Date: 20120628
Docket: IMM-8292-11
Citation: 2012 FC 828
Ottawa, Ontario,
June 28, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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ZAFAR
CHAUDHARY
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Applicant
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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 JUDGEMENT AND JUDGMENT
[1]
The applicant applied for permanent resident
status under the spouse or common law partner in Canada class. By letter dated October 25, 2011 an officer refused his
application stating that he had not shown that he met the requirement in s.
124(a) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 which requires that he be “the spouse or common-law partner of a
sponsor and cohabit with that sponsor in Canada.”
[2]
Section 124(a) of the Regulations has two components that an
applicant must meet. He must establish that he is a spouse and that he
cohabits with his spouse. It is open to an officer making decisions under this
provision to conclude that an applicant is not a spouse because the marriage is
not genuine, or to conclude that although it is a genuine marriage, there is no
cohabitation. In this case, the officer specifically informed the applicant
that he had failed to meet the requirement in s. 124(a) of the Regulations
“because you do not cohabit with your spouse in Canada.” No mention was made
of the bona fides of his marriage.
[3]
For the reasons that follow, the decision of the
officer is set aside.
Factual
Background
[4]
Mr. Chaudhary is a citizen of Pakistan.
He came to Canada in December 2008 and filed a refugee claim. He met a
Canadian permanent resident and citizen of the Philippines and they were
married on January 9, 2010. Thereafter he discontinued his refugee claim and
filed an application for permanent residence as a member of the in Canada
spousal class.
[5]
Unknown to the applicant and his spouse, an anonymous person had
informed Citizenship and Immigration Canada that their marriage may not be
genuine. The Field
Operations Support System (FOSS) notes produced in this application show
the following entry on June 29, 2011:
APPLICATION FORWARDED FROM CPC
VEGREVILLE TO LOCAL CIC REGINA FOR PROCESSING. APPLICATION REQUESTED BY LOCAL
CIC DUE TO CONCERNS THAT THIS MAY BE A MARRIAGE OF CONVENIENCE. PRELIMINARY
INVESTIGATION BY CBSA FROM A TIP SHOWS THIS RELATIONSHIP MAY NOT BE GENUINE.
SUGGESTED THAT INTERVIEWS BE CONDUCTED BEFORE ANY DECISIONS ARE MADE.
[6]
An investigation followed and the officer who
made the decision under review interviewed the applicant and his spouse
separately.
[7]
It is of note that the FOSS notes show that when
the officer interviewed the spouse she “EXPLAINED PURPOSE OF INTERVIEW WAS TO
ASSIST ME IN THE DECISION MAKING PROCESS REGARDING THE BONAFIDES OF HER
MARRIAGE TO ZAFAR.” Similarly, when she interviewed the applicant she noted
that she “EXPLAINED TO CLIENT THE PURPOSE OF THIS INTERVIEW WAS TO GARNER
INFORMATION TO DETERMINE IF HE WAS INVOLVED IN A BONSFIDE [sic] MARITAL
RELATIONSHIP WITH HIS WIFE.”
[8]
The officer asked each the usual questions going
to the bona fides of a marriage, such as how they met, when they were
married, their previous lives, bank accounts, and their living arrangements.
The officer noted in the record that the answers of the applicant and his wife
to the questions asked were similar but noted “THERE WAS A LENGTHY PERIOD FOR
THE CLIENT AND HIS SPOUSE TO GET THEIR STORIES STRAIGHT.”
[9]
In response to questions relating to their
living arrangements, the officer was informed that the applicant had recently
moved to Landis in order to take employment. He returned to his wife in Regina every two weeks or so. The officer
was also made aware that his spouse was travelling to Landis the weekend after
her interview to be with him.
[10]
The conclusion the officer reached, as recorded
in the FOSS notes, is as follows: “I DO NOT FIND THAT THIS RELATIONSHIP IS
BONAFIDE; CLIENT AND SPONSOR HAVE NOT PROVEN THAT THEY ARE FINANCIALLY,
EMOTIONALLY AND PHYSICALLY DEPENDENT UPON EACH OTHER.”
[11]
However, the decision letter sent to the
applicant makes no reference to any concerns regarding the bona fides of
the marriage; rather it states that the application is rejected “because
you do not cohabit with your spouse in Canada [emphasis added].” Although the
FOSS notes indicate that the officer had concluded that the marriage was not bona
fide, the decision letter does not state that the application was rejected
on that basis; rather it states that lack of cohabitation is the only
reason for rejecting the application.
[12]
As the decision letter gives no explanation for
the conclusion that the couple are not cohabiting, one may turn to the FOSS
notes. However, the FOSS notes make scant reference to the issue of
cohabitation. It is not possible from the FOSS notes to determine on what
basis the officer concluded that the applicant and his spouse were not
cohabitating. Nor is it possible to determine what definition of “cohabit” the
officer was using. Temporary and short separations, of the sort that appears
to have been the situation here, are permissible: Ally v Canada (Minister of Citizenship and
Immigration), 2008 FC 445. The respondent
recognizes this as its manual for processing in Canada spousal applications states:
While
cohabitation means living together continuously, from time to time, one or the
other partner may have left the home for work or business travel, family
obligations, and so on. The separation must be temporary and short.
[13]
The disconnect between the decision letter sent
to the applicant and the FOSS notes and the lack of any serious analysis of the
cohabitation of the applicant and his spouse renders the decision
unintelligible.
[14]
It was submitted that notwithstanding that the
decision letter makes no reference to any finding as to the bona fides
of the marriage, the Court ought to look to the FOSS notes and uphold the
decision on that basis. I am unable to accept that submission as it requires
speculation by a judge as to the basis of the decision under review. The
decision letter sent to the applicant is presumed to set out the reason for the
rejection of his application. If it does not mention other or different
reasons set out in the FOSS notes that may be because the officer inadvertently
failed to include them, or it may be because the officer changed her mind as to
the basis of rejection in the interval between creating the FOSS notes and
writing the decision letter. The Court has no way of knowing and cannot
speculate on the “real” reasons for the rejection.
[15]
The decision rendered is unintelligible and thus
unreasonable, and it cannot stand.
[16]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application for judicial review is allowed, the
officer’s decision is set aside, the applicant’s application for permanent resident
status under the spouse or common law partner in Canada class is remitted to a different officer for decision, and no
question is certified.
"Russel W. Zinn"
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