Docket:
IMM-824-13
Citation: 2013 FC 1125
Montréal, Québec, November 6, 2013
PRESENT: The Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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OLGA CAUIA
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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]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act] of a decision of an immigration officer on January 16,
2013. The officer denied the applicant’s sponsored application for permanent
residence under the spouse or common-law partner in Canada class as she was not
satisfied that the common-law partnership was genuine and not entered into
primarily for the purpose of acquiring status or privilege as stated in
subsection 4(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-226, as amended [Regulations].
FACTS
[2]
The applicant is a 30-year-old citizen of Moldova. Between 1998 and 2008 she studied in Romania, though her Romanian diploma is not
recognized by the Moldovan government.
[3]
The applicant arrived in Canada on a visitor’s visa on June 23, 2008. She claimed refugee status on June 12, 2009 after a
protest and violent government crackdown (which the applicant alleges targets
students who have studied in Romania) took place in Moldova following an
election. Her claim was rejected by the Refugee Protection Division of the
Immigration and Refugee Board [the Board] on February 17, 2012.
[4]
On June 6, 2012, the applicant filed an
application for permanent residence in the spouse or common-law partner in Canada class under section 12 of the Act, sponsored by Volvick Edouard [the sponsor].
[5]
In support of her application for permanent
residence through sponsorship, the applicant alleges the following facts:
i.
she was introduced to her sponsor by a French
classmate around November 2009;
ii.
she started taking dance lessons with the
sponsor at his dance studio;
iii.
she began to participate in ballroom dancing
competitions with her sponsor;
iv.
the sponsor officially moved in with her in
February 2011 when he signed a lease renewal, leaving his former apartment where
he lived with his brother;
v.
she is often at the sponsor’s dance studio where
she not only dances but also teaches and manages the business by paying bills,
organizing the office, verifying income, and doing all of the office work;
vi.
she and the sponsor share their lives; they live
together, share the same accountant, love each other, and she cooks food for
him every night;
vii.
the sponsor has two children aged eleven and
four with his ex-wife, from whom he is separated; and
viii.
the sponsor has a sister living in New York and a niece and nephew, aged 21 and 17. The niece and nephew came to visit the
sponsor in the summer of 2011 and stayed with the sponsor’s brother. The niece
and nephew were often at the dance studio and that the sponsor organized a
weekend in a country house in Victoriaville for the entire group, including the
applicant. The applicant also claims that she went out to eat with the
sponsor’s niece and nephew without him being there.
[6]
The Québec government issued a Québec Selection
Certificate to the applicant on January 10, 2013.
[7]
The applicant and the sponsor were each called
to an interview with the officer on January 16, 2013. The officer’s
decision was rendered on January 17, 2013.
THE DECISION
UNDER REVIEW
[8]
The officer found that the applicant undermined
her credibility by deliberately misrepresenting herself to Canadian immigration
officials by claiming that she would return to Moldova and to her fiancée in Romania on her initial application for a temporary resident permit for entry into Canada. When questioned by the officer, the applicant stated that she wished to stay in Canada to help her sister with her baby and that there was political unrest and she could
not go back home.
[9]
The officer also noted several inconsistencies
in the answers the applicant and the sponsor gave in their interviews.
[10]
The officer was not satisfied by the
explanations provided by the couple to justify the inconsistencies apparent
throughout their testimonials. She found that the couple’s answers were evasive
and non-committal, further demonstrating the couple possesses limited knowledge
of one another.
[11]
The applicant does not appear to be involved
with the sponsor on an emotional level and does not share her life with him
beyond the help she offers in the management of his dance studio. Her lack of
knowledge of the sponsor’s financial situation and custodial arrangement of his
children provide little indication of emotional involvement and investment on
her behalf. The applicant appears to be minimally implicated in the sponsor’s
family life.
[12]
Finally, the officer concluded that the
documentation provided by the couple does not sufficiently demonstrate evidence
of a genuine common-law relationship. Moreover, the applicant’s life insurance
policy designates the sponsor as a beneficiary at fifty percent and her sister
at fifty percent, a division that the applicant could not explain when asked. The
sponsor has also provided evidence of his life insurance, where he names his
daughter Terry as sole beneficiary at one hundred percent.
[13]
The officer stated that based on the interviews
conducted and answers obtained from the testimonials, she is not satisfied of
the bona fides of the relationship. The numerous discrepancies in their
answers make the authenticity of the union questionable. The officer concluded
that the relationship is one of convenience and entered into primarily for the
purpose of acquiring status or privilege as stated in section 4 of the
Regulations.
STANDARD OF
REVIEW
[14]
It is well recognized that the finding that a
marriage or common-law partner relationship is not genuine is reviewable on a
standard of reasonableness (Gangurean v Canada (Minister of Citizenship and
Immigration), 2012 FC 286 at para 9 [Gangurean]; Essaidi v Canada
(Minister of Citizenship and Immigration), 2011 FC 411 at para 10 [Essaidi];
and Bustamante v Canada (Minister of Citizenship and Immigration), 2011
FC 1198 at para 20).
ANALYSIS
[15]
At the outset, in response to the applicant’s
arguments about the standard of proof applied by the officer, I am not
persuaded that the mere use of the word “convinced” demonstrates that the
officer applied a higher standard of proof than what was required. The
remainder of the reasons are in line with the application of a “balance of
probabilities” standard and there exists no other evidence apart from this word
choice to indicate that the officer applied an incorrect burden of proof.
[16]
The applicant suggests that the officer ignored
documentary evidence and chose to focus only on the eight discrepancies that
she found in the testimonies of the applicant and the sponsor. I do not agree
with this characterization of the decision. The officer did indeed consider the
documentary evidence, acknowledging that the applicant and sponsor live together
and are dance partners. She was not convinced, however, that this demonstrated
a genuine common-law relationship. The officer also made direct reference to
the evidence submitted regarding the insurance policies of the applicant and
her sponsor, though she drew a negative inference from the fact that the
sponsor did not name the applicant as beneficiary and the sponsor was only a
fifty percent beneficiary for the applicant. I further note that there exists a
presumption that the officer considered all of the evidence before her even if
she did not make specific reference to each piece of evidence (see Florea v
Canada (Minister of Employment and Immigration), [1993] FCJ 598).
[17]
The officer found several discrepancies in the
applicant and sponsor’s testimonies. When she gave the couple an opportunity to
explain these inconsistencies, she was not convinced by their justifications. More
particularly, it was reasonable for the officer to draw a negative inference
from the lack of knowledge of the applicant about the sponsor’s finances in the
period after they claim to have become a couple.
[18]
It was also open to the officer to draw a
negative inference from the fact that the applicant did not seem to be involved
in the sponsor’s family life. Given that the sponsor seems to play an important
role in the life of his children, it was open to the officer to draw a negative
inference from the fact that the applicant and the sponsor did not discuss his
children.
[19]
While the inconsistencies identified by the
officer relating to the baptism party and the video rental may seem
inconsequential, they are important in assessing the daily life of the couple (Gangurean,
above, at para 13), particularly when this may very well have been the last
weekend that the couple would spend together, as the applicant was facing a
removal order. The applicant did not know the whereabouts of the sponsor, while
the sponsor did not know that the applicant would be meeting with her lawyer
that night. Given that these events occurred only a few days before the
interview, they cannot be explained by a lapse in memory.
[20]
When reviewing a decision on the standard of
reasonableness, this Court may not substitute its own evaluation of the
evidence, but rather must show deference to the findings of the decision maker
and focus on the justification, transparency and
intelligibility of the decision (Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, at para 59). The officer considered and
made reference to the body of evidence before her and drew the reasonable
inference that when considered as a whole, the inconsistencies in the
testimonies were enough to conclude that the common-law relationship was not
genuine (Essaidi, above, at para 18). As such, the decision that the
relationship of the applicant and the sponsor was not bona fide as set
out in section 4 of the Regulations falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law, and
therefore does not warrant this Court’s intervention (Dunsmuir v New
Brunswick, 2008 SCC 9, at para 47).
[21]
For these reasons, this application is
dismissed.
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