Docket:
IMM-12497-12
Citation: 2014 FC 216
Toronto, Ontario, March 6, 2014
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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SUSHMA PATHAK
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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 ORDER AND ORDER
(Reasons delivered
orally in Toronto on March 4, 2014)
[1]
Sushma Pathak (the Applicant) seeks judicial
review pursuant to subsection 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27, of a decision of a visa officer (the Officer) at the
Canadian High Commission in New Delhi, India, dated November 5, 2012, refusing
her Application for Permanent Residence as a family member of a protected
person on the basis that her marriage was not genuine (the Decision). Global
Case Management System (GCMS) notes form part of the Decision.
Background
[2]
The protected person is the Applicant’s husband.
He arrived in Canada on November 18, 2010 and made a refugee claim. His claim
was accepted on November 24, 2011 based on his fear of persecution at the hands
of Maoists in Nepal.
The Marriage
[3]
In September and October of 2009 while the
Applicant’s husband-to-be was studying in the United States, his family
arranged his marriage to the Applicant. He and the Applicant spoke by phone and
by yahoo chat and exchanged e-emails for about one month before they met.
[4]
On December 5 the Applicant’s husband-to-be
returned to Kathmandu and he and the Applicant met in person. After a short
conversation with their parents present they agreed to marry.
[5]
The wedding was held on December 12, 2009. Five
hundred guests attended and a honeymoon followed.
The Issues and
Discussion
[6]
The first issue is the reasonableness of the Officer’s
conclusion that the arranged marriage was not genuine.
[7]
The Applicant was interviewed by the Officer on
October 30, 2012. The GCMS notes show that the Applicant said that her parents arranged
the marriage because they knew her husband to be a good man, they knew his
family and because he was of the same caste as her family.
[8]
However, the Officer found that the 10-year age
difference between them, the difference in their education (the husband had one
university degree and was working on a second, and the Applicant had a high
school education and 2 years of nursing); and the fact that he had travelled
and she had not, meant that they were not compatible. In my view this
conclusion was unreasonable. There is nothing about these characteristics and
experiences to suggest that the marriage is not genuine.
[9]
The second issue is the reasonableness of the
Officer’s decision to terminate the interview when the Applicant failed to
respond to two questions about her husband’s refugee claim.
[10]
The Applicant told the Officer that her husband
was having problems with Maoists in Nepal because of his political opinion.
However, she did not respond to the following additional questions:
Your spouse visited
you in November 2010; left then arrived in Canada the next day and claimed
refugee status. Can you tell me about this?
Were you aware your
spouse was going to claim refugee status in Canada when he left Nepal?
[11]
The Applicant’s failure to answer to the first
question may have stemmed from confusion about the reference to November. Her
husband had been in Nepal since September and did not visit only in November.
It is also possible that the question was somewhat unclear. However there is no
apparent reason for her failure to reply to the second question.
[12]
After these two non-responses the Officer
terminated the interview. No further topics related to the bona fides of
the marriage were explored. For example, the Applicant told the Officer that
she had been pregnant and had miscarried the couple’s baby, but the Officer
failed to question her about this event.
[13]
In my view, given that only two questions were unanswered,
it was unreasonable for the Officer to reach a decision about the genuineness
of the marriage without at least trying to conduct a complete interview which
covered all the relevant issues.
[14]
No question was posed for certification.
ORDER
THIS COURT ORDERS that:
1.
The application for judicial review is allowed;
2.
The Applicant’s Application for permanent
residence is to be reconsidered by officers who have not read the Applicant’s
file and have not discussed it with their colleagues;
3.
The reconsideration is to start at the second officer
level;
4.
The officers who review the file in the
reconsideration are not to read any GCMS entries after the entry made on August
6, 2012;
5.
The Applicant may file further material on the
reconsideration;
6.
The affidavit of Thaneshwor Subedi affirmed on
February 12, 2013 is hereby struck from the court file on consent; and
7.
The Applicant’s further reply dated February 28,
2013 is also struck from the court file, on consent.
“Sandra J. Simpson”
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