Date: 20120208
Docket:
IMM-3621-11
Citation:
2012 FC 174
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec,
February 8, 2012
PRESENT: The Honourable
Madam Justice Bédard
BETWEEN:
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TZUTZUQUI MEDINA CORONA
TZITZIJANICK GIRON MEDINA
JOSE CUAUHTEMOC GIRON MEDINA
PRUDENCIO DE JESUS DE LOS
SANTOS
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review under subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (Act), of a
decision rendered on May 26, 2011, by Suzanne Pelletier, Immigration Officer
(officer), who dismissed the application for permanent residence of Tzutzuqui
Medina Corona (Ms. Corona) and her children. The agent questioned the genuineness of the marriage of Ms. Corona
to Prudencio de Jesus de Los Santos (Mr. Santos).
I. Background
[2]
The
principal applicant, Mr. Santos, is originally from Mexico and is 27 years
old. He arrived in Canada on April 18, 2007. His refugee claim, filed on
June 5, 2007, was granted on January 26, 2010.
[3]
The
primary female applicant, Ms. Corona, is also originally from Mexico and
is 45 years old. She arrived in Canada on June 30, 2007, accompanied by
her children, who are now 22 and 10 years old, and made a refugee claim. Their application
was dismissed by the Refugee Protection Division of the Immigration and Refugee
Board (the Board) on August 26, 2009. An application for leave and
judicial review of that decision was dismissed on January 29, 2010.
[4]
Mr. Santos
and Ms. Corona met in August 2009 and were married on February 14,
2010, less than three months after Mr. Santos was granted refugee status
and Ms. Corona’s application for leave and for judicial review of the Board’s
decision denying her refugee claim was dismissed.
[5]
On
March 15, 2010, Mr. Santos filed an application for permanent
residence in the category “Protected Persons in Canada” and included Ms. Corona
and her children as dependants.
[6]
The
officer met with the couple on April 27, 2011, and interviewed them
separately. She dismissed the application for permanent residence for Ms. Corona
and her children on May 26, 2011. The application for permanent residence for
Mr. Santos was allowed by the officer at the first stage and that decision
is not challenged in this application for judicial review.
II. Impugned decision
[7]
The
officer dismissed Ms. Corona’s application for permanent residence on the
ground that her conjugal relationship with Mr. Santos was not genuine and
was entered into primarily for the purpose of acquiring a status or privilege
under the Act. She based her decision on the contradictions and inconsistencies
between the answers provided by Ms. Corona and Mr. Santos during
their interviews.
[8]
First,
the officer stated that the applicants had filed several documents
demonstrating their life together. She found that the
documents demonstrated that the applicants lived together but that this fact
did not make it a genuine relationship.
[9]
She then indicated that the contradictions in their answers led
her to question their relationship and added that she found it hard to believe
that their conjugal relationship was genuine.
[10]
The officer provided three examples of the contradictions she
identified and then added that other contradictions had been identified and
referred the reader to her notes, stating [Translation]
“see above notes”.
[11]
Based
on the contradictions identified, the officer considered that she found it hard to believe that their conjugal
relationship was genuine. The following were her conclusions:
[Translation]
. . . Although
I believe that they live under the same roof, that does not make their union a genuine
relationship and was entered into primarily for the purpose of acquiring a
status or privilege under the Act.
Given the contradictions
identified in the interviews and after considering all the evidence in the
record, I feel my concerns are significant enough to raise serious doubt as to
the true intentions of the primary applicant and his spouse. The
couple did not discharge the burden of showing to my satisfaction that the
conjugal relationship between them meet the criteria. …
III. Issues
[12]
Two
issues are raised on this application. The first
relates to the reasonableness of the officer’s decision. The applicants also criticize the officer for her attitude
and raise arguments that call into question her impartiality. It is therefore an issue of procedural fairness .
IV. Standards of review
[13]
It is well established that an immigration officer’s findings of
fact on a conjugal relationship are subject to the standard of reasonableness (Yadav
v Canada (Minister of Citizenship and Immigration), 2010 FC 140, at
para 50, 370 FTR 174 and Kaur v Canada (Minister of Citizenship and
Immigration), 2010 FC 417, at para 14 (available on CanLII). In applying this standard, the Court will intervene only if the
officer’s decision falls outside the range of possible, acceptable outcomes
which are defensible in respect of the facts and law, taking into account the
existence of justification, transparency and intelligibility within the
decision-making process (Dunsmuir v New Brunswick, 2008 SCC 9, at para
47, [2008] 1 RCS 190).
[14]
The issues of procedural fairness are reviewable on a standard of
correctness (Sketchley v Canada (Attorney General), 2005 FCA 404,
[2006] 3 FCR 392.
V. Analysis
A. Was the officer’s decision
reasonable?
(1) Applicants’ claims
[15]
The applicants argue that the officer failed to consider the
documentary evidence they filed and that corroborated the genuineness of their
conjugal relationship.
[16]
The applicants also criticize the officer for having based her decision
on insignificant contradictions that did not relate to fundamental elements and
that were not serious enough to find that their relationship was not genuine. They submit that the officer was overzealous for having found
insignificant contradictions in their testimony.
[17]
The applicants submit that the examples of contradictions that the
officer provided in her decision show that her analysis of the evidence was not
reasonable.
The applicants submit that two of the examples provided
contain errors and contradict the officer’s notes; a review of the officer’s
notes shows that there was no contradiction in the answers they provided.
They submit that the third example is
incomprehensible.
(2) Respondent’s claims
[18]
The respondent submits that the applicants provided inconsistent
and contradictory answers during their interviews and that these contradictions
were numerous and related to important elements of their relationship and their
respective families. The respondent further acknowledges
that one of the contradictions identified by the officer in her decision contradicts
the information recorded in her notes. However,
the officer’s notes describe several other contradictions and the officer
indicated in her decision that her findings were based on all the
contradictions.
[19]
The respondent also submits that it is incorrect to argue that the
officer did not take the documentary evidence into account: she noted that this
evidence existed and found that it showed that the applicants lived together. Furthermore, the officer was of the view that the fact that
the applicants lived together did not settle the issue of the genuineness of
their relationship.
[20]
Therefore, the applicant submits that the officer’s finding was
based on all the evidence and that it is reasonable.
VI. Discussion
[21]
Under subsection 21(2) of the Act, persons declared to be
refugees can obtain permanent residence if they have made an application in
accordance with the regulations.
[22]
Section 176 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the Regulations) provides that an applicant for
permanent residence under the “protected persons” category may include any
family member in the application. The expression “family
member” is defined in subsection 1(3) of the Act
and includes, among other things, the spouse or common-law partner. Section 4 of the Regulations also requires that the
spouses’ relationship be genuine:
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4. (1) For
the purposes of these Regulations,
a foreign national
shall not be considered
a spouse, a
common-law partner or
a conjugal partner
of a person if the marriage,
common-law
partnership or conjugal
partnership
(a) was
entered into primarily for the
purpose of acquiring
any status or privilege
under the Act; or
(b) is not genuine.
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4. (1) Pour
l’application du présent règlement,
l’étranger n’est pas
considéré
comme étant l’époux,
le conjoint de fait ou
le partenaire
conjugal d’une personne si le
mariage ou la
relation des conjoints de fait
ou des partenaires
conjugaux, selon le cas :
a) visait
principalement l’acquisition
d’un statut ou d’un
privilège sous le régime
de la Loi;
b) n’est pas authentique.
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[23]
The officer found that the applicants’ relationship was not
genuine and that it was entered into primarily for the purpose of acquiring a
status or privilege. I find that the officer did not
make any errors warranting the Court’s intervention.
[24]
First, I find that the allegation made as to how the officer’s
processed documentary evidence is without merit. The officer clearly indicated in her decision that the applicants had
submitted [Translation] “several
documents from their life together”. The
officer relied on these documents and found that they indeed showed that the
applicants lived together. She was also of the
view that the fact that the applicants live together was not in itself
sufficient to find that their conjugal relationship is genuine. I am of the view that there is nothing unreasonable in this
finding.
[25]
The applicants also submit that the contradictions raised by the
officer in her decision were insignificant elements and that the examples of
contradictions that she provided contained errors and described contradictions
that were not contradictions. Here are the examples
the officer provided:
[Translation]
- I asked
the applicant since when his spouse had lived [in their current residence]. The
applicant told me since June 30, 2007, although the female applicant told
me that she had lived at that address since September 2007. When confronted, the couple stated that they had never
talked about that—this explanation was not convincing.
- I asked
the applicant whether his spouse was with him during his RPD hearing. He
stated that his spouse was working and the female applicant stated that her
spouse was alone at the hearing and that they were only engaged. Although they were confronted, they did not convince me.
- I asked
the couple for
the date when they first met. The applicant stated I think the first week in
August 2007, the female applicant stated in August 2009 I no longer
remember the date. No explanation was provided in that respect.
[26]
The first example is concerning the date from which Ms. Corona
lived in their current domicile. The officer’s
notes indicate that Mr. Santos’ exact answer was: [Translation] “March 1, 2010—my spouse has lived at this
address since her arrival in the country, I think the date is June 30,
2007”. I agree that Mr. Santos provided
an approximate answer and that the inconsistency relates to an event that is
more than two years before the applicants met. Therefore,
I find that, in this case, it was not a determinative contradiction.
[27]
The applicants submit that the second example does not describe
any contradiction between the answers provided by Mr. Santos and Ms. Corona. I agree that the example as described by the officer does
not clearly show any contradiction. Further,
the officer’s notes clearly indicate that Mr. Santos and Ms. Corona
provided inconsistent answers:
[Translation]
Q. Did you attend the
hearing?
Ms. Corona’s answer: He
preferred to go alone. At that time we were only engaged.
Mr. Santos : No, my
spouse did not attend.
I think she was working at that time.
[28]
As to the third example, the officer clearly erred since her notes
do not raise any contradiction between the answers provided by the applicants.
[29]
Therefore, I find that the officer made some errors in her
overview of examples and that she may not have chosen the best examples. However, I find that these errors are not determinative and
do not make her decision unreasonable.
[30]
The words of Mr. Justice Iacobucci in Law Society of New
Brunswick v Ryan, 2003 SCC 20, at para 56 (available on CanLII) and
restated by Mr. Justice Pinard in Herrera Rivera v Canada (Citizenship
and Immigration), 2010 FC 570, at para 18 (available on CanLII) are
entirely appropriate to the situation in this case:
56 This does not mean that every element of the reasoning
given must independently pass a test for reasonableness. The question is rather
whether the reasons, taken as a whole, are tenable as support for the decision.
At all times, a court applying a standard of reasonableness must assess the
basic adequacy of a reasoned decision remembering that the issue under review
does not compel one specific result. Moreover, a reviewing court should not
seize on one or more mistakes or elements of the decision which do not affect
the decision as a whole.
[31]
I also agree with the statements of Mr. Justice Barnes in Gan
v Canada (Minister of Public Safety and Emergency Preparedness),
2006 FC 1329, 153 ACWS (3d) 185:
16 It is not sufficient for an
Applicant seeking judicial review to identify errors with respect to a few of
the Board’s findings of fact or some weaknesses in its analysis of the
evidence. A decision will be
maintained if it can be seen to be supported by other factual findings
reasonably made.
17 In this case, the Board did make
a few minor errors in its factual holdings and observations, but they are not
of sufficient import that they undermine the Board’s overall conclusion that
Mr. Gan was not believable. Indeed, the Board’s assessment of his credibility was well
supported by a significant number of adverse findings and, therefore, should
not be disturbed.
[32]
In this case, the officer erred in raising a contradiction that
was not a contradiction and she mis-stated one of the other contradictions that
she identified, but she did not make an error in her analysis of the evidence. Further, the officer’s notes raise other contradictions
between the answers provided by Ms. Corona and Mr. Santos with
respect to several questions. The officer
indicated after every question if the answers contained inconsistencies or
contradictions. I agree that some inconsistencies
are inconsequential and relate to insignificant elements, but others seem to me
to be more important. The following are some examples:
- Ms. Corona did not provide the correct name of one of
Mr. Santos’s sisters;
- Ms. Corona did not provide the same answer as Mr. Santos
regarding the occupation of his two sisters;
- Ms. Corona did not provide the same answer as Mr. Santos
regarding the people with which his mother lived;
- Ms. Corona and Mr. Santos provided different dates
for when they began living together;
- Ms. Corona and Mr. Santos provided different
answers as to the cost of their monthly rent;
- Mr. Santos was not able to provide the names of all of
Ms. Corona’s brothers (4) and did not provide the same answers as
Ms. Corona regarding the work performed by her brothers;
- Mr. Santos was not able to say what grade Ms. Corona’s
son was in;
- Mr. Santos stated that he had no idea how long Ms. Corona
had been working, while she stated that she had been working since
November 2009, after having met Mr. Santos.
[33]
With respect, these few examples are not insignificant and relate
to important elements that show a lack of familiarity with the applicants’ respective
families and even with elements relating to daily life such as the cost of rent
and the grade that Ms. Corona’s son was in. The officer’s notes show contradictions that are difficult to ignore.
I think that it is not unreasonable to find that the inconsistencies
taken as a whole raise real concerns as to the genuineness of the relationship
between Mr. Santos and Ms. Corona.
[34]
The officer’s reasons are not perfect, but I feel that her
decision taken as a whole, in light of the proof and her notes, show that her
reasoning falls within a range of possible, acceptable outcomes. The statements of Ms. Justice Abella in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, at para 15 and 18 (available on CanLII), are directly
applicable to this matter:
15 In assessing whether the decision
is reasonable in light of the outcome and the reasons, courts must show “respect
for the decision-making process of adjudicative bodies with regard to both the
facts and the law” (Dunsmuir, at para 48). This means that courts should
not substitute their own reasons, but they may, if they find it necessary, look
to the record for the purpose of assessing the reasonableness of the outcome.
Abella J. also cited with
approval the respondent’s comments, at para 18:
. . . I found
the description by the Respondents in their Factum particularly helpful in
explaining the nature of the exercise:
When reviewing a decision of
an administrative body on the reasonableness standard, the guiding principle is
deference. Reasons are not to be reviewed in a vacuum – the result is
to be looked at in the context of the evidence, the parties’ submissions and
the process. Reasons do not have to be
perfect. They do not have to be comprehensive. [para
44]
[35]
There
is therefore no reason for the Court to intervene on this ground.
B. Did the officer adopt an
attitude that raises a reasonable apprehension of bias?
[36]
In their factums, the applicants criticized the officer’s attitude
during the hearing and questioned her impartiality, without saying so clearly. The applicants’ counsel did not dwell on this point at the
hearing.
[37]
The test for bias was endorsed in Committee for Justice and
Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369, at page
394 (available on CanLII) :
40 The proper test
to be applied in a matter of this type was correctly expressed by the Court of
Appeal. As already seen by the quotation above,
the apprehension of bias must be a reasonable one, held by reasonable and right
minded persons, applying themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal, that test is “what
would an informed person, viewing the matter realistically and practically—and
having thought the matter through—conclude. . . .
[38]
In this case, there is nothing in the officer’s decision or in the
affidavits that were filed that can support any finding of bias on the part of
the officer against the applicants. I find that this
ground to intervene is without merit.
[39]
No question for certification was proposed by the parties and this
matter does not contain any serious question of general importance.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application
for judicial review is dismissed.
“Marie-Josée Bédard”
Certified true
translation
Catherine Jones,
Translator
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