Docket: IMM-3208-12
Citation: 2014 FC 53
Ottawa, Ontario, January 20, 2014
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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HAIBIN WU
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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
[1]
This application for judicial review concerns a
visa officer’s refusal to grant the Applicant’s application for permanent
residence as the spouse of Yan Qin Jiang (his Second Wife). The Officer’s
decision is dated March 1, 2012 (the Decision) and he interviewed the Applicant
and his Second Wife in February 2012 (the Interview).
[2]
The first issue is the reasonableness of the
Officer’s conclusion that the Applicant’s marriage to his Second Wife was
undertaken primarily for immigration purposes. This case is unusual because the
negative Decision was made even though the Second Wife had had one child and was
pregnant again at the time of the Interview.
[3]
There is evidence that:
i. The
Applicant and his Second Wife have operated a business together since 2009.
ii. The
Applicant married his Second Wife in Canada in May 2011.
iii. The Applicant and his Second Wife began to live together
in December 2009 and in April 2011 she had her first child.
[4]
Notwithstanding this evidence, the Officer
reached a negative decision. The Applicant says it should be set aside because:
i. The
credibility findings were unreasonable;
ii. There
was a problem with the interpretation; and
iii. The
best interests of the children were not considered.
Issue 1: Credibility
[5]
The Applicant, who is a failed refugee claimant,
lied to the Officer in an earlier interview when he was asked about when his
relationship with his first wife ended. It turned out that when the Applicant
was interviewed in May of 2010 about his first wife’s sponsorship application,
he advised the Officer that he was in a genuine marriage with her. However in
reality, by that time, he had asked his first wife for a divorce and had been
living with his Second Wife for five months. At the hearing before me counsel
for the Applicant conceded these facts which will be described as the “Lie”.
[6]
There were also inconsistencies in the evidence.
The Applicant initially said that he proposed to his Second Wife after the
first baby was born, but later he said he was unsure. The Second Wife, on the
other hand, said that he had proposed twice and that both proposals had been
made before the baby was born.
[7]
The Applicant’s eldest sister apparently lives
with the Applicant and his Second Wife. However, the Applicant said that
although he tried to persuade her to live in the basement, his sister insisted
on living upstairs in their home. The Second Wife, on the other hand, said that
the Applicant’s sister lived in the basement and provided a drawing to show that
the sister’s room was adjacent to the room in which she and the Applicant slept.
This inconsistency suggests that the Applicant and his Second Wife do not live
together.
[8]
In view of these unexplained inconsistencies and
in view of the fact that this applicant will tell fundamental lies to stay in Canada, I cannot conclude that the Decision was unreasonable.
Issue 2: The
Interpreter
[9]
The Applicant selected an interpreter who spoke
Mandarin and stated on the record that he understood the translation. As well,
the Applicant never complained that he was having difficulty with the
interpretation. He simply stated that he became confused and misunderstood
towards the end of the Interview. In my view, this state of affairs developed, not
because there were problems with the interpreter, but because he was unwilling
to answer questions about his first wife because of the Lie referred to above.
Issue 3: The
Best Interests of the Children
[10]
The Applicant did not raise Humanitarian & Compassionate
issues in the sponsorship application even though he is subject to a removal
order. In other words, there is no suggestion that the children or their mother
face difficulties of any kind. Nevertheless, the Applicant says that the
Officer had a duty to consider the children’s best interests and to make
inquiries about how they would fare if their father were to be removed.
[11]
The Applicant says that section 5.27 of IP 5 creates
the duty and that the Officer should have treated the case as if an H&C
exemption had been requested. The section reads as follows:
5.27. Inadmissibilities
for which no exemption has been requested
See also Section
5. 25, Inadmissible applicants.
During the Stage 1 or
2 assessments, a known or suspected inadmissibility may be identified, that is,
an inadmissibility for which no exemption has been requested.
This can occur during
the review of a client’s history in FOSS or though information provided by the
applicant (e.g. on the IMM 5001) that suggests that either the applicant
or a family member is inadmissible. In such cases, the officer may:
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refuse the application based on the existence of
the inadmissibility; or
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the officer may use discretion to consider, on
their own initiative, whether an exemption on H&C grounds would be
appropriate.
When the applicant
does not directly request an exemption, but facts in the application suggest
that they are requesting an exemption for the inadmissibility, officers
should treat the application as if the exemption has been requested.
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Example: It would be clear that the applicant is seeking an exemption for
an inadmissibility without explicitly asking for it if the applicant has a
criminal conviction and, in the submission, made a case as to why they should
be exempted from that inadmissibility (e.g. they have served their time, are
rehabilitated, have done community service, have full-time employment, etc.)
the onus always rests on the applicant to make their case and it is the
applicant who “bears the burden of proving any claim upon which he relies” (Owusu
v. MCI, 2004 FCA 38).
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[12]
In my view this section does not apply because
there was no inadmissibility at issue and therefore no suggestion that the
Applicant might be requesting an H&C exemption. Accordingly, in this case
the Officer was only required to assess the marriage under section 4(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227.
Certification
[13]
No question was posed for certification.
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