Date: 20100325
Docket: IMM-3965-09
Citation: 2010 FC 333
Ottawa, Ontario, March 25, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
HENRY
JESUS INFANTE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Infante claims his affair with his mistress ended years ago. His mistress says
it is still on-going. He says he is in love with his wife although they have
lived half a world apart for several years, and there is scant evidence of any
communication between them. His mother says he and his wife split up years ago.
These are the issues a visa officer had to face in considering Mr. Infante’s
wife’s application to sponsor him as a Canadian permanent resident. The visa
officer determined that he was not a “family member” within the meaning of
Section 4 of the Immigration and Refugee Protection Regulations as the
marriage had broken down years ago and the sponsorship was entered into
primarily for the purpose of giving Mr. Infante status or privilege under the Immigration
and Refugee Protection Act. This is a judicial review of that decision.
THE FACTS
[2]
Mr.
Infante is a citizen of Columbia who claims to have been
in a genuine marital relationship with Mery Veira Diaz since their marriage in
1980, except for a brief period of infidelity with Maria Mercedes Carreno
Gomez. Mr. Infante had two daughters, who are now 31 and 28, with Ms. Diaz, and
a son, now 19, with Ms. Gomez.
[3]
Ms.
Diaz left Columbia in 2002 for Canada and made a
claim for refugee protection which was granted in 2003. Her two daughters also
received refugee protection around the same time.
[4]
Shortly
after being granted refugee protection, Ms. Diaz applied for permanent
residence in Canada and listed
Mr. Infante as a family member. Although she became a permanent resident in
2004, Mr. Infante’s status as a family member remained outstanding primarily
out of concerns for possible criminal inadmissibility, which ultimately were
resolved in his favour.
[5]
Shortly
before Mr. Infante was to be interviewed, the visa officer received an email
from Ms. Gomez, who claimed she was currently Mr. Infante’s common-law spouse
and had been so for the past 22 years. Consequently, she was surprised to learn
of his application. She gave considerable particulars of their relationship
over time, including their current address. She asked that her name not be
given to Mr. Infante because she feared he would become violent.
[6]
During
the interview, the visa officer informed Mr. Infante that she had information
that he was still in a relationship with Ms. Gomez. She did not identify the
informant nor was she asked to. Mr. Infante admitted they had had a
relationship and a son together but claimed the relationship was long over,
even though they still worked together.
[7]
During
a break in the interview, the visa officer called Mr. Infante’s mother who said
that her son only had a brief marriage with Ms. Diaz and that they had
separated long ago.
[8]
When
Mr. Infante returned to the interview, the visa officer passed on the
information she had obtained from his mother. She also stated that she was
concerned with his nervousness and evasiveness and the lack of evidence that he
was still in a bona fide relationship with his wife. She said she was
going to deny him a visa.
THE ISSUES
[9]
The
fundamental issue in this judicial review is that of procedural fairness. Mr.
Infante takes the position that the informant should have been identified to
him so as to enable him to respond. Once procedural fairness has been
established, the courts should not speculate about what would have happened had
the information been provided. The only recourse is to refer the matter back to
another visa officer for redetermination (Cardinal v. Kent Institution,
[1985] 2 S.C.R. 643). This is not a case where, in any event, the outcome would
inevitably be the same (Mobil Oil Canada Ltd. v. Canada-Newfoundland
Offshore Petroleum Board, [1994] 1 S.C.R. 202, 111 D.L.R. (4th) 1, 163 N.R.
27).
DISCUSSION
[10]
Following
the visa officer’s negative decision, Mr. Infante was inadvertently provided
with the entire email from Ms. Gomez, not simply a redacted version.
[11]
The
general rule is that a court in judicial review bases itself on the record
which was before the original decision maker: Nametco Holdings Ltd. v. Canada (Minister of
National Revenue), 2002 FCA 149. There are,
however, exceptions. A party is entitled to go beyond the record if procedural
fairness is in issue: Jahazi v. Canada (Minister of
Citizenship and Immigration), 2010 FC 242 at para. 37. In this case,
Mr. Infante alleged breaches of procedural fairness both with respect to Ms.
Gomez and with respect to his mother.
[12]
As
regards his mother, he submitted that she was addled with age and, in any
event, always hated his wife. He later withdrew his allegations of procedural
unfairness with respect to her.
[13]
Procedural
fairness is contextual (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 1 Imm. L.R. (3d) 1).
The visa officer put it to him that he was still in a relationship with Ms.
Gomez, which he denied. Even if it could be argued, and I refrain from comment,
that Mr. Infante was not obliged to reveal what he would have said had he known
the identity of the informant, i.e. that his former mistress may have
been concerned about the future of the business in which they were involved, or
continuing financial support for their son, he cannot pick and choose. Having
initially alleged procedural unfairness on two counts, and providing new evidence
with respect to one, it is completely inappropriate that he then say nothing
with respect to the other.
[14]
Furthermore,
the visa officer also based her decision on other grounds, the information
received from Mr. Infante’s mother and the lack of communication with Ms. Diaz.
Although his apparent nervousness and evasiveness may not have been sufficient
in and of itself, it was an additional factor which the visa officer was
entitled to take into account.
[15]
All
and all, the decision was not unreasonable and should not be disturbed.
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