Date: 20070711
Docket: IMM-2244-06
Citation: 2007 FC 740
Ottawa, Ontario, July 11, 2007
PRESENT: The
Honourable Mr. Justice Blanchard
BETWEEN:
JANY DOUGLAS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
The Applicant, Jany Douglas, seeks judicial
review of a decision of an immigration officer; (the Officer) dated April 18,
2005, wherein the Officer determined that the Applicant had not demonstrated
sufficient humanitarian and compassionate (H&C) grounds to warrant
exemption from the requirements of the Immigration Refugee Protection Act,
S.C. 2001, c. 27, (the Act) that all applications for permanent residence
in Canada be made from outside the country. In particular, the Officer found
that the Applicant had not met the requirements of the “new” public policy on
spouses and common-law partners issued in accordance with the Immigration
and Refugee Protection Regulations (the Regulations) with respect to the
spouse or common-law partner in Canada Class and section 25(1) of the Act.
2. Facts
[2]
The Applicant is a citizen of the Commonwealth of Dominica born June 22,
1971. She arrived in Canada on
July 8, 1999, and made a claim for Convention refugee status, which was denied.
[3]
In December 2001, she met her husband Nana Yaw
Asomaning, a landed immigrant, and they were married on May 25, 2003. Shortly
thereafter, the Applicant submitted an application sponsored by Mr. Asomaning
for permanent residence within Canada based on H&C considerations. A son, Josh Asomaning, was born to
the couple on August 1, 2003.
[4]
In a letter dated September 13, 2005, the
Applicant was informed that she had met the eligibility requirements to apply
for permanent resident status as a member of the spouse and common-law partner
in Canada class.
[5]
A letter received by Citizenship and Immigration
Canada (CIC) on December 23, 2005, purportedly signed by Mr. Asomaning, informed
CIC of Mr. Asomaning’s wish to withdraw his sponsorship of his wife since they
were separated and no longer living together.
[6]
On February 10, 2006, CIC requested further
information from the Applicant to clarify the December 23, 2005 letter. As a
result, Mr. Asomaning swore an affidavit dated March 10, 2006, wherein he
attests to the following:
I hereby state
and confirm that I have not submitted any such letter of withdrawal, neither
have I authorized anyone to submit any such letter on my behalf. I further
state and confirm that I am still married to my wife and wish to abide by the
undertaking submitted on her behalf in September 2003.
[7]
The Officer compared the signature of Mr.
Asomaning on the withdrawal letter with other signed documents on file by Mr.
Asomaning and found that all the signatures appeared to be exactly the same.
[8]
On April 13, 2006, the Officer placed a call to
the Applicant’s home to discuss the apparent inconsistency between the
withdrawal letter and the affidavit. The Applicant stated that her husband was
at work and stated at least two times that her marriage had not broken down.
The Officer then asked for Mr. Asomaning’s work number in order to conduct a
telephone interview. The Applicant was in the process of providing a phone
number when the call abruptly ended. The Officer called back three times and
these calls went unanswered
[9]
The Officer then called Mr. Asomaning’s last
known place of employment, Maple Leaf Foods. The employer confirmed that Mr.
Asomaning was still employed there, but worked the night shift and consequently
the Officer could not speak with him at that time.
[10]
In an affidavit filed in support of her
application, the Applicant attests that she did not mislead the Officer, and
that her husband had indeed gone to work at a new part-time job at an African
grocery store. The Applicant further attests that she did not hang up on the
Officer and that the call was in fact terminated because the telephone had
developed a problem as a result of being immersed in water earlier by her son
Josh.
3. Impugned
Decision
[11]
In a letter dated April 18, 2006, the Officer informed
the Applicant of the negative decision in respect to the public policy
exemption, noting that a letter withdrawing sponsorship was provided to CIC.
The Officer also informed the Applicant that her H&C application had also
been considered and had been denied.
[12]
In her CAIPS notes, the Officer found that the
signature on the withdrawal letter appeared to be that of Mr. Asomaning and
also found the Applicant not credible as a result of the phone conversation he
had had with her and subsequent discussions with Mr. Asomaning’s employer.
As a consequence, the Officer determined that the marriage was not genuine.
[13]
In her notes, the Officer writes that the
application was also assessed on H&C grounds. She notes that the Applicant
was found not to be a refugee. She also finds that the Applicant had parents
and a sister in Dominica who
may be able to provide her with emotional and financial support upon her
return. With respect to her 2 ½ year-old son, the Officer expressed the opinion
that he would integrate well into society wherever his mother is, and that his
best interests are to be with his mother.
4. Issues
[14]
This application raises the following issues:
1. Did
the Officer err in finding the Applicant not credible?
2. Did
the Officer err in determining that the marriage was not genuine?
3. Did the Officer err in finding there to be
insufficient grounds to warrant processing of the application for permanent
residence within Canada?
5. Standard
of Review
[15]
In Sadiki Ouafae v. Canada (Minister of
Citizenship and Immigration), 2005 FC 459, my colleague Mr. Justice de Montigny
conducted a pragmatic and functional analysis in order to determine the
applicable standard of review of a decision by a visa officer involving the
application of general principles under an Act or Regulations to a specific
circumstances. For such questions of mixed law and fact, the learned judge
determined that the applicable standard of review to be, reasonableness simpliciter.
In Ouafae, it was also noted that determination of the applicable
standard will depend on the nature of the decision and the context in which the
decision is made. In that respect, decisions of visa officers based on an
assessment of the facts are reviewable on a patent unreasonableness standard.
For such decisions, this Court will not intervene unless it can be shown that
the decision is based on an erroneous finding of fact made in a perverse or
capricious manner. I accept the reasons and findings of my colleague in respect
to the applicable standard of review of visa officers. His reasons were subsequently
endorsed by the Federal Court of Appeal in Bethouo Feliciano Eymard Boni v.
Minister of Citizenship and Immigration) 2006 FCA 68 at paragraph 7.
[16]
The first two questions under review involve
assessment of the facts. It is widely accepted in the jurisdiction of this
court that such factual determinations are reviewed on the patent
unreasonableness standard of review.
[17]
The third issue involves consideration of eligibility
requirements set out in the Regulations and the application of section 25(1) of
the Act to the circumstances of the case. This is a question of mixed fact and
law reviewable on a reasonableness standard.
6. Analysis
[18]
On September 7, 2005, it was determined that the
Applicant had met the eligibility requirements for permanent resident status as
a member of the spouse and common-law partner in Canada class. Because of the withdrawal letter, the Officer found the
Applicant not credible and determined that her marriage was not genuine.
Consequently, the Officer concluded that the Applicant had not met the
eligibility requirements for permanent resident status as a member of the
spouse and common-law partner in Canada class and dismissed her application for permanent residence. I will
now deal with the Officer’s credibility findings and determination that the
marriage was not genuine.
[19]
The Officer found the Applicant not credible by
reasons of her stating during the phone conversation that her husband was at
work. In fact Mr. Asomaning was not at his usual place of employment at that
time, but was actually at work at his new part-time job. These circumstances
were unknown to the Officer at the time she rendered her decision. The Officer
pursued the matter with the Mr. Asomaning’s full time employer who informed her
that Mr. Asomaning was not at work at that particular time. Based on this
information, the Officer incorrectly assumed that the husband was not at work
because he was not at his usual place of employment and consequently found that
the Applicant had misled her. In my view, the Officer’s finding that Mr. Asomaning
was not at work at the time the Applicant asserted he was is based on
speculation by the Officer and is not supported by the evidence. The employment
status of the Applicant’s husband is a matter that could have been easily
clarified had the Officer spoken with Mr. Asomaning. The Officer erred in
impugning the Applicant’s credibility on the strength of this erroneous
finding.
[20]
The Officer further impugned the Applicant’s
credibility by reason of the Applicant “refusing to answering the phone” after
she hung up on her. This finding is also not supported in the evidence. The
evidence reveals that the phone was cut off and the Officer was then unable to
reach the Applicant by phone. There could be many reasons for this to have
happened. The Officer simply speculated that the Applicant was rude and
uncooperative. The Officer erred in so finding. In my view, it was not open to
the Officer to impugn the Applicant’s credibility on the basis of this
erroneous finding.
[21]
I find that the Officer’s negative credibility
findings to be based on speculation and not supported in the evidence and as a
result are patently unreasonable.
[22]
The Officer also found the Applicant’s marriage
not to be genuine. This determination flowed from her acceptance of the
withdrawal letter. The Officer accepted the letter as genuine notwithstanding
the Applicant’s repeated assertions that the allegations contained in the
letter were false. The Officer also had before her Mr. Asomaning affidavit
evidence, wherein he attests that he did not send the withdrawal letter, that
he is still married and that he always has and still supports the sponsorship.
The Officer found the signature on the withdrawal letter appeared to be that of
Mr. Asomaning and relied on this finding to conclude that the letter was
genuine. I note that no expert evidence was sought to confirm this finding. The
Officer inferred, based on her observation of other signatures of Mr. Asomaning
on file that he signed the withdrawal letter.
[23]
In my view, it was not open to the Officer to
find the Applicant’s marriage not genuine. I come to this view based on the
totality of the evidence that was before the Officer. Particularly Mr.
Asomaning’s undisputed affidavit evidence attesting that he did not author the
withdrawal letter and stating categorically that he is still married to his
wife and still wished to sponsor her. Here, the marriage had already been
determined to be genuine by the Respondent. It is only upon receipt of the
withdrawal letter that the issue of the genuineness of the relationship arose. The
Officer’s negative decision essentially turned on the withdrawal letter. In
these circumstances, determining the authenticity of this letter was critical. Given
the weight of the evidence supporting the Applicant’s version of the facts and
in the absence of clear evidence which would have authenticated the signature
on the withdrawal letter as being that of Mr. Asomaning, it was patently
unreasonable for the Officer to conclude that the marriage was not genuine. In
these circumstances, it would have been desirable for the Officer to pursue her
investigation by at least speaking directly with Mr.Asomaning with respect to
his sponsorship before concluding as she did.
[24]
The above erroneous findings by the Officer were
central to her decision to reject the Applicant’s application for permanent
residence. The decision will therefore be set aside.
[25]
For the above reasons the application for
judicial review will be allowed and the matter will be sent back for
re-determination before a different visa officer to be dealt with in accordance
with these reasons.
[26]
The parties have had the opportunity to raise a
serious question of general importance as contemplated by paragraph 74(d)
of the Act and have not done so. I am satisfied that no serious question of
general importance arises on this record. I do not propose to certify a
question.
ORDER
THIS
COURT ORDERS that:
1. The application for judicial review is allowed.
2. The matter is sent back for re-determination
before a different visa officer to be dealt with in accordance with these
reasons.
2. No
serious question of general importance is certified.
“Edmond P.
Blanchard”
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