Date: 20100527
Docket: IMM-5393-09
Citation: 2010 FC 584
Toronto, Ontario, May 27, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
JIAN
FENG CHEN
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is a story of love gone wrong. Mr. Chen, a Chinese citizen, married Ms. Zou, a
Canadian resident. She then sponsored him for permanent residence. When he
arrived in Canada about a year
later, he found her pregnant with another man’s child. After a month or two,
the marriage fell apart.
[2]
After
their divorce, he married an old flame in China and as a
Canadian permanent resident endeavoured to sponsor her. At this stage the
Immigration Authorities became suspicious. Not only was the sponsorship of his
second wife disallowed, he was also declared inadmissible for misrepresentation
by directly withholding information and representing that his first marriage
was genuine. He appealed that decision to the Immigration Appeal Division (IAD)
of the Immigration and Refugee Board. His appeal was dismissed. This is the
judicial review of that decision.
[3]
I
find the decision completely unreasonable, grant judicial review and refer the
matter back to the IAD for a fresh hearing before a different member.
THE FACTS
[4]
After
the marriage, while Mr. Chen was in China awaiting his papers and while Ms. Zou
was back in Canada, a friend
told him that someone originally from their village had seen Ms. Zou in the
company of another man in Toronto. Mr. Chen hoped that
nothing was going on.
[5]
On
arrival in Toronto, however, he
found his wife was pregnant. He was willing to forgive, and asked her to get an
abortion. She refused. On many occasions she made sexual overtures to him but
he was both unwilling and unable to perform. She taunted his lack of manhood.
[6]
Both
angry and humiliated, he blew $1,000 at a casino. This just made matters worse.
The marriage was at an end.
[7]
He
only came to the attention of the authorities when he attempted to sponsor his
second wife. They were suspicious that perhaps his first marriage was not
genuine. The thrust of the various reports, and the decision under review, is
that the marriage and courtship were very brief, that no wedding reception was
held despite Mr. Chen’s original assurance that one would be held once he
entered Canada, that he failed to confront his wife before he left China with
the rumours of her affair, and that after the divorce he only met with his ex upon
receiving a call-in notice in 2006, which was an indication that he only wanted
to meet to discuss immigration matters so that therefore the primary motive of
the relationship in the first place was to gain an immigration advantage.
DISCUSSION
[8]
Section
40(1)(a) of the Immigration and Refugee Protection Act (IRPA) provides:
|
40. (1) A
permanent resident or a foreign national is inadmissible for
misrepresentation
(a) for
directly or indirectly misrepresenting or withholding material facts relating
to a relevant matter that induces or could induce
an error in the
administration of this Act;
|
40. (1)
Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
a)
directement ou indirectement, faire une présentation erronée sur un fait
important quant à un objet pertinent, ou une réticence
sur ce fait, ce qui
entraîne ou risque d’entraîner une erreur dans l’application de la présente
loi;
|
[9]
Once
an immigration officer’s suspicions were aroused, she invoked Section 44(1)(a)
of the Act and prepared a report opining that Mr. Chen was inadmissible. This
led to an exclusion order under Section 229(1)(h) of the Immigration and
Protection Regulations, and finally to an appeal under Section 62 and
following of IRPA.
[10]
The
appeal not only takes into account the original findings but also whether the
applicant, in any event, should be permitted to remain in Canada on
humanitarian and compassionate grounds.
[11]
This
is a classic case of viewing events through a rear-view mirror. One has to
consider whether the marriage was genuine in the first place, and whether it
was still genuine when Mr. Chen was interviewed about a month before coming to Canada, at which
time he had heard rumours about his wife’s conduct.
[12]
The
basis for holding that the marriage was not genuine was that it only lasted for
a short period of time, that he did not immediately return to China when the
marriage broke up but did return not all that much later in order to pursue a
former flame.
[13]
These
facts cannot establish an evidentiary basis that the marriage was not genuine
in the first place. How was he to know at the time of the marriage that he
would find his wife pregnant with another man’s child a year later? As to not
immediately returning to China when the marriage broke down, he said that
as a cuckold he would be the laughing stock of his village. There was no
evidence to contradict that statement. When he returned thereafter, it was in a
different context all together.
[14]
As
to not sharing the rumours with the officer at the time of his interview, what
material fact did he withhold? The only fact was that he had heard rumours.
Even if they were true, it did not mean that the marriage was necessarily at an
end. The Divorce Act specifically contemplates the possibility of
reconciliation and the divorce papers jointly signed by the parties, which are to
be found in the tribunal record, contain their joint statement that
reconciliation was not possible.
[15]
The
duty of candour did not oblige Mr. Chen to share his worries with an
immigration officer. This case is quite different from Singh v. Canada (Minister of
Citizenship and Immigration), 2010 FC 378, in which I discussed
fraudulent, negligent and innocent misrepresentations. In this case, there was
no misrepresentation and no fact was withheld.
[16]
In
the circumstances, it is not necessary for me to consider the IAD’s analysis of
humanitarian and compassionate factors, which might have, in any event, allowed
Mr. Chen to remain in Canada.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
application for judicial review is granted.
2.
The
matter is referred back to the Immigration Appeal Division of the Immigration
and Refugee Board for re-determination.
3.
There
is no serious question of general importance to certify.
“Sean
Harrington”
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