McFadden v Canada (Citizenship and Immigration), 2022 CanLII 121625 (CA IRB). IAD File No. / N
Fantastic news! We've Found the answer you've been seeking!
Question:
- McFadden v Canada (Citizenship and Immigration), 2022 CanLII 121625 (CA IRB).
- IAD File No. / No de dossier de la SAI : TC1‑21195
- Client ID No. / No ID client : 1117271787
- Reasons and Decision − Motifs et décision
- Sponsorship Appeal
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- REASONS FOR DECISION
- OVERVIEW
- [1] Kerrie-Lee McFadden (the "Appellant") is a 44-year- old citizen of Canada who sponsored her second husband, Durran Jason McAnuff (the "Applicant"), a 26-year-old citizen of Jamaica, to Canada. The couple met in April 2019 when the Appellant was in Jamaica. In December 2020, they got married in Jamaica on the beach where they first met. The Appellant sponsored the Applicant to Canada in 2021.
- [2] The visa officer refused the application after interviewing the Applicant and the Appellant.[1] The Applicant was aware of many details of the Appellant's life, but he did not know the ages of the Appellant's siblings, the year of birth of her children and the month he proposed. The officer noted that he was nervous and provided generic reasons as to why he liked the Appellant. The officer concluded that the Applicant pursued the Appellant because she could offer him a path to a life abroad. The officer found the marriage was not genuine and that the Applicant entered into it for an immigration objective.[2] The Appellant appealed that decision at a hearing before me.[3]
- [3] There are factors which I must examine[4] in a sponsorship appeal. In this case, there were a few credibility concerns on the part of the Applicant. However, the Appellant was an excellent witness whose commitment to the Applicant was clear. I believe what she told me about the relationship. The couple's testimony about how they met has been consistent in its tellings. There is corroborative evidence to show how the relationship began.[5] She has been to visit the Applicant at least fifteen times since they met in April of 2019. Meeting the Applicant was a catalyst for the Appellant end to end her lengthy marriage. She has provided ongoing financial support to the Applicant. She has paid for him to obtain his qualification as a plumber, and they plan for him to work as a plumber when he comes to Canada. The Appellant is an intelligent woman who is a school psychologist. The Applicant clearly does not cope well in the stressful situation of the hearing room. However, the preponderance of the evidence and a close examination of the Chavez factors leads me to find that the Appellant has met her evidentiary onus. On a balance of probabilities, I find this marriage to be genuine and not for an immigration objective. I allow the appeal.
- ANALYSIS
- The test
- [4] The Immigration and Refugee Protection Regulations provide that in order for a Canadian citizen or permanent resident to sponsor an Applicant to come to Canada as a spouse, the marriage must be both genuine and not entered into for the purpose of obtaining any immigration status or privilege.[6] The marriage must be genuine for both parties and it is up to the Appellant to establish that the Applicant is a member of the family class, and thus can be sponsored to Canada.[7] Furthermore, while the intention of both parties is relevant in my examination of the appeal, the intention of the Applicant is a key determinant.[8] Finally, in order to meet the onus on a balance of probabilities, the evidence must be clear, convincing and cogent.[9]
- [5] There are two prongs to the test in an appeal of this nature. In assessing whether the Applicant entered the relationship primarily for the purpose of acquiring any status or privilege under the Act, the focus is on the intention of one or both spouses at the time they entered into the marriage. The first part of the test will not be met if, for at least one spouse, the primary purpose of entering the marriage was to gain an immigration advantage. This assessment looks back to the time of entering the marriage.
- [6] The second part of the test involves assessing the genuineness of the marriage through criteria found in the Immigration Appeal Division (IAD)'s decision in Chavez.[10] These factors are non-exhaustive, and the weight assigned to them can vary from case to case. For the sake of brevity, I have only referred to the ones which are relevant to this appeal.
- The marriage is genuine, and the Applicant did not enter into it primarily for the purpose of obtaining a status under the Act
All Chavez factors point to a genuine relationship- [7] A close examination of how this relationship evolved shows that it is a genuine relationship. The Appellant was married when she met the Applicant. Indeed, she was on vacation in Jamaica with her family and her then-husband was not with them. She met the Applicant, she and her sons swam with him at the beach over several days, and she emailed him to let him know they made it home safely. The couple began exchanging emails and within 2-3 weeks the emails were "flirty." In May, the Appellant applied for a TRV for him to visit her in Canada. This was all occurring while the Appellant was married to her first husband.
- [8] The Appellant and Applicant decided to see each other again and planned a trip to meet in the Dominican Republic ("DR") in July 2019. The Appellant went to the DR with her mother and sister-in-law, both of whom knew that the Appellant was interested in the Applicant and the trip was to see if the relationship had anything to it. These two women, who are her ex-husband's mother and sister, were supportive of the Appellant and indeed, are closer to her than they are to her former husband. The Appellant explained that these two women go to the DR every year and she thought she could tag along, see the Applicant and if something went sideways, she would have family support. This scenario is unusual but plausible. It is also consistent with the evidence provided by the Applicant at the visa post, although he got the year of the visit wrong.[11]
- [9] The Appellant testified that she did not see this relationship coming. She had not planned it. After she and the Applicant started talking, she felt close to the Applicant, and they had a strong emotional connection. It highlighted for her some of the issues in her relationship with her husband. The Appellant credibly testified about how hard her life was at that point—she was falling in love with a younger man from Jamaica but was a married, professional mother of two with many responsibilities. Her family is Catholic, and they frown on divorce. The first trip in July 2019 went well and she came back and told her husband it was over. Her husband was devastated. She then began pursuing the relationship with the Applicant in earnest.
- [10] As for the Applicant, he was working at the hotel adjacent to the beach when he first met the Appellant and her family. He worked evenings so would swim and exercise at that beach before his shift. He is a lifeguard and noticed the Appellant swimming with two kids. He thought something could happen and she could be in trouble having two children to help in the surf. He swam with them for approximately 30 minutes, and he found her to be beautiful. He went back the next day and saw her again. He gave her and her family mangoes he had picked. The next day they met again at the beach, and they exchanged email addresses. The Appellant and Applicant's account of this first meeting has been consistent. The Appellant provided the initial emails in the evidence. It appears that neither of them was looking for a relationship at the time they met. However, they quickly became emotionally connected and the relationship moved along, with the Appellant applying for the TRV in May and going to the DR with her in-laws in July to see him again.
- [11] While a cynic could look at this and say the Applicant planned this out, I believed him when he said he had never met any other guests at the beach, and he simply went there before work to swim and exercise. He said "when I first met her, I was not really interested in her. I was interested in my swimming and my routine." I conclude that neither party had an intention to have a relationship at the time they first met, but the relationship evolved quickly and after the Appellant left the DR in July 2019, she separated from her husband and began to pursue the relationship with the Applicant in earnest. She returned to Jamaica the next month for a week. She wanted to see him around his family. They stayed at a small villa. It was another great trip. The Appellant observed how the Applicant takes responsibility for his family and is safety conscious. She returned to Jamaica in October, then November and again in December 2019.
- [12] The Applicant proposed to the Appellant on the beach where they first met on the trip in December 2019. The Appellant was clear on this date, which contradicted that provided by the Applicant at the visa post. He said it was in April 2020.[12] This was not correct, and the Applicant testified at the hearing before me that it was early January 2020 when he proposed. This is not what the Appellant said but it was on that same trip and would have been within a week, so I do not find this to be a significant inconsistency.
- [13] The Appellant's finalized her divorce in October 2020. She and the Applicant married on the beach where they first met, in December 2020. The trip when they got married was the Appellant's 9th trip to Jamaica in two years to see the Applicant.
- [14] The Appellant continued to visit the Applicant regularly after their wedding. She has made a total of 15 or 16 trips to see him. Her efforts to see the Appellant, particularly during the pandemic, when travel was challenging, are noteworthy and tell me of her level of commitment to the relationship.
- [15] She has met all of his family in Jamaica. There are photos of the Appellant with members of the Applicant's family. She has financially supported him for years, including paying for him to obtain a ticket in plumbing so he would have a marketable skill here in Canada. She and the Applicant decided on a house here in Canada and she purchased it for them with a loan from her parents. She has added him as a beneficiary of her life insurance. He has met her children in person when they first met, and later, when she brought them on a trip to the Caribbean in March 2022. There is evidence of communications between the couple. There are numerous letters from family and friends in support of the relationship. There are photos from various trips showing the Appellant and Applicant together. They look happy and comfortable, and they are visiting the Applicant's family members. The Applicant's sister and the Appellant's close friend, Lori, both testified about how they believe this is a genuine relationship.
- [16] There is a considerable amount of evidence here showing a genuine relationship. The Appellant was a credible witness who is clearly highly intelligent and not naïve. She loves the Applicant. The Applicant was a less impressive witness, but his testimony was generally consistent with that of the Appellant. Furthermore, I believe him when he says he loves the Appellant and wants to be with her.
- [17] In addition, the Appellant's friend, Lori, testified that the Applicant would call her when the Appellant is unwell to make sure she is okay and see what he can do to help. This conduct and effort are inconsistent with someone who has entered a marriage only to immigrate. The Applicant's conduct, which can be a strong indicator of intention, shows that he genuinely cares about the Appellant. The standard here is a balance of probabilities. The Appellant has provided extensive credible and reliable evidence of a genuine relationship. She has met her evidentiary burden.
- The primary purpose of the marriage is not for immigration
- [18] The Minister's counsel argued that the Applicant's motive is to leave Jamaica and his primary purpose in marrying the Appellant is to get to Canada.
- [19] In 2018, the Applicant had applied to come to Canada through the farm worker TRV program. He then met the Appellant, and their relationship began. The Applicant applied to do farm work because his work at the hotel in Jamaica was seasonal and he wanted to continue to work in the off season, so he applied.
- [20] After the Applicant met the Appellant, Citizenship and Immigration Canada ("CIC") approved his farm worker application. At that point, he was in plumbing school, paid for by the Appellant. The Applicant called the Appellant and they discussed what to do. They decided that it was better if he continued his education rather than coming to Canada at that point. This tells me that the couple had a sensible long-term plan to be together.
- [21] In addition, the month after they met, the Appellant tried to obtain a temporary residence visa for the Applicant to come to Canada.[13] CIC refused the application because the Applicant was not well established, he had no previous travel, and it was not certain he would depart after an authorized period.
- [22] The Minister's counsel argued that the Applicant's plan is to get out of Jamaica, and he is using the Appellant to do so. She argued that the farm worker program was not a permanent resident pathway and that the Appellant's primary purpose in marrying the Appellant is to get to Canada as a PR and not because the relationship is real.
- [23] Counsel for the Appellant argued that the Applicant himself had to make sacrifices in his relationship, and that while he was in school, he was not earning an income, which made things difficult for him and his family. He argued that if the Applicant wanted to come to Canada and the relationship were not real, he would have come when presented with the chance. He did not do so because he was in a real relationship that he wanted to pursue.
- [24] Furthermore, the very first email exchange between the couple has the Appellant instigating the relationship. She sent him an email in April 2019 after they met, letting him know she and her family arrived safely back in Canada. He responded, saying "I can't believe u text me...swimming with you was good I enjoyed it honestly, I never want u to leave. I really enjoy your company at the beach Kerrie thank you for being the first guest to swim with me."[14]
- [25] CIC offered the Applicant a farm worker visa a second time and he again turned it down to continue his studies. These choices made freely, twice, to forego the worker program, led to economic hardship for the Applicant. His family were relying on him to put food on the table and his and the Appellant's choice for him to continue his studies, was a difficult one.
- [26] Furthermore, the Applicant applied for the farm worker program because it would provide income for him during the time when there was no work at the hotel. This tells me he would have returned to Jamaica to work in the hotel after working on farms in Canada. While the Minister's counsel may see this as his desire to come to Canada, I see his farm worker application more as his desire to continue to earn income to support his family.
- [27] The Federal Court tells me that when I examine the primary purpose, I should look at the intention of the parties at the time of the marriage.[15]
- [28] They applied for a TRV very soon after they first met, suggesting they wanted to be together in Canada to explore the relationship further. There is no evidence of TRV or other applications (other than the farm worker) to come to Canada or to immigrate elsewhere by the Applicant until after he met the Appellant. The couple married after many visits and conversations and when the relationship had been ongoing for about 18 months. The Applicant has no negative immigration history whatsoever.
- [29] There is little evidence to show that there is an immigration objective on the part of the Applicant. My conclusion that the relationship is genuine bolsters this finding.
- Credibility issues
- [30] There were a few credibility concerns elicited from the testimony of the Applicant which led the Minister's counsel to ask for a dismissal. Some of the Minister's counsel's concerns with the evidence between the couple were microscopic. However, I share her concerns with contradictions between the Appellant and Applicant's testimony regarding whether the couple would have children together in the future and whether the Appellant would continue to financially support his family once he comes to Canada. While these two issues are concerning, they are insufficient to overcome the rest of the otherwise consistent and credible evidence provided in this appeal.
- [31] When reviewing the evidence, I noticed that testimony provided by the Applicant at the visa post that was problematic usually related to placing events and people in time. He knew he had sex with the Appellant for the first time at the hotel in the DR, but he said that took place in 2020, rather than 2019 when it actually occurred. He knew the dates of birth of her children but got the year wrong. He did not know how old her parents or siblings were, other than generally.
- [32] The Applicant struggled when asked about specific dates and events, both at the hearing and at the visa post interview. However, he also knew many details about the Appellant and her life in Canada.
- [33] The Applicant is not sophisticated and well-educated in the way the Appellant is. However, the Appellant's counsel's submission that the Applicant's actions do a better job of explaining his
- intentions than his words, is persuasive. While I have some concerns with the evidence of the Applicant, the Appellant herself said that in stressful situations, he gets flustered, and his words fail him.
- [34] The Appellant's counsel argued that the Appellant has 'impeccable' decision-making abilities and is a reliable and responsible person to those who know her. I agree with this assessment. I do not believe that someone as obviously careful and sensible as the Appellant would have invested this much time, money, and effort in a relationship that is not genuine.
- CONCLUSION
- [35] Assessing marriages in these appeals is not an exercise in seeking perfection or hunting for any discrepancy no matter how small it is. It ought to be an assessment based on a view of the relationship as a whole and the totality of the evidence. Human beings, by their very nature, will not be perfectly consistent, accurately recall every detail in their lives, or know everything about their partners and family members. The key is to see if the narrative and the evidence fit together in the big picture by looking at the full arc of the relationship and considering the particular personal, cultural, and social circumstances of the couple. This is especially true when the standard of proof is a balance of probabilities.
- [36] Notwithstanding the inconsistencies above, the couple provided generally consistent, spontaneous, and credible testimony regarding the Chavez factors. While there were a few inconsistencies in the evidence, I find them to be minor especially when considering the totality of the evidence and all the circumstances of this case. There is no immigration objective on the part of the Applicant. The Appellant has met her onus to demonstrate that, on a balance of probabilities, the marriage is genuine and not primarily for the purpose of acquiring status or privilege under the Act.
- Questions#1
- Appellant's counsel is expected to read the IAD decision in McFadden v Canada (Citizenship and Immigration), 2022 CanLII 121625 (CA IRB), .
- Counsel should summarize why the appeal should be allowed. Counsel should refer to specific facts/evidence that support their position. Counsel should also cite at least one Federal Court decision to support their position.
- Questions#2
- Minister's counsel is expected to read the IAD decision in McFadden v Canada (Citizenship and Immigration), 2022 CanLII 121625 (CA IRB), .
- Minister's counsel should summarize why the appeal should be dismissed. Counsel should refer to specific facts/evidence that support their position. Counsel should also cite at least one Federal Court decision to support their position.
Related Book For
Income Tax Fundamentals 2013
ISBN: 9781285586618
31st Edition
Authors: Gerald E. Whittenburg, Martha Altus Buller, Steven L Gill
Posted Date: