Date: 20110628
Docket: IMM-5583-10
Citation: 2011 FC 790
Ottawa, Ontario, June 28,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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GUO MING LU
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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]
Mr.
Guo Ming Lu’s application to sponsor his wife Xia Li Zheng for permanent
residence was refused. He appealed that decision to the Immigration Appeal
Division (“IAD”) of the Immigration and Refugee Board. The appeal was dismissed
in a decision rendered orally on September 13, 2010. This is his application
for judicial review pursuant to section 72 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (“IRPA”).
[2]
The
applicant’s marriage to Ms. Zheng was found not to be genuine pursuant to the
then-in-force section 4 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (“Regulations”). Section 4
was amended after the decision of the IAD in the present matter. Under the
former version, a marriage was considered to be of bad faith if it was found to
be entered into primarily for the purpose of acquiring any status or privilege
under the IRPA and was not genuine. The test was conjunctive: Canada (Minister
of Citizenship and Immigration) v. Tirer, 2010 FC 414 at
para. 12. Under the current version, the test is disjunctive meaning that a
marriage could be found to be of bad faith if entered into primarily for the
purpose of acquiring any status or privilege under the IRPA or is not
genuine: Wiesenhahan v. Canada (Minister of Citizenship and Immigration),
2011 FC 656 at para. 3.
BACKGROUND
[3]
The
applicant was born in China and acquired Canadian citizenship in 1996
when he was sponsored as a dependent child. He is now a dim sum cook in a
Chinese restaurant in Vancouver, British
Columbia.
The applicant’s spouse, Ms. Zheng is an accountant by profession. Both had
previous marriages. Mr. Lu married his first wife in 2001 and separated from
her in June 2003. They divorced officially in September 2006. The month prior,
Mr. Lu and Ms. Zheng were introduced by a mutual friend via QQ, a website used
for communicating electronically in China.
[4]
On
October 26, 2006, the applicant travelled from Canada to China to meet Ms.
Zheng in person. He returned to China again on or about
November 10, 2006. In August 2007, the applicant proposed to Ms. Zheng and they
were married on September 25 of that same year. The applicant came back to Canada on October 7,
2007 and has only been to China again once, from November 16, 2009 until
December 2, 2009, at which point the two travelled together to Hong Kong to meet the
applicant’s aunt.
[5]
On
September 16, 2009 the applicant’s wife was not selected to be a permanent
resident as a member of the family class, pursuant to subsection 12(1) of the
IRPA.
DECISION UNDER REVIEW
[6]
The
officer noted a number of inconsistencies on material elements such as:
confusing evidence with respect to the applicant’s financial and living
situation; inconsistencies with respect to the applicant’s gambling and the
couple’s future plans as well as inconsistencies with respect to the
applicant’s visits to China. Furthermore, the officer found the
applicant was a reluctant witness and did not answer questions in a straightforward
manner. In particular, he asked for questions to be repeated when there was no need.
The officer drew a negative inference from this behaviour. It could not be
established on a balance of probabilities, the officer determined, that their
marriage was not entered into for the purpose of acquiring status or privilege
and was genuine.
ISSUES
The
issues raised in this application are as follows:
- Did the Board err in
making findings under both prongs of the conjunctive test as required by
law?
- Did the Board misconstrue
the evidence?
- Was it reasonable that
the Board conclude that the applicant was a reluctant witness?
ANALYSIS
Standard of Review
[7]
Determinations
of whether a relationship is genuine and entered into for the purpose of
obtaining status under the IRPA are factual determinations and are therefore
reviewable on the reasonableness standard: Kaur v. Canada (Minister of
Citizenship and Immigration), 2010 FC 417 at para. 14. In reviewing this
matter, the Court will consider the existence of justification, transparency
and intelligibility and whether the decision falls 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 at para.47; Canada v. Khosa, 2009 SCC
12, [2009] 1 S.C.R. 339 at para. 59. The bona fides of a marriage is, in
particular, a pure question of fact and, as such, the decision is entitled to a
high degree of deference from this Court.
Did the Board err in
making findings under both prongs of the conjunctive test?
[8]
As
noted above, section 4 of the former Regulations are to be read
conjunctively in that the marriage in question must be both not genuine and
entered into primarily for the purpose of acquiring any status or privilege
under the IRPA: Khan v. Canada (Minister
of Citizenship and Immigration), 2006 FC 1490, 59 Imm. L.R. (3d) 251 at
paragraph 5.
[9]
In Sharma
v. Canada (Minister of Citizenship and Immigration), 2009 FC 1131 at
paragraphs 17-18, Justice Judith Snider found that there is a link between the
two prongs of the test and that a “lack of genuineness presents strong evidence
that the marriage was entered into primarily for the purpose of acquiring
permanent residence in Canada”. It has been held that the lack of bona fides
can create a presumption that the marriage was entered into for the purpose
of gaining status: Kaur, above, at para. 16.
[10]
The
applicant asserts that the Board erred in analyzing only the first prong of
the test and conducted a microscopic review that failed to see the whole
picture. But, it is clear from the transcript and reasons that the Board
considered a number of discrepancies in testimony that were central to the
whole of this claim.
[11]
Certain
inconsistencies were related to the applicant’s financial situation. For
example, with respect to his savings, the applicant said he was recently repaid
$30, 000 from his sister from a loan he had advanced her to buy a house. Ms.
Zheng, however, testified that the applicant already had a sum of $10, 000 to
$20,000 from savings which he had when she met him in August 2006. She said he
saved the balance from his earnings at work. It was reasonable for the Board to
question Ms. Zheng’s testimony and wonder how the applicant could have saved that
money with his monthly income of $1, 800 a month.
[12]
Ms.
Zheng also testified that the applicant has no credit card debt while the
applicant said he does have some in the low thousands of dollars.
[13]
Ms.
Zheng said the applicant leased a $45, 000 black Japanese vehicle in 2008 and
that he pays $800 a month in car payments. The officer found this to be a
significant financial liability for someone with the applicant’s income
profile. The applicant said he does not own a vehicle.
[14]
The
Board also found the evidence of the couple to be confusing with respect to
their evidence as to their living situation. The applicant said he had been
living at a new address on East 28th Avenue for ten
months. At the hearing, when asked why he moved to this address from where he lived
before, he answered, “Cause that house was bought by my elder sister”. He also
confirmed that he told his wife, Ms. Zheng about the move. His wife, on the
other hand, said he moved there one to two years ago and that she did not know
why. It was reasonable for the Board to find this evidence confusing and to draw
a negative conclusion from it. Even a couple in a long distance relationship
would likely know when their spouse moved residences and for what reason. Ms.
Zheng’s responses cast serious doubt on the genuineness of their relationship.
[15]
There
were other inconsistencies in the evidence with respect to the applicant’s
gambling. For example, the applicant voluntarily noted that he had an addiction
and that he was able to get over this through his Church and by voluntarily
listing himself on the no-entry register maintained by casinos. He said his
gambling was what led to his first divorce in 2005 and said that he had even
stopped earlier than the divorce. Ms. Zheng testified that he was gambling until
the two met in August 2006 and that she instructed him to stop gambling and he
listened. These stories are not even closely related.
[16]
The
applicant and his wife had different stories with respect to their future plans
as a couple. The applicant said that after a period of settling in and
learning English in Canada, perhaps after working as a waitress here, his
wife would study accounting in hopes of being able to work in the field. Ms.
Zheng, however, said the long term plans were to open a restaurant together and
mentioned nothing about accounting.
[17]
There
were further inconsistencies regarding the applicant’s visits to China. Ms. Zheng
said she met the applicant as soon as he arrived in China and said he arrived
in China on October
26, 2006. The applicant said he entered China on October
24, 2007, as indicated by his passport, and that the couple met two days later.
Ms. Zheng explicitly stated that the applicant did not stay anywhere over night
before they met. Further, when discussing their visit to the applicant’s aunt’s
home in Hong Kong, the applicant said they were there for three days and that
they stayed with his aunt who is divorced but lives with her daughter. Ms.
Zheng said they were there for five days and stayed with the aunt but said she lived
alone. When confronted with the testimony of her husband, she tried to correct
herself.
[18]
This
evidence was applied by the Board in reaching its conclusion as to genuineness
and whether the marriage was entered into in order to obtain status or privilege.
It was reasonable for the Board to use this evidence to reach a negative
determination under both prongs of the test.
Did
the Board Misconstrue the Evidence?
[19]
The
applicant has submitted that the Board misconstrued the evidence with respect
to the $30 000, noting that with that money, the applicant’s sister purchased
his home. That, the applicant said, is not what he testified. It does not
appear, however, that the Board misconstrued the evidence on this point. The
Board understood that the applicant lent his sister $30, 000 to buy a home in
which he now lives and that she returned the money to him in June 2010.
[20]
In
any event, the negative finding based on inconsistency on this point did not
turn on whether the sister used the money to buy his house. The Board
referenced the $30 000 to illustrate the differences in testimony between the
applicant and Ms. Zheng. The applicant’s evidence was that the money came by
way of loan re-payment whereas Ms. Zheng stated he already had a sum of $10,
000 to $20, 000 which he had saved up gradually. This is but one of several
inconsistencies the Board found between the testimony concerning the couple’s
finances. In my view, nothing turns on this particular point.
[21]
The
applicant also claims that the Board failed to appreciate that the wife’s
future plans to study accounting were not definitive. Although this may be
true, the applicant did confirm when it was put to him that his wife wants to
study accounting. This is different from what Ms. Zheng stated about their
future plans, namely that they would open a restaurant together. She did not
even mention accounting.
Was
it reasonable that the Board concluded that the applicant was a reluctant
witness?
[22]
The
applicant submits the Board’s finding that the applicant was a reluctant
witness was unfounded, claiming that the Minister’s Counsel browbeat him with
excessively probing questions. The transcript does indicate that Minister’s
Counsel did get frustrated at a few points throughout the hearing. However, it
is overreaching to say the applicant was browbeaten.
[23]
The
Court does not have adequate information to assess whether or not the Board was
unfounded in determining that the applicant was a reluctant witness. Moreover,
it is not for this Court to intervene on issues pertaining to the tribunal’s
assessment of witnesses. See: Fletcher v. Manitoba Public Insurance Co.,
[1990] 3 S.C.R. 191, 116 N.R. 1; Aguebor v. (Canada) Minister of Employment
and Immigration
(F.C.A.) (1993),
160 N.R. 315, 42 A.C.W.S. (3d) 886 at para. 4.
[24]
In
the result, I see no reason to interfere with the IAD decision. This
application will be dismissed. No questions were proposed for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is dismissed. No questions are
certified.
“Richard
G. Mosley”
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