Date: 20050318
Docket: IMM-5045-04
Citation: 2005 FC 369
BETWEEN:
LAWRENCE MORRIS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] Lawrence Morris (the applicant) is a Canadian citizen. His relationship with the female applicant, Wei He, began around December 2000, through a dating agency. The couple married in China on April 6, 2001.
[2] The applicant filed an application to sponsor his wife and her son. The female applicant then filed a permanent residence application dated October 22, 2001. Further to these applications, the file was analysed by the visa officer in Beijing. The officer rendered a negative decision on September 9, 2002, and refused to issue a permanent resident visa to the female applicant because she was not a member of the family class and could not be considered the applicant's wife, as her marriage to him was not genuine and had been entered into primarily for the purpose of acquiring status or privilege under section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
[3] On November 4, 2002, the applicant appealed this refusal with the Immigration Appeal Division of the Immigration and Refugee Board (the IAD) under subsection 63(1) of the Immigration and Refugee Protection Act, S.C. (2001), c. 27. The IAD dismissed the appeal on May 20, 2004, hence this application for judicial review.
[4] The relevant provision of the Regulations reads 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 or was entered into primarily for the purpose of acquiring any status or privilege under the Act.
|
|
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.
|
|
|
|
|
[5] The burden of establishing the bona fides of the marriage on the balance of probabilities rests on the applicant. As the IAD decision focused on the assessment of the facts, the Court, in ruling on an application for judicial review of this decision, must apply a high degree of deference (Nguyen v. Canada (M.C.I.), [2004] F.C.J. No. 709 (F.C.T.D.) (QL)). After hearing counsel for the parties and reviewing the evidence, I am not convinced that the applicant discharged this burden, and the IAD decision does not seem to me to be patently unreasonable, for the reasons set out below.
[6] Contrary to the applicant's allegations, the IAD did not conclude or "confirm" that he had married for love or that the female applicant had married for reasons of pragmatism or convenience. The IAD concluded that the marriage fell under section 4 of the Regulations, as the inconsistencies, contradictions and implausibilities in the evidence cast doubt on the genuine nature of the relationship between the applicant and the female applicant.
[7] For example, a number of the letters submitted into evidence by the applicant in order to demonstrate the genuine nature of his relationship with the female applicant had not been written by the applicant, but rather by the owner of the dating agency. After testifying that he had never seen these letters, written in French, the applicant contradicted himself by saying that he had added paragraphs to them in English. Moreover, the contents of the letters were vague and superficial.
[8] The applicant also stated that oral communication with the female applicant had taken place in English; however, the evidence showed that the female applicant neither understood nor spoke English during her interview at the Canadian Embassy on August 28, 2002.
[9] Finally, the female applicant, who had expressed the wish to find a Canadian husband, specified that she had made the decision to marry a foreigner for cultural reasons. As she is a single parent, she was subject to discrimination in her country, such that it was very difficult for her to marry a Chinese man who would respect her and her son. This shows that the female applicant was prepared to marry any Canadian, which is reinforced by the fact that the applicant and the female applicant met in December 2000 and married shortly after, in April 2001.
[10] In the circumstances, the intervention of this Court is not warranted, and the application for judicial review is dismissed.
[11] The applicant's counsel proposed the following three questions for certification:
[TRANSLATION]
1. Did the Immigration Appeal Division (hereinafter the IAD) err in law by ruling that the marriage between the applicant and his wife (hereinafter the female applicant) was a marriage of convenience?
2. Did the IAD make a patently unreasonable error of fact in stating that the female applicant wanted to leave China because of the benefits Canada could offer her?
3. Did the IAD breach the duty of procedural fairness in finding that the female applicant's conduct demonstrated that she was interested in acquiring status or privilege in Canada?
[12] In basing my decision on the principles set out by the Federal Court of Appeal in Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4, I find that none of the questions merits certification, as each focuses fundamentally on the assessment of the facts specific to the case and, consequently, is not of the required general interest. In this regard, I agree with the written submissions of the respondent's counsel, as set out on page 2 of her letter of February 24, 2005, submitted in opposition to the certification of the questions proposed by the applicant.
"YVON PINARD"
JUDGE
OTTAWA, ONTARIO
March 18, 2005
Certified true translation
Magda Hentel
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5045-04
STYLE OF CAUSE: LAWRENCE MORRIS
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 9, 2005
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: March 18, 2005
APPEARANCES:
Dao Xuan Hoa FOR THE APPLICANT
Lucie St-Pierre FOR THE RESPONDENT
SOLICITORS OF RECORD:
Dao Xuan Hoa FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Email this Content