Chow v. Canada (Minister of Citizenship and
Immigration)
Between
Kow Doy Chow, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1597
2012 FC 1492
Docket IMM-1731-12
Federal Court
Toronto, Ontario
O'Reilly J.
Heard: December 12, 2012.
Judgment: December 18, 2012.
Docket IMM-1731-12
Federal Court
Toronto, Ontario
O'Reilly J.
Heard: December 12, 2012.
Judgment: December 18, 2012.
(18 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
O'REILLY J.:--
Overview
1 In
2007, Mr Kow Doy Chow, a citizen of Canada, applied to sponsor his spouse, Ms
Yi Juan Hu, a citizen of China, for permanent residence. In 2008, the couple
was interviewed by a visa officer in Hong Kong. Ms Hu explained that she first
met Mr Chow on October 28, 2006, but they had previously spoken on the phone.
They married on November 8, 2006. She could not explain why the marriage was
arranged so quickly. They planned for her to live in Canada to take care of Mr
Chow.
2 Because
her house register, issued in 1999, indicated that she was married, the officer
asked Ms Hu about her marital status. She said she had never been previously
married. The officer advised her that persons who submit fraudulent documents
can be banned from Canada for two years.
3 The
officer found that the marriage was not genuine and that Ms Hu had
misrepresented her marital status.
4 Mr
Chow appealed. A panel of the Immigration Appeal Division (IAD) dismissed the
appeal for the same reasons as the officer had given. Mr Chow submits that the
IAD's decision was unreasonable considering the evidence before it. He asks me
to quash the decision and order another panel of the IAD to reconsider his
appeal.
5 I
can find no basis to overturn the IAD's decision and must, therefore, dismiss
this application for judicial review.
6 The
sole issue is whether the IAD's decision was reasonable.
The IAD's Decision
7 The
IAD first considered the issue of misrepresentation. It noted that Ms Hu's
house register, issued in 1999, showed that she was married. Ms Hu stated that
she asked authorities on November 10, 2006 to amend the register to add a
reference to her marriage. Still, the IAD was concerned that the amendment, if
it had indeed been made, was not reflected on the register itself - there was
no signature, date, or seal.
8 In
addition, a notarial certificate dated November 16, 2006 stated that a copy of
Ms Hu's house register conformed to the original. In other words, the
certificate suggested that there had been no amendment on November 10, 2006.
9 Ms
Hu also provided a further certificate dated October 15, 2009. It stated that
the house register was amended in 2006 to make reference to her marriage.
However, the IAD was still concerned that there was no indication on the
register itself that it had been amended.
10 Therefore,
the IAD upheld the officer's conclusion that Ms Hu had misrepresented her marital
status and was inadmissible to Canada according to s 40 of the Immigration and Refugee Protection Act, SC
2001, c 27.
11 The
IAD then considered the evidence relating to the genuineness of the marriage.
It noted the following:
The couple could not
explain the haste with which they wed;
Ms Hu gave conflicting
evidence about when she met Mr Chow and when he proposed;
Mr Chow (age 80) is 22
years older than Ms Hu (age 58);
Mr Chow's will (dated
January 22, 2010) appointed Ms Hu as executor and gave her a 25% interest in
his estate. Mr Chow seemed to be unfamiliar with his will, and explained that
it was prepared by his immigration lawyer after the visa officer refused the
sponsorship application.
Other evidence showing
the couple's occasional visits, phone calls and money transfers did not carry
much weight.
Was the IAD's Decision
Unreasonable?
12 There
are two aspects to this question. The first involves the IAD's finding that Ms
Hu had misrepresented her marital status and, therefore, was inadmissible to
Canada. The second relates to the IAD's conclusion that the couple's marriage
was not genuine.
The alleged
misrepresentation
13 Mr
Chow argues that the IAD erred by misunderstanding the significance of the November
16, 2006 certificate. The certificate compared a copy of Ms Hu's house register
with the amended version, the one Ms Hu says was changed on November 10, 2006,
not the unamended version. Therefore, the certificate supported Ms Hu's
testimony about her house register and her corresponding marital status.
14 Mr
Chow presents a possible alternative interpretation of the significance of that
certificate. However, that is not a sufficient basis to find the IAD's
conclusion unreasonable. The IAD had to interpret that evidence, and its
conclusion cannot be considered unreasonable simply because there was another
possible interpretation of it. In addition, there were other reasons for the
IAD's finding that Ms Hu had misrepresented her marital status.
The genuineness of the
marriage
15 Mr
Chow argues that the IAD's conclusion on misrepresentation unduly affected its
findings about the genuineness of the marriage. In addition, the IAD did not
take account of the fact that the couple is unsophisticated, or consider their
conduct within the milieu of Chinese culture.
16 In
my view, the IAD was entitled to consider the issue of misrepresentation in the
context of its overall credibility findings. Misrepresentation is obviously
relevant to credibility.
17 Further,
the couple did not present any evidence or testimony indicating that their
conduct was accepted or commonplace within their families or their culture.
Evidence along those lines might have helped explain their lack of knowledge
about each other, the haste of their wedding, and the absence of future plans
together. However, the IAD cannot be faulted for arriving at its decision based
on the evidence that was actually presented to it.
Conclusion and
Disposition
18 The
IAD's conclusions that Ms Hu had misrepresented her marital status and that the
couple's marriage was not genuine were not unreasonable on the evidence before
it. Those findings fell within the range of defensible outcomes based on the
facts and the law. I must, therefore, dismiss this application for judicial
review. Neither party proposed a question of general importance for me to
certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT is that:
The application for
judicial review is dismissed.
No question of general
importance is stated.
O'REILLY J.
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