Docket: IMM-2856-16
Citation:
2017 FC 65
Toronto, Ontario, January 19, 2017
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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LY CHHOUM
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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
[1]
Ly Chhoum [the Applicant] has applied for
judicial review of a decision of the Immigration Appeal Division [IAD] dated
June 9, 2016 [the Decision] dismissing her appeal from a negative decision on a
sponsorship application. This application is made pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA].
[2]
The Applicant is a 55 year old woman from
Cambodia. She came to Canada in 2004 and was sponsored by her second husband,
Kim Seng. The Applicant is now a Canadian citizen. She has two children from
her first marriage who accompanied her to Canada; her son Sereyvath Mean, born
January 23, 1988, and her daughter Sokchia Mean, born December 20, 1989.
[3]
After the Applicant arrived in Canada, her marriage
to Mr. Seng failed and they were divorced in 2006.
[4]
The Applicant knew Mr. Sorn Ra in Cambodia when
they were children in primary school, but thereafter they lost touch. In 2007, the
Applicant traveled to Cambodia to visit her sister. During that visit she reconnected
with Sorn Ra, after he recognized her at the market.
[5]
The Applicant submits that they fell in love
during that visit and after an acquaintance of seven days, Sorn Ra proposed marriage
[the Proposal]. The Applicant waited until she returned to Canada to accept the
Proposal because, given her divorce, she was cautious about a new marriage.
[6]
The couple married in Cambodia on August 10,
2008 in a Buddhist ceremony. The wedding was attended by approximately 150
people, including the Applicant’s daughter [the Daughter], who traveled with
her from Canada. Members from both families were present. The couple went on a
honeymoon following the wedding.
[7]
More than two years later, on September 25,
2010, the marriage was registered in Cambodia.
[8]
The Applicant returned to Canada after the
wedding. She subsequently visited her husband in Cambodia for four weeks in
2010, and four weeks in 2013. She also planned to return in 2012, but had to
cancel the trip as her daughter required surgery. On December 23, 2013, the Applicant
was in a motor-vehicle accident. She testified that she has not returned to
Cambodia since then because she is sick and in pain.
[9]
The Applicant periodically sends money to Sorn Ra
in Cambodia, and in February 2011, the couple purchased a farm property there
as equal partners. The Applicant said that she contributed $4,000.00 to the
purchase.
[10]
The Applicant completed an application to
sponsor Sorn Ra to come to Canada as a member of the family class. It is dated
November 17, 2010, but was not submitted until March 2011. The application was
denied on July 18, 2013.
[11]
The Applicant appealed the decision to the IAD
and a hearing was held on March 15, 2016. The Applicant and her Daughter
testified in person and Sorn Ra testified by telephone. On June 9, 2016, the
IAD issued the negative Decision under section 4(1) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [the Regulations].
I.
DECISION
[12]
The IAD concluded that neither the Applicant nor
Sorn Ra gave credible testimony and that, on a balance of probabilities, the
marriage was entered into for immigration purposes and is not genuine. The IAD
had the following concerns:
•
Recognition of the Applicant not explained
Sorn
Ra testified that he recognized the Applicant at the market because he knew her
at school. However, he had not seen her since she was a child in grade 4 or 5.
This means that he had not seen her for approximately 45 years. When asked how
he was able to recognize the Applicant, he could not say.
•
The Proposal was hasty
Sorn
Ra testified that two days after their initial meeting, he told the Applicant
he loved her and he made the Proposal seven days after their first meeting.
•
The Location of the Proposal changed
The
Applicant initially said that the Proposal was made at her sister's house but
shortly thereafter said it had occurred during a meal at the market. Then she
said that Sorn Ra had proposed at both locations.
•
The Daughter was not considered
The Applicant's Daughter lived with her in Canada, yet
there was no evidence that the Applicant or Sorn Ra discussed the marriage with
the Daughter before the Proposal or its acceptance.
•
Inconsistent evidence about the honeymoon
The
Applicant stated that she and Sorn Ra went on their honeymoon alone. However,
Sorn Ra testified that the Applicant's daughter accompanied them.
•
Inconsistent evidence re plans
The
Applicant said that, before the wedding, she and Sorn Ra did not discuss
sponsorship or where they would live after their marriage. However, Sorn Ra
said that the issue was discussed before the wedding, and that the Applicant
wanted them to live in Canada.
•
Sorn Ra had little knowledge
Sorn
Ra had very little knowledge about the Applicant’s marital history. He did not
know how long her second marriage lasted or why it failed.
•
The farm purchase was not explained
Regarding
the purchase of a farm property in Cambodia in February 2011, the Applicant did
not know why it was a good investment. She also could not say why she was
investing in property in Cambodia in February 2011, while sponsoring Sorn Ra to
come to Canada. She only said that she purchased the property at his request.
•
Visits were rare
The
Applicant only visited Sorn Ra in Cambodia only twice. She visited for 4 weeks
in 2010 and again in 2013. There was no explanation for her failure to visit
for two years after the wedding or in 2011.
•
The marriage was not promptly registered
The
marriage on August 10, 2008 was not registered in Cambodia until September 25,
2010. The Applicant explained this delay of over two years on an election.
•
Sponsorship took three years
The
Applicant waited three years after the wedding to sponsor Sorn Ra. She
explained that she did not trust him and wanted to observe his behaviour.
•
Sparse evidence of ongoing communication
The
Applicant and Sorn Ra produced telephone and Skype records which only start in June
2013. The IAD concluded that the couple did not experience meaningful
communication as neither could describe their conversations in any detail. They
simply testified that they spoke about their feelings.
[13]
There was positive evidence to offset the
concerns. It included the following:
i.
The wedding in 2008 appeared to be a
well-attended family celebration.
ii.
The couple shared similar ethnic and religious
backgrounds and they were both lonely.
iii.
The Applicant periodically sent Sorn Ra money. The
payments started two years after the marriage. The amount was generally between
$200.00 and $500.00. However, there was one payment of approximately $1,100.00.
iv.
The Applicant said that she invested $4,000.00
in the farm property at her husband’s request. There was no documentary evidence
of the payment. However, her name was on the deed to the property.
II.
The Issues and Discussion
[14]
The Applicant says that the Decision is
unreasonable because the IAD engaged in speculation, ignored positive evidence
and took a microscopic approach to the testimony. She also says that the IAD
breached the principles of procedural fairness by not giving the Applicant an
opportunity to address her concerns.
[15]
The Applicant says that it was unreasonable of
the IAD to speculate that her three year delay in sponsoring Sorn Ra was due to
her concern that he had married her for immigration purposes [the Speculation].
At the hearing the Applicant was asked to explain the delay and she said that she
didn’t trust Sorn Ra and wanted to observe his behaviour. Neither Applicant’s
counsel, nor the IAD, asked her to provide the reason for her lack of trust. In
these circumstances there was insufficient evidence to justify the Speculation
and I have therefore concluded that it was unreasonable. However, this error is
not material when the Decision is considered as a whole.
[16]
The Applicant also says that the IAD ignored or
minimized the positive evidence. However, I am not persuaded by this
submission. It was all discussed, but when all the evidence was considered, it
was found not to be indicative of a genuine marriage.
[17]
The Applicant submits that the IAD erred when it
stated that no evidence was presented to show how Sorn Ra recognized the Applicant
after so many years. She says that she testified that he told her that he
remembered her from school. The IAD was clearly dissatisfied with his evidence
and continued to question, reasonably in my view, how Sorn Ra could identify a
mature middle aged woman based on his memory of her as a young child.
[18]
The Applicant also said that the IAD ignored
evidence about why the fell in love and agreed to marry. However, the IAD said
in the Decision that the Applicant “kept emphasizing
that they come from the same ethnic background”, and later on added that
“he is kind and gentle and he loves her”. Accordingly,
this evidence was not ignored.
[19]
The Applicant says that it was unreasonable of
the IAD to express concern that the Proposal was not for a genuine marriage,
because there was no evidence that either party considered the Applicant’s adult
children. Drawing inferences based on a lack of evidence is open to the IAD,
but such inferences should only be drawn in clear cases. In this case, the
Daughter has been very ill, is still not strong and lives with the Applicant.
In these circumstances, it was reasonable to draw a negative reference from the
fact that neither the Applicant, nor Sorn Ra considered discussing the Proposal
with the Daughter.
[20]
One of the IAD’s principal concerns was a lack
of meaningful communication [the Conclusion]. The Applicant says that the telephone
and Skype invoices (together the Invoices) which show ongoing and substantial
communication were not considered. It is true that the IAD did not mention the
Invoices. However, the assumption is that they were considered and the IAD was
only required to refer to them if they contradicted the Conclusion. I therefore
reviewed them and found that they do not contradict the Conclusion. They show
minimal interaction. For this reason, the IAD did not err in failing to refer
to them. My reasons include the following:
•
In the seven months from June to December 2013,
there are telephone calls lasting approximately 3 hours in total. Further, in
this period, there is no evidence of any calls in July, August and November.
•
In the four months from January to April 2014,
there were calls totalling approximately 6 hours. However, there is no evidence
of any phone calls from May to August 2014 when the telephone records end.
•
The Skype records begin in September 2014 and are
unclear for that month. However, in the year from October 2014 to October 2015,
the Applicant and Sorn Ra spent approximately 21 hours, or only two hours per
month, on Skype. There is no evidence of only contact by Skype in August and
September 2015.
[21]
This review also suggests that the Applicant was
not truthful when she testified that she and Sorn Ra communicated by phone and
Skype 2-3 times a week.
[22]
The Applicant also says that the IAD breached
the rules of procedural fairness when the Member failed to advise the Applicant
that she was concerned about a lack of meaningful communication. The Applicant says
she should have been given an opportunity to address this concern.
[23]
I am not persuaded by this submission. The Applicant
knew that meaningful communication would be an issue because the negative
sponsorship decision which led to the appeal was based in part on a lack of
evidence of meaningful communication. In these circumstances the Applicant
cannot complain that she was not told that this topic would be of concern to
the IAD.
[24]
For all these reasons, the application for
judicial review will be dismissed.
III.
Certified Question
[25]
No question was posed for certification for
appeal.
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