Date: 20071127
Docket: IMM-5950-06
Citation: 2007 FC
1205
Ottawa, Ontario, November 27, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
KRZYSZTOF
SLAWINSKI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under section 72 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the immigration
officer (the officer) dated October 4, 2006 wherein the officer determined that
Mr. Slawinski (the applicant) did not meet the requirements of the spouse or
common-law partner in Canada class.
BACKGROUND
[2]
The applicant is a failed refugee claimant from Poland.
[3]
He entered Canada in September 2002 as a temporary resident and he claimed refugee
protection in July 2003. His claim was refused on April 13, 2005. On the same date,
his departure order entered into force.
[4]
On June 29, 2006, he applied for permanent residence in Canada on the basis that he had been in a common-law relationship
with Agnieszka Barbara Robakowska, a permanent resident of Canada, for a year at the time of his application.
DECISION
UNDER REVIEW
[5]
The officer denied the application on the basis that he did
not meet the requirements of paragraph 124(a) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the
Regulations). He found specifically, that the applicant failed to demonstrate
that he is the common-law partner of a sponsor with whom he has cohabited in Canada for
a year.
ISSUE FOR
CONSIDERATION
[6]
Did the officer err in law by failing to consider relevant
evidence?
PERTINENT
LEGISLATION
[7]
The following provisions are relevant to this application:
|
The Act:
Definitions
1. (1) The definitions
in this subsection apply in the Act and in these Regulations.
"common-law partner" means, in relation to a
person, an individual who is cohabiting with the person in a conjugal
relationship, having so cohabited for a period of at least one year. ( conjoint
de fait ) […]
The Regulations:
Member
124. A foreign national is a member of the spouse or
common-law partner in Canada class if they
(a) are the spouse or
common-law partner of a sponsor and cohabit with that sponsor in Canada;
(b) have temporary
resident status in Canada; and
(c) are the subject of
a sponsorship application.
|
Définitions
1. (1)
Les définitions qui suivent s’appliquent à la Loi et au présent règlement.
«conjoint de fait » Personne qui
vit avec la personne en cause dans une relation conjugale depuis au moins un
an. ( common-law partner ) […]
Qualité
124. Fait
partie de la catégorie des époux ou conjoints de fait au Canada l’étranger
qui remplit les conditions suivantes :
a) il est l’époux ou le conjoint de fait d’un répondant et vit avec
ce répondant au Canada;
b) il détient le statut de résident temporaire au Canada;
c) une demande de parrainage a été déposée à son égard.
|
STANDARD OF
REVIEW
[8]
Determining whether there was sufficient evidence to prove
that the applicant lived in a common-law relationship of one year with his
sponsor at the time the application was submitted is a pure question of fact.
Therefore, the applicable standard of review is patent unreasonableness (Vehniwal v. Canada (Citizenship
and Immigration), 2007
FC 279 at paragraph 12).
ANALYSIS
[9]
The applicant submits that the officer erred in determining
that he did not reside with his sponsor on the evidence that was put before the
officer.
[10]
The officer, in his decision, stated the information on
which he based his findings. The “hand written letter on unexplained letterhead
stating that Mr. Slawinski has been a tenant at Jameson since March 2005” which
was brought in lieu of the rental agreement the officer had asked him to bring to
the interview is clearly mentioned.
[11]
The fact that the officer did not mention the oral
explanation given by the applicant as well as two rent cheques payable to
Myriad Property Management dated April 4, 2006 and May 4, 2006 does not mean
that the officer did not consider them.
[12]
Madam Justice Judith A. Snider recently held, in Murphy v. Canada (Attorney
General), 2007 FC 905, at paragraph 13: “[a]
tribunal is presumed to have considered all of the material before it and is
not obliged to refer to each and every document.”
[13]
Essentially, the applicant is asking this Court to consider
the concerns raised by the officer and the explanations provided by the
applicant in reply, and to re-weigh those explanations to come to a different
conclusion, which it is not the place of this Court to do.
[14]
Having carefully considered the decision of the officer, I
cannot conclude that he based his decision on an erroneous finding of
fact that he made in a perverse or capricious manner or without regard for the
material before him.
[15]
The rent cheques payable to Myriad Property Management and the
oral explanation for not having a rental agreement in the name of both him and
his sponsor are elements that the officer could reasonably assign little
credibility in order to conclude that the applicant had not been living with
his sponsor for a year.
[16]
The officer’s decision was not based primarily on the
failure of the applicant to produce a rental agreement. Rather, the officer
concluded that there was insufficient credible evidence proving joint
residency.
[17]
The applicant’s record before this Court contains evidence
that contradicts the officer’s conclusion that the applicant provided phone
bills that dated back only to March 2006. Furthermore, the documents he
submitted as Exhibit “B” of his affidavit: phone bills prior to March 2006, the
bank statements in his name and those in the name of his company; and, correspondence
from the Canada Revenue Agency, are nowhere to be found in the certified Tribunal
Record. I would note that the letter from the Canada Revenue Agency is dated
July 5, 2004 and bears the defendant’s name at the address he declared in his
application for permanent resident status but not for that period of time. To
be more specific, he declared at question 9 of his application that he was
living at 7230 Darcel Avenue,
Apt. 123 from May 2003 to February 2005 and the letter dated July 5, 2004
indicates his address as 130 Jameson Avenue Apt. 217.
[18]
Since we do not have the transcript of the interview, I
find it difficult to accept the applicant’s statement that these documents were
put forward at the interview and that the officer made a copy of the said
documents. I find this because those documents, which clearly are contradictory
to the decision, are specifically not mentioned in the Tribunal Certified Record.
[19]
Given that, barring exceptional circumstances, evidence
that was not before the decision-maker is not admissible before the Court on a
judicial review proceeding (Bekker v. Canada, 2004 FCA 186 at paragraph
11) and given that the applicant did not even try to submit this evidence as
new evidence but as evidence already put before the officer, the Court cannot
review the officer’s decision based on these documents.
[20]
In my view, the applicant failed to provide sufficient
valid evidence that this Court should intervene.
[21]
For all the above reasons, this judicial review is denied.
[22]
No question for certification was suggested.
JUDGMENT
1.
The application is denied.
2.
No question for certification.
“Pierre Blais”
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