Date: 20060201
Docket: IMM-3694-05
Citation: 2006 FC 109
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
CAROLE SAVARD
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] Armed with a computer and the Internet, Carole Savard and Abderaouf Samadi fell in love! As a result of the development of this relationship, Ms. Savard attempted unsuccessfully to sponsor Mr. Samadi as a conjugal partner. The visa officer rejected her application. However, on appeal to the Immigration Appeal Division (IAD), the IAD ruled that the couple were indeed in a conjugal relationship and overturned the visa officer’s decision. The applicant, the Minister of Citizenship and Immigration, applied for judicial review of this decision of the IAD, and the Court must now rule on this application.
Facts
[2] Carole Savard and Abderaouf Samadi met on a website in June 2001. Ms. Savard is a Canadian citizen, while Mr. Samadi is a citizen of Morocco and a resident of Spain since 1992, where he lives with other members of his family. After a few keyboard sessions, they were madly in love and by August 2001, Carole Savard and Abderaouf Samadi were a couple.
[3] Following an exchange of personal emails and letters and telephone calls, Ms. Savard travelled to Spain on June 14, 2002 to meet her sweetheart at last. She then made a second trip in December 2002.
[4] On March 31, 2003, Ms. Savard filed a sponsorship application for Mr. Samadi in the family reunification class as a “conjugal partner” and an undertaking, and Mr. Samadi filed his application for permanent residence in Canada on April 11, 2003. Meanwhile, the lovebirds continued their relationship and she made two further trips to Spain.
[5] On December 23, 2003, the visa officer rejected Mr. Samadi’s sponsored application for landing in Canada. The visa officer found that he did not belong in the family class as he was not maintaining a conjugal relationship with Ms. Savard within the meaning of sections 2 and 121 of the Immigration and Refugee Protection Regulations (IRPR).
[6] Ms. Savard appealed the visa officer’s decision before the Immigration Appeal Division (IAD). The IAD found that Ms. Savard had discharged her burden of proof and that there was a conjugal relationship between her and Mr. Samadi as defined in sections 2 and 121 of the IRPR. The IAD also found that the record indicated that the couple were in love and intended to live together once he was in Canada.
Parties’ submissions
[7] The Minister argues that the IAD erred in law and in fact in finding that Ms. Savard and Mr. Samadi had discharged their onus of establishing that they are conjugal partners within the meaning of the IRPA and sections 2 and 121 of the IRPR. The Minister further alleges that the IAD erred in law by failing to conduct the analysis required under section 4 of the IRPR and failing to provide sufficient or adequate reasons in support of its decision.
[8] Under the IRPR, to satisfy the definition of conjugal partner, the relationship must have been maintained for a period of at least one year as of the date of filing of the sponsorship application. Moreover, the relationship must be bona fide.
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2. “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. (partenaire conjugal) |
2. « 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. (conjugal partner) |
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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 and was entered into primarily for the purpose of acquiring any status or privilege under the Act. SOR/2004-167, s. 3(E). |
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. DORS/2004-167, art. 3(A). |
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121. The requirements with respect to a person who is a member of the family class or a family member of a member of the family class who makes an application under Division 6 of Part 5 are the following: |
121. Les exigences applicables à l’égard de la personne appartenant à la catégorie du regroupement familial ou des membres de sa famille qui présentent une demande au titre de la section 6 de la partie 5 sont les suivantes : |
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(a) the person is a family member of the applicant or of the sponsor both at the time the application is made and, without taking into account whether the person has attained 22 years of age, at the time of the determination of the application. SOR/2004‑167, s. 42.
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a) l’intéressé doit être un membre de la famille du demandeur ou du répondant au moment où la demande est faite et, qu’il ait atteint l’âge de vingt-deux ans ou non, au moment où il est statué sur la demande. DORS/2004-167, art. 42.
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[9] Ms. Savard, for her part, argues that the IAD assessed the evidence in great detail and correctly applied the legislation and the case law for the purpose of determining whether there was a conjugal relationship between her and Mr. Samadi. Ms. Savard also contends that the IAD’s reasons explained exactly why it had reached that conclusion. In her view, the application for judicial review should be dismissed.
[10] The Minister does not deny that it is quite probable that the two are in fact a couple, but insists nonetheless that they must adhere to the definition of “conjugal partner” in the IRPA and sections 2 and 121 of the IRPR, and that this relationship must be genuine, in accordance with section 4 of the IRPR. In other words, the Minister argues, first, that the IAD cannot rely on evidence that is subsequent to the sponsorship application in order to find that they were conjugal partners prior to the application. Second, the Minister argues that the IAD cannot fail to conduct an analysis under section 4 of the IRPR in assessing whether the relationship is genuine.
Issues
[11] There are two issues in this case:
1. What is the applicable standard of review?
2. Should the IAD decision be upheld?
Standard of review
[12] As a general rule, this Court should give substantial deference to the IAD decision, unless it is patently unreasonable: see Satinder v. Canada (Minister of Citizenship and Immigration), 2001 FCT 504, [2001] F.C.J. No. 784 (QL), Jaglal v. Canada (Minister of Citizenship and Immigration), 2003 FCT 685, [2003] F.C.J. No. 885 (QL), Lello v. Canada (Minister of Citizenship and Immigration), 2005 CF 109, [2005] F.C.J. No. 136 (QL).
[13] However, as my colleague Mr. Justice Beaudry stated, in Yen v. Canada (Minister of Citizenship and Immigration), 2005 FC 1236, [2005] F.C.J. No. 1501 (QL), the appropriate standard of review for questions of interpretation of law is correctness.
[14] Since, in the case at bar, the Minister alleges an error in law concerning the interpretation of the notion of conjugal partner and in the analysis of bona fides under section 4 of the IRPR and in the scope of the reasons given by the IAD, the applicable standard of review is indeed correctness.
Analysis
[15] The IAD’s reasons raise the main issue herein. According to these, the evidence to be considered is not only the evidence relevant to the sponsorship period, that is, one year prior to the filing of the application, but a range of evidence subsequent to the application. The issue is whether the IAD actually examined the right evidence, and if so it must be determined whether the reasons reflect its reasoning clearly and sufficiently.
[16] The parties do not dispute that an appeal to the IAD is an appeal de novo, as was shown in Amar Singh v. Canada (Minister of Citizenship and Immigration) 2005 FC 1673, [2005] F.C.J. No. 2071 (QL) and Kahlon v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 104 (QL), 7 Imm. L.R. (2d) 91 (F.C.A.). It is true that normally the IAD may in fact consider all of the evidence that is adduced before it. However, in this case, the IAD made no distinction between the evidence pertaining to the relevant period and the subsequent evidence; this points to an error of law rather than of fact.
[17] If, as the Minister argues, the IAD considered the subsequent evidence in order to determine that the two are indeed conjugal partners, the IAD did not correctly interpret the language in section 2 of the IRPR, which requires that the individuals have been in a conjugal relationship for a period of at least one year at the time of filing of the sponsorship application.
[18] Section 2 of the IRPR defines “conjugal partner” as meaning, “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”. Section 130 of the IRPR defines the “sponsor”. It appears that, in order to be sponsored as a conjugal partner, Mr. Samadi should not be living in Canada. If we return to the definitions in the IRPR, according to section 1, a “common-law partner” means an individual who is cohabiting with another individual in a conjugal relationship, having so cohabited for a period of at least one year. It is obvious, therefore, that a “conjugal partner” need not cohabit for at least one year.
[19] There is a distinction to be made, therefore, between what is understood by a “common‑law partner” and a “conjugal partner”. The parties are in agreement that the notion of “conjugal partner” within the meaning of the IRPR has not been the subject matter of decisions in the Federal Court. But there are some decisions of the Supreme Court that can be considered in order to understand more clearly the notion of “conjugal partner” — in particular M. v. H., [1999] 2 S.C.R. 3 — none of these decisions have an immigration context. See also McCullough v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 25 and Gibbs v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 1221.
[20] The problem in this case is that it is impossible to determine from the IAD’s reasons how the decision-maker arrived at the finding that Ms. Savard and Mr. Samadi were conjugal partners within the meaning of section 2 of the IRPR.
[21] This leads to another problem: the IAD’s reasons are insufficient and do not indicate how the decision-maker reached its decision. As the Supreme Court held in R. v. Sheppard, [2002] 1 S.C.R. 869, at para. 15:
The courts frequently say that justice must not only be done but must be seen to be done, but critics respond that it is difficult to see how justice can be seen to be done if judges fail to articulate the reasons for their actions. Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts.
[22] Clearly, the reasoning underlying a decision is important when there is an application for judicial review. As I stated in Blais v. Canada (Attorney General), 2004 FC 1638, (2004), 263 F.T.R. 151, [2004] F.C.J. No. 1996 (QL), at para. 39:
As stated in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, factual findings and the record compiled by an administrative tribunal as well as its informed and expert view will often be invaluable to a reviewing court.
[23] Although the IAD refers to the evidence adduced by Ms. Savard, which consists of an array of love letters, emails, telephone invoices and evidence of trips to Spain, most of this evidence relates to the period following the filing of the sponsorship application. It is true that Cepeda-Guiterrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), 157 F.T.R. 35, held that failure to refer to each item of evidence does not mean that not all of the evidence was considered. Notwithstanding this contention, absent a precise distinction between the evidence relating to the sponsorship period and the evidence subsequent to the application, the Court must assume that the subsequent evidence was considered.
[24] Moreover, in view of the importance of distinguishing between the notion of “common‑law partner” and “conjugal partner” under the IRPR, and in view of the Martin decision, supra, it would be wrong for this Court to try to reach its own conclusion on this point. On judicial review, it is essential to illustrate the Court’s reasoning and set out the important considerations in Ms. Savard’s case. The IAD is unquestionably an expert tribunal and the Court must defer to its expert opinion, particularly in relation to the various interpretations and definitions surrounding the concept of “conjugal partner”. Unfortunately, this notion has not been sufficiently developed in the IAD’s reasons for the Court to be able to understand the reasoning behind the IAD’s decision.
[25] As the American poet Henry Wadsworth Longfellow said, “It is difficult to know at what moment love begins; it is less difficult to know that it has begun.” In this case, there is apparently no question that love has begun between Carole Savard and Abderaouf Samadi; but it would be an error in law, in interpreting the legislation, to overlook when this love began.
Conclusion
[26] For the aforementioned reasons, the Court will allow the application for judicial review and order that a rehearing be held before a new member of the IAD.
[27] I wish to point out that my decision to allow the application for judicial review does not preclude Ms. Savard from filing a new sponsorship application having regard to the evidence she might otherwise provide in order to satisfy the requirements of the IRPA and the IRPR.
Certification of a question
[28] At the conclusion of the hearing in this case, I informed the parties that they could propose to me a question to be certified if they were persuaded that the certification of a question was appropriate. Even before I could inform the parties of my reasons, Ms. Savard raised the following question:
[translation] What are the characteristics of a conjugal relationship in the context of a sponsorship application and undertaking in favour of a conjugal partner?
Although this question is important, I am not going to certify it since it is not decisive to any appeal of my decision.
[29] Ms. Savard now has until February 7, 2006 to submit another serious question of general importance for me to examine, and, if applicable, the Minister has until February 10 to reply to it. Any correspondence shall be conducted through the local Office in Montréal.
“Sean Harrington”
Ottawa, Ontario
February 1, 2006
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3694-05
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. CAROLE SAVARD
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 24, 2006
REASONS FOR ORDER: Mr. Justice Sean Harrington
DATED: February 1, 2006
APPEARANCES:
Isabelle Brochu FOR THE APPLICANT
Vincent Valai FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE APPLICANT
Deputy Attorney General of Canada
Vincent Valai FOR THE RESPONDENT
Montréal, Quebec