Dalumay v. Canada (Minister of Citizenship and Immigration)
Between
Cunie Bangayan Dalumay, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1299
2012 FC 1179
Docket IMM-1060-12
Federal Court
Toronto, Ontario
Gagné J.
Heard: September 11, 2012.
Judgment: October 10, 2012.
Docket IMM-1060-12
Federal Court
Toronto, Ontario
Gagné J.
Heard: September 11, 2012.
Judgment: October 10, 2012.
(41 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 GAGNÉ J.:-- This is an application by Mrs.
Cunie Bangayan Dalumay [the Applicant] for judicial review of a decision of the
Immigration Appeal Division of the Immigration and Refugee Board [IAD],
rendered on December 20, 2011, wherein the IAD denied the applicant's appeal
from a visa officer's refusal of her application to sponsor her husband, Mr.
Jorge Garcia Vasquez, for a permanent resident visa. The IAD found that the
applicant's marriage was entered into primarily for the purpose of acquiring a
status or privilege under the Immigration and Refugee
Protection Act, SC 2001, c 27 [Act] and was not
genuine, pursuant to subsection 4(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227
[Regulations].
2 For
the reasons that follow, I have come to the conclusion that this application
for judicial review should be dismissed. In light of the current state of the
law, the decision under review is reasonable.
Background
3 The
applicant is a 39 year old Canadian citizen of Philippine origin. Since June
14, 2008, she has been married to a 41 year old citizen of Mexico who currently
lives in Mexico, but was a failed refugee claimant in Canada at the time of
their marriage.
4 In
October 2008, the applicant's husband applied for a permanent resident visa as
a member of the family class pursuant to subsection 12(1) of the Act, with the
applicant as his sponsor. He was interviewed on March 11, 2009, and a visa
officer of the Embassy of Canada in Mexico denied the application on April 15,
2009.
5 The
officer found that the circumstances of the couple's marriage did not appear
consistent with a genuine relationship. This conclusion was based mainly on the
fact that the applicant's husband is a failed refugee claimant; his claim was
dismissed in 2005 and a removal order was issued against him on August 26,
2006. The applicant's husband subsequently applied for a work permit; this
application was also refused on June 19, 2007. The officer found that because
the applicant's husband voluntarily left Canada only after he had married his
Canadian sponsor, he appeared to have entered into this marriage primarily to
gain a benefit under the Act.
6 On
appeal de novo before the IAD,
the testimony of the applicant and her spouse as to how they first met, the
development of their relationship, and the circumstances of their eventual
marriage was found to be consistent and credible. The Court therefore relies on
the facts as set out in the IAD's reasons.
7 The
applicant and her husband first met in December 2006 through a common friend.
They later got in touch and the applicant invited her future husband to a
singles party organized at her church in February 2007. After the event, the
applicant's husband started attending her church and was eventually baptized in
March 2007. The applicant and her husband started developing a closer
relationship in the spring of 2007.
8 The
applicant testified that she learned of her husband's failed refugee claim the
second time they met. She explained that, at the time, he was studying and
working but he was anxious because of his precarious immigration situation.
However, he was not scared to befriend her because he trusted her.
9 As
their relationship became more intimate, the couple started talking about their
potential future together and possible marriage. This started around May 2007,
although the applicant felt it was too early in the relationship. In January
2008, the applicant met her husband's son when he came to visit Canada. In
February 2008, the couple moved in together and the applicant purchased a life
insurance policy naming her husband as the beneficiary. When living together,
the applicant and her husband both worked and contributed to the charges of the
household.
10 The
applicant's husband first proposed in December 2007, and reiterated his
proposal on May 19, 2008 in the presence of the applicant's family and friends
at her uncle's birthday party. The couple married on June 14, 2008 in a church
wedding attended by her employer, her godparents, and her uncle, cousins and
friends. However, neither his nor her parents were able to attend the wedding
for health and financial reasons.
11 The
applicant's husband returned to Mexico on August 24, 2008, as he was under a
deportation order. The applicant accompanied him on this trip and has traveled
to Mexico once a year since 2008 to visit him and his family. They also
regularly speak on the phone and exchange text messages. The applicant
explained that the trips are costly so that she is unable to travel to Mexico
more frequently.
12 The
applicant's husband has been unemployed since returning to Mexico in 2008. He
is financially dependant upon the applicant to send him money on a monthly
basis and pay his bills. He has not traveled to Canada since he left, both for
financial reasons and because of his mother's health. He was also unable to
join his wife in the Philippines for the funeral of her mother in February
2011. However, he did finance a two-week trip to London in August 2009,
allegedly with the money he earned from odd jobs such as cleaning and painting.
The applicant's husband was still unemployed at the time of the IAD hearing on
November 2, 2011.
13 As
for the applicant, she works three jobs (as a retail worker and as a
housekeeper) for a total of 60 to 70 hours per week. She sends her husband some
$300 per month; that is to say approximately half of her disposable monthly
income, after having paid her rent.
14 The
IAD stated that the key concerns of the visa officer included the fact that the
applicant was a failed refugee claimant and was subject to a removal order
(which made the development of the relationship not credible), and that their parents
were not present at the wedding. The IAD sought to clarify the issues of
credibility and the motivations of the applicant's husband, as well as the
compatibility of the couple.
15 As
mentioned earlier, the IAD found the applicant's testimony to be forthright and
credible. However, the IAD stated that it attached a "moderate
weight" to the documentary evidence disclosed in support of the
genuineness of the marriage, which included the applicant's provision of
financial support, communication in the form of emails, cards and
telephone/internet telephone conversations, and proof of the applicant's
travels to Mexico.
16 The
IAD accepted the explanations given by both the applicant and her husband in
regards to their parents' absence at their wedding. Rather, the factors to
which the IAD attached greater weight were: (1) the status (or lack of status)
of the applicant's husband in Canada as a failed refugee claimant and the fact
that he was subject to a removal order at time of their marriage; (2) the fact
that even before their marriage the applicant was concerned about her husband's
access to health care (the applicant explained that her husband has a problem
with his right eye that remained untreated because he did not have sufficient
funds to obtain medical treatment); and (3) the fact that the applicant's
husband is financially dependant on her and has made little effort to support
himself in Mexico. The IAD noted that while it was sympathetic to the fact that
the applicant's husband has to look after his mother who is currently sick, he
was able to scrape together enough money for a trip to London.
17 Considering
these facts, the IAD found that it was the impending deportation of the
applicant's husband that motivated him to stay in Canada through marriage to
the applicant. Accordingly, the appeal was dismissed.
Issue and applicable standard of review
18 The
applicant's arguments in this application for judicial review raise a single
issue: did the IAD err in dismissing the appeal on the basis of its finding
that, from the sponsored spouse's point of view, their marriage was not genuine
and was entered into primarily for the purpose of acquiring status under the
Act?
19 The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir] held that a standard of review
analysis need not be conducted in every instance. Where the standard of review
applicable to a particular question before the court is satisfactorily settled
by past jurisprudence, the reviewing court may adopt that standard of review.
It is well established that the "assessment of applications for permanent
residence under the family class and genuineness of the marriage in particular,
involve questions of mixed fact and law and the established standard of review
is reasonableness" (Glen v Canada (Minister of
Citizenship and Immigration), 2011 FC 488 at paras
42-43, [2011] F.C.J. No. 607; Keo v Canada (Minister of
Citizenship and Immigration), 2011 FC 1456 at para 7,
[2011] F.C.J. No. 1755 [Keo]).
20 The
applicant referred the Court to Justice Dawson's account of the reasonableness
standard in Zambrano v Canada (Minister of Citizenship
and Immigration), 2008 FC 481 at para 32, [2008] F.C.J.
No. 601, where she states:
· "Review on the reasonableness standard requires the Court to
inquire into the qualities that make a decision reasonable, which include both the process and the outcome. Reasonableness is concerned principally with the existence of
justification, transparency, and intelligibility in the decision-making
process. It is also concerned with whether the decision falls within the range
of acceptable outcomes that are defensible in fact and in law. See: Dunsmuir at
paragraph 47."
|
[emphasis added]
|
|
Review of the IAD's reasons
21 This
application for judicial review raises a question of transitional law. At the
time the visa officer refused the application and at the time the appeal before
the IAD was filed, subsection 4 of the Regulations read as follows:
· Bad faith
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.
|
[emphasis added]
|
|
* * *
· Mauvaise foi
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.
22 However,
at the time of the hearing de novo before the IAD and at the time the decision was rendered, the new
subsection 4(1) of the Regulations (as modified on September 30, 2010), was in
force. The provision now reads as follows:
· Bad faith
(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
was entered into
primarily for the purpose of acquiring any status or privilege under the Act; or
is not genuine.
|
[emphasis added]
|
|
* * *
· Mauvaise foi
(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 :
visait principalement
l'acquisition d'un statut ou d'un privilège sous le régime de la Loi;
n'est pas
authentique.
23 Having
considered that the two-pronged conjunctive test was replaced by a two-pronged
disjunctive test, the IAD did not find it necessary to determine which version
of the Regulations it should apply to its reasons due to the findings that
"it [had] made on the primary purpose and the genuineness of the
marriage." Upon closer reading of the IAD's reasons, it is evident that
the ultimate determination was essentially made on the basis of the first prong
of the test, namely the primary intentions of the applicant's husband. However,
the IAD made it clear that, in its view, the appeal would also have failed
under the former section 4 because the applicant's marriage was not genuine.
24 In
the course of the hearing before this Court, a discussion was raised as to
which version of the Regulations should have been applied in this case. The
parties were invited to file further submissions detailing their respective
positions. The applicant is of the view that the Court should review the
impugned decision of the IAD under the former section 4 because the issue
before me is the reasonableness of the visa officer's decision that was made
prior to the September 2010 amendments. The respondent argues that a different
approach has been adopted by this Court in similar situations in Wiesehahan v Canada (Minister of Citizenship and Immigration), 2011 FC 656, [2011] F.C.J. No. 831 [Wiesehahan] and Macdonald v Canada (Minister of
Citizenship and Immigration), 2012 FC 978, [2012]
F.C.J. No. 1048 [Macdonald].
These cases support the view that the current subsection 4(1) should apply to
appeals heard after September 2010, as IAD hearings are de
novo appeals falling under the new Regulations.
25 I
agree with the respondent's position. First, it is the appeal decision and not
the visa officer's decision that is subject to the present judicial review,
although they both contain similar findings. Moreover, while in exceptional
cases the Court has found that the former conjunctive test remains applicable
where the IAD made its original determination on the basis of the old version
of the Regulations (Elahi v Canada (Minister of
Citizenship and Immigration), 2011 FC 858 at para 26,
[2011] F.C.J. No. 1068) or where the overall reasonableness of the decision -
rather than the applicability of a particular version of the test - is at issue
(Keo, above, at para 14), the
recent jurisprudence of this Court is in favour of maintaining the IAD's
application of the amended Regulations, as entered into force between the
initiation of the appeal and the hearing (Wiesehahan, above; MacDonald,
above). I will accordingly review the reasonableness of the impugned decision
under the new subsection 4(1) of the Regulations, such that the decision should
stand if either prong of the test is satisfied.
26 Having
carefully reviewed the submissions of the parties, the impugned decision and
the transcriptions of the hearings, I am of the view that the IAD reasonably
concluded that the applicant's husband was primarily motivated by an enduring
intention to remain in or return to Canada, even if the IAD failed to identify
sufficient evidence in support of its further finding that the marriage was not
genuine from a more general perspective.
27 The
applicant relies heavily on the IAD's finding that the applicant was credible
and had made significant and honest efforts to support her husband for several
years. The applicant also argues that there is not a sufficient evidentiary
basis to conclude that her husband was not credible given the fact that the testimony
of the spouses was explicitly found consistent and credible as to how they
first met, the development of their relationship and the circumstances of their
eventual marriage, and that these facts were corroborated with ample
documentary evidence demonstrating continuity and stability in their
relationship.
28 The
respondent submits that the genuineness of the marriage and the ulterior
purposes of the marriage must be assessed considering the perspective of each
of the parties so that, where one party may honestly believe that there is a
genuine marriage that has not been entered into for an improper purpose, the
marriage is not genuine if the other party holds a different perspective. This
view is consistent with my reading of subsection 4(1) of the Regulations and
the jurisprudence of this Court.
29 In
Keo, above, Justice Martineau
reviewed the pre- and post-September 30, 2010 versions of section 4(1) of the
Regulations. The Court noted:
· The amendment made to section 4 of the Regulations is not cosmetic
in nature; the use of the word "or" in the English version and of the
words "selon le cas" in the French version are very clear: if either
of the two elements (genuineness of marriage and intention of the parties) is
not met, the exclusion set out in the new subsection 4(1) of the Regulations
applies.
· [...]
· A marriage might have been entered into in accordance with all of
the statutory formalities, but, nonetheless, the visa officer or the panel may
refuse to recognize its effects for the purposes of the application of the Act
and Regulations if they find that the marriage did not occur in "good
faith", even if the expression "non-genuine marriage" is not
used in their reasons for decision. See Vézina v Canada
(Citizenship and Immigration), 2011 FC 900 at paragraph
14 (Vézina). In fact, what the
immigration laws do not recognize are situations where
the two spouses are complicit to duplicity (a non-genuine marriage) and/or
where the intention of the spouses or of one of the spouses is primarily to
acquire a status or privilege (even if the other partner may benefit from it). In other jurisdictions, these unions are sometimes described as
"sham" or "white" marriages, whereas in Canada, the manual
[OP 2 - Processing Members of the Family Class] uses the expression "marriage of convenience".
· Consequently, whether this is a conventional marriage, an arranged
marriage or another type of conjugal relationship, it is essential to find in
the couple's relationship a mutual commitment to living
together to the exclusion of any other conjugal
relationship. The spouses' physical, emotional, financial and social
interdependence goes hand in hand with this because, after all, in all cultures
and traditions, over and above any religious undertakings, in terms of its
civil effects, marriage is, above all, an indeterminate contract requiring that
spouses help each other and contribute towards the expenses of the marriage in
proportion to their respective means, which certainly includes the activities
of each spouse, or even both together, in the home.
· Furthermore, in M v H,
[1999] 2 S.C.R. 3, at paragraph 59, the Supreme Court of Canada referred to the
criteria in Molodowich v Penttinen (1980), 17 RFL (2d) 376 (Ont. Dist. Ct.) to include relationships
that are "similar to marriage". It spoke of a conjugal relationship
based on generally accepted characteristics: shared shelter, sexual and
personal behaviour, services, social activities, economic support, children and
the societal perception of the couple. However, these elements may be present
in varying degrees and not all are necessary for the relationship to be found
conjugal. The same type of criteria can be found in the manual.
· [...]
· There is no single method of analysis. For example, money transfers,
the combining of financial resources, the existence of joint accounts and the
purchase of property in the name of both spouses are certainly indicative of
financial support or interdependence. Something else that can be verified is
how the spouses behave towards one another and towards the authorities in their
respective countries. Do they have children? Do they support each other during
illnesses? Do they give each other gifts? Do they travel together? Do they live
under the same roof when they are in the foreign spouse's country of origin? In
what way and how often do they communicate when they are separated?
|
[emphasis added]
|
|
30 The
evidence required in establishing the genuineness of the marriage is more
objective as compared to that of the spouses' true intentions in entering the
marriage, as it speaks to broader aspects of the relationship. However, in my
view, each component of the test set forth in subsection 4(1) of the
Regulations requires the panel to analyze the primary and true intention of the
spouses; this analysis calls for an assessment of their subjective
perspectives. In fact, the factors to be considered in assessing whether a
conjugal relationship exists, as set out in the Manual, include the degree of
mutual commitment and support between the spouses and their expressed intention
that the relationship will be one of long term, in addition to broader
financial and social aspects of the relationship.
31 The
view that there is a certain overlap between the genuineness of the marriage
and the primary purpose of the marriage in the eyes of the spouses is also
supported by the pre-2010 amendments jurisprudence. In Sharma
v Canada (Minister of Citizenship and Immigration),
2009 FC 1131 at paras 17-18, [2009] F.C.J. No. 1595, Justice Snider found that
there is some link between the two prongs of the test so that a "lack of
genuineness presents strong evidence that the marriage was entered into
primarily for the purpose of acquiring permanent residence in Canada". The
Court later held that the lack of bona fides can create a presumption that the marriage was entered into for the
purpose of gaining status (Kaur v Canada (Minister of
Citizenship and Immigration), 2010 FC 417 at para 16,
[2010] F.C.J. No. 482).
32 In
the matter at bar, the IAD did not explicitly take issue with the evidence of
the genuineness of the marriage, but concluded that for both spouses (although
to a greater extent for the applicant's husband) the marriage was primarily
entered into for the purpose of acquiring status or privilege under the Act. In
other words, the IAD viewed the marriage (or the relationship) as being
one-sided. The applicant subscribed to an insurance policy in which she
designated her husband as the beneficiary, she visited her husband several
times in Mexico and paid for all of her expenses, she paid for a trip with her
husband and his son, she sends him money on a monthly basis, she pays his
bills, etc.
33 The
IAD also found that according to the applicant's testimony the couple married
in part out of concern for the access of the sponsored spouse to healthcare in
Canada. The applicant argues that this evidence came out of other unrelated
questions that were asked of her during the interview and is insufficient to
establish that either of the spouses had a primary objective to secure, through
marriage, healthcare or legal status in Canada for the sponsored spouse.
34 Having
read the transcriptions of the hearing, it appears to me that the applicant
explicitly stated that the couple had discussed the issue in some detail quite
early on in their relationship, and even before they decide to get married:
· Q: You said earlier that you didn't get any legal advice before you
got married.
· A: We did. We did, yes.
· Q: You got some legal advice before you got married?
· A: Yes.
· Q: Who did you speak to?
· A: He speak to his friend, that someone he knew, and we prepare
everything.
· Q: Okay.
· A: And then that's how we pass after the wedding all the
papers.
· Q: You started this in April and you were married - engaged in May
and you got married in June?
· A: Yes.
· Q: Why were you preparing immigration papers before you were
engaged?
· A: I'm concerned for him. We preparing because I'm concerned of his
situation, of his health. Then he needs healthcare just in case that he get
hurt.
· Q: But you weren't engaged yet. Were you planning to marry him at
that stage?
· A: Yes.
· Q: Even before he ---
· A: Even before he propose, yes.
35 Therefore,
I find that the IAD's concerns in this respect were not unreasonable in the
sense that its conclusion was "within a range of possible, acceptable
outcome which are defensible in respect of the facts and law" (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47).
36 Even
though this evidence alone would probably be insufficient to reach a finding
that the marriage was primarily
entered into for purposes of acquiring a status or privilege, the IAD's main
concerns were related to the true intentions of the sponsored spouse. I note
that the applicant's husband proposed to her only three months after they met
(and only six months after his application for a work permit was refused) while
he was already under a removal order that he refused to comply with; he made
little effort to find work since his return to Mexico and - with the little
money he earned from small jobs performed in Mexico - he undertook a two-week
trip to England, without the applicant, but did not accompany his wife to the
Philippines for the funeral of her mother.
37 Considering
the totality of the evidence, the IAD's findings that the applicant is "a
credible witness who answered questions in a forthright manner" and
"a very hard-working person who has made considerable financial sacrifices
to support her husband for several years", or that the spouses' respective
accounts of the circumstances of their marriage were consistent and credible,
does not impede its finding that the marriage is not entered into for purposes
of gaining a benefit under the Act. The evidence before the IAD does, however,
support the finding that the applicant's husband was not credible or of good
faith.
38 Contrary
to what the applicant contends, it is not the applicant's husband being without
status in Canada that negates the bona fides of the marriage. The applicant asserts that the proposition of
marriage came when her husband was still trying to regulate his status in
Canada, even though he had a removal order issued against him. She argues that
waiting for almost two years before getting married neutralizes the idea that
her spouse was motivated to protect himself from removal through marriage (Glen v Canada (Minister of Citizenship and Immigration), 2011 FC 488 at para 46, [2011] F.C.J. No. 607).
39 However,
the underlying rationale of the decision before me is more generally informed
by the pre- and post-marriage circumstances of both spouses, including the
timing of the marriage. In the circumstances, the sponsored spouse's financial
dependence on the applicant could reasonably be considered as a secondary
factor in line with the IAD's conclusion, even if his economic situation or his
inability to find work in Mexico was not immediately a relevant consideration
in determining his good faith in marrying the applicant.
40 The
applicant submits that the evidence supporting the IAD's negative conclusion
did not meet the required evidentiary test of balance of probabilities. Even if
the credible evidence of the genuineness of her marriage (demonstrating
positive features of a couple, as the applicant puts it) was not fully weighed
in the assessment, the IAD's decision turned on the failure of the applicant's
husband to provide sufficient evidence that he entered into the relationship
with an intention to found, raise, and support a family with the applicant.
This finding is reasonable in the circumstances, both as to the underlying
reasoning and as to the outcome, and was sufficient for the IAD to dismiss the
appeal.
41 No
question of general importance was proposed for certification and none arises
from this case.
JUDGMENT
· THIS COURT'S JUDGMENT IS THAT:
GAGNÉ J.
No comments:
Post a Comment