Docket:
IMM-9464-12
Citation: 2013 FC 1091
Ottawa,
Ontario, October 25, 2013
PRESENT: The Honourable Mr. Justice Phelan
|
BETWEEN:
|
|
SHU XING LI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This is a judicial review of an Immigration
Officer’s [Officer] decision denying a permanent residence [spousal class]
application. The Officer found that the Applicant had failed to establish that
the relationship (marriage) with the sponsor was genuine.
II. BACKGROUND
[2]
The Applicant came to Canada in 2008. His
refugee claim was dismissed and leave for judicial review was likewise
dismissed. He then married his sponsor whom he claimed to have known since a
teenager in China.
[3]
The crux of the case is what transpired at the
interview with the Officer in April 2012. Counsel was not present and there was
no transcript. However, a Cantonese interpreter was at the interview and the
Officer made notes. The notes were submitted with the Officer’s reasons for
denial.
[4]
The Applicant complained, in this Court, that
the Officer was rude and aggressive. The allegation outlines a number of
offensive comments – “Why don’t you speak English if you are Canadian?”; “You
are so useless here” – and similar type comments.
[5]
The Officer flatly denies that any such
statements were made.
[6]
The Officer denied the application because she
was not satisfied that the Applicant and his sponsor were cohabiting or that
their relationship was genuine. The facts which gave rise to the concerns were:
•
the absence of rental evidence;
•
the mutual lack of clarity about where they
lived despite allegedly living there from 2008 for the Applicant and 2010 for
the sponsor;
•
the inability of the landlord to recognize the
sponsor and the landlord’s statement that the Applicant had moved out in 2010;
•
the inability to recall the address they said
they intended to move to and their conflicting stories of why they did not
eventually move;
•
the photos submitted as to the relationship
appeared staged, unnatural and banal;
•
the inability to name the individuals who took
the pictures;
•
the discrepancies between them on when they
moved in together, and whether the Applicant had asked the sponsor’s ex-husband
for permission to marry the sponsor; and
•
the sponsor’s mother still lives with the
sponsor’s ex-husband, the sponsor pays household bills under her ex-husband’s
name and the ex-husband’s car was seen at the couple’s stated residence.
III. ANALYSIS
[7]
The Applicant raises (a) reasonable apprehension
of bias, and (b) unreasonableness of the decision. The first issue is reviewed
on a standard of correctness (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339) and the second on a standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[8]
On the bias issue, this is a classic “he said,
she said” situation. The burden of proof is on the Applicant. It is a serious
allegation.
[9]
However, the Applicant put in no evidence to corroborate
the allegation. It is striking that there was no evidence from the translator.
There was also no evidence from the landlord.
[10]
This is an issue of credibility. Resolution of
this type of credibility issue is well described in Faryna v Chorney, [1952]
2 DLR 354, 1951 CarswellBC 133:
… the real test of the truth of a witness
in such a case must be the harmony with the preponderance of the probabilities
which a practical and informed person would readily recognize as reasonable in
that place and in those conditions.
[11]
In the absence of better proof, I cannot accept
the Applicant’s allegation. Corroborative evidence was not submitted nor was
there any explanation for its absence. It is reasonable to conclude that such
evidence does not exist.
[12]
There is no need for extensive consideration of
the law on bias because the Applicant cannot make out the factual basis for the
allegation.
[13]
As to the merits of the decision, this is a
fact-driven exercise. The Court accords deference to this type of decision. A
review of the record discloses that the conclusions were fairly open to the
Officer – indeed they are virtually inescapable.
IV. CONCLUSION
[14]
Therefore, this judicial review will be
dismissed. There is no question for certification.
Email this Content