Date: 20160711
Docket: IMM-2317-15
Citation: 2016 FC 762
St. John’s, Newfoundland and Labrador, July 11, 2016
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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LANCE DONALD
HAYTER
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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
[1]
These Reasons are issued pursuant to the
Judgment issued on June 10, 2016.
[2]
Mr. Lance Donald Hayter (the “Applicant”) seeks
judicial review of a decision of the Immigration and Refugee Board, Immigration
Appeal Division (the “IAD”), dated April 28, 2015. In that decision, the
IAD dismissed the Applicant’s appeal from the decision of an Immigration
Officer (the “Officer”) refusing the sponsored application for permanent
residence of his spouse. The Officer concluded that the marriage between the
Applicant and his spouse, Qing Li, was not genuine within the meaning of
subsection 4(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the “Regulations”) and was entered into for the purpose of
acquiring status under the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”).
[3]
The Applicant is a Canadian citizen. His wife is
a citizen of China.
[4]
In his evidence before the IAD, the Applicant
testified that he met his wife through a mutual friend in August 2011 and began
a telephone and internet relationship in October 2011. He first travelled to
China to meet his wife in September 2012 and they married ten days later.
[5]
The Applicant submitted a spousal sponsorship
application on October 10, 2013.
[6]
In October 2014, the Applicant travelled again
to China to visit his wife.
[7]
By letter dated April 7, 2014, the application
for permanent residence of the Applicant’s wife was refused on the basis that,
pursuant to subsection 4(1) of the Regulations, the Applicant’s wife was not a
spouse because the marriage was not genuine and was entered into for the
purpose of acquiring status or privilege under the Act.
[8]
The hearing before the IAD was held on April 28,
2015. In its decision, the IAD concluded that, while there was significant
evidence of the genuineness of the marriage, it was entered into primarily for
the purpose of acquiring status in Canada.
[9]
The IAD found that the Applicant’s wife’s
immigration history showed a desire to reside in Canada “by hook or by crook”. Her history included a failure
to leave Canada in 2001 upon the expiry of a visitor’s visa. The wife had come
to Canada to visit her daughter who was then studying at a Canadian university.
The history also included an earlier sponsored permanent residence application that
had been made and then withdrawn by another sponsor.
[10]
The IAD found the Applicant’s wife’s testimony
about a subsequent breach in relationship with her daughter lacked credibility.
It also noted several inconsistencies in the evidence of both the Applicant and
his wife about the development of their relationship.
[11]
The IAD said that there was significant evidence
of the genuineness of the marriage; however, that evidence could not overcome
the evidence that the Applicant’s wife entered into the marriage for the primary
purpose of acquiring status in Canada.
[12]
The Applicant submits that the Board failed to
consider the genuineness of the marriage when it determined his wife’s purpose
for entering into the marriage. He contends that there is a presumption
that if the marriage is genuine it would weigh significantly in favour of
finding that the marriage was not entered into for the purpose of obtaining status;
see the decisions in Sharma v. Canada (Minister of Citizenship and
Immigration), 2009 FC 1131 and Kaur v. Canada (Minister of Citizenship
and Immigration), 2010 FC 417.
[13]
The Applicant argues that the IAD failed to
consider the degree of mutual commitment and support between the spouses and
their expressed intentions before the marriage.
[14]
The Applicant argues that the Board
misinterpreted his wife’s statement that she was looking for “a Canada man”. The record clearly shows that “Canada man”, “Canada
boyfriend” and “little Asian flower” are
pet names and are not indicative of her true motives for entering into the
marriage.
[15]
Finally, the Applicant submits that the IAD
ignored contrary evidence, specifically the five year gap between his wife’s
last trip to Canada and the presentation of this application for permanent
residence.
[16]
The Minister of Citizenship and Immigration (the
“Respondent”) submits that the IAD’s decision was reasonable in light of the
Applicant’s wife’s immigration history and the inconsistencies in the testimony
regarding their relationship.
[17]
The Respondent also argues the IAD properly
considered the issues of whether the Applicant’s marriage was genuine and
whether it was entered into for the purpose of gaining status as separate
issues as required by subsection 4(1) of the Regulations.
[18]
The finding that the wife is not a spouse,
because she is not a member of the family class, is a question of mixed fact
and law, and reviewable on the standard of reasonableness; see the decision in Khosa
v. Canada (Minister of Citizenship and Immigration), 1 S.C.R. 339 at paras.
52-62.
[19]
According to the decision in Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190 at para. 47, the standard of reasonableness
requires that the reasons enable the reviewing Court to understand why the
tribunal made its decision, and permit it to determine if the conclusion is
within the range of possible, acceptable outcomes.
[20]
In my opinion, the decision does not meet the
standard of reasonableness as discussed above. The finding of the IAD, that the
marriage was entered into primarily for the purpose of acquiring a status or
privilege under the Act, is not reasonable in light of the evidence about the
Applicant’s relationship with his wife before they married. This evidence
includes the hundreds of emails between the Applicant and his wife, and the
records of frequent communication via Skype.
[21]
As well, I find that the IAD unreasonably
concluded that the use of the pet names by the Applicant and his wife in their
emails, for example “Canada Man”, meant that the
wife was seeking to acquire status in Canada.
[22]
The IAD also failed to explain why the evidence
of the genuineness of the relationship, which predated the Applicant’s
marriage, did not establish that the marriage was not entered into primarily
for the purpose of acquiring status in Canada.
[23]
In the result, this application for judicial review
is allowed and the matter is remitted to a differently constituted panel for
re-determination. There is no question for certification arising.
“E. Heneghan”
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