Date: 20070125
Docket: IMM-388-06
Citation: 2007 FC 85
Ottawa, Ontario, January 25,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SOKOL HAKRAMA
ELIZABETH SALAS-CHAVEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of an immigration officer, dated January 9, 2006, which denied the
application of Sokol Hakrama (the applicant) for permanent residence on
humanitarian and compassionate (H&C) grounds and under the in-Canada
Spousal policy.
[2]
The
applicant seeks an order quashing the decision and remitting the matter for redetermination
by a different officer.
Background
[3]
The
applicant, Sokol Hakrama, is a citizen of Albania. He arrived in Canada in May 2000 and immediately made a claim
for refugee protection. The applicant alleged a fear of persecution on the
basis of his political opinion.
[4]
The
applicant met Elizabeth Salas-Chavez in October 2001, when he began coaching
her college volleyball team. The couple dated for a few months and were engaged
in January 2002. They married on June 13, 2002, at a small church ceremony,
which most of their relatives could not attend given the cost of travel. Ms.
Salas-Chavez is originally from Mexico and became a permanent resident of Canada in September 2002. She
acquired Canadian citizenship in July 2005. The couple have lived together in a
rented apartment since 2002 and have now been married for over four years. The
applicant is employed as a truck driver and also works at a hotel. His wife is
a university student and works as a personal trainer.
[5]
The
applicant’s refugee claim was denied on September 10, 2002, and an appeal from
the decision was denied in November 2002. The applicant and his wife
subsequently filed a sponsorship application for permanent residence and a humanitarian
and compassionate (H&C) application for an exemption from the permanent resident
visa requirement. This application was refused in January 2004 because the
couple failed to submit sufficient documentary evidence to establish that their
marriage was genuine. In March 2004, the applicant submitted his second
sponsorship and H&C applications. On November 2, 2005, this application was
converted to an application under the in-Canada Spousal policy. On January 9,
2006, this application was also rejected on the grounds that the applicant’s
marriage to Ms. Salas-Chavez was not genuine. This is the judicial review of
the officer’s decision to refuse both the in-Canada Spousal and H&C
applications.
Officer’s Reasons
[6]
The
officer advised that the application for permanent residence under the
in-Canada Spousal policy had been reviewed and was rejected since the applicant
was unable to show that his relationship was bona fide. The H&C
application was also assessed and denied. The notes included as reasons for
denying the application refer to the fact that the applicant’s refugee claim
and prior permanent residence application had been denied. The officer noted
certain facts about the couple including: their income, the circumstances under
which they met, and their involvement in volleyball. The most relevant portion
of the notes is reproduced below:
The
applicant submitted a copy of a lease from landlord, Gus Leontis confirming
that he and his wife live at 1010
Weston Road in Toronto. I note that they have not submitted rent receipts, copies
of void cheques or bank statements to show the $800.00 being cashed or paid on
a monthly basis. Their names do not appear jointly on mutual assets or
bank/chequing accounts. The applicant and his wife also do not appear to share
bills or have a level of mutual interdependency normally associated with a
married couple. Their names do not appear jointly on any
phone/hydro/cable/internet bills.
The
applicant and Ms. Salas have been married since June 2002. I find it
interesting that they have sent only 6 pictures depicting limited activities. They
are unable to satisfy me that they are in a bona fide relationship. I am not
satisfied that this marriage is for any other purpose than to facilitate immigration
to Canada. Applicant is not a member of the
Spousal in Canada class.
The
applicant mentioned that he is requesting a personal interview. The applicant
and his spouse were given the opportunity to make submissions and specifically
relating to the marriage. I have chosen not to convoke for interview as there
is sufficient evidence on file to proceed with the finalization of this case.
[7]
The
officer then assessed the H&C application. He noted the applicant’s
personal circumstances including: his membership on the Humber volleyball team,
letters of reference, employment history, and establishment in Canada. The officer concluded
that the applicant had family in Albania and could seek employment and continue sporting
activities there. The officer noted the applicant’s concern that he would be
jailed if returned to Albania due to his family’s
opposition to the Communists. There was no evidence that his parents had been
persecuted for their beliefs, and there were insufficient details to show that
he faced a personal risk if returned to Albania. The officer was not satisfied that the applicant
would experience unusual or disproportionate hardship if made to apply for a
visa from outside the country. The H&C application was therefore refused.
Issues
[8]
The
applicant submitted the following issues for consideration:
1. Did the officer err in
law and breach the duty of fairness by making his decision without providing
the applicant with an opportunity to rebut the finding that a bona fide
relationship did not exist?
2. Did the officer err in
law in the exercise of his discretion by ignoring and misconstruing evidence,
fettering his discretion and making findings of fact that were patently
unreasonable?
[9]
I
would rephrase the issues as follows:
1. Did the officer breach
the duty of fairness by failing to provide the applicant with an opportunity to
respond to his concerns?
2. Did the officer err in concluding
that the applicant’s marriage was not bona fide?
Applicant’s Submissions
[10]
The
applicant submitted that the general standard of review applicable to H&C
decisions made by immigration officers is reasonableness (see Kawtharani
v. Canada (Minister of
Citizenship and Immigration) (2006), 146 A.C.W.S. (3d) 338, 2006 FC 162).
[11]
The
officer doubted the bona fides of the applicant’s marriage because he
failed to provide sufficient evidence of mutual interdependence. However, the
officer refused his request for an interview to alleviate these concerns on the
basis that there was sufficient evidence on file to reach a final decision. The
applicant submitted that he and his wife faced considerable hardship should the
sponsorship application be rejected. There was a removal order against him
which could be activated in the future. His wife stated that she would abandon
her studies and career in order to follow her husband, should he be forced to
leave Canada. It was submitted that
in the circumstances, and given that the credibility of their marriage was a
central issue, an interview should have been granted.
[12]
In Chitterman
v. Canada (Minister of Citizenship and Immigration) (2004), A.C.W.S.
(3d) 513, 2004 FC 765, Mr. Justice von Finckenstein held that where credibility
issues arise in a matter of the bona fides of a marriage, these
questions are best resolved through an interview. In Pham v. Canada
(Minister of Citizenship and Immigration) (2005), 139 A.C.W.S. (3d) 166,
2005 FC 539, Mr. Justice Rouleau took note of guidelines that were issued to
immigration officers which suggest that interviews should be held in cases
where the bona fides of a relationship is in doubt.
[13]
The
applicant submitted that the circumstances of his case warranted the granting
of an interview. This was a first marriage for both, and the couple had been
married for over three years when their second sponsorship application was
denied. They were married before the applicant’s refugee claim was denied and
commenced their first sponsorship application shortly after their marriage and
prior to the refusal of the refugee claim. It was submitted that the facts in
this case are stronger than those in Pham, wherein the Court determined
that it would have been prudent to hold an interview. The applicant submitted
that the officer breached procedural fairness in refusing the interview
request.
[14]
The
applicant submitted that the officer’s decision did not meet the reasonableness
standard set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
174 D.L.R. (4th) 193.
[15]
The
applicant submitted that the officer did not provide a logical explanation for
asserting that he and his wife were not in a bona fide relationship. No
mention was made of factors which would indicate that it was not a genuine
marriage. It was submitted that the applicant and his wife had common
interests, were married since June 2002, and provided evidence of cohabitation.
The applicant submitted that the officer made a perverse assumption based on
faulty logic that was unsupported by the facts. It was submitted that this
assumption resulted in a patently unreasonable decision.
[16]
The
applicant pointed out that the officer made several factual mistakes in his
notes. It was submitted that the cumulative effect of these factual errors was
to show that the officer failed to carefully consider the materials filed with
the application and thus based his findings upon incorrect facts.
Respondent’s Submissions
[17]
The
respondent submitted that H&C applicants have no right to an interview. In
addition, since applicants bear the onus of establishing the facts upon which
their claims are based, they omit pertinent information from their written
submissions at their peril (see Owusu v. Canada (Minister of
Citizenship and Immigration), [2004] 2 F.C.R. 635, 2004 FCA 38). The
respondent submitted that the applicant and his wife were married for three and
a half years and could have provided the officer with more than six photos as
proof of their relationship. It was submitted that couples typically share
expenses and hold assets jointly, and as the applicant and his wife did not, it
was reasonable for the officer to conclude that their marriage was not bona
fide.
[18]
The
respondent submitted that since the applicant bore the onus of satisfying the
officer, the provision of obscure submissions did not impose a duty upon the
officer to inquire further about an issue (see Owusu above). It was
submitted that the applicant could not rely upon the fact that they provided
the officer with insufficient evidence to assert than an interview should have
been conducted. The respondent submitted that applicants must put their best
foot forward by placing all of the information in support of their application
before the officer. It was submitted that the refusal to grant an interview was
not a breach of procedural fairness (see Bui v. Canada (Minister of
Citizenship and Immigration) (2005), 140 A.C.W.S. (3d) 364, 2005 FC 816). The
respondent submitted that the applicant was given an opportunity to make
submissions about his marriage and that this evidence was fairly considered.
He therefore knew the case to be met and failed to prove the bona fides
of his marriage.
[19]
The
respondent submitted that in the absence of a reviewable error by the officer
in rejecting the H&C application, the Court cannot intervene. It was
submitted that the Court should not substitute its view of the merits of such
an application for that of the officer, even though the claim to be granted
permanent residence on H&C grounds may have merit (see Owusu above).
The respondent submitted that the factual mistakes pointed out by the applicant
were not determinative of the bona fides of the marriage and were
immaterial to the application.
Analysis and Decision
Standard of Review
[20]
Breaches
of procedural fairness are subject to judicial review on the standard of
correctness. An immigration officer’s decision regarding an H&C application
is subject to review on the standard of reasonableness (see Baker above).
This Court’s jurisprudence indicates that the standard of review applicable to
a decision regarding the bona fide nature of a marriage, in the context
of spouse in-Canada class permanent residence applications is reasonableness
(see Singh v. Canada (Minister of Citizenship and Immigration) (2006),
148 A.C.W.S. (3d) 467, 2006 FC 565 at paragraph 4; Mohamed c. Canada
(Ministre de la Citoyenneté et de l’Immigration), 2006 CF 696 at paragraph
39).
[21]
Issue
1
Did the officer breach the duty
of fairness by failing to provide the applicant with an opportunity to respond
to his concerns?
The applicant submitted that the
officer breached the duty of fairness by failing to provide him with an
interview in order to respond to concerns about the bona fides of his
marriage. The respondent submitted that the applicant did not have the right to
an interview, and should have submitted sufficient evidence in support of his
application. As noted by Mr. Justice Rouleau in Pham above, interviews
are not necessary to ensure the fairness of a hearing, however, this Court’s
recent jurisprudence indicates that interviews may be warranted in cases where
the bona fides of a marriage is in question (see also Chitterman above).
[22]
The
evidence that was submitted to establish that the couple were married included
a marriage certificate, photos, a letter from the couple’s landlord confirming that
they lived together in a leased premises and a joint insurance policy. A review
of the officer’s notes shows that the officer was concerned that a couple who
were married since June 2002 had only submitted six pictures of themselves
together. I would note there is no requirement to submit a certain number of
photos. As well, the officer was concerned that the couple did not have a joint
bank account or that their names did not appear jointly on utility bills.
[23]
Upon
review of the officer’s notes and the file material, I cannot determine what
facts would support the officer’s finding that the marriage was not bona
fide. The fact that a couple do not have a joint bank account or do not
have both of their names on utility bills does not mean that their marriage is
not bona fide. There were documents before the officer which indicated
that the couple were married and lived together. If the officer doubted the
credibility of the documentary evidence presented to show that the couple were
in a bona fide marriage, the officer should have called them in for an
interview, since there was no factual evidence to show that they were not
married.
[24]
Section
10.2 of IP8 “Spouse or Common-law Partner in Canada Class”, the respondent’s
own policy manual, suggests that an interview should take place if the officer
doubts the genuineness of the submitted documents.
[25]
I
wish to point out that an interview is not always necessary, as the need for an
interview will depend upon the facts of each particular case.
[26]
I
am of the view that the officer’s refusal to grant the applicant’s request for
an interview resulted in a breach of the duty of procedural fairness. The
application for judicial review is therefore allowed, the decisions of the
officer are set aside and the matter is referred to a different officer for
redetermination.
[27]
Because
of this conclusion, I need not deal with the remaining issue.
[28]
Neither
party wished to submit a proposed serious question of general importance to me
for my consideration for certification.
JUDGMENT
[29]
IT
IS ORDERED that the application for judicial review is allowed, the decisions
of the officer are set aside and the matter is referred to a different officer
for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The
relevant statutory provisions of the Immigration and Refugee Protection Act,
S.C. 2001, c.27 are as follows:
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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 shall be issued if, following an
examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
25.(1) The
Minister shall, upon request of a foreign national who is inadmissible or who
does not meet the requirements of this Act, and may, on the Minister’s own
initiative, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
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11.(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
25.(1) Le ministre doit, sur
demande d’un étranger interdit de territoire ou qui ne se conforme pas à la
présente loi, et peut, de sa propre initiative, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
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The relevant statutory
provisions of the Immigration
and Refugee Protection Regulations, S.O.R./2002-227, state as follows:
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4. For the purposes of these Regulations,
a foreign national shall not be considered a spouse, a common-law partner, a
conjugal partner or an adopted child of a person if the marriage, common-law
partnership, conjugal partnership or adoption is not genuine and was entered
into primarily for the purpose of acquiring any status or privilege under the
Act.
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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4. Pour
l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait, le partenaire conjugal ou l’enfant
adoptif d’une personne si le mariage, la relation des conjoints de fait ou
des partenaires conjugaux ou l’adoption n’est pas authentique et vise
principalement l’acquisition d’un statut ou d’un privilège aux termes de la
Loi.
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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