Date: 20110325
Docket: IMM-5032-10
Citation: 2011 FC 368
Ottawa, Ontario, March 25,
2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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XIAO WEI GAO
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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
I. Background
[1]
The
Applicant, Ms. Xiao Wei Gao, is a permanent residence of Canada, originally from China. Her husband, Mr. Shu Jin Liang,
currently resides in the People’s Republic of China. In 2007, the Applicant applied to
sponsor Mr. Liang and his daughter to come to Canada. This application was rejected by a visa
officer based on s. 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
The visa officer was not satisfied that the Applicant’s marriage to Mr. Liang
was genuine and not entered into primarily for the purpose of acquiring status
under the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA
or the Act).
[2]
The
Applicant appealed this decision to the Immigration and Refugee Board,
Immigration Appeal Division (IAD). In a decision dated August 11, 2010, the IAD
dismissed the appeal.
[3]
The
Applicant seeks to quash the decision of the IAD on the basis that the IAD
erred in its treatment of the evidence before it.
II. Legislative Scheme
[4]
Pursuant
to provisions of the Act and the Regulations, Canadian residents
may sponsor their spouses (and other family members) to come to Canada as members of the “family
class”. However, s. 4 of the Regulations (in place at the time of the
sponsorship application) states that a foreign national shall not be
considered a spouse and therefore a member of the family class if the marriage
is not genuine and is entered into primarily for the purpose of acquiring immigration
status. The initial assessment of the relationship between a sponsoring
resident and his or her spouse is carried out by a visa officer. If the
application is denied, s. 63(1) of IRPA grants the sponsor a right of
appeal to the IAD.
III. Standard of
Review
[5]
Assessments
of applications for permanent residence under the family class, and genuineness
of the marriage in particular, involve questions of mixed fact and law which
are to be determined on a standard of reasonableness (see Natt v Canada (Minister of
Citizenship & Immigration), 2009 FC 238, 80 Imm LR (3d) 80 at paragraph
12; Harris v
Canada (Minister of Citizenship and Immigration), 2009 FC 932, 84 Imm LR (2d) 245 at
paragraphs 21-24). On this standard, the Court will only intervene if the decision
does not 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, [2008] 1 S.C.R. 190 [Dunsmuir] at paragraph 47).
IV. Analysis
[6]
The IAD,
in the case before me, concluded that the Applicant’s relationship with Mr.
Liang was: (1) not genuine; and (2) entered into for the primary purpose of
acquiring status under the Act.
[7]
The
Applicant submits that the IAD erred by making unreasonable inferences and by
finding contradictions in the Applicant’s story that did not exist. I do not
agree.
[8]
It is
trite law that the burden, on appeal, is on an applicant to provide adequate
evidence to demonstrate that the marriage is genuine (see Nabin v Canada
(Minister of Citizenship and Immigration), 2008 FC 200, [2008] FCJ No 250
(QL) at paragraph 7; Tran v Canada (Minister of Citizenship and Immigration),
2001 FCT 1257, 214 FTR 245 at paragraph 6).
[9]
This Court
has held that it should not interfere with the IAD’s assessment of credibility
– since an oral hearing has been held and the IAD has had the advantage of
hearing the witnesses – unless this Court can satisfy itself that the IAD based
its conclusions on irrelevant considerations or that it ignored important
evidence (Strulovits v Canada (Minister of Citizenship and Immigration),
2009 FC 435, [2009] WDFL 4047 at paragraph 40; Grewal v Canada (Minister
of Citizenship and Immigration), 2003 FC 960, [2003] FCJ No 1223 (QL) at
paragraph 9).
[10]
In the
present case, the IAD found that the Applicant did not testify in a clear or
persuasive manner. The Applicant was not able to provide detailed answers
during the hearing and these answers were sometimes contradictory. In addition,
the IAD found that much of the evidence in this case, including most of the
testimony of the witnesses in significant areas regarding their initial
encounters and overall development of the relationship, lacked cogency. The IAD
found that corroborative evidence was lacking in several specific instances.
For example, the Applicant’s testimony raised the following issues:
·
no
credible evidence was adduced to explain how the relationship progressed
through their alleged phone communication, where it was admitted that Mr. Liang
could not express himself well over the phone;
·
no
credible evidence was adduced to explain why there was no progression in the
relationship of the parties since no reasonable efforts were made to explore
ways to facilitate the Applicant’s travel to China to visit her husband since
the marriage;
·
no
credible evidence was adduced to explain why the wife had not taken active
steps to try and integrate Mr. Liang into her family;
·
the
Applicant’s credibility was undermined by the fact that she was allegedly able
to call Mr. Liang on a phone number that he claimed he no longer used; and
·
the
Applicant’s testimony lacked detail, was contradictory, or simply did not make
sense.
[11]
This led
the IAD to the conclusion that the couple had not developed a foundation for
their combined future lives together in the context of a relationship with a
genuine spousal purpose.
[12]
In its
decision and as described above, the IAD gave examples of how the evidence
lacked cogency, was not plausible, and where inadequate explanations were
provided. This Court cannot look microscopically at the implausibility findings
but should review the decision as a whole (Lan v Canada (Minister of
Citizenship and Immigration), 2010 FC 169, [2010] FCJ No 202 (QL); Chen
v Canada (Minister of Citizenship and Immigration), 2009 FC 677, 84 Imm LR
(3d) 112; Ikhuiwu v Canada (Minister of Citizenship and Immigration),
2008 FC 35, [2008] FCJ No 35 (QL)). In my view, the decision of the IAD was
reasonable.
[13]
The
Applicant submits that the IAD misconstrued the evidence when it found that the
Applicant and Mr. Liang made contradictory statements. Having read the
transcript of the hearing before the IAD and the documentary record, I am
satisfied that the IAD did not err. In respect of each alleged erroneous
finding, the Applicant does no more than provide an alternative interpretation
of the evidence before the IAD.
[14]
The
Applicant focuses much of her argument on three findings made by the Board.
[15]
The first
allegedly erroneous contradiction relates to whether the Applicant and Mr.
Liang ever discussed the possibility of sponsoring her parents. The Board, in
its decision, stated that there was a contradiction in the testimony. The
Applicant submits that there are no such contradictions in the transcript; when
asked whether they had discussed sponsorship, both she and Mr. Liang answered “no”. However, later in the transcript,
Mr. Liang does acknowledge that he and the Applicant had discussed the
future care of her parents. Contrary to the assertions of the Applicant, it was
not unreasonable to find that comments made regarding the future care of the
Applicant’s parents contradicted comments made that denied discussing
sponsoring her parents in the future. The IAD obviously found it improbable
that a discussion of the future care of the Applicant’s parents would not
include a reference to their future sponsorship, since they currently reside in
China. The conclusion that there
was a contradiction is supported by the transcript.
[16]
The second
allegedly erroneous finding of the IAD concerned the relationship between the
Applicant’s parents and Mr. Liang. The Applicant testified that “my mother like
my husband very much”. In its reasons, the IAD states that, “this information
is contradicted by [Mr. Liang] confirming that the [Applicant’s] father and
sister liked him, and her mother liked him less” [emphasis added]. The
Applicant asserts that Mr. Liang never said that. It is true that Mr. Liang
never uttered the exact words attributed to him. However, when asked
specifically “whether the mother, the father and/or the sister like you”, Mr.
Liang initially responded that the father and the sister liked him. Only after
prompting from counsel did Mr. Liang respond that “everybody like[s] [him]”. I
acknowledge that the IAD may have taken liberty with the words used by Mr.
Liang. Nevertheless, the omission of the mother from Mr. Liang’s initial
response and his somewhat lukewarm final response that “everybody like” could
be seen as inconsistent with the Applicant’s claim that her mother liked Mr.
Liang “very much”. Moreover, it must be observed that this was only one of a
number of examples that supported the IAD’s overall conclusion that the
Applicant and Mr. Liang had not demonstrated the type of ties with other family
members – including parents – which one would normally see in a genuine
marriage.
[17]
Finally,
the Applicant asserts that the IAD’s finding on Mr. Liang’s inability to speak
Mandarin is not supported by the record. With respect to language, the IAD
appears to have used a failure of Mr. Liang to respond to a question at the
hearing posed to him in Mandarin to support a conclusion that he had difficulty
communicating with the Applicant. Having reviewed the transcript and the
affidavit of the counsel who appeared before the IAD, I am satisfied that the
IAD ought not to have concluded from that specific exchange that Mr. Liang was
unable to understand Mandarin. The switch of language at the hearing from
Cantonese to Mandarin was done abruptly and without any notice to Mr. Liang.
His hesitation in responding in Mandarin was understandable in the situation.
Nevertheless, there was other evidence of language difficulties that would tend
to support the IAD’s evaluation that there were communication issues between
the Applicant and Mr. Liang. If there was an error, it is of no great moment
with respect to the overall decision.
[18]
In my
view, all of the findings made by the IAD were open to it on the evidence. As a
result, the decision, as a whole, falls within the realm of reasonable
acceptable outcomes that are defensible in facts and law (Dunsmuir,
paragraph 47).
[19]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that :
1.
the
application for judicial review is dismissed; and
2.
no
question of general importance is certified.
“Judith
A. Snider”
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