Docket: IMM-4913-11
Citation: 2012 FC 286
Vancouver, British Columbia, March 2, 2012
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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MARIANA GANGUREAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review brought forth under subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. It
seeks to set aside the decision of immigration officer J. Poon [the officer]
taken on July 15, 2011, refusing the applicant’s application for permanent
residence in Canada as a member of the spouse or common-law partner in Canada
class. The officer was not satisfied that the marriage had not been entered
into in bad faith, as set out in section 4 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [IRPR].
I. Background
[2]
Ms.
Mariana Gangurean [the applicant], a 27-year-old citizen of Moldova, entered
Canada on August 17, 2009 on a study permit to attend English Bay College’s
hospitality program. She was also issued work authorization until July 28, 2010
so that she could complete the program’s work practicum.
[3]
On
September 1, 2009, she met her husband Mr. Brian Raby, fifteen-years her senior.
They married two and a half months later on November 15, 2009.
[4]
On
or about January 23, 2010, Mr. Raby applied to sponsor the applicant for
permanent residence. The applicant then received a letter dated June 14, 2011,
in which she and her husband were asked to attend an interview and to bring
along supporting documentation pertaining to their relationship. The interview
was held on July 11, 2011.
II. Impugned
Decision
[5]
The
officer’s reasons are dated July 15, 2011, four days after the interview was
held. In them, the officer notes that the applicant and her husband
provided very similar answers regarding their first meeting, their marriage
proposal, the wedding ceremony, and their living arrangements. She also
attributed positive weight to the documentary evidence submitted, which included
cell phone bills showing ongoing contact between the couple, joint bank account
information, joint medical coverage, tax return information which listed spouses,
a letter from the apartment manager stating that the applicant and sponsor lived
together, and photos showing the couple with family and friends.
[6]
The
officer concluded however that these positive factors were outweighed by
negative factors, namely seven discrepancies identified during the interview. For
example, when asked about the Vancouver riots that had taken
place exactly a month earlier, the applicant stated that her husband came home at
around 9 or 10 o’clock in the evening because the place where he worked closed
early. By contrast, her husband stated that he stayed to make sure windows were
not smashed and that he probably got home around 1 or 2 o’clock in the morning.
Five other discrepancies arose when discussing the couple’s activities of that
morning and the previous two days (Trial Record [TR] at 5-6):
- The applicant
stated that on the Saturday before the interview, the sponsor worked from
9am to midnight whereas the sponsor stated that he worked from 3pm until 7am
Sunday.
- The applicant
stated that on the Sunday her husband woke up at 7am, early in the morning, not
after 9am. In contrast, the sponsor stated that he got up late probably around
3pm.
- The applicant
stated that on the Sunday before the interview, they had ham and jalapeno
cheese sandwiches whereas the sponsor stated that they did not have lunch
together.
- The applicant
stated that they did not have dinner on the Sunday before the interview because
they didn’t want to eat. She stated that they had a shot of Vodka so that they
could fall asleep, and that the sponsor bought popcorn, but she didn’t make it,
and he bought two chocolate bars, which they had, and that’s all they had for
dinner. In contrast, the applicant stated that they had rice and smokies, or
sausages, for dinner.
- The applicant
stated that they made love on the Sunday before the interview in the afternoon
around 3, 4 or 5pm and watched the movie “Bad Teacher” around 7pm. The sponsor
also stated that they were in bed watching movies on the computer around 8pm, watching
the movie “Bad Teacher”. However, the sponsor stated that they made love right
after the movie probably just after 8pm.
- The applicant
stated that on the morning of the interview, the sponsor woke her up at 5am and
that she didn’t take a shower. The sponsor also stated that he woke her up at
5am. However, he stated that she wanted to be up early so that she could
take a shower, and that he had his shower first and then she had her shower.
[7]
The
officer also noted that the applicant met her husband approximately two weeks
after arriving in Canada, married him approximately two and a half
months later, and that the quickness with which she met and married her husband
after her entry to Canada led her to find the marriage was entered
into for immigration purposes. The officer concluded that, on the balance of
probabilities, the marriage was not genuine and had been entered into primarily
for the purpose of acquiring permanent residence in Canada.
III. Issue
and Standard of Review
[8]
The
parties have essentially raised one issue: Did the officer err in determining
that the marriage was entered into in bad faith, pursuant to section 4 of the
IRPR?
[9]
Reviewing
such a determination raises a question of mixed fact and law and requires the application
of the standard of reasonableness (Provost v Canada (Minister of
Citizenship and Immigration), 2009 FC 1310 at para 23, [2009] FCJ
1683). This standard requires justification, transparency, and intelligibility
within the decision-making process and that the decision fall within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 SCR [Dunsmuir]).
IV. Analysis
[10]
The
applicant argues that the officer reached her decision by relying on a handful
of trivial inconsistencies while discounting overwhelming evidence that the
couple was cohabitating and interdependent. She points to a series of documents
that indicate the couple share the same address and also refers to other
evidence showing they had combined their lives. For example, she notes that she
has purchased life insurance for her husband and named herself as beneficiary.
The applicant submits that in the face of such compelling evidence, the
officer’s decision is unreasonable.
[11]
Having
reviewed the documents referred to by the applicant and the reasons provided by the officer,
I cannot agree that the officer ignored any evidence. Rather, the officer
attributed positive weight to the documentary evidence submitted, listing the
cell phone bills which showed ongoing contact between the couple, joint bank
account information, joint medical coverage, tax return information which
listed spouses, a letter from the apartment manager stating that the applicant
and sponsor lived together, and photos showing the couple with family and
friends. The officer is presumed to have weighed and considered all of the
evidence and I have not been convinced of the contrary (Florea v Canada
(Minister of Employment and Immigration), [1993] FCJ 598 and Hassan v
Canada (Minister of Employment and Immigration), [1992] FCJ 946).
[12]
Indeed,
the officer based her decision on the quickness of the marriage after the
applicant’s arrival and on the inconsistencies which she identified in the
reasons. The applicant explains that the marriage was not that quick and
that the inconsistencies were caused by normal deficiencies in human
memory, by the officer’s misunderstanding of her answers, and by other
simple and reasonable explanations. She argues that she and her husband were
never given an opportunity to respond to the officer’s concerns. She also
asserts that because her explanations were not before the officer, she did not
include them in her affidavit. I do not find the applicant’s arguments
compelling on this point. The officer identified several factual
contradictions between the testimony of the applicant and that of her husband. The
first contradiction, though occurring a month earlier, concerned a very notable
event – the Vancouver Riots – which was surely engrained in most Vancouver residents’
memories. The officer could reasonably expect that both the applicant and her husband
would have a substantially consistent account of where they were that night and
the inconsistency identified was significant. Did the applicant’s husband
return early because of the riots, or did he stay at his work several more
hours to guard his workplace? Moreover, the six other contradictions
concerned simple events of previous days prior to the interview. These were
questions which one could reasonably expect the couple to be consistent about,
for example, did the applicant shower that morning or not? The fact the
applicants could not provide a consistent account of the previous two days,
contradicting each other significantly on several points, was reasonably a
cause for concern. They were important and should have been correctly answered
by both the applicant and the sponsor. After all, they were just events of
the past days.
[13]
It
is true that the officer identified only six discrepancies out of more than
seventy questions asked during the interviews, but they are significant
when assessing the daily life of a couple. The content of a meal taken
together, the time when each member of the couple woke up and whether or
not they took a shower, the hours of work of the sponsor and the time of their
intimate relationship are events that each member of a couple should remember, and
more so when those events occurred in the last two days before the
interviews. Such discrepancies can only influence a decision-maker.
[14]
Accordingly,
I find that it was open to the officer to deem the marriage not bona fide
as set out in section 4 of the IRPR and the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir, above, at para 47).
[15]
The
parties did not suggest any question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed and
no question will be certified.
“Simon
Noël”
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