Rahman v. Canada (Minister of Citizenship and
Immigration)
Between
Arifur Rahman, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Arifur Rahman, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 968
2013 FC 877
Docket IMM-10951-12
Federal Court
Montréal, Quebec
Gagné J.
Heard: July 10, 2013.
Judgment: August 16, 2013.
Docket IMM-10951-12
Federal Court
Montréal, Quebec
Gagné J.
Heard: July 10, 2013.
Judgment: August 16, 2013.
(29 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 GAGNÉ J.:-- Citizenship and Immigration
Canada (CIC) denied Mr. Arifur Rahman's application for permanent residence
under the spouse or common-law partner in Canada class, as defined in section
124 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [the Regulations], finding
that he was a foreign national described in its subsection 4(1), as amended.
Upon review of the evidence on record, the immigration officer [the Officer]
concluded that the applicant's marriage with his sponsor, Ms. Kamrun, was a
"relationship of convenience" and was entered into primarily for the
purpose of acquiring a status or privilege under the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act].
2 The
applicant seeks judicial review of that decision, arguing that the Officer
committed a reviewable error by focusing on certain interview questions and
answers which disclosed minor contradictions, while ignoring the testimonial
and documentary evidence that was more favourable to his case.
Background
3 The
applicant is a forty-nine-year-old citizen of Bangladesh. On January 31, 2008,
he left his native country and made a refugee claim in Canada. He left behind
his two minor children, whose mother had passed away in 2000.
4 On
May 30, 2012, the applicant's claim for refugee protection was rejected by the
Immigration and Refugee Board, and leave for judicial review of that decision
was denied by this Court in June 2012.
5 On
January 8, 2010, the applicant married Ms. Kamrun, a twenty-nine-year-old
Bangladeshi national and Canadian citizen. He states that he had first met her
on February 8, 2008, at the YMCA in Montreal, and that over the next few
months, their relationship gradually developed into a committed, romantic one.
6 This
was Ms. Kamrun's second marriage. She married her first spouse on February 21,
2004 in an arranged marriage. She sponsored her first husband's application for
permanent residence in Canada on August 31, 2004, and lived with him until
August 2007. No children were born of that marriage and the couple divorced on
June 17, 2009.
7 On
August 19, 2010, the applicant filed an application for permanent residence
under the spouse or common-law partner in Canada class, sponsored by his new
wife.
8 The
applicant and his wife were interviewed by the Officer on August 30, 2012 and
September 26, 2012 respectively. On October 12, 2012, the Officer dismissed the
applicant's application because she was not satisfied that the couple was in a
genuine relationship. Furthermore, the evidence established that, on a balance
of probabilities, the applicant's marriage with his sponsor was entered into
primarily for the purpose of acquiring a status or privilege under the Act.
Decision under Review
9 The
Officer raised a number of inconsistencies between the answers provided by the
applicant and his sponsor at their interview, along with other deficiencies in
the evidence filed in support of the application, which led her to doubt the
genuineness of their relationship. In her decision, the Officer notably refers
to:
The wedding ceremony
and reception: The applicant and his wife both stated that they were married at
the Montreal courthouse, but the more detailed information that they provided
regarding the post-wedding reception was contradictory. Moreover, the Officer
found that no documentary evidence or photographs were submitted to support the
couple's allegation that the wedding was followed by a religious ceremony at a
mosque;
The little interest
associated with this important event: The applicant stated that there was no
ceremony on the day of their marriage because it had been held on a week day,
and they both had had to return to work afterward. The applicant's wife did not
remember which day of the week the ceremony was held on. Moreover, the
photographs taken at the restaurant where the applicant and his wife allegedly
celebrated their marriage do not establish that it was indeed the location of a
wedding reception;
The absence of the
sponsor's family at the wedding ceremony: Upon examination of the wedding
photographs, the Officer observed that no member of the sponsor's family
attended her marriage. The sponsor had stated that her mother was present
(although not in the photographs), but her father had not attended the ceremony
as he had to be at work;
The engagement and
wedding rings: The Officer found that the rings the applicant and his wife were
wearing were not real wedding rings. Furthermore, neither the applicant nor his
sponsor could remember the name of the jewellery stores where they purchased
the rings;
Their divergent plans
for the future: The Officer found that the couple did not have any common plans
for their future life together;
The lack of
communication surrounding the applicant's immigration status: The applicant
stated that his wife was aware of the fact that he was subject to a removal
order, and said that she would follow him to Bangladesh should his application
for permanent residence be refused. However, his sponsor, when asked in her
interview about what she would do should such a situation develop,
spontaneously answered that she would not return to Bangladesh. When confronted
with his wife's answer, the applicant stated that they had in fact not yet
discussed the matter. The Officer found that this demonstrated a lack of
communication between the spouses on a crucial matter that would affect their
relationship. The Officer stated that she had serious doubts that the relationship
would continue in the event that the permanent residence application was
refused and the applicant returned to his country of origin;
The circumstances of
their first meeting: The applicant stated that he had first met his sponsor at
the YMCA in the elevator, he had started a conversation with her, she had given
him her phone number, she had then called him, and they had met up again two or
three days later. Meanwhile, in his application, the applicant had mentioned
that he had first seen his wife while she had been studying at the YMCA where
he had lived, he had started a conversation with her, and she had called him
three days later. However, for her part, the sponsor stated that they had
exchanged phone numbers and the applicant had called her later that same
evening to go out to a restaurant for dinner;
Whether the
relationship between the applicant and his wife was known to their respective
families and friends: The applicant stated that he had informed his parents of
his relationship with the applicant only when they had decided to get married.
The sponsor explained that her parents had been unaware that she had been
dating the applicant and that is why the applicant did not remember the name of
the street where her parents live. The Officer observed that the applicant
provided a list of friends' names without specifying their relationships or
ties to him or to his wife. The Officer also noted that none of the photographs
of the couple taken with friends or family members established that they were
perceived as a couple in society;
Their period of
cohabitation: The applicant stated that the couple moved in together in either
February or March 2010 as they had lived with his in-laws immediately after
having gotten married. Meanwhile, in his application, the applicant stated that
he had started living with his wife as of January 8, 2010, the day of their
wedding ceremony. As for the sponsor, she stated that they had moved in
together two days after the wedding ceremony. When confronted with this
contradiction, the applicant explained that for a month after their marriage,
he had continued living with his roommates while his wife had lived with her
parents. They both confirmed that they had moved in together only in February
2010. The lease on record showed, however, that they had taken possession of
their apartment only on March 1, 2010 for a period of twelve months. The
Officer found the fact that the applicant and his wife had not rented lodgings
prior to their wedding, even though they had been dating for two years by that
point in time, showed that their relationship lacked seriousness;
When and where the
marriage proposal was made: The applicant stated that he had proposed in 2009
in a restaurant but he could not recall its name. For her part, the sponsor did
not recall the date, the place or the circumstances of her marriage
proposal.
10 When
she confronted the couple with the inconsistencies she detected between their
narratives, the Officer was not convinced by their explanations. She believed
that their responses to her interview questions simply sought to fill in the
holes of their respective original statements.
11 Accordingly,
the Officer concluded that the applicant was a foreign national described in
subsection 4(1) of the Regulations and refused his application for permanent
residence.
Issue and Standard of Review
12 The
only issue raised by the applicant in his written submissions is whether, based
on the evidence on record, it was reasonable for the Officer to find that the
applicant failed to establish, on a balance of probabilities, that his marriage
with his sponsor is genuine and not entered into primarily for the purpose of
acquiring a status or privilege under the Act.
13 The
parties are in agreement that determining whether a relationship is genuine or
entered into for the purpose of acquiring a status under the Act is primarily a
factual determination, reviewable under the standard of reasonableness (Keo v Canada (Minister of Citizenship and Immigration), 2011 FC 1456 at para 8 [Keo]; Amayeanvbo v Canada (Minister of
Citizenship and Immigration), 2011 FC 621 at para 26; Zheng v Canada (Minister of Citizenship and Immigration), 2011 FC 432 at para 18; Kaur v Canada
(Minister of Citizenship and Immigration), 2010 FC 417
at para 14).
14 Such
determinations should generally be left to the immigration officer, as should
the assessment of credibility and the weighing of the evidence. As a result,
this Court can only intervene if the officer's determinations, and thereby her
decision, are based on erroneous findings of fact made in a perverse,
capricious manner or if she made her decision without regard to the material
before her (Minister of Citizenship and Immigration v
Tirer, 2010 FC 414 at paras 10-11 [Tirer]; Singh v Canada
(Minister of Citizenship and Immigration, 2012 FC 23 at
paras 16-17 [Singh]).
Analysis
15 The
applicant argues that the Officer committed a reviewable error by focusing on
certain interview questions and answers which disclosed minor contradictions,
while ignoring the testimonial and documentary evidence that was more
favourable to the applicant's case. This argument does not hold up for two main
reasons.
16 First,
the Officer was correct in focusing on and relying upon, in her decision, the
discrepancies and deficiencies that she detected in the evidence. The Officer's
role in this instance was to review and comment on the evidence put before her
in order to determine, on a balance of probabilities, the genuineness of the
couple's relationship. In doing so, she was to reasonably consider both the
positive and negative factors in the application. The Officer was then required
to provide the applicant with the reasons for her decision: she was not
required to provide reasons as to why she arrived at a certain decision, but
only the reasons justifying her determination of his application. In his
submission, the applicant states that the Officer failed to consider abundant
documentary evidence which supported the bona fide of his marriage. Yet the applicant fails to specify any evidence
that contradicts or seriously challenges any of the Officer's negative findings
with regard to his application.
17 Although
the applicant may have preferred the Officer to focus exclusively on the evidence
that, in the applicant's view, supported his case, this is not what is required
of the decision-maker here (see Tirer, above, at paras 12-14). As such, even if some of the evidence
supported a bona fide
relationship, the applicant's argument amounts to no more than asking this
Court to reassess the evidence in order to re-weigh the positive and negative
findings of his application for the purposes of substituting its own opinion
for that of the decision maker's. This is not the function of a judicial
review. The decision-maker cannot be criticized for having relied upon some
evidence relating to certain criteria regarding the genuineness of a
relationship rather than upon other evidence, so long as both the negative and
positive factors are reasonably assessed (Canada
(Minister of Citizenship and Immigration) v Pierre,
2012 FC 1169 at para 26; Gangurean v Canada (Minister of
Citizenship and Immigration), 2012 FC 286 at para 11).
18 Second,
the Officer's findings are reasonable and entirely supported by the evidence on
record. Even if some of the reasons found in the decision regarding the
couple's credibility are less relevant or compelling, on the whole, there is
little in the record to support a finding that the impugned decision was based
on erroneous findings of fact made in a perverse and capricious manner or made
without regard to the evidence at hand.
19 The
Officer made the following findings of fact: that there was no corroborative
evidence concerning the religious ceremony that the couple alleged was held in
the mosque following the civil ceremony; that the sponsor's family members
(including her father) were absent at the wedding ceremony; that the couple
told conflicting narratives regarding the circumstances leading up to and surrounding
the marriage; that there was a lack of evidence showing that the applicant and
his sponsor were perceived as a couple by their family and friends; and that
there was a lack of communication regarding important issues in their
relationship such as the applicant's status in Canada and their common plans
for the future. Coupled with other inconsistencies she found in the information
the applicant and his wife provided at their respective interviews, the Officer
rejected the application.
20 On
his part, the applicant argues that it was unreasonable for the Officer to
expect that the applicant and his wife remember the date, the place and the
circumstances of their first meeting, the marriage proposal itself or the day
of the week that the marriage was held on, as these all had occurred more than
two years prior to their interviews with the Officer. The applicant also argues
that it was unreasonable to expect that the couple would rent a place together
before getting married. Moreover, he argues that it was unreasonable for the
Officer to find, based on Western customs, that the couple's rings were not
traditional wedding rings, without having first considered the possibility that
Bangladeshi marital customs may differ from Western ones. The applicant also
takes issue with the Officer's conclusions regarding Ms. Kamrun's lack of
knowledge of the applicant's outstanding removal order. The sponsor submits
that she was aware of his unsuccessful refugee claim but it could not be
reasonably expected of her that she also be aware that his removal order may
become enforceable at the end of the refugee application process. The applicant
argues that this is a "technical issue" of which Ms. Kamrun was not
informed.
21 The
Court should be hesitant to apply the holdings from other cases, as the
determination of the genuineness of a relationship is a highly fact-driven
analysis. When an immigration officer takes issue with a limited number of
questions that were submitted to the applicant and his or her sponsor, the question
is whether the inconsistencies detected in the evidence are significant enough for the officer to
conclude to a lack of genuineness based solely on those inconsistencies (see Singh, above, at paras 24 and Keo, above, at para 24).
22 Section
5.20 of Citizenship and Immigration Canada's IP 8 - Spouse or Common-law partner in Canada
class provides criteria to assist the immigration
officer in the determination of the genuineness of a relationship. The
immigration officer is to investigate into the existence of the following
factors: a significant degree of attachment, both physical and emotional; an
exclusive relationship; a mutual and continuing commitment to a shared life
together; and an emotional and financial interdependency. Specifically for the
purposes of an analysis for subsection 4(1) of the Regulations, the immigration
officer is also to refer to OP 2 - Processing Members of
the Family Class (the OP 2), which is intended to
provide guidance as to the factors that should be considered in identifying a
relationship of convenience.
23 Section
12.1 of OP 2 offers the following factors for the immigration officer to
consider :
The circumstances and
duration of the courtship;
The wedding itself
(where it was celebrated. what type of marriage, who attended it);
Whether the marriage
ceremony conformed to the beliefs and culture of the participants;
Evidence that the
spouses have lived together.
24 Meanwhile,
factors that the immigration officer may consider when assessing a common-law
relationship, as listed in section 12.2 of OP 2, include:
How the couple met and
the circumstances that led them to decide to live together.
The length of time the
parties knew one another before they established a common-law
relationship.
How convincing is the
evidence that the couple have lived together for at least one year? Is it
sufficient?
Have the parties
combined their affairs to the extent that a reasonable person would expect of a
couple in a conjugal relationship (vs. what could be expected of
"room-mates")?
Do the couple
demonstrate the level of interdependence expected of persons in a conjugal
relationship?
Is there evidence that
the couple has established their own household and lives separately from their
families in a conjugal relationship (rather than a sibling relationship), even
if colocated with other family members? In some cases, DNA testing may be
required to ensure that applicants are not blood relatives.
25 There
also exists considerable jurisprudence pertaining to an immigration officer's
assessment of the genuineness of a relationship. For instance, in Keo, above, at paras 23-26, Justice Martineau
states that all the circumstances surrounding the marriage should be looked at
by the officer or panel, who is presumed to have considered all of the evidence
before it, and who should not be criticized for being punctilious in the
assessment.
26 I
agree that the Officer's reasons are not flawless. There are several positive,
but also other relevant negative factors, in the evidence that could have been
also used to assess the application. However, the conclusions she based her
decision on are reasonably drawn, and the factors she relied on, such as the
specific circumstances of their first meeting, the proposal and the wedding
ceremony, the significance of their marriage in the eyes of their respective
families and friends, as well as the couple's lack of pre-marital planning for
marital cohabitation, are within the bounds of those that are established by
the jurisprudence and the Citizenship and Immigration Canada operational
manuals. I am convinced that the impugned decision, when taken as a whole, in
light of the entirety of the evidence and the Officer's detailed reasons, falls
within "the range of possible, acceptable outcomes which are defensible in
respect of the facts and law" (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47).
27 The
onus is on an applicant to provide sufficient evidence to satisfy the decision
maker that his or her relationship is genuine and that he does not fall under
subsection 4(1) of the Regulations (Nguyen v Canada
(Minister of Citizenship and Immigration), 2012 FC 587
at para 19). The applicant failed to allege or to provide any evidence before
the Officer that their choice of wedding rings was in accordance with
Bangladeshi customs. Even if this argument could be considered persuasive in
other circumstances, it is not sufficient in this instance to affect a review
of the reasonableness of the Officer's overall decision.
28 Finally,
although I agree that the sponsor's lack of knowledge regarding the removal
order and the procedures that are followed before a removal order becomes
enforceable was not in and of itself enough to assess credibility about the
genuineness of the couple's relationship, the fact that the spouses had not yet
contemplated the applicant's potential removal from Canada and had no common
plans to deal with that situation should it have occurred, was a relevant and
reasonable consideration in her assessment.
29 Based
on the foregoing, Mr. Rahman's application for judicial review is hereby
dismissed. No question of general importance is proposed by counsel and none
arises in this case.
JUDGMENT
THIS COURT'S JUDGMENT is that:
This application for
judicial review is dismissed;
No question of general
importance is certified.
GAGNÉ J.
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