PRESENT: THE HONOURABLE MR. JUSTICESHORE
BETWEEN:
AND IMMIGRATION
and
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1] A cosmetic marriage is not a vehicle by which to provide sponsored entry into Canada. Optics are not a substitute for good faith wherein no intention exists of residing permanently with the sponsoring spouse.
[2] The "... real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions." (Faryna v. Chorny, [1952] 2 D.L.R. 354 (BCCA).)
JUDICIAL PROCEDURE
[3] This is an application pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for leave to commence an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (Board), rendered on February 23, 2005 allowing the Respondent's sponsorship appeal of the refusal to approve the application for landing made by the Respondent's wife.
BACKGROUND
[4] The Respondent, Mr. Jhonny Roberto Navarrete, was born on February 11, 1973 in Ecuador. He became landed in Canada on December 7, 1996, after having been sponsored by his mother.
[5] Ms. Maria Roselina De Jesus, the Applicant in the application for permanent residence, is alleged to be Mr. Navarrete's wife. She was born on May 9, 1976 in the Dominican Republic. Ms. Maria Roselina De Jesus has three children, ages, 9, 10, 13. She lost contact with the father of her children.
[6] Mr. Navarrete visited the Dominican Republic from December 18, 1999 to January 3, 2000 when he met Ms. Maria Roselina De Jesus and her children at the beach. He returned to the Dominican Republic on November 18, 2000and stayed for two weeks. He married Ms. Maria Roselina De Jesus on November 25, 2000, the same day as her sister's wedding. Mr. Navarrete returned to the Dominican Republicagain to visit for two weeks in December 2002.
[7] Mr. Navarrete took steps to sponsor Ms. Maria Roselina De Jesus and her three children to immigrate to Canada. An application for permanent residence was received by the Canadian Visa Office at Port-au-Prince, Haiti on June 4, 2001.
[8] The Visa Office received anonymous information that Mr. Navarrete is the common law husband of Ms. Maria Roselina De Jesus' sister, Ms. Gleidys De Jesus, and that Ms. Gleidys De Jesus married Mr. Jose Abel Felipe in the Dominican Republic on the same day as Mr. Navarrete married Ms. Maria Roselina De Jesus. The information also indicated that Mr. Felipe applied to immigrate to Canada and did not report his criminal record which included a conviction for rape. Mr. Felipe's sister is Ms. Marisol Felipe who is married to Mr. Michael Campbell. They work at an immigration consulting firm, Immigration Assistance Centre, which was used by both Mr. Felipe and Ms. Maria Roselina De Jesus and their sponsors (Mr. Navarrete and Ms. Gleidys De Jesus). Mr. Felipe's application for permanent residence was ultimately refused. Ms. Gleidys De Jesus filed a sponsorship appeal to the Immigration Appeal Division, but this appeal was declared abandoned on September 9, 2003.
[9] Given the anonymous information, the visa officer conducted a second interview on March 12, 2002. After the interview, the visa officer concluded that the marriage is not bona fide and the application was being used as a method to have Ms. Maria Roselina De Jesus join the rest of her family in Canada.
[10] Mr. Navarrete was notified of the refusal and his rights of appeal under IRPA. He commenced an appeal which was allowed on February 23, 2005 by the Immigration Appeal Division. That is the decision under review in the present application for judicial review.
DECISION UNDER REVIEW
[11] Mr. Navarrete appealed from a refusal to approve the spousal application for permanent residence of his spouse, Ms. Mara Roselina De Jesus, and her children. The application was refused, pursuant to section 4(3) of the former Immigration Regulations, 1978, SOR/78-172 (former Regulations) because the visa officer held that Ms. Maria Roselina De Jesus entered into the marriage primarily for the purpose of immigrating to Canada as a member of the family class and not with the intention of living permanently with Mr. Navarrete.
[12] The visa officer's concerns are outlined in the refusal letter dated April 30, 2002 after receiving an anonymous poison pen letter and the Immigration Appeal Division (IAD) Record of Ms. Maria Roselina De Jesus' sister's application for permanent residence of her spouse. As a result of the anonymous letter, the visa officer changed the positive decision, ordered the visa cancelled and a refusal letter be sent. The visa officer concluded that there was a possible fraud as Mr. Navarrete was accused of being the common-law spouse of Ms. Maria Roselina De Jesus' sister whose IAD appeal was subsequently abandoned for failure to appear on September 9, 2003.
[13] At the appeal, the IAD found that Mr. Navarrete had discharged the onus to show that he was not subject to subsection 4(3) of the former Regulations. It concluded that the marriage was not entered into primarily for Ms. Maria Roselina De Jesus to gain admission to Canada and that Ms. Maria Roselina De Jesus did intend to reside permanently with Mr. Navarrete as his spouse. Ms. Maria Roselina De Jesus was found to be a member of the family class. The appeal was therefore allowed.
ISSUES
[14] The issues in this case are the following:
1. Did the Board err by reversing the onus?
2. Did the Board err by imposing on itself evidentiary fetters?
3. Did the Board err by misstating the evidence?
4. Did the Board err in giving the Minister's evidence no weight?
5. Was the Board's assessment of the evidence perverse and patently unreasonable?
ANALYSIS
Statutory scheme
[15] The Board refers only to subsection 4(3) of the former Regulations. Section 4 of IRPA sets out a test that is different from the one in subsection 4(3). The analysis according to the Applicant's Memorandum of Argument was based on subsection 4(3) as a result of the time-frame in which the matter was set. The following analysis is also based on subsection 4(3) because that is consistent with the conclusions of the Board.
[16] Subsection 4(3) of the former Regulations states:
| 4. (3) The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse. |
4. (3) La catégorie des parents ne comprend pas le conjoint qui s'est marié principalement dans le but d'obtenir l'admission au Canada à titre de parent et non dans l'intention de vivre en permanence avec son conjoint. |
Standard of review
[17] The standard of review of a decision of the IAD concerning family sponsorship applications based on findings of fact is that of patently unreasonable. (Sanichara v. Canada (Minister of Citizenship and Immigration), 2005 FC 1015, [2005] F.C.J. No. 1272 (QL), at para. 11; Khangura v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 815 (F.C.T.D.), at para. 21; Jaglal v. Canada (Minister of Citizenship and Immigration), 2003 FCT 685, [2003] F.C.J. No. 885, at para. 13; Satinder v. Canada (Minister of Citizenship and Immigration), 2001 FCT 504, [2001] F.C.J. No. 784 (QL), at para. 14; Singh v. Canada (Minister of Citizenship and Immigration), 2002 FCT 347, [2002] F.C.J. No. 461 (QL), at paras. 17-18. Likewise, the standard of review for findings of credibility is that of patent unreasonableness. (Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (QL), (1993) 160 N.R. 315 (F.C.A.), at para. 4.)
Did the Board err by reversing the onus?
[18] As set out in the Board's own guidelines, the burden before the Board lay on Mr. Navarrete. The Minister does not have the burden on an appeal to demonstrate that the visa officer's refusal of an application for permanent residence was correct. (Canada (Minister of Citizenship and Immigration) v. Heera, [1994] F.C.J. No. 1594 (QL), at para. 2; IAD Reference Material: Sponsorship Appeals, Chapter 6, Section 6.2.2: Marriages for Immigration purposes.)
[19] The test pursuant to subsection 4(3) of the former Regulations is a two-part test which was discussed by Justice Michel Beaudry in Sanichara above, at paras. 14-15:
...Section 4(3) used to establish a two-prong test in order for a spouse to be disqualified as a member of the family class. In order for a spouse to be disqualified it must be demonstrated that (1) the spouse entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class; and (2) it was not with the intention of residing permanently with the other spouse:
...
This two-stage test for disqualifying a spouse as a member of the family class was reiterated in Horbas v. Canada(Minister of Employment and Immigration), [1985] 2 F.C. 359 (T.D.) wherein Strayer J., as he then was, stated :
It should first be observed that the test is a double test: that is, the spouse is disqualified under subsection 4(3) only if the marriage is entered into primarily for the purpose of gaining admission to Canada and not with the intention of residing permanently with the other spouse.
...
It must be kept in mind that in order to reject such an application on the basis of this subsection, it must be found that there is both a marriage entered into by the sponsored spouse primarily for purposes of immigration and lack of intention on his or her part to live permanently with the other spouse.
[20] The jurisprudence placed the onus on the sponsor to prove that the applicant was not caught by subsection 4(3) of the former Regulations. In deciding whether or not an applicant has the intention of residing permanently with the sponsor, the applicant's intentions, not the sponsor's beliefs or intentions must be examined. (Canada(Solicitor General) v. Bisla, [1994] F.C.J. No. 1785, at para. 10.)
Accordingly, to determine whether a spouse is excluded under s. 4(3) the analysis imposed by Horbas must be made. However, despite the fact that it is the intention of the sponsored relative that is of primary importance, it is for the plaintiff to present evidence challenging the immigration officer's conclusion that the marriage was not a marriage in good faith, since the sponsor has the right of appeal.
...
What is clear from the precedents is that the plaintiff has a duty to establish on a balance of probabilities that the sponsored spouse did not get married solely in order to immigrate to Canada and intended to live permanently with him. Accordingly, despite the fact that it is the intention of the sponsored relative which is crucial, it is for the plaintiff to present evidence to challenge the immigration officer's conclusion that the marriage was not a marriage in good faith, since the right of appeal belongs to the sponsor.
(Bui v. Canada(Minister of Citizenship and Immigration), [2001] F.C.J. No. 296 (QL), 2001 FCT 144, at paras. 24 and 27.)
[21] In this case, the Board implicitly placed the burden on the Minister, finding the "[Minister's] argument unsupported by the evidence and speculative at best...". In fact, the Minister did lead evidence. It was the Board who erred in giving no weight to the Minister's evidence on this point.
[22] The Board gave no reasons why it found that Ms. Maria Roselina De Jesus intends to reside permanently with Mr. Navarrete. The Board also gave no reasons why it found that Ms. Maria Roselina De Jesus did not enter into the marriage for immigration purposes. Rather, the Board simply accepted Mr. Navarrete's assertion without testing it against the relevant facts and ascertaining whether it could be supported objectively as is its duty. (Heera, above at para. 2)
[23] In deciding whether Ms. Maria Roselina De Jesus had the intention of permanently residing with Mr. Navarrete, the Board must look at her intentions not Mr. Navarrete's beliefs or intentions. (Bisla, above, at paras. 10 and 13) The Board conducted little if no assessment of her intentions at the time of the marriage, but rather considered Mr. Navarrete's present intentions to buy a house and the fact that he would consider moving to the Dominican Republic to be with Ms. Maria Roselina De Jesus if she could not come to Canada.
Did the Board err by imposing on itself evidentiary fetters?
[24] In its reasons, the Board states "the panel acknowledges that the practice of the IAD is not to consider anonymous "poison pen" letters as they are highly prejudicial and not subject to cross-examination, hence they are given no weight."
[25] The Minister submits that there is no blanket practice. The Minister further submits that the Board erred in giving the letters no weight. According to paragraphs 175(1)(b) and (c) of IRPA, the IAD is not bound by any legal or technical rules of evidence and it may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances. It is an error for the Board to impose on itself "evidentiary fetters of which Parliament has freed them." (Fajardo v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 915 (F.C.A.), at para. 4.)
[26] The Minister submits that the information contained in the "poison pen letters" ought to have been given weight as the preponderance of the information was verifiable through other evidence on the record before the Board.
[27] However, even though the Board is not bound by statutory evidence rules, it is reasonable for the Board to refuse to give weight to information provided in anonymous letters. The source and the motives as well as the information provided by this type of letter cannot always be verified. Therefore, the information is not necessarily trustworthy. This Court cannot find any errors in this practice of the Board and does not find that it was patently unreasonable of the Board to refuse to consider this letter in the circumstances.
Did the Board err by misstating the evidence?
[28] At certain points in its reasons, the Board misstated the evidence. For example, it stated that Mr. Navarrete was born on May 9, 1996 when he was in fact born on May 9, 1976. These errors are not fatal in and of themselves. However, the cumulative nature of the errors together with the other errors seriously calls into question the reasonable character of the ruling.
Did the Board err in giving the Minister's evidence no weight?
[29] The Board misunderstood the relevance of the Minister's evidence. The Minister filed evidence which indicates a photograph taken using the "Advanced Photo System" is date-stamped on the back of the photograph. The date stamp represents the date the photograph was taken. In this case, the photograph produced by Mr. Navarrete stated "Advanced Photo System JAN 1/97." The conclusion to be drawn from the Minister's evidence is that the photograph could not be taken in 1999, but was taken in 1997.
[30] The Board dismissed outright the Minister's evidence as being based "on the Respondent's opinion rather than fact." It is obvious from the reasons and a review of the declaration, that the Board did not understand the evidence because the Board observed the photograph was not provided for examination. The significance, however, is not the photograph, but rather the date stamp.
Was the Board's assessment of the evidence perverse and patently unreasonable?
[31] When assessing the intention of the sponsored spouse, the Board should take into account inconsistent or contradictory statements, previous attempts by the applicant to gain admission to Canada, previous marriages, mutual interests (knowledge, contact, family ties and financial support). This list is not exhaustive. (IAD Reference Material, above, Sections 6.3.1 to 6.3.7)
[32] The Board's assessment of the above factors and the evidence led on the various factors and more specifically the mutual interest factor was perverse.
[33] Mr. Navarrete had very limited knowledge of Ms. Maria Roselina De Jesus' former common-law relationship. He did not know the name of the three children's biological father (Ms. Maria Roselina De Jesus' former common-law partner). His evidence was vague concerning why Ms. Maria Roselina De Jesus' relationship with her former partner broke down. He was unable to provide any information as to whether Ms. Maria Roselina De Jesus was ever hospitalised as a result of abuse from her former common-law partner. Finally, Mr. Navarrete did not know when Ms. Maria Roselina De Jesus last saw her former common-law partner.
[34] Furthermore, Mr. Navarrete was not certain whether Ms. Maria Roselina De Jesus had legal custody of the three children and did not produce any documentation in this regard. He also took no steps to legally adopt Ms. Maria Roselina De Jesus' three children as his own.
[35] There was no evidence of financial support to Ms. Maria Roselina De Jesus and her three children until after the visa post's second interview on March 12, 2002. In 2003, Mr. Navarrete only sent $700 to Ms. Maria Roselina De Jesus and her three children when his gross income was $115,000.
[36] Before the Board, Mr. Navarrete did not produce corroborative evidence of phone contact and none of the letters or cards he presented were accompanied by stamped envelopes.
[37] Before the Board, Mr. Navarrete did not produce a lease to demonstrate who was the actual tenant at his address. He produced a photograph of his 1999 vacation in the Dominican Republic. The Minister submitted evidence which indicated that the photograph was taken in January 1997 and not in December 1999.
[38] The "... real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions." (Faryna, above)
[39] In this case, the two sisters (Maria and Gleidys) married on the same day in Santo Domingo. Mr. Navarrete testified that in June or July 2000, Ms. Gleidys De Jesus told him not to tell Ms. Maria Roselina De Jesus that she too planned to get married on the same day in November 2000. Mr. Navarrete testified that he did not find the matter of importance to him as he finds the family a little strange. The Board accepted this explanation as "unusual but not unreasonable in all the circumstances." Mr. Navarrete's explanation is hardly in harmony with the evidence and is actually inconsistent with his own evidence - given that the Board also accepted his testimony that he really likes Ms. De Jesus' family and finds them "down to earth."
CONCLUSION
[40] In making these erroneous findings without regard to the evidence, the Board erred in a reviewable manner pursuant to subsection 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, and in law pursuant to subsection 18.1(4)(c) of the same Act. Having relied on these erroneous findings to allow the appeal, the Board's decision is set aside and the matter is remitted for re-consideration by a differently constituted panel.
JUDGMENT
1. The application for judicial review is allowed and the matter is remitted for re-consideration by a differently constituted panel;
2. No serious question of general importance is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1676-05
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
v. JHONNY ROBERTO NAVARETTE
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT: SHORE J.
APPEARANCES:
| Mr. Lorne McClenaghan
|
|
| Mr. Ronald Poulton
|
SOLICITORS OF RECORD:
| JOHN H. SIMS Q.C. FOR THE RESPONDENT Deputy Attorney General
|
|
| MAMANN & ASSOCIATES Toronto, Ontario |