Date:
20130307
Docket:
IMM-2969-12
Citation:
2013 FC 243
Ottawa, Ontario,
March 7, 2013
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
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SYED WAQAS ALI GILANI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The applicant, Mr Syed Waqas Ali Gilani, seeks
judicial review pursuant to section 72 of the Immigration and
Refugee Protection Act SC 2001, c 27 [IRPA] of
a decision made
by an Immigration Officer [the Officer] at the Canada Immigration Centre,
Etobicoke, Ontario, dated March 16, 2012, refusing his claim for permanent residence
as a member of the Spouse or Common-law partner in Canada class, because he had
not satisfied Regulation 124(a) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [IRPR] which requires an applicant to demonstrate that the
applicant is the spouse of a sponsor and that the applicant cohabits with the
sponsor in Canada.
[2]
For the reasons that follow the application is dismissed.
Background
[3]
Mr
Gilani is a citizen of Pakistan who arrived in Canada in 2003. He married his
sponsor, Rossana De Santis, a permanent resident of Canada, on May 24, 2006.
In January, 2008, Mr Gilani’s application for permanent residence was approved
in principle.
[4]
Later
in 2008, Citizenship and Immigration Canada [CIC] received a tip, referred to
as a “poison pen letter” which claimed that the applicant’s marriage was one of
convenience, and that the applicant was paying his sponsor as a part of the
agreement. In 2011, the Canadian Border Services Agency [CBSA] conducted an
investigation, either in response to the tip or as part of a broader probe,
which led to the applicant’s arrest in October, 2011.
[5]
As
a result of surveillance, CBSA found that the applicant was not residing with
his spouse and sponsor, but rather with his sister and brother-in-law. CBSA
also found that his cell phone bill was sent to his sister’s address and his
car was parked at this address and never at his sponsor’s home address. CBSA
also noted that his spouse and sponsor, a recipient of an Ontario Disability
Support Pension [ODSP], had not advised ODSP that she was married, and still
indicated her status as “single”.
[6]
Following
the applicant’s release from detention following his arrest, he returned to his
sponsor’s residence. CIC sent a procedural fairness letter on October 12, 2011
setting out the allegations that the applicant was not cohabiting with his sponsor.
The applicant provided submissions in reply and statutory declarations from
relatives and friends who attested that the applicant and sponsor were married
but had been apart for a period of time in 2011.
[7]
The
applicant and sponsor were interviewed by the Officer on March 15, 2012.
The
Decision under Review
[8]
The
Officer determined that the applicant had satisfied the eligibility
requirements to apply for permanent resident status in the spouse and common-law
partner in Canada class, but failed to demonstrate that he “cohabits with (his)
sponsor in Canada” as required by Regulation 124(a) of the IRPR.
[9]
The
Officer considered the evidence from CBSA and the applicant’s submissions in
response to the procedural fairness letter which explained that he spent some
nights at his sister’s home to help with her young family and because of its
proximity to his work and also because he and his sponsor had some conflicts
following her miscarriage in November 2010 which led him to leave in January,
2011, but that the time apart was not intended as a separation.
[10]
The
Officer referred to the statutory declarations from friends and family in
support of the applicant’s assertion that he and his sponsor were married and
that their time apart was temporary and due to the miscarriage and other
reasons, including the proximity of his sister’s home to his work and his
assistance to his sister and her young children, but attributed little weight
to these declarations because they came from relatives and friends closely tied
to the applicant and were self-serving.
[11]
The
Officer considered the explanations and information provided at the March 15,
2011 interview with the applicant and his sponsor, and found that the applicant
lacked basic information about the sponsor’s pregnancy and miscarriage, and
that his answers were not consistent with his sponsor’s answers. With respect
to the cell phone bill, the Officer concluded that it was more likely that it
was sent to his sister and brother-in-law’s address because the applicant lived
there, rather than because the applicant’s brother-in-law was paying the bill.
With respect to the sponsor’s status as single for the purpose of her ODSP
benefits, the Officer found that while the sponsor indicated that this was a
mistake which she had taken steps to clarify, there was no evidence that she
had done so.
[12]
The
Officer also noted that the applicant had few answers or explanations at the
time of his arrest and his answers and explanations at the time of the
interview were likely made up and the result of having time to prepare.
[13]
The
Officer clearly stated that he gave no weight to the “poison pen letter”, but
relied on the results of the CBSA investigation and the submissions of the
applicant in response, including the interview.
[14]
The
Officer acknowledged that the applicant and his sponsor appeared to have resided
together after his release from detention in October, 2011 and that a couple
need not spend every night together in the same home. However, the Officer
concluded that it appeared that the applicant and his sponsor were not
cohabiting from January, 2011, or earlier, until the time of his arrest.
The
Issues
[15]
The
applicant submits that the decision should be quashed on four grounds. First,
the Officer unreasonably gave low probative weight to relevant and
corroborative evidence, namely the statutory declarations of family and
friends. Second, the Officer made unreasonable findings of fact with respect to
the couple’s cohabitation, the pregnancy and the CBSA investigation. Third, the
Officer made veiled findings about the genuineness of the marriage and conflated
cohabitation with genuineness. Fourth, the Officer breached principles of
procedural fairness by not disclosing the details of the poison pen letter.
[16]
The
respondent submits that the Officer’s decision was reasonable based on his
assessment of all the evidence and that the applicant is, in essence, asking
the court to reweigh evidence, which is not the role of the Court.
Standard
of review
[17]
The
parties agree that in accordance with Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190, there are only two standards of review: correctness for
questions of law and reasonableness involving questions of mixed fact and law.
A finding of cohabitation is a factual determination and reviewed against a
standard of reasonableness: Said v Canada (Minister of Citizenship
and Immigration), 2011 FC 1245 [Said] at para 18.
[18]
The relevant provision of the Regulations governing the spouse of
common-law partner class is the following:
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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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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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Did the Officer
breach principles of procedural fairness by not disclosing the poison pen
letter?
[19]
The
Officer clearly stated that he gave the “poison pen letter” no weight. The Officer
relied on the CBSA investigation, the results of which were disclosed to the
applicant in the procedural fairness letter sent in October, 2011. In addition,
the contents of the poison pen letter, even though no weight was given to it,
were disclosed to the applicant and his sponsor at the interview and they had
an opportunity to respond. As noted by Justice Mosley in Wang v Canada, 2011 FC 812 at paragraph 13, a “poison pen letter” need not be disclosed if the
allegations are made known to the applicant.
[13] Moreover, the applicant’s contention that there was a breach of
procedural fairness because the letter or its particulars were not disclosed to
the applicant or her husband is without merit. It has been held that a “poison
pen letter” does not necessarily have to be disclosed to an applicant so long
as the applicant is made aware of the allegations contained therein: D’Souza
v. Canada (Minister of Citizenship and Immigration), 2008 FC 57, 321 F.T.R.
315 at para. 14. This is what occurred here. During the applicant’s
husband’s interview, the visa officer explicitly indicated that they had
received an anonymous letter and gave him the opportunity to respond to the
visa officer’s concerns: Visa Officer’s Decision, Applicant’s Record, pgs.
50-52. No breaches of natural justice can said to have been committed.
[20]
Similarly, in this case there was no breach of procedural
fairness.
Did the Officer make veiled
findings regarding the genuineness of the marriage?
[21]
The
applicant submits that the Officer conflated the requirements that a marriage
be genuine with the cohabitation requirement and made veiled findings about the
genuineness of the marriage. I do not agree. While the Officer referred to the
CBSA report as suggesting that the “couple is not cohabiting in a genuine
marital relationship”, it is clear from the CBSA investigation and from the Officer’s
decision as a whole that he was focused on the cohabitation requirement. In
addition, it is well settled that failure to meet any of the requirements of
Regulation 124 is fatal. If there is no cohabitation with the spouse and
sponsor, the applicant is not eligible.
[22]
As
noted by Justice Russell in Said at para 34:
34 ….. If there was no cohabitation then sponsorship was not
possible. There was no reason to consider whether the marriage “was not genuine
and was entered into primarily for the purpose of acquiring any status or
privilege under the Act” as set out in section 4 of the Regulations. The issue
for the Officer was not about why the marriage was entered into, but whether
the Applicant and his Sponsor were cohabitating at the time of the application.
I see no reasonable error on this point.
[35] ….. Further, Justice Shore held in Laabou, above,
at paragraph 27, that the failure to meet any of the conditions in subsection
124(a) of the Regulations is fatal to the claim. Whether or not their marriage
was genuine, the fact remains – as reasonably found by the Officer – that the
Applicant and his Sponsor are not cohabiting. This is sufficient to exclude him
from the Spouse in Canada class.
[23]
In
Mandbodh v Canada (Minister of Citizenship and Immigration), [2010]
FCJ 216, 2010 FC 190, Justice Boivin referred to the criteria in Regulation 124
and noted, at para 11:
[11] Failure to meet
one of the above-mentioned conditions is fatal to the applicant’s application
for permanent residence. Essentially, the applicant is asking this Court to
consider the concerns raised by the officer and the explanations provided by
the applicant in reply and to reweigh those explanations and arrive at a different
conclusion, which is not the role of this Court.
Did the Officer reject corroborating evidence?
[24]
The
applicant submits that the Officer erred in rejecting the corroborating
evidence which supported the applicant’s claim that he and his sponsor had been
married for six years and, although they had been apart for almost a year, this
was not a permanent separation and was due to the conflict following the
miscarriage. The applicant submits that the Officer erred in giving the
statutory declarations of family low probative weight because they were self
serving and from persons with close ties to the applicant, and that the Officer
failed to consider the declarations from the friends. The applicant, relying on
Ugalde v Canada (Minister of Public Safety and Emergency Preparedness),
[2011] FCJ 647 [Ugalde], argues that evidence can not be rejected only
because it is self serving. The applicant notes that those who submitted the
declarations are the best placed to describe the relationship and the reasons
for the applicant’s time away from his sponsor.
[25]
The
respondent submits that the Officer was entitled to attribute low weight to the
statutory declarations and that he did not do so solely on the basis that the
declarations came from family and friends with close ties. The respondent
submits that the Officer analysed the contents of the declarations, referred to
this information in his decision, and weighed all this information against the
evidence provided in the CBSA investigation.
[26]
As
noted by Justice de Montigny in Ugalde:
[26] However, jurisprudence has established that, depending
on the circumstances, evidence should not be disregarded simply because
it emanates from individuals connected to the persons concerned: R v
Laboucan, 2010 SCC 12, at para 11. As counsel for the Respondent rightly
notes, Laboucan concerned a criminal matter; however, immigration
jurisprudence from this Court has established the same principle. Indeed,
several immigration cases hold that giving evidence little weight because it
comes from a friend or relative is an error.
[27] For example, in Kaburia v Canada (Minister of
Citizenship and Immigration), 2002 FCT 516, Justice Dawson held at
paragraph 25 that, “solicitation does not per se invalidate the contents of the
letter, nor does the fact that the letter was written by a relative.”
Likewise, Justice Phelan noted the following in Shafi v Canada (Minister of Citizenship and Immigration), 2005 FC 714, at para 27:
The Officer gives little weight to other witnesses' affidavit evidence
because it comes from a close family friend and a cousin. The Officer fails to
explain from whom such evidence should come other than friends and family.
Similarly, Justice Mactavish stated the following in Ahmed v Canada (Minister of Citizenship and Immigration), 2004 FC 226, at para 31:
With respect to [sic] letter from the President of the
organization, I do not understand the Board's criticism of the letter as being
"self-serving", as it is likely that any evidence submitted by an
applicant will be beneficial to his or her case, and could thus be
characterized as 'self-serving'.
[28] In light of this jurisprudence, and under the
circumstances, I do not believe it was reasonable for the Officer to award this
evidence low probative value simply because it came from the Applicants’ family
members. Presumably, the Officer would have preferred letters written by
individuals who had no ties to the Applicants and who were not invested in the
Applicants’ well-being. However, it is not reasonable to expect that anyone
unconnected to the Applicants would have been able to furnish this kind of
evidence regarding what had happened to the Applicants in Mexico. The Applicants’ family members were the individuals who observed their alleged
persecution, so these family members are the people best-positioned to give
evidence relating to those events. In addition, since the family members were
themselves targeted after the Applicants’ departure, it is appropriate that
they offer first-hand descriptions of the events that they experienced. Therefore,
it was unreasonable of the Officer to distrust this evidence simply because it
came from individuals connected to the Applicants.
(emphasis added)
[27]
Other cases have looked at the particular circumstances and
reiterated that evidence should not be discounted solely because it is
self serving. An additional passage in Ahmed, is relevant, where Justice
Mactavish applied that principle:
[32] That
said, although there are problems with the Board's findings regarding the evidentiary
value of the letter in assessing the nature of Mr. Ahmed's involvement with the
Anjuman Hussainia, these findings were not patently unreasonable. The Board
noted that the letter was written long after the alleged incidents took place,
and made no reference to any of Mr. Ahmed's accomplishments or specific
responsibilities within the Anjuman organization. Further, the Board's negative
credibility finding regarding Mr. Ahmed's problems with the SSP did not hinge
solely on this letter. The Board questioned several aspects of his claim,
including the very existence of a tailor shop, and the extent of Mr. Ahmed's
involvement in the rally. In these circumstances, it was not patently
unreasonable for the Board to view this letter as being of little probative
value.
[28]
Similarly
in Ray v Canada (Minister of Citizenship and Immigration), [2006]
FCJ 927, at para 39, Justice Teitelbaum stated that while it is an error to
attribute little probative value on the basis that the documents are self
serving, other basis may support the low probative value attributed.
[29]
The
two issues raised by the applicant with respect to the declarations are
related: whether the Officer assigned low probative value only because of the
source of the declarations or for other reasons after an analysis of their
contents; and, whether the Officer was required to specifically mention each
one.
[30]
The
Officer referred to the statutory declarations from family and friends and he
indicated that he gave “these documents” little weight. There is nothing on the
record to suggest that the Officer ignored some of the declarations.
[31]
The
applicant submits that although the Officer says he considered all the
evidence, he ignored the supporting declarations from friends. The applicant relies
on Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration),
157 FTR 35, [1998]
FCJ 1425, where Justice Evans noted at para 17 that “Thus, a blanket statement
that the agency has considered all the evidence will not suffice when the
evidence omitted from any discussion in the reasons appears squarely to
contradict the agency's finding of fact. Moreover, when the agency refers in
some detail to evidence supporting its finding, but is silent on evidence
pointing to the opposite conclusion, it may be easier to infer that the agency
overlooked the contradictory evidence when making its finding of fact.”
[32]
I would also
note the words of Justice Near in Karayel v Canada (Minister of Citizenship and
Immigration),
2010 FC 1305, with respect to the applicability of this principle:
[16] The Applicant relies on Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, 83 ACWS (3d) 264,
for the proposition that the Board committed a reviewable error by not at least
acknowledging evidence that contradicted its finding regarding the Applicant’s
credibility. Cepeda is a seminal case often cited on judicial review when
the Board has come to a conclusion that differs from information contained in a
piece of evidence submitted by the Applicant. In this particular context
it is important to remember that the general principle to be distilled from
Cepeda’s evolution into an all-purpose documentary evidence citation is that
the more probative the evidence, the more likely the Court will find error when
the Board ignores it (Ozdemir v Canada (Minister of Citizenship and
Immigration), 2001 FCA 331, 282 NR 394 at para 9).
[33]
In
this case, the Officer did not make any blanket statements about the statutory
declarations. The Officer referred to the declarations from family and friends
both generally and specifically. The Officer referred to the statutory
declarations of the family members in consideration of the applicant’s
explanation for spending nights at his sister’s home and the Officer referred
to the brother-in-law’s declaration regarding the address on the cell phone
bill and to the sponsor’s declaration regarding her single status for the
purpose of the ODSP benefits.
[34]
While
the Officer did not specifically refer to each of the statutory declarations from
friends, he referred to his consideration of all the evidence before him. It must be
recalled that the declarations were similar in content and the fact that the
applicant and his sponsor had not been together since at least January, 2011
was not in dispute.
[35]
The
Officer acknowledged that the declarations sought to provide explanations for
the applicant’s time away from his sponsor, but based on the assessment of all
the evidence, both in support and against, he gave the declarations low weight.
As the respondent submits, the Officer was entitled to weigh all the evidence
supporting the applicant with all the evidence provided by the CBSA
investigation and the interviews and attribute low weight to the statutory
declarations. The Court can not engage in a reweighing of the evidence.
[36]
I
do not agree that the Officer overlooked or ignored any of the declarations or
that he assigned low
probative value only because the declarations were provided by his sister and
brother-in-law and by neighbors.
[37]
In
Kornas v Canada (Minister of Citizenship and Immigration), 2010 FC
517, Justice O’Reilly considered the reasonableness of an Officer’s decision
that found the applicant and his spousal sponsor were not cohabiting and found
that while there was evidence supporting the claim that the couple lived
together, there was also contrary evidence. The Officer’s decision which
canvassed all the evidence was not unreasonable as it fell within the range of
acceptable outcomes, based on the facts and the law.
Did the Officer
make unreasonable findings of fact?
[38]
The
applicant submits that the Officer erred in making unreasonable findings of
fact on three significant issues; the couple’s cohabitation; the
pregnancy; and, the results of the CBSA investigation.
Cohabitation
[39]
First
the applicant argues that the Officer failed to consider the applicable
Operations Manual, OP 2, which provides guidance to officers about the meaning
of cohabitation and which notes that while cohabitation means living together
continuously, some separations which are temporary and short are contemplated.
The applicant submits that although he was staying at his sister’s home after
the miscarriage, he also spent time with his sponsor and her children and, as
noted in their statutory declarations, their separation was temporary. The
applicant further submits that the Officer failed to consider that the couple
have lived together continuously since his release from detention following his
arrest in October, 2011.
[40]
The
respondent agrees that OP 2 contemplates exceptions to cohabitation such as
absences due to work or illness of a short and temporary nature, but not due to
relationship problems. The Officer based his findings with respect to
cohabitation on all the evidence. Given that the Officer found that the sponsor
had not been pregnant and had not had a miscarriage, the explanation cited for
the separation was not accepted. Moreover, a period apart of over 10 months is
not a short period and it was not assessed by the Officer to be temporary.
[41]
The
respondent also submits that the FOSS notes, which were considered by the Officer
and form part of the reasons for the decision, include information which
reasonably led to the finding that the couple were not cohabiting, all of which
was set out in the procedural fairness letter.
[42]
The
Officer reasonably concluded that the applicant was not cohabiting with his
sponsor. At his interview, the applicant indicated that he was “gone” after
January, 2011. His explanations for why he resided with his sister and brother-in-law
were not accepted as credible given the evasive answers he provided at the time
of the arrest and the inconsistency in his responses at the interview with
those of his sponsor. The Officer did not accept that the sponsor had been
pregnant and, therefore, the explanation for the time apart had no foundation
and no other credible reason was offered. The sponsor had not taken steps to
advise ODSP that she was married and ODSP records confirmed that she remained
listed as single. The applicant had admitted at his interview following his
arrest that he had said that he did not support her so that she could continue
to be eligible for the ODSP benefits.
The pregnancy
[43]
The
applicant submits that there was no evidentiary basis for the Officer to doubt
that the sponsor had been pregnant and had a miscarriage. The applicant submits
that the hospital emergency visit due to abdominal pain supports the sponsor’s
condition. In addition, both the applicant and the sponsor responded to the Officer’s
questions about the pregnancy at the interview.
[44]
The
respondent submits that there was no medical evidence to corroborate the
assertion that the sponsor was pregnant and had miscarried. The hospital record
merely recounted that the sponsor had said she had a positive pregnancy test,
followed by a negative test. The purpose of the hospital visit was not due to
the miscarriage. In addition, the applicant and respondent provided
inconsistent answers at the interview with respect to their intention to have
children.
[45]
The
Officer’s finding that the sponsor had not been pregnant is not unreasonable.
Although the Officer does not specifically refer to the lack of reliable
medical evidence that one would expect could be provided to establish that the
sponsor had been pregnant or had miscarried, the Officer noted that he was not
satisfied based on “the documentation provided”. In addition, the sponsor and
the applicant had very different responses regarding how long they had been
attempting to conceive.
Over reliance on
the CBSA investigation
[46]
The
applicant submits that the Officer placed too much reliance on the CBSA
investigation but did not provide any details or dates of surveillance to the
applicant.
[47]
As
noted by the respondent, all the allegations arising from the CBSA
investigation were set out in the procedural fairness letter and the applicant
provided submissions in response, therefore, there was no breach of procedural
fairness.
[48]
With
respect to the applicant’s submission that the officer overly relied on the
CBSA investigation, it is not the role of the Court to reweigh the evidence.
The CBSA letter and the FOSS notes were considered by the Officer and the Officer
was entitled to place more probative value on this evidence than on the
evidence provided by the applicant.
Conclusion
[49]
The
Officer’s decision that the applicant failed to demonstrate that he “cohabits
with (his) sponsor in Canada” as required by Regulation 124(a) of the IRPR
was reasonable. While there was some conflicting evidence, the officer
justified his conclusions, which were noted in the reasons, and were based on
his assessment of all the evidence.
[50]
The
judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The application is
dismissed.
2. There is no question
for certification.
"Catherine M.
Kane"
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