Date: 20070529
Docket: IMM-4760-06
Citation: 2007 FC 522
Ottawa, Ontario, May 29, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
MENZIES MANKA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
[1]
Can true love exist between an older Canadian born woman and a
younger failed refugee? This is another case in which this Court has been asked
to review a visa officer’s decision to turn down a spousal sponsorship
application. The officer believed Mr. Manka, the foreign national, was not to
be considered a husband – and accordingly, a member of the family class,
because, to use the language of section 4 of the Immigration and Refugee
Protection Regulations, his marriage was “…not genuine and was entered into
primarily for the purpose of acquiring any status or privilege of the Act.”
[2]
He, who hails from Zimbabwe, arrived in Canada in November 2001.
His refugee claim was dismissed in April 2003. There is no indication that he
sought leave for a judicial review of that decision, or that he sought a
pre-removal risk assessment. In any event, there is a ministerial ban in place
against returning failed refugees to Zimbabwe.
[3]
Mr. Manka met his wife about two weeks before the negative
decision. They married a year later in April 2004, but she only sponsored him some
18 months later. There were a number of factors mentioned by the visa officer
in coming to her conclusion that the marriage was not genuine. One was that Mr.
Manka had been married in Zimbabwe, and she was not satisfied with the
certificate of divorce. One cannot be treated as a spouse under the Regulations
if already married.
[4]
Although satisfied that they lived under the same roof, she was
of the view that the couple was not intimate, based on contradictions in the details
of their daily lives, and their financial arrangements.
ISSUES
[5]
The issues
are:
a.
The standard of review;
b.
What constituted the decision?
c. The
divorce;
d. Daily married life; and
e. Actual bias
a. The Standard of Review
[6]
Although Canada (Attorney General) v.
Sketchley,
2005 FCA 404, tells us that each administrative decision has to be considered
in context, I am assuming the issues in this case should be reviewed on the
standard of patent unreasonableness, the most difficult one for Mr. Manka to
meet. I still consider the decision was based on conjecture, not inference, and
so has to be considered patently unreasonable.
b. What constituted the decision?
[7]
There was
considerable debate in that when Mr. Manka asked for the decision he was given
one page. Later the respondent included the notes of the officer leading up to
that decision. It is not necessary to determine whether the notes of interview
formed part of the decision, or whether they were something separate and apart,
similar to a trial transcript. One way or another they had to form part of the
tribunal record, and they amply demonstrate that the visa officer’s conclusions
were not based on factual inferences.
c. The divorce
[8]
The
officer was concerned because the divorce certificate was not signed and
further provides that all the ancillary matters pertaining thereto were to be
determined in the “main cause”. Mr. Manka provided a certified copy of the
divorce signed by the registrar of the High Court of Zimbabwe. This is exactly
the type of document one would receive here. Although he, who was not in Zimbabwe at the time of the divorce,
did not know what was meant by “ancillary matters”, the order clearly states “a
degree of divorce be and is hereby granted.” There is a presumption that a
document emanating from a foreign authority is what it purports to be. There
was absolutely no basis for the inference that the divorce was not genuine.
d. Daily married life
[9]
I cannot
think that anything turns on the couple’s difference of opinion as to whether
five or six people attended the ceremony!
[10]
The
officer was concerned that although the couple shared a credit card, they did
not provide documentary evidence that they had a common bank account and
otherwise intermingled their assets. There are various ways in which bank
accounts can be arranged, none of which would lead to a conclusion that the
parties were not intimate. Having been married in Quebec, their post-marriage assets were co-owned
because of the marital property regime of property of acquests. No questions
were put in that regard. Even if they had taken out a pre-nuptial agreement and
opted for the conventional regime of separation of property, no adverse
inference could possibly be drawn therefrom.
[11]
The
officer was annoyed because although she asked for tax forms, and they brought
many, they did not bring the one she wanted. Her recourse was to specify
exactly what forms she wanted, not to hold that theirs was a marriage of
convenience.
[12]
The record
reveals that confusing questions were asked to the spouses separately about
where they kept their change. The officer seems to think that they would have a
common pot. One said she kept her change in the kitchen, the other said he kept
his on the dresser. There is no contradiction there.
[13]
Apparently
Mr. Manka forgot details of a trip to Ottawa.
Trips to Ottawa were apparently a regular
occurrence. A lapse of memory on a trivial matter is itself trivial.
[14]
Finally,
Mr. Manka was caught out in a lie. He said he quit his job while in fact he was
fired. It was his wife who told the visa officer he was fired. She knew about it
because she was emptying out his pockets in order to clean his pants, and found
the note. That was a clear sign of intimacy.
[15]
The fact
that he lied about his job was not relevant to the issue which was the genuineness
of the marriage. The lie had to have some relevance to the case at hand (Awuah v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1873 (QL); Owusu v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1195).
[16]
For these
reasons I find the decision was based on erroneous findings of fact made in a
perverse or capricious manner and without regard for the material at hand.
e. Actual bias
[17]
Mr. Manka
now claims that during his interview on 1 August 2006, the officer said to him,
while his wife was not present, “I do not trust black people”. He received the notice
of the negative decision two weeks later. The officer vehemently protests that
allegation. She said she told him she did not trust him because he was proven
to be a liar with respect to his job.
[18]
It is not
necessary for me to comment on this allegation of actual bias, save to point
out that the allegation was only made after the negative decision.
[19]
The
Minister has until 24 May 2007 to propose a question for certification, and the
applicant until 29 May 2007 to reply.
AFTERWARD
[20]
These
reasons were first issued to the parties on 16 May 2007. Subsequently, the
Minister has informed the Registry he would not be proposing a question of
general importance for certification. Consequently, these reasons are as they
were first issued, save that I took the opportunity to correct a slip of the tongue
at paragraph [19] and added the following order to my reasons.
ORDER
THIS COURT
ORDERS that the application for judicial
review is granted. The matter is sent back for redetermination before another
visa officer. There is no question of general importance to certify.
“Sean Harrington”
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