Date: 20070803
Docket: IMM-6729-06
Citation: 2007 FC 816
Ottawa, Ontario, August 3,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
CAI,
CHANGBIN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of an
immigration officer’s decision dated December 5, 2006, which denied the
applicant’s application for permanent resident status under the spouse or
common-law partner in Canada
class.
Background
[2]
The applicant is a citizen of China and has lived in Canada since June 30, 2001. While studying
at Bond International College in April or May 2002, he met his current common law partner, Wen
Yang.
[3]
Ms. Yang had applied for permanent residence on
January 27, 2005 as a dependent of her father. She had not disclosed that she
had a common-law partner when she applied. Ms. Yang was granted permanent
resident status on June 2006.
[4]
The applicant, Ms. Yang and some other students
shared a house together in Toronto from May to November 2002. The applicant and Ms. Yang resided
together in Ottawa since
December 2002 while attending college. They expressed to each other their
intention to remain together permanently in July or August 2005. They share
expenses, socialize together as a couple, and reside together as an intimate
couple.
[5]
On September 13, 2006, the applicant applied
from within Canada for permanent resident status under the spouse in Canada class. The applicant and Ms.Yang,
his sponsor, were interviewed on November 28, 2006. By decision dated December
6, 2006, their application was refused:
[…]
In order to become a permanent resident under the spouse or common-law partner
in Canada class, you must
comply with requirements as specified in the Immigration and Refugee Protection
Regulations.
Regulation
125(1)(d) states:
“A
foreign national shall not be considered a member of the spouse or common-law
partner in Canada class by
virtue of their relationship to the sponsor if,
(d) subject to subsection (2), the sponsor previously made an
application for permanent residence and became a permanent resident and, at the
time of that application, the foreign national was a non-accompanying family
member of the sponsor and was not examined”.
In
your case, you have not shown that you meet this requirement because at the
time of your sponsor’s application for permanent residence, she did not list
you as a non-accompanying family member and you were not examined. […]
[Emphasis in original]
Issue
[6]
The only issue raised in this application is
whether the immigration officer erred in determining that the applicant was his
sponsor’s common law partner when the sponsor applied to be a permanent
resident of Canada.
Relevant legislation
[7]
The legislation relevant to this application is:
1. the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act); and
2. the
Immigration and Refugee Protection Regulations, SOR/2002-227 (the
Regulations).
[8]
In particular, the following provisions of the
Regulations apply:
|
Definitions
1. (1) The definitions
in this subsection apply in the Act and in these Regulations.
"common-law partner" means, in relation
to a person, an individual who is cohabiting with the person in a conjugal
relationship, having so cohabited for a period of at least one year. ( conjoint
de fait ) […]
Member
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.
Excluded relationships
125. (1) A foreign national shall not be considered a member
of the spouse or common-law partner in Canada class by virtue of their relationship to the sponsor if
[…]
(d) subject to subsection (2), the sponsor previously made an
application for permanent residence and became a permanent resident and, at
the time of that application, the foreign national was a non-accompanying
family member of the sponsor and was not examined.
|
Définitions
1. (1) Les définitions qui suivent s’appliquent à la Loi et
au présent règlement.
«conjoint de fait » Personne qui vit
avec la personne en cause dans une relation conjugale depuis au moins un an.
( common-law partner )
[…]
Qualité
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.
Restrictions
125. (1) Ne sont pas considérées comme
appartenant à la catégorie des époux ou conjoints de fait au Canada du fait
de leur relation avec le répondant les personnes suivantes : […]
d) sous réserve du paragraphe (2), dans le cas où le
répondant est devenu résident permanent à la suite d’une demande à cet effet,
l’étranger qui, à l’époque où cette demande a été faite, était un membre de
la famille du répondant n’accompagnant pas ce dernier et n’a pas fait l’objet
d’un contrôle.
|
Standard of review
[9]
The issue raised in this application concerns a
question of mixed law and fact, namely whether the legal definition of a
“common-law partner” applies to the facts underlying the applicant and his
sponsor’s applications for permanent residence. Given that the immigration
officer is entitled to some deference in respect of factual findings, but not
in respect of the determination of the correct legal test to apply to those
factual findings, the appropriate standard of review is one of reasonableness.
Analysis
[10]
The immigration officer
denied the applicant’s application for permanent residence under section 124 of
the Regulations because the immigration officer determined that the applicant
was a non-accompanying family member of his sponsor when she applied for
permanent residence and was not examined at that time. This application turns
on whether the applicant’s sponsor was required under paragraph 125(1)(d) of
the Regulations to declare the applicant as her common-law partner when she
applied for permanent residence on January 27, 2005.
[11]
There is no dispute that
the applicant and his sponsor are currently in a common-law spousal
relationship. In her application to sponsor and undertaking, the applicant’s
sponsor stated that her relationship with the applicant began on June 1, 2002.
The applicant argues that, despite the fact that his relationship with the
sponsor traces back to 2002, his relationship with his sponsor did not meet the
requirements of a common-law relationship as of that date. Indeed, the applicant
argues that the requirements for a common-law relationship were met only after
his sponsor applied for and obtained permanent resident status. Therefore, the
applicant argues, he is not excluded under paragraph 125(1)(d) of the
Regulations.
[12]
As noted above, a
common-law partner under the Regulations “means,
in relation to a person, an individual who is cohabiting with the person in a
conjugal relationship, having so cohabited for a period of at least one year.”
The Regulations do not provide for the definition of a “conjugal relationship”.
However, as noted by Mr. Justice Rouleau in Siev v. Canada
(Minister of Citizenship and Immigration), 2005 FC
736, the Operating Procedures prepared by the respondent reflect the common law
test set out by the Supreme Court of Canada:
¶15 The guide OP 2 - Processing Members of the Family
Class sets out the tests laid down by the Supreme Court in M. v. H., [1999]
2 S.C.R. 3 for determining whether two persons are actually living in a
conjugal relationship:
- shared shelter (e.g. sleeping arrangements);
- sexual and personal behaviour (e.g. fidelity,
commitment, feelings towards each other);
- services (e.g. conduct and habit with respect to the
sharing of household chores)
- social activities (e.g. their attitude and conduct
as a couple in the community and with their families);
- economic support (e.g. financial arrangements,
ownership of property);
- children (e.g. attitude and conduct concerning
children)
- the societal perception of the two as a couple.
From the language used by the Supreme Court throughout M.
v. H., it is clear that a conjugal relationship is one of some
permanence, where individuals are interdependent -- financially, socially,
emotionally, and physically -- where they share household and related
responsibilities, and where they have made a serious commitment to one
another.
Based on these factors, the following characteristics
should be present to some degree in all conjugal relationships, married and
unmarried:
- mutual commitment to a shared life;
- exclusive -- cannot be in more than one conjugal
relationship at a time;
- intimate -- commitment to sexual exclusivity;
- interdependent -- physically, emotionally,
financially, socially;
- permanent -- long-term, genuine and continuing
relationship;
- present themselves as a couple;
(Point 5.25 in the
Guide) [Emphasis added]
[13]
The notes prepared by the immigration officer on
November 30, 2006 indicate that the applicant and his sponsor were interviewed
on November 28, 2006. Based on that interview and “numerous submissions on
file”, the immigration officer was satisfied that the client and sponsor have
been in a common-law relationship since 2003.
[14]
The immigration officer did not set out the test
applied to determine whether the applicant and his sponsor’s relationship fell
within the definition of a common-law spousal relationship. Based on my review
of the material before the immigration officer, it is apparent that while the
interview questions were aimed at determining whether the applicant and his
spouse were common-law partners as of the date of his sponsorship application,
there was no examination by the immigration officer about whether the applicant
and his sponsor shared a “mutual commitment to a shared life” and “enjoyed a
permanent long-term relationship” at the relevant time, i.e. January 27, 2005
when Ms. Yang applied for permanent residence.
[15]
When Ms. Yang and the applicant began living
together they were young students. As such, they may not have made a “mutual
commitment to a shared life” when they decided to live together. There was
accordingly no basis on which the immigration officer could reasonably conclude
that the applicant was the common-law partner of his sponsor as of January 27,
2005 when she submitted her application for permanent residence and did not
identify the applicant as a non-accompanying family member. The evidence is
that it was after June 2005 that the couple discussed making a mutual
commitment to a shared life, having a permanent, long-term relationship. This
is also reflected in the evidence that in late 2005 and early 2006 they started
having bank accounts, residential lease and insurance in both their names, and
the applicant only met his partner’s parents for the first time in June 2005.
[16]
As Mr. Justice Paul Rouleau held in Siev,
above, the meaning of “common-law partner” means that the conjugal relationship
is one of some permanence where the couple has made a serious commitment to one
another.
[17]
For the reasons above, this application for
judicial review is allowed. The applicant’s application for permanent residence
is returned for reconsideration by a different immigration officer.
[18]
The Court wishes to note that, regardless of the
legal merits of this application, the circumstances of this case raise
humanitarian and compassionate considerations which may entitle the applicant and
Ms. Yang to an exemption from the legal requirements of the Act.
[19]
Neither party proposes a question for
certification. No question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This
application for judicial review is allowed; and
2.
The
applicant’s application for permanent residence is returned for reconsideration
by a different immigration officer.
“Michael
A. Kelen”
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