Date: 20060605
Docket: IMM-6790-05
Citation: 2006 FC 696
Ottawa, Ontario, June 5, 2006
Present:
The Honourable Mr. Justice Beaudry
BETWEEN:
RODAL
HOUSSEIN MOHAMED
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision by
Laurence Couture, immigration officer (the officer), dated November 1, 2005,
denying the applicant’s permanent residence application on the grounds that her
marriage with her husband was not genuine.
ISSUES
[2]
The issues
raised in this matter are as follows:
- Did the officer make an error
warranting the intervention of this Court in determining that the marriage
between the applicant and her husband was not genuine?
- Is there a reasonable fear of bias
with regard to the officer’s decision?
[3]
For the
following reasons, these questions are answered in the negative and this
application for judicial review will be dismissed.
BACKGROUND
[4]
The
applicant is a citizen of Djibouti, born on April 29, 2004, in Djibouti.
[5]
She
married Abdul Wahab Youssouf, a Canadian citizen, on May 23, 2001, in Djibouti.
[6]
The facts
as alleged by the applicant may be summarized as follows.
[7]
The
applicant worked as a cleaning lady at the hospital in Djibouti from September
1999 to August 2001.
[8]
She met
her future husband in March 2001, while he was visiting Djibouti to find
himself a wife. They were married two months later, which is not unusual in
their culture. Her husband returned to Canada shortly after the marriage was
solemnized.
[9]
Following
her involvement in a demonstration in August 2001, she was incarcerated until
February 2002. Before her incarceration, her husband sent her $300 a month to
support her.
[10]
When she
was released from prison, she fled to Ethiopia, where she stayed until
May 2004. First she lived with her husband’s parents, then with a
girlfriend.
[11]
During
this period, the spouses communicated by telephone and her husband sent her
money regularly until September 2002, when he lost his job. Her husband’s
parents then began to send her about $60 per month.
[12]
The
applicant’s husband initiated a sponsorship application in 2002, but mistakenly
sent the documents to the Canadian embassy in Nairobi, and the applicant never
received her copy of the documents.
[13]
In June
2004, the applicant used the travel documents and visa belonging to the
girlfriend with whom she lived in Ethiopia to travel to Dallas, in the United
States. She intended to assume her girlfriend’s identity to enter the United
States in order to then join her husband in Canada.
[14]
In the
interim, her husband had found employment. He was supposed to pick her up in
Dallas on June 16, 2004, but his employer denied his request for time off. He
then asked the applicant to wait until October 2004.
[15]
On October
14, 2004, her husband came to get her in Dallas and brought her to the Buffalo
border.
[16]
The
applicant revealed her true identity to the customs officers, but she was
denied a temporary residence permit, and she was detained until November 26,
2004.
[17]
The couple
has been living together since November 26, 2004.
[18]
On the
advice of an immigration officer, the applicant’s husband withdrew his
sponsorship application and prepared a new application under the spouse in
Canada class.
[19]
The
applicant’s spouse has been providing for her since that date. He handles her
medical expenses, has named her as beneficiary of 50% of his Registered
Retirement Savings Plan (RRSP), and they have a joint bank account.
[20]
The
spouses had an interview with the immigration officer on July 19, 2005. An
interpreter provided by the officer was present, but the applicant had
difficulty understanding him and the majority of the interview took place in
French.
[21]
During
this interview, the officer expressed her disbelief that they were married
after knowing each other for only two months. The officer allegedly stated that
she was single and that she would never have married anyone after two months.
[22]
On November
1, 2005, the officer made a negative decision on the sponsorship application,
the grounds for her decision were sent to the applicant on November 9, and the
following day she filed an application for leave for judicial review with this
Court.
[23]
On November
15, 2005, there was a negative decision on her pre-removal risk assessment
application (PRRA).
[24]
The date
for the applicant’s removal was scheduled on November 30, 2005, but she failed
to report for it and an arrest warrant was issued against her.
IMPUGNED DECISION
[25]
In her
letter dated November 1, 2005, the officer stated that the application for
permanent residence in the spouse in Canada class was denied because the
applicant and her husband had not provided enough evidence establishing the
authenticity of their relationship.
[26]
In the
reasons for her decision, which were sent to the applicant on
November 9, 2005, the officer set out several reasons to justify the
dismissal of that application.
[27]
The
officer stated that the applicant and her husband had not provided enough
evidence to establish the following facts:
·
The
applicant’s husband filed, after their marriage but before he left for Canada,
an application for a temporary residence visa so that he could accompany her to
Canada;
·
The
applicant’s husband regularly contacted the applicant by telephone and sent her
money while she was in Ethiopia (no receipts for transfers of funds, telephone
bills or calling cards establishing their communications);
·
The
information provided by the applicant at the interview regarding the period of
her incarceration in Djibouti was inconsistent with her statement in an
affidavit submitted by her counsel;
·
The
applicant’s spouse actively pursued the steps of his sponsorship process when
the applicant was abroad;
·
The applicant
remained in contact with her husband’s parents after she left their home;
·
The
applicant and her husband remained in contact by telephone while she was living
with his parents in Ethiopia;
·
The
statements by the applicant and her husband regarding the length of her stay
with her husband’s parents are inconsistent: she states that she stayed a few
days, her husband says that she stayed a few weeks;
·
After her
refoulement to the Canadian border in October 2004, the applicant stated to
American customs that she had entered the United States under a false identity
in June 2004. The records of American customs do not mention such a
statement;
·
The
applicant and her husband made statements that were inconsistent regarding when
the applicant had contacted her husband after arriving in the United States;
·
The
relationship of the couple had developed since they began living together in
Canada;
·
The couple
truly lived together since her arrival in Canada.
[28]
Moreover,
the officer found that the following factors tend to suggest the absence of a
genuine relationship between the applicant and her husband:
·
Their
almost complete absence of communication while she was in Ethiopia, despite the
difficulties they had to face;
·
When the
officer was questioning them, the spouses provided inconsistent answers about
the activities they did together;
·
The
applicant spent five months in Dallas waiting for her husband to come get her
rather than go alone to Canada, even though she had managed to get as far as
Dallas via Miami under a false identity;
·
The joint
bank account was not opened until October 24, 2005;
·
The date
that the applicant was named as beneficiary of the RRSP was not clear, but the
officer did not receive it until October 27, 2005, when it had not been
provided in July 2005.
RELEVANT STATUTORY AND REGULATORY
PROVISIONS DISPOSITIONS
|
3. (1) The objectives
of this Act with respect to immigration are . . .
|
3. (1) En matière
d’immigration, la présente loi a pour objet: […]
|
|
(d) to see that
families are reunited in Canada;
|
d) de
veiller à la réunification des familles au Canada;
|
|
12. (1) A foreign
national may be selected as a member of the family class on the basis of
their relationship as the spouse, common-law partner, child, parent or other
prescribed family member of a Canadian citizen or permanent resident.
|
12. (1) La sélection
des étrangers de la catégorie « regroupement familial » se fait en
fonction de la relation qu’ils ont avec un citoyen canadien ou un résident
permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père ou mère
ou à titre d’autre membre de la famille prévu par règlement.
|
|
63. (1) A person who
has filed in the prescribed manner an application to sponsor a foreign
national as a member of the family class may appeal to the Immigration Appeal
Division against a decision not to issue the foreign national a permanent
resident visa.
|
63. (1) Quiconque a
déposé, conformément au règlement, une demande de parrainage au titre du
regroupement familial peut interjeter appel du refus de délivrer le visa de
résident permanent.
|
|
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
|
72. (1) Le contrôle
judiciaire par la Cour fédérale de toute mesure — décision, ordonnance,
question ou affaire — prise dans le cadre de la présente loi est subordonné
au dépôt d’une demande d’autorisation.
|
|
(2) The following
provisions govern an application under subsection (1):
|
(2) Les dispositions
suivantes s’appliquent à la demande d’autorisation:
|
|
(a) the
application may not be made until any right of appeal that may be provided by
this Act is exhausted;
|
a) elle ne
peut être présentée tant que les voies d’appel ne sont pas épuisées;
|
|
(b) subject to
paragraph 169(f), notice of the application shall be served on
the other party and the application shall be filed in the Registry of the
Federal Court (“the Court”) within 15 days, in the case of a matter
arising in Canada, or within 60 days, in the case of a matter arising
outside Canada, after the day on which the applicant is notified of or
otherwise becomes aware of the matter;
|
b) elle doit
être signifiée à l’autre partie puis déposée au greffe de la Cour fédérale —
la Cour — dans les quinze ou soixante jours, selon que la mesure attaquée a
été rendue au Canada ou non, suivant, sous réserve de l’alinéa 169f),
la date où le demandeur en est avisé ou en a eu connaissance;
|
|
(c) a judge of
the Court may, for special reasons, allow an extended time for filing and
serving the application or notice;
|
c) le délai
peut toutefois être prorogé, pour motifs valables, par un juge de la Cour;
|
|
(d) a judge of
the Court shall dispose of the application without delay and in a summary way
and, unless a judge of the Court directs otherwise, without personal
appearance; and
|
d) il est
statué sur la demande à bref délai et selon la procédure sommaire et, sauf
autorisation d’un juge de la Cour, sans comparution en personne;
|
|
(e) no appeal
lies from the decision of the Court with respect to the application or with
respect to an interlocutory judgment.
|
e) le
jugement sur la demande et toute décision interlocutoire ne sont pas
susceptibles d’appel.
|
[30]
The
relevant provisions of the Immigration and Refugee Protection Regulations, SOR/
2002-227 (the Regulations) read as follows:
|
4. For the purposes of
these Regulations, no foreign national shall be considered a spouse, a
common-law partner, a conjugal partner or an adopted child of a person if the
marriage, common-law partnership, conjugal partnership or adoption is not
genuine and was entered into primarily for the purpose of acquiring any
status or privilege under the Act.
|
4. Pour l’application
du présent règlement, l’étranger n’est pas considéré comme étant l’époux, le
conjoint de fait, le partenaire conjugal ou l’enfant adoptif d’une personne
si le mariage, la relation des conjoints de fait ou des partenaires conjugaux
ou l’adoption n’est pas authentique et vise principalement l’acquisition d’un
statut ou d’un privilège aux termes de la Loi.
|
|
123. For the purposes
of subsection 12(1) of the Act, the spouse or common-law partner in
Canada class is hereby prescribed as a class of persons who may become
permanent residents on the basis of the requirements of this Division.
|
123. Pour
l’application du paragraphe 12(1) de la Loi, la catégorie des époux ou
conjoints de fait au Canada est une catégorie réglementaire de personnes qui
peuvent devenir résidents permanents sur le fondement des exigences prévues à
la présente section.
|
|
124. A foreign
national is a member of the spouse or common-law partner in Canada class if
they
|
124. Fait partie de la
catégorie des époux ou conjoints de fait au Canada l’étranger qui remplit les
conditions suivantes:
|
|
(a) are the
spouse or common-law partner of a sponsor and cohabit with that sponsor in
Canada;
|
a) il est
l’époux ou le conjoint de fait d’un répondant et vit avec ce répondant au
Canada;
|
|
(b) have
temporary resident status in Canada; and
|
b) il
détient le statut de résident temporaire au Canada;
|
|
(c) are the
subject of a sponsorship application.
|
c) une
demande de parrainage a été déposée à son égard.
|
ANALYSIS
1. Did the officer make an error
warranting the intervention of this Court in determining that the marriage
between the applicant and her husband was not genuine?
[31]
The
applicant contends that the officer erred in law in her interpretation of
section 4 of the Regulations, and that she applied the wrong test to determine
whether the marriage was genuine. The applicant claims that the officer
examined the dynamic of their relationship after the marriage rather than the
applicant’s intention at the time of the marriage.
[32]
The
applicant claims that her application should have been allowed once she
established that she was not married primarily to gain admission to Canada or
that she intended to live permanently with her husband.
[33]
The
respondent replied that it was rather the applicant who misinterpreted
section 4 of the Act and that she had the burden of establishing that she
was not married primarily to gain admission to Canada or that she intended to
live permanently with her husband.
Standard of review
[34]
The
applicant’s argument involves the interpretation of section 4 of the
Regulations, which is a question of law. The appropriate standard of review is
therefore that of correctness (Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982).
[35]
In my
opinion, the respondent is correct on this point. The test provided under
section 4 is conjunctive, and the officer was entitled to examine the
conduct of the couple after the marriage in order to determine what the
applicant’s intention was at the time of the marriage (Gavino v. Canada
(Minister of Citizenship and Immigration), 2006 FC 308, [2006] F.C.J.
No. 385 (F.C.T.D.) (QL), Deo v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1339, [2004] F.C.J. No. 1612 (F.C.T.D.) (QL)).
[36]
Therefore,
I find that the officer did not err in law in interpreting section 4 of the
Regulations.
[37]
The
applicant also alleged that that the officer erred in fact in determining that
the marriage was not genuine and that adequate evidence had been filed to
establish the authenticity of the spouses’ relationship.
[38]
The
respondent contends that the officer’s decision was not unreasonable,
considering the many shortcomings pointed out by the officer in the reasons of
her decision.
Standard of review
[39]
The
officer’s finding to the effect that the applicant had not filed sufficient
evidence establishing that her relationship with her husband was genuine is a
mixed question of fact and law. The appropriate standard for this decision in
the context of this judicial review is that of an error of unreasonableness simpliciter
(Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2
S.C.R. 817).
[40]
After
carefully reading and rereading the officer’s reasons, I do not find that her
decision, considered as a whole, is unreasonable. The evidence filed by the
applicant and her husband have many shortcomings, and they had the burden of
establishing that their relationship was genuine.
2. Is there a reasonable fear of
bias with regard to the officer’s decision?
[42]
The
applicant argues that by applying the test elaborated in Committee for
Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369,
a reasonable and well-informed member of the community would perceive bias in
the officer’s remarks. These comments are not suggestive of an open mind
regarding the culture and customs of the applicant and her spouse.
[43]
The
respondent replies that the applicant did not rebut the presumption of the
officer’s impartiality (Canada (Minister of Citizenship and Immigration) v.
Mugesera, [2005] 2 S.C.R. 91). The respondent argues that the officer
only expressed her personal opinion regarding marriages between spouses who
have not known each other for very long, but her remarks did not in any way
suggest that she had a closed mind regarding the genuineness of the
relationship between the applicant and her husband.
[44]
The
respondent alleges that, applying the test of Committee for Justice, a
reasonable person reviewing all of the evidence before the officer would make
the same decision.
[45]
I agree
with the respondent on this point. Applying the test in Committee for
Justice, I do not believe that a reasonable person reviewing all of the
evidence would have a reasonable apprehension of bias with regard to the
officer’s decision. However, I note that the comment made by the officer was inappropriate
at the very least and should not have been made.
[46]
With
regard to the interpretation problems raised by the applicant at the interview,
the Court observes that the applicant was represented by counsel and that it
was not until one hour after the interview began that she raised this issue.
The interview was held in French. The tribunal record indicates that the
applicant signed documents in French and, in the notes at the port of entry,
she had indicated that she could speak French and Somalian. The Court does not
hesitate to find that there was no breach of procedural fairness.
[47]
The
parties did not propose any questions for certification and no question is
involved in this matter.
JUDGMENT
THE COURT ORDERS that this application for judicial review be
dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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