Date: 20070202
Docket: IMM-1421-06
Citation: 2007 FC 117
Ottawa, Ontario, February 2,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
LUIZ
GONCALVES ROSA
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review arises from a decision of the Immigration
Appeal Division of the Immigration and Refugee Board (Board) rendered on
February 3, 2006. The Applicant, Luiz Rosa, challenges that decision which
upheld an earlier denial by a Visa Officer of permanent residency status to his
spouse, Delma Rodrigues de Oliveira. The initial denial of status to Ms. de
Oliveira was based on a finding that the marriage between Mr. Rosa and Ms. de
Oliveira was not genuine.
Background
[2]
The
record before the Board reveals a very tangled factual web including lengthy
and less than flattering immigration histories for both Mr. Rosa and Ms. de
Oliveira. Much of the evidence bearing on the central issue of the legitimacy
of the Applicant’s marriage to Ms. de Oliveira is contradictory or the subject
of significant disagreement. What follows immediately below is an outline of
that part of the background to this proceeding which appears to be largely
undisputed by the parties.
[3]
Mr.
Rosa came to Canada from Brazil as a visitor in 1996. After the expiry of
his visitor’s visa, he remained in Canada and worked here without
legal status. He was subsequently able to regularize his status in Canada by entering
into a short-lived marriage from which he was able to obtain landed status as a
member of the family class. He became a permanent resident in August, 2000.
[4]
Mr.
Rosa maintained that his first Canadian marriage was genuine but he conceded
that it had broken down within about 8 months of the grant of his permanent
residency status. The record indicates that his wife was several years older
than him. Apparently, his wife spoke little, if any, Portuguese and his
capacity to speak English was extremely limited; needless to say, this imposed
significant communication challenges. When asked by the Board, Mr. Rosa was
unable to state the date of birth of his wife.
[5]
Ms.
de Oliveira also has a checkered immigration history in Canada. Before
meeting Mr. Rosa, she had been unsuccessful in a number of attempts to obtain
status in Canada. On two of
those occasions, she submitted falsified or fraudulent records to attempt to
gain admission here.
[6]
Shortly
after the breakdown of Mr. Rosa’s first Canadian marriage, he was introduced to
Ms. de Oliveira through her brother. At that point, Ms. de Oliveira was living
in Brazil. Mr. Rosa
and Ms. de Oliveira began to communicate by telephone in the summer of 2001.
Shortly afterwards, Mr. Rosa travelled to Brazil to visit his
parents and also to meet Ms. de Oliveira. He spent about two weeks with Ms. de
Oliveira in Brazil before
returning to Canada. About a
year later, in the latter part of September, 2002, Mr. Rosa claimed to have had
some sort of spiritual transformation and he called Ms. de Oliveira to propose
marriage. She accepted and they met again in early 2003 in Brazil. They were
married in Brazil in early
February, 2003. Mr. Rosa then applied to sponsor Ms. de Oliveira as his spouse
and as a member of the family class.
[7]
When
Ms. de Oliveira presented herself for a visa interview at Sao Paulo on January
13, 2004, Mr. Rosa attended with her. It appears that only Ms. de Oliveira was
interviewed on that occasion but both of them were interviewed on subsequent
occasions in person and by telephone.
[8]
During
one interview with the Visa Officer, Mr. Rosa admitted that he had had a sexual
affair with Ms. de Oliveira’s sister, Sonia Quintela, approximately two months
before his marriage proposal. Despite this affair and Ms. de Oliveira’s
admitted knowledge of it, Ms. Quintela travelled to Brazil to attend
the wedding and also to act as the matron of honour.
[9]
The
issue of whether this marriage had been arranged for immigration purposes
appears to have been first raised with Canadian immigration officials in Sao Paulo when they
received a Statement of Defence filed in the Ontario Superior Court on October
14, 2003 by Ms. Quintela. That document was filed in response to a claim for
damages brought against Ms. Quintela by Mr. Rosa. In the Defence, among other
allegations, Ms. Quintela asserted that Mr. Rosa had agreed to marry and to
sponsor Ms. de Oliveira for landing in Canada for a payment of $10,000.00 U.S.
[10]
The
various immigration interviews carried out in Sao Paulo with Mr.
Rosa and Ms. de Oliveira are recorded in summary fashion in computer notes
which form part of the Record in this proceeding (CAIPS notes). The
allegations made by Ms. Quintela figure prominently in those interviews. Those
notes attribute the following admissions to Mr. Rosa during the course of one
of the interviews with him:
Following is sponsor’s version of the
facts: Sonia feared that her affair with sponsor would eventually come to the
attention of Sonia’s husband. Sonia suggested that sponsor married her sister
(subj) to make clear to Sonia’s husband that there is no relationship between
Sonia and sponsor at the same time that Sonia would help sister to return to
CDA, once in CDA sponsor would divorce and keep the affair/relationship with
Sonia. Sponsor stated that agreed with this strategy but he/sponsor did not
expect that after meeting subj in person would really fall in love with subj,
Sonia would have felt betrayed and filed unfounded allegations indicated in
justice doc.
[11]
When
Ms. de Oliveira was asked by the Visa Officer about her sister’s allegations,
the CAIPS notes indicate the following response from her:
I then shared the content of the Superior
Court of Justice doc, Subj stated that it’s all done by Sonia in bad faith to
prevent subj from returning to CDA. Subj raised the tone of her voice (sounded
upset) and went on to say that Sonia has always been in love with sponsor and
Sonia cannot now accept her marriage with sponsor. I asked why Sonia had
travelled to Brazil with sponsor and attended
subj’s marriage then, subj stated that Sonia (who is married) had initially
agreed to help subj but changed her mind. Sonia was the one who took the
photos. Sonia would hv said that it was to help the immig applicn. Sonia
would hv orchestrated everything but changed her mind because sponsor has in
fact fallen in love with subj and decided to stay with subj.
[12]
The
Visa Officer came to the conclusion that this was a marriage of convenience and
the CAIPS notes confirm that Mr. Rosa “admitted” that the marriage arrangements
had been orchestrated by Ms. Quintela. The Visa Officer did not believe that
this original intent was later displaced by more honourable motives. In the
result, Ms. de Oliveira’s application for a visa was refused.
The Board Decision
[13]
The
Board heard evidence from Mr. Rosa who attempted to establish that his marriage
to Ms. de Oliveira was bona fide. The Board disagreed and found the
marriage to be one of convenience and not genuine. It concluded that the
marriage was “primarily entered into for immigration purposes” and,
specifically, to allow Ms. de Oliveira to obtain immigration status in Canada.
[14]
The
Board reached its conclusion after examining evidence pertaining to the prior
immigration histories of Mr. Rosa and Ms. de Oliveira along with evidence
bearing on their own relationship.
[15]
The
Board decision noted that the genuineness of this marriage turned primarily on
the assessment of the credibility of Mr. Rosa and Ms. de Oliveira. The
significance of that credibility determination was said to be heightened, in
some measure, by the “poverty of documentation” submitted by them in proof of
the frequency of their contact and the strength of their relationship during
the lengthy periods when Mr. Rosa and Ms. de Oliveira were apart.
[16]
The
Board was clearly troubled by the immigration histories of these individuals
and it noted their motives and questionable behaviours in seeking to obtain
immigration status in Canada. In the case of Mr. Rosa, the Board found
that his first Canadian marriage was an attempt to “manipulate the system to
effect his landing in Canada”. In the case of Ms. de Oliveira, the
Board noted her previous fraudulent declarations as a means for attempting to
gain entry to Canada. The Board
considered it noteworthy that the initiation of Ms. de Oliveira’s relationship
with Mr. Rosa took place 3 to 4 months after the refusal of her last
application for entry to Canada as a visitor.
[17]
When
the Board examined the evidence of Mr. Rosa and Ms. de Oliveira concerning their
relationship, it found several discrepancies. While they attempted to explain
some of these testimonial inconsistencies, others remained unresolved. For
example, Ms. de Oliveira said that Mr. Rosa had visited her in Brazil in
September, 2002 but Mr. Rosa said he proposed over the telephone in September,
2002 and went to Brazil in November of that year. Ms. de Oliveira
recalled that Mr. Rosa had proposed to her in person in January, 2003 and they
were then married in February, 2003. Mr. Rosa testified that plans for the
wedding were underway before he returned to Brazil in late
2002. The Board expressed considerable scepticism about these inconsistencies
and, in particular, it noted that the circumstances of a marriage proposal
ought not to have been the subject of any disagreement.
[18]
There
were other discrepancies noted by the Board. The Visa Officer’s notes of Ms.
de Oliveira’s interview indicated that Mr. Rosa was only with her in Brazil for about 15
days at the time of the wedding. However, Mr. Rosa testified that he was there
45 to 50 days. Mr. Rosa was unable to explain this discrepancy.
[19]
The
Board considered the above-noted inconsistencies to be important and described
the couple as “not singing from the same hymn book”.
[20]
The
Board also had serious reservations about the testimony bearing on Mr. Rosa’s
affair with Ms. Quintela. This affair was acknowledged by both parties and Ms.
de Oliveira testified that she was aware of it before the marriage. Mr. Rosa
testified that the affair occurred about 2 months before his marriage
proposal. Although he described it as meaningless, he also said it was part of
the reason for proposing to Ms. de Oliveira or, as he put it, “…I felt it was
necessary to have somebody who was also blessed by God, and this is why the two
of us suffer so much with the separation, because in the name of God we cannot
be going out and going around with somebody else just like that”.
Notwithstanding the awkwardness of this situation, Ms. Quintela was not only
invited to the wedding, she was named as the matron of honour. The Board
described this situation as ludicrous and not credible.
[21]
The
Board was clearly troubled by the testimony of Mr. Rosa and Ms. de Oliveira
insofar as they attempted to deny the statements attributed to them in the Visa
Officer’s CAIPS notes, during the Sao Paulo interviews. In those
statements, they had each admitted that their relationship was initially formed
as a means of orchestrating Ms. de Oliveira’s admission to Canada. Clearly
the Board disbelieved their later evidence disavowing these earlier
incriminating statements. The Board’s credibility conclusion was summed up in
the following passages:
[33] While the appellant and the
applicant are married and he states his love for her, I am unable on the
evidence beyond the fact of marriage to find genuineness in it. The appellant
freely admitted his participation in the scheme to facilitate the applicant’s
admission to Canada – who better to do so [than] the appellant himself, who
orchestrated his own status in Canada by marrying Josefa Chelbek.
The appellant had previously benefited from a marriage which he was motivated
to enter into to bring about his own permanent residence in Canada. How am I therefore to find
his assertion of love for the applicant to be credible? I do not so find.
[34] The foregoing leads me to agree
with the effective submissions made by Minister’s counsel which distilled the
facts of the case to their very essence. Both the appellant and the applicant
carry the significant baggage associated with their lack of credibility as
reviewed earlier in these reasons. I find them to be seriously lacking in this
respect. The appellant found a way to remain in Canada through a marriage and dumped his
sponsor well within one year of his being granted landing in Canada. He uses the same medium in
facilitating the applicant’s entry to Canada
as a member of the family class. Effectively both parties to this application
have laid their credibility to waste as it is set out in these reasons.
Analysis
[22]
The
decision taken in this case by the Board was based on its finding that Ms. de
Oliveira was not a “spouse” for the purposes of gaining entry to Canada as a member
of the family class. In reaching that conclusion the Board was required to
examine this marriage to determine whether it was genuine and if it “was
entered into primarily for the purpose of acquiring any status or privilege
under the Act”: see s. 4 of the Immigration and Refugee Protection Regulations (Regulations), SOR/2002-227.
[23]
The
determination of whether a marriage is genuine is essentially a fact-based inquiry.
Here the Board noted that such a decision requires consideration of many
factors including the length of any prior relationship or cohabitation between
the parties, their knowledge of one another’s histories, their behaviour
together, the details of their engagement and the marriage ceremony, the
frequency and substance of their communications while apart and the level of
their financial dependence. These are all matters which require the sorting
and weighing of evidence and the assessment of credibility – a process which
the Board is well situated to carry out. I accept that the applicable standard
of review for such matters is patent unreasonableness: see Canada (Minister of
Citizenship and Immigration) v. Navarrete, [2006] F.C.J. No. 878,
2006 FC 691 and the cases cited therein at para. 17.
[24]
The
Applicant argued that the Board failed to examine the evidence establishing the
bona fides of this relationship and, instead, wrongly focussed on their
previous immigration histories. In the case of Mr. Rosa, it was asserted that
the Board had no basis for concluding that his first Canadian marriage was not
genuine and that this conclusion tainted the Board’s view of the legitimacy of
his marriage to Ms. de Oliveira. This argument is without merit. The Board
was entitled to examine the immigration histories of Mr. Rosa and Ms. de
Oliveira as a means of assessing their credibility. The fact that Mr. Rosa had
entered into a highly suspicious prior marriage leading to his acquisition of
status in Canada was also a
relevant, albeit not conclusive, consideration for assessing the bona fides
of his marriage to Ms. de Oliveira. There was evidence here to support the
Board’s conclusion that this prior marriage was not genuine and it is not the
role of this Court to substitute another view simply because a different
conclusion might have been reached on the same evidence.
[25]
Similarly,
Ms. de Oliveira’s prior fraudulent behaviour in seeking entry to Canada was relevant
evidence bearing on her credibility. It was for the Board to determine how
much weight to give to this evidence.
[26]
It
is also not correct that the Board’s decision turned solely on this evidence of
prior conduct. The Board had an ample basis for rejecting as untrustworthy the
testimony of these witnesses concerning their own relationship.
[27]
The
Board’s adverse credibility assessment of these parties was soundly supported
by the evidentiary record. There were several significant discrepancies in the
evidence they presented upon which the Board based its conclusion that they had
failed to prove a genuine marital relationship. For instance, it is difficult
to accept that Ms. de Oliveira forgot the details of Mr. Rosa’s telephone
marriage proposal and her supposed acceptance of it. The Board’s further
scepticism surrounding the claimed bona fides of Mr. Rosa’s marriage
proposal was also entirely reasonable coming, as it did, after a relatively
brief period of cohabitation in Brazil a year earlier and
shortly after Mr. Rosa’s affair with Ms. Quintela. Mr. Rosa’s rather bizarre
description of his affair with Ms. Quintela, and Ms. de Oliveira’s rather
cavalier attitude to that situation, were seen by the Board to be disingenuous
and its conclusion on this point is unassailable. The evidence by Mr. Rosa and
Ms. de Oliveira that the Visa Officer had fabricated the notes of their
interview admissions of bad faith was also clearly unbelievable and
appropriately found to be so by the Board. The Board’s finding that this
relationship had been initially orchestrated for immigration purposes is, thus,
not only reasonable but, on the evidence presented, compelling.
[28]
It
was argued on behalf of Mr. Rosa that the Board erred in law by failing to
recognize the conjunctive nature of the test established by s. 4 of the Regulations
requiring both that the marriage not be genuine and that it was entered
into primarily to acquire immigration status or privilege. For this, Mr. Rosa
relies upon Sanichara v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1272, 2005 FC 1015.
[29]
Regardless
of the nature of the statutory test for defining a “spouse” for immigration
purposes under s. 4 of Regulations, the Board made no legal error in
this case. The Board clearly found that this marriage was not genuine and
was entered into for the purpose of Ms. de Oliveira acquiring immigration
status under Immigration Refugee and Protection Act (IRPA), S.C. 2001,
c.27. The Board did not say that an initial fraudulent intent to marry could
never be displaced by the later development of a loving and bona fide
marriage. The Board simply concluded that such a bona fide relationship
never did exist between Mr. Rosa and Ms. de Oliveira. The Board’s difficulty
in finding that the motives for the relationship had changed for the better is
hardly surprising in the face of Mr. Rosa’s and Ms. de Oliveira’s denials to
the Board that the relationship had initially been formed for an illicit
immigration purpose. Having adopted that position before the Board in clear
contradiction to their recorded admissions in Sao Paulo, their
argument that the wedding was bona fide was bound to fail.
[30]
In
conclusion, there is nothing in the findings of the Board which can be fairly
described as unreasonable. Indeed, there is little room on the record for the
Board to have come to any other conclusion than it did because the story
offered by Mr. Rosa and Ms. de Oliveira strains credulity. The Board had an
ample basis for saying that their credibility had been laid to waste by their
testimonial inconsistencies. Despite their later denials under oath, this was
quite obviously a relationship arranged among Mr. Rosa, Ms. de Oliveira and Ms.
Quintela to effect Ms. de Oliveira’s admission to Canada.
[31]
In
the result, there is no basis for disturbing the Board’s finding that this
marriage was caught by s. 4 of the Regulations.
[32]
This
application for judicial review is dismissed.
[33]
Although
I cannot identify any issue of general importance from this decision which
would warrant a certified question, I will give each of the parties 7 days to
advise the Court if they have a contrary view. If either party does propose a
certified question, I will allow the other party an additional 3 days to
respond.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
"R. L. Barnes"
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