Date: 20051222
Docket: IMM-2380-05
Citation: 2005 FC 1737
Ottawa, Ontario, December 22, 2005
PRESENT: THE HONOURABLE W. ANDREW MACKAY
BETWEEN:
HUSSEIN EL-HAJJ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant seeks judicial review of, and an Order setting aside, the decision of the respondent Minister's representative, dated March 31, 2005, that there were insufficient humanitarian and compassionate grounds to exempt the applicant from subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. C-27, as amended ("IRPA"), which requires that he apply for permanent residence from outside Canada. The representative also decided on the same day that the applicant would not be granted permanent residence in Canada under the Spouse or Common-Law Partner in Canada Class as announced in February 2005.
Background
[2] The applicant entered Canada on December 8, 2002 on a temporary resident visa issued in Beirut, Lebanon a month earlier. On January 10, 2003, he submitted a refugee claim. That was denied by the Refugee Protection Division on November 17, 2003. On April 3, 2004, the Federal Court denied his application for leave and for judicial review of the negative refugee decision.
[3] In the meantime the applicant had met his wife-to-be on September 1, 2002. They developed a relationship that led to their marriage, on May 29, 2004, in a civil ceremony and on June 6, 2004 in a traditional ceremony. Their wedding was after the Federal Court had refused leave on his application for review of the negative refugee decision.
[4] In August 2004 the applicant filed a humanitarian and compassionate ("H & C") application to be exempt from requirements of subsection 11(1) of IRPA that he apply from outside Canada for permanent residence in this country. Pursuant to the policy announced in February 2005, the applicant's wife was his sponsor for his permanent residence in Canada. Both the applicant and his wife were interviewed, independently, by an immigration officer on March 11, 2005. On March 31, 2005, that officer issued a negative decision for both his H & C application and for the application for admission from within Canada on the sponsorship of his wife. Those decisions are the subject of this application for judicial review, leave to pursue which was granted by the Court.
Issues
[5] For the applicant it is urged that the immigration officer erred in his decision:
1) by relying on facts he found, which were said to be contradicted by the evidence, or which failed to take account of explanations offered by the applicant;
2) by breaching the duty of fairness by relying on information from previous proceedings, maintained on the applicant's file, without notice to the applicant that it would be relied upon, and with no opportunity for the applicant to respond to perceived discrepancies of the decision maker based on that information.
These issues are now dealt with in turn.
Analysis
[6] The parties are agreed that the standard of review of the decision concerning the H & C application is reasonableness simpliciter. They do not agree on the application of that standard.
[7] The officer concerned, in notes outlining the basis of the decision which constitute the reasons in this case, set out certain facts from the separate interviews which on which it is said the applicant and his spouse did not agree. It is urged that the reasons do not refer at all to the many matters on which they were agreed. Moreover, it is urged, that some of the perceived discrepancies are contradicted by the record of the interview maintained by the applicant's counsel, a record appended to the applicant's affidavit. I am not persuaded that counsel's notes are to be relied upon as evidence. There is no affidavit of their maker attesting to their making or their truthfulness. They were not a document considered by the decision maker and were not brought to the officer's attention before the decisions were made. The notes do not form part of the record upon which the decisions are to be reviewed. (See Asafov v. Canada(M.E.I.), [1994] F.C.J. No. 713 (T.D.)(QL)).
[8] The officer's findings of discrepancies in answers provided by the applicant and his spouse were not the only factors taken into account in the assessment of whether their marriage should be considered genuine for purposes of immigration. The timing of the marriage soon after the denial of the application for leave and judicial review of the refugee application, perceived inconsistencies in the applicant's description of his relationship with another prior to his marriage, lack of ties between the applicant and his spouse's family, all were among factors indicating "insufficient evidence to show that the marriage was not entered into for the purpose of gaining immigration status", in the view of the immigration officer, leading to the refusal of the application under the In Canada Spouse or Common-Law Partner Class.
[9] The officer also listed factors considered that did, and those that did not, support the H & C application and concluded that insufficient H & C grounds existed to warrant exemption from the requirement to apply for permanent residence from outside Canada.
[10] In my opinion, the officer's decision was reasonable on the evidence reviewed in considering the applications, with one exception. That exception concerns an assessment of the applicant's credibility based on his comments recorded in previous proceedings about his relationship to another person before he met his wife.
[11] The decision of the officer includes the applicant's credibility as a factor that was not supportive of the H & C application, and it states:
In rendering this decision, I question PA's [i.e. principal applicant's] credibility. When applying for a visa overseas, PA declared himself to be engaged. At the refugee hearing in October 2003, PA testified that he was engaged informally to a Lebanese citizen. PA told me at the interview in March 2005 that he had never been engaged to be married or had been in a serious relationship with anyone before. Clearly these statements contradict one another.
[12] The same contradiction is referred to negatively in the decision that relates primarily to the In Canada Spouse or Common-Law Partner Class application. It is not the only factor relied upon but it is a significant one in both decisions. While there may be argument about its ultimate significance, there can be no doubt that the decision was based on the reading by the officer of file records of earlier proceedings involving the applicant, records not made by that officer but by others. It is urged that the applicant had no chance to explain that the earlier relationship reported from his previous testimony was not a formal step to a marriage in Lebanon. Those notes were relied upon without notice to the applicant or any opportunity offered to him to explain any perceived misunderstanding of the officer in relation to a matter that clearly affected the assessment of the marriage and whether it was or was not contracted with a view to gaining status for immigration purposes.
[13] I agree with submissions on behalf of the applicant that failure to indicate that information recorded by others from earlier interviews of the applicant would be relied upon, without any opportunity for him to explain any perceived misunderstanding, constituted a breach of natural justice for which the only appropriate remedy is to set aside the decision and remit the matter to the Minister for reconsideration by a different immigration officer.
ORDER
THIS COURT ORDERS that
[1] This application for judicial review is allowed.
[2] The decision of the respondent Minister's representative is set aside.
[3] The application to be considered for permanent residence from within Canada is remitted to the Minister for reconsideration by a different immigration officer.
"W. Andrew MacKay"
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