Date: 20100222
Docket: IMM-2617-09
Citation: 2010 FC 190
Ottawa, Ontario, February 22, 2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
HAMAWATTIE
MANBODH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision by an
immigration officer (the officer) at Citizenship and Immigration Canada dated
April 17, 2009, wherein the officer rejected the applicant’s application for
permanent residence under the spouse of common-law partner in Canada class.
Factual Background
[2]
The
applicant is a citizen of Guyana who came to Canada on August
22, 2001 with her own valid Guyanese passport. After her arrival, the applicant
went to her sister Madhumattie Hardiyal’s home and she remained with her sister
until she filed a refugee claim on September 19, 2002.
[3]
After
filing her claim, the applicant obtained a work permit. She has worked for
various employers since that time. She currently works for a window and door
manufacturing company.
[4]
The
applicant met her spouse, Bobby Allard, in March 2005. The couple states the
common-law relationship commenced shortly thereafter. The couple rents a room
and live upstairs at the applicant’s sister’s home.
[5]
The
applicant states that neither her spouse nor herself have been previously
married and neither one of them have children. The applicant and her spouse
plan to marry in the summer of 2010.
Impugned Decision
[6]
In
order to qualify to become a member of the spouse or common-law partner in
Canada class, paragraph 124(a) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations) requires the applicant
to demonstrate she is “the spouse or common-law partner of a sponsor and
cohabit with that sponsor in Canada”. The officer found that the couple’s
common-law union does not appear to be genuine. The officer concluded it had
not been established the couple was living together.
Respondent’s Arguments
[7]
The
respondent submits the determination of questions of fact is at the heart of an
officer’s jurisdiction. The Supreme Court of Canada recently confirmed that
factual findings made by tribunals are owed considerable deference and
reviewing courts cannot substitute their own appreciation of the appropriate
solution.
[8]
This
Court has found that an officer has well-established expertise in the
determination of questions of fact. Moreover, it has been recognized and
confirmed that, with respect to assessment of evidence, the Court may not
substitute its decision for that of the officer, when the applicant has failed
to prove that the officer’s decision was based on an erroneous finding of fact
it made in a perverse or capricious manner or without regard for the material
before it (Aguebor v. Canada (Minister of Employment and Immigration),
(1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.); Grewal v. Canada
(Minister of Employment and Immigration), [1983] F.C.J. No. 129 (QL)
(F.C.A.)).
Analysis
[9]
The
applicable standard of review in the case at bar for a finding, pursuant to
paragraph 124(a) of the Regulations in determining whether there was
sufficient evidence to prove the applicant cohabited with her sponsor in Canada,
is the newly-minted standard of reasonableness (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
[10]
The
relevant provision of the Regulations 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;
(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.
|
[11]
Failure
to meet one of the above-mentioned conditions is fatal to the applicant’s
application for permanent residence. Essentially, the applicant is asking this
Court to consider the concerns raised by the officer and the explanations
provided by the applicant in reply and to reweigh those explanations and arrive
at a different conclusion, which is not the role of this Court.
[12]
The
applicant states that the Board erred in law because it misconstrued the
evidence.
[13]
Having
carefully considered the decision of the officer, the Court cannot conclude that
the officer based his decision on an erroneous finding of fact made in a
perverse or capricious manner or without regard to the evidence before it.
[14]
The
officer’s decision was not based primarily on the applicant’s failure to
produce a particular document such as a joint telephone, rent or utility receipt.
Rather, the officer concluded there was insufficient credible evidence proving
joint residency.
[15]
The
particular living arrangements of the applicant and her sponsor were considered
by the officer. However, the lack of evidence of cohabitation, coupled with the
applicant’s apparent lack of knowledge about her sponsor’s employment and whereabouts,
led the officer to reasonably believe the common-law relationship was not
genuine and the couple was not cohabitating. More particularly, the applicant
was unable to provide accurate employment details about her spouse. When the
officer called the couple at home on April 17, 2009, he asked the applicant to
speak with Bobby Allard. The applicant said he had started working at Canstaff
as a forklift operator two days ago. The applicant gave the officer a phone
number to call Canstaff but the number was the applicant’s immigration
consultant. The officer called the applicant again and she gave him the phone
number for Canstaff. When the officer contacted Canstaff, the dispatcher told
the officer there was no Bobby Allard working there as a forklift driver and he
adduced the company had not hired anyone in months because of recession.
[16]
In
my view, the applicant failed to provide valid evidence that this Court should
intervene. It was not unreasonable for the officer to conclude that
cohabitation for the purposes of the Regulations at para. 124 had not been
established. The Court finds that the outcome falls within a range of possible,
acceptable outcomes which are defensible in fact and in law (Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339 at par. 45-46, 49).
[17]
For
the above reasons, this application for judicial review is dismissed. No issue
is raised for certification purposes and this case does not contain any.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. No question is certified.
“Richard
Boivin”
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