Date:
20130130
Docket:
IMM-3352-12
Citation:
2013 FC 92
Ottawa, Ontario,
January 30, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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XIU YI XUAN
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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
I. INTRODUCTION
[1]
This
judicial review concerns a decision by a Citizenship and Immigration Officer
[Officer] denying an application for permanent residence under the “spouse in Canada” class.
It is a requirement of
this class that not only must an applicant be a spouse or common-law partner
but they must “cohabit” with the sponsor.
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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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Immigration and
Refugee Protection Regulations, SOR/2002-227 [the Regulations]
II. FACTS
[2]
The
Applicant came to Canada in December 2000 but lost her refugee claim. She
married her husband Dennis in August 2009 and he sponsored her permanent
resident application. The couple were interviewed in May 2011 at which time the
application was approved in principle.
[3]
The
couple claimed to live in Markham, both prior to and subsequent to being
married. More importantly, it was where they claimed to live together at the
time of the home visit by CBSA officers. They had also bought a property in
Stouffville in 2010.
[4]
The
husband/sponsor had an adult daughter from a previous marriage who lives in the
Toronto area. The husband/sponsor spent some nights at his daughter’s house –
the frequency and length of stay were in issue in this proceeding.
[5]
The
Applicant listed the Stouffville property as her primary address on her
driver’s licence. She later claimed that she did so to avoid incurring HST on
the purchase of the Stouffville property – potentially an issue for the Canada
Revenue Agency.
[6]
The
difference between the addresses listed on the driver’s licences of the husband
and wife caused CBSA officials to investigate the nature of their relationship.
[7]
On
August 9, 2011 (a Tuesday) the CBSA officers drove past both houses, there were
no cars in either driveway and the Applicant’s car was in a one-car garage at
the Markham house.
The CBSA officers
visited the Markham house and the Applicant let them in. They then questioned
the Applicant about her husband’s clothes and personal hygiene/grooming
supplies. Concluding that the answers were unsatisfactory and that she might be
a flight risk, the Applicant was arrested and held in detention for 11 days.
[8]
The
CBSA officers noted the following salient facts in relation to the home visit:
•
The
Applicant provided an address in Stouffville to the Ministry of Transportation
and her Sponsor provided an address in Markham;
•
Neither
the Applicant nor the Sponsor’s cars were present at either address around 05:00
hrs on August 9, 2011;
•
At
10:43 hrs no one answered the door at the Stouffville address, but a dog was
present;
•
At
11:10 hrs the Applicant answered the door at the Markham address, but the
Sponsor was not present;
•
When
asked to show the CBSA some of the Sponsor’s clothing, the Applicant showed a
men’s coat, one shirt and one pair of pants, in a closet full of women’s
clothing;
•
The
ensuite bathroom’s shower was recently used and there was a wet toothbrush; the
Applicant’s hair was still wet and she said the toothbrush was the Sponsor’s;
•
When
asked to show the CBSA her own toothbrush, the Applicant could not find it,
then said she shared a toothbrush with the Sponsor;
•
When
asked to show the Officer some of the Sponsor’s socks and underwear, the
Applicant had difficulty finding any of his clothing but eventually found a
pair of socks from a storage bin she claimed was his; and
•
The
Applicant had two Ontario driver’s licences with two addresses and could not
explain why.
[9]
The
Applicant was later interviewed by a different CBSA officer following her
arrest, this time with the assistance of a translator. The salient features of
that interview were:
•
The
Applicant told the CBSA that the Sponsor left at 07:00 hrs but then stated he
spent the night at his daughter’s home, but stated she did not know where the
daughter lived or what the daughter’s name or phone number was;
•
When
asked how long her Sponsor had been living with the daughter, the Applicant
stated it may have been a few nights a month but then changed her answer and
said that the Sponsor would sometimes spend a few nights a week with his
daughter;
•
One
of the CBSA officers phoned the Sponsor who alleged he left the house at 07:00
hrs that morning and spent the whole night before at home with the Applicant;
•
When
asked about his toiletries, the Sponsor claimed he kept them all with him in
his car;
•
When
asked about his clothing, the Sponsor claimed they were kept in a different
room in the house; and
•
When
the CBSA advised the Sponsor that they could not find any of his clothing at
the house, the Sponsor changed his answer and told the CBSA that most of his
clothing was at his daughter’s house.
[10]
Part
of the decision is a record of the questions and answers elicited at an
interview two months after the home visit. Both the Applicant and the Sponsor
were separately asked the same questions. The Applicant challenges the accuracy
and completeness of this interview on a number of points yet also relies on its
accuracy where the answers of the Applicant and Sponsor are the same or
substantially the same.
[11]
The
Officer concluded that the Applicant had not met the requirements for the
spousal class because she had not demonstrated that she is in a genuine
marriage and that she cohabitates with her Sponsor in Canada. In addition to the evidence of the home visit, and the two subsequent interviews,
the Applicant also raised that she was pregnant which seemed to carry no weight
with the Officer.
[12]
The
real issues in this judicial review are:
(a) is
the Decision reasonable?
(b) was
there a breach of natural justice in conducting an investigative visit?
(c) was
there a breach of procedural fairness in not providing the Applicant with an
opportunity to prove paternity?
III. ANALYSIS
[13]
There
is no issue on the standard of review. In regard to issues of credibility, and
weight, the standard is reasonableness (Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190). In regard to breach of natural justice and procedural
fairness, the standard is correctness (Sketchley v Canada (Attorney General), 2005 FCA 404, [2006] 3 FCR 392).
A. Natural
Justice/Procedural Fairness
[14]
There
is no authority prohibiting such visits. The real issue was the manner in which
it was conducted. The Applicant claimed that she felt intimidated, that a CBSA
officer placed his hands on her and that no interpreter was present. The CBSA
officers filed affidavits contesting this description of events.
[15]
It
is impossible for the Court to determine whether one side or other was
misdescribing the events surrounding the home visit. There is no evidence that
this was a “warrantless search” – the Applicant never objected to the CBSA
entering the premises. She showed them the location of clothes and of personal
items. She never claimed to insist or ask for an interpreter and she responded
to their questions.
[16]
There
was no breach of natural justice in respect to the home visit. It was legal,
entry was consensual, responses were apparently voluntary and questions
appeared to be understood.
[17]
With
respect to proof of paternity, the Applicant did not ask for an opportunity to
prove, much less actually provide, proof of paternity. More importantly, the
decision did not turn nor was it particularly influenced by the issue of
paternity.
[18]
The
Officer simply concluded that the existence of a child did not itself establish
the existence of a bona fide marriage. Paternity was, at best in this
case, a neutral event establishing neither marriage nor even cohabitation. If
the Applicant had sought to establish cohabitation and marriage by reason of paternity,
it was incumbent on the Applicant to provide that evidence.
B. Reasonableness of
Decision
[19]
This
case turns on the reasonableness of the decision and particularly the
conclusions drawn from all of the evidence. The Applicant filed an affidavit establishing
that not all of the answers given at the joint interview were accurately
recorded or in some cases recorded at all.
[20]
The
Respondent filed no evidence from the Officer on this point – a dangerous trial
tactic. One would expect that the Officer would say the record was accurate.
[21]
However,
in a contest of facts, the Court must generally accept the evidence given on
which there was no cross-examination unless it is so deficient in terms of
reality and experience as not to have “an air of truth”.
[22]
Mr.
Berger did an excellent job undermining some aspects of the joint interview.
The Respondent admitted that there were some frailties in the record and in
some instances an inaccurate understanding of the facts (the sale price of a
house was one clear example).
[23]
The
Applicant pointed out that the Officer did not address documents which pointed
to a married relationship – joint bank accounts, joint insurance, joint
donations.
[24]
In
terms of the test for “cohabitation”, the term is not defined in the
Regulations. However, in Chaudhary v Canada (Minister of Citizenship and
Immigration), 2012 FC 828, 2012 CarswellNat 2158, Justice Zinn referred to
the Respondent’s manual and summarized the term at paragraph 12:
… While cohabitation means living together
continuously, from time to time, one or the other partner may have left the
home for work or business travel, family obligations, and so on. The separation
must be temporary and short.
The full text of the Manual’s
excerpt on cohabitation is attached as an annex to this decision.
[25]
There
is no one controlled test or factor. Documents showing joint interests are
consistent with marriage (unless marriage is a construct) but not necessarily
of cohabitation.
[26]
In
the present case, it is evident that the Officer placed greater weight in what
was observed or said at the home visit and in the home visit and solo interview
of the Applicant than in the answers given at the joint interview two months
later.
[27]
The
choice to assign greater weight to the less prepared, extemporaneous evidence
lies within the discretion of the Officer. It is a reasonable choice given the
nature of the inquiry which is to determine how a person lives not merely how
they say they live.
[28]
In
relying on that evidence, it was reasonable to conclude that the Applicant had
not established cohabitation. Three examples suffice to show that cohabitation
was in doubt:
•
The
Applicant was unable to produce her husband’s toothbrush. When she located a
toothbrush, she first claimed it was his; when it was shown to be wet (the
husband not having spent the previous night with his wife), the Applicant
admitted it was hers but that the couple shared a toothbrush. Only in the
clearest circumstances would such a notion not send shivers down the spines of
most couples.
•
The
Applicant was at first unable and later contradictory in stating whether her
husband used an electrical razor or a disposable razor. It was more than
reasonable for the Officer to expect that the Applicant would know the personal
preference of her husband.
•
The
Applicant’s explanation that she was a neater person, therefore she hung her
clothes in the closets at the Markham house while her husband’s were packed
away in boxes, invites reasonable scepticism.
[29]
Therefore,
I conclude that it was reasonable for the Officer to find that the Applicant
had not established “cohabitation”. It was unnecessary and potentially
unreasonable to conclude that the marriage was not genuine. I need not decide
this latter point.
IV. CONCLUSION
[30]
It
is sufficient, looking at the decision as a whole, to conclude that the
Officer’s decision that cohabitation had not been established was reasonable.
[31]
This
judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
ANNEX
OP2: Processing Members of Family
Class
5.35. What
is cohabitation?
Cohabitation” means “living together.” Two people
who are cohabiting have combined their affairs and set up their household
together in one dwelling. To be considered common-law partners, they must have
cohabited for at least one year. This is the standard definition used across
the federal government. It means continuous cohabitation for one year, not
intermittent cohabitation adding up to one year. The continuous nature of
the cohabitation is a universal understanding based on case law.
While cohabitation means living together
continuously, from time to time, one or the other partner may have left the
home for work or business travel, family obligations, and so on. The separation
must be temporary and short. The following is a list of indicators about the nature
of the household that constitute evidence that a couple in a conjugal
relationship is cohabiting:
•
Joint
bank accounts and/or credit cards;
•
Joint
ownership of residential property;
•
Joint
residential leases;
•
Joint
rental receipts;
•
Joint
utilities accounts (electricity, gas, telephone);
•
Joint
management of household expenditures;
•
Evidence
of joint purchases, especially for household items;
•
Correspondence
addressed to either or both parties at the same address;
•
Important
documents of both parties show the same address, e.g., identification
documents, driver’s
licenses, insurance polices, etc.;
•
Shared
responsibility for household management, household chores, etc.;
•
Evidence
of children of one or both partners residing with the couple;
•
Telephone
calls.
These elements may be present in varying degrees and
not all are necessary to prove cohabitation. This list is not exhaustive; other
evidence may be taken into consideration.
[emphasis in original]
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