SPONSORSHIP FAILS AS CHILD CANNOT BE MEDICALLY EXAMINED

The Federal Court decision below illustrates an ongoing problem: the legislation requires that children be medically examined even if they are not accompanying the principal applicant to Canada. In cases where the applicant has no custody of the child, or where the custodial parent denies access, this becomes a problem. In the case below, the applicant failed in his efforts and his application was refused.

Anderson v. Canada (Minister of Citizenship and Immigration)

Between
Clifford Michael Anderson, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 516

2015 FC 495

Docket: IMM-6951-13

 Federal Court
Toronto, Ontario

Diner J.

Heard: March 4, 2015.
Judgment: April 17, 2015.

(26 paras.)

---

JUDGMENT AND REASONS

·       DINER J.:-- 

I. Overview

1     This is an application for judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision [Decision] dated May 21, 2013 by a Citizenship and Immigration Canada [CIC] Officer refusing the Applicant's request to waive the medical examination of his dependent son as part of the Applicant's application for permanent residence [PR] in Canada as a member of the Spouse or Common-Law Partner in Canada Class. That decision ultimately led to the refusal of the Applicant's PR application.

II. Facts

2     The Applicant is a citizen of Jamaica, and is being sponsored by a Canadian citizen to come to Canada. While the Applicant has two children from previous relationships in Jamaica, it appears that he does not have custody of either of these children.

3     The difficulty in his PR application arose when the Applicant was unable to have his son, Onique, medically examined because the child's mother refused to cooperate in facilitating this part of the process. The (different) mother of his second child allowed that child to be examined, and thus no issues were raised in his application with respect to his second child.

4     The Applicant consistently asserted throughout his interaction with CIC, including in sworn statements filed for the sponsorship, that he would not likely be in a position to compel Onique to be examined given the strained relationship with the boy's mother.

III. The Decision

5     On August 6, 2013, CIC sent the Applicant a letter warning him of the consequences of failing to have Onique examined, or else providing documentary evidence regarding custodial arrangements. The relevant part of the letter reads as follows:

·       In order to continue processing your application in Canada, further information is required. You must complete/submit the following information to the Case Processing Centre: 

·       [X] The Immigration and Refugee Protection Regulations create an exception regarding the admissibility requirements for children in the sole custody of a separated or former spouse or common-law partner. Applicants must however provide documentary proof of the custody arrangements. 

·       You have indicated that the following family member(s): 

·       ONIQUE ANDERSON 20JUL2001

·       Cannot be examined because: Onique's mother will not allow him to complete medical. 

·       Please be advised that children who are not examined cannot later be sponsored as member of the family class despite any future changes in custody arrangements, and the best interests of you child/children might be better served by having your child or children examined. 

·       If your child(ren) cannot be examined and you can provide documentary evidence that they are in the sole custody of another person, please provide this evidence, accompanied by a signed statutory declaration acknowledging this fact. You must also state that you cannot sponsor your child or children as members of the family class in the future. The statutory declaration must be administered by a Commissioner for Oaths or Notary Public. 

·       If your child or children are not in the sole custody of another person, they must undergo Immigration examination. 

·       [Emphasis in original] 

6     On October 9, 2013, an officer at the CIC inland office in Vegreville, Alberta, refused Mr. Anderson's application for permanent residence for not having produced documentation relevant to his son:

·       Subsection 16(1) of the Immigration and Refugee Protection Act states that a person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. In your case you have not shown that you meet this requirement because you have not responded to our requests for documentary evidence (custody document) that your child Onique is in the sole custody of your ex-partner.

·       As a result of your failure to produce all relevant evidence and documents required by subsection 16(1) of the Immigration and Refugee Protection Act, it cannot be established that you meet the requirements for permanent residence as described in subsection 72(1) of the Immigration and Refugee Protection Regulation. 

·       Your application for permanent residence as a member of the Spouse or Common-Law Partner in Canada Class is, therefore, refused. 

·       [Emphasis in original] 

IV. Parties' positions

7     The Applicant argues that the Respondent misinterpreted or overlooked evidence in finding that the Applicant failed to respond to CIC's request for documentation. Rather, the Applicant was clear at all times: he was unable to produce the requested custodial documentation because none existed.

8     In response to CIC's August 6, 2013 letter requesting Onique's examination, the Applicant's counsel provided a letter advising that he had no custody order, and has never had one. He indicated that the Applicant and the child's mother were not on good terms, and he did not believe she would agree to present the son for examination. Furthermore, the Applicant submits that this information had already been submitted by the Applicant when he filed his PR application in 2011, giving CIC a "heads-up" from the very outset that his eldest child could very well pose an issue for examination due to the non-cooperation of his mother.

9     The Applicant argues that section 16(1) of the IRPA, requiring the production of all relevant documentation an officer reasonably requires, cannot be engaged to his detriment in this case because no custody documents existed, nor did he have the power to obtain such documents.

10     The Respondent, on the other hand, argues that Mr. Anderson's statutory declaration, which stated that he cannot obtain the required documentation, is not sufficient to overcome the requirement of the IRPA to produce custody documentation. In light of the statute and the record, the Officer's refusal of the Applicant's PR Application was reasonable and should not be disturbed.

11     A significant portion of the hearing was devoted to the discussion of two key cases which arrived at different outcomes: Nguyen v Canada (Citizenship and Immigration), 2014 FC 1191 [Nguyen] and Rarama v Canada (Citizenship and Immigration), 2014 FC 60 [Rarama].

12     In Nguyen, the refusal of a visa officer to waive the medical examination of the applicant's dependent son with respect to her application for permanent residence in Canada was deemed reasonable. The Applicant distinguished Nguyen by arguing that Ms. Nguyen had joint custody with her husband (Nguyen at para 18) whereas in the case at bar, there is no custody agreement or order, and it is Mr. Anderson's uncontroverted, sworn testimony that sole custody has always rested with Onique's mother. In fact, the Applicant attempted to have the child examined abroad, but those efforts were rebuffed by the child's mother. Furthermore, unlike the circumstances in Nguyen, the Applicant argued that he had no intention to bring Onique to Canada at a future date. Thus, the policy imperatives underlying the medical examination are obviated.

13     The Applicant argued that the facts of this case lie much closer to those of Rarama, wherein:

·       (i) 

there was a waiver of the right to sponsor the child in the future (Rarama at para 29); 

·       (ii) 

there was no custody agreement, but the supervising parent refusing to cooperate with the request to present the child for examination (Rarama at para 16); 

·       (iii) 

the applicant was in a new relationship (Rarama at para 31); 

·       (iv) 

the visa officer had improperly rejected the PR application for the applicant's failure to demonstrate they would not assert their parental rights (Rarama at para 32). 

14     The Respondent asserts that Rarama does not assist the Applicant, because the Court in that case concluded that an officer is not compelled to accept the contents of an applicant's statutory declaration (Rarama at para 26). The Respondent urged the Court to rather follow Nguyen, for the proposition that the applicant cannot choose not to have a family member examined; he must first exhaust all reasonable avenues to have a dependant child examined (Nguyen at para 33).

15     The Respondent argued, in short, that the Officer was not satisfied with the Applicant's efforts to have his son made available for examination. The Officer acknowledged the sworn declaration that Mr. Anderson submitted, but was ultimately unsatisfied that the Applicant could not assert his parental rights to bring his son to Canada. The Respondent submits that custody is not limited to physical care and control of the child, but is rather a bundle of rights and obligations allocated to parents (Alexander v Canada (Solicitor General), 2005 FC 1147 at para 40).

16     In other words, while the Applicant may not have physical control of the child, he may have other parental rights, including applying for relief through the court system. The Applicant implicitly admitted this in his sworn statement, when he stated that he does not feel that it would be in his best interest to involve the Jamaican courts in a custody dispute.

17     Furthermore, the Respondent argued that the guidelines in CIC Manual IP8 instruct that the applicant has to produce the dependant, unless the Immigration and Refugee Protection Regulations [IRPR] section 23 exemption applies. The Applicant may only benefit from the exception with some variant of a Court order or custody agreement. As Manual IP8 states at section 5.26:

·       Proceeding in this way should be a last resort and only after the officer is convinced that the applicant cannot make the family member available for examination. 

V. Analysis

18     The parties agree, and it has been established by this Court, that refusals of PR applications by Officers that are based upon a failure to provide proof of attempts of medical examination or custodial documentation, are judicially reviewed on a reasonableness standard (Rarama at para 15; Ahumada Rojas v Canada (Citizenship and Immigration), 2012 FC 1303 at para 8 [Rojas]).

19     I will begin by briefly setting out the operative sections of the IRPA in this case. Section 16(1) of the IRPA requires that a person who makes an application must submit the relevant documents and evidence reasonably required. Section 72(1)(e)(i) of the IRPR, states that the applicant and his family members, whether accompanying or not, must be admissible. Section 30(1)(a)(i) of the IRPR requires that family members of foreign nationals, whether accompanying or not, submit to a medical examination. An exception to this requirement is found in section 23(b)(iii) of the IRPR, when dependent children are in the sole legal custody of a separated or former spouse or common-law partner. CIC's applicable Policy Manual, IP8, states that proceeding without the examination of all family members is a last resort and the applicant cannot choose not to have a family member examined.

20     In light of these provisions, I find the decision of the Officer to be a reasonable one. The law is clear that family members must be admissible in order for the applicant to obtain permanent residence. Section 23 of the IRPR creates an exception when children are in the sole custody of a separated or former spouse. However, in order to benefit from the section 23 exception, the applicant must provide proof of custody arrangements for non-accompanying children.

21     In this case, the Applicant has asserted, from the beginning, that he does not have custody of his children. However, I am not persuaded that the Officer reached an unreasonable conclusion, because in my view, the Applicant has not made sufficient efforts to demonstrate that such an examination would be infeasible. For instance, the Applicant did not engage the justice system in Jamaica to obtain court approval, nor did he make any effort to go to Jamaica and facilitate the examination in person.

22     The facts of this case are distinguishable from those outlined in Rarama. In that case, Justice Strickland found the decision unreasonable because the CIC's own Manual indicated the difficulties that may exist in obtaining formal custody arrangements in the Philippines:

·       [27] Further, as stated at page 22 of Manual IP 4, in countries where "legal separation and divorce are not possible, for example, the Philippines", it may also be that formal custody arrangements are not be easily attained since those arrangements would arise from the event of a separation or divorce. 

·       [28] In these circumstances, the officer's refusal without explanation to accept the statutory declaration as evidence as to the custody of the Applicant's daughter was unreasonable. 

23     Further, the applicant in Rarama was able to provide CIC with evidence that "the Applicant's lawyer in the Philippines had told the Applicant that she had no right to require conduct of the medical examination under Philippine law" (Rarama at para 8).

24     In contrast, the Applicant in this case has not pointed the Court to any evidence (for example, a legal opinion, country documentation or documentation evidencing an engagement with Jamaica's judicial apparatus) indicating that conditions in Jamaica would impede reasonable efforts to obtain custodial documentation.

25     As a result, and as I concluded in Nguyen, I find that the Officer's conclusion that the parent in question had not effectively exhausted all available remedies in ensuring that their child was examined to be a reasonable one (Nguyen at para 34; see also Rojas at para 18).

VI. Conclusion

26     The Officer arrived at a decision that was reasonable, as it fell within the range of possible outcomes and was defensible based on the facts and the law. The application for judicial review is therefore dismissed. The parties raised no questions for certification.

JUDGMENT

·       THIS COURT'S JUDGMENT IS that

·       1. 

The judicial review is dismissed. 

·       2. 

No question will be certified. 

·       3. 

No order for costs will be made. 

DINER J.

APPARENT "RELATIONSHIP OF CONVENIENCE" DOOMS SPONSORSHIP

In the recent case below, the Federal Court summarizes the elements of a "relationship of convenience", namely one entered primarily for the purposes of gaining immigration status.  Applicants should be  mindful of the potential refusal of such arrangements.

Rahman v. Canada (Minister of Citizenship and Immigration)

Between
Arifur Rahman, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 968

2013 FC 877

Docket IMM-10951-12

 Federal Court
Montréal, Quebec

Gagné J.

Heard: July 10, 2013.
Judgment: August 16, 2013.

(29 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     GAGNÉ J.:-- Citizenship and Immigration Canada (CIC) denied Mr. Arifur Rahman's application for permanent residence under the spouse or common-law partner in Canada class, as defined in section 124 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations], finding that he was a foreign national described in its subsection 4(1), as amended. Upon review of the evidence on record, the immigration officer [the Officer] concluded that the applicant's marriage with his sponsor, Ms. Kamrun, was a "relationship of convenience" and was entered into primarily for the purpose of acquiring a status or privilege under the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act].

2     The applicant seeks judicial review of that decision, arguing that the Officer committed a reviewable error by focusing on certain interview questions and answers which disclosed minor contradictions, while ignoring the testimonial and documentary evidence that was more favourable to his case.

Background

3     The applicant is a forty-nine-year-old citizen of Bangladesh. On January 31, 2008, he left his native country and made a refugee claim in Canada. He left behind his two minor children, whose mother had passed away in 2000.

4     On May 30, 2012, the applicant's claim for refugee protection was rejected by the Immigration and Refugee Board, and leave for judicial review of that decision was denied by this Court in June 2012.

5     On January 8, 2010, the applicant married Ms. Kamrun, a twenty-nine-year-old Bangladeshi national and Canadian citizen. He states that he had first met her on February 8, 2008, at the YMCA in Montreal, and that over the next few months, their relationship gradually developed into a committed, romantic one.

6     This was Ms. Kamrun's second marriage. She married her first spouse on February 21, 2004 in an arranged marriage. She sponsored her first husband's application for permanent residence in Canada on August 31, 2004, and lived with him until August 2007. No children were born of that marriage and the couple divorced on June 17, 2009.

7     On August 19, 2010, the applicant filed an application for permanent residence under the spouse or common-law partner in Canada class, sponsored by his new wife.

8     The applicant and his wife were interviewed by the Officer on August 30, 2012 and September 26, 2012 respectively. On October 12, 2012, the Officer dismissed the applicant's application because she was not satisfied that the couple was in a genuine relationship. Furthermore, the evidence established that, on a balance of probabilities, the applicant's marriage with his sponsor was entered into primarily for the purpose of acquiring a status or privilege under the Act.

Decision under Review

9     The Officer raised a number of inconsistencies between the answers provided by the applicant and his sponsor at their interview, along with other deficiencies in the evidence filed in support of the application, which led her to doubt the genuineness of their relationship. In her decision, the Officer notably refers to:

·       * 

The wedding ceremony and reception: The applicant and his wife both stated that they were married at the Montreal courthouse, but the more detailed information that they provided regarding the post-wedding reception was contradictory. Moreover, the Officer found that no documentary evidence or photographs were submitted to support the couple's allegation that the wedding was followed by a religious ceremony at a mosque; 

·       * 

The little interest associated with this important event: The applicant stated that there was no ceremony on the day of their marriage because it had been held on a week day, and they both had had to return to work afterward. The applicant's wife did not remember which day of the week the ceremony was held on. Moreover, the photographs taken at the restaurant where the applicant and his wife allegedly celebrated their marriage do not establish that it was indeed the location of a wedding reception; 

·       * 

The absence of the sponsor's family at the wedding ceremony: Upon examination of the wedding photographs, the Officer observed that no member of the sponsor's family attended her marriage. The sponsor had stated that her mother was present (although not in the photographs), but her father had not attended the ceremony as he had to be at work; 

·       * 

The engagement and wedding rings: The Officer found that the rings the applicant and his wife were wearing were not real wedding rings. Furthermore, neither the applicant nor his sponsor could remember the name of the jewellery stores where they purchased the rings; 

·       * 

Their divergent plans for the future: The Officer found that the couple did not have any common plans for their future life together; 

·       * 

The lack of communication surrounding the applicant's immigration status: The applicant stated that his wife was aware of the fact that he was subject to a removal order, and said that she would follow him to Bangladesh should his application for permanent residence be refused. However, his sponsor, when asked in her interview about what she would do should such a situation develop, spontaneously answered that she would not return to Bangladesh. When confronted with his wife's answer, the applicant stated that they had in fact not yet discussed the matter. The Officer found that this demonstrated a lack of communication between the spouses on a crucial matter that would affect their relationship. The Officer stated that she had serious doubts that the relationship would continue in the event that the permanent residence application was refused and the applicant returned to his country of origin; 

·       * 

The circumstances of their first meeting: The applicant stated that he had first met his sponsor at the YMCA in the elevator, he had started a conversation with her, she had given him her phone number, she had then called him, and they had met up again two or three days later. Meanwhile, in his application, the applicant had mentioned that he had first seen his wife while she had been studying at the YMCA where he had lived, he had started a conversation with her, and she had called him three days later. However, for her part, the sponsor stated that they had exchanged phone numbers and the applicant had called her later that same evening to go out to a restaurant for dinner; 

·       * 

Whether the relationship between the applicant and his wife was known to their respective families and friends: The applicant stated that he had informed his parents of his relationship with the applicant only when they had decided to get married. The sponsor explained that her parents had been unaware that she had been dating the applicant and that is why the applicant did not remember the name of the street where her parents live. The Officer observed that the applicant provided a list of friends' names without specifying their relationships or ties to him or to his wife. The Officer also noted that none of the photographs of the couple taken with friends or family members established that they were perceived as a couple in society; 

·       * 

Their period of cohabitation: The applicant stated that the couple moved in together in either February or March 2010 as they had lived with his in-laws immediately after having gotten married. Meanwhile, in his application, the applicant stated that he had started living with his wife as of January 8, 2010, the day of their wedding ceremony. As for the sponsor, she stated that they had moved in together two days after the wedding ceremony. When confronted with this contradiction, the applicant explained that for a month after their marriage, he had continued living with his roommates while his wife had lived with her parents. They both confirmed that they had moved in together only in February 2010. The lease on record showed, however, that they had taken possession of their apartment only on March 1, 2010 for a period of twelve months. The Officer found the fact that the applicant and his wife had not rented lodgings prior to their wedding, even though they had been dating for two years by that point in time, showed that their relationship lacked seriousness; 

·       * 

When and where the marriage proposal was made: The applicant stated that he had proposed in 2009 in a restaurant but he could not recall its name. For her part, the sponsor did not recall the date, the place or the circumstances of her marriage proposal. 

10     When she confronted the couple with the inconsistencies she detected between their narratives, the Officer was not convinced by their explanations. She believed that their responses to her interview questions simply sought to fill in the holes of their respective original statements.

11     Accordingly, the Officer concluded that the applicant was a foreign national described in subsection 4(1) of the Regulations and refused his application for permanent residence.

Issue and Standard of Review

12     The only issue raised by the applicant in his written submissions is whether, based on the evidence on record, it was reasonable for the Officer to find that the applicant failed to establish, on a balance of probabilities, that his marriage with his sponsor is genuine and not entered into primarily for the purpose of acquiring a status or privilege under the Act.

13     The parties are in agreement that determining whether a relationship is genuine or entered into for the purpose of acquiring a status under the Act is primarily a factual determination, reviewable under the standard of reasonableness (Keo v Canada (Minister of Citizenship and Immigration), 2011 FC 1456 at para 8 [Keo]; Amayeanvbo v Canada (Minister of Citizenship and Immigration), 2011 FC 621 at para 26; Zheng v Canada (Minister of Citizenship and Immigration), 2011 FC 432 at para 18; Kaur v Canada (Minister of Citizenship and Immigration), 2010 FC 417 at para 14).

14     Such determinations should generally be left to the immigration officer, as should the assessment of credibility and the weighing of the evidence. As a result, this Court can only intervene if the officer's determinations, and thereby her decision, are based on erroneous findings of fact made in a perverse, capricious manner or if she made her decision without regard to the material before her (Minister of Citizenship and Immigration v Tirer, 2010 FC 414 at paras 10-11 [Tirer]; Singh v Canada (Minister of Citizenship and Immigration, 2012 FC 23 at paras 16-17 [Singh]).

Analysis

15     The applicant argues that the Officer committed a reviewable error by focusing on certain interview questions and answers which disclosed minor contradictions, while ignoring the testimonial and documentary evidence that was more favourable to the applicant's case. This argument does not hold up for two main reasons.

16     First, the Officer was correct in focusing on and relying upon, in her decision, the discrepancies and deficiencies that she detected in the evidence. The Officer's role in this instance was to review and comment on the evidence put before her in order to determine, on a balance of probabilities, the genuineness of the couple's relationship. In doing so, she was to reasonably consider both the positive and negative factors in the application. The Officer was then required to provide the applicant with the reasons for her decision: she was not required to provide reasons as to why she arrived at a certain decision, but only the reasons justifying her determination of his application. In his submission, the applicant states that the Officer failed to consider abundant documentary evidence which supported the bona fide of his marriage. Yet the applicant fails to specify any evidence that contradicts or seriously challenges any of the Officer's negative findings with regard to his application.

17     Although the applicant may have preferred the Officer to focus exclusively on the evidence that, in the applicant's view, supported his case, this is not what is required of the decision-maker here (see Tirer, above, at paras 12-14). As such, even if some of the evidence supported a bona fide relationship, the applicant's argument amounts to no more than asking this Court to reassess the evidence in order to re-weigh the positive and negative findings of his application for the purposes of substituting its own opinion for that of the decision maker's. This is not the function of a judicial review. The decision-maker cannot be criticized for having relied upon some evidence relating to certain criteria regarding the genuineness of a relationship rather than upon other evidence, so long as both the negative and positive factors are reasonably assessed (Canada (Minister of Citizenship and Immigration) v Pierre, 2012 FC 1169 at para 26; Gangurean v Canada (Minister of Citizenship and Immigration), 2012 FC 286 at para 11).

18     Second, the Officer's findings are reasonable and entirely supported by the evidence on record. Even if some of the reasons found in the decision regarding the couple's credibility are less relevant or compelling, on the whole, there is little in the record to support a finding that the impugned decision was based on erroneous findings of fact made in a perverse and capricious manner or made without regard to the evidence at hand.

19     The Officer made the following findings of fact: that there was no corroborative evidence concerning the religious ceremony that the couple alleged was held in the mosque following the civil ceremony; that the sponsor's family members (including her father) were absent at the wedding ceremony; that the couple told conflicting narratives regarding the circumstances leading up to and surrounding the marriage; that there was a lack of evidence showing that the applicant and his sponsor were perceived as a couple by their family and friends; and that there was a lack of communication regarding important issues in their relationship such as the applicant's status in Canada and their common plans for the future. Coupled with other inconsistencies she found in the information the applicant and his wife provided at their respective interviews, the Officer rejected the application.

20     On his part, the applicant argues that it was unreasonable for the Officer to expect that the applicant and his wife remember the date, the place and the circumstances of their first meeting, the marriage proposal itself or the day of the week that the marriage was held on, as these all had occurred more than two years prior to their interviews with the Officer. The applicant also argues that it was unreasonable to expect that the couple would rent a place together before getting married. Moreover, he argues that it was unreasonable for the Officer to find, based on Western customs, that the couple's rings were not traditional wedding rings, without having first considered the possibility that Bangladeshi marital customs may differ from Western ones. The applicant also takes issue with the Officer's conclusions regarding Ms. Kamrun's lack of knowledge of the applicant's outstanding removal order. The sponsor submits that she was aware of his unsuccessful refugee claim but it could not be reasonably expected of her that she also be aware that his removal order may become enforceable at the end of the refugee application process. The applicant argues that this is a "technical issue" of which Ms. Kamrun was not informed.

21     The Court should be hesitant to apply the holdings from other cases, as the determination of the genuineness of a relationship is a highly fact-driven analysis. When an immigration officer takes issue with a limited number of questions that were submitted to the applicant and his or her sponsor, the question is whether the inconsistencies detected in the evidence are significant enough for the officer to conclude to a lack of genuineness based solely on those inconsistencies (see Singh, above, at paras 24 and Keo, above, at para 24).

22     Section 5.20 of Citizenship and Immigration Canada's IP 8 - Spouse or Common-law partner in Canada class provides criteria to assist the immigration officer in the determination of the genuineness of a relationship. The immigration officer is to investigate into the existence of the following factors: a significant degree of attachment, both physical and emotional; an exclusive relationship; a mutual and continuing commitment to a shared life together; and an emotional and financial interdependency. Specifically for the purposes of an analysis for subsection 4(1) of the Regulations, the immigration officer is also to refer to OP 2 - Processing Members of the Family Class (the OP 2), which is intended to provide guidance as to the factors that should be considered in identifying a relationship of convenience.

23     Section 12.1 of OP 2 offers the following factors for the immigration officer to consider :

·       * 

The circumstances and duration of the courtship; 

·       * 

The wedding itself (where it was celebrated. what type of marriage, who attended it); 

·       * 

Whether the marriage ceremony conformed to the beliefs and culture of the participants; 

·       * 

Evidence that the spouses have lived together. 

24     Meanwhile, factors that the immigration officer may consider when assessing a common-law relationship, as listed in section 12.2 of OP 2, include:

·       * 

How the couple met and the circumstances that led them to decide to live together. 

·       * 

The length of time the parties knew one another before they established a common-law relationship. 

·       * 

How convincing is the evidence that the couple have lived together for at least one year? Is it sufficient? 

·       * 

Have the parties combined their affairs to the extent that a reasonable person would expect of a couple in a conjugal relationship (vs. what could be expected of "room-mates")? 

·       * 

Do the couple demonstrate the level of interdependence expected of persons in a conjugal relationship? 

·       * 

Is there evidence that the couple has established their own household and lives separately from their families in a conjugal relationship (rather than a sibling relationship), even if colocated with other family members? In some cases, DNA testing may be required to ensure that applicants are not blood relatives. 

25     There also exists considerable jurisprudence pertaining to an immigration officer's assessment of the genuineness of a relationship. For instance, in Keo, above, at paras 23-26, Justice Martineau states that all the circumstances surrounding the marriage should be looked at by the officer or panel, who is presumed to have considered all of the evidence before it, and who should not be criticized for being punctilious in the assessment.

26     I agree that the Officer's reasons are not flawless. There are several positive, but also other relevant negative factors, in the evidence that could have been also used to assess the application. However, the conclusions she based her decision on are reasonably drawn, and the factors she relied on, such as the specific circumstances of their first meeting, the proposal and the wedding ceremony, the significance of their marriage in the eyes of their respective families and friends, as well as the couple's lack of pre-marital planning for marital cohabitation, are within the bounds of those that are established by the jurisprudence and the Citizenship and Immigration Canada operational manuals. I am convinced that the impugned decision, when taken as a whole, in light of the entirety of the evidence and the Officer's detailed reasons, falls within "the range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).

27     The onus is on an applicant to provide sufficient evidence to satisfy the decision maker that his or her relationship is genuine and that he does not fall under subsection 4(1) of the Regulations (Nguyen v Canada (Minister of Citizenship and Immigration), 2012 FC 587 at para 19). The applicant failed to allege or to provide any evidence before the Officer that their choice of wedding rings was in accordance with Bangladeshi customs. Even if this argument could be considered persuasive in other circumstances, it is not sufficient in this instance to affect a review of the reasonableness of the Officer's overall decision.

28     Finally, although I agree that the sponsor's lack of knowledge regarding the removal order and the procedures that are followed before a removal order becomes enforceable was not in and of itself enough to assess credibility about the genuineness of the couple's relationship, the fact that the spouses had not yet contemplated the applicant's potential removal from Canada and had no common plans to deal with that situation should it have occurred, was a relevant and reasonable consideration in her assessment.

29     Based on the foregoing, Mr. Rahman's application for judicial review is hereby dismissed. No question of general importance is proposed by counsel and none arises in this case.

JUDGMENT

THIS COURT'S JUDGMENT is that:

·       1. 

This application for judicial review is dismissed; 

·       2. 

No question of general importance is certified. 

GAGNÉ J.

INCONSISTENCIES DOOM SPONSORSHIP APPLICATION

This is an interesting case, especially because the applicant attempted multiple sponsorship applications over time. The court held that the officer was entitled to consider the cumulative effect of the discrepancies in the evidence.

Tong v. Canada (Minister of Citizenship and Immigration)

Between Sau Ling Tong, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 336

2013 FC 312

Docket IMM-5918-12

 Federal Court
Toronto, Ontario

Rennie J.

Heard: March 14, 2013.
Judgment: March 26, 2013.

(26 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     RENNIE J.:-- The applicant seeks to set aside a decision made by an Immigration Officer (Officer) denying her application for a permanent residence as a member of the Spouse or Common-law partner in Canada class. The Officer determined that the applicant's marriage was entered into primarily for immigration purposes. For the reasons that follow the application is dismissed.

Facts

2     The applicant, Ms. Tong, is a citizen of China. She first visited Canada on July 22, 2009. She stayed with her uncle. She extended her visitor's visa and remained in Canada until February 2010.

3     Five months later, on July 2, 2010, the applicant attempted to re-enter Canada as a visitor but she was denied entry and detained based on the suspicion that she may not leave Canada at the end of her authorized stay. On July 6, 2010, the applicant made a refugee claim and she was released on a bond with terms and conditions.

4     Seven months later the applicant married Mr. Wang, a Canadian, on January 29, 2011. She applied for permanent residence under the Spouse-in-Canada class on June 1, 2011. On July 11, 2011 the applicant withdrew her refugee claim.

5     The applicant met her husband in 1989 in Beijing when she was 17 years old. Mr. Wang lived near her father, whom she visited during the school holiday. She saw Mr. Wang again in 1992 while working as a tourist guide. She would bring tour groups to the restaurant where he worked. Mr. Wang would later immigrate to Canada but he sent her a post-card each year.

6     The applicant married her first husband in 1997 and in 2002 they moved to Hong Kong. When her husband became angry and abusive she began working so she could support herself and leave him. They separated in 2008 and divorced in 2010.

7     Her mother suggested she visit her uncle in Canada so she could take a break from her marital problems. She did so in 2009 and reconnected with Mr. Wang. They traveled and visited tourist sites together. Mr. Wang gave her gifts and money. When she left, she promised to return to Canada to see him again.

8     When she returned to Canada in 2010, Mr. Wang had joined the Royal Canadian Navy. He visited her in Toronto and asked her to marry him. They married on January 29, 2011 and now live together.

Decision Under Review

9     In a letter dated May 30, 2012, the Officer refused her application for permanent residence status pursuant to subsection 4(1) of the aImmigration and Refugee Protection Regulationsa, SOR/2002-227 (Regulations) which provides that:

 

·       4. 

(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 

 

·       (a) 

was entered into primarily for the purpose of acquiring any status or privilege under the Act; or 

·       (b) 

is not genuine. 

* * *

 

·       4. 

(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 : 

 

·       a) visait principalement l'acquisition d'un statut ou d'un privilège sous le régime de la Loi; 

 

·       b) 

n'est pas authentique. 

10     The Officer subsequently provided a document titled "Reasons for decision made on 24 May 2012" to elaborate on the basis for the decision.

11     The Officer noted that this was Mr. Wang's third spousal sponsorship. While she considered this "somewhat unusual" she noted that it was not itself a reason to believe that his current marriage was not genuine.

12     The Officer noted that the applicant and her husband gave consistent answers to questions regarding their daily routine and interests. Additionally, the applicant provided a number of photographs, letters and calling cards. The Officer found that she "must question the extent of this documentation" because it appeared that the evidence was kept for the purpose of the permanent residency application.

13     The Officer considered there to be "a great number of inconsistencies" which led her to question the credibility of the parties and to believe that the marriage was entered into primarily for immigration purposes:

 

·       a. 

On her application to extend her visitor's visa the applicant stated that she was renting an apartment in Toronto. However, it was later revealed that she was staying with her uncle in his apartment. 

·       b. 

Upon her arrival to Canada in 2010 the applicant stated that she was not employed. However, on her application for permanent residence she mentioned that she was employed as an aesthetician before entering Canada in 2009 and upon her return in 2010. 

·       c. 

She made a refugee claim "without basis" which indicated that she had a desire to remain in Canada "at all costs." 

·       d. 

It was "odd" that neither the applicant's uncle nor Mr. Wang were her bondsperson. 

·       e. 

Mr. Wang stated that he divorced his first wife because she did not wish to immigrate to Canada. However, when he sponsored his second wife, he stated that his first divorce was the result of her infidelity. 

·       f. 

Mr. Wang stated that he and his second wife separated because she was used to a "decent" life in China and did not wish to work in Canada. The Officer considered this a contradiction because Mr. Wang's second wife came from a rural area in China and worked as a waitress prior to immigrating. 

·       g. 

The parties stated that they had no joint property or life insurance policies with each other as a beneficiary. They did have a joint bank account but the balance was low and there had been large cash withdrawals. There was one recent withdrawal of $8,000 which Mr. Wang said was to pay medical bills for the applicant's mother in China. The Officer questioned this explanation because they did not have much money in the account and because the applicant had her own savings. 

·       h. 

Mr. Wang provided a will signed after the interview naming the applicant as his beneficiary. He also provided two references verifying their relationship. The will stated that Mr. Wang was 40 when he in fact was 44. The Officer also questioned why these documents were not provided before the interview. 

Issue

14     The sole issue for this judicial review is whether the Officer reasonably determined that the marriage was entered into primarily for the purpose of acquiring status. In applying the standard of reasonableness, a court considers "the existence of justification, transparency and intelligibility within the decision-making process" and "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, para 47. The applicant contends that the reasons do not meet this standard.

15     The applicant further contends that the Officer breached procedural fairness in not providing the applicant an opportunity to address some of the alleged inconsistencies in her evidence, or in failing to ask reasonable supplementary questions to answer which would have alleviated any concern the Officer may have had.

16     The applicant also submits that the Officer breached procedural fairness by providing inadequate reasons. However, while the decision letter is brief, detailed reasons were later provided. Additionally, adequacy of reasons is not a stand-alone basis to challenge a decision. Rather, the reasons must be read together with the outcome and show whether the result falls within a range of possible outcomes: Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, para 14. Therefore, there is no issue as to procedural fairness.

Analysis

17     As a preliminary issue, the applicant has provided substantial additional evidence on this judicial review application, contained within her affidavit and her written submissions. Judicial review is conducted on the basis of the evidence which was before the decision maker. Therefore, I have not considered any evidence which was not before the Officer.

18     I accept counsel's submissions that some of the inconsistencies, when viewed individually, are minor. I also accept that there may have been an explanation which rationalized some of the inconsistencies. I do not find, however, that this renders the decision unreasonable or that there has been a breach of procedural fairness.

19     The Officer was entitled to take a close look at the discrepancies in the evidence given the applicant's immigration history and the fact that this was the third time the sponsor had sponsored a wife from China. The circumstances of those prior applications, and the brevity of the subsequent marriages, support closer scrutiny of what might otherwise be inconsequential discrepancies in the evidence. It is to be recalled that the sponsor and his first wife separated shortly after she became a permanent resident, and they were divorced 22 months later. The marriage lasted less than three years. The second marriage ended after four years. Notwithstanding the prior history, the Officer recognized that the case had to be answered on its merits and that the critical issue was whether the marriage before her met the requirements of the Regulations.

20     The Officer drew a negative inference as to the genuineness of the marriage from inconsistent testimony from the applicant as to whether she was employed prior to her arrival in Canada and as to where she resided on her arrival. Similarly, the Officer was free to infer from the withdrawal of the refugee claim that it had no foundation. While the applicant offered an explanation, the Officer was not bound to accept it and the inference to be drawn was open to her on the evidence.

21     I also find that the Officer was entitled to draw an inference from the discrepancy in the sponsor's evidence with respect to the reasons for the failure of the first marriage. In his evidence he said it was by reason of a difference of opinion as to where they were to live. His wife wanted to live in the United States and he in Canada. In his sponsorship application however, he said the reason for the failure was because of her infidelity. This is a significant inconsistency.

22     The Officer observed that, apart from a joint bank account, the applicant and sponsor had no joint property or life insurance policies that named each other as beneficiaries. A will, executed May 24, 2012 by Mr. Wang was received after the interviews on May 28, 2012. It named the applicant as a beneficiary. However, Mr. Wang's condominium in Toronto is owned jointly with his father.

23     The bank statements for the joint account, covering a two year period, showed minimal balances, with a large cash deposit and withdrawal of $8,000. When asked to explain the purpose of the withdrawal Mr. Wang said it was to pay for his mother-in-law's medical expenses in China. The Officer questioned this explanation having heard from Ms. Tong that she had $10,000 of her own savings in a separate account.

24     Finally, the Officer noted the correspondence between Ms. Tong and Mr. Wang, as well as telephone bills indicating calls from Ms. Tong to Mr. Wang while on training. The records begin in 2010 and conclude with the permanent residency application in May of 2011. The Officer concluded that:

 

·       ... the evidence of their relationship has been purposely kept in such fashion as to be presented for the specific purpose of a permanent residency application. 

25     Again, looking at this evidence as a whole and in light of their respective immigration histories, this conclusion was open to the Officer on the record before her.

26     To conclude, while the applicant and her sponsor have rationalizations or explanations for some of the points in issue that the Officer found troublesome, the onus on providing an evidentiary foundation for a successful permanent residence application rests with the applicant and sponsor. They must put their best case forward. After all, it is the applicant and sponsor who know and understand all aspects of their history and relationship and the onus lies on them to address lacunae, gaps or discrepancies reasonably arising in their histories. While I accept counsel's argument that procedural fairness issues might arise if the Officer's questioning did not allow for full answers those concerns do not arise in the facts of this case.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. There is no question for certification.

RENNIE J.