Date: 20061116
Docket: IMM-1911-06
Citation: 2006 FC 1382
Ottawa, Ontario, November 16,
2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
ROSALIE
JN BAPTISTE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
Had
the Applicant been given an effective opportunity to respond to extrinsic
information obtained after the Applicant and her “spouse” were interviewed,
that would have been enough to satisfy the Court that the requirements of
natural justice had been met.
BACKGROUND
[2]
The
Applicant, Mrs. Rosalie Jn Baptiste, applied for permanent resident status in
Canada under the spouse or common-law partner in Canada class. After
reviewing the evidence and interviewing the Applicant and her “spouse”, the
Immigration Officer (Officer) decided to deny the Applicant’s application on
the basis that the evidence showed that her marriage was not bona fide.
FACTS
[3]
Ms.
Baptiste is a citizen of St. Lucia who came to Canada in July 2003
to visit friends. She married a permanent resident of Canada on May 11,
2004.
[4]
On
June 16, 2005, Citizenship and Immigration Canada’s Case Processing Centre in
Vegreville received from Ms. Baptiste her completed application for permanent
residence under the spouse or common-law partner in Canada class.
[5]
On
March 13, 2006, an Officer interviewed Ms. Baptiste and her “spouse” in
separate interviews. After conducting the separate interviews, the Officer
brought Ms. Baptiste and her “spouse” together in order to confront them with the
discrepancies found in their separate interviews and to give Ms. Baptiste an
opportunity to explain the discrepancies.
[6]
After
thoroughly considering the evidence, including the results of the interviews,
by decision dated March 28, 2006, the Officer rejected Ms. Baptiste’s
application for permanent residence pursuant to s. 4 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (Regulations), on the basis
that Ms. Baptiste had not shown that her marriage was bona fide.
[7]
Ms.
Baptiste sought leave to commence a judicial review application in respect of
this decision. By Order dated August 17, 2006, leave was granted.
Relevant
statutory provisions
[8]
Under
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and
related Regulations, a foreign national may apply for permanent residence under
the spouse or common-law partner in Canada class provided that
that person meets the requirements of the legislative scheme. (s. 12(1) of
IRPA; ss. 123 and 124 of the Regulations.)
[9]
Pursuant
to s. 124 of the Regulations,
|
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.
|
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.
|
[10]
Pursuant
to s. 4 of the Regulations :
|
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.
|
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.
|
ISSUES
[11]
(1) Did the tribunal base its decision on
erroneous findings of fact, without regard to the evidence before it,
misconstrued the evidence and therefore made patently unreasonable findings?
(2) Did the tribunal err in law by denying the Applicant
natural justice and not complying with the duty to act fairly?
ANALYSIS
[12]
The Officer did all that had to be done in
regard to fact-finding in respect of the matter before the Officer except
for one significant fact-finding initiative by telephone which was not related
to Ms. Baptiste and to which the Ms. Baptiste was not given an
opportunity to respond.
Natural Justice: The Consideration of Extrinsic Evidence by the
Officer
[13]
The Officer erred by importing extrinsic
evidence by unilaterally obtaining information in a telephone conversation, the
results of which were relied upon as evidence in rendering the negative
decision. The Officer used this information to dispute statement made by Ms.
Baptiste.
[14]
If the Officer wanted to use this information,
it was required that the Officer provide it to Ms. Baptiste and to give her an
opportunity to refute the evidence. As described in Muliadi v. Canada (Minister of Employment and
Immigration), [1986] 2 F.C. 205 (C.A.), the duty of
fairness requires the Officer to give the applicant an opportunity to refute
negative evidence. In Packirsamy v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 368 (QL), a humanitarian and compassionate case,
Justice John M. Evans stated:
[11] It was common ground between
the parties that, in determining the applicants' claim under subsection 114(2),
the immigration counsellor was subject to the duty of procedural fairness,
which normally includes a duty on decision-makers to make reasonable disclosure
of any material on which they propose to rely, so that those potentially
adversely affected may comment on it…
The Meaning of
Patently Unreasonable
[15]
When a decision is illogical and the error is
apparent on the fact of the tribunal’s reasons, the decision is patently
unreasonable. The meaning of “patently unreasonable” was examined by Justice
Danièle Tremblay-Lamer in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (QL):
[16] However, accepting
a more deferential approach does not preclude this Court from intervening where
there is a palpable
error or where the Board's conclusion is not supported by a reasonable
interpretation of the facts.
[16]
The Officer did not comply with the rules of natural
justice by not providing the Applicant with an opportunity to respond to
extrinsic evidence obtained after the interview, but which was most significant
to the decision.
[17]
In Baker v. Canada (Minister of Employment
and Immigration) (1999), 174 D.L.R. (4th) 193, (S.C.C.), the
Supreme Court of Canada disagreed with the decision of the Federal Court of
Appeal in Shah v. Canada (Minister of Employment and Immigration), 81 F.T.R. 320, [1994] F.C.J. No. 1299 (QL), that although
the decision to be made is a discretionary one, there was a duty to act fairly
and given that the decision had important implications for the individual, the duty
to act fairly required the Applicant and other affected parties to be given a
full opportunity to be heard; to make full submissions; to an unbiased
decision-maker, and to reasons for any adverse decision.
[18]
In Bayovo v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1939 (QL), the Court quashed a decision based on
a breach of the duty of fairness. Justice Paul Rouleau noted:
[6] I am satisfied the decision
should be set aside and the matter returned for reconsideration. The principles
of natural justice and fairness require the Immigration Officer to convey to
the applicant sufficient information so as to enable him to know the reasons
for the refusal and to provide the applicant with an opportunity to respond to
those reasons. If the Immigration Officer had doubts with respect to the bona
fides of the marriage, fairness required the applicant and his spouse be
provided with an opportunity to respond to those concerns…
[19]
Had the Officer provided Ms. Baptiste with an
opportunity to respond to extrinsic information obtained after the Applicant
and her “spouse” were interviewed, that would have been enough to satisfy the
Court that an opportunity to respond had been effectively given to do so.
[20]
The Officer had the opportunity to act fairly in
order to ascertain the quality of extrinsic evidence obtained after the
interview to assist the Officer in making a decision in Ms. Baptiste’s case but
the Officer failed to act fairly.
[21]
The extrinsic information was central to the
Officer’s decision and had serious consequences because Ms. Baptiste should
have been given a chance to be heard on the new information.
[22]
The Officer applied facts in a misconstrued
manner.
[23]
It is trite law that credibility findings are
ones of fact which, if they are central to the decision, can only be set aside
on the basis provided for in paragraph 18.1(4)(d) of the Federal
Courts Act, R.S., 1985, c. F-7.
[24]
The decision can only be set aside if this Court
is satisfied that the tribunal, in this case, based its decision on a matter of
natural justice which requires the standard of review based on correctness.
[25]
It is not the role of a reviewing Court to
reweigh evidence that was before a tribunal.
[10] The Court should not seek to
reweigh evidence before the Member simply because it would have reached a
different conclusion. As long as there is evidence to support the Member's
finding of credibility and no overriding error had occurred, the decision
should not be disturbed.
(Thavarathinam
v. Canada
(Minister of Citizenship and Immigration), [2003]
F.C.J.; No. 1866 (QL) by Justice James Russell.)
[26]
Where the Board erred in its treatment of the
Applicant’s claim, it was set aside. The errors were sufficiently serious to
warrant the decision being set aside. (Basak v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1496, [2005] F.C.J. No. 1839
(QL).)
[27]
Credibility findings must be based on reasonably
drawn inferences, not conjecture or speculation. Where inferences are
improperly drawn, the Court is more likely to interfere with the Board’s
decision. (Giron v. Canada (Minister of Employment and Immigration)
(1992), 143 N.R. 238, [1992] F.C.J. No. 481 (QL).)
[28]
It is trite law that an Officer must give the
Applicant an opportunity to explain any questions or issues arising but he
failed to do so in this case. (Hussein v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 726 (QL).)
[29]
The Officer violated the rules of procedural
fairness by not giving an opportunity to the Applicant to explain questions and
made a patently unreasonable finding. (Xu v. Canada (Minister of Citizenship and Immigration), 2005 FC 1528, [2005] F.C.J. No. 1885 (QL).)
[30]
Where the Officer did not give the Applicant any
opportunity to explain any perceived misunderstanding, it constituted a breach
of natural justice for which the appropriate remedy is to set aside the
decision and remit the matter to the Minister for reconsideration by a
different Immigration Officer. (El-Hajj v. Canada (Minister of Citizenship and Immigration), 2005 FC 1737, [2005] F.C.J. No. 2166 (QL).)
[31]
The tribunal also erred in law by denying Ms.
Baptiste natural justice and not acting fairly by not giving her an opportunity
to be heard on facts which were central to the determination of her
application.
CONCLUSION
[32]
This Court must interfere with the decision of
the Officer. The Officer failed to comply with the rules of natural justice and
was in breach of the duty to act fairly. Therefore, the matter is to be returned
for redetermination before another Immigration Officer.
JUDGMENT
THIS COURT ORDERS that the
application for judicial review be allowed and the matter be remitted for
redetermination by a different Immigration Officer due to the breach in
procedural fairness.
“Michel M.J. Shore”
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