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o de dossier de la SAI: TA9-17326 Client ID No. / N
o ID client: 4017-4953 
 
   
Reasons and Decision − Motifs et décision 
 
SPONSORSHIP   
 Appellant(s) 
ZHENXXXXXXXXXXXXXXXXXXXX)                Respondent 
The Minister of Citizenship and Immigration Intimé(e)  
Le ministre de la Citoyenneté et de l’Immigration        Date(s) and Place of Hearing 
September 27, 2011 Date(s) et lieu de l’audience  
Toronto, Ontario   
   
  Date of Decision 
December 12, 2011 Date de la décision  
   
   
  Panel 
XXXXXXXXXXXXXXXXXX Tribunal  
   
   
  Counsel for the Appellant(s) 
XXXXXXXXXXXXX Conseil(s) de l’appelant(e) / des appelant(e)(s)  
Barrister and Solicitor   
   
  Counsel for the Minister 
XXXXXXXXXXXXX Conseil du ministre  
    
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Reasons for Decision 
 
[1] These are my reasons in the sponsorship appeal of XXXXXXXXXX (the “appellant”) from the refusal to approve the permanent resi dent visa application made by her husband, XXXXXXXXXX (the “applicant”) from China.  The appellant sponsored her husband to Canada as a member of the family class.  On August 5, 2009 the applican t’s Application for a Permanent Resident visa (“APR”) was refused by a visa officer (the “officer ”) from Canadian Consulate General in Hong Kong, who interviewed the applicant that same day.  [2] The appellant appeals from this refusal.  Background and Refusal
  [3] The appellant is a 36-year-old female citizen  of China, born in Fuzhou, Fujian Province, China in November 1975.  The appellant was prev iously married to XXXXXXX from September 1999 until March 2004.   The appellant was la nded as a permanent resident on March 22, 2001 having accompanied her then husband, who immigrated in the independent class.  There were no children of this marriage.  The appellant and her first husband divorced in 2004.      [4] The applicant is a 28-year-old male citizen of China, born in Fuqing, Fujian Province in March 1983.  This is the applicant’s first marriage.  The applicant has completed high school.  The applicant is employed as a sales representative.   [5] The appellant married the applicant on February 22, 2006.  There are no children of the marriage.       [6] This is the appellant’s second attempt to sponsor  the applicant.  Her first effort failed with the refusal of the APR in April 2007.  The appellant did not appeal from this refusal, rather the appellant brought a second sponsorship application in December 2007.   
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[7] In the course of the processing of the APR, certain concerns arose and it was determined that an interview was necessary which was convoked for August 5, 2009.  During the course of the interview the officer identified further concer ns leading him to conclude that the marriage was not genuine and entered into primarily for immigration purposes pursuant to then section 4 of the Immigration and Refugee Protection Regulations (the “Regulations”).  The officer’s concerns are detailed in the Computer Assi sted Immigration Processing (“CAIPS”) notes
1 which are found in the Record of the Appeal (the “Record”).  [8] One of the primary reasons the APR was refuse d was because the applicant had failed to provide certain documents requested by the officer which were to be presented and considered at the time of his interview.  As observed by the bemused officer,  
 YES, YOUR WIFE HAD SENT IN DOCUME NTS BUT THEY ARE NOT SUFFICIENT FOR ME TO DETERMINE WHETHER YOUR RELATIONSHIP WITH SPONSOR IS GENUINE OR NOT. THAT WAS WHY YOUR WERE SENT THE CONVOCATION LETTER REQUESTING TO ATTEND THIS INTERVIEW AND TO BRING ALL THE REQUIRED DOCUMENTS AS LISTED ON THE SUPPLEMENT INTERVIEW LIST ATTACHED TO THE LETTER. IF THE DOCUMENTS YOUR WIFE SENT IN WERE SATISFACTORY, YOUR WOULD NOT BE REQUESTED TO ATTEND THIS PERSONAL INTERVIEW AND TO BRING MORE REQUIRED DOCUMENTS.  APPLICANT NODS HIS HEAD. I know. My wife just told me to give you what I just gave you. It may be she neglected to get some of the documents. BUT IT IS NOT SOME OF THE DOCUMENTS. IT’S ALMOST ALL OF THE REQUIRED DOCUMENTS OF YOUR SPONSOR THAT HAVE NOT BEEN BROUGHT IN BY YOU. If our relationship is not genuine, we would not have continued to apply. This is already our second application. THERE ARE NUMEROUS APPLICATIONS LIKE YOURS IN THIS OFFICE WITH PREVIOUS REFUSALS. THE NUMBER OF YEARS AND NUMBER OF TIMES AN APPLICANT APPLIES WITH THE SAME SPONSOR DO NOT MAKE THE RELATIONSHIP GENUINE. ANOTHER THING, YOU AND YOUR WIFE ARE REPRESENTED BY COUNSEL; SHE SHOULD BE ABLE TO ADVISE YOUR SPONSOR WHAT DOCUMENTS ARE REQUIRED. IT IS REALLY UNUSUAL WHEN NOTHING HAS BEEN PREPARED FOR YOUR SPONSOR.  IT IS VERY STRANGE THAT IF A RELATIONSHIP IS GENUINE, BOTH SPONSOR AND APPLICANT WOULD BE VERY ANXIOUS AND SERIOUS ABOUT THE APPLICATION AND THE INTERVIEW. APPLICANT HAD BEEN REFUSED BEFORE AND IF SPONSOR AND APPLICANT REALLY CARE TO REUNITE WITH EACH OTHER, THEY WILL PUT IN THEIR BEST EFFORT TO PROVIDE ALL THE REQUIRED DOCUMENTS. THE ONLY REASON WHY THEY ARE NOT PROVIDED MAY BE THEY ARE NOT AVAILABLE. PI HAS NO REPLY. 
                                                 
1 Record, pages 16-20.  
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[typed as per original with errors and omissions]  Relevant Law  [9] Between the time the application was refused and the hearing of this appeal, the law in respect of Section 4 of the Regulations changed by way of an amendment to the Regulations registered on September 30, 2010.  Previously Section 4 of the Regulations read,    
4. Bad faith — For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partners hip, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act. 
 [10] As amended, the relevant portions of the new version of Section 4 of the Regulations provides,  
4. (1) For the purposes of these Regulations, a foreign national shall not be considered a 
spouse, a common-law partner or a conjugal partner of a person if the marriage, 
common-law partnership or conjugal partnership  
(a) was entered into primarily for the purpose of acquiring any status or privilege 
under the Act; or 
(b) is not genuine. 
 [11] The immediate effect of the amendment is to  remove the conjunctive test whereby it was necessary to demonstrate that the spousal relationship was not genuine and that it was entered into primarily for immigration purposes in order fo r an appeal to fail.  This interpretation was supported by numerous decisions of the Federal Court in XXXX,
2 XXXXXX ,3 Das,4 and etc.     [12] Replacing the conjunctive “and” or “two pronged” test is a disjunctive test which relies on the word “or” whereby it is now necessary to demonstrate that neither part of the test is present in order for an appellant  to succeed at appeal.  The relationship must be both genuine                                                 
 
2 XXXX v. Canada (Minister of Citizenship and Immigration)  2006 F.C 1490 per XXXXXX J. 
3 XXXXXX v. Canada (MCI) 2006 FC 1089. 
4 XXX v. Canada (Citizenship and Immigration)  2009 FC 189.  
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and not entered into primarily for immigration purposes.  In other words, failure on either part of the new test must result in an appeal being dismissed.  [13] Moreover, the test relies on the use of both the past and present tenses.  It is sufficient for a negative determination that the panel find that the marriage WAS at the time it was entered into primarily for the purpose of immigration.  [14] There is Federal court jurisprudence that ho lds that by definition, a marriage that is not genuine is strongly suggestive of one entere d into primarily for immigration purposes.
5  Several of my colleagues have held to this propositi on as articulated by Member XXXXXXX, in XXXXXXXX as follows,
6  
In XXXXXX, Madam Justice XXXXXX held that a findi ng of lack of genuineness of a marriage presents strong evidence that the marriage wa s entered into for the purpose of gaining status. If the evidence leads to a finding that the marriage is not genuine, then there is a presumption that it was entered into for the primary purpose of gaining status. The burden of establishing a contrary purpose should be pl aced squarely on the applicant. As Justice XXXX articulates in XXXX, the burden of establishing that the primary purpose was not to allow the Applicant to enter Canada is s quarely placed on the Applicant’s shoulder... 
 [15] This panel generally holds to this proposition.  Hearing and Disclosure  [16] The panel heard the sworn oral testimony of the appellant and the applicant.  The panel considered the appellant’s disclosure entered as  Exhibit A-1.  Certain documents were excluded from the disclosure on grounds that they were not in compliance with the IAD rules that they be translated into either of the official language s. Other documents were excluded because they were not legible. The respondent filed disclosure entered as Exhibit R-1 consisting of a photocopy of the appellant’s passport which expi red April 27, 2011.  The panel has considered the submissions of the parties.  The panel has relied upon the Record to confirm certain facts.                                                  
 
5 XXXXXX v. Canada (Citizenship and Immigration) , 2009 FC 1131, at paragraph 18. 
6 XXXXXXXX v. Canada (Citizenship and Immigration) , 2011 CanLII 38875 (IRB), at paragraph 48  
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Issues  [17] The appeal raises one issue, to wit, is the relationship between the appellant and applicant described by section 4(1) of the Regulations.      Decision  [18] For the reasons set out below the appeal is allowed.  Analysis  [19] Whether a relationship was entered into pr imarily for the purpose of acquiring any status or privilege under IRPA – is self-evident and self-explanatory.  The advantage sought in spousal appeals is generally entry to Canada and the gr anting to the applicant of permanent resident status as a member of the family class.  The sponsored person necessarily wants to obtain status in Canada as a permanent resident.  However,  once landed the sponsored person obtains rights and privileges not available to him/her as a foreign national, the most obvious being gaining access to social and health services and the ability to sponsor other foreign nationals as members of the family class, such as parents, children or another spouse as the case may be.  Thus the onus is on the appellant to satisfy the pa nel on a balance of probabilities that the marriage/relationship with the foreign nationa l has not been entered into primarily for immigration purposes.    [20] The genuineness of the marriag e is based on a number of factors.  They are not identical in every appeal as the genuineness of the marri age can be affected by any number of different factors in each appeal.  These can include, but are not limited to, such factors as how the relationship developed; the intent of the parties to  the marriage; the length of the relationship; the amount of time spent together; conduct at the time of meeting, at the time of an engagement and/or the wedding; behaviour subsequent to a wedding; the level of knowledge of each other’s relationship histories; levels of continuing contact and communicatio n; the provision of financial support; the knowledge of and sharing of responsibility for the care of children brought into the 
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marriage; the knowledge of and contact with extended families of the parties; as well as the level of knowledge about each other’s daily lives.  All of these factors can be considered in determining the genuineness of a marriage.    [21] Like other marriage appeals, this appeal very much turns on the facts of the matter, the plausibility of the explanations and the overall credibility of the appellant and/or the applicant.  The evidence must be clear, cogent and compelling.  It must sufficiently allay the concerns of the visa officer but also as this is a hearing de novo, in the strictest sense of the words
7, it must address issues or concerns that arise during the course of the appeal to the satisfaction of the panel.  The evidence must be material to the issues under consideration and free of major inconsistencies and contradictions.       [22] The panel is mindful that evidence given under oath is presumed to be true unless there are valid reasons to doubt its veracity.  This pr inciple has been reiterated numerous times by the Federal Court of Canada: XXXXXXXXX v. M.E.I., [1980] 2 F.C. 302, 305; XXXXXXXXXXX v. M.E.I., [1991] F.C.J. no. 1016 (QL); XXXXXXXXXX v. M.E.I., [1979] F.C.J. no. 210 (QL).  Moreover, inferences with respect to credibility must be supported by the evidence: XXXXXXXX v. Canada (Minister of Employment and Immigration), [1989] F.C.J. no. 441 (QL).  The presumption is rebuttable however it is incumbent on the panel to provide reasons why it does not rely on the oral testimony.  [23] The panel first observes that the appellant and applicant have had the benefit of two applications, two interviews and now a full hearing de novo to get their story straight.  The panel expects that since they are talking about the events of their own lives and in particular their marriage, they should know every important detail  and be in concordance as to the facts and dates.  In the panel’s experience if you cannot tell your own story with reasonable accuracy and                                                 
 
7 The Federal Court of Appeal in XXXXXX v Canada (MEI) (1989), 7 Imm. L.R. (2d) 91 held that an appeal to the Appeal Board is a heaving de novo in a broad sense. A hearing de novo is undertaken as if the matter were before the Appeal Division for the first time, and the issue is no t how the visa officer came to his conclusion, but whether the applicant is a member of the family cl ass. An appeal under section 63(1) of the IRPA is not a judicial review, but an entirely new hearing in which the Board examines the whole record, hears the testimony of the appellant and
 
considers the available evidence. If the appellant can satisfy the panel th at the immigration officer’s conclusions were incorrect, the appeal is allowed. 
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some degree of passion, it is not a true story.  The panel makes some allowance for the passage of time and the vagaries of the human memor y. The evidence must be clear, cogent and compelling.  It is from this perspective that the panel views the evidence.     [24] The appellant’s parents reside in Fuzhou.  According to the APR
8, the applicant’s cousin XXXXXXXXX, is a friend and co-worker of the appellant’s mother.  Following the appellant’s divorce, her mother began looking for another husband for her and she asked her friend XXXXXXXXX to recommend someone.  XXXXXXXXX approached the applicant who, also having known the appellant’s mother, reasoned that her daughter  would be a nice person with a happy family and accordingly he asked XXXXXXXXX to introduce him to her, after which the applicant obtained the appellant’s MSN address and sent an introductory message in December 2004.  They communicated via the internet until March 2005 when the appellant travelled to China.   [25] Both agreed that they met for the first time  at a coffee shop in Fuzhou on March 9, 2005 however while the appellant was able to describe their first meeting the applicant had no specific recollections of what occurred beyond stating vaguely that they chatted.  He could not detail how long the appellant spent in China on that trip and his description of what they did when together in the days after meeting was particularly vague.  The applicant had a similar difficulty detailing their first times together at his first interview.   The appellant contradictorily testified that whenever they had time they went out and th en changed her testimony stating that they only went out one time after they met.  As the app licant told the officer at his first interview, “[appellant’s] main reason of visit was to spe nd vacation with her close family members in China.  States he only had little time with [appellant].”
9  Now there is nothing wrong with the appellant wanting to spend more time with her family and it is not as if the couple had a well established romantic relationship, so an initial meeting followed by some limited contact while she was in China is not an unreasonable story to tell, however the fact that the applicant cannot tell the panel the same story he told the first officer is troubling.                                                  
 
8 Record, pages 21-26, Sponsored Spouse/Partner Questionnaire (Form Imm5490).  
9 Record, pages 79, CAIPs notes of first interview. 
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[26] The appellant returned to Canada on Marc h 30, 2005 and they continued to communicate over the internet and by telephone.  No reliable proof of communication was presented at either interview of this claimed early communicati on and none was available at the hearing.  Presumably they had some contact as they ev entually got to the point where the applicant proposed marriage which the applicant testifie d took place over the telephone on January 1, 2006.  However the APR indicates the proposa l tool place on December 31, 2005 “I proposed her to be my wife by web camera in the new year’s eve in 2005 (sic).”
10    [27] This difference in date is insignificant given the 12 – 15 hour time difference between Toronto and China. The appellant could not re member the day, vaguely testifying that the applicant proposed over the internet at the end of 2005 or before New Year 2006.  The marriage proposal is a significant event and the panel would expect that the appellant would be able to detail such an event with more than va gue inconsistent recollections.       [28] The appellant wasted no time in returning to  China to marry the applicant arriving on February 18, 2006.  They registered their marriag e civilly on February 22, 2006 and the appellant departed for Canada on March 5, 2006.  At his first interview the applicant stated that they spent some time in Beijing after their marriage however th e officer noted he was unable to give details.  Significantly, there was no wedding reception which is  usually a significant part of the marriage process in China as it brings family and friend s together from both sides in recognition of the union of the couple.  The applicant’s excuse for not having a reception at his first interview was because they had no time to arrange one.  The appellant testified that the failure to hold a reception was because they needed time to prepare,  which of course begs the question of why the applicant or their respective families were not called upon to plan the event  prior to the appellant’s arrival.  The applicant testified that they did not hold a reception in 2006 because the appellant is always in a rush so they picked 2007.  The fact that they did not bother to plan to hold a reception at the time they registered their marriage suggested to the officer that it was unimportant to them, which in turn suggested th at they were simply going through the motions of                                                 
 
10 Record, page 23.   
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a marriage that was intended primarily for immi gration and which is not genuine.  This deficiency figured significantly in the first refusal.   [29] However, by the time of his second interv iew in 2009 the appellant and applicant had held a reception, indeed they had held two r eceptions both in July 2007, on the 22nd in Fuzhou and the other on the 24th in Haikou Town, Fuqing Cit y, that is, about four months after the first refusal.  The applicant testified that the familie s were involved in the planning of both receptions and he and his parent’s paid for the reception in Fuqing, although he did not know if the appellant’s parents contributed to the cost of the reception in Fuzhou.    [30] The reason the appellant did not appeal th e first refusal was because of her belief, founded on the advice of others, that reapplication was the better way to go.  The second application represents another opportunity for the couple to address the issues that were problematic at the time of the first applicat ion.  Clearly the lack of a reception figured significantly in the first officer’s reasons for re fusing the 2006 application.  If the panel were cynical it could view holding a reception as window dressing, a show put on for immigration purposes, a ruse, a deception, an attempt to mislea d.  If that were the case, then seemingly only one reception would serve this purpose.  Howeve r, the couple did not stop at one reception deciding instead to hold two, in separate venues, for each side of the family.    [31] The receptions were not held in the same style.  The evidence from the APR and the hearing is that the Fuzhou reception was held in “Western” style with the appellant dressed in white and the applicant in a tuxedo. Attendance at  this reception included the appellant’s parents and grandparents, other family and friends totalling around 80 guests.  Photographic evidence of the appellant in a white dress and the applicant in a tuxedo attending what appears to be a well attended social gathering are found in exhib it A-1 in the section identified as documents supporting the 2007 application.  As is often th e case, counsel did not take the time to contextualize these pictures and since they are not labelled, the panel is left to guess at the context (date, time, location, setting, depiction and contents) of photographs.  However, the panel is prepared to give the couple the benefit of the doubt that the pictures in which the appellant and applicant are dressed formally depict the Fuzhou reception. 
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 [32] The reception in Fuqing City was held at a re staurant nearby the applicant’s family home.  It was attended by around 100 gue sts including the applicant’s father, mother grandparents, uncles, aunts and cousins.  This reception was held in Chinese traditional style with the appellant in a red dress, blessings, red envelopes and gift s of golden jewellery.  Again, as the photographs were not explained, the panel is without a context and given that they are in black and white and poorly photocopied it is difficult to determine whic h if any of the photographs submitted with the 2007 application depict the reception in Fuqing.  However, as the couples were by and large credible witnesses, the panel will give them the benefit of the doubt and accept their testimony that they in fact held two receptions.  [33] By the time of the receptions in 2007 the c ouple had been married for almost 18 months.  The second APR was filed in December 2007 and in May 2008 the application was reviewed by an officer and a “concerns” letter dated May 2 8, 2008 was sent to the applicant setting out the officer’s preliminary determination that the applicant did not meet the requirements of immigration in respect of his spousal relationshi p.  The applicant was given 60 days to provide additional information.  [34] On July 18, 2008 the applicant responded to the concerns letter through her then counsel, which set out certain facts and which provided certain documents which are found identified in exhibit A-1 from pages 161 to 192.
11  The documents submitted in July 2008 included translated copies of written communication between the couple and the appellant’s record of telephone calls made on the Rogers wireless network in Marc h and April of that year and calls made on the Primus network and a listing of what appears to be calls made in April 2008 from an unattributed telephone number in China to various (the docume nt is in the Chinese language which the panel cannot read) numbers.  These documen ts did not satisfy the officer.                                                        
 
11 The exhibit is poorly organized making it difficult for the panel to distinguish where one tab begins and another ends.   
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[35] The applicant was asked to bring certain documents, clearly detailed, to the interview for the officer’s further consideration.
12  The applicant was to have brought documents to his interview confirmative of the appellant’s employmen t status, income and etc.  He did not and his failure to bring these and other documents confir ming the appellant’s travels, residency, financial means, were deemed necessary to confirm the appe llant’s eligibility as a sponsor and to inform the officer during the interview.  The absence of  these documents hurt the applicant’s credibility.  [36] Before the panel today, the appellant has di sclosed a number of the documents requested but not provided.  These include a letter confirming that the appellant is the sole proprietor of a business (Quixtar),
13 income summaries for 2009 and 2010,14 Notices of Assessment for tax years 2007 through 2010,
15 T4 slips and other pay related documents,16 copies of parts of the appellant’s current and expired passports,
17 air travel related documents,18 receipts,19 photographs,
20 letters,21 and a copy of the applicant’s Household Register (Hukou).22  [37] The panel has reviewed all of these documents  which are confirmative of the appellant’s and applicant’s testimony on a range of subjects.  In particular, the tax documents confirm that the appellant’s total income has ranged from  a low of $9,559 in 2008 to a high of $23,693 in 2010.  The applicant’s gross income from her Ca nadian/US dollar business related income was $23,034/$6905 in 2009 and $40,952/$11,217 in 2010.  This suggests that the appellant is in a good position to provide for the applicant’s establishment in Canada.  [38]     A copy of all the pages the appellant’s current and expired passports was made during the hearing and entered as exhibit R-1.  The a ppellant was asked in cross-examination with                                                 
 
12 The documents requested are detailed in the CAIPS notes at page 18 of the Record.   
13 Exhibit A-1, page 222, letter dated August 31, 2011 confirming that the appellant has been an “Amway Independent Business Owner” since 2001 who is currently in good standing with Amway Global (Canada).  
14 Exhibit A-1, pages 211-213.  
15 Exhibit A-1, pages 202-205. 
16 Exhibit A-1, pages 209-211. 
17 Exhibit A-1, pages 192-201. 
18 Exhibit A-1, pages 223-231. 
19 Exhibit A-1, pages 232-233. 
20 Exhibit A-1, pages 281-320. 
21 Exhibit A-1, pages 234-269. 
22 Exhibit A-1, pages 270-279. 
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respect to her contact with her ex-husband and in particular whether she had traveled with him to and from the USA.  The appellant was somewhat vague on her travels to the USA, however as the panel understands, the appellant’s ex-hus band was also associated with Amway Company and that they shared some business contacts but were not working together.  The appellant testified that in May 2006 she travelled to New York City and that she might have met her ex- husband there as part of a larger group.  She tes tified that she had no recollection of returning with him.  The appellant testified that her ex -husband might have been on an Amway Achievers Trip to the US she took in December 2010, but sh e did not return with him; rather he was travelling with his new wife who incidentally the appellant had introduced to him.  While lacking a bit as a satisfactory answer, there is no direct  evidence connecting the appellant with her ex- husband other than as testified by the appellant and the panel will not infer anything negative from her admissions and vague recollections.  [39] The appellant has made several trips to China and other far eastern locations since 2006.  Twice in 2007 in March -April (with a brief side-t rip to Hong Kong) and then again in July for the double receptions.  She did not travel to China again until February 2010 (again with a side trip to Taipei), departing for Canada on April 13, 2010.  XXXX returned to China on October 7 2010 and stayed there until the 23rd when she return ed to Canada.  There is some indication that the appellant combined business with these trips however she testified to spending time with the applicant on each trip residing most of the time w ith him at her parent’s residence and to a lesser degree with him at his parent’s home.  The app licant confirmed this living arrangement in his testimony.  The appellant testified that she did not  travel for almost two years because of her focus on business which included spending a lengthy period of time in the USA in 2009 which her USA dollar earnings would support.  The a ppellant next travelled to China in May 2011 staying three weeks until early June.  The appellant testified that she has plans to travel to China again in 2011.                 [40] The couple testified to communication by tele phone, over the internet (using QQ) and by letter, most of the evidence of the latter being excluded for lack of translation.  The respondent                                                                                                                                                             
 
 
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asked the applicant if he can communicate in English, and in particular whether he can read English.  The applicant testified that he knows some simple, frequently used words but that reading English would be a problem.  The applican t had no recollection of ever receiving a letter from the appellant written in English howev er the respondent, referencing a letter dated sometime in 2011, pointed out that it was written to the applicant in English.  When she was asked about the letter the appellant testified that at the time the applicant was studying English and so she wrote to him in English.  [41] The respondent would have the panel view this  letter very negatively as manipulative of the process.  The letter is about the up comi ng “interview” (hearing on September 27, 2011) and the appellant’s intentions to return to China for a visit at Christmas time.  She apologizes for the delay, it speaks of her friends concerns that she is older commenting that only god knows how they love each other, it comments on the applicant’s being unique, expresses her love and begs for a call when he is free with a closing expression of concern for his well-being.  If this is manipulation, it is pretty tame by the standards seen by this member.  The appellant wrote several other letters on the same personal letterh ead in Chinese and presumably it was open to her to continue this practice however she did not.  Beyond testifying that he did not recall receiving any letters written to him in English, the fact of this single letter was not put directly to the applicant so the panel does not know whet her having his memory jogged he would have recalled differently.  However, the panel does not have serious credibility concerns and will accept the appellant’s testimony for why she wrote in English, it will not attribute a negative motivation to the fact and will give the applicant the benefit of the doubt that perhaps he simply did not recall a letter he could not have read.  [42] Staying with problematic correspondence, th e appellant moved to a new residence, a house in Markham Ontario, in December 2010.  The re spondent asked her if and when she told the applicant she had moved, to which she answer ed, “yes” and “I don’t remember when.”  The respondent, referring to page 250 of Exhibit A- 1 asked why a letter postmarked February 1, 2011 bore the appellant’s former return address if she had moved to her new Markham address in December 2010.  The panel’s notes do not record an answer, however the panel has looked at 
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several letters with their English translations  and presumably their conveying envelopes and notes that at least one letter and its translation is out of order in the exhibit.    [43] The English translation at page 247 corresponds to the letter written in Chinese at page 249 and not the letter written in Chinese at page 248 as one would e xpect if things were in order.  The letter at page 247/49 is dated Decembe r 2010 and deals almost exclusively with the appellant’s moving into her Markham home and th e frustrations she had over the closing of the sale of her condominium, it states at the bottom “I changed a new address, 6 Kevlin Road, please see the envelope.”  The panel is unable to conn ect this letter with the envelope at page 250 postmarked February 1, 2011.  However, two othe r letters one dated simply February 2011 and the other dated February 14, 2011 found at pages 241-243 and 244-246 respectively are presumably linked to their respective envelopes indicating that they were posted on the same date and time on February 15, 2011 and both envel opes bear the address 6 Kevlin Road.  Why she posted two letters to the applicant on the same day is the appellant’s business but clearly she was making no attempt to hide her address from the applicant.  [44] The panel is not about to do a forensic a udit of the examples of written communication suffice it that there is an ordering problem in the exhibit and it cannot infer that the envelope at page 250 conveyed the letter at page 249.  Given that the appellant drew the applicant’s attention specifically to the envelope for the full address on Kevlin Road, the most probable explanation is that the impugned envelope conveyed another le tter and the correct envelope for the December 2010 letter is not in the exhibit.  As to what the panel should make of the fact that she posted a letter bearing her former return address two months after it was apparently written, for all the panel knows the letter languished at the bottom of a purse or in a drawer until found and posted late.  The panel will not draw any negative conclusions form this seeming innocent exchange of correspondence.    [45] The couple testified consistently to their plan to get the applicant established quickly, perhaps open a restaurant in the Fujian style of Chinese cuisine and start a family (fast according to the appellant).  
2011 CanLII 93646 (CA IRB)
IAD File No. / No de dossier de la SAI: TA9-17326 Client ID No. / N
o ID client: 4017-4953   
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[46] Asked why she liked the applicant the appella nt gave several reasons including his being simple, decent and loyal, 100% supporting, a listener, young, handsome and vigorous (which the reader can interpret as they wish).  The appell ant testified that the age difference between them was not a subject of discussion because they did not  perceive a difference.  She testified that the applicant found her to have an active and open mind with her own views and a compatible personality.  Similarly asked, the applicant testif ied that the appellant was vary caring of him, open minded, generous, easy going, respectful of pa rents, friendly and honest with everyone,  He testified that he thought she was a nice person and a decisive woman.  As for why she loved him, the applicant testified because he too was very caring, not talkative, they got along very well and because he can cook (a skill not often seen in a Western husband but apparently valued in the East).  Conclusion  [47] The test is on a balance of probabilities.  Presumably the appellant and applicant would have wanted to get their second application right and to this end the officer’s bemusement at the fact that they were so lacking in diligence, notwithstanding that they had counsel, is valid criticism.  Whether the provision of the documen ts requested might have fully assuaged the officer’s concerns is unknown (the Hong Kong visa post being, in the panel’s opinion, both XXXXXX and Charybdis to many an applicant) but the failure to provide these documents certainly did not help.  [48] That being said, while there are abundant r easons why the second application failed at the interview, there are also sufficient reasons for why the appeal should succeed.  The oral evidence was not without its problems and the documen tary evidence was not perfect.  However, perfection is not the expectation, and like a game of horseshoes, the appellant and applicant have come close enough to the mark that the panel will  allow the appeal, on a balance of probability.  [49] The panel is satisfied that the major indici a of a genuine marriage as assessed in the jurisprudence of the IAD is present in this marriage and the panel cannot conclude that the marriage was entered into primarily for the purpose of immigration.       
2011 CanLII 93646 (CA IRB)
IAD File No. / No de dossier de la SAI: TA9-17326 Client ID No. / N
o ID client: 4017-4953   
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 [50] 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 the officer must continue to process the appl ication in accordance with the reasons of the Immigration Appeal Division.        “XXXXXXXXXXXXXXXXXX”  
    XXXXXXXXXXXXXXXXXX      December 12, 2011  
    Date      
Judicial Review – Under section 72 of the Immigration an d Refugee Protection Act, you may make an application to 
the Federal Court for judicial review of this decision, with  leave of that Court.  You may wish to get advice from 
counsel as soon as possible, since ther e are time limits for this application.  
2011 CanLII 93646 (CA IRB)

