Date:
20130529
Docket:
IMM-3432-12
Citation:
2013 FC 563
Ottawa, Ontario,
May 29, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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MONG AH SHADOW LAI
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by a Citizenship and Immigration Canada immigration officer (the
officer) dated March 28, 2012, wherein the applicant’s permanent residence
application was refused on the grounds that she did not have a genuine marriage
with her sponsor.
[2]
The applicant requests that the officer’s
decision be set aside and the application be referred for redetermination by a
different officer.
Background
[3]
The
applicant is a citizen of China. She came to Canada on July 5, 2006 on a
tourist visa. She made a claim for refugee protection in November 2008 based on
death threats against her made by loan sharks in China.
[4]
On
January 29, 2009 she met her husband, a permanent resident of Canada. He proposed to her in December 2009 and they were married on March 30, 2010. In August 2010,
the applicant submitted an application for permanent residence sponsored by her
husband. She withdrew her refugee claim on January 24, 2011 to avoid having two
simultaneous applications.
[5]
She
and her husband were interviewed by the officer on March 26, 2012.
Officer’s Decision
[6]
In
a letter dated March 28, 2012 the officer informed the applicant her
application had been refused on the basis of subsection 124(a) of the Immigration
and Refugee Protection Regulations, SOR/2002-227, which requires both that the
applicant foreign national be the spouse or common-law partner of the sponsor
and that the applicant cohabit with the sponsor. The officer noted that during
the interview, the applicant and her sponsor had inconsistent responses
regarding the relationship between the applicant and the sponsor’s children.
While the applicant had said the children did not attend their wedding due to
having to attend school, the sponsor indicated his children were not aware of
the marriage. The applicant stated the couple had last spent time with the
children on January 22, 2012, while the sponsor stated his children had never
met the applicant or visited their residence. The applicant explained the
discrepancy by indicating the children had visited when her sponsor was not at
home. The officer was not satisfied with this explanation.
[7]
The
officer’s notes provide the reasons for the decision. The notes and certified tribunal
record documents indicate that Canada Border Services Agency (CBSA) officers
visited the applicant’s address on March 8, 2012 based on previous reports that
a bawdy house was operating there. The CBSA officers’ observations were
consistent with this opinion.
[8]
The
officer indicated he had asked the applicant and her sponsor in the interview
about the result of the CBSA visit. Both indicated they lived in the basement
unit and had no idea how the upstairs of the house was set up. The officer
noted neither had provided any supporting documentation confirming their
residence in the basement of that address and that their previous documentation
and applications had not specified a basement apartment.
[9]
The
officer concluded on a balance of probabilities, that the applicant and the
sponsor had failed to establish that their marriage was not entered into
primarily for the purpose of acquiring status under the Act. Therefore, the
application for permanent residence was refused.
Issues
[10]
The
applicant submits the following points at issue:
1. Did the officer
fail to observe the principle of natural justice, procedural fairness or other
procedure that it was required by law to observe?
2. Did the officer
ignore some relevant information presented?
3. Did the officer
base the decision on an erroneous finding of fact?
4. Did the officer
make a decision in a perverse or capricious manner or without regard to
material before it?
[11]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
violate procedural fairness?
3. Did the officer
err in denying the application?
Applicant’s Written Submissions
[12]
The
applicant submits the appropriate standard of review is correctness when
determining whether a decision maker relied on inappropriate criteria when
determining the validity of a marriage.
[13]
The
applicant argues the officer violated procedural fairness by not requesting
further documentation or allowing the applicant to know ahead of her interview
that the CBSA officers had visited the house. She was denied the opportunity to
know and respond to the concerns. The officer did not send a fairness letter
giving the applicant knowledge of the concerns about whether she and her
husband live in the basement of the premises. The applicant was not given an
opportunity to explain. The information regarding the CBSA visit was obtained
on March 8, 2012, so there was ample time to provide a fairness letter before
the interview. The applicant argues that had she been notified, she would have
provided a MLS listing, Google Map, pictures of the building, landlord’s
letter, neighbours’ letters and other documentation.
[14]
The
applicant also argues the officer overlooked the fact that in her Form IMM-5285
questionnaire, she described her landlord coming to the basement to talk to
her. The officer stated that all documentation that referred to their address
did not refer to a basement apartment but overlooked this document.
[15]
The
applicant argues the officer was biased against the applicant based on the
information provided by the CBSA suggesting the main floor of the house was a
brothel, even though the main floor is irrelevant to the premises occupied by
the applicant. The officer was selective in assessing the evidence as shown by
the failure to notice the reference to the basement as described above. An
apprehension of bias is a reviewable error.
[16]
The
applicant argues the CBSA report is in error since the officers never visited
the apartment where she and her husband live. They questioned a new tenant.
[17]
The
applicant submits that the officer’s notes reveal only a single discrepancy,
regarding the applicant’s relationship with her sponsor’s children. The officer
overlooked the fact that all questions relating to the relationship between the
applicant and her sponsor were answered correctly and without hesitation. This
fact also suggests the officer’s bias.
[18]
In
conclusion, the applicant argues the decision was unreasonable and breached
procedural fairness.
Respondent’s Written Submissions
[19]
The
respondent argues the officer’s determination must be reviewed on a
reasonableness standard, as the genuineness of the marriage is a question of
fact. The respondent submits that the officer was reasonable in refusing the
application on the basis of credibility.
[20]
The
respondent describes the officer’s decision as based on the inconsistencies in
responses between the applicant and her sponsor pertaining to the applicant’s
relationship with her sponsor’s children. The respondent argues the applicant
had an opportunity to respond to the allegation concerning the CBSA visit, but
there was no documentation to substantiate the explanation that they rented the
basement. The applicant’s narrative in the questionnaire did not explain that
the sponsor moved into the basement with the applicant after their marriage.
The respondent argues the applicant’s issue with the officer’s decision is the
weighing of evidence, which does not raise an arguable issue.
[21]
The
respondent maintains that the officer was not required to seek further
documentation from the applicant or send a fairness letter. So long as the
applicant was made aware of the officer’s concerns at the interview, there was
no requirement to disclose the particulars of the visit.
[22]
Finally,
the respondent argues the threshold for bias is high and has not been made out.
Analysis and Decision
[23]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190).
[24]
The genuineness of a marriage is a question of fact reviewable on
the reasonableness standard (see Singh v Canada (Minister of Citizenship and
Immigration), 2012 FC 23 at paragraphs 16 and 17, [2012] FCJ No 43).
[25]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47 and Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 59, [2009] 1 S.C.R. 339). As the Supreme Court held
in Khosa above, it is not up to a reviewing court to substitute its own
view of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraph 59).
[26]
It
is trite law that the appropriate standard of review for issues of procedural
fairness is correctness (see Khosa above, at
paragraph 43). No deference is owed to decision makers on these issues
(see Dunsmuir above, at paragraph 50).
[27]
Issue 2
Did
the officer violate procedural fairness?
Both parties
agree that the applicant was entitled to know the allegation underlying the
officer’s concern about her residence and have an opportunity to respond to the
allegation. The question is whether adequate opportunity was in fact given.
[28]
The authorities relied on by the respondent relate to cases where
allegations were put to the applicants and they had a chance to respond, but
the decision maker was not satisfied with their explanation (see for example Wang
v Canada (Minister of Citizenship and Immigration), 2011 FC 812 at
paragraphs 11 to 13, [2011] FCJ No 1013). This occurred here. However, the
officer in this case did not simply solicit an oral explanation; he requested
documentary evidence in the interview, asking the applicant whether she could
provide a letter from her landlord confirming that she lived in the basement
unit. The applicant had none. Given that she had only just learned of the
allegation that she lived on the main floor, it is not surprising that she had
no such documentary proof on her person.
[29]
The officer’s question clearly indicates that he considered
documentary evidence probative to the question of where the applicant lived.
Indeed, both his decision and the respondent’s submissions in this judicial
review emphasize the lack of documentary evidence provided by the applicant as
to her basement dwelling. Yet, he made his decision without giving the applicant
the opportunity to secure such evidence. Therefore, the opportunity to respond
to the allegation against the applicant was inadequate. To request oral
evidence in an interview without prior notice is perfectly fair, as described
above, but to request the production of documentary evidence on demand is not
procedurally fair when there is no reason for an applicant to carry such
documents on her person.
[30]
I
would also note that the CBSA report confirmed there were three separate units
in the house and that the alleged brothel only operated on the main floor unit.
There is no evidence anywhere in the record that the applicant lived on the
main floor; rather, the only evidence pertaining to habitation in a particular
unit was the anecdote in the applicant’s application which indicated she lived
in the basement. The officer appears to have inferred from the fact she used a
street address without a unit specification in her application means that she
must have lived in the impugned unit instead of the other two. Given the seriousness
of the accusation, that the applicant’s marriage is a sham, this is hardly
compelling evidence.
[31]
There
also was information in the tribunal record that information from police
reports as far back as 2008 relating to the property in question were before
the officer. These were not disclosed to the applicant.
[32]
As
the applicant was denied the opportunity to provide the documentary evidence
requested by the officer, procedural fairness was violated. Given the
unconvincing nature of the extant evidence concerning her residence, it is far
from clear that the officer would have rejected the application had the
applicant been given the opportunity to respond to the request for a letter
from her landlord.
[33]
Because
of my finding on this issue, I need not deal with the remaining arguments.
[34]
The
application for judicial review is allowed and the matter is referred to a
different officer for redetermination.
[35]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed, the decision of the officer is set aside and the matter is referred to
a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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Immigration
and Refugee Protection Rules,
SOR/2002-227
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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; …
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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; …
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