Date: 20120110
Docket: IMM-1595-11
Citation: 2012 FC 23
Ottawa, Ontario, this 10th
day of January 2012
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Hardeep SINGH
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
On
March 10, 2011, Hardeep Singh (the “applicant”) filed the present application for judicial
review of the decision of Manoula Soumahoro, immigration officer for Citizenship
and Immigration Canada (the “officer”), pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act , S.C. 2001, c. 27 (the “Act”). The officer
refused the applicant’s application for permanent residence under the spousal
class, doubting the genuineness of his marriage.
[2]
The applicant
is a citizen of India who arrived in Canada on February 2, 2006. On March 14, 2006, he
claimed refugee status. On September 8, 2006, the applicant divorced his wife who
at the time was living in the United States.
[3]
In
February 2007, the applicant claims to have met his second and current spouse,
Amarjit Kaur, there being a seventeen year age difference between the two. In
April 2007, Mrs. Kaur obtained Canadian citizenship. In April of the
following year, the applicant’s claim for refugee status was denied.
[4]
On
August 9, 2008, the couple got married, this being Mrs. Kaur’s third
marriage. As of this day, the couple claims they began to live together.
[5]
On
November 7, 2008, the applicant was informed of his eligibility for a
Pre-Removal Risk Assessment (“PRRA”), which was ultimately denied on March 15,
2010. On April 1, 2009, the applicant applied for permanent residence under the
spousal class.
[6]
The applicant’s
PRRA claim being denied, his removal was set for May 21, 2010. However, the applicant
did not report for his removal, now claiming in his Reply that he could not
leave his wife alone and was awaiting the processing of his permanent residence
application. Consequently, on May 31, 2010, a warrant was put out for his
arrest. On February 17, 2011, the applicant turned himself in at Citizenship
and Immigration Canada headquarters.
[7]
On
February 21, 2011, the applicant and his spouse were separately interviewed by
the officer with respect to the applicant’s permanent residence application, in
order to determine whether the requirements of section 124 of the Immigration
and Refugee Protection Regulations, SOR 2002-227 (the “Regulations”) were
met. The couple was asked the same questions and was subsequently confronted
with their differing answers, being allowed to clarify these inconsistencies.
The applicant’s legal counsel was present at this interview, as was an
interpreter.
[8]
On
March 3, 2011, the officer informed the applicant by letter that his
application for permanent residence in the spousal class was refused. In his
letter, the officer states “[a]fter a careful and sympathetic review of your application,
it has been concluded that you do not meet the requirements of the class”; he
considered the applicant to be of bad faith pursuant to subsection 4(1) of the Regulations.
* * * * * * * *
[9]
Considering
the parties’ representations, the issues can be summarized as follows:
i.
Should this Court
exercise its discretion and refuse to consider the applicant’s application for
judicial review because the latter does not have clean hands?
ii.
Did the officer
err in his assessment of the genuineness of the applicant’s marriage?
* * * * * * * *
i. Should this Court exercise
its discretion and refuse to consider the applicant’s application for judicial
review because the latter does not have clean hands?
[10]
The
respondent alleges that the applicant does not have clean hands for he made
false representations and failed to appear for his removal order. Such
misconduct, in his opinion, requires this Court to refuse to consider the
present application for judicial review and dismiss the applicant’s application
altogether.
[11]
The respondent
also identifies a misrepresentation made initially by the applicant’s wife. In
the latter’s solemn declaration, she stated that she had no family, that they
had all passed away. The applicant also claimed that his wife’s family passed
away, when declaring in a form that they were deceased, in response to whether
her family attended the wedding ceremony. However, this alleged misrepresentation
was not discussed by the officer.
[12]
In
his Reply, the applicant argues that this Court should proceed and decide on
the merits of his application for judicial review. To do otherwise would be an
unreasonable exercise of judicial discretion, contrary to the existing
jurisprudence on clean hands.
[13]
I do not believe this to be a case where this Court should
exercise its discretion and refuse to hear the applicant’s application for
judicial review. Balancing the need to maintain the integrity of administrative
and judicial processes and prevent the abuses of these processes, and the need
to preserve the public interest in the lawful conduct of the government and the
protection of human rights, the applicant’s misconduct does not warrant the
application of the clean hands doctrine.
[14]
While
the respondent relies on Wong v. Minister of Citizenship and Immigration,
2010 FC 569, [Wong] to encourage this Court to consider evidence and
information that was not before the officer, nor formed part of the latter’s decision,
the precise statement of this Court at paragraph 12 was that:
having
decided to undertake judicial review, the Court must confine itself to the
facts on which the administrative decision was made - except in cases where
either the decision-maker’s jurisdiction or the fairness of the administrative
procedure is called into question.
[15]
The applicant is not without blame, failing to report for his
removal. He is definitely guilty of misconduct, and contrary to the applicant’s
allegations, this Court can take into account the applicant’s immigration
history. The officer did not mention the applicant’s immigration history in his
decision because he was assessing the genuineness of the applicant’s marriage.
His history was irrelevant in making this determination. Nonetheless, the
applicant’s immigration history was summarized in the officer’s notes.
Therefore, while the applicant acted in contravention of the immigration laws
of Canada, he remedied his misconduct in voluntarily turning himself in after a
warrant against him had been issued, as in K.M.P. v. Minister of Citizenship
and Immigration, 2011 FC 135. Unlike in Wong, relied on by the
respondent, there is no outstanding warrant against the applicant and he is not
in hiding. Thereby, he has not shown a complete disregard for the immigration
laws of Canada. For these reasons, his application will be considered on its
merits.
ii.
Did the officer err in his assessment of the genuineness of the
applicant’s marriage?
[16]
The
applicable standard of review to this issue is reasonableness. The genuineness
of a marriage is a question of fact (Chen v. Minister of Citizenship and
Immigration, 2011 FC 1268 at para 4; Essaidi v. Minister of Citizenship
and Immigration, 2011 FC 411 at para 10 [Essaidi]; Kaur v.
Minister of Citizenship and Immigration, 2010 FC 417 at para 14 [Kaur];
Wiesehahan v. Minister of Citizenship and Immigration, 2011 FC 656 at
para 37; Valencia v. Minister of Citizenship and Immigration, 2011 FC
787 at para 15 [Valencia]). Hence, such
determinations are left to the officer, as is the assessment of the evidence (Minister
of Citizenship and Immigration v. Tirer, 2010 FC 414 at para 11 [Tirer]).
[17]
Thereby,
these factual determinations are to be reviewed on a standard of reasonableness
(Canada (Minister of
Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir];
Yadav v. Minister of Citizenship and Immigration, 2010 FC 140 at para 50
[Yadav]). As a result, this Court can only intervene if the officer’s
determinations, and thereby his decision, are based on erroneous findings of
fact made in a perverse, capricious manner or if made without regard to the
material before him (Tirer at para 11).
[18]
The applicant
argues that the officer committed a reviewable error by not considering the
documentary evidence, qualifying it as purely “complementary”. Such a qualification,
he believes, constitutes a reviewable error, relying on Garcia v. Minister
of Citizenship and Immigration, 2009 FC 1241, in support of his
allegations. The applicant further contends that the officer’s justification
for his preference for the evidence ascertained during the interview reflects a
flawed understanding of the documentary evidence.
[19]
The respondent
argues that the officer’s decision as to a lack of genuineness leading to the
rejection of the applicant’s application for permanent residence was justified,
being based on a reasonable assessment of the evidence before him. The applicant
had the onus of proving the genuineness of his marriage and that it was not
entered into for the purpose of acquiring status or privilege under the Act.
[20]
In
determining whether to grant an application for permanent residence as a member
of the spousal class, an officer has to determine whether the marriage is
genuine and was not entered into primarily for the purpose of acquiring status
or privilege under the Act (subsection 4(1) of the Regulations; Kaur at
para 15; Yadav at para 54). If the evidence leads the officer to conclude
that the marriage is not genuine, it is presumed that such a union was entered
into for the purpose of acquiring status in Canada (Kaur at para 16; Sharma
v. Minister of Citizenship and Immigration, 2009 FC 1131 at para
18).
[21]
The officer’s
decision must be assessed as a whole (Valencia at para 25). The officer cannot microscopically
analyze the evidence, nor can this Court dissect the officer’s decision (Carrillo
v. Minister of Citizenship and Immigration, 2004 FC 548). There may always
be conflicting evidence and consequently a range of differing conclusions:
anyone might reach a different conclusion (Miranda v. Canada (M.E.I.)
(1993), 63 F.T.R. 81). After reading the decision as a whole, it appears that
the officer considered the totality of the evidence before him.
[22]
Unlike
in Terigho v. Minister of Citizenship and Immigration, 2006 FC 835, the officer
in the present case did consider and mention the documentary evidence provided
by the applicant. However, the officer gave it lesser weight, relying on the
inconsistencies at the interview. Moreover, in his decision, the officer also
asserted not having been convinced by the applicant’s explanations of these
inconsistencies.
[23]
It
was wrong of the officer to refer to the documentary evidence as complementary,
for the evidence must be assessed as a whole. But the officer’s use of this
qualifier does not in itself render his whole decision unreasonable. While he
may have inadequately expressed himself, reading his decision, he does appear
to have considered the evidence as a whole.
[24]
This
Court should be hesitant to transpose the holdings from other cases, for the
issue of genuineness is very fact driven. In this case, the officer took issue
with eight questions out of thirty-nine. Were these inconsistencies significant
enough for him to conclude a lack of genuineness based solely on these
inconsistencies, considering the documentary evidence was accepted as “solid”?
I do not think they were. They do not reveal little knowledge of each other or
a sham. The wife forgot to mention they ate lentils: it seems reasonable that
this oversight was because they eat lentils every day, as explained by the applicant.
Neither can identify by name the roads surrounding the apartment, but can they
recollect street names period? The applicant’s wife seems to have trouble with
locations in general, not being able to identify where her temple is located.
However, the discrepancies as to the description of their apartment are
somewhat more concerning. But can this alone justify a finding of lack of
genuineness based on a balance of probabilities (Essaidi at para 21; Froment
v. Minister of Citizenship and Immigration, 2006 FC 1002 at para
19)? Perhaps if the officer had specifically addressed the applicant’s
justifications. However, he only states that he does not consider them
convincing, without further explanation. His reasoning is not clear.
[25]
Thus,
while the assessment of the evidence is left to the officer and deference is
owed to his factual determinations, I do not think his decision is
intelligible, nor justifiable, lacking transparency, and thereby falling
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir at para 47). I do not think the
officer’s decision as to a lack of genuineness was reasonable: the officer does
not explain why he rejected the applicant’s explanations, certain of the
targeted inconsistencies are minor and the documentary evidence was accepted
but considered “complementary”.
* * * * * * * *
[26]
For
the above-mentioned reasons, the application for judicial review is allowed and
the matter is sent back to a different officer for new consideration and
determination.
JUDGMENT
The application for judicial
review of the decision of Manoula Soumahoro, immigration officer for Citizenship
and Immigration Canada, pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, is allowed. The matter is sent
back to a different officer for reconsideration and redetermination.
“Yvon
Pinard”
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