Unusual and complex marriage case from the Philippines....The applicants should have obtained a legal opinion from a local lawyer dealing with the visa officer's question. It seems that they failed to do so. There is nothing to indicate that their counsel did so at the time of the hearing either.
Lacerona v. Canada (Minister of Citizenship and Immigration)
Jenalyn Lacerona, appellant, and
Minister of Citizenship and Immigration, respondent
[2010] I.A.D.D. No. 557
[2010] D.S.A.I. no 557
No. TA8-18193
Immigration and Refugee Board of Canada
Immigration Appeal Division
Toronto, Ontario
Panel: Pamila Ahlfeld
Heard: March 22, 2010.
Decision: March 29, 2010.
(39 paras.)
________________________________________
Sponsorship
Reasons for Decision
INTRODUCTION
1 Ms. Jenalyn LACERONA (the appellant) sponsored her husband, Eduardo De Leon Jr. (the applicant), to Canada. Her husband's application for permanent residence was refused at the Canadian High Commission in Manila, Philippines. The visa officer found that the appellant's marriage to the applicant was not valid and was not conducted according to Philippine law. As such, the visa officer found that the applicant was not, pursuant to section 117(1)(a) of the Immigration and Refugee Protection Regulations (the IRP Regulations), a member of the family class. The visa officer further considered the applicant's application under the common-law spouse and conjugal partner categories and found that the appellant and the applicant did not meet the requirements of a common-law or conjugal partner for the purposes of Canadian immigration law.
2 The appellant challenges the visa officer's decision both on the issues of legality of the marriage and the requirements of a common-law and/or conjugal relationship and asks that the appeal be allowed. The appellant contends that she did in fact apply for a marriage license and it was her belief that the minister who married her and the applicant had obtained a copy of it. Notwithstanding, it is the appellant's contention that she and the applicant were in a common-law and/or conjugal relationship and living together during the five years prior to their marriage and she and the applicant would qualify under section 34 of the Family Code of the Philippines and therefore there was no requirement to obtain a marriage license. In the alternative, the appellant requests that the panel allow the appeal under the category of common-law or conjugal partner.
3 The respondent maintains that the appellant's and applicant's marriage was not valid at the time of their application and as such, the applicant was not a member of the family class. The respondent further opposes the appellant's request to have the application considered under the conjugal partner or common-law category as that is not a category that the applicant applied under. In the alternative, counsel for the Minister contends that the appellant and the applicant were not in a common-law or conjugal relationship one year prior to the application for permanent residence. The respondent therefore opposes the appeal and asks that it be dismissed.
ISSUES
4 At issue in this case is whether the appellant's marriage to the applicant was a valid marriage in that a marriage license was not obtained or in the alternative, whether the marriage was valid pursuant to section 34 of the Family Code of the Philippines.
5 Also at issue is whether or not the panel should consider the applicant under the categories of common-law or conjugal partner given that the applicant did not make an application under that category.
6 Lastly, if the panel considers the applicant under the categories of common-law or conjugal partner, whether or not the applicant and the appellant would meet the requirements of common-law or conjugal partners.
DECISION
7 Having considered the evidence, I find that, on a balance of probabilities, the marriage between the appellant and applicant was not a valid marriage at the time of the applicant's application for permanent residence. However, considering that the visa officer made a determination on the merits of a common-law or conjugal relationship, that issue was open to the appellant at the hearing. On the issue of a common-law or conjugal relationship, I find that on a balance of probabilities, the appellant and applicant do not meet the requirements of a common-law or conjugal relationship as described in section 2 of the IRP Regulations and the applicant is therefore pursuant to section 117(1)(a) of the IRP Regulations, not a member of the family class.
8 Consequently, the appeal is dismissed.
BACKGROUND
9 The appellant is a 29-year old Canadian citizen, originally from the Philippines. The applicant is 30 years old. He was born in the Philippines and resides there now.
10 The appellant testified that she and the applicant were married in the Philippines on January 11, 2006. The appellant returned to Canada and submitted a sponsorship on behalf of the applicant in 2008.1
11 During the course of the processing, it came to the visa officer's attention through the Certificate of Marriage provided that the appellant and the applicant did not have a marriage license but were married under Article 34 of The Family Code of the Philippines.2 Article 34 provides:
• No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage.3
12 In a letter dated May 13, 2008 the visa officer requested that the applicant provide an explanation as to why he and the appellant were married under Article 34, the sponsor's written explanation as to why there was a delay in submitting the sponsorship and other documentary evidence supporting their relationship.4 The applicant responded to the visa officer stating that the minister who officiated over their marriage ceremony told them that they could marry without a license because they were a couple since high school and there were no legal impediments for either to marry.5 He stated that he could not provide receipts of them living together because they did not keep any and they stayed mostly at his mother's house where their expenses were free.
13 The appellant sent a letter to the visa officer explaining that she did not sponsor the appellant prior to 2007 because he was working under contract and then she became unemployed and was collecting Employment Insurance.6
14 On June 17, the visa officer refused the applicant's application for permanent residence.
ANALYSIS AND FINDINGS OF FACT
Validity
15 The appellant, the applicant and the appellant's friend testified at the hearing.
16 Section 117(1)(a) provides:
• Member
• 117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
• (a) the sponsor's spouse, common-law partner or conjugal partner;
• (a) Pursuant to section 2 of the IRP Regulations, marriage is defined as:
• "marriage", in respect of a marriage that took place outside Canada, means a marriage that is valid both under the laws of the jurisdiction where it took place and under Canadian law.
17 The appellant testified that she and the applicant have known each other since high school in 1992. She stated that they became boyfriend and girlfriend about six months later. She told the panel that she and the applicant had a sexual relationship from approximately 1999 and while she was in college, they lived together. She testified that not only had they lived together while she was at school, they also cohabited prior to her immigrating to Canada in 2001 when she and the appellant allegedly resided together at his parent's home. She told the panel that her parents were against the relationship so they did not know about this.
18 Although the applicant supported the testimony that he and the applicant were boyfriend and girlfriend in high school and they had a sexual relationship since the late 90's, he testified that the appellant only stayed at his parent's home on weekends. He further stated that sometimes they would stay together in a hotel.
19 The appellant testified that when she returned to the Philippines in December 2005, she and the applicant decided to get married in secret because her parents would not have agreed to the marriage. She stated that they went to register her marriage in Manila and she provided receipts at the hearing that she stated were for a marriage license.7 She further provided a Pre-Marriage Certificate dated January 9, 2006 and she testified that she and the applicant attended a family planning session as required.8
20 The appellant told the panel that she never received a copy of the marriage license. She stated that it was her understanding that the minister who officiated over the ceremony would have retrieved it. She stated that when she and the applicant went to get married at City Hall, they were advised that because they had been together since high school, the license was not a requirement. The appellant testified that neither she nor the applicant signed the affidavit that accompanied her marriage certificate which state that she and the applicant had lived together as husband and wife for five years prior to their date of marriage.9 She stated that she did not know who signed the affidavit. Although I am not making a finding in this regard, the panel cannot help but note that the signatures on the affidavit appear the same as the appellant's and applicant's signatures elsewhere in the file.10 The appellant in her testimony indicated to the panel that she and the applicant actually lived together prior to her immigrating to Canada yet the applicant stated it was only on weekends. I am not persuaded that that the appellant did not understand the significance of her answer and I find that she attempted to embellish her testimony by providing false information.
21 In a letter dated July 28, 2008, a lawyer from the Philippines wrote a letter to the Canadian Embassy on behalf of the appellant, indicating that the appellant and the applicant were never provided with an explanation as to the elements of the 5-year cohabitation exception required under the law; that they accepted the Minister's recommendation.11 In fact, the lawyer conceded that the appellant and the applicant had not been cohabiting for five years prior to their marriage. However, she stated that even if there is a defect or irregularity, the marriage cannot be declared as void from the beginning under the Family Code, Article 35.12
22 Article 35 provides:
• Art. 35. The following marriages shall be void from the beginning:
• 1) Those contracted by any party below eighteen years of age even with the consent of the parents or guardians;
• 2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;
• 3) Those solemnized without license, except those covered the preceding Chapter;
• 4) Those bigamous or polygamous marriages not falling under Article 41;
• 5) Those contracted thorough mistake of one contracting party as to the identity of the other; and
• 6) Those subsequent marriages that are void under Article 53.
23 I do not accept the appellant's lawyer's submission in this regard. Most obvious is the fact that the appellant and the applicant were married without a marriage license as per the Marriage Certificate.13 The requirements per Article 34 were that in order for them to be legally married under this provision, they had to have been living together for five years prior to their marriage. An affidavit attached to their Marriage Certificate indicated that they had resided as husband and wife five years prior to the date of the marriage ceremony. They have both acknowledged that this is untrue. Whether or not this misrepresentation was made by them or by someone else is insignificant. It does not change the fact that the appellant and the applicant did not comply with Article 34. The marriage registration bureau where the certificate was registered would have no reason to doubt an affidavit submitted with the marriage certificate and therefore the marriage was registered.14 That however does not protect them from the misrepresentation that was made to the marriage registry office and in my view on a balance of probabilities renders their marriage void. I find that on a balance of probabilities, the marriage, under the circumstances, would not be considered to be a legal marriage in Canada.
24 I also find it telling that the appellant did not attempt to secure the alleged marriage license that she testified she applied for. She stated that she did not think about it but considering that the validity of her marriage was the pivotal issue of this appeal, had things unfolded as the appellant stated, that she had applied for the license, it would seem reasonable that she would make attempts to provide support to those assertions. I therefore find on a balance of probabilities that the appellant's marriage to the applicant was not a valid marriage at the time of his application and he is not a member of the family class under the spouse definition.
Common Law and Conjugal Relationship
25 Another issue before me is whether or not I should make a determination regarding the appellant's alternative request, that if the marriage is found not to be valid that I assess it as a common law or conjugal relationship. It is Minister's counsel position that I should not do an assessment under the conjugal category in view of the fact that the applicant applied as a spouse and not as a conjugal partner.
26 Contrary to counsel for the Minister's argument, I adopt the reasoning of the panel in the Immigration Appeal Division case, Tabesh,15 where the panel found that it is incumbent on the visa officer to consider as well the conjugal or common-law categories for an applicant whose refusal is based on the formal validity of the marriage. The panel in Tabesh was of the opinion that "if a visa officer is allowed to make separate and narrow determinations within this one class of marital, conjugal and common-law partners, it may give rise to multiple refusals and appeal on essential the same facts (of the relationship).16 The panel went on to state that both the appellant and applicant are entitled to a timely and efficient determination on what is essentially the same or similar facts.
27 The case at bar is somewhat different than Tabesh. In these circumstances, the visa officer actually made a determination in the CAIPS (Computer Assisted Immigration Processing Systems) notes that the appellant and the applicant did not meet the requirement of conjugal partners. This assessment by the visa officer, in my view, served to add that ground to the refusal. I find that the Minister was not prejudiced by consideration in this category as counsel for the Minister was aware of the assessment by the visa officer and was prepared to cross-examine the appellant on this issue at the hearing. Accordingly, I find that the issue of the conjugal and/or common-law relationship was open to be argued at the hearing.
28 Section 1 of the IRP Regulations provides that:
• "common-law partner" means, in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year.
29 As noted above, the appellant testified that she lived with the appellant on and off since 1999 but she kept it secret because she stated that living together in the Philippines is frowned upon. She further stated that six or eight months before she immigrated to Canada, she resided with the applicant and his family. Again, as noted above, this testimony is inconsistent with the applicant's testimony that they only spent time at his home on the weekends. Although the appellant had her friend come to testify, her testimony did little to support the contention that the appellant and the applicant had either a common-law relationship or a conjugal relationship.
30 The appellant's friend testified that she met the applicant in January 1998 and she was introduced to him as the appellant's boyfriend. Her testimony was not about what she observed personally but what the appellant had told her. She stated that the appellant told her that she was staying with the applicant prior to her landing in Canada but she did not know it from a personal perspective. She stated that once in 2003 when she stayed at the appellant's residence she noted that the appellant was in ongoing communication with the applicant. This communication in my view only substantiates that the appellant and the applicant were communicating.
31 I accept that the appellant and the applicant have had some type of ongoing relationship but I am not satisfied by the evidence that the appellant and the applicant resided together one for a period of at least one year and that they were in a common-law relationship. I find therefore on a balance of probabilities that the appellant and the applicant were not common-law partners at the time of the application for permanent residence.
32 Section 2 of the IRP Regulations provides:
• Conjugal partner means, in relation to a sponsor, a foreign national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that relationship for a period of at least one year.
33 Neither the Immigration and Refugee Protection Act (IRPA) nor the IRP Regulations define the term "conjugal relationship". One must look to jurisprudential guidelines that refer to a "marriage-like" relationship. The seven characteristics of a conjugal relationship can be found in M. v. H.17 as set out in Moldowich18:
• Shelter - Whether the partners live together in the same home as a couple;
• Sexual and personal behavior - Whether the partners' relationship is exclusive, committed and evidenced by emotional intellectual and physical interaction;
• Services - Whether household and other family-type responsibilities are shared especially in time of need;
• Social Activities - Whether the partners share time together or participate in leisure activity together - Whether thy have relations or interaction with each other's respective family;
• Economic Support - Whether the partners are financially interdependent or dependent - Whether the partners have joined, to some extent, their financial affairs (for example, as in joint-ownership of assets or arranged them to reflect their ongoing relationship) for example, naming the other partner beneficiary in an insurance policy or will);
• Children - The partners' attitude and conduct towards children in the context of their relationship; and
• Social Perception - Whether the partners are treated or perceived by the community as a couple.
34 The language of the Supreme Court throughout M. v. H. makes clear that a conjugal relationship has some permanence where individuals are interdependent - financially, socially, emotionally, and physically-where they share household and related responsibilities, and where they have made a serious commitment to one another.19 In conjunction with the Operational Procedural Manuals (OP 2, 5.25) the following characteristics should be present to some degree in all conjugal relationships:
• mutual commitment to a shared life
• - has to be exclusive i.e. not more than one conjugal relationship at a time;
• - intimate - commitment to sexual exclusivity;
• - interdependent - physically, emotionally, financially and socially;
• permanent-long-tern, genuine and continuing relationship
• - present themselves as a couple.20
35 In considering all of the above indicia, the Courts have indicated that the couple need not fit precisely into the traditional marital model in order to demonstrate that their relationship is conjugal.21 The approach to determining whether a relationship is conjugal must be flexible as relationships of all couples vary widely.22
36 Both the appellant and the applicant stated that the applicant's parents were against their relationship and therefore, their marriage was conducted in secret. One of the elements of a conjugal relationship as noted above is that partners in a conjugal relationship are normally perceived as a couple. According to the appellant, her family was unaware of her relationship with the applicant. She further testified that the applicant's family knew of their relationship but she could not explain why they would not have been invited to the wedding considering that according to her they had no difficulties with the relationship and she allegedly spent a great deal of time with them at their home. The appellant noted a number of times that she and the applicant had sexual relations on an ongoing basis but that in and of itself does not constitute a conjugal relationship.
37 The appellant has not tendered any persuasive evidence that she and the appellant had co-mingled their affairs a year prior to the sponsorship application or that they were viewed socially as conjugal partners. Other than testimony from a friend who testified that she knew that the appellant and the applicant were boyfriend and girlfriend in 2003, there were no other witnesses called or affidavits tendered. Neither set of parents for example submitted affidavits that they knew about the seriousness of the relationship. Moreover, I find the applicant's inability to recall that the appellant was in the Philippines in 2009 telling. The appellant testified that she visited the applicant a year ago. Surely if this relationship was ongoing and serious, the applicant would remember this detail as it was not that long ago. I am therefore not persuaded that this relationship is conjugal for the purposes of sponsorship.
Conclusion
38 Having considered all of the evidence in its entirety, I find that on a balance of probabilities, the appellant's marriage to the applicant was not valid and was not conducted according to Philippine law. I further find that the appellant's marriage to the applicant is a not a common-law or conjugal relationship as described in section 2 of the IRP Regulations and the applicant is not a member of the family class.
39 Accordingly, the appeal is dismissed.
NOTICE OF DECISION
The appeal is dismissed.
"Pamila Ahlfeld"
29 March 2010
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