Date:
20060925
Docket:
IMM-7030-05
Citation:
2006 FC 1112
BETWEEN:
ANNIE
THERRIEN
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
PINARD J.
[1] This is an application for judicial
review of a decision of the Immigration Appeal Division of the Immigration and
Refugee Board (IRB), dated October 27, 2005, dismissing the appeal from the
refusal to issue a permanent residence visa in the family class to Amine Karam,
a citizen of Morocco.
The facts
[2] The relationship between the
applicant and her husband began in July 2001. That was when the applicant and
Amine Karam (the claimant) began exchanging messages via the Internet.
[3] In December 2001, Mr. Karam’s
brother, Abdel Karam, who was in Montréal, contacted the applicant. He met with
her mother shortly before Easter 2002, that is just prior to March 31, 2002.
[4] Abdel Karam accompanied the
applicant to Morocco on her trip to that country on July 20, 2002.
[5] On August 2, 2002, the spouses
received an administrative certification for their marriage from the Moroccan
authorities.
[6] On August 7, 2002, the Canadian
authorities issued a certificate of competence allowing the applicant to marry.
[7] On August 8, 2002, the spouses were
examined by a Moroccan physician in order to obtain the necessary medical
certificate to marry.
[8] On August 17, 2002, the marriage
ceremony took place. However, the marriage is dated August 29, 2002.
[9] On September 19, 2002, the
applicant returned to Canada.
[10] On or about February 11, 2003, Amine
Karam filed an application for permanent residence in the family class — an
application sponsored by the applicant — at the Canadian Embassy in Paris.
[11] On October 20, 2003, the visa
officer in Paris held an interview with the claimant.
[12] On October 22, 2003, the visa office
rejected Amine Karam’s application for permanent residence, a decision that
resulted in the appeal to the IRB.
[13] The applicant returned to Morocco
from July 30 to September 30, 2004.
[14] After the IRB had reserved its
decision on the case, the applicant visited Morocco from September 16 to
October 1, 2005.
[15] On October 27, 2005, the IRB
dismissed the applicant’s appeal.
Analysis
[16] The appeal to the IRB was an appeal de
novo. According to this Court’s jurisprudence, the onus was on the
applicant, in her appeal to the IRB, to demonstrate on a balance of
probabilities that her husband did not marry primarily for the purpose of
obtaining a status or a privilege under the Act (Horbas v. Minister of
Employment and Immigration, [1985] 2 F.C. 359).
[17] This Court will intervene only if
the panel’s findings are patently unreasonable. In Dhillon v. Minister of
Citizenship and Immigration, 2004 FC 846, my colleague Noël J. wrote:
[4] I agree
with the Respondent that, as set out in Tse v Canada (Secretary of State) [1993]
A.C.F. No. 1396, decisions of the Immigration Appeal Division of the
Immigration and Refugee Board (“Board”) should be upheld unless they are
patently unreasonable. I also agree that where the Board has considered all of
the relevant factors in deciding the Applicant’s case, it is not up to this
Court to re-weigh the evidence. . . .
[18] However, as this Court stated
recently in Minister of Citizenship and Immigration v. Savard, 2006 FC
109, “the appropriate standard of review for questions of interpretation of law
is correctness.”
[19] According to the applicant, the IRB
clearly misapprehended the evidence.
[20] The applicant criticizes the IRB,
first, for noting her naiveté but without being willing to acknowledge that it
might have wished to have this naiveté demonstrated in particular by her
marriage. Concerning the simplicity of the marriage ceremony, the IRB, she
alleges, thought this was scheming by her husband, since “A discreet marriage
can therefore be dissolved with less social impact,” despite the fact that she
had clearly explained that she was the one who wanted the ceremony to be
simple.
[21] In my opinion, the applicant is
right to say that this is a speculative conclusion. The IRB gave no reason why
it should not think it was the applicant’s request that the marriage ceremony
be so simple.
[22] Furthermore, the IRB had no evidence
before it concerning the conditions in which a marriage can be dissolved in
Morocco, or the possible social impact of such dissolution, so this conclusion
was also speculative.
[23] The IRB also wrote at paragraph 40
of its decision that “the panel agrees with the visa officer’s assessment
regarding the appellant’s true plans to gain entry to Canada in order to
continue his studies.” However, the applicant argues that there is no statement
to this effect in the transcript of the hearing.
[24] The only reference in the file to
the claimant’s desire to continue his studies appears in the notes of the
immigration officer, where it is written: [Translation] “[t]he candidate lives
with his parents in Casablanca and attends a computer school. He would like to
continue his computer studies in Canada.” In my opinion, these two sentences do
not allow the IRB to find that the claimant is seeking access to Canada to
continue his studies, and there is nothing else in the record to confirm this.
This conclusion was also speculative.
[25] The applicant
further criticizes the IRB for speaking of local customs and traditions without
any documentation on these customs and traditions having been filed; in this
regard, the IRB stated:
[40] . . . A
discreet marriage can therefore be dissolved with less social impact. When that
is weighed against the local customs and traditions, it is not unreasonable to
expect the appellant and the applicant to supply a plausible explanation to
satisfy the panel that a simple wedding was a legitimate choice under the
circumstances.
[26] The applicant is
right. No document in the file refers to local customs and traditions in
respect of marriage ceremonies, and the customs referred to in the testimony
did not contradict the legitimacy of the relationship.
[27] Concerning
Abdel, the applicant also objects to the following observations of the IRB:
[34] First,
the brother, Abdelouahed, was certainly more involved than the visa officer
could have suspected during the interview on October 20, 2003. In fact, the
appellant admitted that the brother wanted to meet her before any marriage was
proposed. Mrs. Couture admitted that he visited the family often, but she did
not say how he had managed to enter Canada. . . .
[35] Abdel’s
visits certainly led the visa officer to reach the conclusion that the panel
reached at the hearing—that the appellant is a very naive person who has been
duped by her lover. . . .
[28] The IRB assumes
a scenario according to which the claimant’s brother sought to get to know the
applicant and play the role of a matchmaker. In my opinion, this is a harsh
interpretation that is unsupported by the evidence. Furthermore, the
relationship between the applicant and the claimant had gone on for about five months before she met Abdel. I
consider this to be another speculative conclusion, therefore.
[29] According to the
applicant, at no time was any evidence adduced concerning Abdel, the claimant’s
brother, nor was he called as a witness. The reference to Abdel’s file and to
the visa officer’s opinion on this matter appears clearly in the IRB’s observations:
[29] First,
the applicant has a brother who made a patently unfounded refugee claim in
order to obtain some kind of status in Canada. That brother took advantage of
the time it took to process his refugee claim to marry a Canadian and thereby
obtain status, given the inevitably negative outcome of his initial claim for
refugee status.
[30] First, it is
true that the claimant stated on October 20, 2003 that he had no problem of
political persecution, but in my opinion that is far from sufficient to allow
an inference as to Abdel’s refugee claim made around 1997. There was no
evidence before the IRB that would allow it to determine that Abdel had made a
patently unfounded claim. In my opinion, this conclusion was purely
speculative.
[31] Second, the applicant
argues that the IRB could not make such a finding without having seen either
the decision or Abdel’s file. In her opinion, the IRB clearly relied on the
notes of the visa officer and on the latter’s opinion about Abdel Karam’s file,
which reveal:
[Translation]
The candidate’s
brother was sponsored by a Canadian citizen after applying for and being
refused refugee status in Canada.
The candidate
admitted that he had no problems regarding political or other persecution in
Morocco that would qualify him or members of his family as genuine refugees.
[32] The applicant also argues that,
contrary to the reasons of the IRB, the claimant never said that “the ceremony
was simple because of the time of year—it was Ouhda . . . .” Again, the
applicant is right. The claimant never stated that Ouhda was the reason why the
ceremony was simple.
[33] The applicant is also right when she
argues that, contrary to paragraph 37 of the Board’s reasons, where it stated
that she “does not know how to explain how a purely virtual relationship via
the Internet became so serious that she would travel to Morocco with all the
documents required to complete the plan,” she explained this relationship in
detail.
[34] Furthermore, the IRB wrongly writes
that “[t]he couple has no alternative plan to live together in Morocco.”
However, it appears that the claimant reported certain alternatives, among them
that if he was refused, the applicant would go and live in Morocco.
[35] Finally, the applicant argues that
the IRB did not consider all of the evidence, including the evidence filed on
October 7, after the hearing of June 31, 2005.
[36] At paragraph 23 of the decision, the
IRB reports a return trip made from July 30 to September 30, 2004, but does not
mention the trip to Morocco made from September 6 to October 1, 2005. The
applicant then filed about 19 pages illustrating in various ways the events of
this trip to see her husband again. In its decision, the IRB says nothing about
this trip or this claim; it does not even mention receiving this fresh
evidence.
[37] The decision in Cepeda-Gutierrez
v. Canada (M.C.I.), 157
F.T.R. 35, [1998] F.C.J. No. 1425 (T.D.) (QL), is clear authority for the
proposition that the IRB’s failure to mention evidence in the reasons is not
necessarily fatal to the decision. However, the duty to provide an explanation
increases in proportion to the relevance of the evidence in question to the
disputed facts.
[38] By the time
of the IRB’s decision, the applicant had visited the claimant three times, not
once, and for a total duration of four and a half months, not two months. The
applicant submits that this evidence should certainly have been sufficient, on
a balance of probabilities, to allow that this was an authentic, intimate,
stable and steady relationship.
[39] In my
opinion, it is hard to know whether the IRB ignored this evidence or whether it
accepted it but nevertheless considered it insufficient. However, I am of the
opinion that this evidence is central and that the fact that the IRB mentioned the
applicant’s trip made in 2004, but not the one made in 2005, indicates that the
Board probably overlooked this evidence.
Conclusion
[40] To my mind,
these numerous errors committed by the IRB so impair the decision as a whole as
to make it patently unreasonable, and warrant the intervention of this Court.
[41] Accordingly,
the application for judicial review is allowed, the decision of the IRB, dated
October 27, 2005, is set aside and the matter is referred back to the IRB for
reconsideration and redetermination by a differently constituted panel.
Judge
Ottawa, Ontario
September 25, 2006
Certified true
translation
Brian McCordick,
Translator
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