Case Study: Chernenko v Canada

In this case study, you will analyze the IAD decision in Chernenko v Canada to determine what role counsel played in the outcome of the decision.

Answer the following questions after reading the IAD decision:

1. What facts were presented by the appellant's counsel to support granting the appeal?
2. Is there any documentary evidence that you would have advised the appellant to present to support his appeal?
3. What facts weighed in favor of the IAD member granting the appeal?
4. If you were the IAD member presiding over this appeal, would you have granted or dismissed the appeal? Why or why not?

Case Study: Chernenko v Canada

easons and Decision Motifs et dcision

SPONSORSHIP

Appellant(s) Vitaliy CHERNENKO Appelant(e)(s)

and et

Respondent The Minister of Citizenship and Immigration Intim(e)

Date(s) of Hearing June 27, 2014 Date(s) de l'audience

Place of Hearing Heard by videoconference in Lieu de l'audience

Vancouver, BC and

Edmonton, AB

Date of Decision August 18, 2014 Date de la dcision

Panel George Pemberton Tribunal

Counsel for the Nathan Po Conseil(s) de

Appellant(s) Barrister and Solicitor l'appelant(e) / des

appelant(e)(s)

Designated N/A Reprsentant(e)(s)

Representative(s) Dsign(e)(s)

Counsel for the Minister Nancy McIver Conseil du ministre

REASONS FOR DECISION

[1] These are the reasons and decision in an appeal by Vitaliy CHERNENKO (the "appellant") from a refusal to approve the application for a permanent resident visa for his wife, Maryna CHERNENKO (the "applicant"), who was sponsored by the appellant. The sponsored application for a visa was refused because the visa officer found the applicant to be inadmissible to Canada in that she did not meet the requirements of the Immigration and Refugee Protection Act (the "Act").^[1]

ISSUE

[2] At issue in this appeal is whether subsection 117(9)(d) of the Immigration and Refugee Protection Regulations (the "Regulations")^[2] applies, thereby excluding the applicant from consideration as a member of the family class.

[3] The visa officer found that the applicant and appellant were in a common-law relationship at the time of the appellant's own application for permanent residence, and the applicant was not declared or examined.

DECISION

[4] I find that the appellant has established that subsection 117(9)(d) of the Regulations does not apply. The appeal is allowed.

STATUTORY PROVISIONS

[5] The following provisions of the Act are applicable to this appeal:

40(1) - Misrepresentation - A permanent resident or a foreign national is inadmissible for misrepresentation

(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; [. . . .]

[6] The following provisions of the Regulations are applicable to this appeal:

1(1) Interpretation - The definitions in this subsection apply in the Act and in these Regulations.

"common-law partner" means, in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year.

2 Interpretation - The definitions in this section apply in these Regulations.

"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.

"dependent child", in respect of a parent, means a child who

(a) has one of the following relationships with the parent, namely,

(i) is the biological child of the parent,[...] and

(b) is in one of the following situations of dependency, namely,

(i) is less than 22 years of age and not a spouse or common-law partner, [. . . .]

117(1) Member - A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is

(a) the sponsor's spouse, common-law partner or conjugal partner;

117(9) Excluded relationships - A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application. The foreign national was a non-accompanying family member of the sponsor and was not examined.

BACKGROUND

[7] The appellant is a 31-year-old citizen of Canada. He became a permanent resident on July 13, 2004. He was sponsored for permanent residence as a dependent of his father. The applicant is a 30-year-old resident of Ukraine. The couple was married in Ukraine on June 13, 2009. They have one child and the applicant is pregnant with their second child.

[8] In 2012, after becoming a Canadian citizen, the appellant applied to sponsor the applicant. On September 17, 2012, Citizenship and Immigration Canada ("CIC") sent the applicant a refusal letter citing subsection 117(9)(d) of the Regulations.

[9] The appellant and applicant testified at the hearing. The appellant's mother was available to testify but did not do so. As part of an effort towards early resolution, the appellant provided submissions and documentary evidence[3] as did counsel for the Minister of Citizenship and Immigration (the "respondent").[4] The appellant provided further documentary evidence for the hearing.[5] I have considered the documents in the Record and the submissions and documents provided by the parties.

FACTS

[10] It is common ground that the appellant was sponsored for permanent residence as a dependent of his father. The appellant was granted permanent resident status on July 13, 2004. He did not declare the applicant as a non-accompanying dependent on his Confirmation of Permanent Residence[6] or at any other time during his application for permanent residence. The applicant was not declared and not examined. The couple met while they were studying at the National Aviation University in Kiev while the appellant's application for permanent residence was still in process. They began to date in approximately March 2002, when they were each 18 years old. Soon after, they began living together - at least part of the time - in the appellant's mother's home. In July 2004 the appellant left for Canada. The applicant remained in Ukraine. The appellant obtained his Canadian citizenship in December 2007. In July 2008 the appellant returned to Ukraine and remained there until 2011.

[11] It is in the nature of the couple's relationship in the time leading up to the appellant's emigration from Ukraine that the parties diverge. The respondent submits that the applicant was the appellant's common-law partner and that the applicant should have been declared and examined as a non-accompanying dependent. The appellant submits that the relationship did not meet the definition for being a common-law partnership and it was therefore not necessary to declare the applicant or have her examined.

[12] There are two versions of the facts before me. The first is the version presented by the appellant and applicant in their 2012 application and in the applicant's interview with the visa officer. The second is that presented for the hearing.

The Version of Facts as Provided in the 2012 Application

[13] The version of facts provided with the 2012 application paints a picture of the couple having cohabited from June 2002 until the appellant's departure for Canada in 2004, and of a continuing relationship thereafter.

a. In her written application, the applicant reports having lived at 44/2 Garmatna Street, Kyiv (the appellant's mother's home) from June 2002 until May 2005. She then reports having lived at 23 Svitytskoho St. (the appellant's grandmother's home) from May 2005 until June 2008.[7]

b. The applicant states that "...we moved in together to Vitaliy's condo in June 2002. We have lived together until July 2004, when Vitaliy moved to Canada."[8]

c. The application form shows the proposal date as July 13, 2008, shortly after the appellant's return to Ukraine.

d. The applicant states that the couple travelled together to Lviv and Warsaw in July 2004[9] and vacationed together in St. Petersburg, Russia for three weeks in July 2005.[10]

e. The applicant claimed the reason for the delay in marriage was that they decided to wait until the appellant had his Canadian citizenship.[11]

f. The form shows the couple cohabited from June 5, 2002 to July 13, 2004, and again from June 30, 2008 until September 16, 2011.[12]

g. The appellant provided a handwritten narrative.[13] In it the appellant states:

i. The couple began dating in March 2002 and "have been together ever since. We lived together in my condo in Kyiv until 2004 when I moved to Canada."

ii. "While in Canada I kept in touch with Maryna and we decided we would be together no matter what."

h. The applicant was interviewed by a visa officer on September 17, 2012. According to the visa officer's notes,[14] the applicant stated:

i. She moved in with the appellant in June 2002 and they lived together until July 2004.

ii. The appellant stayed in Canada until he received his Canadian citizenship.

i. The application form states that the couple communicate "every day by Skype".[15] The CIC file record states that proof of relationship, including a Skype printout was received.[16] No Skype printout or any other documentary evidence of communication between 2004 and 2008 are before me.

The Version of Facts as Provided at the Hearing

[14] The appellant and applicant testified that the information in their application was either incorrect or embellished. They testified that they attempted to portray their relationship in the way they did out of fear the visa officer would find their marriage not genuine.

[15] They testified that they were about 18 years old at the time they met at university. They started dating in approximately March 2002. They testified that in approximately May 2002 there was a serious flu outbreak at the university causing the appellant's mother to invite the applicant to stay with them. Initially the applicant had her own room, but the applicant and appellant soon began sharing a room and having sexual relations. They testified that the applicant lived with the appellant only part-time, that she maintained her full-time residence at the university dormitory, and spent weekends at her parents' home. The applicant testified that she kept her belongings at the dormitory and cooked her meals there. Documentary evidence was provided showing that the dormitory address remained as the applicant's official address for the university and other official purposes.

[16] The appellant and applicant testified that they considered themselves "boyfriend" and "girlfriend". Their friends considered them a couple but the relationship was kept secret from the applicant's parents. The appellant and applicant testified that because of the parents' strong religious beliefs they would not have approved and therefore they were not told. The appellant met the applicant's parents once, on the occasion of the applicant's birthday.

[17] The appellant testified that with the exception of a vacation to Crimea in 2003, when he paid all expenses, they did not share finances. They each relied on their parents' support or student subsidies from the government.

[18] The appellant and applicant testified that they each knew the appellant was immigrating to Canada and therefore their relationship could not be sustained. They testified that they had very limited contact after the appellant left for Canada, essentially only on occasions when the appellant would phone his mother and the applicant happened to be there. They testified that they dated other people after the appellant left for Canada.

[19] They appellant testified that the 2005 vacation in Russia was intended to be a gift for his mother. He used his employment earnings to pay her way. The appellant testified that he was surprised when he learned his mother had invited the applicant. He testified that his mother paid the applicant's way.

[20] The appellant and applicant testified that the next time they were together was July 2008 when the appellant returned to Ukraine because his grandmother was seriously ill. The romance re-kindled and approximately six months after returning the appellant proposed. They each testified that the July 13, 2008, proposal date reported in the application is false.

[21] The applicant testified that she continued to live with the appellant's mother after the appellant left for Canada because his mother was lonely. When the appellant's mother sold her apartment the applicant moved in with the appellant's grandmother. The applicant testified that the reason for this was that the grandmother's home was more convenient for her to work on her Master's thesis and more convenient to her work. The applicant paid a share of some expenses but did not pay rent.

Appellant's Submissions

[22] Appellant's counsel submits that appellant and applicant were young when they met and that the relationship never progressed beyond "girlfriend-boyfriend". He submits that they had not made a lasting commitment and that the relationship lacked permanence. He submits that the co-habitation was intermittent and that the applicant maintained her primary residence at the dormitory. They did not share their finances. They did not disclose the relationship to the applicant's parents. Counsel therefore submits that the relationship lacked the necessary qualities to meet the test of being a common-law partnership.

[23] Counsel submits that the long break in contact between 2004 and 2008 corroborates the testimony that the couple did not intend the relationship to continue after the appellant emigrated.

[24] The appellant became a permanent resident in 2004. The couple married in 2009. The sponsorship application was not submitted until 2012. Counsel submits that the long delay in sponsoring the applicant is evidence that the couple was not in a committed relationship prior to the appellant's departure for Canada in 2004.

Respondent's Submissions

[25] The respondent submits that the credibility of the testimony is a significant factor. She submits that the appellant has presented two contrasting sets of facts. The story in the application is supported by documentary evidence provided by the appellant and was verified by the applicant in her interview with the visa officer. The respondent argues that the story provided at the hearing only surfaced after the application was refused and is tailored to overcome the refusal.

[26] The respondent submits that the facts point to the applicant spending most nights with the appellant, that the relationship was sexual, and it was exclusive. She argues that, with the exception of the applicant's parents, the appellant and applicant presented themselves as a couple, and were perceived that way by friends and family.

[27] The respondent submits that the only reasonable explanation for the applicant continuing to live with the appellant's mother and grandmother is that she had been accepted as a member of the family. She further submits that the testimony regarding the 2005 vacation in Russia is not credible.

ANALYSIS

[28] The circumstances need to be examined with an understanding of the possible motivations for the appellant's actions. I will first address a possible motivation for the appellant to have failed to disclose a common-law relationship with the applicant. The definition of "dependent child" in section 2 of the Regulations specifically excludes children who have a spouse or a common-law partner. Had CIC become aware that the appellant had a common-law partner, the appellant could not have been sponsored for permanent residence by his father.

[29] Next, a possible motivation for the appellant waiting so long to sponsor the applicant. If the appellant was in a common-law relationship at the time of his own permanent resident application, he could be found inadmissible for misrepresentation under subsection 40(1) of the Act and ordered to depart Canada. Once he became a Canadian citizen that was no longer a risk. This possible motive for delaying diminishes the weight of appellant's counsel's argument that the long delay in sponsoring the applicant corroborates the story presented at the hearing.

[30] Appellant's counsel raised the issue of the appellant's and applicant's ages, implying that their relative youth is relevant to their capacity to enter into a conjugal relationship. In this he relied, in part, on the decision of Mr. Justice Kelen of the Federal Court in Cai.[17] First, Cai is differentiated on the facts. More to the point, Justice Kelen did not find that young people cannot enter into conjugal relationships. What he found is that the visa officer in that case had no reasonable basis to form the opinion that the couple had been in a conjugal relationship.

[31] There is nothing in law or in fact to prevent 19-year-old couples from marrying or from entering into conjugal or common-law relationships. The ability to do so rests on the cultural context, the maturity of the individuals, and, in the case of marriage, the laws of the jurisdiction. The Alberta Marriage Act allows any person over 17 years of age to marry without consent of their parents. There is also no evidence before me that Ukrainian law proscribed the appellant's and applicant's relationship. If Parliament had intended young couples to be treated differently under the Act, it would have created an exemption for them. It did not. It is therefore necessary to assess whether the facts specific to this couple meet the test of them having been in a common-law partnership as contemplated by the Act.

[32] Appellant's counsel and the respondent both alluded to a decision of Mr. Justice Rouleau of the Federal Court in Siev[18] wherein he offers a quotation regarding permanence of a relationship. His decision has been quoted in other jurisprudence as if the words are his. For clarity, the words are not his and do not carry the weight of Federal Court jurisprudence. Justice Rouleau was merely quoting verbatim from the CIC Overseas Processing Operational Manual. The guidance offered in that manual is not binding on me.

[33] The Supreme Court in M v H[19] endorsed the approach taken by the Ontario District Court in Molodowich.[20] Most notably, the court recognized that not all the factors discussed in Molodowich will be present to the same degree in every relationship. The key passages in M v H are

59. Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. [. . .] In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is "conjugal".

60. Certainly an opposite-sex couple may, after many years together, be considered to be in a conjugal relationship although they have neither children nor sexual relations. Obviously the weight to be accorded the various elements or factors to be considered in determining whether an opposite-sex couple is in a conjugal relationship will vary widely and almost infinitely. The same must hold true of same-sex couples. Courts have wisely determined that the approach to determining whether a relationship is conjugal must be flexible. This must be so, for the relationships of all couples will vary widely. [. . . .]

[34] The characteristics of a conjugal relationship set out in Molodowich[21] are

(1) Shelter:

(a) Did the parties live under the same roof?

(b) What were the sleeping arrangements?

(c) Did anyone else occupy or share the available accommodation?

(2) Sexual and Personal Behaviour:

(a) Did the parties have sexual relations? If not, why not?

(b) Did they maintain an attitude of fidelity to each other?

(c) What were their feelings toward each other?

(d) Did they communicate on a personal level?

(e) Did they eat their meals together?

(f) What, if anything, did they do to assist each other with problems or during illness?

(g) Did they buy gifts for each other on special occasions?

(3) Services:

What was the conduct and habit of the parties in relation to:

(a) Preparation of meals,

(b) Washing and mending clothes,

(c) Shopping,

(d) Household maintenance,

(e) Any other domestic services?

(4) Social:

(a) Did they participate together or separately in neighbourhood and community activities?

(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5) Societal:

What was the attitude and conduct of the community towards each of them and as a couple?

(6) Support (Economic):

(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

(b) What were the arrangements concerning the acquisition and ownership of property?

(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7) Children:

What was the attitude and conduct of the parties concerning children?

Shelter

[35] A critical point of contention in this case is whether the appellant and applicant cohabited. This is a necessary element in the definition of "common-law partner". I find they did cohabit for at least a year prior to July 13, 2004. They claimed in their application that they had lived together from 2002 to 2004. I find the testimony regarding the testimony that the applicant had continued to use the dormitory as her primary residence self-serving and disingenuous. The testimony on how many nights per week the applicant spent at the appellant's home was vague, varying between two and four nights per week. Accepting that the applicant returned to her hometown on weekends, the applicant was spending up to four of five nights per week with the appellant. The applicant continued to reside with the appellant's mother and, later, grandmother after the appellant emigrated. I find this relevant evidence of the nature of the living arrangements before the appellant emigrated. I give little weight to the documentary evidence showing the applicant's address as the dormitory. She had a strong motivation to maintain the appearance that she lived at the dormitory to prevent her parents from learning she was living with the appellant.

Sexual and Personal Behaviour

[36] The relationship was sexual and exclusive. It is clear from the testimony that their relationship was close and intimate.

Services

[37] The testimony suggests that neither the applicant nor appellant contributed significantly to day-to-day household affairs. It appears that, for the most part, they continued to rely on their parents.

Social

[38] The appellant and applicant participated in community activities as a couple. The relationship was intentionally kept secret from the applicant's family because of their strongly-held religious beliefs. The appellant's family was aware of, and with the exception of the appellant's father, approved of the relationship. I find that the appellant's mother's and grandmother's continued close relationship with the applicant to be indicative of their desire, at least, that the applicant become part of their family.

Societal

[39] The appellant and applicant testified that their friends perceived them as a couple and treated them accordingly. I find that in the eyes of the community, they were a couple.

Support (Economic)

[40] Both witnesses testified that they each continued to rely on their parents for financial support, and did not have any joint finances. The only exception to this was a vacation to Crimea paid for by the appellant when he had a summer job. Given their status as university students, I find the testimony that they each continued to rely on their parents, and did not have shared finances, to be reasonable.

Children

[41] No evidence was provided of the couple's attitude towards having children during 2002 to 2004.

[42] It is clear that this relationship has many of the characteristics of a conjugal partnership. The absence of some of the characteristics, for example, financial interdependence, is consistent with the nature of their relationship and the stage their lives were at. Bearing in mind the Supreme Court's guidance that "these elements may be present in varying degrees and not all", I find the lack of certain characteristics not determinative.

[43] Appellant's counsel argues that, while the appellant's relationship had some of the characteristics of a conjugal partnership, it lacked the requisite long-term intent and commitment. This position has support in jurisprudence.

[44] Appellant's counsel relies, in part, on the judgment of the Honourable Justice Kelen in Cai wherein he found that a conjugal relationship requires a "making a mutual commitment to a shared life, having a permanent, long-term relationship,"[22] phrases drawn from Siev. While I respectfully observe that the words from Siev are not actually those of Mr. Justice Rouleau, Mr. Justice Kelen's conclusion remains.

[45] Similarly, Madam Justice Heneghan in her judgment in Walia,[23] drawing from a decision of the British Columbia County Court in Bellis,[24] found:

The word "co-habit" has been interpreted as meaning a "marriage-like" relationship characterized by the features of financial interdependence, a sexual relationship, a common principal residence, mutual obligations to share the responsibility of running the home and the "expectation each day that there be continued mutual dependency"

[46] Mr. Justice Hutchison in Bellis laid out a set of criteria for assessing conjugal partnerships similar to those found in Molodowich. However, in neither Bellis nor Molodowich are the factors intended to "define" a conjugal relationship. A conjugal relationship is defined by more than just the sum of the outwardly observable characteristics; it also includes the parties' states of mind. The criteria described in Molodowich and Bellis are observable characteristics that assist in assessing the underlying nature of the relationship; they assist in determining the parties' intent and commitment.

[47] Based on all the facts before me, I find that the appellant and applicant lacked the intent and commitment to be in a long-term, marriage-like relationship. There was not an "expectation each day that there would be continued mutual dependency." While my finding is based on all the evidence, including the witness testimony, I find two facts tipped the balance in the appellant's favour.

[48] First, notwithstanding the appellant's possible motivation to avoid a finding of misrepresentation, I find that the lengthy delay between the appellant's immigration to Canada and his marriage to the applicant is not indicative of a mutual intention that their relationship would continue after the appellant's departure. Rather, I find it more reasonable that at least one, if not both of them, believed the relationship would end with the appellant's departure.

[49] Second, despite their best efforts to portray their relationship as permanent and continuing from 2004 through 2008, in his 2012 application the appellant did not produce any documentary evidence of ongoing communication or financial support between 2004 and 2008. I find that, if the appellant had been in a common-law or conjugal partnership, even one he was trying to hide from CIC, he would have maintained regular communication with, and provided financial support to the applicant once he was in Canada. The appellant was highly motivated to prove the genuineness of the relationship. If such evidence existed, the appellant would have provided it.

CONCLUSION

[50] Based on all the evidence before me, I find that the applicant and appellant were not in a common-law partnership at the time the appellant applied for permanent residence. I find that the appellant has met the onus on him of establishing, on a balance of probabilities, that subsection 117(9)(d) of the Regulations does not apply. The appeal is allowed.

NOTICE OF DECISION

The appeal is allowed. The officer's decision to refuse a permanent resident visa is set aside, and an officer must continue to process the application in accordance with the reasons of the Immigration Appeal Division.

(signed)	"George Pemberton"
	George Pemberton
	August 18, 2014
	Date