Date: 20110404
Docket: IMM-3183-10
Citation:
2011 FC 411
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, April 4, 2011
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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KARIMA ESSAIDI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of an immigration officer’s decision to
reject the applicant’s permanent residence application in the “spouse or
common-law partner” class on the grounds that her marriage to her sponsor,
Muhamed Pandzic, was not genuine and was primarily for the purpose of acquiring
any status or privilege under the Immigration and
Refugee Protection Act (IRPA).
[2]
For
the following reasons, the Court finds that the officer’s decision is
reasonable given the evidence before her and that the principles of natural
justice and procedural fairness were respected during the interview preceding
this decision.
1. Facts
[3]
The
applicant was born in 1975 and is a citizen of Morocco. On
September 11, 2008, she obtained a visitor visa from the Canadian authorities,
which was extended until November 30, 2009. She entered Canada on September
28, 2008, apparently to assist her sister because one of her sister’s two
children was seriously ill.
[4]
The
applicant’s spouse was born in 1986 in Sarajevo, Bosnia-Herzegovina. He obtained
permanent residence in Canada on December 10, 2001, but is not a
Canadian citizen.
[5]
The
spouses met on October 2, 2008, and were married on April 13, 2009, in a Muslim
ceremony. The applicant filed an application for permanent residence in Canada in the “spouse
or common-law partner” class on September 11, 2009.
[6]
On
May 19, 2010, the officer completed interviews with the applicant and Mr. Pandzic.
The next day, she rejected the applicant’s application for permanent residence
on the grounds that the marriage was not genuine and that it was primarily for
the purpose of acquiring status in Canada.
2. Impugned decision
[7]
In
the notes in the file, the officer identified five discrepancies between the
answers given by Ms. Essaidi and Mr. Pandzic. These discrepancies concerned the
location of their first meeting, the last time they had sexual relations, the identity
of the witnesses at their wedding, their activities as a couple and the
applicant’s educational background.
[8]
Given
all of these elements, the officer arrived at the conclusion that the applicant
did not meet the criteria of the “spouse or common-law partner in Canada” class
insofar as the officer had reason to believe that the applicant’s relationship
with Mr. Pandzic was not genuine and that it had been established for
immigration purposes under section 4 of the Immigration and Refugee
Protection Regulations, SOR/2002-227.
3. Issues
[9]
The
applicant’s application for judicial review relies on two reasons. First, she
is of the opinion that the officer erred in finding that her marriage was not
genuine. Second, she is alleging that the procedure followed in this case
raises several breaches of procedural fairness and natural justice. I will
address these two arguments in turn.
4. Analysis
[10]
It
is now well established that the officer’s reasons with respect to the
genuineness of a marriage must be reviewed according to the standard of
reasonableness. Consequently, the Court will be concerned with “ . . .
the existence of justification, transparency and
intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir
v. New
Brunswick,
2008 SCC 9, at paragraph 47; Yadav v. Canada (Minister of
Citizenship and Immigration), 2010 FC 140, at paragraphs 50-51.
[11]
In
contrast, procedural fairness allegations must be assessed on the standard of
correctness: Canadian Union of Public Employees (C.U.P.E.) v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539, at paragraph 100; Dios v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1322 at paragraph 21.
[12]
Regarding
the reasonableness of the decision, the applicant first alleged that the
officer had erred by focusing on the minor discrepancies between the answers
she and her sponsor gave and by not sufficiently taking correct responses into
account. In her opinion, the officer should have given more thought to her
spouse’s memory loss caused by his medical condition as well as the fact that
he does not speak Arabic and therefore has difficulty remembering the names of
his spouse’s family members.
[13]
The
discrepancies identified by the officer between the applicant’s statements and
those of her sponsor are real and could have reasonably created doubt as to the
genuineness of their marriage. First, regarding where they first met, the
applicant had indicated that she had met her spouse at his home. For his part, Mr.
Pandzic had indicated in a letter sent to Citizenship and Immigration Canada
that he had met the applicant at her sister’s home. During the interview, Mr. Pandzic
had first reiterated that he had met the applicant at her sister’s home, but when
he was confronted with the response in his spouse’s form, Mr. Pandzic said that
he had made a mistake and that they had indeed first met at his home. The
applicant indicated in the interview that they had first met at her sister’s home,
thereby contradicting her form and her spouse’s modified answer. The applicant’s
explanations in the affidavit she filed before this Court do not help explain
these different versions.
[14]
Moreover,
Mr. Pandzic indicated during the interview that the last time he had had sexual
relations with the applicant had been one to two weeks before the interview,
adding that the applicant had had her period the week before the interview. In
response to the same question, the applicant had replied that the couple had had
sexual relations the night before. Even if this question may seem intrusive, it
is customary and normal for an officer deciding on the genuineness of a
marriage to ask questions on a couple’s intimate life.
[15]
When
questioned as to the identity of Hoummad Elhiri, the applicant’s witness, Mr. Pandzic
first identified him as the applicant’s father or brother, indicating that he
has trouble with names. When the officer showed him a picture of the wedding,
he correctly identified the applicant’s sister’s brother-in-law, but identified
him as “Med” and said that he did not know the identity of the other two people
with him.
[16]
The
officer then asked the spouses to describe their activities as a couple. The applicant
said that they do not go to movies because her spouse cannot stay seated for
long periods of time because he has a sore back. However, Mr. Pandzic’s answer
to the same question was, among other things, that the couple sometimes goes to
movies.
[17]
Finally,
the officer questioned Mr. Pandzic about the applicant’s educational history. He
replied that she did [translation]
“something like accounting with paperwork” and then cited memory problems. However,
the applicant indicated in her form that she has a bachelor’s degree in secondary
education and a diploma in executive assistance.
[18]
Each
of these individual discrepancies would not have been fatal when considered in
isolation and could have undoubtedly been explained, as the applicant indeed sought
to do. The fact remains that when considered as a whole, these discrepancies could
have reasonably led the officer to find that the marriage was one of
convenience with the purpose of enabling the applicant to obtain permanent
residence in Canada.
[19]
The
applicant’s argument that Mr. Pandzic’s contradictory answers can be explained
by the memory loss caused by his medical condition cannot be accepted because there
was no evidence of this before the officer. Mr. Pandzic tried to remedy this
problem by filing an affidavit on November 23, 2010, to which was attached
a medical certificate attesting to the concentration problems and memory loss
he has allegedly been suffering from since his employment injury. However, this
exhibit was not in the file at the time of the interview with the immigration
officer, and it is well established that the Court can only consider the evidence
that was before the administrative decision-maker when called to assess the
reasonableness of the decision reached.
[20]
What
is more, the applicant’s explanations of her spouse’s memory loss appear
contradictory. In her first memorandum, the applicant indicated that the medication
her spouse was taking for back pain (not the pain itself) was causing his
memory loss. Yet, Mr. Pandzic was not taking any medication during his
interview. In her supplementary memorandum, the applicant instead alleged that
his memory problems were the result of the fact that he had stopped taking this
same medication. All of these explanations are inconsistent and raise a
question of credibility.
[21]
In
short, I am of the opinion that the testimony by the applicant and her sponsor,
which was inconsistent in several respects, permitted the officer to find, on a
balance of probabilities, that their marriage was not genuine and that its
primary purpose was to acquire status in Canada. This is a conclusion that is
within the “ . . . range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at paragraph 47).
[22]
The
allegations of a breach of the principles of natural justice and procedural
fairness appear to me to be without merit.
[23]
First,
the applicant argued that she and her sponsor had not been informed of the
reasons for the interview beforehand. This argument cannot be accepted in light
of the very clear information contained in the interview letter sent to them
close to two weeks earlier. This document indicated that the interview was in
relation to the sponsorship application in Canada and that the meeting was
essential to the assessment of the application. The spouses were also asked to
bring a number of documents (passports, copies of leases, recent bank
statements, wedding photos), and [translation]
“any other document that could demonstrate the genuineness of your relationship
with your spouse/sponsor”. The officer’s notes also indicate that, at the
beginning of the interview, she informed the couple that they had been summoned
because there were doubts as to whether their marriage was bona fide. Consequently,
there seems to me to be no doubt that the applicant and her spouse knew the purpose
of the interview and could not have been mistaken as to why they had been
summoned.
[24]
Second,
the applicant argued that the officer had breached her duty of procedural
fairness by not informing her of her right to counsel, who could have helped
her prepare for the interview and could have accompanied her to it. Relying on Ha
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49, the
applicant contended that she and her spouse should have had the right to
counsel given the lack of any right to appeal the officer’s decision, the
contradictory and intrusive nature of the questions asked and her spouse’s
memory problems and lack of education.
[25]
A
close reading of Ha shows that, in this matter, the Court of Appeal merely
enshrined the principle established in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, that procedural fairness
requirements vary according to the circumstances. More specifically, the Court
indicated that the presence of counsel in an interview could be required when the
issues addressed are of a legal or complex nature. In this case, the interview’s
sole purpose was to clarify factual issues related to the genuineness of the
relationship between the spouses. These are not questions of a legal or
complex nature to which the applicant and her spouse could not have responded
adequately without counsel: see, by analogy, Najafi Asl v. Canada (Minister of
Citizenship and Immigration), 2009 FC 505.
[26]
The
factual background that led to Ha is absent in this case, and the argument
based on a right to counsel cannot be supported here. The officer was cognizant
of Mr. Pandzic’s medical situation and in no way prevented the presence of
counsel in the interview. In fact, no such request was made. What is more, the
questions asked during the interview were of a factual nature and related to
the relationship between the spouses, and the presence of counsel would have
been of limited value.
[27]
The
applicant also maintained that the officer failed to respect the principles of
procedural fairness insofar as she failed to inform her and her spouse of their
right to an interpreter. Again, there is no evidence in the record showing that
Mr. Pandzic’s health condition impaired his ability to understand the officer’s
questions and to answer them. Moreover, the officer asked Mr. Pandzic if he
understood her when she spoke in French at the very beginning of the interview,
to which Mr. Pandzic replied yes. Under these circumstances, the officer was
not required to inform Mr. Pandzic of his right to an interpreter, especially
since the answers he gave to the questions asked did not reflect a lack of
understanding on his part: see Lasin v. Canada (Minister of Citizenship and Immigration),
2005 FC 1356, at paragraph 11.
[28]
Finally,
the applicant argued that the officer had not noted all of the content from the
interviews with the applicant and Mr. Pandzic, and that without a recording or
a transcript of the hearing she could not submit a complete argument and
demonstrate the unreasonable nature of the interview.
[29]
Again,
I cannot but agree with the respondent’s argument on this point. First, I note
that each spouse signed the following statement at the end of their respective
interviews: [translation] “I, undersigned,
solemnly declare that I have answered the above-mentioned questions conscientiously
believing them to be true and knowing that this statement is of the same force
and effect as if made under oath”. Therefore, they both had the opportunity to
reread the officer’s notes and verify their accuracy.
[30]
Second,
neither the IRPA nor the IRPR stipulates that interviews by immigration
officers in the context of sponsored permanent residence applications must be
recorded. Without such a requirement, the applicant cannot raise the breach of the
principles of natural justice on the grounds that the hearing was not recorded.
In the absence of a right to a recording expressly stated by the Act, the principles
of natural justice would only be breached in a case where the matter before the
Court does not allow it to assess the reasonableness of the impugned decision: Canadian
Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R.
793, at paragraph 81; Navjot Singh v. Canada (Ministre de la Citoyenneté et de l’Immigration), 2009 CF 911,
at paragraphs 21-22. In this case, the detailed notes taken by the officer allow
the applicant to submit a complete argument and the Court to rule on her
application for judicial review. The fact that the interviews were not recorded
does not in any way adversely affect the applicant’s right to procedural
fairness and does not breach any rule of natural justice.
[31]
For
all of the foregoing reasons, I am therefore of the opinion that the
application for judicial review must be dismissed.
[32]
The
applicant proposed a question for certification, which is worded as follows:
[translation]
Is it legal for the Minister of
Citizenship and Immigration to discourage the use of counsel on the Citizenship
and Immigration Canada Web site and in the forms IMM 5476 (11-2010 E) and IMM
5476 (11‑2010 F) and to fail to mention the right to counsel when
corresponding with clients?
[33]
The
Federal Court of Appeal stated the necessary criteria for certifying a question
of general importance in Canada (Minister of
Citizenship and Immigration) v. Liyanagamage, (1994) F.C.J. No. 1637
(CA) (QL). The proposed question must transcend the interests of the immediate
parties to the litigation, contemplate issues of broad significance or general
application and be determinative of the appeal. In my opinion, the question
formulated by the applicant does not seem to satisfy these criteria. It is more
similar to a question of general importance that has very little to do with the
decision by Officer Blais. Even though the applicant indirectly raised this issue
in her affidavit, it was not addressed in her oral or written submissions. On
this ground alone, it must not be certified pursuant to paragraph 74(d)
of the IRPA.
[34]
A
close reading of the Citizenship and Immigration Web site and the forms
mentioned by the applicant reveals that using counsel services is not
“discouraged”. In fact, there is no reference to counsel, only to immigration
consultants. More importantly, applicants are not discouraged from using these
consultants; at most they are informed that it is unnecessary to hire such
consultants. In my opinion, this warning seems to arise out of a very
legitimate concern by the Department, which seeks to protect a vulnerable
clientele against the misleading or dishonest advertising some consultants
might provide, and thus informs them that it is entirely possible to complete
their application by following the instructions available to them. Consequently,
I think that the very premise of the question is erroneous.
[35]
These
reasons have already addressed the right to counsel. This question has already
been decided several times by the highest courts, namely by the Court of Appeal
in Ha, above, and therefore there is no need to certify it.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for judicial review be
dismissed. No question is certified.
“Yves
de Montigny”
______________________________
Judge
Certified
true translation
Janine
Anderson, Translator
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