Federal Court Decisions

Date: 20020114

Docket: IMM-5397-00

Neutral citation: 2002 FCT 32

BETWEEN:

                                                          THE MINISTER OF

                                          CITIZENSHIP AND IMMIGRATION

                                                                                                                                          Applicant

                                                                        - and -

                                                   GREGORY NEIL DRAPER

                                                                                                                                      Respondent

                                                    REASONS FOR ORDER

SIMPSON J.

[1]                 The application for judicial review in this case was brought by the Minister of Citizenship and Immigration (the "Applicant"). The decision under review was made by the Appeal Division of the Immigration and Refugee Board (the "IAD") on October 3, 2000 (the "Decision"). In its Decision, the IAD overturned a visa officer's determination dated June 11, 1999 that Xiu Hua Peng ("Ms. Peng") was not a member of the family class despite her marriage to the Respondent, Gregory Draper ("Mr. Draper"). The officer's determination was based, in large measure, on his interview with Ms. Peng.

[2]                 Mr. Draper is a Canadian citizen who sponsored Ms. Peng's application for landing under the family class as his wife. The issue for the IAD on the appeal from the visa officer's decision was whether Ms. Peng satisfied the requirements of section 4(3) of the Immigration Regulations, 1978. It reads:

(3) 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.

(3) La catégorie des parents ne comprend pas le conjoint qui s'est marié principalement dans le but d'obtenir l'admission au Canada à titre de parent et non dans l'intention de vivre en permanence avec son conjoint.

[3]                 The IAD relied heavily on Mr. Draper's evidence on the appeal and was persuaded that, although the marriage was entered into primarily for the purpose of gaining admission to Canada to be reunited with her family, Ms. Peng did intend to live permanently with Mr. Draper. The IAD therefore determined that she was a member of the family class.

The Background

[4]                 Mr. Draper testified that he worked with a man called Kevin who was married to a Chinese woman named King. King is one of Ms. Peng's sisters. King showed Mr. Draper a picture of Ms. Peng and Mr. Draper found her attractive. In 1994, Mr. Draper began to communicate with Ms. Peng by letter and by telephone from King's home.

[5]                 In 1998, after Ms. Peng accepted a proposal of marriage by telephone, Mr. Draper travelled to China with Kevin and met Ms. Peng for the first time. They married in October 1998.

[6]                 In February of 1999, before Ms. Peng was interviewed by the visa officer, Mr. Draper and Ms. Peng each signed a questionnaire in support of Ms. Peng's application for landing as a member of the family class (the "Questionnaire"). They indicated that they communicated with each other in English and that 50 people attended their wedding reception in Putian, Fujian Province in China.

[7]                 In due course, Ms. Peng was interviewed by the visa officer, who rejected her application for landing on the basis that she was not a member of the family class.

The Issues

[8]                 The Applicant has taken the position that the IAD erred in law in basing its conclusions about Ms. Peng's intentions on Mr. Draper's evidence. The Applicant also claims that the conclusion reached by the IAD was perverse and not open to it on the evidence.

Discussion

[9]                 Although, the IAD heard evidence from Mr. Draper, it had no fresh evidence before it from Ms. Peng. It had only her evidence from the Questionnaire and from her interview with the visa officer. Had it considered this evidence, it could not have reached the conclusion that she intended to reside permanently with Mr. Draper. While it is true that she stated that it was her intention to do so, there was no reason to believe her. Ms. Peng needed a paper in her hand at the interview to remember her husband's name. She said that she and Mr. Draper first communicated in 1998, while Mr. Draper said that their communication had begun four years earlier. The only explanation he could give for the wide discrepancy in their evidence was that she might have been "nervous".

[10]            Further, the IAD does not appear to have focussed in a meaningful way on the fact that another of Ms. Peng's sisters married a second of Mr. Draper's co-workers on the same day as Mr. Draper married Ms. Peng. Mr. Draper travelled to China with this co-worker and the two men planned to marry the sisters while there. Yet, when he filled out the Questionnaire, Mr. Draper did not mention that his co-worker was one of his travelling companions on the trip to China. As well, the IAD did not note that, although Ms. Peng's sister was admitted to Canada as a result of her marriage, she is not living with her husband, but rather with her parents. All of this evidence suggests that there may have been a plan to bring Ms. Peng and her sister to Canada to live with their parents.

[11]            Ms. Peng and Mr. Draper were untruthful when they said that they had communicated with each other in English. It became obvious during Ms. Peng's interview with the visa officer that she spoke no English and an interpreter was required. This fact casts doubt on the meaningfulness of the telephone conversations and explains why Mr. Draper's calls from Canada to China were made from King's home. Ms. Peng was also untruthful when she told the visa officer that she had never applied for a Canadian visitor's visa. The records show that she had made an application in 1997 to visit her parents. Oddly, the application did not mention any interest in visiting Mr. Draper, even though he said that he was in frequent contact with her by that year.

[12]            I have determined that it was not open to the IAD to conclude that Ms. Peng's intention was to live with Mr. Draper permanently following her arrival in Canada. I have reached this conclusion because of the volume of unexplained and contradictory evidence, the visa officer's conclusion that Ms. Peng was evasive in the interview, and the circumstantial evidence suggesting that Ms. Peng, like her sister who married on the same day, would not live with her new husband.

Conclusion

[13]            For all of these reasons, the application will be allowed and the matter will be referred back for reconsideration by a differently constituted panel of the IAD.

                  "Sandra J. Simpson"                      

JUDGE

Ottawa, Ontario

January 14, 2002