Date: 20070122
Docket: IMM-2932-06
Citation:
2007 FC 59
Ottawa, Ontario, January 22, 2007
Present:
The Honourable Mr. Justice Beaudry
BETWEEN:
CLAUDE
NADON
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision dated
April 12, 2006, by the Immigration Appeal Division of the Immigration and
Refugee Board (the panel), dismissing the applicant’s appeal of the denial of
the sponsored permanent residence visa application of the applicant’s spouse
(the sponsorship applicant).
I. Issue
[2]
Did the
panel err in finding that the marriage between the applicant and the
sponsorship applicant is not genuine and was entered into primarily for the
purpose of acquiring a status or privilege within the meaning of section 4 of
the Immigration and Refugee Protection Regulations, SOR/2002-227 (the
Regulations)?
II. Factual Background
[4]
The
applicant was born in Canada on March 8, 1954. He is a Canadian citizen and has
been a municipal officer in the city of Laval since 1975. He was single and
childless in September 2000 when his Spanish teacher introduced him to the
sponsorship applicant to help him improve his Spanish.
[5]
The
sponsorship applicant is a divorced Mexican woman who began living with her
daughter in Montréal in January 2000. The sponsorship applicant claimed refugee
status on February 10, 2000, and a removal order was issued against her on
March 4, 2000. The sponsorship applicant remained in Canada while awaiting the
response to her refugee claim, which was refused on September 13, 2000. On
October 19, 2000, she filed an application for admission in the
Post-Determination Refugee Claimants in Canada Class (PDRCC). Her application
for judicial review of the negative decision regarding her refugee claim was
dismissed on March 5, 2001. Having exhausted all avenues of appeal, the
sponsorship applicant was forced to leave the country and returned to Mexico on
November 5, 2003, following a removal order dated October 14, 2003.
[6]
In the meantime,
what was intended to be a simple mutual exchange to improve their language
skills developed into a love affair. Although they did not live together during
this entire time, the sponsorship applicant spent her weekends at the
applicant’s home in Laval, and they were recognized as a couple by their close
friends and their respective families.
[7]
The
applicant visited the sponsorship applicant in Mexico from November 19, 2003,
to January 1, 2004. They were married in a civil ceremony on December 18, 2003.
The applicant returned to Mexico in November 2004, and this time the couple
were married in a religious ceremony in December 2004. The applicant supports
his wife financially by sending her the equivalent of three hundred dollars a
month. He is in touch with her every day by telephone and is considered a
member of his wife’s family. Finally, during one of his visits to Mexico
(November 2005), he took care of his mother-in-law, who has leukemia, and
donated blood and platelets to her.
[8]
After the
civil marriage, the applicant returned to Canada alone and on January 8, 2004,
he submitted an application to sponsor his wife, who had applied for permanent
resident status in the Family Class. Both applications were refused on June 10,
2004. The visa officer was not satisfied that the marriage was genuine and
determined that it was entered into primarily for the purpose of acquiring a
status or privilege within the meaning of the Regulations. The application was
also refused because the sponsorship applicant is inadmissible to Canada and
must obtain authorization from the Minister to return here, since the removal
order was executed against her on March 4, 2000.
[9]
On June
26, 2004, the applicant appealed the rejection of his spouse’s application, but
the appeal was dismissed on April 12, 2006. That decision is the basis of this
application for judicial review.
III. Impugned Decision
[10]
After
reviewing all the evidence, both documentary and testimonial, the panel
concluded that the applicant had not established on a balance of probabilities
that the marriage was genuine; the panel found that his wife had married him
primarily to acquire a status in Canada.
IV. Relevant Legislation
[11]
Section 4
of the Regulations reads as follows:
|
4.
For the purposes of these Regulations, a foreign national shall not be
considered a spouse, a common-law partner, a conjugal partner or an adopted
child of a person if the marriage, common-law partnership, conjugal
partnership or adoption is not genuine and was entered into primarily for the
purpose of acquiring any status or privilege under the Act.
|
4. Pour l’application du
présent règlement, l’étranger n’est pas considéré comme étant l’époux, le
conjoint de fait, le partenaire conjugal ou l’enfant adoptif d’une personne
si le mariage, la relation des conjoints de fait ou des partenaires conjugaux
ou l’adoption n’est pas authentique et vise principalement l’acquisition d’un
statut ou d’un privilège aux termes de la Loi.
|
V. Analysis
Standard of review
[12]
On a
number of occasions, this Court has dealt with the appropriate standard of
review for decisions by the Immigration Appeal Division concerning applications
to sponsor family members (Sanichara v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1015, [2005] F.C.J. No. 1272 (F.C.) (QL), at
paragraph 11; Mohamed v. Canada (Minister of Citizenship and Immigration),
2006 FC 696, [2006] F.C.J. No. 881 (F.C.) (QL), at paragraphs 34 and 39; Gavino
v. Canada (Minister of Citizenship and Immigration), 2006 FC 308, [2006]
F.C.J. No. 385 (F.C.) (QL); Deo v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1339, [2004] F.C.J. No. 1612 (F.C.) (QL)).
[13]
In Khangura
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 815
(F.C.T.D.) (QL), my colleague Mr. Justice John A. O’Keefe stated at
paragraph 21:
The appropriate standard of review of the
Appeal Division’s decision is one of correctness when it is dealing with a
question of law and the standard of review when dealing with questions of mixed
fact and law is reasonableness simpliciter. Findings of fact made by the
Appeal Division should not be overturned unless they are clearly wrong.
[14]
Determining
whether the marriage is genuine is clearly a question of mixed fact and law
because it involves applying the facts to the requirements of the Regulations.
Therefore, the appropriate standard of review is reasonableness simpliciter
(Mohamed, above, paragraph 39):
The officer’s finding to the effect that
the applicant had not filed sufficient evidence establishing that her relationship
with her husband was genuine is a mixed question of fact and law. The
appropriate standard for this decision in the context of this judicial review
is that of an error of unreasonableness simpliciter (Baker v. Canada
(Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817).
[15]
Accordingly,
I must review both the totality of the evidence and the panel’s reasons to
ensure that the decision is based on an analysis that could reasonably lead to
the conclusion reached by the panel. In other words, the decision must be
reasonable.
Did
the panel err in finding that the marriage between the applicant and the
sponsorship applicant is not genuine and was entered into primarily for the
purpose of acquiring a status or privilege within the meaning of section 4 of
the Regulations?
[16]
The
applicant submits that the panel erred regarding the genuineness of the
marriage because the essential elements of the testimony given by the applicant
and his wife were consistent. The applicant points out that it is not improbable
that they provided different explanations and that their responses were not
contradictory but cumulative and complementary.
[17]
The
respondent dismisses this argument and suggests that the panel’s adverse
findings as to why the couple had not cohabited were correct.
[18]
There is
also disagreement as to when the sponsorship applicant informed the applicant
that her refugee claim had been refused. The applicant testified that she told
him in 2001 or 2002, while the sponsorship applicant states that it was four or
five weeks after they first met. The panel drew a negative inference and found
that if the relationship were genuine, the sponsorship applicant would have
told the applicant earlier.
[19]
The
applicant retorts that the panel ignored evidence and disregarded his testimony
on this point because he stated at the hearing that the sponsorship applicant
had informed him of her status and the grounds for her refugee claim. He
maintains that he was completely aware of his spouse’s precarious situation and
of all the steps she had taken to address it. However, he discovered that her
refugee claim had been refused after their marriage when he was completing the
sponsorship documents.
[20]
I have
carefully reviewed the transcript and, in my view, the applicant’s explanations
are reasonable and trustworthy. I accept that the applicant did not learn that
his spouse’s refugee claim had been refused until after their marriage. I also
accept that the applicant was aware of the grounds for her refugee claim.
[21]
The applicant
also criticizes the panel for drawing adverse conclusions from the multiple
steps that the sponsorship applicant took to stay in Canada. The respondent
submits that the panel did not make a negative finding based on the fact that
the sponsorship applicant had used the various remedies available to her under
the Act. On the contrary, the respondent contends that the panel set out the
facts that called into question the genuineness of the marriage at paragraph 15
of the reasons. This passage reads as follows:
In the past, the applicant tried to
obtain a status in Canada. According to the refusal letter of the immigration
officer, the applicant stated that she claimed refugee status while visiting
her sister, since she became short of funds and wanted to remain in Canada. The
applicant has a sister in Canada, who approached the appellant’s Spanish
instructor and asked if he knew of anyone who could teach French to the
applicant. The applicant met the appellant during the same month in which her
refugee claim was refused. Subsequent to the refusal, the applicant did not
leave Canada when required, since the departure order issued against her became
a deportation order. For these reasons, the evidence suggests that the marriage
was entered into for the purpose of securing a status for the applicant in
Canada.
[22]
The sponsorship applicant had the
right to undertake proceedings to challenge the negative decision that had been
made about her. The sponsorship applicant left the country on the date set out
in the removal order, a fact that the panel seems to have disregarded.
[23]
The panel
did, however, acknowledge that the applicant was credible and made the
following observations at paragraph 16:
It is important to mention that the
appellant had a good knowledge of the applicant’s family in Canada, Mexico, and
abroad. From her answers in a questionnaire contained in the appeal record, the
applicant provided details of the appellant’s employment, salary, and prior
common-law relationship. There was evidence of financial support in the form of
money transfers. In his addendum to the sponsor questionnaire, the applicant
lists a series of activities and outings shared by the appellant and the
applicant while in Canada. This evidence was unchallenged during the hearing. While
these are positive factors that have been considered by the panel, they are
outweighed by the difficulties in the evidence.
[24]
As the
applicant points out,
an appeal before the panel is a hearing de novo. As such, the panel must
consider not only the immigration officer’s reasons but also the totality of
the evidence adduced by the applicant to establish on a balance of
probabilities that his spouse did not marry him primarily for the purpose of
acquiring a status in Canada.
[25]
To support
his position that the marriage was genuine, the applicant filed a number of
telephone bills, the videotape of both marriage ceremonies, and a letter
acknowledging that the panel had received these items.
[26]
Finally,
the applicant also filed 75 photographs, including 36 of the marriage
ceremonies. The panel did not refer to the videotape or the photographs of the
couple, two important pieces of evidence in determining the genuineness of the
marriage.
[27]
The Court
is of the view that important and relevant evidence was not mentioned or
considered. The panel overlooked contradictory evidence when making its finding
(Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998]
F.C.J. No. 1425 (F.C.T.D.) (QL)).
[28]
The
parties did not submit a question for certification and there is none in the
docket.
JUDGMENT
THE COURT ORDERS that:
1.
This
application for judicial review be allowed. The matter is returned to a
differently constituted panel for reconsideration..
2.
There is
no question to be certified.
“Michel
Beaudry”
Certified true translation
Mary Jo Egan, LLB
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