Date: 20110513
Docket: IMM-5976-10
Citation: 2011 FC 552
Montreal, Québec, May 13, 2011
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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LARISA POLICHTCHOUCK
KRISTINA POLICHTCHOUK
NICOLE POLICHTCHOUK
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Applicants
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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, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision of a
Citizenship and Immigration Canada (CIC) Immigration Officer (the officer),
dated September 27, 2010, whereby the officer refused an application submitted
by Larisa
Polichtchouk (the principal applicant) and her two daughters for permanent
resident status.
I. BACKGROUND
[2]
The
principal applicant (born January 11, 1971) and her two daughters are citizens
of Israel. They came to Canada on August 4, 2007 and
sought refugee protection shortly thereafter.
[3]
In
January of 2009, while in Montreal, the principal applicant met Mr. Anton Makievski (born June
30, 1981). Mr. Makievski, like the principal applicant, was born in the former
Union of Soviet Socialist Republics (USSR) and had recently come to Canada from
Israel. Both the applicants
and Mr. Makievski had their respective refugee claims heard by the Immigration
and Refugee Board of Canada (IRB) on the same day: March 19, 2009. The
applicants’ refugee claim was denied in April of 2009. The applicants filed an
application for leave which was ultimately denied and a Pre-Removal Risk
Assessment (PRRA) application which was denied as well. Mr. Makievski’s refugee
claim, however, was granted by the IRB on May 11, 2009.
[4]
On
June 7, 2009, the principal applicant married Mr. Makievski. Shortly
thereafter, on August 27, 2009, Mr. Makievski filed an application for
permanent residence in Canada based on his status as a protected person.
He included the three applicants as family members on his application. The
principal applicant also filed an application for permanent residence as family
members of Mr. Makievski, dependent on his application for permanent residence.
[5]
On
September 1, 2010, the CIC sent a letter to Mr. Makievski requesting that he
and the principal applicant attend at the CIC offices in Montreal for an interview on
September 20, 2010. The letter requested that Mr. Makievski bring certain
documents with him, including, “Tous autres documents ou information que vous
jugez pertinent pour démontrer la bonne foi de votre mariage.” Mr. Makievski and the
principal applicant attended, as requested, on September 20, 2010 and were
interviewed individually.
[6]
On
September 27, 2010, the CIC officer who had conducted the interviews and whose
decision is currently under review granted Mr. Makievski’s application for
permanent residence, but found that the applicants could not properly be
included. The decision to refuse the applicants’ application for permanent
residence is the decision that is currently under review.
II. THE DECISION UNDER
REVIEW
[7]
In
a letter dated September 27, 2010, the officer indicated that in order to make
a claim for permanent residence as a family member of a protected person, the
principal applicant was required to demonstrate that the criteria set out in
section 124 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations) were satisfied. She also indicated that
dependent family members included in the application were required to meet the
criteria set out in section 129 of the Regulations.
[8]
Ultimately,
she concluded that the applicants had not satisfied the requirements for
permanent residence. Specifically, they had not demonstrated that the principal
applicant’s marriage to Mr. Makievski was genuine or not entered into primarily
for the purpose of acquiring permanent residence in Canada, as per
section 4 of the Regulations. In November of 2010, the applicants were
provided with reasons, which consisted largely of the officer’s notes.
III. ISSUES
a) Did the
officer err by referring to sections 124 and 129 of the Regulations in the
refusal letter?
b) Was the
officer’s determination as to the bona fides of the principal applicant’s
marriage unreasonable?
IV. STANDARD OF REVIEW
[9]
Questions
of law are generally reviewable against the correctness standard (Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12, [2009] SCJ No 12, at para 44; Dunsmuir
v New
Brunswick,
2008 SCC 9, [2008] SCJ No 9, at para 60 (Dunsmuir)). Whether or not the
officer erroneously referred to inapplicable portions of the Regulations in
the refusal letter that was sent to the applicants is a question of law to
which the correctness standard should be applied. The Court must consider
“whether it agrees with the determination of the decision maker; if not, the
court will substitute its own view and provide the correct answer” (Dunsmuir,
above at para 50).
[10]
On
the other hand, determinations as to whether a relationship is genuine or
entered into for the purpose of obtaining status are primarily factual in
nature and are therefore reviewable against the reasonableness standard (Kaur
v Canada (Minister of Citizenship and Immigration), 2010 FC 417, [2010] FCJ
No 482, at para 14; Yadav v Canada (Minister of Citizenship &
Immigration), 2010 FC 140, [2010] FCJ No 353, at para 50; Chen v Canada
(Minister of Citizenship and Immigration), 2008 FC 1227, [2008] FCJ No
1539, at para 8. In this regard, the Court will consider “the existence of
justification, transparency and intelligibility within the decision-making
process” and “whether 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).
V. ANALYSIS
a) Did the
officer err by referring to sections 124 and 129 of the Regulations in the
refusal letter?
[11]
The
applicants argue, and the respondent concedes, that the officer was wrong to
refer to sections 124 and 129 of the Regulations in the refusal letter.
Section 124 of the Regulations sets out the criteria for when a
foreign national can be considered a member of the “spouse or common-law
partner in Canada class”.
Section 129 of the Regulations outlines the criteria for when an
accompanying family member of a person who makes an application as a member of
the “spouse or common-law partner in Canada class” becomes a
permanent resident.
[12]
As
the applicants rightly point out, the principal applicant did not apply as a
member of the spouse or common-law partner in Canada class.
Subsection 130(1) of the Regulations indicates that a sponsor, for the
purposes of a sponsorship application in the spouse or common-law partner in
Canada class, must be either a permanent resident or a citizen of Canada. Mr.
Makievski was neither at the time of the applicants’ application.
[13]
Instead,
the applicants applied as family members, dependent on Mr. Makievski’s
application for permanent residence as a protected person. Subsection 176(1) of
the Regulations allows an applicant for permanent residence in the
protected person category to include in their application any of their “family
members”:
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Family
members
176. (1) An applicant may include in their
application to remain in Canada as a permanent resident any of their
family members.
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Membre
de la famille
176. (1) La demande de séjour au
Canada à titre de résident permanent peut viser, outre le demandeur, tout
membre de sa famille.
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[14]
Although
the officer erroneously referred to sections 124 and 129 in her refusal letter,
I agree with the respondent that this error did not undermine her ultimate
determination. The crux of the officer’s determination was that the principal
applicant’s marriage to Mr. Makievski lacked bone fides under section 4
of the Regulations and that, as a result, the principal applicant could
not be considered Mr. Makievski’s “spouse” for the purposes of the Regulations.
This determination would have had the same consequences regardless of whether
the officer considered the applicants under section 176 of the Regulations or
sections 124 and 129. By concluding that the principal applicant should not be
considered Mr. Makievski’s spouse, the officer effectively removed the
principal applicant and her children from being considered “family members”
vis-à-vis Mr. Makievski.
[15]
The
determinative question for consideration on this application, then, is whether
the officer’s decision as to the bona fides of the principal applicant’s
marriage was unreasonable.
b) Was the
officer’s determination as to the bona fides of the principal applicant’s
marriage unreasonable?
[16]
Pursuant
to section 4 of the Regulations, as it read at the time, the burden was
on the principal applicant to prove either (1) that her relationship with Mr.
Makievski was genuine, or (2) that it was not entered into primarily for the
purpose of acquiring status or privilege under the IRPA. The officer concluded
that the principal applicant had not discharged that burden. She found that it
had not been demonstrated that the marriage was genuine and that, in fact,
their marriage was a relationship of convenience entered into for the purposes
of acquiring permanent residence in Canada.
[17]
The
applicants submit that the officer’s conclusion in this regard was based on
irrelevant issues and on the mischaracterization of material facts.
[18]
First,
the applicants argue that the officer disbelieved, without basis, the
applicants’ evidence that the decision to get married was made on May 7, 2009,
four days before the IRB’s positive determination in Mr. Makievski’s case. Both
Mr. Makievski and the principal applicant indicated in their interviews with
the officer that Mr. Makievski proposed on May 7, 2009. They point to the “Avis
de publication des bans” as further corroborating evidence in this regard. The
applicants claim that the officer, “did not believe them for unstated reasons.”
I disagree.
[19]
Nowhere
in the officer’s reasons did she indicate that she disbelieved the applicants
regarding the May 7 proposal date. Instead, the officer simply noted that both
Mr. Makievski and the principal applicant had insisted that the proposal had
taken place on May 7, 2009, prior to the positive IRB decision. Given that the
actual marriage took place only after the positive IRB decision, accepting that
the proposal occurred on May 7 (after the applicants’ claim for protection had
been rejected) does nothing to undermine the officer’s ultimate conclusion as
to the lack of bona fides.
[20]
Second,
the applicants contend that the officer erred when she indicated that the
principal applicant’s parents and sister, despite being in Canada, had not
attended her wedding. The officer erred, the applicants allege, because she
failed to address the explanation provided by Mr. Makievski for the family’s
absence: the principal applicant’s grandmother had recently died and they were
in mourning. In this regard, the applicants claim that they were only informed
of the interview on the day of the interview itself and, had they been informed
earlier, they would have been in a position to provide the officer with
additional supporting documents and information.
[21]
While
I agree that the absence of the principal applicant’s parents and sister cannot
be said to be a major negative factor counting against the bona fides of
the principal applicant’s marriage in the current case, this does not mean that
the officer erred in her treatment of the evidence. Neither the officer’s notes
nor the affidavit evidence indicate that the principal applicant said anything
about her family being in mourning. Given that the principal applicant was best
situated to provide the officer with an explanation concerning her own family,
and given that no satisfactory explanation was provided by her, I cannot find
that the officer erred in this regard.
[22]
As
to the applicants’ contention that they were only given same-day notice of the
September 20 interview, the record shows that, in fact, the officer had sent a
letter to Mr. Makievski on September 1, 2010 informing him of the interview
three weeks in advance. It should also be noted that Mr. Makievski and the
principal applicant were specifically requested, in that letter, to bring
documents to demonstrate the bona fides of their marriage.
[23]
Third,
the applicants allege the officer acted unfairly by not confronting Mr.
Makievski with regards to his failure to notify immigration officials of his
change of address in February of 2009, when he alleges he moved in with the
principal applicant. Had he been given this opportunity, Mr. Makievski claims
that he would have told the officer that he did not change his address
officially because he was still uncertain about the relationship at that time.
[24]
In
note however that this explanation would no longer be true by May 2009 given
that Mr. Makievski claims to have proposed to the principal applicant at that
time.
[25]
In
any event, while Mr. Makievski’s explanation might have addressed why no change
of address was submitted to immigration officials in February of 2009, it would
not have explained the central contradiction pointed to by the officer in her
reasons: that on the application for permanent residence completed by Mr.
Makievski in August of 2009, Mr. Makievski had indicated that he had moved in
with the principal applicant in June of 2009 (i.e. after the IRB decisions), as
opposed to in February of 2009 (i.e. before the IRB decisions) as he and the
principal applicant had indicated in their respective interviews. I agree with
the respondent that it was reasonable for the officer to note this discrepancy
between the documentation provided and the testimony as to the commencement of
cohabitation.
[26]
Fourth,
the applicants submit that the officer misunderstood and misconstrued what Mr.
Makievski meant by his repeated questions regarding the process and timelines
for receiving permanent residence. While the officer took his questions as
being solely self-directed, in fact, Mr. Makievski alleges that his questions
were intended to encompass not only his own status but also that of the
principal applicant and her children.
[27]
However,
not only did the officer note that Mr. Makievski had asked 4-5 times about his
own status, as opposed to that of his wife or her children, she further
indicated that, in general, Mr. Makievski’s responses did not suggest that he
was concerned about his new family. The applicants have not provided sufficient
evidence to warrant this Court’s interference with the officer’s findings of
fact in this regard.
[28]
Fifth,
the applicants contend that the officer committed a reviewable error by only
addressing a part of Mr. Makievski’s answer to the question about his future
plans. While the officer noted that Mr. Makievski wanted to travel around the
world, the applicants claim that she failed to indicate that he also stated
that he had studied cooking while in Russia and planned on taking
more cooking courses so that he could go into business with his wife.
[29]
However,
there is no reference in Mr. Makievski’s application for permanent residence to
the fact that he had taken cooking courses while in Russia. Furthermore,
since Mr. Makievski stated that he moved from Russia to Israel in 1997, any
cooking classes he did take would have been taken prior to when he was 16 years
of age.
[30]
I
am not convinced that the officer erred in her treatment of Mr. Makievski’s
response to her question about future plans. The officer found that Mr.
Makievski’s response demonstrated a lack of seriousness with respect to the
interview process. This is a determination to which deference is owed.
[31]
Finally,
the applicants allege that the officer erred in referring to the age difference
between Mr. Makievski and the principal applicant in her reasons (Mr. Makievski
being ten years younger than the principal applicant). They suggest that the
officer’s reference reveals that she relied on, “preconceived notions as to the
age of a husband and wife.”
[32]
I
find this argument to be without merit. Nothing in the officer’s reasons indicate
that she made a negative determination as to the bona fides of the
principal applicant’s marriage based on the ten year age difference. The
officer merely noted that the principal applicant had said that she found the
age difference to be awkward at first.
[33]
Overall,
I find that the officer considered many relevant aspects of the principal
applicant’s relationship with Mr. Makievski, including: the timing of their
cohabitation, proposal and marriage, the circumstances of their wedding,
demonstrated concern and shared commitment and their future plans. The officer determined
that the principal applicant had not sufficiently demonstrated that her
relationship was genuine or not entered into primarily for the purpose of
acquiring status. I find that there exists justification, transparency and
intelligibility within the officer’s decision-making process and that her
decision as to the bona fides of the principal applicant’s marriage
falls within a range of possible, acceptable outcomes defensible in respect of
the facts and law.
[34]
For
the foregoing reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be dismissed.
“Danièle
Tremblay-Lamer”
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