Date: 20100617
Docket: IMM-5751-09
Citation: 2010 FC 659
Toronto, Ontario, June 17,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
SHI
QUING LIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[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 (the Act), of a decision of a
Citizenship and Immigration Officer (the Officer), dated November 4, 2009,
where the Applicant’s application for permanent resident status under the
spouse or common-law partner in Canada class was refused.
Factual Background
[2]
Shi
Quing Lin (the Applicant), is a citizen of the People’s Republic of China who first
arrived in Canada under a
study permit in 2000. That permit was extended until September 20, 2004 and he
was subsequently issued a work permit valid to December 31, 2005. At some point
during this time, he and two friends purchased a home furnishings supply
business. He was refused an extension of his work permit but remained in the
country awaiting the result of his application for permanent residence as a
foreign skilled worker which was refused on October 19, 2006.
[3]
At
the end of June 2006, the Applicant met Evelyn Wong while at a party. He and
Ms. Wong began dating and it seems that they moved in together in October 2006.
They were married on June 5, 2007. In November 2007 the Applicant applied for
permanent resident status under the spouse or common-law partner in Canada class. Both
the Applicant and Ms. Wong attended an interview with the Officer in September
2009 and again in October 2009. The application was refused and is the subject
of this judicial review.
[4]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme
Court of Canada held that the standard of review analysis need not be conducted
in every case and that if the standard of review on the issue is well-settled
by past jurisprudence, the reviewing court may adopt that standard of review.
In light of this and the past jurisprudence of this Court, I find that the Officer’s
decision in this case is to be held to the standard of reasonableness (Dios
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1322, 337 F.T.R. 120 at paragraph
28). Thus, the Court will only intervene if the Officer’s decision is
unreasonable as it falls outside the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir at paragraph
47).
[5]
The
Immigration and Refugee Protection Regulations (the Regulations), at
section 124(a), set out that in order for a foreign national to be a member of
the spouse or common-law partner in Canada class, they must be the spouse or
common-law partner of a sponsor and cohabit with that sponsor in Canada.
Section 4 of the Regulations provides that no foreign national shall be
considered a spouse if the marriage is not genuine, and was entered into
primarily for the purpose of acquiring any status or privilege under the Act.
[6]
In
this case, the Applicant’s application for permanent residence as a member of
that class was rejected on the grounds that the Officer did not believe that
the Applicant cohabits with his sponsor, and he did not believe that the marriage
is genuine and was not entered into primarily for the purpose of acquiring
status under the Act. The Applicant has argued two grounds which he submits
merit the Court’s intervention.
[7]
With
regard to the first ground, the Applicant contends that the Officer focused
primarily on the timing of his marriage and then drew a negative inference from
it. In my view, this ground for judicial review cannot succeed. As accepted by
Justice Snider in Sharma v. Canada (Minister of Citizenship and Immigration),
2009 FC 1131, [2009] F.C.J. No. 1595, the timing of a
marriage can be a relevant factor in assessing the genuineness of the marriage
(paragraph 17). This factor can weigh in favour of an applicant or, as
in this case, can lead the officer to draw a negative inference.
[8]
Furthermore,
the consideration of this factor is not contrary to the policy set out in the Spousal
Policy (IP 8 – Spouse or Common-law partner in Canada Class). That policy
requires the Applicant to prove that there is a bona fide relationship
as one of the required criteria for the exemption and the timing of the
marriage can clearly be used to assess the bona fide of the
relationship.
[9]
As
for the second argument that the Officer failed to weigh the totality of the
evidence put before him, after having considered both parties arguments and
reviewed the Certified Tribunal Record, I must conclude that this ground merits
the granting of this judicial review and is more than a request to have the
Court reweigh the evidence.
[10]
The
Applicant and Ms. Wong submitted bank statements, bills and other
correspondence showing that they shared an address, copies of their driver’s
licences showing the same address as well as leases and a joint bank account
statement. These documents would seem to indicate the Applicant and his sponsor
do cohabit, and the Officer did not explain why she found that the T4 slips
outweighed the other evidence contrary in reaching her determination. The
submissions also included photos of the Applicant and Ms. Wong at different points
in time and statements on their relationship. The notes taken during the
interviews also show that both spouses provided roughly the same answers to the
questions asked by the Officer about their relationship (Certified Tribunal
Record at pages 32 to 43). I am not saying that these pieces of evidence are
determinant in assessing the genuineness of the marriage, but I do find that
these pieces of evidence were relevant but were not noted by the Officer and
were not weighed against the others.
[11]
I
am of course mindful of the presumption that a tribunal is presumed to have
considered all of the evidence before it. However, in this case, there is relevant
evidence that runs contrary to the Officer's conclusion on a central issue and
the Officer should have explained why he did not accept it or preferred other
evidence (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration)
(1998), 157 F.T.R. 35 at paragraphs 14 to17; Pradhan v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1500, 52 Imm. L.R. (3d) 231
at paragraph 14).
[12]
The
Applicant has asked for costs in these proceedings pursuant to rule 22 of the Federal
Courts Immigration and Refugee Protection Regulations, S.O.R./93-22.
However, I do not find that such special reasons exist and will not order
costs.
[13]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that the application for
judicial review be allowed. The matter is remitted back to a different Officer
for redetermination. No costs are allowed.
“Michel Beaudry”
APPENDIX
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27.
|
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.
|
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.
|
Immigration
and Refugee Protection Regulations, S.O.R./2002-227.
|
4. For the
purposes of these Regulations, a foreign national shall not 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.
124. A foreign
national is a member of the spouse or common-law partner in Canada class if they
(a) are the
spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada;
(b) have
temporary resident status in Canada; and
(c) are the
subject of a sponsorship application.
|
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.
124.
Fait partie de la catégorie des époux ou conjoints de fait au Canada
l’étranger qui remplit les conditions suivantes :
a) il
est l’époux ou le conjoint de fait d’un répondant et vit avec ce répondant au
Canada;
b) il
détient le statut de résident temporaire au Canada;
c) une
demande de parrainage a été déposée à son égard.
|
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-5751-09
STYLE
OF CAUSE: SHI QUING LIN v. THE MINISTER
OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 16,
2010
REASONS FOR JUDGMENT
AND JUDGMENT: Beaudry J.
DATED: June
17, 2010
APPEARANCES:
Shoshana T. Green FOR THE APPLICANT
Hilete Stein
Jamie Todd FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Green and Spiegel LLP FOR
THE APPLICANT
Toronto, Ontario
Myles J. Kirvan FOR
THE RESPONDENT
Deputy Attorney General of Canada
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