Docket: IMM-2790-17
Citation:
2018 FC 22
Toronto, Ontario, January 10, 2018
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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CONCHITA
FERRARO
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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]
Ms. Ferraro seeks review of an Immigration
Appeal Division [IAD] decision of June 1, 2017, which found that her marriage
to a citizen of the Dominican Republic was not genuine. The IAD denied her
sponsorship application under the Spouse or Common Law Partner in Canada class.
The IAD concluded that the marriage was not genuine and was entered into for
the purpose of obtaining a status or privilege under the Immigration and
Refugee Protection Act [IRPA] as set out in s.4 of the Immigration and
Refugee Protection Regulations [IRPR].
[2]
For the reasons that follow, this judicial
review is granted.
I.
Background
[3]
The relationship between Ms. Ferraro and her
spouse started in November 2011 and they married in February 2013. Ms. Ferraro and
her spouse communicate daily. She has visited her spouse in the Dominican
Republic on thirteen occasions.
[4]
On November 21, 2014, the spouse’s application
for a permanent residence visa as a member of the family class was denied
because the Visa Officer [the Officer] found that the marriage was not genuine
and was entered into for immigration purposes.
[5]
Ms. Ferraro appealed to the IAD.
II.
IAD Decision
[6]
The IAD found that from the perspective of Ms.
Ferraro, the marriage was genuine. The IAD found Ms. Ferraro’s testimony
consistent and found that the documentary evidence supported her reported trips
to the Dominican Republic, regular communication with her spouse, and her
financial support of him. The IAD noted that based upon Ms. Ferraro’s demeanour
and the corroborating evidence, there was substantial evidence that the
marriage was genuine for Ms. Ferraro.
[7]
However, the IAD concluded that the marriage was
not genuine for the spouse. The IAD noted the long-term relationship (5 ½
years) and the frequency of the communication between the couple. However, the
IAD concluded that the gaps in knowledge and inconsistencies in testimony on
the part of the spouse indicated that it was not a genuine marriage for him.
Specifically, the IAD noted that the spouse indicated that he had nothing in
common with Ms. Ferraro. The IAD noted that the spouse’s description of their shared
activities lacked detail.
[8]
The IAD found that his testimony, the failure to
explain why he fell in love with Ms. Ferraro, and differences in age and
cultural background demonstrated a lack of “genuine
engagement” by the spouse.
[9]
The IAD concluded that the evidence of both
spouses is relevant and that genuine intent on the part of the Ms. Ferraro alone
is insufficient. Therefore, the IAD concluded that there was no evidence to show
that it was a genuine marriage for Ms. Ferraro’s spouse.
III.
Issue and Standard of Review
[10]
The only issue on this application is whether
the IAD decision that the marriage between Ms. Ferraro and her spouse was not
genuine pursuant to s.4(1) of the IRPR is reasonable.
[11]
The IAD’s assessment of the genuineness of
marriage is reviewable on a reasonableness standard (Canada (Citizenship and
Immigration) v Moise, 2017 FC 1004 at para 17).
IV.
Analysis
[12]
The IAD primarily assessed this case under
s.4(1)(b), and carried over his conclusions on s.4(1)(b) to s.4(1)(a). However,
s.4(1)(a) and (b) are disjunctive (Trieu v Canada (Citizenship and
Immigration), 2017 FC 925 at para 37 [Trieu]). An applicant must
demonstrate that a marriage is both genuine and that it was not entered into
for the primary purposes of acquiring a status under the IRPA (Trieu, at
para 36; Gill v Canada (Citizenship and Immigration), 2012 FC 1522 at
paras 29-30 [Gill]).
[13]
There is also a temporal distinction between
each test. Claims under s.4(1)(a) are assessed at the time of the marriage,
while claims under s.4(1)(b) are assessed at the present time (Gill, at
paras 32-33). As confirmed in Lawrence v Canada (Citizenship and
Immigration), 2017 FC 369 at para 14, evidence relevant to one element of
the test can also be relevant to the other.
[14]
With this in mind, the IAD failed to consider
the positive evidence of a genuine marriage in comparison to the spouse’s
negative credibility. The IAD considered this same evidence respecting Ms.
Ferraro, and concluded that the marriage was genuine for her. However, it
failed to explain why this same evidence could not support the same conclusion
for the spouse.
[15]
While it is true that the IAD does not have to “make an explicit finding on each constituent element…”
(Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at para 16), and in fact is presumed to have
considered all the evidence (Florea v Canada (Minister of Employment and
Immigration), [1993] FCJ No 598 (FCA) at para 1), a failure to address
central, contradictory evidence is a reviewable error.
[16]
In Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 at para 17, the Court
stated:
When the agency refers in some detail to
evidence supporting its finding, but is silent on evidence pointing to the
opposite conclusion, it may be easier to infer that the agency overlooked the
contradictory evidence when making its finding of fact.
[17]
This comment is applicable to this case. Here,
the IAD did not mention the photos of the Applicant and the spouse, the letters
of support from family and friends, and the numerous text messages and phone
calls between the couple when analyzing the credibility of the spouse. This was
considered probative evidence for Ms. Ferraro, but it was not assessed for the
spouse, even though it contradicted the credibility conclusions made about him.
The IAD decision contradicts the full record.
[18]
Therefore, this decisions lacks “justification, transparency, and intelligibility” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]). As noted by the Federal
Court of Appeal in Delios v Canada (Attorney General), 2015 FCA 117 at
para 27, the IAD’s failure to consider the evidence in light of the record is a
“badge of unreasonableness.” A decision cannot
be reasonable in the sense explained in Dunsmuir if it does not explain
its conclusions in light of the evidence.
[19]
This application for judicial review is
therefore granted.
[20]
There is no question for certification.
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