Date: 20110211
Docket: IMM-1564-10
Citation:
2011 FC 171
Ottawa, Ontario, February 11, 2011
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
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OLUREMI ESTHER AKINMAYOWA
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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 a decision of an immigration officer,
dated June 10, 2009, denying the applicant’s application for permanent resident
status under the spouse in Canada class because the officer was not satisfied
that the applicant met the requirements of regulations 4 and 124(a) of the Immigration
and Refugee Protection Regulations, SOR/2004167 (the Regulations): namely that
the applicant and her sponsor cohabited, and that the marriage was genuine and not
entered into primarily for immigration purposes.
FACTS
Background
[2]
The
applicant is a 58-year-old citizen of Nigeria. She has three children
in Nigeria. She arrived
in Canada, alone, on
June 25, 2002.
[3]
On
August 23, 2002, the applicant made a claim for refugee protection on the basis
that she faced domestic abuse from her ex-partner in Nigeria. On November
10, 2004, in detailed reasons, the Board rejected her claim on the basis that
the applicant lacked credibility.
[4]
The
applicant submitted a Pre-Removal Risk Assessment application that was also
rejected.
[5]
On
June 14, 2004, the applicant submitted an application for permanent residence
and an exemption from the in-Canada selection criteria based on humanitarian
and compassionate grounds.
[6]
On
January 7, 2006, the applicant married her sponsor.
[7]
On
December 1, 2006, the applicant’s sponsor submitted an in-Canada spousal
sponsorship application on the applicant’s behalf. This application was
rejected on June 10, 2009, following a review of the application, the documentary
evidence and an interview that the officer conducted with the applicant and her
sponsor. It is the rejection of this application that is the subject of this
judicial review.
[8]
On
February 19, 2010, the applicant’s humanitarian and compassionate claim was
dismissed because the applicant failed to convince the decision-maker that her
personal circumstances were such that the hardship of having to obtain a
permanent resident visa from outside Canada in the normal manner
would be unusual and undeserved or disproportionate. This was directly related
to the earlier finding that the marriage was not genuine and the applicant did
not cohabit with her spouse.
Decision under review
[9]
On
June 10, 2009, an immigration officer rejected the in-Canada spousal
sponsorship application submitted by the applicant’s sponsor on the applicant’s
behalf. The officer was not satisfied that the applicant and her sponsor were
cohabiting, nor that they were in a genuine spousal relationship. The officer
based this negative credibility finding upon the several inconsistencies in the
answers provided by the applicant and her sponsor during the interview that the
officer conducted with them.
[10]
The
officer concluded as follows:
Given that the Applicant and the Sponsor
have been living together since January 2006, it is reasonable to expect that
they would have been able to have the same answers for the above
situations/questions, as they have now been living together for three years.
They have also not provided enough valid supporting documentation to prove they
are cohabiting.
Given all the information and evidence
above, I am not satisfied that the Sponsor and Applicant are cohabiting or are
in a genuine spousal relationship, but one entered into only for the purposes
of immigration.
New evidence disclosed at the hearing
before the Court on February 1, 2011
[11]
At the
hearing before the Court on February 1, 2011, counsel for the applicant
disclosed to the Court for the first time a letter prejudicial to the applicant’s
case, dated April 26, 2006. This letter to the Immigration Case Processing
Centers in Mississauga and
Vegreville from an anonymous source calling itself “CONCERNED
NIGERIAN/CANADIANS, TORONTO”, states, and I
paraphrase:
1. the marriage
between the applicant and her Canadian husband “should not be given a
favourable consideration due to its illegal nature”;
2. the applicant
is married to a prominent business man in Nigeria and “there
was no problem whatsoever within the family”. The story before the Immigration
and Refugee Board is “fiction”;
3. the applicant
arranged this marriage and paid $8,000; and
4. this is a
“bogus marriage” for immigration purposes.
This letter was discovered by the
applicant’s counsel just before the hearing. Originally the wrong Certified
Tribunal Record (CTR) had been sent by the Immigration Department to the Court.
The correct CTR was only sent to the Court on December 14, 2010. At that time,
the applicant’s counsel had left for vacation (in Africa) and had no knowledge of
the letter until just prior to the hearing. This letter had been sent to the Immigration
Department in 2006, after the applicant had married her sponsor, and before the
applicant’s sponsor submitted an in-Canada spousal sponsorship application.
[12]
Since
the respondent’s counsel was not aware that the applicant would be relying on
this letter as “extrinsic evidence” which would have caused the immigration
officer to have a bias toward the applicant’s credibility in relation to her
marriage, the Court allowed the respondent to file written submissions on the
issue after the hearing, and the applicant to reply. These further submissions
have been received and considered by the Court.
LEGISLATION
[13]
Regulation
124 of the Regulations defines which foreign nationals may be considered
members of the spouse or common-law partner in Canada class:
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.
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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.
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[14]
Section
4 of the Regulations
states that a foreign national will not be considered a spouse if the marriage
was not genuine and was entered into primarily for the purpose of acquiring
immigration status:
4.
(1) For the purposes of these Regulations, a foreign national shall not be
considered a spouse, a common-law partner or a conjugal partner of a person
if the marriage, common-law partnership or conjugal partnership
(a)
was entered into primarily for the purpose of acquiring any status or
privilege under the Act; or
(b)
is not genuine.
. .
.
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4. (1)
Pour l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait ou le partenaire conjugal d’une personne
si le mariage ou la relation des conjoints de fait ou des partenaires
conjugaux, selon le cas :
a)
visait principalement l’acquisition d’un statut ou d’un privilège sous le
régime de la Loi;
b)
n’est pas authentique.
. . .
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ISSUES
[15]
This
application raises the following issues for consideration:
1. Whether the failure
by the respondent to disclose to the applicant the April 26, 2006 letter from “CONCERNED
NIGERIAN/CANADIANS, TORONTO” constitutes a breach of the rules of natural
justice and the duty to act fairly; and, if it did not;
2. Whether the
immigration officer’s decision that the applicant’s marriage was not genuine
and that the applicant did not cohabit with her sponsor was reasonably open to
the respondent based on the evidence.
STANDARD OF REVIEW
[16]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of (deference) to be accorded with
regard to a particular category of question”: see also Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, per Justice
Binnie at paragraph 53.
[17]
Questions
of natural justice and the duty to act fairly are questions of law to be
determined on the standard of correctness: Kozak v. Canada (Minister of Citizenship and
Immigration),
2006 FCA 124, at paragraph 44; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190, at paras. 55 and 90; and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R.
339 at paragraph 43. However, a breach that was purely technical or resulted in
no substantial wrong or miscarriage of justice, or where the result would not
differ upon reconsideration will not invalidate the decision: Khosa at
paragraph 43, Yassine v. Canada (Minister of Employment & Immigration),
[1994] F.C.J. No. 949 (Fed. C.A.), Gale v. Canada (Treasury
Board),
2004 FCA 13.
[18]
Questions
of credibility and of the genuineness of a marriage or cohabitation relationship
are questions of fact to be determined on a standard of reasonableness: see,
for example, my decision in Yadav v. Canada (Minister of Citizenship &
Immigration),
2010 FC 140, at paragraph 50, and the other decisions cited therein.
[19]
In
reviewing the Board's decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, supra, at paragraph 47; Khosa, supra,
at paragraph 59.
ANALYSIS
Issue 1: Whether the failure by the respondent
to disclose to the applicant the April 26, 2006 letter from “CONCERNED NIGERIAN/CANADIANS,
TORONTO” constitutes a breach of the
rules of natural justice and the duty to act fairly
[20]
The
Court finds that the failure of the respondent to disclose the letter to the Immigration
Department from “CONCERNED NIGERIAN/CANADIANS, TORONTO” dated April
26, 2006, is a breach of natural justice and the duty to act fairly.
Undoubtedly, this letter would cause the immigration officer to, at the outset
of the decision-making process, doubt the credibility of the applicant and her
husband. The law is clear that if the decision relies upon extrinsic evidence,
that extrinsic evidence must be disclosed to the applicant. Moreover, the rules
of natural justice and the duty to act fairly in this case mean that the
applicant must be given an opportunity to see the letter that has been written
alleging that her marriage is a fraud, so that the applicant has an opportunity
to respond before the decision-maker is influenced by this letter.
[21]
This
letter may be legitimate “whistle-blowing”. The Court appreciates the
importance of such letters, and understands why they have to be anonymous. At
the same time, the rules of natural justice and the duty to act fairly, require
that the immigration department disclose such letters to the applicant
concerned so that the applicant has an opportunity to respond before letter is
relied upon.
[22]
The
obligation to disclose extrinsic evidence relied upon by the decision-maker in
the immigration context was considered in Mancia v. Canada (Minister of
Citizenship and Immigration), [1998] 3 F.C. 461. In that case, the
Federal Court of Appeal stated the following with respect to the general law:
The principles applicable with respect to
disclosure of evidence not within the knowledge of the person was formulated as
follows by Dickson J. in Kane, supra, at 1115-16:
[...] each party to a hearing is entitled
to be informed of, and to make representations, with respect to evidence which
affected the disposition of the case [...]
[23]
In
Mancia the Federal Court of Appeal concluded that information on general
country conditions that is publicly available does not need to be disclosed to
an applicant in order to satisfy the duty of fairness. In this case, that
exception does not apply. The letter at issue was extrinsic evidence not within
the knowledge of the applicant, and the decision-maker therefore had a duty to
give the applicant the opportunity to respond to it.
[24]
In
the case at bar, the immigration officer did not give weight or credibility to
the documentary evidence showing that the applicant and her sponsor’s marriage
was genuine and that they cohabited at an apartment. The immigration officer,
upon interviewing the applicant and her Canadian sponsor and spouse separately,
found discrepancies between some of their respective answers to the same
question. The Court has reviewed the immigration officer’s notes of this
interview and has found that some of the “discrepancies” can be explained as
not being discrepancies, and that the vast majority of the answers from the two
interviews were consistent and identical. The immigration officer gave these
consistent responses no weight. Undoubtedly the “whistle-blowing” letter
influenced the officer, as it would influence anyone.
[25]
Accordingly,
the Court cannot be satisfied that the breach of natural justice and the duty
to act fairly could not possibly have affected the outcome of the respondent’s
decision. If the immigration officer had not considered from the outset that
the marriage was a fraud confidentially disclosed to the immigration department,
the immigration officer may have given more weight to the documentary evidence
supporting the genuineness of the marriage and cohabitation, and the consistent
responses to the questions at the interviews.
[26]
Accordingly,
the Court finds that there has been a breach of natural justice and the duty to
act fairly. The second issues will not therefore be considered.
CERTIFIED QUESTION
[27]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. this application for judicial review is allowed;
2. the
decision of the immigration officer dated June 10, 2009 is set aside; and
3. the
applicant’s application for permanent residence and the sponsorship application
are referred to another immigration officer for redetermination with a
direction that the applicant may file further submissions in response to the
April 26, 2006 letter and may provide further documents with respect to the
genuineness of the marriage and the cohabitation.
“Michael
A. Kelen”