
d) The IAD noted that the couple contradicted each other regarding what
Ms. Teng did since 2010. Ms. Teng had told the Officer that she stopped
attending school in 2010 to stay at home and take care of her grandmother. The
Applicant stated his wife was working at a convenience store before her grandmother
died.
[7]
The IAD also determined that as a neutral
assessor, the Officer’s CAIP notes were a reliable source regarding Ms. Teng’s
explanations as to why she brought her parents’ DNA test results to the
interview. The Officer’s CAIPS notes indicate that Ms. Teng obtained a DNA
report to prove her relation to her biological parents so that her biological
parents could join her in Canada. The Officer interpreted this statement as an
indicator that the marriage was entered into primarily for immigration purposes.
Ms. Teng and the Applicant denied this version of events. The Applicant claimed
that his wife told the Officer that she brought the DNA results to facilitate a
background check of her relatives so that her parents could visit her in Canada. The Applicant denies that Ms. Teng told the Officer that she is interested in
sponsoring them. The IAD found that these inconsistent versions of events
support its finding that the marriage was entered into primarily for Ms. Teng
to obtain status under the Immigration and Refugee Protection Act, SC
2001 c 27 (the Act).
[8]
In addition, the IAD found that it was
implausible that the Applicant and Ms. Teng did not talk to each other during
the first encounter while sitting in the same room.
[9]
As a result of the abovementioned
contradictions, inconsistencies, and implausibilities, the IAD upheld the
Officer’s decision and found that on a balance of probabilities, the marriage
is not genuine and the primary reason for Ms. Teng marrying the Applicant was
for the purpose of acquiring status in Canada under the Act.
[10]
The Applicant argues that the IAD erred by
engaging in a microscopic examination of the evidence, and by focusing on
negative factors without taking into account the evidence supporting a positive
decision. The Applicant also submits that the IAD erred by applying its own
cultural presumptions about reasonable behaviour.
III.
Issue and Standard of Review
[11]
In my view, the issue in this judicial review is
to determine whether the IAD committed a reviewable error as contemplated by
section 18.1(4) of the Federal Courts Act, RSC (1985), c F-7.
[12]
When reviewing findings of fact made in the
context of assessing if a marriage is genuine, the reasonableness standard
applies (Dudhnath v Canada (Citizenship and Immigration), 2009 FC 386,
at para 15; Barm v Canada (Citizenship and Immigration), 2008 FC 893 [Barm],
at para 11; Rosa v Canada (Citizenship and Immigration), 2007 FC 117, at
para 23). The IAD’s findings must be afforded a significant degree of deference
by the reviewing Court since the IAD is in the best position to assess
credibility (Bielecki v Canada (Citizenship and Immigration), 2008 FC
442, at para 23).
IV.
Analysis
[13]
As stated above, it is trite law that
credibility findings made by the IAD are to be afforded a significant degree of
deference. The IAD is in the best position to assess credibility since it has
the opportunity to hear and see the Applicant give evidence in an oral hearing
(Barm, at para 11). As such, the weight to be assigned to that evidence
is also a matter for the IAD to determine (Sanichara v Canada (Minister of Citizenship and Immigration), 2005 FC 1015, at para 20, 276 FTR 190
[Sanichara]. As long as the conclusions and inferences drawn by the IAD
are reasonably open to it on the record, there is no basis for interfering with
its decision (Sanichara, at para 20).
[14]
The IAD is responsible for deciding the impact
of the inconsistencies on the overall credibility of the couple (Thach v Canada (Citizenship and Immigration), 2008 FC 658, at para 22 [Thach]). As Justice
Lagacé explained in Thach:
[30] The IAD
had to decide what evidence to accept and believe and what evidence not to
accept and disbelieve. This is the choice of any tribunal. The IAD had to
analyse, appreciate, and weigh the evidence before him, and this was his role.
It is not the role of this Court to go through the same exercise in order to
substitute its own conclusions to those of the IAD.
[31] The applicant insists that the IAD
erred in ignoring in its decision his evidence. First it is settled law that
unless there is clear evidence otherwise, there is a presumption that the
tribunal considered all the evidence that was put before it (Buttar v. Canada (Minister of Citizenship & Immigration), 2006 FC 1281 (F.C.), at paragraphs
29-30) […].
[32] In fact, what the applicant has done in
his memorandum and his oral argument was to pinpoint to the attention of this
Court many elements of his proof, such as the explanations given to excuse
certain inconsistencies in his evidence, in order to reverse the credibility
findings. Doing so, he invites more or less this Court, on the basis of certain
element of his evidence, to substitute its own conclusion to those of the IAD.
This Court will resist this invitation since it is not its role to do so.
[15]
The role of the Court on judicial review is to
determine whether 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 [2008] 1
SCR 190). Thus, where credibility is concerned, a decision to refuse a
sponsorship application is unreasonable where “the
officer has ignored significant evidence of a positive, genuine relationship by
unduly focusing on minor inconsistencies” (Amayeanvbo v Canada (Citizenship and Immigration), 2011 FC 621, at para 45; Joseph v Canada (Citizenship and Immigration), 2011 FC 1515, at para 21). Moreover, where an
oral hearing has been held, more deference is accorded to the credibility
findings (Sanichara, at para 20).
[16]
The Applicant relied on Apaza v Canada
(Citizenship and Immigration), 2006 FC 313, to support his submissions that
the IAD erred by failing to take into account evidence demonstrating the
genuineness of the marriage such as the number of trips the Applicant made to
China and that the couple cohabited during these trips. The Applicant also
relied on Siev v Canada (Minister of Citizenship and Immigration), 2005
FC 736, to argue that the IAD erred by failing to inquire about the couple’s
sexual history and personal behaviour. While I note that the IAD panel member
did inquire about the couple’s sexual history and personal behaviour as can be
seen from the transcript of the interview found in the record, in my view, the
Applicant’s submissions merely invite the Court to look at the many elements of
proof in order to substitute its own conclusion for that of the IAD. In short,
the Applicant is simply requesting the Court to reweigh evidence. This is not
the role of the Court. As the Applicant has failed to establish clear evidence
that the IAD ignored evidence put to it by the Applicant, I have no choice but
to find that the IAD’s decision falls within a range of reasonable
outcomes defensible in fact and in law.
[17]
Moreover, given the many contradictions and
inconsistencies, it was reasonably open for the IAD to determine that the
marriage is not genuine and was entered into primarily for immigration purposes
under the Act. The Applicant, Ms. Teng, and their mothers contradicted each
other on several points relating to how the couple had met. The couple also
contradicted each other regarding their employment and education history.
Moreover, three different accounts of who raised the Applicant’s wife were
provided to the Officer. Contrary to the Applicant’s submissions, the case at bar
is distinguishable on the facts from RKL v Canada (Minister of Citizenship
and Immigration), 2003 FCT 116, 228 FTR 43 [RKL] and Amayeanvbo v
Canada (Citizenship and Immigration), 2011 FC 621 in that the
inconsistencies in this case are not minor.
[18]
In RKL, Justice Martineau warned that the
Immigration and Refugee Board should not be quick to apply North American logic
and reasoning to a claimant’s behaviour as “consideration
should be given to the claimant’s age, cultural background and previous social
experiences” (at para 12). At the same time, it is trite law that the
burden of proof lies on the party advancing a claim. Since the Applicant
submitted no evidence to demonstrate what the cultural norms are for first
encounters between potential partners in China, I am not convinced that the IAD
committed an error in this respect.
[19]
The application for judicial review is denied.
No question is certified.
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