Ottawa, Ontario, January 22, 2007
Present: The Honourable Mr. Justice Beaudry
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision dated April 12, 2006, by the Immigration Appeal Division of the Immigration and Refugee Board (the panel), dismissing the applicant’s appeal of the denial of the sponsored permanent residence visa application of the applicant’s spouse (the sponsorship applicant).
I. Issue
[2] Did the panel err in finding that the marriage between the applicant and the sponsorship applicant is not genuine and was entered into primarily for the purpose of acquiring a status or privilege within the meaning of section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations)?
[3] For the following reasons, the response to this question is in the affirmative, and this application for judicial review is allowed.
II. Factual Background
[4] The applicant was born in Canada on March 8, 1954. He is a Canadian citizen and has been a municipal officer in the city of Laval since 1975. He was single and childless in September 2000 when his Spanish teacher introduced him to the sponsorship applicant to help him improve his Spanish.
[5] The sponsorship applicant is a divorced Mexican woman who began living with her daughter in Montréal in January 2000. The sponsorship applicant claimed refugee status on February 10, 2000, and a removal order was issued against her on March 4, 2000. The sponsorship applicant remained in Canada while awaiting the response to her refugee claim, which was refused on September 13, 2000. On October 19, 2000, she filed an application for admission in the Post-Determination Refugee Claimants in Canada Class (PDRCC). Her application for judicial review of the negative decision regarding her refugee claim was dismissed on March 5, 2001. Having exhausted all avenues of appeal, the sponsorship applicant was forced to leave the country and returned to Mexico on November 5, 2003, following a removal order dated October 14, 2003.
[6] In the meantime, what was intended to be a simple mutual exchange to improve their language skills developed into a love affair. Although they did not live together during this entire time, the sponsorship applicant spent her weekends at the applicant’s home in Laval, and they were recognized as a couple by their close friends and their respective families.
[7] The applicant visited the sponsorship applicant in Mexico from November 19, 2003, to January 1, 2004. They were married in a civil ceremony on December 18, 2003. The applicant returned to Mexico in November 2004, and this time the couple were married in a religious ceremony in December 2004. The applicant supports his wife financially by sending her the equivalent of three hundred dollars a month. He is in touch with her every day by telephone and is considered a member of his wife’s family. Finally, during one of his visits to Mexico (November 2005), he took care of his mother-in-law, who has leukemia, and donated blood and platelets to her.
[8] After the civil marriage, the applicant returned to Canada alone and on January 8, 2004, he submitted an application to sponsor his wife, who had applied for permanent resident status in the Family Class. Both applications were refused on June 10, 2004. The visa officer was not satisfied that the marriage was genuine and determined that it was entered into primarily for the purpose of acquiring a status or privilege within the meaning of the Regulations. The application was also refused because the sponsorship applicant is inadmissible to Canada and must obtain authorization from the Minister to return here, since the removal order was executed against her on March 4, 2000.
[9] On June 26, 2004, the applicant appealed the rejection of his spouse’s application, but the appeal was dismissed on April 12, 2006. That decision is the basis of this application for judicial review.
III. Impugned Decision
[10] After reviewing all the evidence, both documentary and testimonial, the panel concluded that the applicant had not established on a balance of probabilities that the marriage was genuine; the panel found that his wife had married him primarily to acquire a status in Canada.
IV. Relevant Legislation
[11] Section 4 of the Regulations reads as follows:
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4. For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act. |
4. Pour l’application du présent règlement, l’étranger n’est pas considéré comme étant l’époux, le conjoint de fait, le partenaire conjugal ou l’enfant adoptif d’une personne si le mariage, la relation des conjoints de fait ou des partenaires conjugaux ou l’adoption n’est pas authentique et vise principalement l’acquisition d’un statut ou d’un privilège aux termes de la Loi.
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V. Analysis
Standard of review
[12] On a number of occasions, this Court has dealt with the appropriate standard of review for decisions by the Immigration Appeal Division concerning applications to sponsor family members (Sanichara v. Canada (Minister of Citizenship and Immigration), 2005 FC 1015, [2005] F.C.J. No. 1272 (F.C.) (QL), at paragraph 11; Mohamed v. Canada (Minister of Citizenship and Immigration), 2006 FC 696, [2006] F.C.J. No. 881 (F.C.) (QL), at paragraphs 34 and 39; Gavino v. Canada (Minister of Citizenship and Immigration), 2006 FC 308, [2006] F.C.J. No. 385 (F.C.) (QL); Deo v. Canada (Minister of Citizenship and Immigration), 2004 FC 1339, [2004] F.C.J. No. 1612 (F.C.) (QL)).
[13] In Khangura v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 815 (F.C.T.D.) (QL), my colleague Mr. Justice John A. O’Keefe stated at paragraph 21:
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The appropriate standard of review of the Appeal Division’s decision is one of correctness when it is dealing with a question of law and the standard of review when dealing with questions of mixed fact and law is reasonableness simpliciter. Findings of fact made by the Appeal Division should not be overturned unless they are clearly wrong.
[14] Determining whether the marriage is genuine is clearly a question of mixed fact and law because it involves applying the facts to the requirements of the Regulations. Therefore, the appropriate standard of review is reasonableness simpliciter (Mohamed, above, paragraph 39):
The officer’s finding to the effect that the applicant had not filed sufficient evidence establishing that her relationship with her husband was genuine is a mixed question of fact and law. The appropriate standard for this decision in the context of this judicial review is that of an error of unreasonableness simpliciter (Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817).
[15] Accordingly, I must review both the totality of the evidence and the panel’s reasons to ensure that the decision is based on an analysis that could reasonably lead to the conclusion reached by the panel. In other words, the decision must be reasonable.
Did the panel err in finding that the marriage between the applicant and the sponsorship applicant is not genuine and was entered into primarily for the purpose of acquiring a status or privilege within the meaning of section 4 of the Regulations?
[16] The applicant submits that the panel erred regarding the genuineness of the marriage because the essential elements of the testimony given by the applicant and his wife were consistent. The applicant points out that it is not improbable that they provided different explanations and that their responses were not contradictory but cumulative and complementary.
[17] The respondent dismisses this argument and suggests that the panel’s adverse findings as to why the couple had not cohabited were correct.
[18] There is also disagreement as to when the sponsorship applicant informed the applicant that her refugee claim had been refused. The applicant testified that she told him in 2001 or 2002, while the sponsorship applicant states that it was four or five weeks after they first met. The panel drew a negative inference and found that if the relationship were genuine, the sponsorship applicant would have told the applicant earlier.
[19] The applicant retorts that the panel ignored evidence and disregarded his testimony on this point because he stated at the hearing that the sponsorship applicant had informed him of her status and the grounds for her refugee claim. He maintains that he was completely aware of his spouse’s precarious situation and of all the steps she had taken to address it. However, he discovered that her refugee claim had been refused after their marriage when he was completing the sponsorship documents.
[20] I have carefully reviewed the transcript and, in my view, the applicant’s explanations are reasonable and trustworthy. I accept that the applicant did not learn that his spouse’s refugee claim had been refused until after their marriage. I also accept that the applicant was aware of the grounds for her refugee claim.
[21] The applicant also criticizes the panel for drawing adverse conclusions from the multiple steps that the sponsorship applicant took to stay in Canada. The respondent submits that the panel did not make a negative finding based on the fact that the sponsorship applicant had used the various remedies available to her under the Act. On the contrary, the respondent contends that the panel set out the facts that called into question the genuineness of the marriage at paragraph 15 of the reasons. This passage reads as follows:
In the past, the applicant tried to obtain a status in Canada. According to the refusal letter of the immigration officer, the applicant stated that she claimed refugee status while visiting her sister, since she became short of funds and wanted to remain in Canada. The applicant has a sister in Canada, who approached the appellant’s Spanish instructor and asked if he knew of anyone who could teach French to the applicant. The applicant met the appellant during the same month in which her refugee claim was refused. Subsequent to the refusal, the applicant did not leave Canada when required, since the departure order issued against her became a deportation order. For these reasons, the evidence suggests that the marriage was entered into for the purpose of securing a status for the applicant in Canada.
[22] The sponsorship applicant had the right to undertake proceedings to challenge the negative decision that had been made about her. The sponsorship applicant left the country on the date set out in the removal order, a fact that the panel seems to have disregarded.
[23] The panel did, however, acknowledge that the applicant was credible and made the following observations at paragraph 16:
It is important to mention that the appellant had a good knowledge of the applicant’s family in Canada, Mexico, and abroad. From her answers in a questionnaire contained in the appeal record, the applicant provided details of the appellant’s employment, salary, and prior common-law relationship. There was evidence of financial support in the form of money transfers. In his addendum to the sponsor questionnaire, the applicant lists a series of activities and outings shared by the appellant and the applicant while in Canada. This evidence was unchallenged during the hearing. While these are positive factors that have been considered by the panel, they are outweighed by the difficulties in the evidence.
[24] As the applicant points out, an appeal before the panel is a hearing de novo. As such, the panel must consider not only the immigration officer’s reasons but also the totality of the evidence adduced by the applicant to establish on a balance of probabilities that his spouse did not marry him primarily for the purpose of acquiring a status in Canada.
[25] To support his position that the marriage was genuine, the applicant filed a number of telephone bills, the videotape of both marriage ceremonies, and a letter acknowledging that the panel had received these items.
[26] Finally, the applicant also filed 75 photographs, including 36 of the marriage ceremonies. The panel did not refer to the videotape or the photographs of the couple, two important pieces of evidence in determining the genuineness of the marriage.
[27] The Court is of the view that important and relevant evidence was not mentioned or considered. The panel overlooked contradictory evidence when making its finding (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) (QL)).
[28] The parties did not submit a question for certification and there is none in the docket.
JUDGMENT
THE COURT ORDERS that:
1. This application for judicial review be allowed. The matter is returned to a differently constituted panel for reconsideration..
2. There is no question to be certified.
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2932-06
STYLE OF CAUSE: CLAUDE NADON and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 9, 2007
AND JUDGMENT BY: The Honourable Mr. Justice Beaudry
APPEARANCES:
Carole Fiore FOR THE APPLICANT
Isabelle Brochu FOR THE RESPONDENT
SOLICITORS OF RECORD:
Carole Fiore FOR THE APPLICANT
Montréal, Quebec
John Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec