Date:
20131219
Docket:
IMM-1814-13
Citation:
2013 FC 1269
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Montréal,
Quebec, December 19, 2013
PRESENT: The Honourable Mr. Justice Simon
Noël
BETWEEN:
|
|
CEDRIC JOHAN OSSETE
NGOUABI
|
|
|
|
Applicant
|
|
and
|
|
|
MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), that seeks to set aside
the decision of February 14, 2013, in which an immigration officer of Citizenship
and Immigration Canada (CIC) dismissed the application for permanent residence
(APR) sponsored by the applicant as a member of the spouse or common-law
partner in Canada class.
II. Facts
[2]
The
applicant is a citizen of the Democratic Republic of Congo.
[3]
He
arrived in Canada in June 2008 and filed a refugee claim, which was rejected
in December 2011. The applicant sought the judicial review of this
negative decision, but his application was also dismissed on March 21, 2012.
[4]
On
June 27, 2012, the applicant filed an application for permanent residence as
a member of the spouse or common-law partner in Canada class. This application
was sponsored by Simane Moussa, his guarantor, who became his spouse on
November 25, 2011.
[5]
On February 14,
2013, the immigration officer met the applicant and his spouse and interviewed
them for the purpose of verifying the genuineness of their relationship.
[6]
On
February 21, 2013, the immigration officer dismissed the APR by indicating
that she was not convinced of the genuineness of the marriage. This is the
decision under judicial review.
III. Impugned
decision
[7]
The
decision dismissing the APR was signed on February 14, 2013, but was sent
to the applicant on February 21, 2013. It is composed of two separate
documents: a letter summarizing the decision and an interview record from February 14,
2013.
[8]
In
the letter, the immigration officer recalled the legislative framework applicable
to the applicant’s APR and found that she was not persuaded that the marriage was
genuine and was not entered into merely for the purpose of acquiring any status
or privilege under the IRPA.
[9]
The
interview record of February 14 repeated the questions asked to the
applicant and his spouse and stated their answers. In the record, the
immigration officer specified that she confronted the applicant and his spouse regarding
the inconsistencies in their answers but she concluded that she was not persuaded
by their explanations. Therefore, she rejected the applicant’s APR, relying primarily
on the following four inconsistencies, drawn from all the discrepancies identified
during the interview:
1. The
applicant stated that he was an orphan, while his spouse stated that he
regularly spoke to his mother on the telephone. The applicant explained that it
was his aunt who he calls “mother”.
2. The
applicant stated that his father was murdered, while his spouse stated that he
died of cancer.
3. The
applicant stated that they lived in a 2½ bedroom apartment, while his spouse
stated that they lived in a 4½ bedroom apartment. The applicant explained that
the rooms were small and for him it was a 2½ bedroom apartment.
4. The
applicant stated that his spouse worked in a second-hand clothing store, while
she stated that she worked in a brand-name clothing warehouse.
IV. Arguments
of the applicant
[10]
The
immigration officer did not respect the established case law tests for the determination
of a conjugal relationship and a genuine marriage. The immigration officer should
have shown flexibility in her assessment of the couple’s genuineness. Further, the
decision was based on conjecture and the four alleged inconsistencies on which
the decision relies relate to elements that are not relevant or fundamental to
the point of calling into question the genuineness of their marriage.
[11]
Throughout
the interview, the applicant and his spouse proved that they lived every day
together and that they share a true love. They provide mutual assistance to
each other, they are interdependent financially, they have an exclusive sexual
relationship and they show a permanent desire to live together. However, the
immigration officer gives no weight to these positive elements.
V. Arguments
of the respondent
[12]
The
numerous inconsistencies raised during the interview do not relate to the mundane
aspects of the life of the applicant and his spouse, but rather on the
important elements of their family life and living together. Among other things,
the fate of a spouse’s parents is not an insignificant element, especially
considering that the applicant filed his original refugee claim on the ground
that his father was murdered.
[13]
Case
law has established that the lack of knowledge of the respective families may
be considered in the assessment of the genuineness of a marriage without it
being a microscopic analysis.
[14]
Finally,
in his memorandum, the applicant only expressed his disagreement with the decision
relating to him. However, it was up to the immigration officer to make this decision
since it was she who had the expertise required to decide the factual question of
the genuineness of a marriage and who questioned the applicant and his spouse. Thus,
as the decision falls within a range of possible, acceptable outcomes
defensible in respect of the facts and law, this Court’s intervention is not justified.
VI. Issue
[15]
The
parties raised substantially the same issue: is the immigration officer’s
decision dismissal of the applicant’s APR as a member of the spouse or
common-law partner in Canada class reasonable?
VII. Standard
of review
[16]
An
immigration officer’s findings of fact with respect to the genuineness of a marriage
must be reviewed on a standard of reasonableness and require deference (see Corona v Canada (Minister of
Citizenship and Immigration), 2012 FC 174, at para 13, [2012] FCJ No 200 and Chimnere v Canada (Minister of Citizenship and
Immigration),
2012
FC 691, at para 9, [2012] FCJ No 658).
[17]
Therefore,
this Court will only intervene if the principles of justification, transparency
and intelligibility are not respected, i.e. if the decision does not fall
within “a range of possible, acceptable outcomes defensible in respect of the
facts and law” (Dunsmuir v New
Brunswick,
2008 SCC 9, at para 47, [2008] 1 SCR 190).
VIII. Analysis
[18]
The
immigration officer’s decision dismissing the applicant’s APR as member of the
spouse or common-law partner in Canada class is reasonable for the reasons
stated below. However, before undertaking an analysis of the issue, it is
appropriate to offer a brief summary of the legislative context surrounding
such a request.
[19]
Subsection 12(1)
of the IRPA states how foreign nationals are chosen for family reunification
procedures:
|
Immigration
and Refugee Protection Act, SC 2001, c 27
Family
reunification
12.
(1) A
foreign national may be selected as a member of the family class on the basis
of their relationship as the spouse, common-law partner, child, parent
or other prescribed family member of a Canadian citizen or permanent
resident.
[Emphasis
mine.]
|
Immigration
and Refugee Protection Act, LC 2001, ch 27
Regroupement
familial
12.
(1) La
sélection des étrangers de la catégorie « regroupement familial » se fait en
fonction de la relation qu’ils ont avec un citoyen canadien ou un résident
permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père
ou mère ou à titre d’autre membre de la famille prévu par règlement.
[Non
souligné dans l’original.]
|
[20]
Therefore,
to verify whether a person qualifies as a common-law partner, reference must be
made to section 124 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (IRPR):
|
Immigration
and Refugee Protection Regulations,
SOR/2002-227
Member
124. A foreign national
is a member of the spouse or common-law partner in Canada class if they
(a)
are the spouse or common-law partner of a sponsor and cohabit with that
sponsor in Canada;
(b)
have temporary resident status in Canada; and
(c)
are the subject of a sponsorship application.
|
Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
Qualité
124.
Fait
partie de la the spouse or common-law partner in Canada class l’étranger qui
remplit les conditions suivantes :
a) il est l’époux ou
le conjoint de fait d’un répondant et vit avec ce répondant au Canada;
b) il détient le
statut de résident temporaire au Canada;
c) une demande de
parrainage a été déposée à son égard.
|
[21]
As
the respondent pointed out in his memorandum of fact and law, the above section
must be read in the context of subsection 4(1) of the IRPR, which refers
to bad faith:
|
Immigration
and Refugee Protection Regulations,
SOR/2002-227
Bad
faith
4.
(1)
For the purposes of these Regulations, a foreign national shall not be
considered a spouse, a common-law partner or a conjugal partner of a person
if the marriage, common-law partnership or conjugal partnership
(a)
was entered into primarily for the purpose of acquiring any status or
privilege under the Act; or
(b)
is not genuine.
|
Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
Mauvaise
foi
4.
(1) Pour
l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait ou le partenaire conjugal d’une personne
si le mariage ou la relation des conjoints de fait ou des partenaires
conjugaux, selon le cas :
a) visait principalement
l’acquisition d’un statut ou d’un privilège sous le régime de la Loi;
b) n’est pas
authentique.
|
[22]
In
addition, it is important to remember that the burden was on the applicant to
persuade the immigration officer of the genuineness of his marriage with his
spouse (Chimnere v Canada (Minister of Citizenship and Immigration),
2012 FC 691, at para 17, [2012] FCJ No 658).
[23]
It
was thus in this legal context that the immigration officer assessed the
applicant’s APR as a member of the spouse or common-law partner in Canada
class.
[24]
The
interview of February 14, 2013, revealed a number of inconsistencies
some of which are very significant when assessing the daily life of a couple. The
inconsistencies reported by the immigration officer in the conclusion of her
record are perfectly relevant and relate directly to the married life of the
applicant and his spouse and I am of the view that it was perfectly reasonable
for the immigration officer to have given them so much weight. Indeed, it is
reasonable to think that married people who have lived together for a few years
should know where their spouse works and what their job is and they should also
know whether their spouse’s mother has died or not and whether their spouse’s
father died as a result of murder or cancer. In addition, contrary to what the
applicant claims, the fact that he and his spouse did not give the same answer
about the size of their apartment is far from mundane since it is in this home
that they allegedly share their life together. Surely, it was reasonable for
the immigration officer to doubt the genuineness of the couple because of such
inconsistencies.
[25]
Further,
the interview record of February 14, 2013, reveals that the applicant
and his spouse gave inconsistent answers on other elements: the number of
guests at their wedding (he said 15 people, she said 5), the identity of
the person who proposed (each one stated that they proposed to the other), the
number of children that each one wants (he stated that he wants two children
and his spouse only wants a daughter, she said that she wants five children,
but that the applicant only wants a boy) and the arrival of the applicant in
Canada (he stated that he arrived in 2008, she said that he arrived in 2004 or
2005).
[26]
The
marriage celebration is no doubt an important element in the life of a married
couple and the difference between the two answers in this case is marked. In
other words, a difference of 10 guests in the count of a wedding with
150 guests is less significant that one with 15 guests. The issue of
who proposed is also significant enough in the life of a couple to give it
weight. The number of children that the spouses wish to have is also part of
the fundamental issues in the daily life of a couple and of their long-term
vision of life. As for the year that the applicant arrived in Canada, it is
reasonable to believe that the officer could have been of the view that it is a
significant enough element in the applicant’s life—and in his original refugee
claim—to expect that his spouse would know it. In sum, all these discrepancies,
which are added to the inconsistencies noted above, certainly influenced the
immigration officer in her decision.
[27]
The
interview lasted nearly three hours and it reveals at least eight
significant inconsistencies or discrepancies between the answers given by the
each member of the couple. In such a situation, a reviewing court must assess
the work of the immigration officer with deference.
[28]
Therefore,
I am of the view that it was open to the immigration officer to dismiss the
applicant’s APR as a member of the spouse or common-law partner in Canada class
for the reason that his marriage to his spouse was not genuine under
subsection 4(1) of the IRPA and I find that this decision falls within a
range of possible, acceptable outcomes defensible in respect of the facts and
law (Dunsmuir, above, at para 47). Therefore, the decision is
reasonable and the intervention of this Court is not justified.
[29]
The
parties were invited to submit a question for certification, but none was
submitted.
ORDER
THE COURT ORDERS
that this application for judicial review be dismissed. There is no
question to be certified.
“Simon Noël”
Certified true
translation
Catherine Jones,
Translator
Email this Content