Docket:
IMM-4396-13
Citation: 2014 FC 31
Ottawa, Ontario, January 13, 2014
PRESENT: THE CHIEF JUSTICE
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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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MARI ANNA SLOAN
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This Application for Judicial Review concerns a
decision of the Immigration Appeal Division [IAD] of the Immigration and
Refugee Board. In its decision, the IAD allowed an appeal from a visa officer’s
decision to refuse a permanent resident visa to Ms. Sloan’s husband.
[2]
The Minister submits that the IAD erred in
concluding that Ms. Sloan’s marriage is genuine and was not entered into
primarily for the purpose of acquiring any status or privilege under the Immigration
and Refugee Protection Act, SC 2001,
c 27 [IRPA]. Specifically, the Minister submits that the IAD erred by ignoring
important evidence in reaching these findings.
[3]
For the reasons that
follow, I disagree. Accordingly, this Application will be dismissed.
1. Background
[4]
Ms. Sloan is a 54
year old citizen of Canada. In early 2011, she and her husband of 32 years were
divorced, after separating in early 2008.
[5]
Mr. Lihyaoui is a 28 year old citizen of Morocco. In early 2009, Ms. Sloan added Mr. Lihyaoui as a “friend” on Facebook.
Approximately six months later, they began to chat online.
[6]
After corresponding over the Internet, by
telephone and over Skype on a daily basis, Ms. Sloan and Mr.
Lihyaoui were married on April 16, 2010, during Ms. Sloan’s first visit to Morocco.
[7]
In September 2011, Mr. Lihyaoui submitted an
application for a permanent resident visa as a member of the family class. That
application, which was sponsored by Ms. Sloan, was rejected after a visa
officer found that the marriage was not genuine and had been entered into
primarily for the purpose of acquiring a status or privilege under the IRPA.
[8]
The visa officer reached these conclusions after
identifying various concerns, including:
i.
The marriage proposal occurred over the
Internet and prior to the couple meeting in person.
ii.
Throughout his interview, Mr. Lihyaoui “gave pat
answers and behaved arrogantly.”
iii.
The marriage was not celebrated, yet the
celebration of marriage is an important part of Moroccan culture.
iv.
There were no photos of the marriage.
v.
Mr. Lihyaoui described another woman, whose
picture was in the file before the visa officer and who he identified as being
a 40 year old friend of his father, as being an “old woman.” The visa officer
considered this to reflect the perception of male-female relations in the Moroccan
cultural context.
vi.
The couple had only seen each other during the
single trip that Ms. Sloan took to Morocco in April 2011, and there was scant
evidence of contact between them.
vii.
Mr. Lihyaoui appeared to have a superficial
knowledge of Ms. Sloan’s life and was not able to explain what unites them,
despite their many differences, including the significant differences in their
age and cultural backgrounds.
viii.
The couple has no common vision of important
aspects of their future together, including the possibility of having children
and where they will live.
ix.
Mr. Lihyaoui has a fairly precarious situation
in Morocco and his life plan appears to be founded more on looking for a future
in Canada, rather than sharing his life with Ms. Sloan.
II.
Relevant legislation
[9]
Section 4 of the Immigration and Refugee
Protection Regulations, SOR/2002-2007 [Regulations] provides that a foreign national shall not be considered
to be a spouse for the purposes of the Regulations if the marriage in question
(i) was entered into primarily for the purpose of acquiring any status or
privilege under the IRPA, or (ii) is not genuine.
III. The
Decision under Review
[10]
In the course of reaching its decision, the IAD
stated that it was satisfied that Ms. Sloan’s intention to have a genuine marriage
with Mr. Lihyaoui is not in doubt. This finding is not contested by the
Minister.
[11]
The determinative issue for the IAD was
identified as being whether Mr. Lihyaoui’s intentions reflected a desire to
have a genuine relationship with Ms. Sloan or a desire to marry her primarily
for the purpose of immigration.
[12]
After recognizing the possibility that Mr.
Lihyaoui may have sought out and taken advantage of Ms. Sloan for immigration
purposes, the IAD found, on a balance of possibilities, that Ms. Sloan had met
her onus of demonstrating that her relationship with Mr. Lihyaoui is genuine
and not primarily for the purpose of immigration.
[13]
Among other things, the IAD stated that this
conclusion emerged “from a thorough evaluation of the available evidence,
relying in particular on [Ms. Sloan’s] insistence that theirs is a committed
relationship supported by evidence of ongoing communication between them.”
IV. Standard
of Review
[14]
It is common ground between the parties that
the IAD’s decision is reviewable on a standard of reasonableness.
[15]
In determining whether a decision is reasonable,
the general test is 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,
at para 47 [Dunsmuir]). In this regard, reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process (Dunsmuir, above). If there exists a
reasonable basis upon which the decision maker could have decided as it did,
the court must not interfere (Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR
654, at para 53 [Alberta Teachers]). In other words, the IAD’s decision
will stand where it can be “rationally supported” (Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 SCR
364, at para 47 [Halifax]).
V. Analysis
[16]
The Minister submitted that the IAD erred by
failing to address the following concerns with respect to the evidence that it
had identified in its written submissions to the IAD:
i.
Inconsistent testimony provided by Ms. Sloan and
Mr. Lihyaoui regarding the date upon which they agreed to marry.
ii.
Discrepancies in their testimony regarding the
date upon which they intended to get married.
iii.
Mr. Lihyaoui’s failure to identify three of Ms.
Sloan’s siblings when asked about her family members.
iv.
Mr. Lihyaoui’s inability to state when Ms. Sloan
converted to the Muslim faith.
v.
Discrepancies in the couple’s testimony
regarding a dowry that was allegedly paid to her.
vi.
Inconsistencies in their testimony regarding
where they intended to live.
vii.
The fact that the couple had not commingled
their finances.
viii.
Photographs of a purported marriage ceremony
taken during Ms. Sloan’s second visit to Morocco may have been taken primarily
for immigration purposes.
[17]
The Minister maintained that the foregoing
evidence should have been addressed by the IAD because it was “in marked
contradiction” to the IAD’s conclusion.
[18]
I disagree.
[19]
Although Ms. Sloan initially stated that Mr.
Lihyaoui proposed to her “around February 10, 2009,” she quickly corrected
herself during the IAD’s hearing and identified the date as having been February
10, 2010. She also clarified that the couple had simply been “kidding around”
when they initially discussed marriage in August 2009.
[20]
With respect to the date upon which the couple
intended to get married, Ms. Sloan testified that she had hoped to be able to
get married during her first visit to Morocco in April 2011, whereas Mr.
Lihyaoui stated that they had not planned to get married at that time, but that
they did so because Ms. Sloan “was really smart and she – she brought some
papers that helped us to get married.”
[21]
With respect to Mr. Lihyaoui’s failure to
mention three of Ms. Sloan’s five siblings, Ms. Sloan explained that the
question appeared to have been focused on her family in Abbotsford, and that
the siblings who were not identified by Mr. Lihyaoui live elsewhere. It is readily
apparent from the transcript at page 522 of the Certified Tribunal Record that
the question posed before the IAD was indeed focused on Ms. Sloan’s family in
Abbotsford.
[22]
Regarding Mr. Lihyaoui’s inability to identify
the date upon which Ms. Sloan converted to the Muslim faith, Ms. Sloan
testified that she had been studying the faith on the Internet and that the
couple would be going to the mosque once she was physically united with Mr. Lihyaoui.
[23]
Regarding the dowry that allegedly was paid to
her, Ms. Sloan initially stated that she believed it was 1,000 dirham and that
it would be payable to her if the couple ever got divorced. She then
immediately added that she didn’t really know what it was about and thought
that it may have been paid for the wedding. In her submissions on this Application,
she stated that she made a mistake when she testified that the dowry was 1,000
dirham, and that she had intended to say $1,000 Canadian dollars, which is
approximately equivalent to 7,000 dirham, the amount indicated in the
documentation that was before the IAD.
[24]
With respect to where the parties intended to
live, Mr. Lihyaoui stated that the couple would live wherever it was safe and
quiet, and that after the adverse reaction that Ms. Sloan had to the heat in Morocco, he was concerned about whether she could live there. He added that he was also
prepared to pursue his studies at a school in Quebec that was twinned with the
school in Morocco where he studied. For her part, Ms. Sloan testified that she
and Mr. Lihyaoui had discussed living together in Morocco, but that she
preferred to settle down with him in Canada because she could not take the hot
climate in Morocco and her family is located in Canada. She added that she
would need a knee replacement at some point in the future and then would have
difficulty with the toilets in Morocco.
[25]
With respect to the wedding photographs that
were submitted to the IAD, Ms. Sloan stated that her formal marriage, during
her first visit to Morocco, was a small ceremony and that she did not think to
take any pictures with her smart phone because of everything else that she was
required to do that day. She added that, had she been aware that she needed
such photos for the purposes of Mr. Lihyaoui’s application for permanent
residence, she would have taken them. When she returned to Morocco the second time, she made sure to take photographs of the celebrations that took place.
[26]
Based on the explanations provided by Ms. Sloan
and Mr. Lihyaoui, it was not unreasonable for the IAD to have failed to
specifically refer to the above-mentioned “inconsistencies” and discrepancies.
[27]
As to the IAD’s failure to discuss the fact that
the couple did not commingle their finances, I am satisfied that this was not
unreasonable. The Minister did not tender any evidence to support the inference
that most couples commingle their finances.
[28]
In reaching its conclusion that the couple’s
marriage was genuine and was not entered into primarily for the purpose of immigration,
the IAD explicitly engaged with some of the more troublesome aspects of the
evidentiary record. After recognizing the possibility that Mr. Lihyaoui had
sought out and taken advantage of Ms. Sloan to facilitate his immigration to Canada, the IAD characterized the question of the genuineness of their relationship as
being a “difficult” one to answer. Then, after stating its conclusions, it
observed that “some doubts remain,” in part because Mr. Lihyaoui is “a
relatively sophisticated user of social networking media, who approached the
appellant online, followed by a relatively quick romance and some cursory
marriage events.” It also referred, in a general way, to the “discrepancy in
the evidence” regarding the couple’s plans for children and their cultural and
age differences. However, taking into consideration the totality of the
evidence, and the “balance of probabilities” test, it concluded that the
marriage was not entered into primarily for the purpose of acquiring any status
or privilege under the Act, and was genuine.
[29]
In reaching these conclusions, the IAD made
three findings that had a bearing on them from Mr. Lihyaoui’s perspective.
First, it observed that both he and Ms. Sloan had testified that they had
resolved their cultural and age differences to their own satisfaction. Second,
it stated that the supporting documentation reflected ongoing communication
between the couple. Third, it observed that Mr. Lihyaoui had a level of
knowledge of Ms. Sloan that was reasonably commensurate with what would be
expected between a married couple in their circumstances.
[30]
In my view, the second and third of these
findings, taken alone, could not have provided a reasonable basis or rational
support for the conclusions reached by the IAD. However, taken together with
the first finding, and the IAD’s engagement with some of the more troublesome
aspects of the evidentiary record, I am satisfied that the IAD’s conclusions
fell within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law. They were also reasonably justified, transparent
and intelligible, as they were rationally supported (Halifax, above). In
brief, there exists a reasonable basis upon which the decision maker could have
decided as it did (Alberta Teachers, above), notwithstanding the fact
that the same could be said, indeed with greater force, for the contrary
conclusions reached by the visa officer.
[31]
I would simply add in passing that the IAD was
not required to consider and comment upon every issue raised by the Minister in
his submissions (Construction Labour Relations v Driver Iron Inc, 2012
SCC 65, [2012] 3 S.C.R. 405, at para 3).
[32]
Accordingly, this Application will be dismissed.
[33]
At the end of the hearing, the parties declined
to propose a question for certification. I agree that no such question arises
on the particular facts of this case.
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