Date: 20061012
Docket: IMM-1880-06
Citation:
2006 FC 1213
Ottawa, Ontario, October 12, 2006
Present:
The Honourable Mr. Justice Harrington
BETWEEN:
YANNICK
WANDJA DJEUKOUA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Yannick
Wandja Djeukoua, a native of Yaoundé, Cameroon, found refuge in Canada four
years ago because she feared police beatings which threatened her safety. After
her arrival, she took the legal steps necessary to claim refugee status in the
country. These steps proved to be unsuccessful. The Immigration and Refugee
Board (IRB) decided to dismiss the application in that case and after that
decision was submitted for judicial review, this Court dismissed the
application for leave and for judicial review in early 2003.
[2]
While the
applicant waited for the IRB’s response regarding whether she enjoyed true
refugee status, she was fortunate to meet Davidson Achille, which led to a
marriage in April 2003.
[3]
At that
time, Ms. Wandja Djeukoua still did not have legal status in the country
and for that reason on October 8, 2003, she applied to Citizenship and
Immigration Canada for a visa exemption on humanitarian and compassionate
grounds. This application was intended to exclude the foreign national
applicant from the general rule set out in subsection 11(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), to the effect that new
arrivals to Canada must apply for a visa before entering the country. At the
same time, her husband, a Canadian citizen, filed a sponsorship undertaking on
October 16, 2003, on the advice of their counsel at the time, a member in good
standing of the Barreau du Québec, now disbarred from the Roll of the Order.
Both applications were dismissed last January.
[4]
This is an
application for judicial review of the decision on the application for
permanent residence for humanitarian and compassionate reasons filed by Ms.
Wandja Djeukoua. In this case, given the public policy which came into effect
on February 18, 2005, regarding spouses and common-law partners in permanent
residence matters and given the date Ms. Wandja Djeukoua’s application was
filed and assessed, it is important to point out that the impugned decision was
automatically subject to a second assessment by the immigration officer. In
short, the applicant applied before the announcement on February 18, 2005, and
the application was not assessed until early 2006.
[5]
It is
important to point out that the new public policy permits spouses who are in Canada
to apply for permanent residence in the spouse and common-law partner class
from inside Canada, regardless of their immigration status. In fact, this
policy is another exception to the rule generally applied in the country, set
out in subsection 11(1) of the IRPA, to the effect that a Canadian visa
application must be completed by the foreign national outside Canada before
entering the country. Note that such an application by a new arrival is only
possible in situations where a sponsorship application has been or will be
filed for that person with Citizenship and Immigration Canada. As is the case
in this matter.
[6]
With the
objective of encouraging the reunion of families by facilitating the
immigration process for spouses and common-law partners living in Canada, the
policy is consistent with the values promoted by Canada in immigration matters.
Before the new policy came into effect, foreign nationals filing permanent
residence applications in the class of spouse or common-law partner in the
country first had to have a status recognized by the Canadian authorities.
Today, there is no such obligation. However: “In order to apply from
within Canada, you must be in a genuine relationship with a Canadian citizen or
a permanent resident”, Policy
Change for Spouses and Common-law Partners applying for Permanent Residence
from within Canada, Citizenship and Immigration Canada.
[7]
The
application that was the subject of the impugned decision is based on two
exemption schemes. The first is based on the public policy regarding spouses
and common-law partners, while the second is based on the wording of
subsection 25(1) of the IRPA.
[8]
In this
case, before it was possible for the immigration officer to decide on the
outcome of Ms. Wandja Djeukoua’s permanent residence application, it was
imperative that the officer assess the evidence in the record in light of the
issue of the genuineness of the marriage and also the issue of humanitarian and
compassionate reasons. As it appears in the record, the officer performed this
duty. Accordingly, in this matter our Court is considering both aspects
assessed by the immigration officer.
[9]
In this
case, the officer dismissed Ms. Wandja Djeukoua’s application in two steps.
First, she determined that the applicant’s marriage with Mr. Achille was
one of convenience, and that ultimately it was simply a means for the applicant
to acquire [translation] “any
status or privilege under the Act” as stated under section 4 of the Immigration
and Refugee Regulations SOR/2002-227. Second, once the officer had
considered the evidence supporting Ms. Wandja Djeukoua’s humanitarian and
compassionate reasons relating to her personal situation in Canada and in
Cameroon, she again dismissed the application.
STANDARD OF REVIEW
[10]
In this
proceeding, the standard of review is not disputed. As it involves the
discretionary decision of an immigration officer for humanitarian and
compassionate reasons, the parties agreed to follow the directives drawn from Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
and to therefore accept the standard of reasonableness simpliciter.
[11]
This Court
must now determine whether the reasons supporting the impugned decision can stand up to a somewhat probing examination. In other words, for an
immigration officer’s decision to be deemed unreasonable, Mr. Justice Iacobucci
writes the following at paragraph 56 of Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748:
An unreasonable decision is
one that, in the main, is not supported by any reasons that can stand up to a
somewhat probing examination. Accordingly, a court reviewing a conclusion on
the reasonableness standard must look to see whether any reasons support it.
The defect, if there is one, could presumably be in the evidentiary foundation
itself or in the logical process by which conclusions are sought to be drawn
from it. An example of the former kind of defect would be an assumption that
had no basis in the evidence, or that was contrary to the overwhelming weight
of the evidence. An example of the latter kind of defect would be a
contradiction in the premises or an invalid inference.
[12]
Further,
considering the parties’ submissions, it must be taken as a fact that the
appropriate standard of review for the issue of the genuineness of the marriage
is that of reasonableness simpliciter. Indeed, on this point,
this very Court determined very recently per Madam Justice Heneghan,
that the standard of reasonableness simpliciter must be applied to
matters involving the genuineness of a marriage. These questions are mixed,
i.e. of fact and law. Heneghan J. writes the following at paragraph 11 of Apaza
v. Canada (Minister of Citizenship and Immigration), 2006 FC 313, [2006]
F.C.J. No. 397 (QL):
On balance, the four factors tend
toward according some deference to the decision of the Immigration Officer. I
conclude that the applicable standard of review is reasonableness simpliciter.
This standard was applied by the Supreme Court of Canada in Baker . . .
in respect of a discretionary decision of a visa officer.
Considering the applicable standard, I determine that
the immigration officer’s reasons in support of both aspects of the impugned
decision were reasonable.
ANALYSIS
[13] With regard to the
first part of the impugned decision, namely the genuineness of the marriage,
the immigration officer interviewed the spouses separately to ensure that their
marriage was in good faith. During the first meeting, the spouses were
questioned regarding specific aspects of their daily life, such as what they
had for breakfast. Based on the many inconsistencies identified, the
immigration officer explained to the spouses that it was impossible for her to
accept the application under such circumstances.
[14] That same day, she
called another meeting to give them a second chance. At this meeting, she
warned the newlyweds. She advised them to seriously consider the second chance
being offered to them, because this second interview could alone determine the
outcome of the application. On the date of the second interview, the spouses
did not show up for the appointment because it was cold. A third interview date
was then scheduled. On that day, only Ms. Wandja Djeukoua showed up at the
immigration officer’s office. It should be pointed out that in the course of
the parties’ submissions before this Court, the plaintiff’s counsel alleged
that Mr. Achille did indeed show up for the third interview, but that he
arrived late. However, no affidavit was filed to this effect before the Court
and as it appears from the record, based on the applicant’s claims that her
husband would be there any minute, the immigration officer was willing to wait
one hour before cancelling the interview. Once 60 minutes had gone by, she then
advised the applicant, who was still on the premises, that she would have to
review the application with the information already in the record.
[15] Therefore, to assess
the validity of the marriage, the officer had to work with the many
inconsistencies identified during the spouses’ first separate interviews. On
reviewing the record, it is difficult to imagine that these two people could
have ever truly lived together. They appear rather to live light years apart.
Here are a few of the inconsistencies identified during the first interview and
reproduced in the interview notes:
[translation]
During the second interview on
January 13, 2006 at 1:30 p.m., I noted several inconsistencies, including the
following:
Client states that she got up
first today around 6:00 or 7:00 a.m., her spouse/sponsor states that he
got up first around 8:00 a.m. as usual and that the client got up at 9:30-
10:00 a.m.
Client states that her spouse
did not have breakfast with her and that she thinks he snacked on some peanuts,
her husband states that they had breakfast together and that they had bagels
with cream and coffee.
Client states that when she
arrived home, her husband then left, telling her: I’m leaving for work. Her
husband states that he did not see the client during the day yesterday.
[16] The applicant’s
counsel argued that the documentary evidence submitted in this proceeding, such
as the marriage certificate, the residential lease and the electric bills, are
sufficient to establish the validity of the marriage. Remember that when an
immigration officer has to determine whether a marriage is in good faith, it is
the parties’ intention that must be examined. In other words, such an
assessment is based on the credibility of the spouses; documentary evidence
alone is not enough to decide it. On this point, Rouleau J. properly
states the following at paragraph 10 of Canada (Minister of Citizenship
and Immigration) v. Agyemang, [1999] F.C.J. No. 776 (QL),
regarding the role of the visa officer:
The visa
officer, in conducting an assessment, must consider the authenticity of the
marriage from the perception and motives of the sponsored spouse. The legal
form of the marriage is irrelevant; see Horbas v. Canada (M.E.I.),
[1985] 2 F.C. 359 (F.C.T.D.).
This manner of assessment also
applies to the immigration officer, although one must remember that the
officers have a discretionary power that visa officers do not have and that,
accordingly, their role is not limited to the systematic application of the Immigration
and Refugee Protection Regulations, supra.
[17] The finding that Ms.
Wandja Djeukoua’s marriage was in bad faith is eminently reasonable. From the
moment when the applicant’s credibility is deemed unsatisfactory, it is no
longer necessary to take the documentary evidence into consideration. Unlike Awuah
v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 1873, the immigration officer’s decision is supported by
the evidence as it appears in the record, and it would be wrong to argue that
the findings that she made on that basis were illogical.
[18] With regard to the
second part of the impugned decision, namely the permanent residence
application for humanitarian and compassionate reasons, the immigration officer
first assessed the family ties that the applicant had in both countries at the
time the application was assessed, namely Canada and Cameroon. Ms. Wandja
Djeukoua’s professional life and future aspirations were then considered by the
immigration officer. Her parents, both of her sisters, her three brothers and
her twins left behind in Yaoundé still live in Cameroon. While in Canada, the
applicant had a job and a marriage of convenience. In the file notes, the
immigration officer determined as follows regarding this aspect of the
application:
[translation]
Taking
into consideration the fact that the marriage does not appear to be in good
faith, I find that it would not be undeserved or disproportionate to require
the client to apply for residence from outside Canada.
.
. .
The
hardship that the client will endure if she must apply for permanent residence
from outside Canada is directly related to the application of immigration
legislation and is not disproportionate or unusual.
The exemption under L25(1) is
therefore refused.
[19] This decision is
reasonable. The immigration officer did not make a reviewable error. In the
case at bar, the immigration officer’s findings regarding humanitarian and
compassionate grounds are supported by the evidence, and logically so.
[20] It is important to
bear in mind that the immigration officer’s two-part decision involves an
application that is exceptional and that it is not this Court’s place to
substitute its assessment for that of the officer. This Court must act with
deference.
[21] For all of these
reasons, I dismiss the application.
[22] No serious question
of general importance was addressed to the Court for certification.
ORDER
THE COURT
ORDERS that
the application for judicial review be dismissed. There
is no question to certify.
“Sean Harrington”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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