Date: 20090409
Docket: IMM-3991-08
Citation: 2009 FC 360
Ottawa, Ontario, April 9, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
CHRISTINA
SANTOS
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision dated August 22, 2008, refusing
the applicant Christina Santos’ application for permanent residence on the
grounds that she did not meet the admissibility requirements of section 72(1)(e)(i)
of the Immigration and Refugee Protection Regulations, SOR 2002-227 (the
Regulations).
BACKGROUND
[2]
Ms.
Santos is a citizen of the Philippines. She applied for
permanent residence status under the IRPA Live-in Caregiver Class program
(LCP). Ms. Santos completed the LCP in July 2004. She then applied for and
was approved in principle for permanent residence in January 2005.
[3]
In
2005, Ms. Santos learned that her husband was living with another woman and had
a child with her. She returned to the Philippines in 2006 to
visit her children. She begged her husband to come back but he refused.
[4]
In
2007, Citizenship and Immigration Canada requested information regarding the
current status of her relationship with her husband. Ms. Santos wrote a letter
stating that she and her husband were still married. In 2008, she learned that
Mr. Santos had another child with his new partner.
[5]
On
June 24, 2008, Citizenship and Immigration Canada sent Ms. Santos a “fairness
letter” advising her that Mr. Santos had committed a criminal act, and was
therefore inadmissible to Canada, which by default made Ms. Santos
inadmissible. The letter invited her to respond. She contacted Mr. Santos and
agreed to terminate their relationship. He sent her his court records, and an
affidavit giving her custody and guardianship of their children.
[6]
Ms.
Santos understood the June 24, 2008 letter to be requiring her to submit a new
application for permanent residence, and therefore filed a new application. Her
second application included her three children as applicants, but excluded her
spouse. She included a cover letter dated July 7, 2008 explaining the
relationship breakdown and the affidavit from her spouse giving up legal
custody and guardianship of their children. She also submitted her spouse’s
court records, which indicated that he did not have a criminal record. Her
application for permanent residence was refused on August 22, 2008. Ms. Santos
applied for reconsideration of that application on August 27, 2008.
[7]
Ms.
Santos filed for divorce in Ontario on September 3, 2008.
DECISION UNDER REVIEW
[8]
The
Immigration Officer found that Ms. Santos did not meet the requirements of the
Live-in Caregiver Program class for permanent residence because her husband was
found to be inadmissible under s.36(1)(c) of the Immigration and Refugee
Protection Act, S.C. 2001, c.27 (IRPA).
[9]
The
Immigration Officer noted that Ms. Santos was approved in principle on January
26, 2005 for permanent residence, along with her three children and husband who
lived in the Philippines.
[10]
The
Immigration Officer noted in the decision that Ms. Santos has submitted a new
application which listed her three children as accompanying and her husband as
non-accompanying. However, the Immigration Officer refused the new application
because the “information contradicts statements previously made by the
applicant”.
[11]
The
Immigration Officer summarized the history of the application with regard to
Ms. Santos’ husband. The Immigration Officer noted that when interviewed by
the Manila office, the
husband had stated that his wife no longer supported him and that he was no
longer the legal guardian of the children he had with Ms. Santos. The Officer
does not appear to have given any weight to the fact that this evidence
coincides with evidence given by Ms. Santos on the new application. The Officer
engaged in a selective analysis of the evidence, highlighting previous evidence
contradicting Ms. Santos’ evidence of the marriage breakdown, while failing to
consider evidence corroborating her July 7, 2008 statements explaining the
marriage breakdown.
[12]
The
decision refuses Ms. Santos’ application based on the inadmissibility of her
estranged husband.
LAW
[13]
Section
42(a) of Act states:
|
Inadmissible family
member
42. A foreign national, other than a protected person, is
inadmissible on grounds of an inadmissible family member if
(a) their accompanying family
member or, in prescribed circumstances, their non-accompanying family member
is inadmissible; or
|
Inadmissibilité familiale
42. Emportent, sauf pour le résident
permanent ou une personne protégée, interdiction de territoire pour inadmissibilité
familiale les faits suivants :
a) l’interdiction de territoire frappant tout membre de sa famille
qui l’accompagne ou qui, dans les cas réglementaires, ne l’accompagne pas;
|
[14]
Section
36(1)(c) of Act states:
|
Serious criminality
36. (1) A permanent resident or a foreign
national is inadmissible on grounds of serious criminality for
…
(c) committing an act outside Canada that is an offence
in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years.
|
Grande criminalité
36. (1) Emportent interdiction de
territoire pour grande criminalité les faits suivants :
…
c)
commettre, à l’extérieur du Canada, une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans.
|
[15]
Section
72(1)(e)(i) of the Regulations states:
|
Obtaining
status
72. (1) A foreign national in Canada becomes a permanent resident if,
following an examination, it is established that
(e) except in the case
of a foreign national who has submitted a document accepted under subsection
178(2) or of a member of the protected temporary residents class,
(i) they and their family members, whether accompanying
or not, are not inadmissible,
|
Obtention du statut
72. (1) L’étranger au
Canada devient résident permanent si, à l’issue d’un contrôle, les éléments
suivants sont établis :
e) sauf dans le cas de l’étranger ayant fourni un document qui a
été accepté aux termes du paragraphe 178(2) ou de l’étranger qui fait partie
de la catégorie des résidents temporaires protégés :
(i) ni lui ni les membres de sa
famille — qu’ils l’accompagnent ou non — ne sont interdits de territoire,
|
[16]
Section
23 of the Regulations states:
|
Prescribed circumstances — family members
23. For the purposes of paragraph 42(a)
of the Act, the prescribed circumstances in which the foreign national is
inadmissible on grounds of an inadmissible non-accompanying family member are
that
(b) the non-accompanying family
member is
(i) the spouse of the foreign national, except where the relationship
between the spouse and foreign national has broken down in law or in fact,
(underlining added)
|
Cas réglementaires : membres de la
famille
23. Pour
l’application de l’alinéa 42a) de la Loi, l’interdiction de territoire
frappant le membre de la famille de l’étranger qui ne l’accompagne pas
emporte interdiction de territoire de l’étranger pour inadmissibilité
familiale si :
b) le
membre de la famille en cause est, selon le cas :
(i) l’époux de l’étranger, sauf si la relation entre
celui-ci et l’étranger est terminée, en droit ou en fait,
|
ISSUES
[17]
The
issues in this application are as follows:
a. Was the
decision of the Immigration Officer unreasonable with regard to the applicant’s
relationship with Mr. Santos?
b. Were the applicant’s
procedural fairness rights breached?
c. Did the
Officer fetter his discretion by not considering humanitarian and compassionate
considerations?
d. Was the
decision of the Immigration Officer unreasonable with regard to Mr. Santos’
criminal inadmissibility?
STANDARD OF REVIEW
[18]
The standard of review for decisions
of visa officers is reasonableness simpliciter: see Ram v. Canada (Minister of
Citizenship and Immigration), 2003
FCT 671.
ANALYSIS
Issue
No. 1: Was the decision of the Immigration Officer unreasonable with regard
to the Applicant’s relationship with Mr. Santos?
[19]
The
applicant submits that the Immigration Officer erred in finding that Ms. Santos
was inadmissible because of the inadmissibility of her spouse, because their
marriage had broken down in fact at the time of the determination.
[20]
The
applicant submits that the Immigration Officer’s conclusion that the
relationship with her husband was ongoing was unreasonable. The Officer relied
exclusively on Ms. Santos’ letter from December 2007 which affirmed that the
relationship was ongoing. However, the Officer did not properly consider the new
evidence or her letter dated July 7, 2008, and therefore the decision was
unreasonable.
[21]
The
evidence before the Officer regarding the marriage breakdown is as follows:
- Mr. Santos’
evidence given at the interview in Manila that
Ms. Santos “had ceased to support him and that he was not their children’s
legal guardian”;
- In July 2008, Ms.
Santos submitted a new application for permanent residence “to cancel the
sponsorship for her husband”,
- The explanation of
Ms. Santos that “I (had) applied for my husband to join me here in Canada for the
sake of my 3 children. But actually he has committed adultery and I just found
out he already have 2 children”;
- The affidavit of
Mr. Santos that he gave “permission for his wife … to have full time and
permanent custody or guardianship” of their children; and
- The July 7, 2008
letter which stated, inter alia,: “…I want him out of my life, and
I do not want him to join me here in Canada.”
[22]
It
was unreasonable for the Officer to conclude that the relationship between the applicant
and Mr. Santos was ongoing, when in fact it had broken down.
[23]
The
respondent does not address the fact that the Officer did not address the
contradicting evidence regarding Mr. Santos’ statement at the interview in Manila that Ms.
Santos had ceased to provide support for him, and that he no longer had custody
or guardianship of their children.
[24]
The
Court finds that the Officer’s conclusion is unreasonable based on the
evidence. The Officer relied on some evidence and disregarded other evidence
with no explanation. Mr. Santos clearly stated in his interview in Manila that he and
Ms. Santos were no longer a couple. Furthermore, Ms. Santos had submitted a
new application which stated that she was married, which she was, but that her
husband was committing adultery, had two children with another woman, was
completely estranged from the applicant, and the applicant wanted him “out of
my life”.
Issue No. 2: Were the
Applicant’s procedural fairness rights breached?
[25]
The
applicant submits that the interests at stake in this application are
significant and thus must be accorded the highest degree of natural justice.
The applicant submits that Citizenship and Immigration should adopt a flexible
and constructive approach in determining an application for permanent residence
for a member of the LCP.
[26]
In
Turingan v. Canada (M.E.I.), [1993]
F.C.J. No. 1234, at para. 8, Justice Jerome stated:
After
a thorough analysis of the Foreign Domestic Program, the learned Justice
reached the following conclusions:
... (ii) the F.D.M.
[Foreign Domestic Movement Program] was created in response to the recognition
that domestic workers were performing a valuable service, often forming
significant ties in this country but were generally less likely to achieve
permanent residence status than other immigrants;
(iii) the purpose of
the Programme is hence to facilitate the attainment of permanent residence
status for foreign domestic workers subject to certain terms and conditions;
(iv) the Programme is
to be administered in a flexible manner with the emphasis on extended advice
and counselling services available in order that applicants may upgrade their
skills, where necessary, to qualify for the Programme...
It
is clear from this passage that the purpose of the Program is to facilitate the
attainment of permanent residence status. It is therefore incumbent on the
Department to adopt a flexible and constructive approach in its dealings with
the Program's participants. The Department's role is not to deny permanent
residence status on merely technical grounds, but rather to work with, and
assist the participants in reaching their goal of permanent residence status.
[27]
The
applicant submits that the rigid approach taken by the Immigration Officer was
inappropriate and unreasonable. Given that there was a question of
credibility, noted by the Officer, the Court finds that an interview should
have been conducted. Ms. Santos would have been able to clarify at that
juncture that the relationship was in fact over at that point.
[28]
Ms.
Santos successfully completed the LCP. She fulfilled her requirements to apply
for permanent residence, and thus, the Immigration Officer should have given
her the opportunity to explain what was found in the decision to be
“contradictory evidence”.
[29]
In
view of the Court’s findings, the Court does not need to consider the remaining
issues.
[30]
There
is no question proposed by the parties or the Court for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application is allowed, the decision of the Immigration Officer dated August
22, 2008 is set aside and the matter is referred to another immigration officer
for redetermination with a direction from the Court that the evidence
establishes that the applicant’s marriage has in fact broken down.
“Michael A. Kelen”
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