Date: 20080527
Docket: IMM-4132-07
Citation: 2008 FC 673
Ottawa, Ontario, May 27, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
JASBIR
SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
For
the reasons that follow, I grant Mr. Singh’s application to set aside the
decision of the Immigration Officer who found that Mr. Singh’s marriage was not
genuine and was entered into primarily for the purpose of acquiring permanent
residence status.
BACKGROUND
[2]
Mr. Singh is a 24-year-old citizen of India. He arrived in Canada on
December 14, 2003, on a student visa which was valid until March 4, 2006. On
March 3, 2006, he married Jyoti Malhotra, a permanent resident of Canada. On
June 12, 2006, he applied for permanent residence as a member of the spouse or
common-law partner in Canada class. On September 13, 2007, he and his spouse
were interviewed jointly and then separately by an immigration officer. The
Applicant's immigration consultant and an interpreter were present during these
interviews. On September 26, 2007, the officer determined that Mr. Singh did
not meet the membership requirements because his was not a genuine marriage and
had been entered into primarily for the purpose of acquiring status under the Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
ISSUES
[3]
The Applicant essentially raises two issues:
- Did the officer err in deciding that the Applicant's
marriage was not genuine; and
- Did the officer fail to observe procedural fairness?
[4]
With respect to the first issue, the Applicant submits that the
officer's decision is not supported by the evidence. He asserts that the
officer ignored or failed to give sufficient weight to the consistent
information given by the Applicant and his wife during their interviews. It is
argued that the officer's decision was based on insignificant discrepancies in
their evidence during the interviews.
[5]
The Applicant argues that the decision of the officer was unreasonable
and further, that in ignoring or failing to give appropriate weight to some of
the evidence, the officer committed an error of law.
[6]
With respect to the second issue, the Applicant submits that the officer
committed three procedural errors. First, the officer did not provide the Applicant
or his wife with an opportunity at the end of the interview to address the
inconsistencies that were of concern. Second, the Applicant submits that the
officer failed to respond to a request to provide the Applicant's current
counsel with copies of all of the documents which were presented to the officer
by the Applicant and his spouse. Apparently, the Applicant's immigration
consultant failed to make copies of the documents he provided to the officer.
Third, the Applicant takes issue with the reasons and asserts that they do not
contain any analysis sufficient to allow the Applicant to know why his
application was rejected.
RELEVANT LEGISLATION
[7]
The relevant legislative provisions are sections 4 and 124 Immigration
and Refugee Protection Regulations, SOR/2002-227.
|
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
|
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.
|
ANALYSIS
[8]
The standard of review with respect to the first issue raised by the
Applicant is reasonableness: Dunsmuir v. New Brunswick, 2008 SCC
9; Khanna v. Canada (Minister of Citizenship and Immigration),
208 FC 335, at paras. 4 and 5.
[9]
The standard of review with respect to the issue of procedural fairness
in the second issue is that of correctness: Canadian Union of Public
Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003]
1 S.C.R. 539 at para. 100; Sketchley v. Canada (Attorney
General), 2005 FCA 404.
Did the
officer err in deciding that the Applicant's marriage was not genuine?
[10]
I agree with counsel for the Respondent that the Applicant is
essentially asking this Court to re-weigh the evidence and come to a conclusion
different than that of the officer. That is not this Court’s function on
judicial review. As noted, the question for this Court is whether the officer’s
decision was one reasonably open to her on the evidence.
[11]
There is no merit in the argument advanced by the Applicant that the
officer failed to consider or give sufficient weight to the evidence that
supported the genuineness of the marriage. The officer in her decision sets out
those areas where the evidence was similar and supported the claim of the
Applicant that the marriage was genuine. She sets out 12 such similarities to
which she gives appropriate weight. However, the officer then goes on to note 11
discrepancies, not all of which are of a minor character, and which formed the
basis of her conclusion that the marriage was not genuine.
[12]
Accordingly, while this Court may have arrived at a different conclusion
with respect to the genuineness of the marriage, the decision reached by the
officer was open to her on the evidence she gathered from the interviews and accordingly,
cannot be set aside as requested.
Did the
officer fail to observe procedural fairness?
[13]
The Respondent is correct in asserting that inconsistent statements made
by spouses in separate interviews regarding the bona fides of the
marriage are not evidence that an officer is required to put to an applicant
for explanation: Dasent v. Canada (Minister of Citizenship and
Immigration), [1996] F.C.J. No. 79 (C.A.) at para. 5, application for leave
to appeal to the S.C.C. dismissed, [1996] S.C.C.A. No. 141; Oppong v. Canada
(Minister of Citizenship and Immigration) (1996), 193 N.R. 306 (F.C.A.),
application for leave to appeal to the S.C.C. dismissed, [1996] S.C.C.A. No.
140.
[14]
As to the complaint that the Applicant has not received copies of
documents that had been initially provided to the officer, I do not see any
legal basis on which that constitutes an error of law or procedural unfairness.
[15]
While I reject the first two bases on which the Applicant asserts a
denial of procedural fairness, the last basis, that the reasons do not contain
any analysis sufficient to allow the Applicant to know why his application was
rejected, has merit.
[16]
The officer’s reasons are quite detailed in her review of the evidence,
both favourable and unfavourable to the Applicant with respect to the
issue of the genuineness of his marriage. However, that is only one of the two
branches of the test set out in section 4 of the Regulations.
[17]
Once the genuineness of the marriage had been examined, the officer then
had to examine whether the relationship had been entered into primarily for the
purpose of acquiring status under the Act: Donkor v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1089. As was noted by
Justice Hughes in Khan v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1490:
Both branches of the test must be
met before a person cannot be considered a spouse or partner. While the
Applicant bears the onus of proof at this stage to demonstrate that a
reviewable error has occurred, if the Applicant succeeds in that respect on
only one of these two branches of the test, then it is open to the Court to
find that a reviewable error has occurred.
[18]
The officer here quite extensively reviewed the evidence before her, but
did so only in the context of the first question, i.e. whether the marriage was
genuine. She failed to provide any explanation for the basis on which she
reached the conclusion that the relationship had been entered into primarily
for the purpose of acquiring status under the Act. She states to having reached
that conclusion but she fails to provide any explanation as to how or why she
reached that conclusion. Counsel for the Respondent at the hearing of this
matter suggested that the mere fact that the marriage was entered into one day
before the Applicant’s student visa was to expire could form the basis of that
decision. Whether that is so is irrelevant as there is nothing in the reasons
indicating that was the basis on which the officer reached her conclusion that
the marriage had been entered into primarily to enable the Applicant to acquire
status under the Act. It is the duty of the officer to explain clearly in her
reasons why she reached that conclusion. It is not for this Court or
Respondent’s counsel to speculate as to the reason that the officer reached her
conclusion.
[19]
Accordingly, in my view, the officer’s decision in not providing any
analysis to support the conclusion reached with respect to the second branch of
the test under section 4 of the Regulations is deficient. In Adu v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 693, Justice
Mactavish correctly summarized the legal principles behind the obligation to
provide reasons in the following manner, in paragraphs 10 and 11:
In
Baker [[1999] 2 S.C.R. 817], the
Supreme Court of Canada noted that in certain circumstances, the duty of
procedural fairness requires the provisions of written reasons for a decision.
This is especially so where, as in this case, the decision has important
ramifications for the individual or individuals in question. According to the
Court, "It would be unfair if the person subject to a decision such as
this one which is so critical to their future not be told why the result was
reached". (at para. 43).
The
importance of providing 'reasoned reasons' was reiterated by the Supreme Court
three years later in R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC
26, where the Court noted that unsuccessful litigants should not be left in any
doubt as to why he or she was not successful. Although Sheppard was a
criminal case, the reasoning in that case has been applied in the
administrative law context generally, and in the immigration context in
particular, in cases such as Harkat (Re), [2005] F.C.J. No. 481, Mahy
v. Canada, [2004] F.C.J. No. 1677, Jiang v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 597 and Ahmed v. Canada
(Minister of Citizenship and Immigration), [2002] F.C.J. No. 1415.
[20]
In this instance, the absence of any reasoning behind the conclusion
that the marriage was entered into primarily for the purpose of obtaining
status under the Act leaves the Applicant and this Court in doubt as to why the
Applicant was not successful in his application.
[21]
No serious questions of general importance were proposed and none will
be certified.
JUDGMENT
IT IS THE JUDGMENT
OF THIS COURT that:
- The application is allowed and
the matter remitted for reconsideration by another officer after a fresh
interview of the Applicant and his spouse; and
- No question is certified.
“Russel
W. Zinn”
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