Docket:
IMM-11015-12
Citation:
2013 FC 1182
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 25, 2013
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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Laurent VILLENEUVE
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
Mr. Laurent Villeneuve, the respondent,
was successful before the Immigration Appeal Division of the Immigration and
Refugee Board (the panel) in his appeal under subsection 63(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) from the refusal of an
application for permanent residence in Canada as a member of the family class.
This application was made by his conjugal partner, an Algerian citizen.
[2]
The Minister of Citizenship and Immigration has
applied for judicial review of this decision by the panel, dated
October 12, 2012, under subsection 72(1) of the Act.
Facts
[3]
The facts of this case are not in dispute.
[4]
The respondent is a Canadian citizen. He was
married for about twenty years; he has been divorced since 1992. He is seeking
to sponsor his conjugal partner, a 27‑year‑old Algerian who lives
in his native country.
[5]
The applicant and his partner are of different
religions and both practise their religions. The partner’s mother tongue is
Arabic, but he also communicates in French. They met through an Internet dating
site when the respondent was 62, and the man who would become his partner was 20.
The original contact occurred in 2006.
[6]
The long distance contacts continued so well
that the respondent travelled to Algeria in April 2007. During that visit, an
application for a temporary visa to visit Canada was submitted. However, it was
not successful.
[7]
Since then, the respondent has gone to Algeria
once a year for a few weeks at a time.
[8]
During the years 2006 and 2007, the respondent was
already in a relationship with another man, of Libyan origin, whom he had
sponsored to Canada. The evidence shows that this relationship ended in December
2007. Nonetheless, the respondent continued to house this common‑law
partner until November 2009.
[9]
It was on November 24, 2009, that an
application for a permanent visa was submitted for the new partner. It was
refused on May 17, 2010. The respondent appealed the refusal to the
Immigration Appeal Division under section 63 of the Act, and a decision
was issued on October 12, 2012.
[10]
The applicant, the Minister of Citizenship and
Immigration, had the burden of demonstrating that the decision under appeal was
not reasonable. For the following reasons, the Minister did not demonstrate
that the panel’s decision was not reasonable in that the conclusion falls outside
of the possible acceptable outcomes.
Issue
[11]
The application for permanent residence in Canada
was refused. The visa officer was of the opinion that the relationship between the
respondent and his partner should be excluded because the conditions in
section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227
(the Regulations) were met in that the relationship was not genuine or was
entered into primarily for the purpose of acquiring a status or privilege under
the Act:
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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.
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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.
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The purpose of the
appeal before the panel was this sole question. In this case, was the
relationship between the conjugal partners mala fide? The visa officer
found that the relationship was mala fide, a finding that the panel overturned.
Impugned
decision
[12]
The issue for the Court to determine is the same
as the one that was before the panel and the visa officer. The latter was of
the view that the relationship was not genuine or that it was entered into
primarily for the purpose of acquiring a status or privilege under the Act. On
appeal, the panel disagreed.
[13]
But while the respondent’s burden on appeal
before the panel was to convince the panel on a balance of probabilities, which
he obviously did, the Minister’s burden in this Court is heavier because the
Court must show deference to the panel.
[14]
In a detailed decision of some 115 paragraphs, the
panel carefully examined the visa officer’s reasons for his refusal. The panel conducted
a two‑step review. First, it discussed whether the relationship was
genuine. Then, the panel considered whether the relationship, which was
genuine, was a conjugal relationship with the result that the two men were
conjugal partners.
[15]
The panel extensively examined the case
presented to it. The evidence was analyzed, and the findings were articulated.
In my opinion, it is not necessary to review everything because the applicant
failed to discharge his burden. Only two issues were raised, and I will examine
them in turn, referring if necessary to the pertinent facts.
[16]
The two issues are:
1. Did
the panel err in considering that the conjugal partnership could become bona
fide after the initial reason of one of the partners was to acquire a
status or privilege under the Act?
2. Did
the relationship between the respondent and his partner have the features of a
conjugal partner relationship?
Standard of
review
[17]
Surprisingly, the applicant did not address the
appropriate standard of review, arguing essentially that the decision should be
overturned because of the two alleged errors. Obviously, the respondent submits
that the standard of review is reasonableness.
[18]
It may be that the applicant believes that a so‑called
error of law, if it has been made, means that the judicial review will be
successful. That is not the case.
[19]
Not all questions of law are judicially reviewed
on a correctness standard. Already, in Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190, [Dunsmuir], the Supreme Court stated that a
question of law that is not of “central importance to the legal system as a
whole and outside the . . . specialized area of expertise” of the
administrative tribunal (as stated in Toronto (City) v CUPE, Local 79,
2003 SCC 63, [2003] 3 S.C.R. 77 and repeated by the Court in Dunsmuir at
paragraphs 55 and 60) is reviewed on the basis of reasonableness.
Reasonableness is described as follows at paragraph 47 of Dunsmuir:
[47] Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting
a review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[20]
Thus, to the extent that a question of law falls
into this category, there will be more than one correct interpretation. In Information
and Privacy Commissioner v Alberta Teachers’ Association, 2011 SCC 61,
[2011] 3 S.C.R. 654, the Court explained further and even established a
presumption in this regard:
[34] The
direction that the category of true questions of jurisdiction should be
interpreted narrowly takes on particular importance when the tribunal is
interpreting its home statute. In one sense, anything a tribunal does that
involves the interpretation of its home statute involves the determination of
whether it has the authority or jurisdiction to do what is being challenged on
judicial review. However, since Dunsmuir, this Court has departed from
that definition of jurisdiction. Indeed, in view of recent jurisprudence,
it may be that the time has come to reconsider whether, for purposes of
judicial review, the category of true questions of jurisdiction exists and is
necessary to identifying the appropriate standard of review. However, in
the absence of argument on the point in this case, it is sufficient in these
reasons to say that, unless the situation is exceptional, and we have not seen
such a situation since Dunsmuir, the interpretation by the tribunal of
“its own statute or statutes closely connected to its function, with which it
will have particular familiarity” should be presumed to be a question of
statutory interpretation subject to deference on judicial review.
Simply arguing
that there was an error is not sufficient. Even if the review Court would have
come to a different conclusion on a question of law, that does not mean that
the decision should be overturned. The panel is entitled to deference even on
questions of law. If the decision is justified, transparent and intelligible,
it will have the elements of reasonableness, and it will be upheld to the extent
that it falls within a range of possible, acceptable outcomes. It is not
because the Court would have come to another conclusion that it is authorized,
in law, to intervene.
[21]
In this case, the panel had to decide whether,
for immigration purposes, the respondent and his partner were conjugal
partners. To do so, the panel had to apply a provision of the Immigration
and Refugee Protection Regulations that it was familiar with. Specifically,
the panel had to determine the time when the relationship should be considered
for immigration purposes. This is a question of law. In my view, the
presumption, in the absence of an argument to the contrary, should apply. The
reasonableness standard will therefore be applied to this case. With respect to
applying the law to the facts of the case, i.e. whether the relationship is
such that it constitutes a relationship between conjugal partners other than
for the purpose of entering into Canada, these are questions of mixed fact and
law that call for an assessment under the reasonableness standard.
Analysis
[22]
At the end of its analysis, the panel found that
the respondent and his partner were conjugal partners and that the relationship
was genuine and was not entered into primarily for immigration purposes.
[23]
The Minister makes two complaints about the
panel’s decision. If I understand the first complaint, the Minister wants the
analysis under section 4 of the Regulations to start and stop when the
relationship is beginning to emerge. Thus, mala fides would have been established
because the claimant told the respondent of his love barely two weeks after
they began corresponding by Internet. According to the Minister, that proves
that the relationship was entered into for the purpose of acquiring a status or
privilege under the Act. The memorandum speaks in terms of thus [translation] “concealing the [respondent’s]
initial motivation” (paragraph 25, Applicant’s Memorandum). The Minister submits
that the initial intention cannot change over time. Thus, he argues, ultimately,
that the initial intention is proof of everything and that it therefore becomes
the intention that matters for the purposes of section 4 of the
Regulations.
[24]
The other complaint about the panel’s decision
was that a conjugal relationship had not been established. Indeed, the Minister
scarcely elaborated on the subject. He submits that the relationship must be
more than just serious because it must have the features of a marriage.
[25]
In my opinion, the second complaint can be
disposed of quickly. The applicant had the burden of showing that the panel’s
analysis and findings were not reasonable. This burden was not discharged. It
is certainly possible to have different opinions on the weight to give to the evidence
in the record. It could even be possible to draw a different conclusion from
the evidence. But that does not make a decision unreasonable.
[26]
The panel conducted a careful analysis of the
factors that the jurisprudence (M. v H., [1999] 2 S.C.R. 3) has advanced to
determine whether a conjugal relationship exists: shared shelter, sexual and
personal behaviour, services, social activities, economic support and children,
as well as the societal perception of the couple. As Madam Justice Tremblay‑Lamer
said in Leroux v Minister of Citizenship and Immigration, 2007 FC 403, the
weight to attach to these factors may vary, but ultimately the relationship
must have “a sufficient number of features of a marriage to show that it is
more than just a means of entering Canada as a member of the family class” (paragraph
23). In addition, the panel examined other pertinent factors. The panel related
the evidence to all these factors and concluded that the relationship, although
unorthodox, was a conjugal partnership, in accordance with the jurisprudence, and
that it was genuine. The panel’s analysis is, in my opinion, persuasive. The
Minister was unable to show how the conclusion was not reasonable in light of Dunsmuir,
above.
[27]
The other complaint is also not founded. The
applicant made much of the amendment to section 4 of the Regulations and
concluded that the conjugal partners’ intention must be their intention at the
beginning of the relationship. The applicant insists that the decision in Donkor
v Minister of Citizenship and Immigration, 2006 FC 1089 [Donkor] applies
a contrario, so to speak, because the change to the Regulations was
intended to prevent a relationship that was originally for immigration purposes
from improving and satisfying section 4.
[28]
In my view, the Donkor decision must be
used with great caution. That case does not deal with the existence, at some
point, of a relationship between conjugal partners but with a common‑law
relationship to which the situation of a marriage of convenience was applied (Horbas
v Canada (M.E.I.), [1985] 2 FC 359 [Horbas]). The Court found that
the drafting of section 4 at that time permits a marriage to become
genuine ex post facto, that is, after it is celebrated, which means that
a marriage that was for immigration purposes at the outset can meet the
conditions of section 4 of the Regulations. Indeed, the Minister argues that
the amendments would now prevent a marriage contracted for immigration purposes
from becoming valid.
[29]
With respect, that is not the issue. Based on Donkor,
Horbas and the amendments to section 4, the applicant is seeking to
extend the scope of section 4 to the very beginning of a relationship,
before it can even become a conjugal relationship, a common‑law
relationship or a marriage. The applicant wants the declaration of love that some
could consider hasty, to the extent that it would be understood as revealing dishonourable
intentions, made shortly after the initial contact, to be sufficient to vitiate
the relationship forever. This would be as if, by analogy with Horbas, a
genuine marriage without any intention to acquire an immigration status or
privilege was vitiated because one of the partners, well before the marriage,
could have had an intention in regards to immigration. Rather, I believe that Donkor
and Horbas may be used to argue that once a marriage has been
entered into or a common‑law relationship established for immigration
purposes, it should not be possible to change its nature under section 4
of the Regulations. But again the common‑law relationship must have been
established or the marriage entered into on that basis.
[30]
In our case, the panel concluded that the
conjugal partnership only began much later than the declaration of love. This
is a conclusion that the panel could draw from the evidence before it. If the
conjugal partnership had been for immigration purposes or was not genuine at
the time it was established, one could understand the Minister’s argument that
the nature of the relationship cannot change. But that is not the situation in
our case.
[31]
Moreover, it seems to me that the very wording
of section 4 of the Regulations does not support the interpretation that
the applicant wants to give it solely on the basis that the change to the
wording was directed to the type of situation the Court is faced with.
Essentially, the applicant submits that, in making section 4 disjunctive
and because of the difference in verb tenses in paragraphs 4(1)(a) and
4(1)(b), the drafters of the Regulations ensured that the passage of
time could not make a relationship genuine. This shows little regard for the
wording of the Regulations.
[32]
In both its French and English versions, the
Regulations require that the relationship in question, whether it is a
marriage, common‑law partnership or conjugal partnership, be in place, in
English “was entered into primarily”. The panel was entitled to consider that
the important time for determining the genuineness of the relationship was when
the relationship came into being. That is when the intention must be examined
to see whether the relationship was entered into primarily to acquire a status
or privilege under the Act. In my view, that is a reasonable interpretation
that the panel could give to regulations that it applies regularly and in which
it has expertise.
[33]
I would not find that the claimant’s statements,
barely two weeks after the initial contact, are not relevant to the decision as
to whether the conjugal partnership was primarily for immigration purposes.
Rather, contrary to what the applicant appears to be arguing, they is not
conclusive.
[34]
The panel properly considered this unexpected
declaration of love. It was satisfied that the relationship had evolved to
become a relationship that remained genuine and that, at the time the conjugal
partnership came into being, was not entered into for immigration purposes
(paragraphs 45 and 95 of the Reasons for Decision). Such a quick declaration
could have aroused suspicions: one may think that an explanation would be
expected. The panel was alert, and it examined the evidence to satisfy itself
of the quality of the relationship when it came into being. There is no reason
for the Court to intervene. The panel’s decision had all the features of
reasonableness.
[35]
I concur with counsel for the parties that there
is no question for certification arising.
JUDGMENT
THE COURT ORDERS
AND ADJUDGES that the
Minister of Citizenship and Immigration’s application for judicial review of
the decision by the Immigration Appeal Division of the Immigration and Refugee
Board dated October 12, 2012, is dismissed.
“Yvan Roy”
Certified true
translation
Mary Jo Egan, LLB
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