Cissé v. Canada (Minister of Citizenship and Immigration), 2005 FC 424

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2005 FC 424

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Date: 20050331

Docket: IMM-5957-04

Citation: 2005 FC 424

BETWEEN:

ABDELKADER CISSÉ

Applicant

- and -

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER

PINARD J.

[1] This is an application for judicial review of a decision by an immigration officer (the officer) of Citizenship and Immigration denying the applicant's application for permanent residence in Canada.

[2] Abdelkader Cissé (the applicant) is a citizen of Niger. He came to Canada in August 1995 as a student. He met Jessica Bouchard (the sponsor), a Canadian citizen, on July 14, 2002. They were married on May 2, 2003.

[3] The applicant applied for permanent residence on June 18, 2003, based on the fact that he was a member of the spouse or common-law partner in Canada class. The officer denied his application, determining that he was not a member of that class pursuant to paragraph 124(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227, (the Regulations) since he had not established that he lived with the sponsor.

[4] The relevant provision of the Regulation is the following:

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;

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;

[5] The applicant contends that the officer was negatively predisposed toward him and his wife when she criticized them for amusing themselves and laughing a lot. The applicant saw that as a sign of a decision lacking impartiality.

[6] In order for such an allegation of reasonable fear of bias to be successful, the applicant must establish that an informed person, viewing the matter realistically and practically - and having thought the matter through - would conclude that it is likely that the decision-maker did not render a fair decision ([1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369). The allegation cannot be based on an applicant's mere suspicion or mere impressions (Arthur v. Canada (Attorney General) (2001), 283 N.R. 346 (F.C.A.)). In absence of evidence to the contrary, it must be presumed that a decision-maker is acting impartially. To rebut that presumption, the applicant must present more than vague allegations of bias - which was not done in this case.

[7] Further, the officer's decision was based on a major contradiction between the applicant's statements and those of the sponsor. In fact, the applicant said that he was studying, but the sponsor stated to the contrary that he was no longer studying (the written error that the officer corrected on this point does not diminish the probative value of the contradiction which, incidentally, is not denied). Such a contradiction is inconsistent with the individuals in question living together.

[8] Under the circumstances, in my opinion the decision is based on a significant piece of evidence emerging from the applicant and sponsor's statements, which prevents me from finding that it is patently unreasonable.

[9] Accordingly, the intervention of this Court is not warranted and the application for judicial review is dismissed.

"Yvon Pinard"

Judge

OTTAWA, ONTARIO

March 31, 2005

Certified true translation

Kelley A. Harvey, BCL, LLB

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET: IMM-5957-04

STYLE OF CAUSE: ABDELKADER CISSÉ v. MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: February 23, 2005

REASONS FOR ORDER Pinard J.

DATE OF REASONS: March 31, 2005

APPEARANCES:

Luc R. Desmarais FOR THE APPLICANT

Steve Bell FOR THE RESPONDENT

SOLICITORS OF RECORD:

Luc R. Desmarais FOR THE APPLICANT

Montréal, Quebec

John H. Sims, Q.C. FOR THE RESPONDENT

Deputy Attorney General of Canada