Date: 20120605
Docket: IMM-7806-11
Citation: 2012 FC 691
Ottawa, Ontario, June 5,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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NGOZI CHIMNERE
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Ngozi
Chimnere (the Applicant) seeks judicial review of a refusal by an Immigration
Officer (the Officer) to grant her application for permanent residence as a
member of the family class because her marriage to the sponsor, Michael
Chimnere, was not genuine or was entered into primarily for the purpose of
acquiring an immigration status or privilege under subsection 4(1) of the Immigration
and Refugee Protection Regulations, SOR/ 2002-227 (the Regulations).
I. Background
[2]
Michael
Chimnere was accepted as a Convention refugee in Canada based on his
involvement in a group seeking self-determination for the Ibo people and people
of the Niger Delta Area in Nigeria on August 31, 2009.
[3]
On
October 31, 2009, he also applied for permanent residence status. As part of
this application, he provided information regarding a family, including the
Applicant and their two sons, Obinna and Okechukwu. Michael Chimnere initially
asked that his application not be processed concurrently as he did not have
sufficient money for their fees.
[4]
On
December 31, 2009, however, he submitted the documents and fees required for
them when someone provided him extra money to do so.
[5]
On
December 14, 2010, the Applicant was interviewed by Canadian officials to
address some concerns associated with the documentation provided in support of
the application. By a notice dated the same day, the Applicant and Michael
Chimnere were informed of the Officer’s decision.
[6]
The
Officer concluded that the Applicant could not be granted permanent residence
on the basis of her marriage to Michael Chimnere because it fell under
subsection 4(1) of the Regulations. The Officer concluded:
Based on your interview at our office and
a review of the documentation submitted, I am not satisfied that your
relationship with your sponsor is genuine. You were advised of the concerns
during your interview, but you were unable to satisfy me that they were
unfounded. I am therefore not satisfied that your relationship was not entered
into for the purpose of gaining entry to Canada. As a result, for the purpose of the
regulations, you are not considered to be a member of the family class.
[7]
Along
similar lines, the Computer Assisted Immigration Processing System (CAIPS)
notes indicate:
DO YOU HAVE THE MARRIAGE
CERTIFICATE? PA PROVIDED SWORN DECLARATION DATED 15 JUNE 2010 FROM STATE OF ABJA, NIGERIA.
ALSO PROVIDED WAS FORMC REGISTRATION #
07721 “ABIA STATE GOVT OF NIGERIA” CERTIFICATE OF REGISTRATION
OF MARRIAGE.”
DOCUMENT WAS RECENTLY ISSUED, DATE COULD
NOT BE ASCERTAINED.
[…]
BAPTISMAL CERTIFICATE FOR DEP SONS,
OBINNA AND OKECHUKWU FROM THE METHODIST CHURCH IN UZGOKOLI, DATED 12 DAY OF JUL
1990 AND APR 5, 1992 RESPECTIVELY, BOTH APPEARED TO HAVE BEEN ISSUED RECENTLY,
SAME HAND WRITING AND INK.
[…]
BOTH DEPENDANTS LOOKED MUCH OLDER THAN
THEIR STATED AGE. THAT ASIDE, PA HAS NOT BEEN ABLE THROUGH OUR DISCUSSION OR
DOCUMENTS TO DEMONSTRATE THAT SHE WAS IN FACT MARRIED TO CR SPOUSE.
PA HAS CONTENDED THAT THE ORIGINAL
DOCUMENTS WERE DAMAGED WHILE BEING STORED UNDER THEIR BEDS AND NONE WERE
SALVAGABLE.
MARITAL RELATIONSHIP HAS NOT BEEN
ESTABLISHED, APPLICATION REFUSED.
II. Issues
[8]
The
central issue raised is the reasonableness of the conclusions by the Officer regarding
the Applicant’s marriage.
III. Standard of Review
[9]
As
a factual determination, the genuineness of a marriage or whether it was
entered into for the purposes of acquiring status is to be afforded deference
under the reasonableness standard (see Searles v Canada (Minister of
Citizenship and Immigration), 2009 FC 996, [2009] FCJ no 1299 at para
10; Kaur v Canada (Minister of Citizenship and Immigration), 2010 FC
417, [2010] FCJ no 482 at para 14; Yadav v Canada (Minister of
Citizenship and Immigration), 2010 FC 140, [2010] FCJ no 353 at
para 50).
[10]
Applying
that standard, the Court will only intervene absent justification, transparency
and intelligibility or, put another way, an acceptable outcome defensible in
respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 47).
IV. Analysis
[11]
The
Applicant contends that the Officer’s assessment was overly microscopic and
speculative while ignoring evidence as to the bona fides of the marriage. In
particular, she takes issue with the Officer discrediting much of the
documentation submitted because it looked newly issued and there was no
indication as to the date of its creation. According to the Applicant, it was
also speculative for the Officer to suggest that the Applicant and her sons
looked older than their claimed age.
[12]
With
respect, I find no merit in these assertions. It appears eminently reasonable
for the Officer to identify issues with the documents provided, namely that the
date on the marriage certificate could not be ascertained and the baptismal
certificates looked recently issued to the dependants in the same handwriting
and ink. The Officer merely made an observation as to their ages in light of
what was stated in the relevant documents.
[13]
The
Applicant was given an opportunity to address these issues during an interview
but the Officer was still not satisfied as to the nature of their marriage
relationship. Indeed, for the first time during the interview the Applicant
attempts to explain the issues regarding the original documents having been
damaged, ultimately raising further questions as to reliability of the evidence
as submitted to the Officer. As the Respondent notes, the application was based
primarily on these documents.
[14]
The
jurisprudence relied on by the Applicant is of limited assistance. While
Justice Robert Barnes questioned reliance on trivialities or ambiguities
in the assessment of a marriage in Tamber v Canada (Minister of
Citizenship and Immigration), 2008 FC 951, [2008] FCJ no 1183 at para
21; it was in relation to the particular circumstances where undue emphasis was
placed on peripheral details in their testimony. By contrast, in the present
case the Officer was addressing concerns related to documents central to
establishing their marriage.
[15]
Similarly,
the Applicant’s suggestion that the Officer relied on stereotypes in referring
to age is not borne out by the context in which the observation was made in the
CAIPS notes. The appearance of age was an additional factor to consider in
light of various concerns already identified regarding the documents before the
Officer. This is an entirely different scenario than the ones mentioned in
cases cited by the Applicant in her memorandum.
[16]
Relying
on a Citizenship and Immigration Canada (CIC) Operational Manual (OP-2
Processing Members of the Family Class, November 14, 2006), the Applicant
suggests that she should have been presented with the option of providing DNA
evidence. I am inclined to agree with the Respondent, however, that DNA
evidence would not necessarily establish the genuineness of the marriage, but
merely whether the children are related to their parents. I also see no
requirement for personal interviews with the sponsor and Applicant individually
to ascertain their level of knowledge of one another. On the contrary, the
Manual confirms that issues can arise with altered photographs and fraudulent
documents and this represents a relevant concern for an officer in making a determination
as in this instance.
[17]
The
Respondent highlights, and I concur, that the Applicant’s submissions tend to
shift the onus to the Officer in establishing that the marriage was genuine. The
issue in this case was that the Applicant, and her sponsor in assisting with
the application, failed to provide the documents or address concerns in
response to questions so as to demonstrate their marriage did not fall under
subsection 4(1) of the Regulations. The Applicant simply could not
satisfy the Officer that the concerns were unfounded in the course of the interview.
Yet, the Applicant had the onus for doing so.
[18]
Based
on the evidence submitted and the concerns identified with the evidence as
presented, the Officer was justified in calling into question the genuineness
of the marriage and whether it was entered into primarily for the purpose of
acquiring status.
V. Conclusion
[19]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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