Reasons for Decision
Introduction and Issue
[1] The appellant appeals pursuant to section 63(1) of the Immigration and Refugee Protection Act[1] (IRPA) from a decision of the immigration officer not to issue a permanent resident visa to her applicant husband, on the basis that the marriage is not genuine and that it was entered into primarily for the purpose of acquiring any status or privilege under the Act.
[2] The issue is whether the appellant has proven that the applicant is to be considered her spouse, and therefore a member of the family class, pursuant to Immigration and Refugee Protection Regulations[2] (IRPR) sections 117(1)(a) and 4.
Decision
[3] Having considered the evidence and submissions, the panel finds that the appellant has proven on a balance of probabilities that the marriage is genuine or that it was not entered into primarily for the purpose of acquiring any status or privilege under the Act. The appeal is allowed pursuant to section 66(a) of IRPA.
Background
[4] In October 2005, the appellant and the applicant married in China. The applicant applied for a permanent resident visa; the appellant applied to sponsor the applicant as her spouse. In February 2007 the immigration officer refused that application for permanent residence, deciding that the applicant was excluded from being considered a spouse under IRPA. The appellant filed an appeal of that decision.
[5] The 28-year-old appellant came to Canada in July 2003 and became a Canadian citizen in 2008. She was married to her first husband from March 2002 until their divorce in May 2005 (they separated in September 2003)[3] and from that marriage they had a daughter. She married the applicant in China in October 2005.[4] She works as a waitress.
[6] The 32-year-old applicant was born in and is a citizen of China. He was not previously married and has no children. He married the appellant in China in October 2005[5] and works as a cook.
[7] At the hearing of this appeal the appellant testified and filed three exhibits of documentary evidence. The Minister filed one exhibit consisting of the record.
Analysis
[8] A Canadian may sponsor the application of a foreign national member of the family class; a spouse is a member of the family class.[6] However, if the marriage was entered into in bad faith, IRPR section 4 excludes that spouse from the family class:
Bad faith - For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.
[9] In considering whether the marriage is genuine for the purposes of IRPR, the panel examined a number of factors[7] and took into account additional evidence that was not before the immigration officer.[8]
[10] The panel is cognisant of one of the immigration objectives, “to see that families are reunited in Canada.”[9]
[11] The appellant bears the burden of proof. To allow this appeal, the panel must be satisfied on a balance of probabilities that the marriage is genuine or that it was not entered into primarily for the purpose of acquiring any status or privilege under IRPA. To dismiss this appeal, the panel must be satisfied both that the marriage is not genuine and that it was entered into primarily for the purpose of acquiring a status or privilege under IRPA.
[12] The immigration officer interviewed both the applicant and the appellant in February 2007[10] and identified a number of concerns, including that the relationship was entered by the appellant before her divorce and their marriage took place only five months after her divorce, the applicant could not describe the relationship with any depth and the applicant lacked detailed knowledge about the appellant’s first marriage.
[13] The panel considers that the immigration officer had reasonable concerns and suspicions after the interviews. However, the evidence at the hearing provided reasonable explanations for those concerns.
[14] The panel had the benefit of hearing and seeing the appellant testify under oath. She presented as a credible witness who answered questions, on balance, in a direct and straightforward manner and there were no material inconsistencies in her testimony or contradictions between her testimony and the other evidence before the panel. The panel finds that the appellant was sincere and accepts her evidence as being credible, trustworthy and truthful.
[15] The issues in this appeal concern the genuineness and primary intent of the 2005 marriage, but the appellant’s first 2002 marriage coloured the processing of this file. The immigration officers flagged the circumstances for re-investigation[11] and it became a primary concern at the February 2007 interview. However, in November 2007 CIC reported to the appellant that the first marriage had been examined and “I have concluded that you have not misrepresented yourself …”, and that the matter was now closed.[12] That must now be considered when examining the immigration officer’s approach and conclusions at the 2007 refusal.
[16] The appellant married her first husband in China in March 2002 and he sponsored her to Canada.[13] She arrived in British Columbia in July 2003 but left her husband and moved to Toronto in about September 2003. She says that she did this because she found out that he was a heavy gambler and used drugs, which she did not know until she arrived in Canada.
[17] She testified that when she left her first husband she was not aware that she was pregnant but found out shortly after she arrived in Toronto. She gave birth to a daughter on April 6, 2004[14] but she has never revealed that information to her first husband (the father) and did not indicate it during her divorce proceedings.[15] Therefore, there are no financial or custody/access arrangements. Her explanation for this was that her first husband was being sought by his gambling creditors (she called them “mafia”), to the extent that he had lost an eye in their attempts to retrieve their debts, and she was trying to defend herself and her daughter from that background. She testified that the divorce proceedings were prepared by a consultant and that the only information sought was whether she knew she was pregnant at the time of separation; she answered that at that time she did not know that she was pregnant. The panel accepts these explanations and notices that the minor contradictions with other references do not affect the importance of the testimonial explanations.
[18] The genuineness of a marriage can be affected by a number of different indicia.[16]
[19] The appellant and applicant are generally compatible in age and language; their cultural, educational and employment backgrounds; and their shared Catholic religion.[17]
[20] The appellant and applicant met in February 2005, when the appellant was in China visiting her father and daughter, and married in October 2005. They cohabited for two weeks in April 2005 and then again from September to November 2005, February through April 2007 and March through May 2008. They had dated before marriage and continued their married relationship in person and by constant email, telephone and web camera communication.[18] The wedding details included two receptions with about 200 family members at each one, a Roman Catholic Church blessing ceremony and a lengthy honeymoon.
[21] There is documented evidence of financial support and shared property and life insurance.[19]
[22] The panel finds that the appellant’s daughter (who was born in Canada and is now about five years old) would benefit if she, her mother and the applicant were living together in Canada. The appellant moved her daughter to her father’s Chinese home in about July 2004 to live with the appellant’s father, paternal grandmother and paternal aunt’s family, because she could not afford to raise her in Canada while working as a single mother. After her marriage to the applicant, the appellant moved her daughter to live with the applicant and his parents. The extended families are involved with each other and provided documentary evidence about their support for the applicant, the appellant and her daughter.[20]The applicant has demonstrated that he is also sharing responsibility for the care of the child brought into the marriage.[21]
[23] Given the painful circumstances of the appellant’s first marriage, the appropriate details about it were known to the applicant. Having heard the appellant’s evidence and considering the obstacle about the appellant’s first marriage that was present at the 2007 interview, the panel is satisfied that the applicant and appellant have sufficient awareness and knowledge about each other.
[24] The panel finds that the evidence demonstrates on a balance of probabilities that there is a shared relationship of some permanence, that there is interdependence between the husband and wife, that there are shared responsibilities and that there is a serious commitment.[22]
[25] Having balanced the interests and weighed the evidence and submissions, the panel finds that the appellant has proven on a balance of probabilities that the marriage is genuine or that it was not entered into primarily to acquire any status or privilege under IRPA. The appeal is allowed pursuant to section 66(a) of IRPA.
NOTICE OF DECISION
The appeal is allowed. The officer’s decision to refuse a permanent resident visa is set aside, and the officer must continue to process the application in accordance with the reasons of the Immigration Appeal Division.
“Donald V. Macdougall”
Donald V. Macdougall
April 23, 2009
Date
Judicial Review – Under section 72 of the Immigration and Refugee Protection Act, you may make an application to the Federal Court for judicial review of this decision, with leave of that Court. You may wish to get advice from counsel as soon as possible, since there are time limits for this application.
[2] Immigration and Refugee Protection Regulations, SOR, 2002-227.
[3] Exhibit R1, page 31-33.
[4] Exhibit R1, page 40-41.
[5] Exhibit R1, page 40-41.
[6] IRPR ss. 130(1), 117(1)(a).
[8] Kahlon v. M.E.I. (1989), 7 Imm. L.R. (2d) 91 (F.C.A.).
[9] IRPA, section 3(1)(d).
[10] Exhibit R1, pages 17-19.
[11] Exhibit R1, pages 15-16.
[13] Exhibit R1, page 31; Exhibit R1, pages 54-55.
[14] Exhibit A3, page 49.
[15] Exhibit R1, pages 31-33.
[17] See Exhibit A3, pages 13-17.
[18] See Exhibit A1; Exhibit A3, pages 33-48, 59-76.
[19] See Exhibit A1, pages 32-34; Exhibit A3, pages 20-27, 30-32.
[20] See Exhibit A3, pages 6-12.
[21] See Exhibit A3, page 51.
[22] Jin v. MCI (2008), 2008 FC 1172 (FC) at paragraph 14.
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