Date: 20140307
Docket: IMM-3567-13
Citation: 2014 FC 228
Ottawa, Ontario, March 7, 2014
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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ELENDU GEOFFREY
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review under
s 72 of the Immigration and Refugee Protection Act, SC 2001, c 27, for a
review of a decision rendered by Pre-Removal Risk Assessment Officer L.
St-Martin (the Officer) of Citizenship and Immigration Canada (CIC) on May 6,
2013 denying the Applicant's application to be sponsored by his spouse. For the
following reasons, the application is allowed.
I. Background
[2]
The Applicant, Geoffrey Elendu, is a citizen of Nigeria. He left Nigeria and arrived in Canada on August 5, 2005 where he claimed refugee
status. On February 23, 2006, CIC rendered a negative decision on his claim. On
March 14, 2006, the Federal Court dismissed his application for leave and
judicial review of the negative decision.
[3]
On August 28, 2005, the Applicant met Diaby
Nakadidjata, and they started living together on June 1, 2006. They had a first
child together on June 19, 2006, and a second child on July 15, 2008.
[4]
The couple were married on August 19, 2006. On
March 19, 2009, the Applicant applied for permanent residence under the Spouse
or Common-Law Partner in Canada Class.
[5]
On August 10, 2010, CIC completed a security
check on the Applicant, as is indicated in its analysis document from the
Certified Tribunal Record, which appears to refer to the Field Operations
Support System (FOSS) notes. It should be noted at this juncture that the
Respondents did not submit a copy of the FOSS notes from the file to the Court,
and as a result the only information available was the analysis of the notes
made after the fact.
[6]
In a document dated October 18, 2011, Officer
Carline Médée of CIC summoned the Applicant for an interview “to finalize the
processing of [his] application.” On October 26, 2011, Officer Médée conducted
an interview with the Applicant and his wife for an eligibility assessment of
the sponsorship application. According to the testimony provided by the
Applicant in his affidavit, which was uncontradicted by the Respondents,
Officer Médée congratulated the Applicant and his wife and declared that she
was accepting the sponsorship application. She issued a work permit for the
Applicant. The analysis document states that on that date, Officer Médée
confirmed that she intended to approve the application after the interview.
[7]
Because of the lack of evidence in the file, in
particular the absence of the FOSS notes, it is unknown what occurred in
regards to the Applicant’s file between October 26, 2011 and April 26, 2013.
The Respondents acknowledge that the Applicant should have received a written
confirmation of his approval by mail, but that Officer Médée did not send that
letter, for reasons which were never explained.
[8]
According to CIC’s analysis document, which was
submitted as part of the Certified Tribunal Record, Ms. Nakadidjata reported a
change of address on November 8, 2012.
[9]
On April 26, 2013, Officer St-Martin took action
on the file, as indicated by Officer St-Martin’s affidavit as well as the analysis
document. Officer St-Martin contacted Ms. Nakadidjata, who confirmed that she
was no longer living with the Applicant. The couple had separated in July 2012.
[10]
On April 29, 2013, Officer St-Martin issued a
decision refusing the sponsorship application.
[11]
On May 21, an application for leave was filed
with the Federal Court.
II. Decision
[12]
On June 11, 2013, Officer St-Martin rendered a
decision refusing the Applicant's application for permanent residence under the
Spouse or Common-Law Partner in Canada Class on the basis that he had not
demonstrated that he was the spouse or common-law partner of a sponsor and that
he cohabited with his sponsor in Canada.
III. Issues
[13]
The Applicant presents the issues as follows:
1. How
could Officer St-Martin render a decision when the same decision had already
been
rendered by another officer?
2.
Did the Officer breach the Applicant's right to
procedural fairness by rendering a decision when the former officer had
conducted the hearing with the Applicant?
3.
Did the Officer breach the Applicant's right to
procedural fairness by waiting a long time before issuing a decision?
4.
Did the Officer err by missing a specific entry?
[14]
The Respondents characterize the issues as
follows:
1. Did
Officer St-Martin have jurisdiction to process the Applicant's application for permanent
residence at step 2?
2. Did
Officer St-Martin commit an unreasonable error by rejecting the Applicant's application
at stage 2?
[15]
The Court characterizes the issue as the following:
1. In
consideration of the evidence in the record, was a decision made on October 26,
2011 in regards to the Applicant’s
sponsorship application in accordance with CIC’s
decision-making process?
IV. Parties’
submissions
Applicant
[16]
The Applicant contends that the interview with
the first CIC officer constituted the finalization of the sponsorship process,
and that Officer Médée’s statements and behaviour at the interview
(congratulating the couple, stating that the marriage had been entered into in
good faith, and assisting with the renewal of the Applicant's work permit)
indicated approval of the sponsorship application.
[17]
The Applicant contends that because the issue
had already been decided by Officer Médée, res judicata and issue
estoppel mean that the issue could not be re-visited by Officer St-Martin.
[18]
The Applicant also contends that a year and a
half had passed since the first interview without a permanent resident card
being issued, which was an unreasonable delay. He argues that 18 months after
the interview was conducted, the only valid reasons for which he could be
refused are those tied to inadmissibility.
[19]
The Applicant contends that the mention in the
analysis of the FOSS notes that the Applicant had a pending criminal case
constitutes an error because the accusations of assault brought against him
were dismissed on September 25, 2012.
[20]
The Applicant also alleges that Officer
St-Martin committed an error by failing to enter the reason for which he did
not meet the spousal requirements in the appropriate blank on the relevant
form. He claims that this is a fatal error, and should invalidate the decision.
Respondents
[21]
The Respondents provide an explanation for the
series of events preceding the refusal of the Applicant's application: that the
application was approved at stage 1 by Officer Médée, and then was transferred
to Officer St-Martin for a stage 2 analysis because of concerns that the
Applicant was inadmissible on security grounds. It was at this moment that
Officer St-Martin learned that the Applicant was no longer living with his
wife, and therefore could not grant the application since the Applicant no
longer met all the criteria of section 124 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [IRPR].
[22]
The Respondents argue that the application was
delayed for two reasons: the Applicant's statement that he was a member of the
Movement for the Actualization of the Sovereign State of Biafra (MASSOB) from
November 2002 to August 2005, and the criminal charge of assault against him
that was filed on April 20, 2012.
[23]
The Respondents emphasize that the Applicant's
arguments are based on the false premise that his application for permanent
residence was granted on October 26, 2011, when it was only approved “in
principle”, pending the outcome of the second part of the assessment.
[24]
Appendix A of the Operational Guideline IP 8 – Spouse
or Common-Law Partner in Canada Class, which was filed by the Applicant in his
written submissions, makes it clear that all in-Canada applications for
permanent residence have two stages. The first stage serves to verify the
Applicant's eligibility; that is, whether the Applicant is in a bona fides
marriage, and whether the sponsor is eligible to submit an undertaking. If the
Applicant meets the criteria, he is considered a member of the spousal class.
The Applicant met all the necessary criteria at this stage, and as a result
Officer Médée told the Applicant and his wife that their application had been
approved in principle, which did not mean that his application had been granted
and that he would be granted permanent resident status in Canada.
[25]
The Respondents admit that the Applicant should
have received a written confirmation of his stage 1 approval, which he did not,
for reasons which remain unknown. The Respondents explain that the second part
of the assessment of an in-Canada permanent residence application is to verify
that all other statutory requirements are met, such as determining whether the
Applicant is inadmissible for medical, security or criminality grounds and
verifying that he has a valid passport from his country of origin. The
Respondents argue that at this second stage, the Applicant must still meet the
other criteria for membership in the spousal class provided by section 124 of IRPR,
which is confirmed by section 5.15 of the Operational Guideline IP 8 – Spouse
or Common-Law Partner in Canada Class.
[26]
The Respondents go on to explain that once it
was discovered that the Applicant might be inadmissible on security grounds due
to his involvement with MASSOB and the pending criminal charges, his file was
transferred to Officer St-Martin, an officer with special expertise in security
issues, which is common practice for CIC. This, the Respondents explain, is why
the Applicant's application was not processed before April 2013, at which time
it was determined that there was insufficient evidence to conclude that he was
inadmissible on security grounds.
[27]
The Respondents also set forth that the
application was delayed because of the criminal charges brought against the
Applicant on April 20, 2012, as per section 11.1 of the Operational Guideline
IP 8 – Spouse or Common-Law Partner in Canada Class, which states that officers
should delay scheduling an appointment for confirmation of permanent residence
until there is a final disposition of criminal charges. Officer St-Martin
testified in her affidavit that she noticed that the Applicant had been
criminally charged on April 26, 2013, when she took over the file.
[28]
When Officer St-Martin discovered that the
Applicant had separated from his wife, she proceeded with the processing of the
application, and rendered a negative decision because the Applicant no longer
met all the criteria to be considered in the spousal class. She did not render
a decision that had already been taken by Officer Médée.
[29]
The fact that the criminal charges brought
against the Applicant were dismissed is irrelevant, since it was not before the
decision-maker (Isomi v Canada (Minister of Citizenship and Immigration),
2006 FC 1394 at paras 6-11; Paul-Laforest v Canada (Minister of Citizenship
and Immigration), 2012 FC 815 at para 16). If the information that the
charges had been dismissed was not in the system, this was because the
Applicant had failed to discharge his burden to update his application by
advising the officer that he had been acquitted (Dios v Canada (Minister of
Citizenship and Immigration), 2008 FC 1322; Matheen v Canada (Minister
of Citizenship and Immigration), 2006 FC 395 at para 17). In any case, this
fact had no impact on the final decision.
V. Analysis
[30]
The issue in this file turns on whether Officer
Médée took a decision in light of the interview she conducted with the
Applicant and his wife on October 26, 2011 in accordance with CIC’s decision-making
processes. Section 5.15 of CIC’s Operational Guideline IP 8 – Spouse or Common-Law
Partner in Canada Class states that the requirements for spousal sponsorship
have to be met when a decision on permanent residence is entered into FOSS.
This would appear to indicate that a decision is taken by CIC on a sponsorship
application when an entry to that effect is made in FOSS.
[31]
Furthermore, the analysis document, which makes
reference to the FOSS notes, cannot be given too much weight, as the entries
appear out of chronological order, and were subject to amendments after the
fact.
[32]
Accordingly, the best evidence as to whether a
decision was made on October 26, 2011 would have been the FOSS records. On the
basis of the failure of the Respondents to provide the FOSS records, or any
other evidence that could be relied upon to contradict the Applicant’s evidence
that the decision was made on that date, the Court finds that a decision was,
in fact, made on October 26, 2011 to accept the Applicant’s application and
grant him permanent resident status.
[33]
In arriving at this conclusion, a significant
factor was the lack of FOSS notes. FOSS notes are considered reliable and
acceptable business records evidence, as it is the Court’s understanding that
they cannot be altered after the fact. As a result, if an action turns on an
entry made in FOSS, it is essential that FOSS notes be filed as evidence. In
this case, the Respondents did not do so, and as such, an adverse inference can
be drawn from this failure to provide essential evidence.
[34]
The Applicant testified that the October 26,
2011 interview did, in fact, constitute a final acceptance of his application,
basing this contention on various factors.
[35]
This is supported by the letter calling the
Applicant in for the interview with Officer Médée, which stated that the
interview was “essential to finalize the processing of [his] application.”
[36]
The Applicant also stated in his affidavit that
Officer Médée indicated at the October 26, 2011 interview that she was
accepting the application. This evidence was uncontradicted by the Respondents.
If Officer Médée’s intention had been something other than approval of the
application, an affidavit on her part was required. Officer Médée did not
provide an affidavit. Officer St-Martin stated in her affidavit that this was
because Officer Médée was on vacation. However, Officer Médée remained a member
of CIC and could have and should have filed an affidavit, particularly in light
of the absence of the FOSS notes.
[37]
The only evidence of Officer Médée’s actions and
intent are contained in the analysis document, which was created after the
fact, and in Officer St-Martin’s affidavit.
.
[38]
Rule 81(2) of the Federal Courts Rules,
SOR/98-106, states:
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Federal Courts Rules,
SOR/98-106
81. (2) Where an affidavit is made
on belief, an adverse inference may be drawn from the failure of a party to
provide evidence of persons having personal knowledge of material facts.
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Règles des Cours fédérales,
DORS/98-106
81. (2) Lorsqu’un affidavit
contient des déclarations fondées sur ce que croit le déclarant, le fait de
ne pas offrir le témoignage de personnes ayant une connaissance personnelle
des faits substantiels peut donner lieu à des conclusions défavorables.
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[39]
In these circumstances, where the FOSS notes
have not been provided, I am prepared to draw an adverse inference from the
fact that Officer Médée failed to provide an affidavit, which would have served
as a first-hand account of the actions taken as a result of the October 26,
2011 interview with the Applicant in place of the FOSS notes.
[40]
In effect, the Respondents are asking the Court to
rely upon hearsay evidence based upon hearsay evidence. The FOSS records, had
they been entered into evidence, would have been entered as a form of business
records, and most likely relied upon by Officer Médée as a form of past
recollection recorded (in effect, relying upon a document created by the
witness as opposed to her memory) (see David M. Paciocco & Lee Stuesser,
The Law of Evidence, 6th ed (Toronto: Irwin Law Inc. 2011) at 422). Not only
were they not introduced into evidence, we do not have first-hand evidence
explaining why there was no note of the interview with the Applicant as the
Respondents allege. Secondly, Officer St-Martin presented Officer Médée’s hearsay
evidence as a second level of hearsay evidence. There is simply no reliable
evidence to counter the Applicant’s evidence that approval was accorded to him
by Officer Médée and therefore entered into FOSS.
[41]
Furthermore, as the Respondents conceded, Officer
Médée failed to send a written confirmation in the form of a letter of the
Applicant’s approval at stage 1, which is CIC’s standard practice. This failure
was not explained in any way.
[42]
In addition, there is no explanation for the
significant delay between the interview and CIC’s ultimate refusal of the
Applicant’s application, which is entirely attributable to CIC’s actions, as
there is no record of the actions taken for the year and a half following the
October 26, 2011 interview. The only reference in the evidence to that time
period is a note regarding Ms. Nakadidjata’s advisement to CIC of her change of
address on November 8, 2012.
[43]
The Respondents attempted to justify the delay
with the Applicant’s admission of involvement with MASSOB and the criminal
charges laid against him on April 20, 2012. This explanation is unsatisfactory.
The Certified Tribunal Record shows that the Applicant revealed his involvement
with MASSOB to the Respondents when he first filled out the In-Canada
Application for Permanent Resident Status form on March 3, 2009, and as already
mentioned, the analysis of the FOSS notes shows that a security check was
completed in August 2010, which concluded that there was insufficient evidence
against the Applicant. It is unclear, then, why a security check would have
taken an additional year and a half after the October 26, 2011 interview if one
had already been completed.
[44]
As for the criminal charges, although irrelevant
at this stage, they do not explain the delay, as they were laid against the
application on April 20, 2012, but did not come to CIC’s attention until
Officer St-Martin proceeded with the processing of the application on April 26,
2013.
[45]
As a result, based on the Applicant’s evidence
that a decision was made accepting his application on October 26, 2011, as well
as the Respondents’ failure to provide the FOSS notes, Officer Médée’s failure
to provide an affidavit, the failure to send the letter advising of first stage
approval, and the adverse inferences arising therefrom, rendering the hearsay
affidavit evidence of Officer St-Martin of no weight, the Court finds on a
balance of probabilities that the acceptance of the Applicant’s application was
made on the day of the interview, October 26, 2011.
[46]
The only evidence provided indicates that
Officer Médée’s intention at the interview was to finalize the application, and
because this evidence is uncontradicted, it must be accepted that an
appropriate entry was made in the FOSS notes, thereby constituting the decision
on the Applicant’s permanent residence.
JUDGMENT
THIS
COURT’S JUDGMENT IS THAT the application is allowed.
« Peter Annis »
___________________________
Judge
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