Date: 20140529
Docket: IMM-7854-13
Citation: 2014 FC 522
Ottawa, Ontario, May 29, 2014
PRESENT: The Honourable Mr. Justice Simon Noël
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BETWEEN:
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HAYTHAM ATTAALLAH
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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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ORDER AND REASONS
I.
Introduction
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], that seeks to set aside a decision dated November 21, 2013 in
which Danielle LeBrun, an immigration officer of Citizenship and Immigration
Canada [CIC] [the Immigration Officer], dismissed the Applicant’s application
for permanent residence [APR] as a member of the spouse or common-law partner
in Canada class.
II.
Facts
[2]
The Applicant is Palestinian born on January 1,
1979. He came to Canada in September 2001 as a student and claimed refugee
protection in October 2001. His application was rejected by the
Immigration and Refugee Board in March 2005, and in June 2005 the Federal Court
denied him leave for the judicial review of this decision.
[3]
The Applicant filed an application for permanent
residency based on humanitarian and compassionate grounds in August 2005.
In April 2009, this application was also denied, and in
September 2010 the Federal Court once again denied him leave for judicial
review.
[4]
The Applicant was informed of his future removal
in February 2012, but he filed an application for a pre-removal risk
assessment [PRRA] in March 2012, which was denied in July 2012. This
decision remains unchallenged.
[5]
In May 2012, while his PRRA application was
still pending, the Applicant married Lucia Valvano, a Canadian citizen and
lawyer. In June 2012, he filed an APR as a member of the spouse or
common-law partner in Canada class, sponsored by Lucia Valvano.
[6]
After reviewing certain documents relating to
the Applicant on October 25, 2013, the Immigration Officer sent a letter
to the Applicant and his sponsor summoning them to an interview and asking that
they provide additional documents. The interview took place on November 4,
2013, and the next day, on November 5, 2013, the Immigration Officer
requested further documents from the Applicant and his sponsor. Only some of
the requested documents were provided.
[7]
On November 21, 2013, the Applicant’s APR was
denied.
III.
Decision under review
[8]
In the letter and in her notes, the
Immigration Officer recalled the legislative framework
applicable to the Applicant’s APR and found that she was not persuaded that the
Applicant cohabits with his sponsor in Canada (pursuant to paragraph 125(a)
of the Immigration and Refugee Protection Regulations, SOR/2002-227
[IRPR]), and that the marriage was genuine and was
not entered into merely for the purpose of acquiring any status or privilege
under the IRPA (pursuant to section 4 of the IRPR).
[9]
In coming to the conclusion
that the Applicant does not cohabit with his sponsor in Canada, the Immigration Officer examined among other things the Applicant’s electronic file
at the Canada Border Services Agency [CBSA], where the Applicant is required to
report monthly. The Applicant claimed to live at 4555 Bonavista Avenue, in Montreal, Quebec, with his spouse and sponsor. The Immigration Officer noted that the
Applicant’s address in the file was 148 Waterbridge Drive, in Ottawa, since 2008,
that he had yet to change his marital status, still appearing as “not married”,
and that he still reported to the Ottawa office on a monthly basis despite
living in Montreal since May 4, 2012. The Immigration Officer also
examined other documentary evidence which lead her to believe that the
Applicant and his sponsor did not live together. The Immigration Officer also
made numerous findings with respect to the genuineness and the purpose of their
marriage.
IV.
Applicant’s submissions
[10]
The Applicant claims that the Immigration
Officer’s decision is unreasonable because she relied on extrinsic evidence and
failed to confront the Applicant and his sponsor with respect to several of her
main concerns. The Applicant was not afforded with a reasonable opportunity to
reply and this constitutes a violation of natural justice, as he did not know
the case that had to be met. In addition, in relation to other findings, the
Applicant contends that the Immigration Officer made a series of unreasonable
plausibility inferences considering the evidence submitted.
V.
Respondent’s submissions
[11]
The Respondent argues that both of the
Immigration Officer’s findings are entirely reasonable and that either finding
(i.e., the Applicant not living with his sponsor in Canada or their marriage
not being genuine) was sufficient to warrant her dismissal of the Applicant’s
APR.
[12]
It was reasonable for the Immigration Officer to
conclude that the Applicant does not live with his sponsor in Canada as this finding was based on several elements obviously present in the Applicant’s file and
interview. Amongst other things, the Applicant failed to change his address in
his electronic file at the CBSA and he continued to report in Ottawa despite
allegedly living permanently in Montreal. Also, the documentary evidence
produced demonstrates that the Applicant’s address in Montreal is nothing more
than a façade.
[13]
It was also reasonable for the Immigration
Officer to find that the Applicant’s marriage with his sponsor was one of
convenience considering the evidence submitted and the factual findings on
which her decision was based. The Respondent adds that the Immigration Officer
had the benefit of seeing the Applicant and his sponsor. Also, contrary to the
Applicant’s assertion, the Immigration Officer did offer them an opportunity to
reply by submitting them to an interview and by requesting that they produce
additional documents, but she simply remained unsatisfied despite the
Applicant’s response.
VI.
Applicant’s reply
[14]
In replying to the Respondent’s claims, the Applicant
refers to specific paragraphs of his original submissions but submits no
additional argument.
VII.
Issues
[15]
The parties somewhat agree on the issues to be
addressed by this Court, and I would reword the questions as follows:
1. Did the Immigration Officer err when she dismissed the
Applicant’s APR as a member of the spouse or common-law partner in Canada class?
2. Did the Immigration Officer breach procedural fairness by
failing to confront the Applicant and his sponsor to several of her main
concerns, thus depriving the Applicant and his sponsor of the opportunity to
respond?
VIII. Standard of review
[16]
The first issue constitutes a factual
determination to be examined under the standard of reasonableness (on the issue
of cohabitation, see Mills v Canada (Minister of
Citizenship and Immigration), 2008 FC 1339 at para
19, [2008] FCJ No 1745 and Said
v Canada (Minister of Citizenship and Immigration), 2011
FC 1245 at para 18, [2011] FCJ No 1527 [Said]; for the genuineness of
the marriage, see Kaur v Canada (Minister of Citizenship and Immigration),
2010 FC 417 at para 14, [2010] FCJ No 482 and Koffi v Canada (Minister of
Citizenship and Immigration), 2014 FC 7 at para 16, [2014] FCJ No 3 [Koffi]).
[17]
And under the standard of reasonableness, this
Court’s analysis will show great deference to the Immigration Officer’s
findings and will be concerned mostly with “the existence of justification,
transparency and intelligibility within the decision-making process”. This
Court will have to determine “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.” (see Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47, [2008] SCJ No 9 [Dunsmuir]). Following this standard of review, it is not up to the
Court to reweigh the evidence or “to substitute its own view of a preferable
outcome.” (Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12 at para 59, [2009] SCJ No 12 [Khosa])
[18]
The second issue, as it is a question of
procedural fairness, shall be reviewed following the standard of correctness (Khosa,
above, at para 43). With respect to this issue, no deference is owed to the
Immigration Officer (Dunsmuir, above, at 50).
IX.
Analysis
[19]
Prior to embarking on the analysis of the two
issues, it would be appropriate to present an overview of the process
undertaken by the Applicant and his sponsor under the IRPA and the Immigration
and Refugee Protection Regulations, SOR/2002-227 [IRPR]. The relevant legal
provisions are reproduced in the annexe to these reasons.
[20]
The Applicant applied for an APR as a member of
the spouse or common-law partner in Canada class. Sections 12 and 13 of the
IRPA enact the right to be sponsored and to sponsor, stating that, subject to
the IRPR, a Canadian citizen or permanent resident can “sponsor a foreign
national who is member of the family class.” Section 123 of the IRPR prescribes
that “the spouse or common-law partner in Canada […] is a class of persons who
may become permanent residents […]” pursuant to section 12 of the IRPA.
Section 124 specifies who exactly qualifies as a “member” of the “spouse
or common-law partner in Canada class”, including the fact that the member must
be the “spouse or common-law partner of a sponsor and cohabit with that sponsor
in Canada”. As such, in order to be considered a member of the appropriate
class, the Applicant must live with his spouse, but the Immigration Officer
concluded that he did not.
[21]
What is more, section 4 of the IRPR further
specifies that a person shall not be considered a spouse or a common law partner
in cases where the marriage was “entered into primarily for the purpose of
acquiring any status or privilege under the [IRPA]” or that “is not genuine.”
In the present matter, the Immigration Officer found that the marriage failed
on both accounts.
A. Did the Immigration Officer err when she
dismissed the Applicant’s APR as a member of the spouse or common-law partner
in Canada class?
[22]
Considering the decision under review and the
arguments submitted, this issue requires that this Court determine whether the
Immigration Officer’s findings are reasonable with respect to both the
cohabitation of the spouses and the genuineness of their marriage. As stated
above, this Court must avoid reweighing the evidence while doing so, as this
was the task of the decision-maker. Here, the Applicant mostly makes
unsupported assertions which cannot override the reasonableness of the decision
as a whole.
[23]
First, was it reasonable for the Immigration
Officer to conclude that the Applicant failed to establish, on a balance of
probabilities, that he cohabited with his sponsor in Canada? For the following
reasons, this Court finds this conclusion was reasonable.
[24]
Although certain elements did tend to establish
that the Applicant and his sponsor lived together in Canada (certain monthly
bills, the lease for the Montreal apartment, Quebec driver’s licence, etc.),
several pieces of evidence established otherwise, i.e. that they lived apart.
[25]
One of the main reasons why the Immigration
Officer did not believe the Applicant cohabited with his sponsor in Canada is
the electronic file regarding him that is under the responsibility of the CBSA,
which states that the Applicant must report to the CBSA office in Ottawa on a
regular basis and that he must inform the CBSA of any change in his residential
address in the 48 hours following the change. According to this file examined
by the Immigration Officer, the Applicant is not married and still resides at 148 Waterbridge Drive in Ottawa even though he claims to be living in Montreal with his
sponsor. The Immigration Officer even contacted a CBSA office to confirm the
information. To the contrary of what the Applicant contends, he was confronted
with this concern during his interview by the Immigration Officer, but he
simply failed to provide a satisfactory response. This is a strong piece of
evidence against the Applicant’s claim because he failed to change his address
despite having the obligation to do so. It is hard to understand why the
Applicant, who allegedly lives in Montreal, would prefer his file not be
transferred in that city.
[26]
On top of the CBSA electronic file on the
Applicant stating that he is not married and that he lives in Ottawa, there
were other elements in the application which lead the Immigration Officer to
find that the Applicant did not reside with his sponsor, including the
following:
- The
Applicant still reports on a monthly basis to the CBSA in Ottawa despite living
in Montreal since May 4, 2012;
- The
Applicant’s credit card statements indicate that he travels frequently between Ottawa and Montreal;
- The
Applicant’s correspondence coming from his financial institution is all sent to
his address in Ottawa;
- The
Applicant owns a $350,000 house at 150 Waterbridge Drive, in Ottawa, which he
rents out to three people, and the leases signed after the Applicant’s alleged
move to Montreal all state that his address is in Ottawa;
- Despite
owning a $350,000 house in Ottawa, the Applicant and his sponsor allegedly live
together in a one-bedroom apartment in Montreal;
- The
Applicant’s corporation income tax return for 2012 states that his address is
in Ottawa;
- The
Applicant did not produce an income tax return for 2012 in Quebec.
[27]
The Applicant and his sponsor were asked on two
occasions to provide additional documents – once at the interview and another
time by way of letter sent after the interview. The Applicant sent only limited
documents, and the documents thus submitted were explicitly considered by the
Immigration Officer in her reasons.
[28]
Combined, all these elements certainly make it
reasonable for the Immigration Officer to have found that the Applicant failed
to establish, on a balance of probabilities, that he cohabits with his sponsor
in Canada, as she was simply not convinced. Her reasons and notes in this
regard are clear and intelligible and they definitely allow this reviewing
court to understand why she took this decision (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 at paras 14-16, [2011] SCJ No 62).
[29]
As such, I find that the Immigration Officer’s
finding that the Applicant had not satisfied the requirement set out in
paragraph 124(a) of the IRPR was reasonable. This finding does not
warrant this Court’s intervention.
[30]
Although, as duly noted by the Respondent in its
factum, a negative finding with respect to the cohabitation of the spouses
under paragraph 124(a) of the IRPR is sufficient to reject the
claim as a whole for absence of sponsorship (see Said, above, at paras
34-35), I will nonetheless examine the issue of the marriage.
[31]
Second, was it reasonable for the Immigration
Officer to conclude that the Applicant failed to establish, on a balance of
probabilities, that his marriage to his sponsor was genuine and was not entered
into primarily for him to acquire a status of a privilege? The Immigration
Officer’s conclusion in this regard is based on the following factual findings:
- There is
an 11 year age difference between the spouses;
- Practically
all family members and friends of the spouses do not know about the
relationship;
- Only
a few family members attended the wedding, which took place in Ottawa;
- The
Applicant claims that his sponsor’s family members did not attend the wedding
because of a family conflict but he does not know the nature of this conflict;
- The
spouses know little of each other’s interests and share few common life goals
and plans;
- The
spouses allegedly live together in a one-bedroom apartment despite the fact
that the Applicant owns a $350,000 house in Ottawa;
- The
Applicant’s professional activities take place exclusively in Ottawa while his
sponsor works only in Montreal;
- The
spouses are not financially interdependent;
- The
sponsor knows little of the Applicant’s past;
[32]
The finding related to the age difference is
weaker, but the others are quite strong and fully explain the fact that the
Immigration Officer was not convinced of the genuineness of the Applicant’s
marriage to his sponsor.
[33]
The Applicant and his sponsor contend that their
explanations were not considered by the Immigration Officer, but the notes and
reasons indicate the contrary. Once again, the Applicant and the sponsor simply
failed to provide satisfactory answers and explanations, and as noted by the
Respondent, assessing the genuineness of the marriage, or lack thereof, was
solely the duty of the Immigration Officer:
[1] It is well established in
the case law of this Court that there is no specific criterion, or even a set
of criteria, to determine whether a marriage is genuine pursuant to section 4
of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations]
(Ouk v Canada (Minister of Citizenship and Immigration), 2007 FC 891 at
para 13; Zheng v Canada (Minister of Citizenship and Immigration), 2011
FC 432 at para 23; Khan v Canada (Minister of Citizenship and Immigration),
2006 FC 1490 at para 20). It is exclusively up to the visa officer to determine
the relative weight to grant each of the factors, based on the facts, to ensure
the inherent logic of the applicant’s story according to the particular clues,
or references made by the applicant himself, meaning the encyclopedia of
references, a dictionary of terms, a picture gallery of the applicant’s file in
addition to an assessment to determine whether the facts on file taken together
create harmony or discord (Keo v Canada (Minister of Citizenship and
Immigration), 2011 FC 1456 at para 24; Zheng, supra).
[Koffi, above, at para 1]
[34]
As it was the case for the cohabitation of
spouses, the Immigration Officer’s reasons and notes are clear and intelligible
and most certainly explain how she came to her conclusion, which, for this very
reason, shall remain undisturbed. Thus, it was reasonable for the Immigration
Officer to find that the Applicant had failed to establish that his marriage
was genuine and not entered into for the purpose of acquiring any status or
privilege under the IRPA pursuant to paragraph 4(2) of the IRPR. Similarly
to the first finding, this second finding does not warrant the intervention of
this Court either.
B. Did the Immigration Officer breach procedural
fairness by failing to confront the Applicant and his sponsor to several of her
main concerns, thus depriving the Applicant and his sponsor of the opportunity
to respond?
[35]
The Applicant claims that the Immigration
Officer should have confronted him with the content of the telephone
conversation she had with the CBSA Officer in Montreal. The Applicant further
argues that he should have been given the opportunity to disabuse the
Immigration Officer’s concerns in this regard.
[36]
However, having read the notes, I find that the
Applicant was indeed offered the opportunity to address the Immigration
Officer’s issues regarding his file at the CBSA. To the question “According to your CBSA file you have a reporting requirement
once a month at CBSA office in Ottawa. So how do you manage this since you are
living in Montreal? Why you never ask your CBSA file be transferred to CBSA
Montreal regarding your reporting requirement?” (sic throughout) the
Applicant answered: “Declares that he never asked to transfer his CBSA’s file
to Montreal. Declares that he informed the CBSA Office of his change of address
but they ask him to continue to report there in Ottawa.” (sic
throughout) Even his sponsor spoke on the issue during the interview,
adding: “She knows that he has reporting requirement in Ottawa every beginning of the months. Declares that they never ask for his file to be
transferred in Montreal.” (sic throughout)
[37]
As such, both the Applicant and his
sponsor were made aware of the Immigration Officer’s concerns with
respect to the Applicant’s file at the CBSA and they were both given the
opportunity to respond but simply failed to give satisfactory answers and, consequently, I find that the Immigration Officer
did not commit a breach of procedural fairness.
[38]
The parties were invited to
submit a question for certification, but none were proposed.
ORDER
THIS COURT ORDERS that this application
for judicial review is dismissed. No question is certified.
“Simon Noël”
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