Date: 20010808
Docket: IMM-3102-00
Neutral citation:2001 FCT 870
PRESENT: The Honourable Mr. Justice McKeown
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
-and-
FELICIA IFEYINWA UGWU
Respondent
[1] The Minister seeks judicial review of a decision of the Immigration and Refugee Board (Appeal Division) dated May 29, 2000 wherein the Appeal Division found that the respondent's spouse qualifies as a member of the family class.
[2] The issue is whether the Appeal Division erred in law by failing to apply the correct test, thereby finding that the respondent's spouse was a member of the family class. That is, did the Appeal Division err in finding that the respondent's spouse was not a member of the class of persons excluded from the family class, pursuant to subsection 4(3) of the Immigration Regulations, 1978?
Facts
[3] The respondent is a Canadian citizen who was born in Nigeria. While on a visit to Nigeria in December, 1994, she met Mr. Ugwujaeze on a domestic flight. They both claimed they fell in love during this flight. After the respondent met with Mr. Ugwujaeze on a couple of occasions she asked him to marry her. He was not interested as he said he was a poor man. Subsequently, she asked her parents to look into his suitability. They found that he was poor but respected. After this, he agreed to get married. They were married in a traditional ceremony on December 28, 1994 and in a civil service two days later. On January 2nd (possible January 5th), 1995, the respondent returned to Canada. She did not see Mr. Ugwujaeze until December, 1999 when she returned to Nigeria for another trip.
[4] On August 23, 1995, the respondent's sponsorship application was approved. On March 27th, 1997, Mr. Ugwujaeze's application for an immigration visa was received at the Canadian High Commission in Ghana. On March 19, 1998, he was interviewed by a visa officer. The visa officer requested that additional letters between the respondent and Mr. Ugwujaeze be submitted in support of the visa application. Further correspondence was received from Mr. Ugwujaeze on July 18, 1998.
[5] On November 11, 1998, the visa officer concluded that Mr. Ugwujaeze had married the respondent primarily for the purpose for gaining admission to Canada and was therefore inadmissible pursuant to subsection 4(3) of the Immigration Regulations, 1978, and subsection 77(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2. A refusal letter was sent to Mr. Ugwujaeze dated November 16, 1998, and the respondent also received a letter informing her of the refusal.
[6] The respondent appealed to the Appeal Division. On May 29, 2000, the Appeal Division allowed the appeal and found that Mr. Ugwujaeze was not a person described by subsection 4(3) of the Regulations.
Analysis
[7] Subsection 4(3) of the Immigration Regulations, 1978 states:
The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse.
[8] The Minister submits that the Appeal Division did not give any consideration to the test as set out by Mr. Justice Strayer in the case of Hobas v. M.E.I., [1985] 2 F.C. 359 (T.D.) at 365:
It should be first observed that the test is a double test: that is, the spouse is disqualified under subsection 4(3) only if the marriage is entered into primarily for the purpose of gaining admission to Canada and not with the intention of residing permanently with the other spouse.
Thus, the Minister contends that the Appeal Division erred in law by not applying the proper test, i.e. the Appeal Division failed to consider the intention of the respondent's spouse, which is relevant in deciding whether or not he falls under subsection 4(3).
[9] The respondent relies on the following paragraph of the Appeal Division's decision to show that the Appeal Division considered the issue of Mr. Ugwujaeze's intentions:
The visa officer doubted the applicant's intentions as he had met his spouse by chance for the first time on December 10, 1994, and they were married twenty days later; the applicant could not produce photographs of the wedding as they had been lost; the correspondence between the appellant and the applicant relates to the immigration process rather than to personal matters; there is no evidence that the parties had developed a genuine marital relationship over the years.
[10] There is no analysis of Mr. Ugwujaeze's intentions by the Appeal Division. The only analysis by the Appeal Division reads as follows:
The visa officer states that the subject of immigration often referred to in the letters exchanged between the parties raises a doubt about the genuineness of the relationship. As the parties are being kept apart by the refusal to issue the applicant a visa, then immigration is concerned that would be uppermost in their minds and thus a subject mentioned frequently. The fact that the parties have corresponded since they were married and that the relationship has lasted five years is, in my opinion, a stronger indication that the marriage is bona fide than frequent references to immigration in their correspondence.
[11] The correspondence between the parties until September, 1995 is strictly letters from the respondent to Mr. Ugwujaeze. He does not write her until September, 1995 and he even states in that letter that there has been no telephone communication between them during the nine months since her departure. There is nothing in the correspondence between the parties until 1998 which would indicate a usual marital relationship. However, in 1998 and 2000 there are references by Mr. Ugwujaeze which could indicate a true marital relationship.
[12] The Appeal Division found the sponsor (respondent) credible and that the visa officer's decision was incorrect, which counsel for the respondent submits is supported by Reed J. in Rattan v. M.E.I. (1980), 73 F.T.R. 195 (T.D.) at paragraph 7, where she states:
The Appeal Division's role is not to determine whether the immigration officer's decision was correctly taken, but to determine if the sponsoree is in fact a member of the class of persons excluded by s. 4(3) of the Regulations... For that purpose the sponsor's evidence, and the immigration officer's decision must be reviewed in coming to the decision. If the sponsor can satisfy the panel that the immigration officer's conclusions were incorrect, an appeal is allowed.
[13] Although I might have decided the case differently based on the evidence herein, I cannot state that the Appeal Division's decision is unreasonable. The correspondence is evidence provided by both the sponsor (respondent) and Mr. Ugwujaeze, thus the Appeal Division appears to have considered evidence coming from Mr. Ugwujaeze in deciding the issue of bona fides and it is reasonable to state that the Appeal Division must have had the intentions of both parties in mind.
[14] The respondent submitted that the standard of review should be patent unreasonableness. I do not have to make a finding in that respect since, even on the standard of reasonableness simpliciter, I find that the Appeal Division's decision was reasonable and that the Appeal Division did not err in law.
ORDER
1. The application for judicial review is dismissed.
2. Since the standard of review is not the basis for the decision in this matter, I am not certifying a question.
"W. P. McKeown"
J.F.C.C.
Toronto, Ontario
August 8, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3102-00
STYLE OF CAUSE: THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
-and-
FELICIA IFEYINWA UGWU
Respondent
DATE OF HEARING: TUESDAY, AUGUST 7, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MCKEOWN J.
DATED: WEDNESDAY, AUGUST 8, 2001
APPEARANCES: Mr. Michael Butterfield
For the Applicant
Mr. Davies Bagambiire
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General of Canada
For the Applicant
Davies Bagambiire
Barrister & Solicitor
347 Bay Street, Suite 1202
National Building
Toronto, Ontario
M5H 2R7
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010808
Docket: IMM-3102-00
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
-and-
FELICIA IFEYINWA UGWU
Respondent
REASONS FOR ORDER
AND ORDER