Date:
20130617
Docket:
IMM-8435-12
Citation:
2013 FC 666
Ottawa, Ontario,
June 17, 2013
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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WEI HONG XIE
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Minister of Citizenship and Immigration (the applicant) seeks judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the Act) of the August 1, 2012 decision of the
Immigration Appeal Division of the Immigration and Refugee Board (the Board)
which allowed the appeal by Ms Xie (who was then the appellant) of the decision
of a Visa Officer (the Officer) at the Office of the Consulate General of Canada in
Hong Kong, dated October 8, 2009. The Officer refused to issue a permanent
resident visa to the appellant’s spouse, Mr Liang. As the Minister has applied to
review the appeal decision of the Board, Ms Xie is the respondent in the
present proceeding.
Background
[2]
Ms
Xie (the respondent) was sponsored to come to Canada by her first husband and
she obtained permanent residence on December 15th, 1999. The
marriage ended in 2002 due to her husband’s extra-marital affair. Ms Xie then
had a common-law relationship that also ended due to her partner’s affair.
After this relationship ended Ms Xie discovered she was pregnant with her son,
who was born in February 2004.
[3]
Ms
Xie had returned to China for a family visit in 2003. While delivering a parcel
on behalf of her Canadian roommate, she met Mr Liang. Following her return to Canada, she and Mr Liang spoke on the phone frequently. In November of 2004, Mr Liang
proposed to Ms Xie by telephone. They were married in China on January 19, 2005. Ms Xie and her son visited Mr Liang on four separate occasions
in China, including for a period of one year in 2005-2006 and for other periods
of up to three months.
[4]
Since
their marriage, Ms Xie attempted to sponsor her husband’s application for
permanent residence three times and on each occasion the visa was refused.
[5]
On
the third sponsorship application, Mr Liang admitted to relying on two pages of
preparatory material, referred to by the Officer as “cheat sheets”. The
Officer refused Mr Liang’s permanent residency on two grounds: pursuant to
subsection 4(1) of the Regulations, that the marriage was not
genuine and
was entered into primarily for the purpose of Mr Liang gaining entry into
Canada; and,
pursuant to paragraph 40(1)(a) of the Act, that the applicant was
inadmissible for misrepresentation due to the reliance on the so-called “cheat
sheets”.
[6]
Ms
Xie appealed the decision to the Immigration Appeal Division of the Immigration and Refugee Board
(the Board). The Board allowed the appeal and concluded that Ms Xie and Mr
Liang did indeed have a genuine marriage.
[7]
The
Minister of Citizenship and Immigration (the applicant) now seeks judicial
review of the decision of the Board.
Decision under review
[8]
The
Board conducted a detailed review of the oral and documentary evidence and
concluded that Mr Liang and Ms Xie had “been in a genuine, exclusive and
committed marital relationship since they married on January 19, 2005, being a
period in excess of seven and one-half years.”
[9]
The Board
noted several factors in support of the genuineness of the marriage. With
respect to the so-called “cheat sheets”, the Board found no evidence that they
were used for an improper purpose, and that it was reasonable for Mr Liang to
prepare for his interview given that he had been refused twice previously. The
Board also found that Mr Liang was nervous, and that he had a faulty memory,
which was corroborated to some extent in the affidavit of his niece.
The Issues
[10]
The
key issue is whether the Board failed to consider essential evidence in
determining that the marriage was genuine.
[11]
The
applicant in these proceedings, the Minister of Citizenship and Immigration,
submits that the Board’s decision is not reasonable because the Board failed to
assess the credibility of Ms Xie and Mr Liang, ignored evidence, and failed to
reconcile the multiple inconsistencies in the evidence that were material to
the burden upon Ms Xie and Mr Liang to establish that they had a genuine
marriage. In addition, the Board unreasonably accepted the reason for the use
of the “cheat sheets” as due to Mr Liang’s nervousness and poor memory without
sufficient evidence to support such conditions.
[12]
The
respondent in these proceedings, Ms Xie, submits that the Board considered all
the evidence, fully reviewed the three failed sponsorship decisions and visa
refusals, addressed the inconsistencies in the evidence, found them to be
minor, and weighed them against the other evidence which supported that this
was a genuine marriage.
[13]
With
respect to the “cheat sheets”, the respondent submits that these were analogous
to the preparation that counsel would undertake in a face-to-face meeting with
a client, and in this case, due to the fact that Mr Liang was in China and did not speak English, the written material was an appropriate alternative.
Standard of Review
[14]
The
applicant and respondent agree that the applicable standard of review of the
decision of the Board is reasonableness which calls for deference.
[15]
The role of the Court
on judicial review is not to substitute any decision it would have made but to
“determine if the outcome ‘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. There may be more than one reasonable outcome.
However, as long as the process and the outcome fit comfortably with the
principles of justification, transparency and intelligibility, it is not open
to a reviewing court to substitute its own view of a preferable outcome”: Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1SCR 339 at para 59.
[16]
As noted by
Justice Scott in Canada (Minister
of Citizenship and Immigration) v Pierre, 2012 FC 1169:
[9] A decision on the genuineness and nature of a relationship
under section 4 of the IRPR is essentially based on facts, such that this
type of decision is subject to the reasonableness standard (Kaur v Canada (Minister
of Citizenship and Immigration), 2010 FC 417, [2010] FCJ No 482, at
para 14; Zheng v Canada (Minister of Citizenship and Immigration),
2011 FC 432, [2011] FCJ No 544, at para 18).
[10] Further, “It is established law that an appeal before the
IAD is an appeal de novo (Provost v Canada (Minister of
Citizenship and Immigration), 2009 FC 1310, 2009 FC 1310, [2009] FCJ
No 1683 (QL), at para 25). Thus, the applicant must persuade the IAD,
and not the Court, that the marriage is genuine or was not entered into
primarily for the purpose of gaining status under the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA). This Court’s jurisdiction is
relegated to that of review and it is not to tamper with the IAD’s discretion
if that discretion was reasonably exercised” (see Ma v Canada (Minister of Citizenship and Immigration), 2010 FC 509, 368 FTR 116, at
para 32).
Did the Board err by
failing to consider essential evidence?
[17]
The applicant
Minister noted that the Board failed to consider the inconsistent testimony
regarding when the couple began
to communicate by phone, when Mr Liang first met Ms Xie’s mother, whether he
brought gifts to that meeting, whether they stayed with Ms Xie’s mother on her
recent visit to China, and why Mr Liang did not know the name of Ms Xie’s son’s
biological father. The applicant also questioned whether the phone records
provided to support Ms Xie and Mr Liang’s assertion of frequent phone calls
were scrutinised by the Board (suggesting that the phone records did not
indicate who the calls were to or from, only that they were from Canada to China).
[18]
I do not
agree that the Board ignored the inconsistent evidence. For example, the Board
commented on the discrepancy in the dates of the first meeting of Ms Xie’s
mother, noting that “[t]he conflicts in evidence such as the date when the
applicant first met the appellant’s mother and the date on which they first
spoke to each other do not, having regard to the totality of the evidence,
significantly detract from the positive factors relating to the genuineness of
the marriage.”
[19]
With respect
to Mr Liang’s knowledge of the name of Ms Xie’s former common-law spouse and
father of her son, the Board noted that while Mr Liang did not know the man’s
name, he was aware of the reasons for the break-up and his evidence
corroborated Ms Xie’s testimony that he encouraged her to keep her baby when
she found out she was pregnant.
[20]
Similarly,
the Board noted the minor conflict regarding whether the couple stayed with Ms
Xie’s mother in China and accepted Mr Liang’s explanation. The Board noted, in
addition, that what was important was that the evidence showed that Mr Liang
visits his mother-in–law, i.e. that they have a relationship.
[21]
The applicant
Minister submits that the “cheat sheets” used by Mr Liang to prepare for the
interview demonstrate that the marriage was not genuine as married persons
would not need to be reminded of such basic information. The applicant submits
that the Board’s acceptance of the need for the cheat sheets was unreasonable
and that this led to other unreasonable findings. The Board unreasonably
accepted the explanation that Mr Liang had a poor memory based only on the
affidavit of his niece who merely stated this was so. The applicant contends
that given this evidence, the Board’s findings were perverse and do not
withstand a probing examination.
[22]
The reasons
of the Board indicate that it considered the implications of the “cheat sheets”
and the explanation offered for their use. The Board accepted the affidavit
evidence from Mr Liang’s niece regarding his poor memory and nervousness. The
Board also found that Mr Liang was not a sophisticated person. The Board found
that the “cheat sheets” were used only as a memory aid and not for any improper
purpose. One sheet of notes had been prepared by Mr Liang’s Canadian lawyer and
the other by his niece based on information on the internet. The Board accepted
that such preparation was reasonable and that the contents were true. As noted
by the respondent, the applicant did not cross-examine Mr Liang’s niece on her
affidavit regarding Mr Liang’s poor memory. As this was the only evidence
before the Board regarding Mr Liang’s nervousness and poor memory, the Board
was entitled to consider the evidence and give it the appropriate weight.
The Board’s findings
[23]
In
considering the Board’s reasons as a whole, it is clear that the Board made
several findings which supported its decision that the marriage was genuine,
including the following:
•
Mr Liang and
Ms Xie are compatible according to age, language, ethnicity and place of
origin, have common future plans, and have been in a marital relationship for over
seven and a half years;
•
Both Mr Liang
and Ms Xie are financially independent;
•
Mr Liang has
job security and a stable relationship with his family members in China, which undermine any ulterior motives for his immigration to Canada;
•
Both Mr Liang
and Ms Xie have integrated in each other’s family life by attending social
events with each other’s family members in China;
•
There is
corroborating evidence with respect to their first meeting, the proposal and
marriage, the four post-marital visits, and that Ms Xie, her son, and Mr Liang
lived together for a period of one year, during which time the son was enrolled
in school, and other periods of up to three months in China since their
marriage;
•
Mr Liang has
a relationship with Ms Xie’s son and they regularly communicate with each
other;
•
Mr Liang has
provided financial support to Ms Xie on occasion;
•
Mr Liang has
persisted in his attempt to immigrate to Canada to join his wife and other
family in Canada despite two failed attempts; and,
•
Mr Liang
never sought to visit Canada prior to his marriage even though he has close
family here.
[24]
As noted
above, the standard of review is reasonableness and the decision of the Board,
an expert tribunal, is owed deference. The Board considered all the evidence,
including the inconsistencies, and determined that, as a whole, the positive
features of the marriage outweighed the minor inconsistencies and/or were
explained to the satisfaction of the Board. It is not the role of the Court to
re-weigh the evidence considered by the Board.
[25]
As noted by
Justice Strickland in Canada (Minister of
Citizenship and Immigration) v Chen, 2013 FC 215:
[43] The jurisprudence of this Court confirms that there is no
specific test or set of tests established for determining whether a marriage or
relationship is genuine and that the relative weight to be given to each is
exclusively up to the officer or panel (see Keo v Canada (Minister of
Citizenship and Immigration), 2011 FC 1456 at para 24; Zheng v
Canada (Minister of Citizenship and Immigration), 2011 FC 432 at
para 23; Ouk v Canada (Minister of Citizenship and Immigration), 2007 FC
891 at para 13; Khan v Canada (Minister of Citizenship and
Immigration), 2006 FC 1490 at para 20). In this case the Panel used its
discretion and, despite the evidentiary inconsistencies that it noted,
concluded that the marriage was genuine and was not entered into primarily for
the purpose of acquiring any status or privilege under the IRPA.
[26]
In
conclusion, I would dismiss the application for judicial review. No question
was proposed for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The application for
judicial review is dismissed;
2. No question is
certified.
"Catherine M.
Kane"
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