Cauia v. Canada (Minister of Citizenship and
Immigration)
Between
Olga Cauia, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Olga Cauia, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No.
1227
2013 FC 1125
Docket IMM-824-13
Federal Court
Montréal, Quebec
Tremblay-Lamer J.
Heard: October 17, 2013.
Judgment: November 6, 2013.
Docket IMM-824-13
Federal Court
Montréal, Quebec
Tremblay-Lamer J.
Heard: October 17, 2013.
Judgment: November 6, 2013.
(21 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application
for judicial review pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27
[the Act] of a decision of an immigration officer on January 16, 2013. The
officer denied the applicant's sponsored application for permanent residence
under the spouse or common-law partner in Canada class as she was not satisfied
that the common-law partnership was genuine and not entered into primarily for
the purpose of acquiring status or privilege as stated in subsection 4(1) of
the Immigration and Refugee Protection Regulations, SOR/2002-226, as amended [Regulations].
FACTS
2 The
applicant is a 30-year-old citizen of Moldova. Between 1998 and 2008 she
studied in Romania, though her Romanian diploma is not recognized by the
Moldovan government.
3 The
applicant arrived in Canada on a visitor's visa on June 23, 2008. She claimed
refugee status on June 12, 2009 after a protest and violent government
crackdown (which the applicant alleges targets students who have studied in
Romania) took place in Moldova following an election. Her claim was rejected by
the Refugee Protection Division of the Immigration and Refugee Board [the
Board] on February 17, 2012.
4 On
June 6, 2012, the applicant filed an application for permanent residence in the
spouse or common-law partner in Canada class under section 12 of the Act,
sponsored by Volvick Edouard [the sponsor].
5 In
support of her application for permanent residence through sponsorship, the
applicant alleges the following facts:
she was introduced to
her sponsor by a French classmate around November 2009;
she started taking
dance lessons with the sponsor at his dance studio;
she began to participate
in ballroom dancing competitions with her sponsor;
the sponsor officially
moved in with her in February 2011 when he signed a lease renewal, leaving his
former apartment where he lived with his brother;
she is often at the
sponsor's dance studio where she not only dances but also teaches and manages
the business by paying bills, organizing the office, verifying income, and
doing all of the office work;
she and the sponsor
share their lives; they live together, share the same accountant, love each
other, and she cooks food for him every night;
the sponsor has two
children aged eleven and four with his ex-wife, from whom he is separated;
and
the sponsor has a
sister living in New York and a niece and nephew, aged 21 and 17. The niece and
nephew came to visit the sponsor in the summer of 2011 and stayed with the
sponsor's brother. The niece and nephew were often at the dance studio and that
the sponsor organized a weekend in a country house in Victoriaville for the
entire group, including the applicant. The applicant also claims that she went
out to eat with the sponsor's niece and nephew without him being there.
6 The
Québec government issued a Québec Selection Certificate to the applicant on
January 10, 2013.
7 The
applicant and the sponsor were each called to an interview with the officer on
January 16, 2013. The officer's decision was rendered on January 17, 2013.
THE DECISION UNDER REVIEW
8 The
officer found that the applicant undermined her credibility by deliberately
misrepresenting herself to Canadian immigration officials by claiming that she
would return to Moldova and to her fiancée in Romania on her initial
application for a temporary resident permit for entry into Canada. When
questioned by the officer, the applicant stated that she wished to stay in
Canada to help her sister with her baby and that there was political unrest and
she could not go back home.
9 The
officer also noted several inconsistencies in the answers the applicant and the
sponsor gave in their interviews.
10 The
officer was not satisfied by the explanations provided by the couple to justify
the inconsistencies apparent throughout their testimonials. She found that the
couple's answers were evasive and non-committal, further demonstrating the
couple possesses limited knowledge of one another.
11 The
applicant does not appear to be involved with the sponsor on an emotional level
and does not share her life with him beyond the help she offers in the
management of his dance studio. Her lack of knowledge of the sponsor's
financial situation and custodial arrangement of his children provide little
indication of emotional involvement and investment on her behalf. The applicant
appears to be minimally implicated in the sponsor's family life.
12 Finally,
the officer concluded that the documentation provided by the couple does not
sufficiently demonstrate evidence of a genuine common-law relationship.
Moreover, the applicant's life insurance policy designates the sponsor as a
beneficiary at fifty percent and her sister at fifty percent, a division that
the applicant could not explain when asked. The sponsor has also provided
evidence of his life insurance, where he names his daughter Terry as sole
beneficiary at one hundred percent.
13 The
officer stated that based on the interviews conducted and answers obtained from
the testimonials, she is not satisfied of the bona fides of the relationship. The numerous discrepancies in their answers
make the authenticity of the union questionable. The officer concluded that the
relationship is one of convenience and entered into primarily for the purpose
of acquiring status or privilege as stated in section 4 of the Regulations.
STANDARD OF REVIEW
14 It
is well recognized that the finding that a marriage or common-law partner
relationship is not genuine is reviewable on a standard of reasonableness (Gangurean v Canada (Minister of Citizenship and Immigration), 2012 FC 286 at para 9 [Gangurean]; Essaidi v Canada (Minister of Citizenship
and Immigration), 2011 FC 411 at para 10 [Essaidi]; and Bustamante
v Canada (Minister of Citizenship and Immigration),
2011 FC 1198 at para 20).
ANALYSIS
15 At
the outset, in response to the applicant's arguments about the standard of
proof applied by the officer, I am not persuaded that the mere use of the word
"convinced" demonstrates that the officer applied a higher standard
of proof than what was required. The remainder of the reasons are in line with
the application of a "balance of probabilities" standard and there
exists no other evidence apart from this word choice to indicate that the
officer applied an incorrect burden of proof.
16 The
applicant suggests that the officer ignored documentary evidence and chose to
focus only on the eight discrepancies that she found in the testimonies of the
applicant and the sponsor. I do not agree with this characterization of the
decision. The officer did indeed consider the documentary evidence,
acknowledging that the applicant and sponsor live together and are dance
partners. She was not convinced, however, that this demonstrated a genuine
common-law relationship. The officer also made direct reference to the evidence
submitted regarding the insurance policies of the applicant and her sponsor,
though she drew a negative inference from the fact that the sponsor did not
name the applicant as beneficiary and the sponsor was only a fifty percent
beneficiary for the applicant. I further note that there exists a presumption
that the officer considered all of the evidence before her even if she did not
make specific reference to each piece of evidence (see Florea
v Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 598).
17 The
officer found several discrepancies in the applicant and sponsor's testimonies.
When she gave the couple an opportunity to explain these inconsistencies, she
was not convinced by their justifications. More particularly, it was reasonable
for the officer to draw a negative inference from the lack of knowledge of the
applicant about the sponsor's finances in the period after they claim to have
become a couple.
18 It
was also open to the officer to draw a negative inference from the fact that
the applicant did not seem to be involved in the sponsor's family life. Given
that the sponsor seems to play an important role in the life of his children,
it was open to the officer to draw a negative inference from the fact that the
applicant and the sponsor did not discuss his children.
19 While
the inconsistencies identified by the officer relating to the baptism party and
the video rental may seem inconsequential, they are important in assessing the
daily life of the couple (Gangurean, above, at para 13), particularly when this may very well have been
the last weekend that the couple would spend together, as the applicant was
facing a removal order. The applicant did not know the whereabouts of the
sponsor, while the sponsor did not know that the applicant would be meeting
with her lawyer that night. Given that these events occurred only a few days
before the interview, they cannot be explained by a lapse in memory.
20 When
reviewing a decision on the standard of reasonableness, this Court may not
substitute its own evaluation of the evidence, but rather must show deference
to the findings of the decision maker and focus on the justification,
transparency and intelligibility of the decision (Canada
(Minister of Citizenship and Immigration) v Khosa, 2009
SCC 12, at para 59). The officer considered and made reference to the body of
evidence before her and drew the reasonable inference that when considered as a
whole, the inconsistencies in the testimonies were enough to conclude that the
common-law relationship was not genuine (Essaidi, above, at para 18). As such, the decision that the relationship of
the applicant and the sponsor was not bona fide as set out in section 4 of the Regulations falls within the range
of possible, acceptable outcomes which are defensible in respect of the facts
and law, and therefore does not warrant this Court's intervention (Dunsmuir v New
Brunswick, 2008 SCC 9, at para 47).
21 For
these reasons, this application is dismissed.
JUDGMENT
THIS COURT'S JUDGMENT is that:
This application for judicial review is
dismissed.
TREMBLAY-LAMER J.
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