Date: 20060309
Docket: IMM-3249-05
Citation: 2006 FC 308
Ottawa, Ontario, March 9, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
EDWIN DOROL GAVINO
Applicant
And
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (Board) dated May 9, 2005 (Decision). The Board dismissed the Applicant's appeal from a visa officer's (Officer) decision to reject the permanent residence application of his wife and two sons on the grounds that their marriage was contracted in bad faith, as described in section 4 of the Immigration and Refugee Protection Regulations, SOR 2002-227 (Regulations).
BACKGROUND
[2] The Applicant, Edwin Dorol Gavino, is a Canadian citizen. He was born on December 10, 1963 in San Juan, Rizal, in the Philippines.
[3] He immigrated to Canada as a dependent of his mother and obtained permanent resident status on July 6, 1990.
[4] Until his departure for Canada, the Applicant had been living in a common-law relationship since 1985 with Grecil Magtunao, who later became Grecil Gavino. Xander Gavino was born November 16, 1987, and Xandro Gavino was born October 8, 1990. The Applicant did not disclose Xander to Immigration officials when he arrived in Canada.
[5] The Applicant returned to the Philippines between November 1991 and January 1992. He and Grecil Gavino were married on December 23, 1991. The Applicant has not returned to the Philippines since then, but has stayed in contact with Grecil and his sons and has sent them money on a regular basis.
[6] In or around 1995, the Applicant entered into a common law relationship in Canada with a Canadian woman with whom he had a child, Stephen, in 1996. The relationship ended in 1996 but the Applicant retains custody of Stephen.
[7] The Applicant applied to sponsor his wife (Grecil) and Xander and Xandro to come to Canada in 2001, and Grecil applied for permanent resident status as a member of the family class on August 19, 2002, listing Xander and Xandro as dependents.
[8] On May 11, 2004, the reviewing Officer informed Grecil in writing of the rejection of her application pursuant to section 4 of the Regulations. The Officer found that Grecil's marriage to the Applicant was entered into in order for her to gain a status or privilege under the Act, and that she did not intend to live with the Applicant in Canada.
[9] The Applicant appealed the Officer's decision, and a hearing was held before the Board on May 2, 2005.
DECISION UNDER REVIEW
[10] The Board confirmed the Officer's findings. In its reasons, it determined that the evidence submitted by the Applicant, his mother, and Grecil was not credible and had deliberately been designed to bolster Grecil's application.
[11] The Board based its Decision on the following key findings:
(a) The Applicant's failure to visit his wife and children since 1992, his failure to sponsor his wife for ten years, his involvement with another woman in Canada, attempts by witnesses to mislead the Board, and Grecil's deficient knowledge of the Applicant's circumstances in Canada, all pointed towards the conclusion that their marriage was not genuine;
(b) The Board did accept that the Applicant had provided financial support to Grecil and their two sons and had maintained contact with them. However, it also found that his conduct toward her did not suggest the existence of a spousal relationship;
(c) The Applicant's conduct following his arrival in Canada in 1990 did not indicate that he retained a long-term plan to bring Grecil and the children to Canada after his own immigration;
(d) The Applicant's conduct at the time of the marriage and since suggested that the marriage was not entered into for legitimate spousal purposes, but rather indicated that its main purpose was to acquire a status or privilege under the Act, namely the future sponsorship of the Applicant's sons to come to Canada.
[12] The Board also found that Grecil's inclusion as the principal applicant in the permanent residence application suggested that she was disinclined to allow her sons to come to Canada unless she could accompany them, but the Board made no determination in this regard.
[13] The Board rejected the application of the dependent children, finding that their applications also failed as a result of its findings regarding Grecil, who was the principal applicant.
ISSUES
[14] The Applicant raises the following issues:
1. Did the Board err by failing to consider Grecil's intention in determining whether the marriage was entered into primarily for purpose of acquiring any status or privilege under the Act?
2. Did the Board err by considering the intention of the Applicant both at the time of the marriage and after the marriage in its consideration of the second element of the test set out in section 4 of the Regulations?
3. Did the Board err in its interpretation of the word "privilege" as it appears in section 4 of the Regulations?
4. Did the Board err in misinterpreting and misconstruing the evidence before it?
5. Notwithstanding the rejection of Grecil's application for permanent residence, did the Board err in also dismissing the applications of the dependent children?
RELEVANT LEGISLATION
[15] The relevant provisions of the Act read as follows:
| 3. (1) The objectives of this Act with respect to immigration are
...
(d) to see that families are reunited in Canada;
...
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.
...
42. A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if
...
(b) they are an accompanying family member of an inadmissible person.
...
63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
...
175. (1) The Immigration Appeal Division, in any proceeding before it,
...
(c) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.
|
3. (1) En matière d'immigration, la présente loi a pour objet :
...
d) de veiller à la réunification des familles au Canada;
...
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.
...
42. Emportent, sauf pour le résident permanent ou une personne protégée, interdiction de territoire pour inadmissibilité familiale les faits suivants :
..
b) accompagner, pour un membre de sa famille, un interdit de territoire.
...
63. (1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent.
...
175. (1) Dans toute affaire dont elle est saisie, la Section d'appel de l'immigration :
...
c) peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision.
|
[16] The relevant provisions of the Regulations read as follows:
| ...
4. For the purposes of these Regulations, no foreign national shall be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.
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 foreign national has begun a new conjugal relationship with that person after a previous marriage, common-law partnership or conjugal partnership with that person was dissolved primarily so that the foreign national, another foreign national or the sponsor could acquire any status or privilege under the Act.
...
10. (3) The application is considered to be an application made for the principal applicant and their accompanying family members.
|
...
4. Pour l'application du présent règlement, l'étranger n'est pas considéré comme étant l'époux, le conjoint de fait, le partenaire conjugal ou l'enfant adoptif d'une personne si le mariage, la relation des conjoints de fait ou des partenaires conjugaux ou l'adoption n'est pas authentique et vise principalement l'acquisition d'un statut ou d'un privilège aux termes de la Loi.
4.1 Pour l'application du présent règlement, l'étranger n'est pas considéré comme l'époux, le conjoint de fait ou le partenaire conjugal d'une personne s'il s'est engagé dans une nouvelle relation conjugale avec cette personne après qu'un mariage antérieur ou une relation de conjoints de fait ou de partenaires conjugaux antérieure avec celle-ci a été dissous principalement en vue de lui permettre ou de permettre à un autre étranger ou au répondant d'acquérir un statut ou un privilège aux termes de la Loi.
...
10.(3) La demande vaut pour le demandeur principal et les membres de sa famille qui l'accompagnent.
|
ARGUMENTS
1. Did the Board err by failing to consider Grecil's intention in determining whether the marriage was entered into primarily for purpose of acquiring any status or privilege under the Act?
The Applicant
[17] The Applicant submits that section 4 of the Regulations sets out a two-pronged test to determine when an Applicant will not be considered a spouse:
(a) If the marriage is not genuine; and
(b) If the marriage was entered into primarily for the purpose of acquiring any status or privileged under the Act.
[18] The Applicant argues that the use of the word "and" in the wording of section 4 of the Regulations indicates that both conditions must be met for the section to apply, but that an appellant sponsor only needs to demonstrate that one of these conditions has not been met to fall outside the scope of this exclusion.
[19] This interpretation is favoured by the Board in paragraph 5 of its reasons:
According to the English version of the Regulations, the "bad faith" provision imposes a disjunctive test. Notwithstanding that wording, the Division has consistently applied a conjunctive test in its assessment of alleged "bad faith" relationships as per the wording in the French version of the Regulations. Recent amendments to the Regulations have reconciled the two versions and it is clear, at this point, that a conjunctive test is to be used is assessing sponsorships of foreign nationals. That is, in order for a foreign national to be caught by section 4 of the Regulations, the preponderance of reliable evidence must demonstrate that the marriage is not genuine and was entered into primarily for the purpose of acquiring a status or privilege under the Act. In order to succeed on appeal, the appellant need only establish one of the prongs of the test has not been met. The onus is on the appellant to demonstrate that an Applicant is not caught by the excluding section of the Regulations.
[20] The Applicant says that, while the Board based its dismissal of the appeal on the fact that the Applicant's conduct at the time of the marriage and since the marriage suggests that the marriage was entered into for the purpose of securing the future sponsorship of his two sons, it erred in law by failing to consider the intention of Grecil.
[21] In an affidavit filed before this Court, Grecil states that she married the Applicant primarily because they had lived together for approximately five years, they had two children, she loved him and she wanted him to be her husband.
The Respondent
[22] The Respondent argues that the Applicant had the onus of establishing that Grecil did not fall under the exclusion set out in section 4 of the Regulations and he simply did not adduce sufficient credible evidence to discharge the onus upon him of showing that Grecil's primary intention was not to gain a privilege under the Act by entering into the marriage.
2. Did the Board err by considering the intention of the Applicant both at the time of the marriage and after the marriage in its consideration of the second element of the test set out in section 4 of the Regulations?
The Applicant
[23] The Applicant submits that even if the Board was entitled to consider only the intentions of the sponsor with respect to the second element set out in section 4 of the Regulations, the Board erred in law in considering the intention of the Applicant after the marriage.
The Respondent
[24] The Respondent argues that the Board largely considered the actions of the Applicant in order to determine the genuineness of the marriage, not to determine the Applicant's intentions upon entering the marriage.
[25] The Respondent states that insofar as the Applicant's post-marriage behaviour was considered by the Board for the purposes of the second prong of the test set out in section 4 of the Regulations, its attempt to infer pre-marital intentions from post-marital behaviour was not unreasonable.
3. Did the Board err in its interpretation of the word "privilege" as it appears in section 4 of the Regulations?
The Applicant
[26] The Applicant argues that the "privilege" which led the Board to conclude that section 4 of the Regulations excluded Grecil from the family class was a privilege enjoyed by her sponsor: the future sponsorship of his two sons.
[27] The Applicant argues that the privilege which triggers the application of section 4 of the Regulations must be enjoyed by the person being sponsored; and Grecil obtained no privilege by entering into the marriage.
The Respondent
[28] The Respondent submits that the Act does not specify who must acquire a privilege to trigger the exclusion of someone from the family class, and that the Board did not misconstrue the meaning of the word "privilege" as it appears in section 4 of the Regulations. In this case, the Board determined that the privilege sought was the future acquisition of Canadian residency by the Applicant and Grecil's children.
[29] The Respondent adds that whether or not the acquisition of the privilege of Canadian residency for Grecil was contemplated at the time of the marriage is irrelevant, so long as the marriage was primarily intended to ensure that some status or privilege under the Act would be conveyed to someone, the marriage fails the second prong of the bad faith test.
4. Did the Board err in misinterpreting and misconstruing the evidence before it?
The Applicant
[30] The Applicant submits the subsidiary argument that the Board misinterpreted and misconstrued the evidence before it when it found that the Applicant gained a privilege under the Act relating to the future sponsorship of his sons by entering into the marriage with Grecil. This is because the Applicant had the same sponsorship rights with respect to his sons regardless of his marriage to Grecil.
The Respondent
[31] The Respondent argues that the Applicant had the onus of establishing that Grecil did not fall under the exclusion set out in section 4 of the Regulations. He simply did not adduce sufficient credible evidence to discharge the onus upon him of showing that neither his, nor Grecil's, primary intention was to gain a privilege under the Act by entering into the marriage.
[32] The Respondent argues that, pursuant to paragraph 175(1)(c) of the Act, the Board can base its Decision on evidence adduced in proceedings which it deems credible, and it is well established that the Board is capable of assessing the plausibility and credibility of witness testimony as long as the inferences it draws are not unreasonable and its reasons are clear and comprehensible. (Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, [2005] S.C.J. No. 39, 2005 SCC 40">2005 SCC 40, Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (FCA), Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (FCA))
[33] In the present case, the Board clearly set out the evidentiary deficiencies upon which it based its conclusions. These deficiencies included the following:
(a) The Applicant's testimony that he could not afford to visit his family in the Philippines despite evidence to the contrary;
(b) The Applicant's testimony that his son Stephen had spent a month in the Philippines with Grecil, coupled with her testimony that she had never met Stephen;
(c) The fact that Grecil did not know Stephen's age, notwithstanding her testimony that she knew his background and maintained contact with him;
(d) The testimony of the Applicant's mother who stated that she had met Grecil and her sons, coupled with the Applicant's testimony that he did not know if his mother had ever met them.
5. Notwithstanding the rejection of Grecil's application for permanent residence, did the Board err in also dismissing the applications of the dependent children?
The Applicant
[34] The Applicant relies on subsection 10(3) of the Regulations to argue that, even if the principal applicant is found not to be a member of the family class, the application should still proceed with respect to the accompanying dependents who are members of the family class.
[35] The Applicant submits that by failing to allow the appeal with respect to the Applicant's two sons, the Board erred in law.
The Respondent
[36] The Respondent states that, given the Board's finding regarding the inadmissibility of Grecil, the wording of subsection 42(b) of the Act clearly establishes that Xander and Xandro are inadmissible accompanying family members.
[37] The Respondent further argues that the use of the word "and" in subsection 10(3) of the Regulations suggests that the application of a parent listing his or her children as dependents is a single application, and that it does not contemplate the severance of the children's application if their parent's application fails.
[38] The Respondent concludes by pointing out that the Applicant did not attempt to sponsor his children independently of their mother.
ANALYSIS
Standard of Review
[39] The parties disagree on the standard of review applicable to the issues raised by the Applicant. The Respondent believes that the Decision deals with credibility issues and the overall bona fides of the marriage, so that the Court should apply the general standard of patent unreasonableness as confirmed by Justice Snider in Dang v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1322, 2004 FC 1090, p. 4, para. 12. The Applicant alleges that he is raising issues of law to which a standard of correctness should be applied.
[40] With several issues, the Applicant is merely inviting the Court to read the Decision in a particular way that I believe is wrong. But the Applicant also alleges errors of law that involve statutory interpretation. In such instances I have applied a standard of correctness as indicated in the following reasons without engaging in a pragmatic and functional analysis. This is because I conclude that the Board was correct in its approach to legal issues.
Grecil's Intention
[41] The Applicant says that the Board erred in law by failing to consider Grecil's intention in determining whether the marriage was entered into primarily for the purpose of acquiring a status or privilege under the Act.
[42] The reason for this error, according to the Applicant, is that the Board failed to address the second prong on the conjunctive test required by section 4 of the Regulations. It did not complete the task required of it because it failed to take into account Grecil's evidence in deciding if the marriage "was entered into primarily for the purpose of acquiring any status or privilege under the Act."
[43] My review of the Decision suggests that the Board does, in fact, review the evidence of Grecil as part of its general concern that "The witnesses were not credible. There is a significant lack of cogency in much of the evidence of the hearing."
[44] In this regard, the Board cites as an example Grecil's evidence regarding the Applicant's extra-marital relationship with Ms. Brice in Canada:
For her part the principal applicant [Grecil] advised that she had "no idea" as to whether the appellant [the Applicant] had separated from his former common-law partner a decade ago or within the last year. Her lack of knowledge in this area does not suggest that details of the relationship have been disclosed even since the time of interview or that the principal applicant has expressed any interest in a highly relevant area. Her disinterest and lack of knowledge is quite remarkable. In a related area, the evidence with respect to whether or not the principal applicant has ever met the appellant's son, Stephen, was completely irreconcilable as between the witnesses.
[45] The Board goes on to consider generally Grecil's evidence concerning Stephen and concludes that "Her conduct vis à vis Stephen, again, is not reflective of conduct to be expected in a relationship with a genuine spousal purpose."
[46] Or again, in discussing Grecil's evidence concerning her residence with the Applicant's mother, the Board concludes that the "principal applicant's testimony does not support the allegation the couple maintained regular or meaningful contact during their protracted period of separation."
[47] In fact, the Board makes a general finding on the credibility of all of the witnesses: "There are discrepancies in the evidence too numerous to mention. Suffice it to say that I reject much of the evidence at hearing." The Applicant does not challenge this general finding. Nor does the Applicant challenge the following conclusion of the Board:
When all is taken together, the appellant's failure to visit the applicants for fourteen years, his failure to sponsor the applicant's for ten of those years, the involvement with another individual in Canada, the attempt by all witnesses at hearing to mislead the panel in relevant and key areas and the principal applicants overall deficient knowledge as to the appellants circumstances in Canada, leads me to conclude that the relationship at hand is not a genuine one ... . The appellant has not established that the relationship is a genuine one.
[48] The Applicant's complaint relates to the way that the Board dealt with the "motivation for the marriage." The Applicant complains that, on this issue, the Board concentrates upon the evidence of the Applicant, but leaves out of account what Grecil said. The Applicant says this is shown by the Board's conclusion:
The appellant's [the Applicant's] conduct at the time of the marriage and since, does not suggest that the marriage was entered into for a legitimate spousal purpose but, rather, was entered into for the primary purpose of acquiring a status or privilege under the Act. I conclude that privilege was, in fact, the future sponsorship of his sons to Canada.
[49] So the Court needs to make an initial determination as to whether the Applicant is correct in his assertion that the Board failed to consider Grecil's intention. In addressing the second prong of the test (the "motivation for the marriage") the Board relies upon a great deal of the evidence it had addressed when looking at the genuineness of the marriage. I see nothing wrong with this. As Justice John A. O'Keefe pointed out in Deo v. Canada, 2004 FC 1339 (F.C.T.D.) at para. 47, when considering the test under the old Act, "Even if the Horbas case sets out a two prong test, it does not necessarily mean that answers given in response to the first element of the test cannot be used to analyze the second element of the test." Similarly, in the case at bar, I do not see why the evidence examined by the Board to decide that the marriage was not genuine would not also have relevance when the Board turned its mind to motivation.
[50] Whether the Board left out of account anything that Grecil said on the motivation issue depends upon what she said and its possible significance for the Decision. To begin with, the Board found that "the witnesses were not credible "and that "there is a significant lack of cogency in much of the evidence at the hearing." These remarks are just as applicable to the motivation aspect of the Decision as they are to the genuineness of the marriage aspect. So are the following remarks: "There are discrepancies in the evidence too numerous to mention. Suffice it to say that I reject much of the evidence at hearing."
[51] The Applicant's complaint is that the Board based its motivation conclusions on the evidence concerning the conduct of the Applicant "at the time of the marriage and since the marriage" and "failed to make any determination with respect to whether the principal applicant spouse [Grecil] entered into the marriage for the purpose of acquiring some status or privilege under the Act." So, says the Applicant, it was "by failing to consider the intention of the principal applicant, Grecil Gavino in entering into the marriage, the panel committed an error in law."
[52] The first point to make is that section 4 of the Regulations does not say that, in determining the genuineness of a marriage and the primary purpose of entering into it, it is the intention of the sponsored spouse that decides the issue. The focus of the inquiry is clearly "the marriage," its genuineness and its primary purpose.
[53] In deciding these issues, however, the evidence of both spouses is relevant. But I can find nothing to suggest that the Board did not consider Grecil's evidence on this point. The fact is that the Board found the witnesses were not credible and the discrepancies were "too numerous to mention." These words were obviously intended to encompass anything Grecil might have said on this point.
[54] As the Respondent points out, Grecil appeared to be in the dark on most of the important issues, so it is hardly surprising that the Board found itself having to deal primarily with what the Applicant had to say. The CAIPS notes reveal the following exchange that took place in the interview of Grecil on May 11, 2004:
Q: And have you and he married?
A: Yes
Q: When?
A: December 23, 1991
Q: And that was after he had first gone to Canada?
A: Yes
Q: Why did you and he marry?
A: Because he wants to get us
Q: What does that mean?
A: He wants us to go to Canada
[55] The Officer's conclusions following the interview are as follows:
I questioned the applicant with respect to her motivations in marrying her sponsor, and his motivations in marrying her. While her answers are less than clear, and not likely to be particularly reliable statements of her motivations 13 years ago, it is difficult to see in any of her answers any emotional attachment for her sponsor, either then or now. It is beyond belief that, over a period of 13 years, her sponsor would not have been able to afford even one visit to his wife and children, if there were any meaningful attachment between them. I conclude that the applicant married her sponsor in order to have some assurance that, should he sponsor the children in the future, she would also get to go to Canada.
[56] This suggests that, although Grecil's answers to a direct question on motivation were, at best, ambiguous - "He wants us to go to Canada" - when taken in conjunction with other evidence and the general credibility concerns that lie behind this Decision, it can hardly be said that Board failed to take into account anything material that Grecil might have said on point.
[57] When the Decision is read as whole in the context of the evidence that was available and the Board's general credibility concerns (unchallenged) concerning that evidence, I do not think it can be said that the Board left anything material out of account when considering the motivation issue under section 4 of the Regulations. Hence, I can find no reviewable error on this issue.
The Time to Consider Intention
[58] The Applicant claims that, even if the Board is entitled to consider solely the intention of the sponsor with respect to the second element set out in section 4 of the Regulations, the Board "considered his intention both at the time of the marriage and after the marriage, and thereby committed an error in law."
[59] I have already concluded that the Board did not consider only the sponsor's intention, and that the Board addressed all material evidence when considering the motivation for the marriage. But the Applicant's complaint here is that the Board mixes the two prongs of the section 4 test and, in effect, looks at intention in the period following the marriage.
[60] Applicant's counsel was perfectly candid that he could not point to any specific wording in the Decision that is conclusive on this point, but he invited the Court to look at the way the Board undertakes its analysis in general.
[61] I have reviewed the Decision as a whole and, while it is obvious that the Board looks at conduct and evidence after the date of the marriage, I can find no indication that the Board either confuses the two prongs of the section 4 test or that the Board is not, at all times, addressing intention at the time of the marriage. Hence, I can find no reviewable error on this point.
The Interpretation of "Privilege" in Section 4
[62] The Applicant says that, in considering "privilege" under section 4, the Board "determined that the 'privilege' that triggered section 4 to exclude Grecil Gavino from the family class was a privilege enjoyed by her sponsor, Edwin Garcia - the future sponsorship of his two sons to Canada."
[63] The Applicant's position is that "the privilege which triggers section 4 ... must be a privilege enjoyed by the principal applicant."
[64] The Board's conclusion on this issue is, in fact, that "The appellant's conduct at the time of marriage and since, does not suggest that the marriage was entered into for a legitimate spousal purpose but, rather, was entered into for the primary purpose of acquiring a status or privilege under the Act. I conclude that privilege was, in fact, the future sponsorship of his sons to Canada."
[65] There is nothing in the Decision which says that the privilege in this case is one that was enjoyed by the sponsor or the principal applicant, or the children. The marriage was merely entered into to secure the privilege of sponsorship for the children.
[66] Section 4 of the Regulations does not say that the privilege must accrue to the sponsored "foreign national." It links the "marriage" with "any status or privilege under the Act" and does not limit in any way the person or persons to whom that status or privilege must accrue.
[67] Looking at the plain meaning of "status" and "privilege" in the context of section 4, and the overall purposes of the Act, and applying the principles enunciated by the Supreme Court of Canada in Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 (S.C.C.) at paras. 20-22, I conclude that the word "privilege" in section 4 means that so long as the marriage was primarily intended to ensure that some privilege under the Act would be conveyed to someone the marriage fails the second prong of the bad faith test. And, on the facts of the present case, I certainly cannot say that a privilege that accrues to the children fails the second part of the test.
[68] But the Applicant goes further and says that, in fact, there was no privilege in this case. The Applicant's right to sponsor his two sons was exactly the same after as before the marriage, and the rights of the children to be sponsored did not change because of the marriage.
[69] This argument by the Applicant requires the Court to read into section 4 of the Regulations a requirement that a status or a privilege must actually accrue as a result of the marriage.
[70] Without considering whether a status or a privilege actually did accrue to the children or anyone else on the facts of this case (the issue was not fully argued because, in written submissions the Applicant only raised the issue of privilege with Grecil and did not consider the children) the plain wording of section 4 only requires a consideration of the primary purpose of why the marriage was entered into. It does not require a consideration of whether that purpose was achieved and whether, as a result of the marriage, a status on a privilege was acquired under the Act.
[71] The Board concluded that the primary purpose for entering into the marriage was the future sponsorship of the two children to Canada. It did not find, as the Applicant submitted in the materials filed for this hearing, that the privilege "that triggered section 4 to exclude Grecil Gavino from the family class was a privilege enjoyed by her sponsor, Edwin Gavino - the future sponsorship of his two sons to Canada."
[72] The Applicant's argument that the privilege has to accrue to the principal applicant is not tenable in my view if the principles of Rizzo Shoes are applied to section 4. Hence, I can find no reviewable error on this point and I believe the Board was correct in its interpretation of section 4.
Misinterpreting and Misconstruing Evidence
[73] The Applicant's point under this issue is, once again, that the Applicant is the one to whom the Board says the privilege accrued. The Applicant argues that there was no evidence to this effect because "He had the same rights of sponsorship under the Act with respect to his sons, whether he was or was not married to Grecil Gavino."
[74] For reasons I have already given, I do not believe the Board ascribed the privilege to the Applicant, and I do not read section 4 as saying that the primary purpose of the marriage must, in fact, be achieved by the gaining of a privilege under the Act. The purpose of the marriage was to facilitate or permit sponsorship of the children under the Act. I do not have full argument or whether that primary purpose was, in fact, achieved or whether, as a matter of law, its achievement is necessary to satisfy the second prong of the section 4 test. Hence, I believe there was no reviewable error on this issue.
Severance
[75] The Applicant says that the Board erred when, after finding that Grecil was not a member of the family class, it did not proceed with respect to the two boys.
[76] As the Respondent points out, it may be possible (and the practice is certainly followed in some instances) for a determination to be made concerning accompanying family members even when the principal applicant is excluded from the family class.
[77] But this must depend upon the nature of the application that is made and the evidence concerning the intention of the parties.
[78] In the present case, the Officer specifically asked Grecil what her position was on the Applicant's sponsoring the children without her.
Q: Would you agree, today, to the children going to Canada and you staying behind?
A: No
[79] Grecil also had the following to say on this matter in her affidavit for this application:
I was aware that Edwin Doral Gavino wanted our children to immigrate to Canada and I would not have permitted our children to go to Canada without me.
[80] On the facts of this case, I do not believe it was open to the Board to consider severing the children from Grecil. The evidence was that the sponsor, and certainly Grecil, wanted the Board to consider the principal applicant and the children as a group, and not the children separately.
Conclusions
[81] For the reasons given, I cannot accept that the Board made the errors of law alleged by the Applicant. Even applying a standard of correctness to the issues raised by the Applicant, I believe there was no reviewable error. And where the Decision is based upon findings of fact and credibility I cannot say that the Board was patently unreasonable in any of its conclusions.
[82] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.
"James Russell"
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