Date: 19990520
Docket: IMM-1906-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
AND:
JUSTICE NANA AGYEMANG
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application by the Minister for judicial review of the decision of the Immigration and Refugee Board (Appeal Division) which allowed the respondent's appeal and found that his spouse, Ruby Janne Hammond was his bona fide spouse and therefore part of the family class. The applicant seeks an order setting aside the decision and remitting the matter for reconsideration. The respondent did not attend though properly served.
[2] The respondent arrived from Ghana and was landed in Canada in 1990. He married in 1992 and divorced in 1994.
[3] During this period, Ruby Jane Hammond, also originally from Ghana, became a permanent resident of England and married a British citizen. She obtained a visitor's visa to travel to Canada in May, 1995. During her visit, Ms. Hammond met the respondent at a party in Canada in June, 1995; they had last seen one another in Ghana in 1982. They talked for approximately three hours. She told him she was separated and seeking a divorce from her British husband. The respondent proposed marriage to Ms. Hammond three days later and she accepted.
[4] Ms. Hammond returned to England. The couple maintained a telephone relationship. They discussed their background, work, family and future plans. For a while, they spoke daily. With time, because of the costs, they reduced the number of calls. The respondent's sister also lives in England and had frequent contacts with Ms. Hammond.
[5] The respondent submitted an undertaking of assistance on July 27, 1995 to sponsor his fiancée, even though she had not yet obtained her divorce; it was finalized in November, 1995. In August, 1996, the respondent travelled to England to marry her. Since at that time he did not have with him a certificate of his divorce, the marriage had to be cancelled.
[6] In the meantime, the application for sponsorship was processed in the United Kingdom. Ms. Hammond received a letter dated September 11, 1996 informing her that the application for sponsorship was refused, because they had not satisfied the visa officer that their engagement was genuine. The visa officer was concerned with the fact that they decided to marry only three days after they met. The respondent never visited Ms. Hammond in the United Kingdom. The visa officer had interviewed Ms. Hammond on April 10, 1996 and discovered that, while they had telephoned each other on numerous occasions, Ms. Hammond knew very little about the respondent. For instance, she did not know that he had been married before. She had only met two of the respondent's siblings but did not know the name of the others, nor the name of his father or whether his grandparents were still alive. Furthermore, Ms. Hammond did not know whether the respondent had a high school diploma or any professional skills. She ignored what his occupation was and the name of his employer.
[7] In October, 1996, the respondent returned to England. The couple married and spent three weeks as husband and wife. Before his departure, Ms. Hammond informed the respondent that she was pregnant. Because their future was uncertain, Ms. Hammond asked the respondent to move to England. he refused, as he did not want to live away from his mother and sister in Canada.
[8] The respondent appealed the decision of the visa officer to the Appeal Division. The presiding member allowed the appeal on April 16, 1998. The Minister filed this application for judicial review, arguing that the presidinng member's finding is unsupported by the totality of the evidence before her. The Minister brought to the Court's attention several contradictions in the respondent's and Ms. Hammond's testimony before the Appeal Division.
[9] Subsection 4(3) of the Immigration Regulations, 1978 reads as follows:
| 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. |
[10] The purpose of subsection 4(3) of the Regulations is to prevent parties from bypassing, for immigration purposes, the selection criteria with which most immigrants must comply, by artificially creating a family relationship through a form of marriage. The test at subsection 4(3) is two fold. First, a marriage must be entered into primarily for the purpose of gaining admission to Canada. Second, there must be no intention on the part of the prospective immigrant to reside permanently with the sponsoring spouse. The visa officer, in conducting an assessment, must consider the authenticity of the marriage from the perception and motives of the sponsored spouse. The legal form of the marriage is irrelevant; see Horbas v. Canada (M.E.I.) (1985), 2 F.C. 359 (F.C.T.D.).
[11] It is evident from the writetn reasons provided by the Appeal Division that the presiding member failed to assess the contradictory evidence provided her by the Minister derived from the initial visa officer's report in the United Kingdom. There was substantial evidence before the Appeal Division which the correctness of the respondent's assertions could and should have been evaluated. It failed to do so and therefore it committed a reviewable error.
[12] The application for judicial review is allowed and the matter is returned for redetermination by a differently constituted panel.
JUDGE
OTTAWA, Ontario
May 20, 1999