Date: 20050217
Docket: IMM-4385-04
Citation: 2005 FC 241
BETWEEN:
ZHI QI NI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board (the "IAD"), dated April 23, 2004, wherein the IAD dismissed the applicant's appeal from a decision of a visa officer. The visa officer had determined that the applicant was ineligible to sponsor the application for permanent resident of his wife Ms. Liu and her daughter on the ground that his wife was not a member of the family class under section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations").
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[2] Zhi Qi Ni (the applicant) came to Canada from the People's Republic of China (the "PRC") in October 1989. He became a permanent resident in 1998 and a citizen in 2001. He divorced his first wife, with whom he had one daughter, in China, in November 1995.
[3] Ms. Suyan Liu was born in the PRC on July 23, 1960. She married her first husband, Yongquan Jiao on December 25, 1983. They have a daughter, named Jie Jiao, born October 12, 1984. Ms. Liu and Mr. Jiao were divorced on January 5, 2002.
[4] The applicant met Ms. Liu at the Tai Dau hotel in Anshan, China in November 2001 when he went there to seek treatment for headaches resulting from a motor vehicle accident and to visit the largest jade Buddha statue. Ms. Liu was the hotel manager.
[5] The applicant and Ms. Liu were married on March 22, 2002. The applicant applied to sponsor Ms. Liu's application for permanent residence on June 10, 2002. On May 26, 2003 Ms. Liu was interviewed by a visa officer in Beijing. The visa officer refused Ms. Liu's application for permanent residence on the basis that she was not a "spouse" for the purposes of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") and thus not a member of the family class, as her marriage was not genuine.
[6] The IAD found that Ms. Liu was not a "member of the family class", as the applicant had not established on a balance of probabilities that his marriage was genuine nor that it was not entered into for any other primary purpose than to acquire status or privilege under the Act. In making its decision the IAD took into account the failure of the applicant and Ms. Liu to provide a credible narrative of the genesis of their relationship, including the inconsistency regarding the applicant's residence and the date of the proposal, as well as Ms. Liu's interest in coming to Canada as evidenced by her two previous visa applications.
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[7] The relevant provisions of the Regulations are as follows:
2. The definitions in this section apply in these Regulations.
"marriage", in respect of a marriage that took place outside Canada, means a marriage that is valid both under the laws of the jurisdiction where it took place and under Canadian law.
4. For the purposes of these Regulations, no foreign national shall 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 or was entered into primarily for the purpose of acquiring any status or privilege under the Act.
2. Les définitions qui suivent s'appliquent au présent règlement.
« _mariage_ » S'agissant d'un mariage contracté à l'extérieur du Canada, mariage valide à la fois en vertu des lois du lieu où il a été contracté et des lois canadiennes.
4. Pour l'application du présent règlement, l'étranger n'est pas considéré comme étant l'époux, le conjoint de fait, le partenaire conjugal ou l'enfant adoptif d'une personne si le mariage, la relation des conjoints de fait ou des partenaires conjugaux ou l'adoption n'est pas authentique et vise principalement l'acquisition d'un statut ou d'un privilège aux termes de la Loi.
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[8] The IAD dismissed the applicant's appeal on the basis that the marriage was not genuine and was entered into primarily for the purpose of gaining an immigration advantage for Ms. Liu and her daughter. The following reasons support the IAD's decision:
- Ms. Liu displayed some interest in coming to Canada immediately prior to meeting the applicant, which provides some evidence she may have been motivated at least in part, by a desire to pursue her interest in coming to Canada through a relationship with the applicant.
- Ms. Liu had a lack of knowledge of general information concerning the applicant's circumstances, that a spouse in a genuine relationship would be expected to know. There were also discrepancies in the information provided by Ms. Liu and the applicant concerning his circumstances and the time they purportedly spent together.
- At the hearing Ms. Liu continued to demonstrate that she is unaware the applicant moved into the rented premises on Balmoral Street in approximately November 2002. If the applicant and Ms. Liu had been communicating regularly as they testified, the applicant would have informed Ms. Liu that he was moving or had moved to a new residence.
- The applicant has made several trips to China since meeting and marrying Ms. Liu, however the IAD could not conclude that the purpose of those trips was to be with Ms. Liu, nor that he necessarily spent much, if any, time with her during his trips.
- Ms. Liu's job was such that it was not credible that she could be absent for long durations.
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[9] The applicant is of the view that the IAD did not conduct a hearing de novo. I do not agree. I am of the opinion that the IAD properly conducted a hearing de novo as established in Kahlon v. Canada (M.E.I) (1989), 7 Imm.L.R. (2d) 91 (F.C.A.). It is clear that the IAD relied on the visa officer's conclusions, however it also came to its decision on the other evidence before it, including the evidence presented by the applicant.
[10] Furthermore, the IAD is a specialized tribunal capable of assessing the facts, and its decision should not be disturbed by this Court unless it is patently unreasonable (see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247). The IAD provided clear reasons in its decision, and there are serious elements of proof which generally support its conclusions.
[11] The onus is on the applicant to establish, on a balance of probabilities, that his wife can be considered his spouse because their marriage is genuine, or it was entered into primarily for a reason other than to gain status or a privilege under the Act. It is not unreasonable to conclude that the applicant has not met this burden. For example, despite numerous trips to China, as documented in his passport, the remainder of the evidence points towards a relationship where the parties do not have the intimate knowledge of each other's affairs that a married couple would normally have. The applicant's wife was not aware that the applicant had moved, yet testified that they were in constant communication. In addition, it was not unreasonable for the IAD to conclude someone, like the applicant's wife, who manages a hotel under contract could not be absent for lengthy periods of time and therefore the conclusion that it is not credible that she could have been absent for two extended periods in one year is reasonable.
[12] The applicant further submits that the IAD erred in law by imposing the requirement of proof that a genuine marriage be "ongoing". The term ongoing is not found in section 4 of the Regulations and the applicant submits that the meaning of "genuine" in section 4 of the Regulations could mean "legal", which their marriage is. The legality of the applicant's marriage is not being contested, it is the "genuineness" that is at issue. I am of the opinion that the respondent's argument on the interpretation of the meaning of "genuine" is more convincing. The test in section 4 of the Regulations can only be applied to a marriage that is defined in section 2 of the Regulations. As a result, the test in section 4 is only applied to what has already been determined to be a legal marriage under section 2 and to interpret "genuine" as "legal" would render section 4 of the Regulations redundant. The IAD properly examined the genuineness of the marriage based on evidence of the relationship between the applicant and Ms. Liu and found that the marriage was not genuine.
[13] The IAD's conclusions were not irrational based on the evidence before it and it is for the above reasons that I dismiss the application for judicial review.
JUDGE
OTTAWA, ONTARIO
February 17, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4385-04
STYLE OF CAUSE: ZHI QI NI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 18, 2005
REASONS FOR ORDER BY: PINARD J.
DATED: February 17, 2005
APPEARANCES:
Dennis G. McCrea FOR THE APPLICANT
Benton J. Mischuk FOR THE RESPONDENT
SOLICITORS OF RECORD:
McCrea & Associates FOR THE APPLICANT
Vancouver, British Columbia
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada