Tong v. Canada (Minister of Citizenship and
Immigration)
Between
Sau Ling Tong, Applicant, and
The Minister of Citizenship and Immigration, Respondent
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.
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:
(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.
* * *
(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;
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:
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.
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.
She made a refugee
claim "without basis" which indicated that she had a desire to remain
in Canada "at all costs."
It was "odd"
that neither the applicant's uncle nor Mr. Wang were her bondsperson.
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.
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.
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.
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.
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