Date:
20130326
Docket:
IMM-5918-12
Citation:
2013 FC 312
Ottawa, Ontario,
March 26, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
|
|
SAU LING TONG
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks to set aside a decision made by an Immigration Officer
(Officer) denying her application for a permanent residence as a member of the
Spouse or Common-law partner in Canada class. The Officer determined that the
applicant’s marriage was entered into primarily for immigration purposes. For
the reasons that follow the application is dismissed.
Facts
[2]
The
applicant, Ms. Tong, is a citizen of China. She first visited Canada on July 22, 2009. She stayed with her uncle. She extended her visitor’s visa and
remained in Canada until February 2010.
[3]
Five
months later, on July 2, 2010, the applicant attempted to re-enter Canada as a visitor but she was denied entry and detained based on the suspicion that she may not
leave Canada at the end of her authorized stay. On July 6, 2010, the applicant
made a refugee claim and she was released on a bond with terms and conditions.
[4]
Seven
months later the applicant married Mr. Wang, a Canadian, on January 29, 2011.
She applied for permanent residence under the Spouse-in-Canada class on June 1,
2011. On July 11, 2011 the applicant withdrew her refugee claim.
[5]
The
applicant met her husband in 1989 in Beijing when she was 17 years old. Mr.
Wang lived near her father, whom she visited during the school holiday. She
saw Mr. Wang again in 1992 while working as a tourist guide. She would bring
tour groups to the restaurant where he worked. Mr. Wang would later immigrate
to Canada but he sent her a post-card each year.
[6]
The
applicant married her first husband in 1997 and in 2002 they moved to Hong Kong. When her husband became angry and abusive she began working so she could
support herself and leave him. They separated in 2008 and divorced in 2010.
[7]
Her
mother suggested she visit her uncle in Canada so she could take a break from
her marital problems. She did so in 2009 and reconnected with Mr. Wang. They
traveled and visited tourist sites together. Mr. Wang gave her gifts and
money. When she left, she promised to return to Canada to see him again.
[8]
When
she returned to Canada in 2010, Mr. Wang had joined the Royal Canadian Navy.
He visited her in Toronto and asked her to marry him. They married on January
29, 2011 and now live together.
Decision Under Review
[9]
In
a letter dated May 30, 2012, the Officer refused her application for permanent
residence status pursuant to subsection 4(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations)
which provides that:
|
4. (1) For the purposes of these
Regulations, a foreign national shall not be considered a spouse, a
common-law partner or a conjugal partner of a person if the marriage, common-law
partnership or conjugal partnership
(a) was entered
into primarily for the purpose of acquiring any status or privilege under the
Act; or
(b) is not
genuine.
|
4. (1) Pour l’application du
présent règlement, l’étranger n’est pas considéré comme étant l’époux, le
conjoint de fait ou le partenaire conjugal d’une personne si le mariage ou la
relation des conjoints de fait ou des partenaires conjugaux, selon le
cas :
a) visait
principalement l’acquisition d’un statut ou d’un privilège sous le régime de la
Loi;
b) n’est pas
authentique.
|
[10]
The
Officer subsequently provided a document titled “Reasons for decision made on
24 May 2012” to elaborate on the basis for the decision.
[11]
The
Officer noted that this was Mr. Wang’s third spousal sponsorship. While she
considered this “somewhat unusual” she noted that it was not itself a reason to
believe that his current marriage was not genuine.
[12]
The
Officer noted that the applicant and her husband gave consistent answers to
questions regarding their daily routine and interests. Additionally, the
applicant provided a number of photographs, letters and calling cards. The
Officer found that she “must question the extent of this documentation” because
it appeared that the evidence was kept for the purpose of the permanent
residency application.
[13]
The
Officer considered there to be “a great number of inconsistencies” which led
her to question the credibility of the parties and to believe that the marriage
was entered into primarily for immigration purposes:
a.
On
her application to extend her visitor’s visa the applicant stated that she was
renting an apartment in Toronto. However, it was later revealed that she was
staying with her uncle in his apartment.
b.
Upon
her arrival to Canada in 2010 the applicant stated that she was not employed.
However, on her application for permanent residence she mentioned that she was
employed as an aesthetician before entering Canada in 2009 and upon her return
in 2010.
c.
She
made a refugee claim “without basis” which indicated that she had a desire to
remain in Canada “at all costs.”
d.
It
was “odd” that neither the applicant’s uncle nor Mr. Wang were her bondsperson.
e.
Mr.
Wang stated that he divorced his first wife because she did not wish to
immigrate to Canada. However, when he sponsored his second wife, he stated
that his first divorce was the result of her infidelity.
f.
Mr.
Wang stated that he and his second wife separated because she was used to a
“decent” life in China and did not wish to work in Canada. The Officer
considered this a contradiction because Mr. Wang’s second wife came from a
rural area in China and worked as a waitress prior to immigrating.
g.
The
parties stated that they had no joint property or life insurance policies with
each other as a beneficiary. They did have a joint bank account but the
balance was low and there had been large cash withdrawals. There was one
recent withdrawal of $8,000 which Mr. Wang said was to pay medical bills for
the applicant’s mother in China. The Officer questioned this explanation
because they did not have much money in the account and because the applicant
had her own savings.
h. Mr. Wang provided a
will signed after the interview naming the applicant as his beneficiary. He
also provided two references verifying their relationship. The will stated
that Mr. Wang was 40 when he in fact was 44. The Officer also questioned why
these documents were not provided before the interview.
Issue
[14]
The
sole issue for this judicial review is whether the Officer reasonably
determined that the marriage was entered into primarily for the purpose of
acquiring status. In applying the standard of reasonableness, a court
considers “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 v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
para 47. The applicant contends that the reasons do not meet this standard.
[15]
The
applicant further contends that the Officer breached procedural fairness in not
providing the applicant an opportunity to address some of the alleged
inconsistencies in her evidence, or in failing to ask reasonable supplementary
questions to answer which would have alleviated any concern the Officer may
have had.
[16]
The
applicant also submits that the Officer breached procedural fairness by
providing inadequate reasons. However, while the decision letter is brief,
detailed reasons were later provided. Additionally, adequacy of reasons is not
a stand-alone basis to challenge a decision. Rather, the reasons must be read
together with the outcome and show whether the result falls within a range of
possible outcomes: Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011]
3 SCR 708, para 14. Therefore, there is no issue as to procedural fairness.
Analysis
[17]
As
a preliminary issue, the applicant has provided substantial additional evidence
on this judicial review application, contained within her affidavit and her
written submissions. Judicial review is conducted on the basis of the evidence
which was before the decision maker. Therefore, I have not considered any
evidence which was not before the Officer.
[18]
I
accept counsel’s submissions that some of the inconsistencies, when viewed
individually, are minor. I also accept that there may have been an explanation
which rationalized some of the inconsistencies. I do not find, however, that
this renders the decision unreasonable or that there has been a breach of
procedural fairness.
[19]
The
Officer was entitled to take a close look at the discrepancies in the evidence
given the applicant’s immigration history and the fact that this was the third
time the sponsor had sponsored a wife from China. The circumstances of those
prior applications, and the brevity of the subsequent marriages, support closer
scrutiny of what might otherwise be inconsequential discrepancies in the
evidence. It is to be recalled that the sponsor and his first wife separated shortly
after she became a permanent resident, and they were divorced 22 months later.
The marriage lasted less than three years. The second marriage ended after
four years. Notwithstanding the prior history, the Officer recognized that the
case had to be answered on its merits and that the critical issue was whether
the marriage before her met the requirements of the Regulations.
[20]
The
Officer drew a negative inference as to the genuineness of the marriage from
inconsistent testimony from the applicant as to whether she was employed prior
to her arrival in Canada and as to where she resided on her arrival.
Similarly, the Officer was free to infer from the withdrawal of the refugee
claim that it had no foundation. While the applicant offered an explanation,
the Officer was not bound to accept it and the inference to be drawn was open
to her on the evidence.
[21]
I
also find that the Officer was entitled to draw an inference from the
discrepancy in the sponsor’s evidence with respect to the reasons for the
failure of the first marriage. In his evidence he said it was by reason of a
difference of opinion as to where they were to live. His wife wanted to live
in the United States and he in Canada. In his sponsorship application however,
he said the reason for the failure was because of her infidelity. This is a
significant inconsistency.
[22]
The
Officer observed that, apart from a joint bank account, the applicant and
sponsor had no joint property or life insurance policies that named each other
as beneficiaries. A will, executed May 24, 2012 by Mr. Wang was received after
the interviews on May 28, 2012. It named the applicant as a beneficiary. However,
Mr. Wang’s condominium in Toronto is owned jointly with his father.
[23]
The
bank statements for the joint account, covering a two year period, showed
minimal balances, with a large cash deposit and withdrawal of $8,000. When
asked to explain the purpose of the withdrawal Mr. Wang said it was to pay for
his mother-in-law’s medical expenses in China. The Officer questioned this
explanation having heard from Ms. Tong that she had $10,000 of her own savings
in a separate account.
[24]
Finally,
the Officer noted the correspondence between Ms. Tong and Mr. Wang, as well as
telephone bills indicating calls from Ms. Tong to Mr. Wang while on training.
The records begin in 2010 and conclude with the permanent residency application
in May of 2011. The Officer concluded that:
… the evidence of their
relationship has been purposely kept in such fashion as to be presented for the
specific purpose of a permanent residency application.
[25]
Again,
looking at this evidence as a whole and in light of their respective
immigration histories, this conclusion was open to the Officer on the record
before her.
[26]
To
conclude, while the applicant and her sponsor have rationalizations or
explanations for some of the points in issue that the Officer found
troublesome, the onus on providing an evidentiary foundation for a successful
permanent residence application rests with the applicant and sponsor. They
must put their best case forward. After all, it is the applicant and sponsor
who know and understand all aspects of their history and relationship and the
onus lies on them to address lacunae, gaps or discrepancies reasonably
arising in their histories. While I accept counsel’s argument that procedural
fairness issues might arise if the Officer’s questioning did not allow for full
answers those concerns do not arise in the facts of this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. There is no question for certification.
"Donald J.
Rennie"
Email this Content