Date: 20061124
Docket: IMM-7066-05
Citation: 2006 FC 1408
Halifax, Nova Scotia, November 24, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
DONGMEI
CAO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision by an immigration officer, dated October 26, 2005, which refused to
grant the applicant permanent residence as a member of the spouse in-Canada
class on the basis that her marriage was not genuine.
[2]
The
applicant seeks:
1. an order of certiorari setting
aside the immigration officer’s decision;
2. an order of mandamus
directing the tribunal to grant the applicant a new assessment interview; and
3. an order preventing the
deportation of the applicant until the final determination of this application
for judicial review.
Background
[3]
The
applicant, Ms. Dongmei Cao, is a citizen of China. In August
2003, the applicant came to Canada under a study permit. This permit expired
on March 30, 2006.
[4]
The
applicant met Skyler Bower-Scott (the sponsor), a Canadian citizen, in
September 2003. The two were introduced by the sponsor’s uncle, whom the
applicant stated that she met in Shanghai in 2002. The applicant
started dating the sponsor soon afterward and the couple began cohabiting in
December 2003. The couple were engaged in March 2004 and married on June 18,
2004.
[5]
On
August 9, 2004, the applicant applied for permanent residence under the spouse
in-Canada class, and was sponsored by her husband. On October 6, 2005, this
application was considered by an immigration officer. The applicant was sent a
call-in notice (the notice) by Citizenship and Immigration Canada (CIC), dated
October 6, 2005, advising that she and her sponsor were to attend an interview
scheduled for October 24, 2005, in order to assess her status as a spouse of a
Canadian citizen. The notice also requested that the applicant bring a number
of documents to the interview.
[6]
The
couple failed to attend the interview. The applicant claimed that she and her
sponsor were staying at a friend’s home during the period in which the letter
was sent and did not check their mail. The applicant claimed that she only
became aware of the interview on October 27, 2005, three days after the date
upon which it was supposed to take place.
[7]
On
October 26, 2005, the applicant’s application for permanent residence was
refused. The immigration officer found that there was insufficient evidence of
a bona fide marital relationship between the applicant and her sponsor.
This is the judicial review of the immigration officer’s decision.
Reasons for the
Officer’s Decision
[8]
Subsection
124(a) of the Immigration and Refugee Protection Regulations, S.O.R./2002-227
(the Regulations) states that in order to qualify as a member of the spouse
in-Canada class, the applicant must demonstrate that she is the spouse of a
sponsor and that she cohabits with her sponsor in Canada. The
immigration officer noted that a foreign national is not considered a spouse if
the marriage or relationship is not genuine or was entered into primarily for
the purpose of acquiring any status under IRPA.
[9]
The
officer reviewed the information on file and noted the following considerations
in her Field Operations Support System (FOSS) notes:
O6Oct05
– File Review. In-Canada spousal case. Sponsorship provided by spouse who is a
Canadian citizen. PC is a citizen of China, 22 years old. She came to Canada in Aug2003 as a student. According to submission, she met
her sponsor less than a month after her arrival at her sponsor’s home,
introduced by sponsor’s uncle whom PC stated she met in China in 2002. The two moved in together in Dec2003 and in
June2004 they were married.
PC
told a story of intense love affair, yet provided lettle (sic) evidence.
Majority of the photos were taken on their civic wedding day, with the rest
taken in a couple of other occasions, all in the time frame from Jan to
June2004.
Bank
account is under PC’s name only. There is nothing under their joint names.
The copy of lease is on a Toronto Real Estate Board form. There is no other
evidence to prove their relationship. A few restaurant receipts provided.
However they could not be considered as proof of bona fide marriage. Friends
dine together, too. Interview required to assess bona fide marriage. SHA
24Oct05
– PC and her sponsor were no show for the interview scheduled for this date.
26Oct05
– PC and sponsor were no show for interview. As mentioned earlier, there is
insufficient information and evidence to support a bona fide relationship.
Therefore, I am not satisfied, based on information and documents on file, the
relationship is genuine and the marriage is bona fide. This application is
refused. SHA
PC
has valid study permit expires on March 30, 2006. No enforcement action taken
at this moment. SHA
[10]
The
officer concluded that based upon the available information, the relationship
and marriage were not bona fide. The officer also noted in her letter to
the applicant that she was not satisfied that the marriage was not entered into
primarily for immigration purposes and that as such, the applicant did not meet
the requirements of the spouse in-Canada class. The applicant’s application for
permanent residence was therefore refused.
Issues
[11]
The
applicant submitted the following issues for consideration:
1. Did the immigration officer err in law by
taking into account erroneous and
irrelevant
considerations in reaching her decision and basing her decision on erroneous
findings of fact made in a perverse and capricious manner?
2. Did
the immigration officer fail to observe a principle of natural justice,
fundamental fairness or other procedure required by law?
3. Did
the immigration officer exercise her discretion reasonably and within the
parameters of procedural fairness?
[12]
I would rephrase the
issues as follows:
1. Did the officer err in
refusing the permanent residence application on the basis that
the
applicant’s marriage was not genuine?
2. Did the officer breach the
duty of procedural fairness by reaching a decision without giving the applicant
a reasonable opportunity to respond?
Applicant’s Submissions
[13]
The
applicant submitted that immigration officers must exercise their discretion
reasonably and within the parameters of procedural fairness. It was also
submitted that this Court should not intervene unless an officer’s discretion
has been exercised unreasonably, since it is the officer’s role to assess the
weight to be given to relevant factors (see Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817).
[14]
The
applicant submitted that the immigration officer misapplied her discretion,
considered irrelevant factors and acted unreasonably when reaching her
decision. It was submitted that the officer reached a premature conclusion on
October 6, 2005, when she found that there was no evidence of the relationship
and that nothing was held jointly by the couple. It was also submitted that the
officer drew an adverse inference about the applicant’s evidence without giving
her a chance to respond.
[15]
The
applicant submitted that certain documents, (such as proof of joint bank
accounts and deeds), are not required for a determination of spouse in-Canada
class applications involving married spouses. It was noted that these documents
are not mentioned in CIC’s application forms, document checklist, or
instructional manual. The applicant submitted that the officer should not have
exercised her discretion or weighed the evidence on file regarding the
existence of jointly named documents on October 6, 2005, since these documents
were not required to be submitted by the applicant at that stage and could have
been presented during the interview scheduled for October 24, 2005.
[16]
The
applicant submitted that the officer denied the application without granting
her a meaningful opportunity to be heard. The applicant submitted that the
notice was dated October 6, 2005, but that the envelope containing the notice
was post-marked October 11, 2005. Also, the applicant noted that she did not
receive the notice during the week of October 10 to October 14, 2005, and that
she and her husband were away from their home during the week of October 17 to
October 21, 2005. Finally, the applicant stated that on October 27, 2005, the
applicant received both the notice and the refusal letter dated October 26,
2005.
[17]
The
applicant submitted that the officer acted unfairly and capriciously in
refusing her application two days after she failed to attend the interview. It
was also submitted that the officer waited only two days to refuse the
application because she had already drawn an adverse inference about the
quality and quantity of the documents on file. The applicant submitted that the
officer’s actions were unfair to the applicant.
Respondent’s Submissions
[18]
In
response to the applicant’s suggestion that she was denied a meaningful
opportunity to be heard, the respondent noted that the notice was dated October
6, 2005, which was 18 days prior to the interview date. In addition, the notice
was post-marked October 11, 2005, which was two business days after it was
written. The respondent also noted that the applicant did not check her mail
for two weeks, even though she was still in town and considered the
correspondence very important.
[19]
The
respondent submitted that the officer was not responsible for ensuring the
applicant’s receipt of the notice. It was also submitted that the officer did
not act unreasonably in sending the notice since it was drafted and mailed well
in advance of the interview. The respondent submitted that there was no error
or delay in mailing the letter and that the officer was neither responsible for
postal delivery nor the fact that the applicant had failed to check her mail
diligently.
[20]
The
respondent denied that the officer handled the application in a capricious or
unreasonable manner and noted that the notice sent to the applicant stated the
following:
If you do not attend this interview, the
decision about your exemption will be made based upon the information on your
file. If the
decision is to refuse your request for an exemption, there is no authority to
re-examine or re-open this decision. If you wished any new information to be
considered, you would have to submit a new application, including new fees. If
you cannot attend this interview, please write to this office immediately
explaining why.
(Emphasis added)
[21]
It
was submitted that the officer followed the procedure set out in the notice
excerpted above. The officer reviewed the evidence on file after the applicant
failed to attend the interview, and subsequently made her decision. As the
officer did not have the authority to re-consider her decision, she did not
respond to the applicant’s request of November 15, 2005.
[22]
The
respondent submitted that section 124 of the Regulations includes a
cohabitation requirement which applies to spouses and is also set out in the
instructions relied upon by the applicant in making her application. The
respondent noted that the application instructions state that in addition to
the documents listed in the documents checklist, CIC may request more
information at any time during the application process.
[23]
The
respondent submitted that proof of cohabitation and a genuine marriage are
required for spouse in-Canada applications and are therefore relevant
considerations. It was submitted that the applicant was given an opportunity to
provide such evidence, but failed to attend the scheduled interview. It was
also submitted that the applicant could have provided relevant evidence with
her initial application or at any time afterward.
Analysis
Standard of Review
[24]
The
first issue concerns the officer’s determination that the applicant’s marriage
was not genuine. This determination was one of mixed fact and law, as the
officer was required to determine whether, on the evidence filed, the
applicant’s marriage was genuine, as required under subsections 4(1) and 124(1)
of the Regulations. This Court’s jurisprudence indicates that the standard of
review applicable to the decision of an immigration officer regarding the bona
fide nature of a marriage, made in the context of spouse in-Canada class
permanent residence applications, is that of reasonableness simpliciter
(see Singh v. Canada (Minister of Citizenship and Immigration),
2006 FC 565 at paragraph 4 and Mohamed c. Canada (Ministre de la
Citoyenneté et de l’Immigration), 2006 CF 696 at paragraph 39).
[25]
A reasonable decision is one which is
supported by reasons which can withstand a somewhat probing examination (see Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at
paragraph 47).
[26]
A
breach of procedural fairness would result in the immigration officer’s
decision being vitiated by this Court.
[27]
Issue
1
Did
the officer err in refusing the permanent residence application on the basis
that the applicant’s marriage was not genuine?
Under section 123 of the
Regulations, the spouse in-Canada class is prescribed as a category of foreign
nationals who may become permanent residents on the basis of the criteria set
out in Division 2 of Part 7 of the Regulations. The criteria listed under
section 124 of the Regulations include:
1. being
the spouse or common-law partner of a sponsor and cohabiting with that sponsor
in Canada;
2. having
temporary resident status in Canada; and,
3. being the subject of a sponsorship application.
[28]
Should these criteria be fulfilled, a spouse is not
required to leave Canada in order to apply for permanent residence
and is therefore exempt from the requirement under section 11 of IRPA that such
applications be made from outside the country.
[29]
In the case at hand, the applicant married and
cohabited with her sponsor in Canada, had temporary
resident status until March 30, 2006, and is the subject of a sponsorship
application. The applicant’s August 2004 application for permanent residence
was made under the spouse in-Canada class.
[30]
As mentioned above, in order to qualify as a member
of the spouse in-Canada class, the applicant must be the spouse of a sponsor. Section
4 of the Regulations states that a foreign national shall not be considered a
spouse if the marriage entered into is not genuine or took place primarily for
the purpose of acquiring any status or privilege under IRPA.
[31]
I have reviewed the file
material and the officer’s notes, and I note that the applicant has stated in
her applications that she is married. She provided additional information to
the officer in response to the letter of January 12, 2005, including an
agreement to lease (residential) in the applicant and her husband’s joint names.
This document also appears to have been provided with the applicant’s original
application. The applicant’s file includes pictures of the marriage ceremony
and pictures prior to the time of the ceremony.
[32]
Having reviewed the officer’s
notes and refusal letter, I cannot ascertain the reasons why the officer
believed that the marriage was entered into primarily for immigration purposes.
In fact, the available evidence would not lead to the conclusion that the
marriage was entered into for this purpose. Had the interview taken place, it
is possible that other evidence may have been found to either further support
the genuineness of the marriage or to show that the marriage was not genuine
and was entered into primarily for the purpose of acquiring any status or
privilege under the IRPA.
[33]
I am of the view that based on
the officer’s notes and refusal letter, the officer made a reviewable error.
[34]
For these reasons, I would allow
this application for judicial review and refer the matter to a different
officer for re-determination following a new interview of the applicant and her
spouse.
[35]
Because
of my finding on Issue 1, I need not deal with the other issue.
[36]
Neither party wished to submit a proposed serious
question of general importance for my consideration for certification.
JUDGMENT
[37]
IT
IS ORDERED that the judicial review is allowed and the decision of the
officer is set aside and the matter is referred to a different officer for
re-determination following a new interview of the applicant and her spouse.
“John
A. O’Keefe”
ANNEX
Relevant Statutory
Provisions
Relevant
provisions of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 are as follows:
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11. (1) A
foreign national must, before entering Canada, apply to an officer for a visa or for
any other document required by the regulations. The visa or document shall be
issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
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11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
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Relevant
provisions of the Immigration and Refugee Protection Regulations, S.O.R./2002-227,
are as follows:
|
4. 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
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.
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.
124. A foreign national is a member of the
spouse or common-law partner in Canada class if they
(a) are the
spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada;
(b) have
temporary resident status in Canada; and
(c) are the
subject of a sponsorship application.
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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.
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.
Fait partie de la catégorie des époux ou conjoints de fait au Canada l’étranger
qui remplit les conditions suivantes:
a) il est
l’époux ou le conjoint de fait d’un répondant et vit avec ce répondant au Canada;
b) il détient
le statut de résident temporaire au Canada;
c)
une demande de parrainage a été déposée à son égard.
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