Date: 20110407
Docket: IMM-4001-10
Citation: 2011 FC 429
Montréal, Quebec, April 7, 2011
PRESENT: The
Honourable Mr. Justice Beaudry
BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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ANGELO MANCUSO
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision rendered on June
21, 2010 by the Immigration Appeal Division (IAD) of the Immigration
and Refugee Board (IRB), which allowed Angelo Mancuso’s appeal.
[2]
For
the reasons outlined below, the application for judicial review shall be
allowed.
[3]
The
Respondent, a Canadian citizen, married Ms. Perla Massiel Urbaez Garcia (Perla),
a citizen of the Dominican Republic on April 25, 2008.
[4]
The
Respondent and Perla met when the Respondent was vacationing in the Dominican
Republic
in 2007. Although they met for the first time in 2007, their romantic
relationship began in January 2008. They got engaged in February 2008 and married
in April 2008. Perla was 19 years old and the Respondent was almost 59.
[5]
The
Respondent filed an application to sponsor Perla as a permanent resident; it
was refused on September 24, 2009.
[6]
The
ground of refusal was that Perla was a person described in section 4 of the Immigration
and Refugee Protection Regulations (IRPR) in that the marriage to
the Respondent was not genuine and was entered primarily for the purpose of
acquiring status or privilege under the Immigration and Refugee Protection
Act (IRPA).
[7]
On
appeal, the IAD concluded that the respondent’s wife married him for the
purpose of acquiring the status of permanent resident but determined that the
spouses were committed to the relationship and consequently allowed the appeal.
[8]
The
IAD relied on the words of Shari A. Stein of the IAD in Mann (Jagdeep
Kaur Mann v The Minister of Citizenship and Immigration (TA-3-19094),
August 5, 2005) at para 13:
Section
4 also creates a two-pronged test and not meeting either prong will suffice to
allow the appeal. In particular with respect to the second prong, the
intentions of the applicant are still important, as it is the applicant who
typically has the most to gain from an immigration perspective. However, with
respect to the first prong - whether the marriage is genuine - in my view, it
is the intentions of both the appellant and applicant that are of equal and
overlapping legal significance. By focusing the legal inquiry on the broad
question of whether the marriage is genuine, I believe Parliament intended a
shift away from a narrow and potentially myopic focus on the intentions of the
applicant at the time of the marriage. This allows for a broader and more
global assessment. The focus can be on the shared intentions of both parties
to the relationship – as adduced by the evidence in its entirety at the de
novo hearing. […]
[9]
The
IAD stated that in the present case, it is obvious that an exit from the
Dominican
Republic
is attractive to Perla. It went so far as to state that she married the Respondent
for the purpose of acquiring the status of a permanent resident and that “had
he been a late fifty-year-old diabetic citizen of the Dominican Republic, she
would have shown him no interest” (paragraph 9 of the decision).
[10]
However,
despite these findings, it noted that the couple will still enjoy a symbiotic
relationship. The IAD understood that Mr. Mancuso benefits from enjoying
the companionship of an attractive younger partner while Perla benefits from
experiencing a level of material comfort she could have never experienced as the
daughter of a day labourer.
[11]
The
Applicant submits that though the standard of review for the factual finding by
the IAD is one of reasonableness, the application of s. 4 of the IRPR has to be
interpreted on a standard of correctness (Ma v Canada (Citizenship and
Immigration), 2010
FC 509, para 26 and 27).
[12]
With
regards to the adequacy or sufficiency of the reasons, the Applicant contends
that it is a question of procedural fairness and is reviewable on a standard of
correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339, para 43).
[13]
My
analysis is focused mainly on the adequacy or sufficiency of the reasons
provided by the IAD; therefore, I will apply the standard of correctness.
[14]
The
Applicant submits that the IAD failed to provide reasons that would even come
near the level of adequacy described by the Court of Appeal in Vancouver
International Airport Authority v Public Service Alliance of Canada, 2010
FCA 158 at para 16:
[16] …
(a) The
substantive purpose. At least in a minimal way, the substance of the
decision must be understood, along with why the administrative decision-maker
ruled in the way that it did.
(b) The procedural purpose. The parties must be able to decide whether or not to invoke their rights
to have the decision reviewed by a supervising court. This is an aspect of
procedural fairness in administrative law. If the bases underlying the decision
are withheld, a party cannot assess whether the bases give rise to a ground for
review.
(c) The accountability purpose. There must be enough information about the decision and its bases so
that the supervising court can assess, meaningfully, whether the decision-maker
met minimum standards of legality. This role of supervising courts is an
important aspect of the rule of law and must be respected: Crevier v.
Attorney General of Quebec, [1981] 2 S.C.R. 220; Dunsmuir, supra
at paragraphs 27 to 31. In cases where the standard of review is
reasonableness, the supervising court must assess “whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law”: Dunsmuir, supra at paragraph 47. If the
supervising court has been prevented from assessing this because too little
information has been provided, the reasons are inadequate: see, e.g., Canadian
Association of Broadcasters, supra at paragraph 11.
(d) The “justification, transparency and
intelligibility” purpose: Dunsmuir, supra
at paragraph 47. This purpose overlaps, to some extent, with the substantive
purpose. Justification and intelligibility are present when a basis for a
decision has been given, and the basis is understandable, with some discernable
rationality and logic. Transparency speaks to the ability of observers to
scrutinize and understand what an administrative decision-maker has decided and
why. In this case, this would include the parties to the proceeding, the
employees whose positions were in issue, and employees, employers, unions and
businesses that may face similar issues in the future. Transparency, though, is
not just limited to observers who have a specific interest in the decision. The
broader public also has an interest in transparency: in this case, the Board is
a public institution of government and part of our democratic governance
structure.
[15]
More
specifically, the applicant argues that the IAD’s reasons clearly fail to meet
at least two of the four purposes they should serve: the “accountability” and
the “justification, transparency and intelligibility”. He contends that the
failure to discuss major contradictions and important factors and the lack of a
proper analysis of the evidence by the IAD also serve to demonstrate that the
reasons do not fulfill their purposes.
[16]
As
such, the Applicant states that the IAD’s decision is based on conclusions that
were reached in a perverse and capricious manner and without regard for the
material before it, and that it cannot be sustained by a reasonable interpretation
of the evidence.
[17]
The
Respondent, on the other hand, underscores that although the IAD did not
provide lengthy detailed reasons, it did provide sufficient reasons based on
the evidence and testimony to enable a sufficient justification for its
conclusion that the parties have a symbiotic relationship.
[18]
After
a careful analysis of the evidence and the reasons provided by the IAD, I find
that the omission to discuss several contradictions, such as: when the couple
met, their reacquaintance in 2008, the length of their courtship, their
intentions concerning having children and the genuiness of the marriage renders
the reasons insufficient and inadequate.
[19]
The
Court's intervention is warranted.
[20]
The
parties did not propose questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for judicial review
be allowed. The matter is remitted back for redetermination by a different
decision-maker. No question is certified.
“Michel
Beaudry”
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