Federal Court Decisions

Date: 20020130

Docket: IMM-1088-01

Neutral citation: 2002 FCT 116

Ottawa, Ontario, Wednesday the 30^th day of January 2002

PRESENT:            The Honourable Madam Justice Dawson

BETWEEN:

                              STANLEY OLUFEMI EGBON

                                                                                                     Applicant

                                                    - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

                     REASONS FOR ORDER AND ORDER

DAWSON J.

[1]    Mr. Egbon brings this application for judicial review from the February 9, 2001 decision of an immigration officer which determined that Mr. Egbon could not be exempted pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") on humanitarian and compassionate grounds from the requirement of subsection 9(1) of the Act. That subsection requires that immigrants apply for and obtain a visa before they appear at a port of entry.

THE FACTS

[2]    The documentation Mr. Egbon filed in support of his application states that he is a citizen of Nigeria who came to Canada on October 10, 1998 as a refugee claimant. It is said that on February 14, 1999 Mr. Egbon met Dina Di Grigorio, a Canadian citizen, and that they were married on August 21, 1999. Mr. Egbon then withdrew his pending refugee claim.

[3]    On October 15, 1999, the respondent received an application made by Ms. Di Grigorio to sponsor Mr. Egbon as a member of the family class and also received Mr. Egbon's application for permanent residence in Canada. Mr. Egbon's application requested an exemption from requirements of subsection 9(1) of the Act on the basis of his marriage to a Canadian citizen.

[4]    On January 30, 2001, Mr. Egbon and Ms. Di Grigorio were interviewed separately by the immigration officer. On February 9, 2001, the decision was made not to grant an exemption from subsection 9(1) of the Act.

[5]                 The notes of the immigration officer show that the officer accepted that Mr. Egbon and Ms. Di Grigorio were married and were cohabiting. The immigration officer concluded, however, that the relationship between Mr. Egbon and Ms. Di Grigorio was that of friendship and that the marriage was not genuine in that it had been entered into primarily for the purpose of gaining admission to Canada as a member of the family class.

[6]                 The immigration officer's conclusion that the marriage was not genuine was based on the following discrepancies in the answers which Mr. Egbon and Ms. Di Grigorio gave to the immigration officer during their interviews:

The sponsor stated that they spent Christmas day together at her grandparent's home. The subject stated that he took his wife to her relatives's home for the day. He did not stay with her.

The sponsor stated that the subject recently purchased a used car he bought privately. She knew that it cost $7000 and indicated that the money came from a special account. She also stated that he got about $3000 for his old car, but wasn't sure to whom the car was sold.

The subject stated that he bought a second-hand card [sic] from a dealer. It was paid for with some savings, loan and credit card advance. He stated that he got $50 for the old car.

The sponsor stated that her husband uses condoms as a method of birth control. The subject stated that his wife was on the birth control pill.

[7]                 In arguing that the immigration officer committed a reviewable error in determining that the marriage was not genuine, it was stated on Mr. Egbon's behalf that the immigration officer failed to consider the applicable Guidelines on humanitarian and compassionate applications which require immigration officers to take into consideration social and cultural norms and community standards. Mr. Egbon asserted that in his country men try not to speak of financial details with their spouses because it diminishes the husband's position within the couple. This was said to explain the second apparent discrepancy.

[8]                 It was also argued on Mr. Egbon's behalf with respect to the third discrepancy that it is not impossible for both Mr. Egbon and his spouse to use different birth control methods because they are not ready to have children yet.

[9]                 No argument was directed by Mr. Egbon to the first discrepancy noted by the immigration officer.

THE ISSUE

[10]            Subsection 4(3) of the Immigration Regulations, SOR/78-172 provides that:

4(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.		4(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.

[11]            Therefore the issue to be determined in this case is whether the immigration officer erred in her assessment that the marriage was not genuine, but rather was entered into for the purpose of gaining admission to Canada.

ANALYSIS

[12]            Since the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 it is authoritatively settled that the applicable standard of review to be applied to the exercise of an immigration officer's discretion under subsection 114(2) of the Act is that of reasonableness simpliciter. This requires the decision to be supported by reasons which stand up to a somewhat probing examination.

[13]            In my view, the immigration officer's reasons withstand that scrutiny.

[14]            As to Mr. Egbon's argument that the immigration officer failed to take cultural factors into account, the immigration officer's notes show that in response to the questions about the purchase of the car Ms. Di Grigorio stated that she knew the details of the sale and that she told the immigration officer what those details were. If Ms. Di Grigorio had not been informed about the financial details by her husband she could have stated that during the interview. Instead, she gave details which were inconsistent with those given by Mr. Egbon.

[15]            As to the third discrepancy, concerning the type of contraceptives which the couple use, Mr. Egbon's argument that it is not impossible that both he and his spouse use different contraceptive methods does not explain away this discrepancy. It was not, in my view, unreasonable for the immigration officer to have expected that both Mr. Egbon and his spouse would know whether condoms were being used as a form of contraception, irrespective of whether the wife used an additional form of contraception.

[16]            Further, the immigration officer stated that after interviewing Mr. Egbon and Ms. Di Grigorio separately she met with them together and that the officer discussed with them both her concerns. At that time neither Mr. Egbon nor Ms. Di Grigorio were able to satisfy the immigration officer's concerns. The explanations now proffered by Mr. Egbon should have been provided to the immigration officer at that time.

[17]            For these reasons, the application for judicial review will be dismissed. Counsel posed no question for certification and no question is certified.

ORDER

[18]            IT IS HEREBY ORDERED THAT:

The application for judicial review is dismissed.

"Eleanor R. Dawson"

                                                                                                                              Judge