Date: 20090416
Docket: IMM-3943-08
Citation: 2009 FC 384
Ottawa, Ontario, April 16, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ELISHA
MUGU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to s. 72 (1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of two decisions
of different Officers of Citizenship and Immigration Canada out of Accra, Ghana.
One decision was made by Officer Tieman, dated April 11, 2008 and amended
February 6, 2009 dealt with the Applicant’s permanent residence application and
the other by Officer Riley on April 25, 2008, dealt with the Applicant’s
permanent residence application. Both Decision #1 and Decision #2 refused the
Applicant’s application for permanent residence pursuant to paragraph 40 of the
Act.
BACKGROUND
[2]
The
Applicant is the same-sex conjugal partner of Troy Stilwell, a Canadian
Citizen. He and Mr. Stilwell have shared a conjugal partner relationship for
over seven years since their meeting in July, 2001.
[3]
In
September 2005, the Applicant filed a sponsorship application for permanent
residence as the conjugal partner of Mr. Stilwell. He was interviewed in
relation to this application on September 28, 2006 at the Canadian High
Commission in Accra,
Ghana by Officer
Riley.
[4]
During
the interview, the Applicant allegedly told Officer Riley that he had applied
for temporary resident visas to visit Mr. Stilwell in 2001, 2003 and 2007.
[5]
At
the Applicant’s interview, he was questioned about his previous passport which
was issued in 2003 under the name of Elisha Bivan. The Applicant explained that
his passport was stolen from his car in 2002 and he applied for a new passport
under the name Elisha Mugu because he did not want to use the same name on his
previous stolen passport. The Applicant’s full name is Elisha Bivan Mugu and he
submitted a birth certificate to the High Commission which showed those names.
[6]
The
Applicant was requested to bring police reports to substantiate the loss of his
passport and his name change to the High Commission. The Applicant alleges that
he obtained reports dealing with his change of name and the loss of his
passport and submitted them to the High Commission in December 2007. He also
alleges that he submitted an affidavit of change of name and an advertisement
describing the name change that appeared in a newspaper, along with a police
extract about his changed name and lost passport.
[7]
After
the Applicant obtained the police reports, he says he realized that they
contained some inaccuracies concerning the date of the lost passport. Obtaining
police reports in Nigeria is difficult and expensive, so the Applicant
allegedly did not have the “energy or financial resources to return to the
police to correct the report.”
[8]
In
May 2008, the Applicant received a letter from Officer Riley refusing his
application for permanent residence.
[9]
In
July 2008, the Applicant received a letter from Officer Tieman refusing his application
for a temporary resident visa on the basis of misrepresentation with regard to the
information provided during his interview with Officer Riley in September 2006.
The Applicant assumed that the letter related to his 2007 temporary residence
visa application.
[10]
On
September 8, 2008, an application for Leave and Judicial Review was filed
challenging Officer Tieman’s Decision that dealt with the application for
temporary residence and inadmissibility on the basis of misrepresentation. An
Application Record was filed with the Court on November 19, 2008. A Notice of
Appeal was filed with the Immigration Appeal Division (IAD) appealing the
refusal of the permanent resident application on July 24, 2008.
[11]
The
Applicant was advised that on December 19, 2008, the Department of Justice had responded
with a Memorandum of Argument and an Affidavit of Officer Tieman defending his
refusal of the temporary resident visa. Leave was granted on January 13, 2009.
The Respondent delivered a certified copy of the Record on January 28, 2009.
[12]
The
Department of Justice advised the Applicant on February 3, 2009 that the matter
was statutorily barred because an appeal had been filed with the Immigration
Appeal Division. On February 4, 2009, the Applicant responded by stating that
the present application was a challenge of a decision refusing the Applicant’s
application for a temporary resident visa.
[13]
On
February 4, 2009, the Respondent withdrew its objection that the application
was statutorily barred and provided an amended certified record which was
served and filed on February 6, 2009. On February 5, 2009, the Respondent
advised that the Decision rendered by Officer Tieman contained an error and it
did not relate to the Applicant’s temporary resident visa application. It related
to an application for a permanent resident visa. The two decisions were issued
because Officer Riley did not have the authority to determine that the
Applicant was inadmissible for misrepresentation.
DECISION UNDER REVIEW
The Decision of
Officer Tieman
[14]
Officer
Tieman, in his original letter of April 11, 2008, determined that the Applicant
did not qualify for the issuance of a temporary resident visa to Canada. An
amended letter was issued on February 6, 2009 to fix the clerical error and
change the letter to say that the Applicant did not qualify for permanent
residence in Canada.
[15]
Officer
Tieman relied upon paragraph 40(1)(a) of the Act, which states that a
foreign national is inadmissible for misrepresentation for directly or
indirectly misrepresenting or withholding material facts relating to a relevant
matter that induces or could induce an error in the administration of the Act.
Officer Tieman also relied upon paragraph 40(2)(a) which specifies that a
foreign national continues to be inadmissible for misrepresentation for a
period of two years following, in the case of a determination outside of
Canada, a final determination of inadmissibility under subsection(1).
[16]
Officer
Tieman pointed to the interview with Officer Riley on September 28, 2006 where the
Applicant “misrepresented or withheld” material facts:
You stated that your previous passport,
issued in the name of Elisha BIVAN, was stolen from your car in 2003. You
stated that you had in your possession two police reports, which you were prepared
to submit to our office in support of this statement. You furthermore stated
that you had changed your name from Elisha BIVAN and Elish[a] MUGU because this
passport had been stolen. You were then issued a letter requesting, among other
documents, that you submit the two original police reports from the time when
your passport was misplaced and then stolen.
[17]
Officer
Tieman pointed out that the documents the Applicant submitted in response to
the request of Officer Riley were received on December 4, 2006 and did not
include the two police reports requested. Officer Tieman noted that the
Applicant submitted a police report obtained on October 18, 2006, which was
after the date of his interview. Officer Tieman stated that the police report
did not match what the Applicant had said in the interview, namely that his
passport was misplaced and stolen in 2003.
[18]
Officer
Tieman stated that the Applicant had been sent a letter dated September 28.
2007, which allowed him another opportunity to respond and provide information to
overcome the concerns that the Applicant had misrepresented his identity and
his previous immigration history. Officer Tieman noted that the further
documents submitted were received on December 11, 2007 and did not overcome the
concerns.
[19]
Officer
Tieman held that the misrepresentation, or withholding of a material fact,
induced or could have induced errors in the administration of the Act because
the misrepresentation of the Applicant’s identity and previous immigration
history, may have led an officer to incorrectly assess the “bona fides of [his]
relationship with [his] sponsor.”
[20]
Officer
Tieman deemed the Applicant inadmissible to Canada for a period
of two years. The Officer cited subsection11(1) of the Act, which provides that
a foreign national must, before entering Canada, apply to an officer for a visa
or any other document required by the regulations. The visa or document shall
be issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of the Act.
[21]
Officer
Tieman found the Applicant inadmissible and refused his application.
The Decision of
Officer Riley
[22]
Officer
Riley cites subsection 11(1) of the Act that a foreign national must support
their application with the required documents. Officer Riley says that he had
reasonable grounds to believe that the Applicant had not fulfilled the
requirements of subsection 16(1) of the Act:
|
16(1)
A person who makes an application must answer truthfully all questions put to
them for the purpose of the examination and must produce a visa and all
relevant evidence and documents that the officer reasonably requires.
|
(1)
L’auteur d’une demande au titre de la présente loi doit répondre
véridiquement aux questions qui lui sont posées lors du contrôle, donner les
renseignements et tous éléments de preuve pertinents et présenter les visa et
documents requis.
|
[23]
Officer
Riley referred to the September 28, 2006 interview where he believed that the
Applicant had withheld or misrepresented the following information:
You stated that your previous passport,
issued in the name of Elisha BIVAN, was stolen from your car in 2003. You
stated that you had in your possession two police reports, which you were
prepared to submit to our office in support of this statement. You furthermore
stated that you had changed your name from Elisha BIVAN and Elish[a] MUGU
because this passport had been stolen. You were then issued a letter
requesting, among other documents, that you submit the two original police
reports from the time when your passport was misplaced and then stolen.
[24]
Officer
Riley went on to state that the documents the Applicant submitted in response
to CIC’s letter of September 28, 2006 did not include the two police reports
required and that the Applicant submitted a police report obtained on October
18, 2006, which was after the date of his interview. The circumstances outlined
in the report did not match the circumstances explained at the interview to the
effect that the Applicant’s passport had been misplaced and stolen in 2003.
[25]
Officer
Riley found that the Applicant had engaged in misrepresentation in submitting
his application for permanent residence and that he was inadmissible because of
paragraphs 40(1)(a) and 40(2)(a) of the Act.
[26]
Officer
Riley afforded the Applicant 60 days from the receipt of the letter to make any
further representations and informed the Applicant that, if he did not respond,
his application would be assessed based on the information available, which
would “likely result in a refusal.”
ISSUES
[27]
The
Applicant submits the following issues on this application:
1)
The
Decision that the Applicant is inadmissible for misrepresentation was made in
breach of the principles of fairness;
2)
The
immigration counsellor [Officer Tieman] erred in finding that the Applicant
misrepresented any aspect of his application;
3)
In
the alternative, if there was any misrepresentation, such misrepresentation was
not material to any issue before the Officer.
[28]
In
his further Memorandum of Fact and Law, the Applicant raises the following
additional issues:
1)
Officer
Tieman erred in refusing the Applicant’s sponsored application for permanent
residence on the basis that his relationship with his sponsor is not genuine;
2)
Officer
Riley erred in finding that the Applicant misrepresented any aspect of his
application;
3)
In
the alternative, if there was any misrepresentation, such misrepresentation was
not material to any issue before the Officers;
4)
The
Decision that the Applicant is inadmissible for misrepresentation was made in
breach of the principles of fairness.
STATUTORY PROVISIONS
[29]
The
following provisions of the Act are applicable in these proceedings:
|
11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document
required by the regulations. The visa or document may be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
40. (1) A permanent
resident or a foreign national is inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding
material facts relating to a relevant matter that induces or could induce an
error in the administration of this Act;
…
(2) Les dispositions suivantes s’appliquent au paragraphe
(1) :
a) l’interdiction de territoire court pour les deux ans
suivant la décision la constatant en dernier ressort, si le résident
permanent ou l’étranger n’est pas au pays, ou suivant l’exécution de la
mesure de renvoi;
…
|
11. (1) L’étranger doit, préalablement à
son entrée au Canada, demander à l’agent les visa et autres documents requis
par règlement. L’agent peut les délivrer sur preuve, à la suite d’un
contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la
présente loi.
40. (1)
Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
a) directement ou indirectement, faire une présentation
erronée sur un fait important quant à un objet pertinent, ou une réticence
sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans
l’application de la présente loi;
…
(2) The following provisions govern subsection (1):
(a) the permanent resident or the foreign national
continues to be inadmissible for misrepresentation for a period of two years
following, in the case of a determination outside Canada, a final
determination of inadmissibility under subsection (1) or, in the case of a
determination in Canada, the date the removal order is enforced; and
…
|
[30]
The
following provisions of the OP18: Evaluating Inadmissibility, Immigration
Processing Manual for Citizenship and Immigration Canada (CIC) (Manual) are also
applicable in these proceedings:
|
9.7 At Visa
Offices and Ports of Entry
An application
for a visa abroad, or for entry into Canada at a port of entry may be denied based
on a misrepresentation made in connection with the current application or
examination only, unless the person was previously the subject of a refusal
for misrepresentation and the resulting two-year inadmissibility period has
not elapsed.
Failure to
satisfy an officer of certain facts or intentions does not equate to
misrepresentation. For example, if an officer does not find a person’s stated
intention to leave Canada before the expiry of the period
authorized to be credible, this is not sufficient to support inadmissibility
based on misrepresentation. Rather, non-compliance with paragraph A20(1)(b)
would better define the situation as temporary residents must establish that
they will leave Canada by the end of the period authorized
for their stay.
Where, on a
balance of probabilities there is sufficient evidence of misrepresentation at
a port of entry, officers may write a subsection A44(1) report. Officers
should refer to the procedural guidelines in ENG 5 for writing reports.
9.9 Visa
Office Procedures
An officer who
suspects that an applicant may be inadmissible for misrepresentation should
carefully document the reasons for the concern in their notes. They must then
provide the individual with information on the basis for their concern and
invite the person to respond. This can be done at an interview or in writing.
If in writing, the person should be given at least 30 days from the time of
receipt of the officer’s notice to respond. The information provided in the
response should be carefully assessed in accordance with the principles
outlined previously.
If the officer
believes that the person is inadmissible for misrepresentation, and the
officer is not a designated officer for the use of section A40, then the
officer refers the case to a designated officer. The decision based on
section A40 is solely the decision of the designated officer who renders the
decision on the basis of the information before them, including any further
information or interview the designated officer feels is necessary. The
designated officer enters appropriate file notes on their own assessment of
the case and the factors leading to the decision. The section A40 decision is
not a “concurrent” with another officer’s decision.
|
9.7 Bureaux des visas et points d’entrée
Une demande de visa à l’étranger ou une
demande d’entrée au Canada à un point d’entrée peut
être refusée en raison d’une fausse
déclaration faite relativement à la demande actuelle ou au
contrôle uniquement, à moins que la
personne ait antérieurement été l’objet d’un refus pour fausse déclaration et
que la période réglementaire d’interdiction de territoire de deux ans ne soit
pas écoulée.
L’impossibilité de convaincre l’agent de
certains faits ou de certaines intentions n’est pas
assimilable à une fausse déclaration. Par
exemple, si l’agent estime que l’intention déclarée de la personne de quitter
le Canada avant l’expiration de la période autorisée n’est pas crédible, cela
ne suffit pas à appuyer une interdiction
de territoire pour motif de fausse déclaration. En pareil cas, le non-respect
de l’alinéa L20(1)b) correspondrait mieux à la situation, car les résidents temporaires
doivent démontrer qu’ils quitteront le Canada à la fin de la période de
séjour autorisée.
Si, selon la prépondérance des
probabilités, il existe une preuve suffisante de fausse déclaration à un
point d’entrée, l’agent peut rédiger un rapport en application du paragraphe
L44(1). L’agent doit se référer aux lignes directrices sur les procédures
définies dans le ENF 5 pour rédiger ces
rapports.
9.9 Procédure dans les bureaux des visas
L’agent qui soupçonne qu’un demandeur
peut être interdit de territoire pour fausses déclarations précise clairement
par écrit les motifs de ses doutes dans ses notes. Il fournit ensuite à la personne
des renseignements sur le fondement de son doute et l’invite à y répondre.
Cela peut se faire durant une entrevue ou par écrit. Dans ce dernier cas, la
personne dispose d’un délai de réponse d’au moins 30 jours à compter de la
réception de l’avis envoyé par l’agent. L’information fournie dans la réponse
est soigneusement évaluée conformément aux principes dégagés précédemment.
Si l’agent croit que la personne est
interdite de territoire pour fausses déclarations et n’a pas le pouvoir
d’appliquer l’article L40, il doit renvoyer le cas à un agent désigné. La
décision prise en vertu de l’article L40 appartient uniquement à l’agent
désigné qui la rend suivant l’information dont il dispose, y compris toute
information ou entrevue supplémentaire qu’il juge nécessaire. L’agent désigné
inscrit des notes appropriées au dossier sur sa propre évaluation du cas,
ainsi que les motifs menant à sa décision. La décision prise en vertu de
l’article L40 n’est pas concordante à la décision d’un autre agent.
|
[31]
The
following provisions of the OP2: Processing Members of the Family Class,
Immigration Processing Manual for CIC (Manual OP2) are also applicable in
these proceedings:
|
5.25. Characteristics of conjugal
relationships
The word “conjugal” is not defined in legislation; however,
the factors that are used to determine whether a couple is in a conjugal
relationship are described in court decisions.
Marriage is a status-based relationship existing from the
day the marriage is legally valid until it is severed by death or divorce. A
common-law relationship (and in the immigration context, a
conjugal partner relationship) is a fact-based
relationship which exists from the day on which the two individuals can
reasonably demonstrate that the relationship meets the definition set out in
the
Regulations. While this is a significant difference,
there are many similarities in the two types of relationships. This is
because of the history of the recognition in law of common-law relationships and
their definition, which includes the word “conjugal.”
The term “conjugal” was originally used to describe
marriage. Then, over the years, it was expanded by various court decisions to
describe “marriage-like” relationships, i.e., a man and a woman in a
common-law relationship.
With the M. v. H. decision in 1999, the Supreme
Court of
Canada further expanded the term to include same-sex
common-law couples.
The word “conjugal” does not mean “sexual relations”
alone. It signifies that there is a significant degree of attachment between
two partners. The word “conjugal” comes from two Latin words,
one meaning “join” and the other meaning “yoke,” thus,
literally, the term means “joined together” or “yoked together.”
In the M. v. H. decision, the Supreme Court adopts
the list of factors that must be considered in determining whether any two
individuals are actually in a conjugal relationship from the decision of the
Ontario Court of Appeal in Moldowich v. Penttinen.
They include:
• shared shelter (e.g., sleeping arrangements);
• sexual and personal behaviour (e.g., fidelity,
commitment, feelings towards each other);
• services (e.g., conduct and habit with respect to the
sharing of household chores)
• social activities (e.g., their attitude and conduct as a
couple in the community and with their families);
• economic support (e.g., financial arrangements, ownership
of property);
• children (e.g., attitude and conduct concerning children)
• the societal perception of the two as a couple.
From the language used by the Supreme Court throughout M.
v. H., it is clear that a conjugal
relationship is one of some permanence, where individuals
are interdependent – financially, socially, emotionally, and physically –
where they share household and related responsibilities, and where they have
made a serious commitment to one another.
Based on this, the following characteristics should be
present to some degree in all conjugal relationships, married and
unmarried:
• mutual commitment to a shared life;
• exclusive – cannot be in more than one conjugal
relationship at a time;
• intimate – commitment to sexual exclusivity;
• interdependent – physically, emotionally, financially,
socially;
• permanent – long-term, genuine and continuing
relationship;
• present themselves as a couple;
• regarded by others as a couple;
• caring for children (if there are children).
People who are dating or who are thinking about marrying
or living together and establishing a common-law relationship are NOT yet in
a conjugal relationship, nor are people who want to live together to “try
out” their relationship.
Persons in a conjugal relationship have made a
significant commitment to one another. A married couple makes the commitment
publicly at a specific point in time via their marriage vows and ceremony,
and the marriage certificate and registration is a record of that commitment.
In a
common-law or conjugal partner relationship, there is not
necessarily a single point in time at which a commitment is made, and there
is no one legal document attesting to the commitment.
Instead, there is the passage of time together, the
building of intimacy and emotional ties and the accumulation of other types
of evidence, such as naming one another as beneficiaries of insurance
policies or estates, joint ownership of possessions, joint decision-making
with
consequences for one partner affecting the other, and
financial support of one another (joint expenses or sharing of income, etc.
When taken together, these facts indicate that the couple has
come to a similar point as that of a married couple –
there is significant commitment
5.26. Assessment of
conjugal relationships
The following are key elements that officers
may use to establish whether a couple is in a conjugal relationship. These
apply to spouses, common-law partners and conjugal partners.
a) Mutual commitment to a
shared life to the exclusion of all other conjugal relationships
A conjugal relationship is characterized by
mutual commitment, exclusivity, and interdependence and therefore cannot
exist among more than two people simultaneously.
The word “conjugal”
includes the requirement of monogamy and,
therefore, an individual cannot be in more than one conjugal relationship at
one time. For example, a person cannot have a conjugal relationship with
a legally married spouse and another person
at the same time. Nor can a person have a conjugal relationship with two
unmarried partners at the same time. These would be polygamous-like relationships
and cannot be considered conjugal.
This does not, however, require that an
individual in an unmarried conjugal relationship be divorced from a legally
married spouse. See: What happens if the common-law partner (principal applicant)
is married to another person, section 5.38 below.
The requirement of exclusivity or monogamy
applies in equal measure to marriage, common-law partnership and conjugal
partnership. Thus, the common-law and conjugal partner categories
cannot be used to get around restrictions
related to bigamy and polygamy (See section 13.2 Polygamous marriages below
for further information). By the same token, common-law and conjugal partner
relationships are not expected to be any more exclusive than ordinary married
relationships.
Proof of exclusivity is not usually required
in the assessment of these relationships any more than it would be in
assessing a marriage.
b) Interdependent –
physically, emotionally, financially, socially
The two individuals in a conjugal
relationship are interdependent – they have combined their affairs both
economically and socially. The assessment of whether two individuals are in a
conjugal relationship should focus on evidence of interdependency.
The following list is a set of elements which, when taken
together or in various combinations, may constitute evidence of
interdependency. It should be kept in mind that these elements may be present
in varying degrees and not all are necessary for a relationship to be
considered conjugal.
Factor Details
Financial aspects of the
relationship
• Joint loan agreements for real estate, cars, major
household
appliances;
• Joint ownership of property, other durable goods;
• Operation of joint bank accounts, joint credit cards
evidence that any
such accounts have existed for a reasonable period of
time;
• The extent of any pooling of financial resources,
especially in relation to major financial commitments;
• Whether one party owes any legal obligation in respect of
the other.Social aspects of the
relationship
• Evidence that the relationship has been declared to government
bodies and commercial or public institutions or authorities and
acceptance of such declarations by any such bodies;
• Joint membership in organisations or groups, joint participation
in sporting, cultural, social or other activities;
• Joint travel;
• Shared values with respect to how a household should be
managed;
• Shared responsibility for children; shared values with
respect to child-rearing; willingness to care for the partner’s children;
• Testimonials by parents, family members, relatives or
friends and
other interested parties about the nature of the
relationship and whether the couple present themselves to others as partners.
Statements in the form of statutory declarations are preferred.
Physical and emotional
aspects of the relationship -the degree of commitment as
evidenced by:
• Knowledge of each other’s personal circumstances,
background and
family situation;
• Shared values and interests;
• Expressed intention that the relationship will be long
term;
• The extent to which the parties have combined their
affairs, for example, are they beneficiaries of one another’s insurance
plans, pensions, etc.?
• Joint decision-making with consequences for one partner
affecting the other;
• Support for each other when ill and on special occasions
letters, cards, gifts, time off work to care for other;
The terms of the parties’ wills made out in each other’s
favour provide some evidence of an intention that the relationship is long
term and permanent;
• Time spent together;
• Time spent with one another’s families;
• Regular and continuous communication when apart.
Examples of supporting documents:
• Family memberships, medical plans, documentation from
institutions that provides
recognition as a couple;
• Marriage certificate (not just a solemnization record), wedding
invitations, commitment ceremony (certificate, invitations), domestic
partnership certificate;
• joint ownership of possessions, joint utility bills,
lease/rental agreement, joint mortgage/loan, property title, joint bank
statements; money transfers.
• documents showing travel together, long distance phone
bills; other proof of continuous
communication
(emails, internet chat site printouts, letters).
• insurance policies (documents naming the partner as a
beneficiary), wills, powers of attorney;
• significant photographs;
• statements of support from families, bank manager, employers,
financial professionals, religious leaders, community leaders, professors,
teachers or medical professionals.
The above elements may be present in varying degrees and
not all are necessary for a
relationship to be considered conjugal. Whether an
element is present may depend on the culture or preferences of the couple.
For example, in some cultures, women have a limited role in the management of
the family finances; thus there may not be joint ownership of property or
joint bank accounts. Some couples may choose to keep aspects of their
financial affairs separate and yet are clearly in a conjugal relationship and
have merged their affairs in other respects.
Officers should consider each relationship individually
and take into account any other relevant information provided by the
applicant (or information otherwise available to the officer), in order to assess
whether a conjugal relationship exists.
Officers should also take into account to what extent the
laws and/or traditions of the applicant’s home country may discourage the
parties from openly admitting the existence of the relationship.
|
y. Caractéristiques
des relations conjugales
Le mot « conjugal »
n’est pas défini dans la loi; toutefois, les facteurs utilisés pour
déterminer si un couple vit une relation conjugale sont exposés dans les
décisions des tribunaux.
Le mariage est une
relation fondée sur le statut qui existe à partir du jour où le mariage est
légalement valide
jusqu’au jour où il est rompu par un décès ou un divorce. Une union de fait
(et dans le contexte de l’immigration, une relation entre partenaires conjugaux)
est une relation
fondée sur les faits
qui existe à partir du jour où les deux personnes peuvent démontrer de façon raisonnable
que la relation correspond à la définition établie dans le Règlement.
Même si la
différence est
importante, il existe de nombreuses similitudes entre les deux types de
relation, en raison de l’histoire de la reconnaissance en droit des unions de
fait et de leur définition qui comprend le mot « conjugal ».
Le terme « conjugal
» était à l’origine utilisé pour décrire le mariage, puis, au cours des
années, différentes décisions des tribunaux ont permis d’élargir sa
définition pour inclure les relations
« semblables à un
mariage », c'est-à-dire des unions de fait entre conjoints hétérosexuels.
Dans sa décision M.
c. H. de 1999, la Cour suprême du Canada a élargi la définition pour y
inclure les unions de fait entre conjoints de même sexe.
Le terme « conjugal
» n’a pas seulement trait aux « relations sexuelles ». Il suppose un degré
d’attachement
important entre deux partenaires. Le mot « conjugal » vient de deux mots
latins dont l’un signifie « joindre » et l’autre signifie « attelage », donc
le terme signifie littéralement
« joints ensemble »
ou « attelés ensemble ».
Dans la décision M.
c. H., la Cour suprême adopte une liste de facteurs qui doivent être pris
en compte pour déterminer si deux personnes vivent réellement une relation
conjugale, qu’elle a
tirée de la décision
Moldowich c. Penttinen de la Cour d’appel de l’Ontario. Ces facteurs comprennent
:
logement commun (p.
ex. ententes relatives au couchage);
• comportement
sexuel et personnel (p. ex. fidélité, engagement, sentiments l’un envers l’autre);
• services
(p. ex. comportement et habitudes concernant la répartition des tâches
ménagères);
• activités
sociales (p. ex. attitude et comportement en tant que couple au sein de la
collectivité et avec leurs familles);
• soutien
économique (p. ex. ententes financières, propriété de biens);
• enfants
(p. ex. attitude et comportement vis-à-vis les enfants);
• perception
sociale des partenaires en tant que couple.
Si l’on considère
les termes employés par la Cour suprême au cours de l’affaire M. c. H.,
il est clair qu’une relation conjugale suppose une certaine permanence, une
interdépendance financière, sociale, émotive et physique, un partage des
responsabilités ménagères et connexes,
ainsi qu’un
engagement mutuel sérieux.
En se fondant sur
ces facteurs, les caractéristiques suivantes devraient être présentes, à un
certain degré, dans toutes
les relations conjugales, que les conjoints soient mariés ou non :
• engagement
mutuel à une vie commune;
• exclusivité
– on ne peut vivre plus d’une relation conjugale en même temps;
• intimité
– engagement envers une exclusivité sexuelle;
• interdépendance
– physique, émotive, financière et sociale;
• permanence
– relations authentiques constantes à long terme;
• les
conjoints se présentent comme un couple;
• les
partenaires sont considérés comme un couple;
• le couple
prend soin des enfants ensemble (le cas échéant).
Les personnes qui
sortent ensemble ou qui pensent à se marier, à vivre ensemble pour fonder une
union de fait ou à vivre ensemble pour « tester » leur relation ne vivent PAS
encore une relation conjugale.
Les personnes qui
vivent une relation conjugale ont pris un engagement mutuel sérieux.
Un couple marié
prend cet engagement publiquement au moment précis où il prononce ses voeux
de mariage pendant la cérémonie. Le certificat et l’enregistrement de mariage
sont des preuves de cet engagement. En ce qui concerne l’union de fait ou la
relation entre partenaires conjugaux, il
n’y a pas
nécessairement d’engagement pris à un moment précis, et il n’existe aucun
document légal témoignant d’un engagement.
En revanche, il y a
le temps que le couple a passé ensemble, les liens intimes et émotionnels
qu’ils ont créés et l’accumulation d’autres types de preuve, comme le fait de
se désigner mutuellement bénéficiaires de régimes d’assurance ou d’un testament,
la possession de biens en commun, la prise en commun de décisions pouvant
avoir
des répercussions
sur les deux partenaires et le soutien financier mutuel (dépenses communes, partage
des revenus, etc.). Si on les combine, ces faits montrent que le couple est
au même point qu’un couple marié; il y a engagement
sérieux et interdépendance dans une relation monogame
d’une
certaine permanence.
5.26.
Évaluation des relations conjugales
Voici
les principaux éléments qui pourraient permettre aux agents d’établir si un
couple vit une relation conjugale. Ils s’appliquent aux époux, aux conjoints
de fait et aux partenaires conjugaux.
a)
Engagement mutuel à une vie commune à l’exclusion de toute autre relation
conjugale
Une
relation conjugale se caractérise par un engagement mutuel, une exclusivité
et une
interdépendance,
et ne peut donc unir plus de deux personnes simultanément. Le terme «
conjugal » comporte l’exigence de la monogamie et, de ce fait, un individu ne
peut pas avoir plus d’une relation conjugale à la fois. Par exemple, une
personne ne peut vivre une relation conjugale avec l’époux auquel il est
marié et avec une autre personne en même temps. Une
personne
ne peut non plus vivre une relation conjugale avec deux partenaires non
mariés en même temps. Il s’agirait de relations polygames, qu’on ne peut
assimiler à une relation conjugale.
On
n’exige cependant pas qu’une personne qui vit une relation conjugale sans
être mariée à son conjoint qu’elle divorce de la personne à laquelle elle
était mariée. Voir Que se passe-t-il si le
conjoint
de fait (demandeur principal) est marié à une autre personne, section 5.38 ci-dessous.
L’exigence
de l’exclusivité ou de la monogamie s’applique de façon égale au mariage, à
l’union de fait et à la relation entre partenaires conjugaux. Les catégories
de l’union de fait et de l’union conjugale ne peuvent donc pas être utilisées
pour contourner les restrictions relatives à la bigamie et à la polygamie
(pour de plus amples informations, voir la section 13.2 Mariages
polygames
ci-dessous). En outre, l’union de fait et la relation entre partenaires
conjugaux n’ont pas à être plus exclusives que les mariages ordinaires. On
n’exige généralement pas plus de
preuves
d’exclusivité dans l’évaluation de ces relations qu’on ne le ferait pour
évaluer un mariage.
b)
Interdépendance – physique, émotive, financière et sociale
Les deux
personnes qui vivent une relation conjugale sont interdépendantes – elles ont
combiné leurs activités économiques et sociales. Pour évaluer si deux
personnes vivent une relation conjugale, il faut chercher une preuve
d’interdépendance.
La liste
ci-dessous établit un ensemble d’éléments qui, pris ensemble ou selon des
combinaisons diverses, peuvent constituer des preuves d’interdépendance. Il
ne faut pas oublier que ces éléments peuvent être présents à divers degrés et
ne sont pas tous nécessaires pour qu’une
relation
soit considérée comme une relation conjugale.
Facteur
Détails
Aspects
financiers
de la
relation
• Contrats de prêt conjoint pour des biens immobiliers, des voitures ou
d’importants électroménagers;
• Propriété conjointe de biens immeubles ou autres biens
durables;
• Comptes de banque conjoints; cartes de crédit conjointes preuve que ces
comptes existent depuis un bon moment;
• Étendue de la mise en commun des ressources financières, surtout en ce
qui a trait à des engagements financiers
importants.
• Un des conjoints a-t-il des obligations juridiques envers l’autre?
Aspect
social de la
Relation
• Preuve que la relation a été déclarée aux organismes gouvernementaux et
aux institutions ou autorités commerciales ou publiques et
acceptation de ces déclarations par ces
organismes;
• Appartenance
conjointe à des organisations ou à des groupes,
participation
conjointe à des activités sportives, culturelles,
sociales ou autres;
• Voyage
commun;
• Valeurs
communes en ce qui a trait à la gestion du ménage;
• Partage
des responsabilités envers les enfants; valeurs
communes en ce qui a
trait à l’éducation des enfants; volonté de prendre soin des enfants de
l’autre;
• Témoignages
de parents, de membres de la famille, de membres de la parenté ou d’amis et
autres parties intéressées sur la
nature de leur
relation et sur le fait que le couple se présente aux autres comme des
partenaires. Les témoignages sous forme d’affirmation solennelle sont
privilégiés.
Aspects physiques
et émotifs de la
relation - le degré
d'engagement que
représentent :
• La
connaissance de la situation personnelle, du passé et de la
situation familiale
de l’autre;
• Les
valeurs et intérêts communs;
• L’intention
exprimée que la relation durera;
• La mesure
dans laquelle les parties ont combiné leurs affaires, par exemple, se
sont-ils mutuellement désignés comme bénéficiaires des régimes d’assurance ou
de retraite?
• La prise
de décision conjointe lorsque les conséquences pour un
des partenaires touchent
l’autre;
• S’offrent-ils
mutuellement du soutien lorsqu’ils sont malades ou à des occasions spéciales
- lettres, cartes, cadeaux, congé pour prendre soin de l’autre;
• Les
dispositions testamentaires des parties établies en faveur de
l’autre fournissent
la preuve que les partenaires ont l'intention d’avoir une relation durable et
permanente;
• Le temps
passé ensemble;
• Le temps
passé avec leurs familles respectives.
• Une
communication régulière et continue lorsqu’ils sont séparés
Exemples de documents
à l'appui
• L’adhésion
familiale à un régime de soins médicaux, la documentation fournie par les
institutions qui
prouve qu’il s’agit d’un couple;
• Certificat
de mariage (pas seulement un dossier de solennisation), faire-part, cérémonie
d’engagement (certificat, invitations), certificat d’union libre;
• Propriété
commune de biens, factures de services publics communes, entente de location
commune, hypothèque
ou prêt conjoint, titre de propriété, relevés bancaires conjoints,
transferts monétaires;
• Documents
faisant état de voyage ensemble, factures d’interurbain, autres preuves de communication
continue (courriels, imprimés de bavardage en ligne, lettres);
• Polices
d’assurance (où le partenaire est inscrit comme bénéficiaire), testaments,
procurations
écrites;
• Photographies
pertinentes;
• Déclarations
de soutien de la famille, de gestionnaires de banque, d’employeurs, des
professionnels
financiers, de chefs religieux, de dirigeants communautaires, de professeurs,
d’enseignants ou de professionnels de la santé.
Les éléments
ci-dessus peuvent être présents à divers degrés et ne doivent pas
nécessairement être tous présents pour qu’une relation soit conjugale. La
présence d’un élément peut dépendre
de la culture ou des
préférences du couple. Par exemple, dans certaines cultures, les femmes ont
un rôle limité quant
à la gestion des finances de la famille, c’est pourquoi il peut ne pas y
avoir de propriété conjointe des biens immeubles ni de comptes de banque
conjoints. Certains couples
peuvent choisir de
ne pas fusionner les affaires financières, et pourtant ils vivent une relation
conjugale et ont fusionné leurs activités à d’autres égards.
Les agents doivent
examiner chaque union individuellement et tenir compte de toute autre
information
pertinente fournie par le demandeur (ou autres informations dont disposent
les
agents), afin
d’évaluer s’il est en présence d’une relation conjugale.
Les agents doivent
également tenir compte de la mesure dans laquelle les lois et (ou) les
traditions du pays
d’origine du demandeur peuvent dissuader les parties d’admettre ouvertement l’existence
de leur relation.
|
STANADARD OF REVIEW
[32]
The
Applicant submits that this application raises issues that are subject to review
using the standard of reasonableness: Dunsmuir v. New Brunswick 2008 SCC
9 (Dunsmuir) at paragraph 47.
[33]
On
issues of credibility, the pre-Dunsmuir standard of review was patent
unreasonableness: Hou v. Canada (Minister
of Citizenship and Immigration) 2005 FC 1586 at paragraph 13
and Aguebor
v. Canada (Minister of Employment and Immigration), [1993]
F.C.J. No. 732 (F.C.A.) at paragraph 4.
[34]
When
deciding whether someone is a member of the family class, the pre-Dunsmuir
standard of review was patent unreasonableness: Kazi v. Canada (Minister of Citizenship
and Immigration) 2008 FC 295 at
paragraph 20; Abdilahi v. Canada (Minister of Citizenship and Immigration), [2005]
F.C.J. No. 1431 and Sharief v. Canada (Minister of Citizenship and Immigration), [2003]
F.C.J. No. 386 (F.C.T.D.).
[35]
Whether
a person is actually in a common-law relationship or not is a question of fact
and has, pre-Dunsmuir, been subject to the standard of patent
unreasonableness: Vehniwal v. Canada (Minister of Citizenship
and Immigration) 2007 FC
279 at paragraph 12 and Slawinski v. Canada (Minister of Citizenship and Immigration) 2007 FC 1205 at
paragraph 8.
[36]
When
dealing with the standard of review for misrepresentations, Koo v. Canada (Minister of Citizenship
and Immigration) 2008 FC 931
provides as follows:
20 In Bellido v. Canada (MCI), 2005 FC
452, 138
A.C.W.S. (3d) 728, Madam Justice Snider dealt with the issue of
inadmissibility pursuant to s. 40(1) of the Act. She
held that there were two essential elements to a finding of inadmissibility,
namely that the misrepresentations
must have been made by the applicant and the misrepresentations must be material in that
they could have induced an error in the administration of the Act. She also determined that the standard of review for the first portion of
the test was patent unreasonableness, whereas the standard for the second part
was reasonableness simpliciter. As a result of the
decision reached by the Supreme Court in Dunsmuir v.
New Brunswick, 2008 SCC 9,
329 N.B.R.
(2d) 1, I believe the standard of review
for both legs of the test must now be reasonableness. As a result, this Court
shall intervene only if the decision does not fall “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, par. 47).
[37]
In Dunsmuir,
the Supreme Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the
analytical problems that arise in trying to apply the different standards
undercut any conceptual usefulness created by the inherently greater
flexibility of having multiple standards of review”: Dunsmuir
at paragraph 44. Consequently, the Supreme Court of Canada held that the two
reasonableness standards should be collapsed into a single form of “reasonableness”
review.
[38]
The Supreme Court of
Canada in Dunsmuir
also held that the standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to the particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves fruitless
must the reviewing court undertake a consideration of the four factors
comprising the standard of review analysis.
[39]
In light of the
Supreme Court of Canada's decision in Dunsmuir and the previous jurisprudence of this
Court, I find the standard of review applicable to the issues raised in this
application, except procedural fairness, is reasonableness. When reviewing a
decision on the standard of reasonableness, the analysis will be concerned with
“the existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir at paragraph 47. Put another way, the Court should only
intervene if the Decision was unreasonable in the sense that it falls outside
the “range of possible, acceptable outcomes which are defensible in respect of
the facts and law.”
[40]
The
Applicant has also raised a procedural fairness issue to which the standard of
review is correctness: Suresh v. Canada (Minister of
Citizenship and Immigration) 2002 SCC 1.
ARGUMENT
The Applicant
Breach of
Fairness
[41]
The
Applicant submits that there was a breach of procedural fairness in the present
case for the following reasons:
1)
The officer
who determined the Applicant to be inadmissible for misrepresentation was not a
designated officer for the purpose of making the decision;
2)
The
fact that the officer who determined the Applicant to be inadmissible for
misrepresentation was not the officer who conducted the interviews and
collected information from the Applicant breached the rule of fundamental
justice that “he who hears must decide.” See: Patel v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1423
(F.C.T.D.) (Patel) at paragraph 33.
[42]
However,
at the hearing of this matter in Toronto, the Applicant withdrew his procedural
fairness grounds of review because recent changes in the record clarify that
Officer Riley made a decision to exclude the Applicant for misrepresentation
which was then endorsed by Officer Tieman, who had the delegated authority to
exclude.
Credibility Concerns do
not in Themselves Amount to Misrepresentation
[43]
The
Applicant submits that he did not misrepresent his identity and that he
presented his birth certificate under the name of “Elisha Bivan Mugu” and a
passport under the name of Elisha Mugu. He also provided a police clearance
under the name of Elisha Mugu. The Applicant notes that the authenticity of
these documents was not questioned and neither was any aspect of his identity.
Therefore, there was no basis for the Officer’s statement that the Applicant
“misrepresented” his identity.
[44]
The
Applicant also submits that there was no misrepresentation about his previous
immigration history and immigration officials failed to explain how his
previous immigration history was misrepresented. Hence, the permanent residence
denial is unreasonable since it is not transparent or intelligible: Dunsmuir
at paragraph 47.
[45]
The
Applicant concedes that there were doubts about his explanation regarding his
previous passport. However, these doubts do not amount to misrepresentation.
General concerns regarding credibility do not constitute misrepresentation. The
Applicant cites section 9.7 of the Manual, which states that a failure to
satisfy an officer of certain facts or intentions does not equate to
misrepresentation. The Applicant submits that the immigration officials were not
satisfied with the Applicant’s explanation for the loss of his passport. This
was not a misrepresentation.
[46]
The
Applicant also submits that an error was made by the Officers in confusing a minor
credibility concern with misrepresentation. This is an error in law. As well,
the concerns regarding the circumstances described in the police report over
the loss of the Applicant’s passport can be explained: the Applicant’s passport
was in a car that was stolen from the Applicant while he was traveling from
Wuse II and Maitama. The Applicant was not able to explain this perceived
inconsistency because he did not meet with Officer Tieman, who determined him
to be inadmissible for misrepresentation.
No Materiality
[47]
The
Applicant submits in the alternative that, if there was misrepresentation, then
it was not material. It is trite law that the test under section 40 of the Act
requires that a misrepresentation be material: Ali v. Canada (Minister of
Citizenship and Immigration) 2008 FC 166.
[48]
The
Applicant submits that, even if he misrepresented his identity, which is
denied, the alleged misrepresentation was not material to the bona fides
of his relationship with his sponsor. Whether the Applicant is Elisha Bivan or
Elisha Mugu, there was ample evidence demonstrating the bona fides of
his relationship with his sponsor, which is revealed in the CAIPS notes where Officer
Riley found the relationship to be genuinely committed.
[49]
The
Applicant notes that there is no explanation provided as to how he allegedly
misrepresented his previous immigration history. That previous immigration
history was not material to the bona fides of his relationship to his
sponsor. Therefore, he says that, even if he was responsible for a
misrepresentation, such misrepresentation was not material to any issue on his
application and the test under section 40 was not met.
[50]
The
Applicant further submits that he did not file applications under different
identities. He simply omitted his middle name on his permanent residence
application. This did not constitute a misrepresentation of his identity. The
Applicant submits that all of the identity documents presented by him were
valid, legal identity documents that were not challenged or doubted, so there
was no basis to say that he had misrepresented his identity.
[51]
The
Applicant further says that Officer Riley’s Decision that the Applicant’s
relationship was not genuine is not justifiable and does not fall within the
range of possible, acceptable outcomes defensible on the facts and law. The
Applicant alleges that he provided substantial documentary evidence that established
his relationship and that, after a personal interview with the Applicant,
Officer Riley did not identify any inconsistencies nor any other credibility
issues pertaining to the relationship. After the interview, Officer Riley
explicitly found the relationship to be genuine. There is no logical,
justifiable link between Officer Riley’s concerns about the Applicant’s
passport/use of an abbreviated name and the existence of a genuine relationship
between the Applicant and his partner.
[52]
The
Applicant concludes that Officer Riley’s refusal is not valid in law because it
refuses the application on the basis of a non-genuine relationship without
addressing whether that relationship was entered into primarily for the purpose
of acquiring any status or privilege under the Act. See: Donkor v. Canada
(Minister of Citizenship and Immigration) 2006 FC 1089; Ouk v. Canada (Minister of
Citizenship and Immigration) 2007 FC 891 and Khera v. Canada (Minister of
Citizenship and Immigration) 2007 FC 632.
[53]
The
Applicant relies upon Manual OP2 at sections 5.25 and 5.26, which identify a
number of factors that establish a genuine relationship, such as financial
interdependence, social perception as a couple, frequency of contact and other
factors. The Applicant submits that none of these factors are absent in the
Applicant’s relationship. Officer Riley failed to identify any concerns
regarding the evidence presented to support the relationship. The Applicant points
to the test for conjugality and the case law surrounding conjugal relationships
and submits that Officer Riley erred in misapplying the test for a genuine
conjugal partner relationship and, therefore, erred in law.
The Respondent
[54]
The
Respondent submits that the two factors that must be present for a finding of
inadmissibility in section 40(1) of the Act are: (1) a misrepresentation by the
applicant; and (2) the misrepresentation was material and could have induced an
error in the administration of the Act. The determination of the first factor
is largely fact driven and both factors were subject to deference. See: Bellido
v. Canada (Minister of
Citizenship and Immigration) 2005 FC 452.
[55]
The
Respondent states that, in the present matter, the Applicant filed applications
under different identities. His explanation for doing so was found to be
lacking and gave rise to general credibility concerns regarding his identity,
his admissibility and the bona fides of the common law relationship.
These misrepresentations are material and if they had not been brought to
light, they could have induced an error in the administration of the Act.
ANALYSIS
General
[56]
In
his application for permanent residence and his interview with Officer Riley,
the Applicant provided inaccurate and inconsistent information regarding his
identity and his immigration history.
[57]
Officer
Riley felt that these inaccuracies and inconsistencies gave rise to general
credibility concerns regarding the Applicant’s identity as well as the bona
fides of his permanent residence application and his relationship with his
conjugal partner and sponsor.
[58]
The
inaccuracies and inconsistencies were brought to the Applicant’s attention by
Officer Riley and he was asked to explain them and provide relevant
documentation that he said was in his possession.
[59]
In
response, the Applicant provided documents that did not resolve the problems
and, in fact, cast further doubt on his identity and general credibility.
[60]
The
Applicant was given full notice of these concerns as well as the legal
consequences of his actions. He was provided with a fairness letter and given
an opportunity to dispel the impression his own words and actions had created.
He failed to do this.
[61]
As
an inevitable consequence, Officer Riley recommended that the Applicant’s
application for permanent residence be refused and that he be excluded from
Canada for two years because of misrepresentation.
[62]
Six
months later, Officer Tieman reviewed the file and, as the person with
delegated authority to determine whether a permanent resident or a foreign
national outside Canada is inadmissible for
misrepresentation agreed with Officer Riley’s assessment and made the final
decision on misrepresentation.
[63]
The
Applicant now says that the credibility concerns do not amount to
misrepresentation and that, in any event, even if there were misrepresentations
they were not material to the bona fides of his relationship with his
sponsor. He says that Officer Riley’s Decision was unreasonable and that
Officer Tieman’s Decision was wrong in law.
[64]
Even
a bare recounting of the facts makes it clear that the Applicant is the author
of his own problems. His application for permanent residence and his interview
with Officer Riley gave rise to obvious inaccuracies, inconsistencies and
potential misrepresentations that the Applicant was asked to clarify and
resolve, but never did. His responses, in fact, gave rise to even greater
concerns. He was made fully aware of the issues and given every opportunity to
address them before final decisions were made.
[65]
At
the hearing of this matter in Toronto, the Applicant withdrew his procedural
fairness grounds of review because recent changes in the record clarify that
Officer Riley made a decision to exclude the Applicant for misrepresentation
which was then endorsed by Officer Tieman, who had the delegated authority to
exclude on the basis of misrepresentation.
Genuineness of the
Relationship
[66]
As
regards Officer Riley’s Decision, the Applicant argues that the Officer found
his relationship with the sponsor genuine but then reversed it because of
credibility concerns that have no real relevance to the issue of whether the
relationship was genuine. He says there is no sufficient logical link between
the credibility concerns and the genuineness of the relationship to render
Officer Riley’s Decision justifiable, intelligible and transparent within the
meaning of Dunsmuir. In fact, based upon Justice Mosley’s decision in Ouk
at paragraphs 10-18, the Applicant says that the selection of inappropriate
criteria (in the present case, the credibility concerns) to discern the
genuineness of a marriage is an error of law and is reviewable on a correctness
standard.
[67]
In Ouk,
Justice Mosley points out that both prongs of Regulation 4 have to be found
true before a marriage will be found not to be genuine. Justice Mosley also makes
it clear at paragraph 17 of Ouk that “It was open to the appeal panel to
find that the sponsor is inadmissible for misrepresentation pursuant to section
40 of the Act or that the marriage is not genuine, but the distinction between
these two avenues of inquiry must be kept clearly separate.”
[68]
The
CAIPS notes in the present case make it clear that Officer Riley’s conclusions
about the genuineness of the relationship were provisional and that his
concerns grew over time as the Applicant failed to clear up anomalies and
inconsistencies.
[69]
At
first, Officer Riley was “reasonably satisfied that the relationship [was]
genuine” but he had “strong concerns regarding the PA’s explanation of how he
came to lose his previous passport and obtained his new one, while changing his
name in the process.” Also, the “fact that he neglected to give complete
information about his accompanying friend Faisal, even when explicitly asked,
underlines my concern that PA has misrepresented his identity, and raises more
general concerns about his credibility.”
[70]
Officer
Riley requested further documentation so that his stated concerns could be
allayed. The police reports which the Applicant said he already possessed were
obviously important. The Applicant submitted further documentation but it did
not address the Officer’s concerns. In fact, the police report submitted was
dated October 18, 2006 and only served to increase Officer Riley’s concerns.
[71]
Officer
Riley reviewed the situation and then came to the following conclusions:
The
documents show long-term communication between the PA and spr. The photos
depict them as being physically intimate. I have strong concerns, however,
regarding the PA’s apparent misrepresentation regarding his passport and
previous applications for visa.
At
interview, the PA stated very clearly that he had filed a police report
regarding his lost passport, which was the passport he had used for his
previous visitor applications. He stated that he had two police reports which
were with him. I requested that he submit the original police reports, and PA
advised he would.
PA
has now submitted a police report dated after the day of the interview, which
contains different facts that those presented at interview: this police report
indicates passport was last (sic) in the year preceding the report (e.g.
2005-2006), whereas PA stated it was lost in 2003. Report states it was lost on
transit, while PA states it was stolen from his car.
While
I am satisfied that the spr and PA have been in communication for the stated period
and that the spr’s commitment may be genuine, I am not satisfied that the PA
has not entered into the relationship primarily for the purpose of immigrating
to Canada. The misrepresentation of the circumstances of his lost passport and
his change of name from his previously recorded passport lead me to conclude
that it is more likely than not that the change of name was done to hide PA’s
previous immigration history and his attempt to gain entry to Canada. The lack
of consistency between the information given at interview and the information
submitted since then suggest that PA was not truthfully representing the facts
at the time of the interview. It is not in 2003, and then in 2005, nor that he
would have claimed to have two police reports which he in fact is not able to
produce.
The
misrepresentation of these material facts regarding his lost passport might
have misled the officer into incorrectly assessing the bona fides of PA’s
application and the genuineness of the relationship.
Procedural
fairness letter sent to the applicant today, copy kept on file. PA has 60 days
to respond.
PA
has submitted documents for an official name change, dated 2007. This is
inconsistent with his claim at interview, that he changed his name after losing
his pervious (sic) passport and obtaining his current one. The
name-change documents appear to have been obtained for the purpose of
responding to my concerns letter.
PA
has also submitted another copy of the police report which was obtained after
the date of the interview, at which he claimed he already had a police report.
The
documents and information submitted do not overcome my concern.
The
applicant’s apparent misrepresentation of his identity and his previous history
with Immigration Canada undermines the credibility of his application.
While
the sponsor appears to be genuinely committed to the relationship, I am not
satisfied that the appl did not enter into the relationship primarily for the
purpose of immigration (sic) to Canada.
BASED
ON THE BALANCE OF PROBABLITIES (sic), I AM NOT SATISFIED THAT THE
APPLICANT DID NOT DIRECTLY OR INDIRECTLY MISREPRESENT A MATERIAL FACT
(INFORMATION REGARDING PREVIOUS PASSPORT AND NAME CHANGE) RELATING TO A
RELEVANT MATTER (ALTERNATE IDENTITY AND VISA APPLICATION) THAT COULD HAVE
INDUCED AN ERROR IN THE ADMINISTRATION OF IRPA AS IT COULD HAVE LED AN OFFICER
TO INCORRECTLY ASSESS THE BONAFIDES OF THE RELATIONSHIP AS WELL AS INCORRECTLY
ASSESS WHETHER THE APPLICANT IS INADMISSIBLE TO CANADA (BACKGROUND CHECKS).
APPLICANT
IS INADMISSIBLE TO CANADA FOR TWO YEARS FROM THIS DATE AS PER A40(1).
[72]
I do
not think it can be said that Officer Riley accepted the genuineness of the
relationship but then rejected the application over unrelated credibility
concerns.
[73]
Officer
Riley was prepared to give the relationship issue “the benefit of the doubt”
but he expected the Applicant to allay his concerns and, as the notes show,
those concerns were that “the sponsor appears to be genuinely committed to the
relationship” but Officer Riley “was not satisfied that the Applicant did not
enter into the relationship primarily for the purpose of immigration to Canada.
[74]
When
Officer Riley’s Decision and reasons are examined in total it seems clear that
he felt:
a.
There
was no genuine conjugal relationship because, notwithstanding the documentation
that supported the relationship, it was only the sponsor who was genuinely
committed; and
b.
The
Applicant had entered into the relationship primarily for the purpose of
immigration to Canada.
[75]
Of
course, Officer Riley had to base these conclusions on the evidence that was
before him. Both conclusions are based upon a continuous and unresolved
credibility concern that relates to the factors described by Officer Riley in
his reasons. In the end, Officer Riley could not accept the genuineness of the
relationship because “while the sponsor appears to be genuinely committed to
the relationship, I am not satisfied that the appl did not enter into the
relationship primarily for the purpose of immigration to Canada.”
[76]
He
is saying, in effect, that a relationship that is one-sided (the sponsor may be
genuinely committed but the Applicant is not) cannot be genuine. He uses the
Applicant’s motive for entering into the relationship (primarily for purposes
of immigration to Canada and the second prong of
the test under Regulation 4) as the reason why he does not regard the
relationship as genuine. I think he is also saying that he cannot accept the
relationship as genuine because he has general credibility concerns about the
Applicant, as explained in his reasons, which cause him to doubt what the
Applicant says about his commitment to the relationship. It is clear from the
CAIPS notes that this general credibility concern was based upon the
Applicant’s demeanor at the interview and the inconsistencies in his answers
and in the documentation produced.
[77]
So
the issues before me are:
a.
Was
the general negative credibility finding reasonable?
b.
Can
a general negative credibility finding be used to satisfy both prongs of
Regulation 4?
[78]
Based
upon the Applicant’s answers at the interview, and the inconsistencies in his
documentation and subsequent behavior (particularly as regards the police
reports and how he came to lose his passport) I cannot say that it was
unreasonable, within the meaning of Dunsmuir, for Officer Riley to find
that the Applicant lacked credibility.
[79]
It
also seems to me that such a general credibility finding is relevant to the
genuineness of the relationship, which the Officer thought was one-sided.
Officer Riley did not neglect to examine and comment upon the other factors
that supported the genuineness of the relationship but, in the end, he could
not accept that the Applicant was committed.
[80]
In
addition, there was an adequate evidentiary basis for the Officer to suspect
the Applicant’s motives and to conclude that his primary purpose in entering
into the relationship was immigration to Canada.
[81]
So I
do not think the Officer committed an error of law in selecting and using
inappropriate criteria to discern the genuineness of the marriage. If the
Officer could not believe the Applicant, then I do not see how he can be
satisfied that the relationship was genuine. Nor do I think that Officer Riley’s
Decision under Regulation 4 was otherwise unreasonable.
[82]
It
has long been accepted by this Court that the primary fact-finder is in the
best position to evaluate credibility. See Aguebor v. Canada (Minister of
Citizenship and Immigration), [1993] F.C.J. No. 732 (F.C.A.).
[83]
I
also think it is well established that a negative finding of credibility can be
extended to all relevant evidence. See Hamid v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 1427 (F.C.T.D.) at
paragraphs 6-7.
[84]
As
the Respondent points out, the Officer found untruths, inconsistencies and
contradictions in the Applicant’s answers at the interview that were further
compounded by anomalies in the documentation he submitted after the interview, and
which greatly affected his credibility and considerably reduced, or even
eliminated, the weight to be placed on all of his evidence. As the Federal
Court of Appeal pointed out in Sheikh v. Canada (Minister of Employment and
Immigration), [1990] 3 F.C. 238 (F.C.A.) at p. 244, a general finding of
lack of credibility on the part of an applicant may extend to all relevant
evidence emanating from his testimony.
Misrepresentation
[85]
The
Applicant says that general credibility concerns cannot amount to a
misrepresentation under section 40 of the Act. He says the evidence before
Officer Riley did not elevate credibility concerns to a section 40
misrepresentation.
[86]
The Applicant
points to section 9 of the Respondent’s own manual, ENF 2/OP, which deals with
misrepresentation in the context of inadmissibility. In particular he points to
the following:
It
must be recognized that honest errors and misunderstandings sometimes occur in
completing application forms and responding to questions. While in many cases
it may be argued that a misrepresentation has technically been made,
reasonableness and fairness are to be applied in assessing these situations.
[87]
The
Applicant suggests that the misrepresentations identified by Officer Riley with
regards to his identity and his immigration history did not really amount to
misrepresentations and, even if they did, they were just not material to the
issues that Officer Riley had to address under Regulation 4.
[88]
As
the Respondent points out, however, the Applicant was untruthful both on his
application form and in his interview with Officer Riley concerning the names
he uses and is known by, as well as his previous immigration history. And it
did not stop at that. He then failed to produce documents he said he had in his
possession and which were needed to substantiate things he had said at the
interview. What he did produce raised further credibility issues so that, in
the end, his general credibility was destroyed. The inconsistencies in the
Applicant’s account of his previous passport and how it had been misplaced, and
then stolen, and why he had decided to use a different name, and what happened
to the police reports he said he had to corroborate events from 2002-2003, have
still not been explained.
[89]
It
seems clear that, had the representations not been discovered, then a visa and
record of landing could have been issued to the Applicant in a false,
incomplete or inaccurate name and identity.
[90]
The
Applicant was sent a “fairness letter” which fully advised him that he might be
found inadmissible on grounds of misrepresentation and which gave him 60 days
to submit the documentation he said he possessed. The Applicant failed to
respond. Hence, Officer Tieman’s eventual decision to find the Applicant
inadmissible under subsection 40(1)(a) of the Act and his agreement with
the findings and conclusions of Officer Riley.
[91]
The
Applicant now says that his inaccuracies and inconsistencies were not
misrepresentations and, even if they were, they were not material; yet they
remain unexplained. It seems to me that there is ample justification for the
positions taken by Officer Riley and Officer Tieman. Their Decisions on
misrepresentation were neither incorrect as a matter of law and were certainly
not unreasonable given the evidence and the Applicant’s failure to resolve the
concerns he had raised.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
Application is dismissed.
2.
There is
no question for certification.
“James Russell”
Judge
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