Canada (Minister of Citizenship and Immigration) v.
Morel
Between
The Minister of Citizenship and Immigration, Applicant, and
Alain Morel, Respondent
Alain Morel, Respondent
[2012] F.C.J. No.
1495
[2012] A.C.F. no 1495
2012 FC 1404
Docket IMM-9657-11
Docket IMM-9657-11
Federal Court
Montréal, Quebec
Lemieux J.
Heard: June 28, 2012.
Judgment: November 29, 2012.
Montréal, Quebec
Lemieux J.
Heard: June 28, 2012.
Judgment: November 29, 2012.
(35 paras.)
·
REASONS FOR JUDGMENT AND
JUDGMENT
LEMIEUX J.:--
I. Introduction
1 The
Minister of Citizenship and Immigration (the Minister) is seeking to have set
aside a sponsorship decision rendered on November 15, 2011, by a member of the
Immigration Appeal Division (the panel), who allowed the appeal of Alain Morel
from the refusal of the application for permanent residence in the family class
(the application) made by his conjugal partner, Rui Guo (the applicant), a
citizen of the People's Republic of China, following an interview with Mr. Guo
on September 21, 2009, by visa officer D. Doherty at the Canadian Embassy in
Beijing.
2 The
visa officer refused the application sponsored by Mr. Morel for two reasons:
(1) she was not satisfied that a conjugal relationship existed between the two
men because they were not in marriage-like relationship (marriage-like
relationship with your sponsor) within the meaning of section 2 of the Immigration and Refugee Protection Regulations (SOR/2002-227) (the Regulations); and (2) their relationship was
entered into primarily for the purpose of acquiring any status or privilege
under the Act under the paragraph 4(1)(a) of the Regulations.
II. Facts
3 Mr.
Morel and Mr. Guo met on the Web site "asiafriendfinder" in February 2007. Mr. Morel had posted his
profile on this Web site sometime in late 2006 or early 2007. The two men
continue to be in touch daily. Mr. Morel travelled to China to meet Mr. Guo on September 13, 2007, and returned to Canada
on September 22, 2007. During
his trip to China, they lived together at the hotel where Mr. Morel was
staying.
4 Mr.
Morel returned to China to visit Mr. Guo in September 2008, January 2010 and
September 2010.
5 Mr.
Guo applied for residence in May 2009.
6 Mr.
Morel is currently 59 years of age and was married once between 1977 and 1982.
He is the father of several children. Mr. Guo, born on September 18, 1986, was
21 when he met Mr. Morel for the first time. He is now 27 and has never been
married.
7 Mr.
Morel and Mr. Guo both testified at the hearing before the panel.
III. Regulatory provisions
8 "Conjugal
partner" is defined as follows in section 2 of the Regulations:
·
"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.
·
[Emphasis added]
* * *
·
"partenaire conjugal"
À l'égard du répondant, l'étranger résidant à l'extérieur du Canada qui
entretient une relation conjugale avec lui depuis au
moins un an.
9 Subsection
4(1) of the Regulations (current version) reads as follows:
(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
was entered into
primarily for the purpose of acquiring any status or privilege under the Act;
or
is not genuine.
[Emphasis added]
* * *
(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 :
visait principalement
l'acquisition d'un statut ou d'un privilège sous le régime de la Loi;
n'est pas
authentique.
IV. The impugned decision
10 The
panel considered two issues, namely (1) whether Mr. Morel and Mr. Guo fit the
definition of "conjugal partner" within the meaning of the Act and
the Regulations; and (2) whether this relationship is genuine and was not
entered into primarily for the purpose of acquiring any status or privilege under the Act, in accordance
with section 4 of the Regulations.
Conjugal partner
11 While
the Act and the Regulations do not define "conjugal
relationship", the term "conjugal" has
been defined and interpreted in the case law as a
"marriage-like relationship". The panel noted
that, in M. v. H., [1999] 2 SCR
3, the Supreme Court of Canada adopted the generally accepted characteristics
of a conjugal relationship, namely,
Shared shelter: whether
the partners live together in the same home as a couple;
Sexual and personal
behaviour: 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, and whether there
is evidence of mutual assistance, especially in time of need;
Social activities:
whether the partners share time together or participate in leisure activities
together, and whether they have relationships or interaction with each other's
respective families;
Economic support: whether
the partners are financially interdependent or dependent, and whether they
have, to some extent, joined their financial affairs or arranged them to
reflect their ongoing relationship;
Children: the partners'
attitude and conduct towards children;
Societal perception of
the couple: whether the partners are treated or perceived by the community as a
couple;
12 The
panel found as follows:
·
In applying the above-mentioned
criteria, the case law does not rely on only one or a
few specific factors to determine the existence of a conjugal relationship. The goal is to determine whether the relationship is conjugal, and
the criteria must be applied only insofar as they may assist in this
determination.
·
The panel is of the opinion
that these criteria can be used to determine whether a
conjugal relationship exists, while also taking into account the specific
circumstances of immigration. These criteria or factors are not strict or
exhaustive, and the weight assigned to each factor can vary according to the
circumstances of each case. What is important is to
determine whether the evidence demonstrates that a conjugal relationship exists
between the appellant and the applicant.
·
[Emphasis added.]
13 However,
it should be noted that, when evaluating those criteria, the panel must also
consider the effect of social customs and practices, as well as the individual
ways in which the partners express the conjugal relationship, and the cultural
context. The issue is whether, basically, there is a relationship between the
appellant and the applicant that resembles a marriage
between partners.
14 The
panel added that it was particularly aware of the
social, cultural and legal difficulties that the appellant and the applicant
face. The appellant and the
applicant are in a homosexual relationship. The
applicant is of Chinese origin and lives in Chengdu City, in the province of
Sichuan, China. The appellant testified that
homosexuality is considered to be a crime in China.
15 Throughout
its analysis, the panel considered this socio-cultural
reality and recognized that there
can be various models of conjugal relationships,
depending on the circumstances of each case.
16 The
panel stated that it had reviewed the evidence for the year
preceding the filing of the permanent residence application on May 29, 2009, since the definition of conjugal partner requires that the
conjugal relationship must have existed for a period of at least one year.
17 The
panel stated that it took the time to carefully read all of the conversations
between the appellant and the applicant, especially those that preceded May 29,
2008, in order to determine whether this evidence does indeed demonstrate a
marriage-like relationship since May 29, 2008. The panel noted that the
documentary evidence concerning their contact was extensive.
18 The
panel was of the opinion that the quantity of conversations was insufficient to demonstrate a marriage-like
relationship; however, the content of the conversations demonstrates a couples'
relationship with its highs and lows. They talk to each other about their days,
their feelings, their moods and their schedules, they question each other about
their relationship, they squabble, and so on. They both worry when they cannot
reach the other person. The panel was of the opinion
that the spouses have shared a life together through a computer since 2007.
19 Mr.
Morel testified that they had been in a romantic relationship since the summer of 2007 and that their
relationship became official during his first trip to China, from September 13
to 22, 2007, during which time they lived together. They consummated their
relationship during this trip.
20 He
also testified that, during this first trip, he met Mr. Guo's half-sister and
his friends. He met Mr. Guo's mother during his second trip to China in
September 2008, after Mr. Guo had told his parents that he was gay.
21 The
panel noted that Mr. Morel first sent money to Mr. Guo in October 2007, and
that he explained that Mr. Guo works in China as a photographer and that,
although he is not rich, he is able to meet his needs.
22 The
panel was satisfied that the documentary evidence demonstrated that the people
close to Mr. Morel were aware of the relationship and considered it to be
serious.
23 The
panel expressed its finding on this first issue in the following manner:
·
The panel notes that it is
understandable, in the circumstances, that the appellant and the applicant have
been unable to demonstrate publicly and to the applicant's parents that they
are conjugal partners. When the applicant's mother learned that her son is gay,
she did not accept it right away. In addition, this subject is still taboo in
China, and it was impossible for them to express their sexual orientation in
public. The panel is satisfied that there is a solid attachment between the
appellant and the applicant and that they are in an exclusive marriage-like
relationship.
·
Consequently, the panel
considered all of the evidence and is satisfied, on a balance of probabilities,
that the relationship between the appellant and the applicant constitutes a
conjugal relationship within the meaning of the definition of "conjugal
partner" set out in section 2 of the Regulations and in the applicable
case law that was cited.
·
[Emphasis added.]
Genuine relationship
24 Regarding
this issue, the panel found that Mr. Morel had demonstrated, on a balance of probabilities,
that his relationship with the applicant was genuine and that it was not entered into primarily for the purpose of
acquiring any status or privilege under the Act. The panel based this finding
on the following factors:
They are in touch
constantly, on a daily basis, often several times a day;
Their testimony was spontaneous and direct, and there is extensive
documentary evidence supporting the good faith of this relationship.
The evidence
demonstrates that their relationship has been exclusive since September 2007, and their friends and families know about the
relationship.
Mr. Morel has travelled to China four times to visit Mr.
Guo. During these trips, they always lived together and spent all of their time
together. They visited Mr. Guo's family and did activities with his family and
his friends.
Even though Mr. Guo
works, Mr. Morel sometimes sends him money, and has been doing so since
2007.
In August 2009, Mr.
Morel named Mr. Guo as his beneficiary in his will.
V. Arguments
Minister's position
25 The
Minister makes the following submissions:
Even though Mr. Morel's
appeal was an appeal de novo in
the course of which the panel reexamined whether the applicant and his sponsor
met the criteria of sections 2 and 4 of the Regulations, the panel could not confine itself to considering the new evidence
and ignore the evidence presented before the visa officer. The panel had to examine Mr. Guo's
testimony and the visa officer's decision. He refers to
Tran v Canada (Minister of Citizenship and Immigration), 2001 FCT 1253.
The panel
misinterpreted and misapplied the concept of "conjugal partner" in
several respects. The Minister sets out the applicable principles, as
follows:
The expressions
"conjugal partner" and "partenaire conjugal" are defined in
section 2 of the Regulations.
In the present matter,
the panel had to determine whether, at least on May 29,
2008, the applicant (Mr. Guo) and the respondent (Mr.
Morel) met the definition of conjugal partner in light of the evidence preceding that date.
To clarify the debate
on the concept of "conjugal partner", an analysis of the applicable
case law and policies is required (Section 5 of Citizenship and Immigration
Canada OP 2 Manual).
The test established
in M v H, for couples living in Canada, was used to
determine whether the relationship was a conjugal one, relying on the decision
of Justice Boivin in Mbollo v Canada (Minister of
Citizenship and Immigration), 2009 FC 1267 [Mbollo], from which I quote paragraph
27:
·
[27] The
criteria in M. v. H. were
established for couples living in Canada and must be modified for couples
living in different countries. However, as my
colleague, Justice Tremblay-Lamer notes: "Nonetheless,
the alleged conjugal relationship must have a sufficient number of features of
a marriage to show that it is more than just a means of entering Canada as a
member of the family class" (Leroux at para. 23).
·
[Emphasis added.]
The panel adopted some
of the factors from M v H in its
analysis.
26 The
Minister submits that the reasons set out by the panel to support its findings are not consistent with the features of a conjugal relationship as
described by the Supreme Court in M v H, which the IAD took pains to list in its reasons and which
allegedly guided its decision. These reasons are also
not consistent with the factors or criteria referred to in the OP 2 Manual. The panel therefore erred in law. According to the Minister, the panel found that Mr. Morel and Mr.
Guo met the definition of "conjugal partners" by relying on the
following factors:
The spouses have shared
a life together through a computer since 2007.
Their relationship has
been exclusive since 2007. Mr. Guo's sister and his friends are aware of the
relationship. They lived together at the hotel during Mr. Morel's first trip to
China.
Money was transferred
as early as August 2007.
27 According
to the Minister, the panel erred in using the term "spouses" since
they are not married, and it was unreasonable to find
that they have shared a life together through a computer since 2007.
28 According
to the case law, the alleged conjugal relationship must
have a sufficient number of features of a marriage to show that it is more than
just a means of entering Canada as a member of the family class (Mbollo above).
It was unreasonable for
the panel to conclude that Mr. Morel and Mr. Guo were in a marriage-like relationship considering that, until May 29, 2008,
they had been together for 10 days in September 2007.
According to the case
law (Mbollo above at para 21), e-mails and telephone calling cards are not sufficient to establish
a conjugal relationship under section 2 of the
Regulations, even if they show constant communication or even a romantic
relationship. The Minister also referred to Canada
(Minister of Citizenship and Immigration) v Savard,
2006 FC 109, and the OP 2 Manual.
29 The
Minister submits that the panel erred in applying the "economic
support" factor, the purpose of which is to see whether the partners are
financially interdependent or dependent, and whether they have, to some extent,
joined their financial affairs. According to the Minister, the panel
[TRANSLATION] "seems to conclude that the receipt for a transfer of money
($100) on October 26, 2007, satisfies this test".
30 The
Minister submits that the panel erred in fact and in law when it determined
that the conjugal relationship between the two men was genuine and was not
entered into primarily for the purpose of acquiring any status or privilege. The panel erred in applying the former version of section 4 of the Regulations. In fact, according to the Minister, under the
current version, if one of the two factors (genuineness of the marriage and
parties' intentions) is not met, the exclusion contained in the new subsection
4(1) of the Regulations applies.
31 The
Minister submits moreover that the panel erred in its interpretation and
enforcement of section 4 of the Regulations by
primarily assessing Mr. Morel's intention. It failed to examine Mr. Guo's intention.
Mr. Morel's position
32 Counsel
for Mr. Morel submits the following:
The standard of review
for questions of credibility and the genuineness of a common-law partnership is
reasonableness. Consequently, this Court must determine whether the panel's
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
The panel attests that
it "assess[ed] the testimony and analyz[ed] all of the documentary
evidence on file", which includes the facts before the visa officer at the
Embassy in his initial decision. This is the panel's prerogative in an appeal de novo. According to counsel for Mr. Morel,
the Minister attempted to obtain a redetermination of the weighing of the
various factors taken into consideration by the panel, which is not permitted
on judicial review.
The panel did not err
in fact and in law in its interpretation and application of the concept of
"conjugal partner". Counsel points to paragraph 21 of the memorandum
of the Minister, in which he alleges that
·
[TRANSLATION]
·
[21] ... the reasons set out by the IAD [Immigration Appeal Division] to
support its finding are not consistent with the features of a conjugal
relationship as described by the Supreme Court in M v.
H, which the IAD took pains to
list in its reasons and which allegedly guided its decision. These reasons are also not consistent with the factors or criteria
referred to in the OP 2 Manual. The IAD therefore erred in law.
·
Counsel contends that, even if
it were shown that the panel's reasons are not consistent with the OP2 Manual
criteria, this is not an error of law since immigration manuals and ministerial
instructions are not legal provisions, and that, moreover, the Minister fails
to demonstrate how the panel failed to respect the criteria set out in the OP 2
Manual. According to counsel for Mr. Morel:
·
[TRANSLATION]
·
To the contrary, the IAD's
analysis reveals attention to these similar but more
detailed criteria than those set out in the Manual, specifically, whether there
is interdependence or a barrier to cohabitation. The
OP-2 Manual (see page 20 of the Manual) is largely
based on M. v. H. of the
Supreme Court, and was adopted by the IAD in the matter
at bar. Furthermore, it is important to point out that, according to the OP-2
Manual (page 35 of the Manual), the volume, regularity and style of the
communication between partners should be considered ... .
Regarding the alleged
misinterpretation and misapplication of the criteria set out in M. v H., counsel for Mr. Morel writes as
follows:
·
[TRANSLATION]
·
The respondent submits that the
IAD did not err in fact and in
law in its interpretation and application of the criteria established in M. v. H. by the Supreme Court and that,
through this argument, the applicant is attempting to obtain
a redetermination of the weighing of the various
factors taken into consideration by the IAD in its assessment at the cost of a
selective assessment of the factors in question and a questionable analysis of
the case law.
·
He quotes the following excerpt
from Justice Tremblay-Lamer's decision in Leroux v
Canada (Minister of Citizenship and Immigration), 2007
FC 403 at paragraph 21, regarding M. v H., the case establishing the seven non-exhaustive factors used to
identify a conjugal relationship and in which the Supreme Court acknowledged
that
·
... the weight to be attached
to the various factors may vary infinitely and hold true for same-sex couples.
Accordingly, courts must use a flexible approach to determine whether a
conjugal relationship exists, since relationships of couples vary (M. v. H., [1999] 2 SCR 3], at paragraph
60).
·
He also quotes from paragraph
23 of Justice Tremblay-Lamer's decision in Leroux v
Canada (Minister of Citizenship and Immigration), 2007
FC 403:
·
3 Although this Court has not
rendered any decision about the criteria to be used in an immigration context
to determine whether there is a conjugal relationship, several IAD decisions
have recognized that the criteria in M. v. H. were established for couples living in Canada and must be modified
for couples living in different countries (see: McCullough
v. Canada (Minister of Citizenship and Immigration),
[2004] I.A.D.D. No. 25, Schatens v. Canada (Minister of
Citizenship and Immigration), [2005] I.A.D.D. No. 330, Li v. Canada (Minister of Citizenship and Immigration), [2005] I.A.D.D. No. 3; Porteous v. Canada (Minister of Citizenship and
Immigration), [2004] I.A.D.D. No. 560). I agree. It
seems to me to be important to keep in mind the restrictions which apply
because the partners live in different countries, some of which have different
moral standards and customs which may have an impact on the degree of tolerance
for conjugal relationships, especially where same-sex partnerss [sic] are concerned. Nevertheless, the alleged
conjugal relationship must have a sufficient number of features of a marriage
to show that it is more than just a means of entering Canada as a member of the
family class.
·
He concludes that the
interpretation given by the panel to the concept of conjugal partner in
paragraphs 7 to 15 of its decision [TRANSLATION] "squares" perfectly
with these case law requirements, writing as follows:
·
[TRANSLATION]
·
The IAD clearly states that the
criteria in M. v. H. can be used
to determine whether a conjugal relationship exists, while
also taking into account the specific circumstances of immigration. These criteria or factors are not strict
or exhaustive, and the weight assigned to each factor
can vary according to the circumstances of each case (para. 10 of the panel's
decision). In that regard, the IAD considered the
social, cultural and legal difficulties faced by the respondent and the applicant because of their homosexual relationship and the
perception of such relationships in the applicant's country of origin (para.
12).
Counsel notes that, in
his memorandum, the Minister provides only an exhaustive list of the factors
that led the panel to conclude that Mr. Morel and Mr. Guo meet the definition
of "conjugal partners". This is because the Minister considers only the factors prior to May 29, 2008. He acknowledges that the panel took pains to specifically exclude
the evidence existing on May 29, 2008, [TRANSLATION] "but that it interpreted it in the broader context of the assessment of all" of the evidence. He quotes Leroux, at paragraph 26, namely, that section 2 of the Regulations
requires that the relationship must have existed "for a period of at least
one year" as of the date of filing of the sponsorship application but that
neither the Act nor the Regulations restricts the examination exclusively to
this period.
He submits that the
assessment of the various pieces of evidence that led the panel to conclude
that Mr. Morel and Mr. Guo are conjugal partners is not at all
unreasonable.
Use of the term
"spouse" is an isolated clerical error that is of no importance since
the panel knew that the two men were not married.
The panel's finding
that Mr. Morel and Mr. Guo have shared a life together through a computer is
not unreasonable because it relies on an incomplete assessment of the case law
it relies on and a selective consideration of the arguments made by the IAD, which does not situate this
assessment in the overall review of the evidence as a whole.
While it is true that,
in the decision referred to by the Minister, the Court found that email and
telephone exchanges were insufficient to establish a conjugal relationship,
this was, according to counsel, [TRANSLATION] "because of other pieces of evidence
that conflicted with a finding of a conjugal relationship and that could at
best establish a romantic relationship". He refers to Leroux, which supports the filing of such
evidence to demonstrate the genuineness of a relationship. Moreover, in the
present case, the evidence as a whole shows that the panel did not only rely on
the evidence of Internet and telephone exchanges to establish the conjugal
relationship between the parties.
33 Counsel
for Mr. Morel rejects the applicant's argument that the panel erred in law in
rendering a decision based on the former version of section 4 of the
Regulations. He notes that the new version of the Regulations took effect on
September 30, 2010, and therefore came into force between the initial decision
of the officer at the Embassy and the decision made by the panel in November
2011. According to counsel [TRANSLATION] "in so far as the new version of
section 4 is more onerous, fairness requires the enforcement of the law in
effect at the time of the initial decision. He cites Justice Mosley's decision
in Asma Elahi v Canada (Minister of Citizenship and
Immigration), 2011 FC 858 at paragraph 12.
VI. Analysis and Conclusion
Standard of review
34 The
standard of review is reasonableness; the panel considered the issue before it
on the basis of an analysis of the evidence a question of fact. In Dunsmuir v New Brunswick, [2008] 1 SCR 190,
at paragraph 47, the Supreme Court of Canada explained the nature of a
reasonable decision:
·
47 Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within the
range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
Findings
35 I
believe that the Court's intervention is warranted for the following reasons:
The panel had the duty
to determine whether, on May 29, 2009, the relationship between Mr. Morel and
Mr. Guo was a conjugal one. The evidence before the panel consisted of emails
and telephone exchanges since 2007, a money transfer in October 2007 and a
10-day period of cohabitation. According to the case law, that is insufficient
to create a marriage-like conjugal relationship. It was unreasonable on the
part of the panel to conclude that such a relationship had existed for a
year.
The panel erred in fact
and in law in finding that Mr. Morel and Mr. Guo have shared a life together
through a computer.
The panel erred in its
analysis that the relationship between Mr. Morel and Mr. Guo was not entered
into primarily for the purpose of acquiring the status of permanent resident.
Almost the entire decision deals with Mr. Morel's intentions. The panel should
have considered both parties' intentions.
The panel should not
have ignored the evidence before the officer, namely
·
[TRANSLATION]
The applicant stated
that he did not have the means to come to Canada as a student or the type of
qualifications required to obtain a work permit.
The applicant stated
as early as the first emails, when they were describing themselves, that he
loved the respondent. According to the evidence provided during the interview
with the visa officer, the applicant was not looking for a lover of foreign
origin on the asiafinder.com Web site but simply a friend.
The incompatibility
between the respondent and the applicant who has always had girlfriends and is
in his first homosexual relationship.
The applicant's lack
of knowledge about the respondent's life."
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application for judicial review is allowed; the panel's
decision is set aside and the respondent's appeal is to be redetermined by a
differently constituted panel. No question was proposed for certification.
Certified true translation: Johanna Kratz,
Translator
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