The story below is hardly unique, and is happening with increasing frequency: an older Canadian male meets a younger Filipino woman online, travels to meet her, things appear to go well, they get married, he sponsors her to come to Canada and is refused. There is nothing unusual about that, except the frequency. With the advent of online dating, and with the increased accessibility to computing gin developing countries, this is now commonplace. On the other hand, the reasons why the spouse overseas marries someone she met online is coming under increasing scrutiny.
Marriage with Filipino woman not a fraud, Alberta man says - Edmonton - CBC News
Showing posts with label Canada immigration sponsorship application Philippines. Show all posts
Showing posts with label Canada immigration sponsorship application Philippines. Show all posts
Thursday, August 23, 2012
Wednesday, June 27, 2012
FAILURE TO DISCLOSE BIRTH TRIGGERS MISREPRESENTATION FINDING
The scenario in the case below is quite common: a person applies for permaennent residency in Canada and fails to disclose the birth of a child during the course of the applciaion, out of fear of being refused residency or delaying the process, and usually based on misinformation given by friends or non-lawyers. And when discovered, the applicant attempts to explain the failure to disclose with nuances and excuses, all of which fail to acknowledge responsibility. In most cases, this scenario can be avoided by full and timely disclosure. Applicants are cautioned not to lie or misrepresent, and to seek advice only from qualified, reputable immigration laweyrs who can evaluate the situation and take remedial action on a timely basis.
· 40.
· 40.
· 1.
· 2.
· 3.
· 4.
· 1. The application is
dismissed;
· 2. There is no question
for certification.
Gatue v. Canada (Minister of Citizenship and
Immigration)
Between
Florendo Cesar Tan Gatue, Vilma Tan Gatue, Czarina Joy Tan
Gatue, Applicants, and
The Minister of Citizenship and Immigration, Respondent
Gatue, Applicants, and
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 732
2012 FC 730
Docket IMM-6326-11
Federal Court
Toronto, Ontario
Boivin J.
Heard: March 29, 2012.
Judgment: June 12, 2012.
Docket IMM-6326-11
Federal Court
Toronto, Ontario
Boivin J.
Heard: March 29, 2012.
Judgment: June 12, 2012.
(39 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 BOIVIN J.:-- This is an application pursuant
to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [Act] for judicial review
of a decision rendered by the Immigration Division of the Immigration and
Refugee Board (the Board) dated August 25, 2011, wherein the Board determined
that the applicants were not admissible to Canada pursuant to paragraph 40(1)(a) of the Act.
Factual Background
2 The
applicants, Mr. Florendo Cesar Gatue (the father), Mrs. Vilma Tan Gatue (the
mother) and Ms. Czarina Joy Tan Gatue (the daughter), are all citizens of the
Philippines.
3 The
applicants were sponsored for permanent residency in Canada by their daughter
and sister (respectively), Ms. Christine De Lima. The applicants signed their
applications for permanent residence on April 4, 2008 or June 16, 2008.
4 The
daughter gave birth to her first child on October 16, 2008.
5 On
January 19, 2010, the daughter signed a declaration in support of her
application for permanent residence which required her to immediately inform
the Canadian visa post of any changes in the information or the answers provided
in her application.
6 The
father and mother were issued visas on August 29, 2010, by the Canadian visa
post in Manila, Philippines.
7 The
daughter subsequently gave birth to her second child on September 24, 2010. The
daughter was issued her visa on October 8, 2010.
8 The
applicants arrived in Vancouver on January 14, 2011, in possession of their
confirmations of permanent residence and permanent resident visas. A report was
issued under subsection 44(1) of the Act, dated the same day as their arrival,
which stated that the applicants had directly or indirectly misrepresented or
withheld material information by failing to disclose dependents not included in
the application for permanent residence. As a result, the report concluded that
an avenue of investigation had been foreclosed by the applicants'
misrepresentation.
9 On
February 26, 2011, a request for an Admissibility Hearing was made pursuant to
subsection 44(2) of the Act in order to determine if the applicants were
persons described in paragraph 40(1)(a) of the Act.
10 The
applicants' Admissibility Hearing before the Board took place on May 16, 2011.
Decision under Review
11 The
Board concluded that the applicants were persons described in paragraph 40(1)(a) of the Act due to the fact that they had
misrepresented material facts relating to a relevant matter by failing to
disclose the daughter's two minor children on their application for permanent
residence.
12 The
Board found that the father's testimony revealed that he had never personally
disclosed the birth of his grandchildren. The father claimed that he did not
know that he was required to do so. The Board also noted that the mother
testified that the daughter had completed a form when she attended the medical
examination in the Philippines in 2008 which indicated that she had given birth
to a child. The Board also noted that the daughter acknowledged that she had
not disclosed her children on her application for permanent residence as it had
been submitted before she had children. Although the daughter claimed to have
notified the Visa office that she had one child when she completed the required
medical forms in 2008, the Board outlined that she acknowledged that she never
made any attempt to disclose her second child to immigration authorities prior
to her arrival in Canada.
13 While
the Board noted that it found the applicants to be generally credible, the
Board observed that they had not produced any documentary evidence to establish
the existence and contents of the form completed by the daughter in 2008. The
Board noted that the applicants had testified that they were unable to obtain
the missing form. Though the applicants alleged that they had informed the
medical examination doctor of the birth of the daughter's first child, the
Board was not satisfied that this constituted disclosure of this information to
immigration officials. However, the Board noted that even if it had accepted
that the daughter had disclosed her first child, the Board found that it was
indisputable that she had failed to disclose her second child prior to
receiving her permanent residence visa and arriving in Canada. Though the
daughter explained that she did not know that she had to disclose this
information, the Board affirmed that this requirement was clearly outlined in
the application.
14 The
Board also observed that the CIC Medical Report in the file indicated that the
daughter had given "vaginal delivery 2008" (Tribunal Record, p 69).
However, the Board concluded that this was not sufficient to establish that she
had a dependent child in her care. The Board affirmed that the child in
question could have died or been adopted and thus this document did not
constitute sufficient disclosure of her first child.
15 The
Board held that "by not being forthcoming with immigration officials
regarding the birth of her children, she closed off an avenue of investigation
that may or may not have affected her application"... "...this failure
to disclose was a material fact as it relates to the analysis that must be
undertaken with respect to the definition of "family" under the
family class" (Board's reasons, para 23). The Board observed that the
mother and the father had not been explicitly asked to disclose the existence
of grandchildren, however, the Board declared that they were captured in the
inadmissibility as they were subject to the same requirements of duty and
candour to disclose information changes for persons included in the
application. Thus, the Board held that they had become "complicit in the
misrepresentation that occurred" (Board's reasons, para 24).
Issues
16 The
issue raised in this case is the following:
· Did the Board err in its conclusion that the applicants were
excluded from Canada on the basis of a misrepresentation in breach of section
40 of the Act?
Statutory Provision
17 The
following provision of the Immigration and Refugee
Protection Act is applicable in these proceedings:
· Misrepresentation
(1) A permanent
resident or a foreign national is inadmissible for misrepresentation
· (a) for directly or
indirectly misrepresenting or withholding material facts relating to a relevant
matter that induces or could induce an error in the administration of this
Act;
· (b) for being or having
been sponsored by a person who is determined to be inadmissible for
misrepresentation;
· (c) on a final
determination to vacate a decision to allow the claim for refugee protection by
the permanent resident or the foreign national; or
· (d) on ceasing to be
a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection
10(2) of that Act. Fausses déclarations
* * *
(1) Emportent
interdiction de territoire pour fausses déclarations les faits suivants :
· a) directement ou indirectement, faire une
présentation erronée sur un fait important quant à un objet pertinent, ou une
réticence sur ce fait, ce qui entraîne ou risque d'entraîner une erreur dans
l'application de la présente loi;
· b) être ou avoir été parrainé par un
répondant dont il a été statué qu'il est interdit de territoire pour fausses
déclarations;
· c) l'annulation en dernier ressort de la
décision ayant accueilli la demande d'asile;
· d) la perte de la citoyenneté au titre de
l'alinéa 10(1)a) de la Loi sur
la citoyenneté dans le cas visé au paragraphe 10(2) de cette loi.
Standard of Review
18 The
applicable case law has established that an assessment of a misrepresentation
decision under section 40 of the Act involves questions of mixed fact and law,
which are reviewable according to the standard of reasonableness (Berlin v Canada (Minister of Citizenship and Immigration), 2011 FC 1117 at para 10, [2011] F.C.J. No. 1372 [Berlin]; Ghasemzadeh v Canada (Minister of Citizenship and Immigration),
2010 FC 716 at para 18, 372 FTR 247). The Court is in agreement with the
respondent in that the credibility findings made by the Board are also
reviewable according to the standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR
190; Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12 at paras 4, 59, [2009] 1 SCR 339).
Analysis
19 In
the present case, the applicants take issue with the Board's credibility
findings and its treatment of the evidence, specifically a CIC Medical Report.
As well, the applicants argue that there was no evidence to demonstrate that
they had deliberately misrepresented. The applicants submit that the Board also
failed to conduct a mens rea
analysis.
20 After
consideration of the Board's decision, the documentary evidence and the
applicants' testimony, the Court cannot agree with the applicants' arguments.
Rather, the Court concludes as to the reasonableness of the Board's findings in
light of the facts of the case and the principles of the applicable
jurisprudence. It was reasonable for the Board to conclude that the
misrepresentations of the applicants in the present case could not be viewed as
innocent or inadvertent.
21 With
respect to the first child born in 2008, the applicants argued that the Board
erred in its analysis of the CIC Medical Report. The applicants state that the
CIC Medical Report did disclose the fact that the daughter had given birth to a
child in 2008. The applicants maintain that the Report clearly shows that the
Visa office received it on February 11, 2010, and therefore the Officer had to
know that the daughter had given birth before it issued the permanent resident
visas to the applicants. On that basis, the applicants advance that the
"door was open to them to investigate: it was open to them to ask if the
child was still living and was the child still with her". However, and
despite the arguments by the applicants, the Court recalls that the onus was on
the daughter to advise the Minister of the fact that she had two children which
she failed to do in this case.
22 The
applicants also argue that the daughter disclosed the fact that she had two
children by informing the Port of Entry Officer at the airport in Vancouver.
Thus, the applicants state that both disclosures occurred during the processing
of the permanent residency application, not after.
23 While
the Court is assessing without deciding and is prepared to admit that there can
be ambiguity over whether the daughter had disclosed the birth of her first
child during her medical examination on the face of the Medical Report
(Tribunal Record, pp 68 and 69), the Court finds that it is uncontested that
the daughter had never reported the birth of her second child (September 24,
2010) prior to arriving in Canada, more precisely in Vancouver (January 14,
2011). The Court also rejects the applicants' argument that the daughter needed
not to report the second child and that the declaration of this second child at
the Port of Entry (POE) sufficed in and of itself. The Court cannot accept the
applicants' reasoning and logic whereby a declaration could always be made at
the POE. To the contrary, the applicants were required to disclose such
information as per the undertaking that they signed in their application form
and the immigration system relied on their "duty of candour". The
Officer cannot be expected to guess and investigate the applicants' situations
on the basis of the information contained in a Medical Report (Tribunal Record,
p 69) as argued by the applicants. It was incumbent upon the applicants to reveal
material and relevant facts and the existence of two children can undoubtedly
be qualified as such. There is nothing on the face of the record that would
allow the Court to conclude that the failure to disclose was innocent or
inadvertent.
24 The
Board's comments at para 21 of its decision are relevant in that regard:
· On this very same Declaration clearly states "This declaration
covers the information I have provided on this forma and all the information
submitted in my application for permanent residence as well as in the attached
schedules and accompanying documents". It also states, "I will
immediately inform the Canadian visa office where I submitted my application if
any of the information or the answers provided in my application forms change".
Therefore, by signing this application, Ms. Tan Gatue declared recognition that
all information provided to immigration officials that formed part of the
immigration application, including the "Additional Family
Information" form that was completed in June 2008 and specifically asked
about children in "Section B" was part of the immigration record. By signing the "Declaration", she also acknowledged her
responsibility to advise immigration officials immediately of any changes to
her answers."
· (Emphasis added)
· (Footnotes omitted).
25 As
such, the Court is of the view that the fact that the daughter disclosed the
existence of her two children upon arrival in Vancouver does not amount to
proper disclosure (Haque v Canada (Minister of
Citizenship and Immigration), 2011 FC 315, [2011]
F.C.J. No. 394 [Haque]; Cabrera v Canada (Minister of Citizenship and Immigration), 2010 FC 709, [2010] F.C.J. No. 864 [Cabrera]; Uppal v Canada (Minister of Citizenship
and Immigration), 2009 FC 445, [2009] F.C.J. No. 557 [Uppal]; Khan v Canada
(Minister of Citizenship and Immigration), 2008 FC 512,
[2008] F.C.J. No. 648 [Khan]).
In the circumstances, the Court is of the opinion that it was reasonable for
the Board to conclude that the daughter had not been forthcoming with immigration
officials.
26 The
Court notes that a similar situation was presented in the case of Mai v Canada (Public Safety and Emergency Preparedness), 2011 FC 101, [2011] F.C.J. No. 127, cited by the Board in its
reasons, where the applicant in question did not report his marriage or the
birth of his child to immigration authorities during the processing of his
application or after his arrival in Canada. The applicant argued that his
misrepresentations were not deliberate or intentional and that he honestly
believed that he was not required to report the changes in question. However,
the Board rejected the applicant's arguments and concluded that the applicant
had made misrepresentations in the sense of paragraph 40(1)(a) of the Act. Justice Martineau concluded as
to the reasonableness of the Board's decision.
27 Furthermore,
in the case of Haque, above, the
principal applicant was found to be inadmissible to Canada under paragraph
40(1)(a) of the Act for having
omitted and misrepresented certain facts in his application for permanent
residence pertaining to his prior studies, residency and work history. Though
the applicants argued that the misrepresentations were not intentional, Justice
Mosley dismissed the application for judicial review and made the following
comments which apply mutatis mutandis in the case at bar:
· [13] Reading sections 40 and 16 of the IRPA together, I agree with
the respondent that foreign nationals seeking to enter Canada have a "duty
of candour" which requires disclosure of material facts: Bodine v. Canada (Minister of Citizenship and Immigration), 2008 FC 848, 331 F.T.R. 200 at paras. 41-42; Baro v. Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at para. 15. Indeed, the Canadian immigration system
relies on the fact that all persons applying under the Act will provide truthful and complete information: Cao v. Canada (Minister of Citizenship and Immigration), 2010 FC 450, 367 F.T.R. 153 at para. 28. Mr. Haque's omission
concerning his year-long study period in the United States, discrepancies in
home addresses and work history are material and relevant facts needed in order
to properly assess admissibility.
· [14] Section 3 of the IRPA points to a number of immigration
objectives that should be kept in mind when administering the Act. Among others, these objectives include
enriching and developing the country through social, economic and cultural
means while ensuring the protection and security of Canadians living here. In
order to adequately protect Canada's borders, determining admissibility
necessarily rests in large part on the ability of immigration officers to
verify the information applicants submit in their applications. The omission or
misrepresentation of information risks inducing an error in the Act's administration.
28 In
addition, the Court agrees with the respondent's comments regarding the case of
Maruquin v Canada (Minister of Citizenship and
Immigration) 2007 FC 1349, [2007] F.C.J. No. 1739, in
that it presented "special circumstances" where the change (the birth
of a son) was disclosed before
the permanent residence visas had been issued. Consequently, this case does not
find application in the matter at hand.
29 The
applicants also argued that the Panel erred in law in failing to provide a mens rea analysis in its decision.
30 The
issue of mens rea was mentioned
in the case of Osisanwo v Canada (Minister of
Citizenship and Immigration), 2011 FC 1126, [2011]
F.C.J. No.. 1386, referred to by the applicants. The case of Osisanwo involved an application for judicial
review of an immigration officer's dismissal of an application for permanent
residence on the basis that the applicant made a material misrepresentation
with regard to the paternity of her son. However, the applicant in Osisanwo was not aware that her husband was
not the biological father of her son, which was only revealed after DNA
testing. In his reasons, Justice Hughes stated the following with regards to
the element of mens rea:
· [8] The essential question is whether one takes an
"objective" or "subjective" view as to whether what was
done was "misleading'. Stated another way, is mens
rea an essential ingredient?
· [9] A review of some of the earlier case law is helpful. In Hilario v Canada (Minister of Manpower and Immigration) (1977), 18 NR 529 (FCA), the Federal Court of Appeal considered a
situation where information had been withheld. Justice Heald for the Court said
at the end of the first paragraph at page 530:
· To withhold truthful, relevant and pertinent information may very
well have the effect of "misleading" just as much as to provide,
positively, incorrect information.
· [10] This statement carries with it the implication of
"withholding" and "providing", which is to say, mens rea is involved.
31 Ultimately,
Justice Hughes determined that the misrepresentations in question were entirely
inadvertent and that there was no reasonable basis for concluding that there
was any mens rea to mislead.
However, the Court finds that the case of Osisanwo, above, is wholly distinguishable from the case at hand, as the
daughter, mother and father all had knowledge of the material fact that
constitute the misrepresentation (the children's births) and withheld that
information.
32 Pursuant
to the aforementioned jurisprudence, the Court finds the Board's decision to be
reasonable, as the misrepresentations committed by the applicants cannot be
viewed as honest or reasonable mistakes or misunderstandings (see Medel v Canada (Minister of Employment and Immigration) (CA), a[1990] 2 FC 345a, [1990] F.C.J. No. 318; Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299, [2007] F.C.J. No. 1667; Berlin, above).
33 Rather,
the Court finds that, on the basis of the evidence on record, the applicants
were not forthright in their dealings with immigration authorities and thereby
did not fulfill their "duty of candour". Consequently, the Court
concludes that the Board's decision is reasonable and the application for
judicial review will be dismissed.
The Proposed Questions for Certification
34 The
applicants proposed the following questions for certification:
Is a foreign national
inadmissible for withholding a material fact pursuant to paragraph 40(1)(a) of IRPA if they have disclosed a material
fact to a visa office that opens a door for investigation by the visa
office?
Is a foreign national
inadmissible for withholding a material fact before visa issuance but
disclosing that before the permanent resident application process has been
completed?
Is it incumbent upon a
decision maker, making a paragraph 40(1)(a) of IRPA misrepresentation finding to first conduct a mens rea analysis?
Once a foreign national
discloses a material fact to a visa office does the onus shift from the foreign
national to the visa office to investigate?
35 The
Federal Court of Appeal stated the necessary criteria for certifying a question
of general importance in Canada (Minister of Citizenship
and Immigration) v Liyanagamage (FCA), [1994] F.C.J.
No. 1637, 176 NR 4. The proposed questions must transcend the interests of the
immediate parties to the litigation, contemplate issues of broad significance
or general application and be determinative of the appeal. In the Court's view,
the questions formulated by the applicant do not satisfy these criteria.
36 With
respect to the first question, the Court agrees with the respondent that it is
not of broad significance or general application as it essentially restates the
issue which was before the Court to be determined on its particular facts. More
particularly, when a misrepresentation prevents an officer from making a proper
determination of one's application in Canada, it equates a material
representation (Bodine v Canada (Minister of Citizenship
and Immigration), 2008 FC 848, [2008] F.C.J. No. 1069).
37 Concerning
the second question, the Court has decided that a misrepresentation of material
facts is not cured simply because it is corrected before the decision is
rendered (Haque, above, at para
17; Cabrera, above, at para 40; Uppal, above, at paras 30-31; Khan, above, at para 25). Moreover, in this
case, the Court found that there was no attempt to inform the visa post of the
birth of the children (clearly the second child) before a decision was made to
issue the applicants visa.
38 The
third question is not relevant in order to dispose of this case. Indeed, and
the Court agrees with the respondent, that the Board asked the applicants to
explain why the existence of the children was not disclosed to the Canadian
visa post, it analyzed the explanation and reasonably concluded that it was not
an innocent misrepresentation.
39 Finally,
it is trite law that the applicants have a duty of candour to disclose all
material facts both before and after a visa is issued (Ghasemzadeth
v Canada (Minister of Citizenship and Immigration),
2010 FC 716, [2010] F.C.J. No. 875, and, in this case, the Court found that the
second child was clearly not disclosed.
JUDGMENT
THIS COURT'S JUDGMENT is that
BOIVIN J.
Tuesday, May 29, 2012
Thursday, January 20, 2011
PHILIPPINES MARRIAGE CASE HIGHLIGTHS LEGAL COMPLEXITIES
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
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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