Date:
20130129
Docket:
IMM-4432-12
Citation:
2013 FC 74
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
January 29, 2013
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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ALAIN KINDEKI NZAU
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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]
This
is an application for judicial review of a decision by an immigration officer
(officer) of Citizenship and Immigration Canada (CIC), dated April 16, 2012, refusing
the applicant’s application for permanent residence filed under the spouse or
common-law partner in Canada class pursuant to subsection 12(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) and section 124 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations). Under this
last provision, to be admitted in the spouse or common-law partner in Canada
class, applicants for permanent residence must demonstrate that 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.
Facts
[2]
The
applicant is a citizen of the Democratic Republic of the Congo. He arrived in
Canada on November 28, 2004, and claimed refugee protection, which was rejected
on March 7, 2006.
[3]
He
alleges that he met his spouse (sponsor) on December 24, 2007, at a Christmas
Eve party organized by friends. The sponsor is a refugee of Congolese origin
and the applicant alleges that his relationship with her started at that time.
After a customary marriage celebrated in their absence in Kinshasa on June 18,
2008, they started living together in September 2008. The civil wedding was held
in Toronto on February 6, 2010, and on March 24, 2010, the sponsor
filed an application to sponsor and undertaking with respect to the applicant to
obtain his permanent residence in Canada in the spouse or common-law partner
class.
[4]
In
a letter dated September 27, 2011, CIC required the applicant to submit certain
documents in support of his application for permanent residence. The letter
specified that the applicant had 30 days to provide the requested documents,
and failure to do so would result in the refusal of his application. The list
of required documents, annexed to the letter, stated the following, in
particular: evidence of any joint account for the six last months; evidence of
a jointly signed lease or a letter from the landlord of the building where the
couple lives attesting to that fact; a copy of a joint purchase agreement or
mortgage, of a home insurance policy, life insurance policy or even automobile registration
and insurance, if applicable; a copy of telephone bill statements or other utility
bills for the last six months; proof of benefits from employer for the
applicant or sponsor, if applicable; as well as any other information that the
applicant wished to be considered by CIC.
[5]
In
a letter dated February 29, 2012, the officer informed the applicant that the
information provided did not demonstrate that he met the requirements of
paragraph 124(a) of the Regulations, that is, that he lived with the
sponsor in Canada. The officer added that the applicant and the sponsor had to
demonstrate that their sponsorship was valid under section 127 of the
Regulations by producing (i) a copy of the notices of assessment issued to them
by Revenue Canada for the last four years and (ii) evidence that they do not
receive social assistance benefits. Again, the officer explicitly asked the
applicant to provide all of the information that he wished to be considered by CIC.
[6]
On
March 23, 2012, the applicant sent a letter to CIC informing it that, because
his spouse had three spontaneous abortions because of her working conditions,
she had indeed received social assistance since the filing of the sponsorship
application. He attached to the letter the medical evidence attesting to it, the
evidence of part-time employment and the pay stubs of the sponsor (January to
March 2011 and October to December 2011), a copy of the notices of assessment
of the applicant (tax years 2007 to 2010) and the sponsor (tax years 2007 and
2008), and the first page of a residential lease in the name of the applicant
and the sponsor, with no dates or signatures.
[7]
On
April 16, 2012, the officer refused the applicant’s application for permanent
residence essentially on the ground that she was not convinced that the
applicant and the sponsor lived together. The officer’s notes in the Field
Operations Support System (FOSS) show several concerns with respect to the
evidence provided, including the following:
(a)
the
applicant submitted only the first page of a monthly lease, the initial period
of which was from April 1 to April 30, 2012 (that is, after the letter dated
February 29, 2012, in which CIC noted its concerns for the first time);
(b)
the
applicant and the sponsor did not indicate the same address in their tax
returns for the year 2008 (pages 132-136 of the Tribunal Record);
(c)
the
applicant stated that he was single in his tax returns for the years 2007 to
2010, whereas the sponsor stated, for the same period, that she was married (note
that she had previously been married and that her former spouse had passed away
on December 10, 2007);
(d)
the
applicant and the sponsor both claimed tax credits of different amounts for the
rent paid in 2010;
(e)
a
letter from TD Canada Trust indicating that the applicant and the sponsor have had
a joint account there since March 2006, whereas, according to the sponsorship
application, they met only in December 2007; and
(f)
the
sponsor did not demonstrate that she was no longer receiving social assistance.
Issues
In his application for judicial
review, the applicant raised the following questions:
1) Did the officer breach
her duty to act fairly by failing to give the applicant a reasonable opportunity
to respond to her concerns and, more specifically, by failing to grant him an
interview while she based her decision on his credibility?
2) Did the officer breach
her duty to act fairly by providing insufficient reasons to refuse the
sponsorship application?
3) Did the officer err by
failing to consider the evidence supporting the genuineness of the relationship
and by placing more weight on minor inconsistencies?
Applicable
standard of review
[8]
Findings
of fact regarding cohabitation,
for the purposes of the application of paragraph 124(a) of the
Regulations, must be reviewed on the standard of reasonableness (Said v
Canada (Minister of Citizenship and Immigration), 2011 FC 1245 at paragraph
18, [2011] FCJ No 1527; Rakheja
v Canada (Minister
of Citizenship and Immigration), 2009 FC 633 at paragraph 16, [2009] FCJ No 808; Mills v Canada (Minister
of Citizenship and Immigration), 2008 FC 1339 at paragraph 18, [2008] FCJ No 1475),
whereas questions of procedural fairness are subject to the standard of
correctness
(Ally v
Canada (Minister of Citizenship and Immigration), 2008 FC 445 at paragraphs
12-13, [2008] FCJ No 526 (Ally)).
[9]
By
applying the standard of reasonableness, the analysis of the Court will be
concerned with the existence of “justification, transparency and
intelligibility within the decision-making process. But it is also concerned with
whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 47, and Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at paragraph 59). Put another way, the
Court should only intervene if the decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir, above, at paragraph 47).
[10]
Finally,
regarding the applicant’s argument on the insufficiency of the reasons for the
impugned decision, I am of the opinion that the principles that appear in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paragraph 16 (NL Nurses’ Union) must apply. In that case, the Supreme Court of Canada
stated that
“if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.”
Analysis
[11]
For
the following reasons, I believe that there was no breach of procedural
fairness in this case and that, because the impugned decision is reasonable and
sufficiently supported by the evidence in every respect, the Court’s
intervention is not warranted.
Arguments based on the officer’s
breach of her duty to act fairly
[12]
The
applicant essentially relies on the principles established in Baker v Canada (Minister of
Citizenship and Immigration),
[1999] 2 S.C.R. 817, to maintain that the officer was required to give him the
opportunity to respond to her concerns regarding his cohabitation with the
sponsor. In that respect, the applicant relies on Hakrama v Canada (Minister of
Citizenship and Immigration), 2007 FC
85, [2007] FCJ No 105, which cites Chitterman v Canada (Minister of
Citizenship and Immigration), 2004 FC 765,
[2004] FCJ No 955, in which the Court decided that an interview can be
justified in cases where the genuineness of a marriage is in question so that
the applicant has the opportunity to address the doubts of the immigration officer. However, in Hakrama, above, at paragraph 25, Justice
O’Keefe confirmed that the need for an interview is not absolute and that it essentially
depends upon the facts of each particular case.
[13]
With
respect, I am of the view that the officer was not required to hold an
interview with the applicant in the circumstances of this case. First, the case
law on sponsorship applications has established that “[t]he onus was on the Applicant to address the circumstances
behind his application and meet the requirements of Regulation 124” (Ally, above, at paragraph 22).
Second, the applicant had the opportunity to respond to the officer’s concerns.
In the letters dated September 27, 2011, and February 29, 2012, he
was specifically informed that he had to submit convincing evidence of cohabitation
and therefore had two opportunities to do so. In light of this Court’s decision
in Ally, above, the fact that all of the evidence was submitted by the
applicant, that he was explicitly informed of the gaps in his file, that he had
ample opportunity to clarify the state of his relationship and that he was
clearly unable to produce the required documents, are, in my opinion,
determinative. The officer’s negative finding was based on this lack of
evidence.
[14]
The
applicant argues that he could have provided convincing explanations if he was
given the opportunity to address the officer’s doubts with respect to his cohabitation
with the sponsor. In an additional affidavit dated November 23, 2012, he
reiterated that he has lived with the sponsor since September 2008. However, he
added that, for cultural reasons, his spouse preferred to keep her former
residence until they were officially married in February 2010.
[15]
The
applicant knew the requirements of the law for obtaining permanent residence as
a spouse or common-law partner of a resident with the result that that
explanation could have simply been submitted to the officer in a timely manner.
It is well established that “[a] party cannot introduce new evidence which was
not before the decision-maker” (Rojas v Canada (Minister
of Citizenship and Immigration), 2012 FC 1303 at paragraph 9, [2012] FCJ No 1407, which
cites Lemiecha (Litigation Guardian) v Canada (Minister of Citizenship and
Immigration), [1993] FCJ No 1333, 72 FTR 49). As a result, I will not
consider the applicant’s additional affidavit. Furthermore, even if I had to
consider it, I am of the opinion that the applicant would not have adequately
explained the anomalies that arise from the documentary evidence submitted to the
officer. First, the applicant failed to submit a valid residential lease and to
establish that the sponsor no longer received social assistance. In addition, a
close examination of the notices of assessment submitted clearly indicates that
the applicant and the sponsor resided in separate locations in 2010. For the
year 2008, the record contains two different versions of the notices of
assessment issued to the applicant and the sponsor; the first one indicates a
separate address and the second one indicates a common address. By submitting
these documents to the officer, the applicant could not have thought that he
was addressing her concerns with respect to the couple’s cohabitation.
The officer’s decision is
reasonable and sufficiently reasoned with respect to all of the evidence before
her
[16]
The
applicant claims that, by finding that he was not living with the sponsor, the
officer carried out a microscopic analysis of the evidence, focused on minor
details and failed to consider important evidence that demonstrated the genuineness
of the relationship. The applicant argues the couple’s financial, social,
emotional and physical interdependence and refers in particular to photos of
their civil wedding, their joint account with the TD Bank and the medical evidence
of the three miscarriages that the sponsor apparently experienced since the
start of their life together, that is, in 2008, 2009 and 2010. On that point,
he raises the Court’s recent decision in Nijjar v Canada (Minister of
Citizenship and Immigration), 2012 FC 903 at paragraph 31, [2012] FCJ No 1099, in
which Justice Simpson found that the Immigration Appeal Division erred by
confirming a negative finding concerning the genuineness of the applicant’s
marriage without taking into account the evidence of a recent miscarriage.
[17]
It
is true that the birth or conception of a child is evidence to which
significant weight must be attached when determining the genuineness of a conjugal
relationship or marriage (see also Gill v Canada (Citizenship and Immigration),
2010 FC 12 at paragraph 8, [2010]
FCJ No 15). However, in this case, the officer’s decision is based neither on
the relationship’s lack of genuineness nor on the applicant’s lack of credibility,
but instead on the absence of evidence of cohabitation under paragraph 124(1)(a)
of the Regulations.
[18]
In
Cao v Canada (Minister of Citizenship and Immigration), 2006 FC 1408 at
paragraphs 24-30, [2006] FCJ No 1784, the Court specified that, to
benefit from the sponsorship of a spouse or common-law partner, an
applicant must, in addition to the conditions listed in section 124 of the
Regulations, prove a genuine relationship or marriage.
[19]
The
list annexed to the CIC letter dated September 27, 2011, contains the documents
required to establish the cohabitation. The applicant was unable to meet that
requirement. Consequently, after reviewing all of the evidence submitted by the
applicant and his sponsor, I am of the opinion that the officer’s decision is
one that falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[20]
Finally,
I am also of the opinion that the officer’s reasons together with the FOSS notes
and the letters requesting additional evidence sent to the applicant contain
sufficient information to allow the Court and the applicant to assess whether
the decision meets the standards of legality (Ralph v
Canada (Attorney General), at paragraphs 17-19), and they are explained in sufficient
delatil in light of the relevant regulatory provisions and the notices
previously addressed to the applicant (NL Nurses’ Union, above, at paragraphs 16-21). Therefore, there was no breach of the duty of fairness
in that respect (see also Xu
v Canada (Minister of Citizenship and Immigration), 2010 FC 418 at paragraphs 12-15
and Dev v Canada (Minister of Citizenship and
Immigration), 2011 FC 1077 at paragraph 11).
[21]
In
light of the foregoing, this application for judicial review must be dismissed.
No questions were proposed to me for certification and none will be certified.
[22]
At
the request of the respondent, the style of cause is amended to exclude the
Minister of Public Safety and Emergency Preparedness from the proceeding and to name
the Minister of Citizenship and Immigration as the sole respondent.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed.
2. No
question is certified.
3. The style of cause is amended to name the Minister of Citizenship
and Immigration as the sole respondent.
“Jocelyne Gagné”
Certified
true translation
Janine Anderson,
Translator
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