Docket: IMM-5591-13
Citation:
2015 FC 148
Ottawa, Ontario, February 5, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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LEONARDO CAETANO DE MENDONCA and
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EMANUEL CORREIA DA VASCONCELOS MELO
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter and Background
[1]
Pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], Mr. de
Mendonça [Principal Applicant] and his sponsor [Secondary Applicant] seek
judicial review of a decision refusing the Principal Applicant’s application
for permanent residence as a member of the spouse or common-law partner in
Canada class. The Applicants ask this Court to set aside that decision and
return the matter to a different officer for re‑determination.
[2]
The Principal Applicant is a man from Brazil who came to Canada on March 9, 2009, and applied for refugee protection a few months later.
However, he abandoned that claim when he failed to show up for his hearing on
May 12, 2011. On May 21, 2011, he married the Secondary Applicant, Mr. Melo,
whom he had met about 7 months earlier. The Secondary Applicant is also from Brazil and he became a permanent resident of Canada on June 3, 2008, having been sponsored by his
first husband, Mr. Woods. He and Mr. Woods separated on January 28, 2009, and
their divorce took effect shortly before Mr. Melo married Mr. de Mendonça.
[3]
On July 4, 2011, the Principal Applicant applied
for permanent residence as a member of the spouse or common law partner in Canada class, with the Secondary Applicant as his sponsor. The Applicants were interviewed
on June 28, 2012, and an officer was satisfied that they were in a genuine
relationship and, therefore, granted stage 1 approval.
[4]
However, the application was still not finalized
when Citizenship and Immigration Canada [CIC] received information from the
Canada Border Services Agency [CBSA] which suggested the Applicants were not
cohabiting. Specifically, a CBSA officer attested that he had attended the
address listed for the Applicants on September 30, 2011, and was advised by the
building superintendent that Mr. Melo had lived there in unit 603 with his
partner, Fabio Carmelio, but that he had gone back to Brazil six months ago.
When that officer returned to that address on November 15, 2011, a neighbour
said that two men and a woman had lived in that apartment for the past year and
a half, but she did not recognize either Mr. de Mendonça or Mr. Melo when she
was shown photographs of them.
[5]
The Applicants had updated their file with a new
address in which they claimed to have resided since early 2012. When two CBSA officers
attended that address on March 16, 2013, they reported that two people there
said that the Principal Applicant lived in the basement but they did not
recognize Mr. Melo when shown a photograph of him. The statutory declaration
from one of the CBSA officers said that Mr. de Mendonça let them into his room,
which was small, had a small bed, and contained only his belongings. According
to the CBSA officer, Mr. de Mendonça said that Mr. Melo had taken all his
possessions with him when he went to Brazil for a couple of months, and that he
had temporarily moved into a smaller room in the same house to save money on
rent.
[6]
On June 19, 2013, an officer at CIC sent a
letter to Mr. de Mendonça saying that he might be found inadmissible for
misrepresentation and for violating his duty of candour because “[a] home visit report has been received from Canada Border
Services Agency which confirms that you are not cohabiting with your sponsor,
Emanuel Melo.” This letter afforded the Principal Applicant 30 days to
supply any additional information. Mr. de Mendonça took that opportunity to
respond and supplied a number of documents to show that Mr. Melo had gone to Brazil to take care of his mother in February, 2013, which was why he was not present at
the time of the home visit. Although the trip was only planned to take a couple
of months, Mr. Melo was seriously injured in a car accident in Brazil and could not return to Canada until June 17, 2013.
II.
Decision under Review
[7]
By letter dated August 6, 2013, a CIC officer
[Officer] refused the application for permanent residence.
[8]
In a document explaining the rationale for the decision,
the Officer recited some of the evidence before stating the following:
I am not satisfied client and his sponsor
are credible when they stated that they are cohabiting together and in a
genuine relationship. There are confirmations that they are residing in
separate addresses for [sic] long period of time. There were no
submissions to file of their separation prior to the investigative report. If
this investigation did not occur there would be confirmation that they are
residing apart. The onus is on client and sponsor to be truthful under the Act.
I am not satisfied with their explanation submitted in response to the
procedural fairness letter. I am satisfied that this couple misrepresented the
material fact that they are in a genuine marriage and cohabiting together.
[9]
Thus, the Officer suspected that Mr. de Mendonça
was inadmissible under paragraph 40(1)(a) of the IRPA and decided
that he did not meet the requirements in paragraphs 72(1)(c), 72(1)(e)(i),
and 124(a) of the Immigration and Refugee Protection Regulations,
SOR/2002-227.
III.
The Parties’ Submissions
A.
The Applicants’ Arguments
[10]
The Applicants say that the key issue in this
matter is one of disclosure: did the Applicants have enough information to know
the case against them? As this is a question of procedural fairness, they say
that it should be reviewed on the correctness standard.
[11]
The Applicants note that the genuineness of
their marriage had been established during the interview in June, 2012, and
this is proven by the stage 1 approval of their sponsorship application.
[12]
The Applicants argue that the fairness letter
dated June 19, 2013, was misleading since all it referred to was a “home visit report”. According to the Applicants, it
was understandable that the Applicants responded by only explaining the
circumstances of the Secondary Applicant’s absence from the home at the time of
the home visit.
[13]
They were thus surprised to learn of certain “confirmations” that the Officer relied on in the
reasons. The Applicants argue that they were not told the case they had to meet
and cite the Supreme Court of Canada decision in Syndicat des employés de
production du Québec et de l'Acadie v Canada (Canadian Human Rights Commission),
[1989] 2 S.C.R. 879, 62 DLR (4th) 385. According to the Applicants, it was incumbent
upon the Officer to disclose the substance of his concerns about the
Applicants’ cohabitation and the “confirmations”.
[14]
The Applicants state that they could have met
the case against them had the Officer told them what it was. The Applicants
urge the Court to send this matter back for re-determination, so that the
Applicants can properly participate in the decision. In their view, there is no
room for mistakes in this matter and it cannot be reduced to guessing games,
since it could destroy their marriage (citing Ali v Canada (Minister of Citizenship and Immigration), 2004 FC 1174 at paragraphs 77-78,
[2005] 1 FCR 485).
[15]
The Applicants also argue that the Respondent misses
the point when it tries to use the investigation reports to show that the decision
is reasonable, as the issue is precisely about whether it was fair to rely on
those reports without giving the Applicants a chance to address them.
B.
The Respondent’s Arguments
[16]
The Respondent contends that the Applicants are
improperly trying to attack the adequacy of the Officer’s reasons, and otherwise
argues that the process followed was fair.
[17]
According to the Respondent, the Officer’s
decision was justified by the results of the home visits in 2011 and in 2013
(citing Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at paragraph 15, [2011] 3 S.C.R. 708 [Newfoundland
Nurses]). After all, the Respondent rhetorically asks, if the Secondary
Applicant was actually cohabitating with the Primary Applicant, why would he
take all his belongings back to Brazil, a place with a very different climate?
[18]
The Respondent otherwise acknowledges that there
was a duty of fairness in this case, but says that the duty was fulfilled by
the Officer in this case. Specifically, the Respondent argues that the
Applicants were sufficiently informed of the case against them. The fairness
letter raised concerns about the Applicants’ co-habitation, and the Applicants
could have provided more information in response to these concerns, even without
being informed of the investigations in 2011. According to the Respondent, it
was the Applicants’ fault for not properly responding to the fairness letter.
[19]
The Respondent compares this case to the
situation in Ali Gilani v Canada (Citizenship and Immigration), 2013 FC
243 at paragraphs 5-6, 46-47 [Ali Gilani]. There, the Officer relied on
surveillance by the CBSA, and Madam Justice Catherine Kane rejected the
contention that the dates or details of surveillance needed to be disclosed to
the applicant in the procedural fairness letter.
IV.
Issues and Analysis
A.
Standard of Review
[20]
If previous jurisprudence has determined the
standard of review applicable to a particular issue before the Court, the
reviewing Court may adopt that standard (see Dunsmuir v New Brunswick,
2008 SCC 9 at paragraphs 57 and 62, [2008] 1 S.C.R. 190 [Dunsmuir]).
[21]
The primary issue raised by the Applicants is
with respect to the procedural fairness afforded to them by the Officer in
making his decision. The Officer deserves no deference on this issue and it is
reviewable on a correctness standard (see Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at paragraph 43, [2009] 1 S.C.R. 339 [Khosa];
Mission Institution v Khela, 2014 SCC 24 at paragraph 79, [2014]
1 SCR 502). A decision-maker such as the Officer must afford affected persons
the procedural rights to which they are entitled, although sometimes an error
will not attract relief if it “is purely technical and
occasions no substantial wrong or miscarriage of justice” (Khosa
at paragraph 43).
[22]
The other issues raised by the Respondent are
questions of pure fact, and hence attract the reasonableness standard (see Dunsmuir
at paragraph 53). Accordingly, this Court should not intervene if the Officer’s
decision is transparent, justifiable, intelligible and within the range of
possible, acceptable outcomes that are defensible in respect of the facts and
the law (see Dunsmuir at paragraph 47; and Khosa at paragraph
59). In other words, the Officer’s decision should be respected if the reasons
are understandable and intelligibly explain why he reached his conclusions and
how the facts and applicable law support the result (see Newfoundland Nurses
at paragraph 16). As the Supreme Court stated in Khosa at paragraphs 59
and 61, a court reviewing for reasonableness cannot substitute its own view of
a preferable outcome, nor can it reweigh the evidence.
B.
Procedural Fairness
[23]
The fairness letter addressed to the Primary
Applicant in this case alerted him to the Officer’s concern that a “home visit report … confirms that you are not cohabiting
with your sponsor, Emanuel Melo.” This visit occurred on March 16, 2013,
and resulted in a statutory declaration from a CBSA officer who reported that
the Primary Applicant appeared to be living alone in a small apartment, amongst
other things. It is not altogether clear from the record whether this
declaration was provided to the Applicants with the fairness letter; however,
the copy of the fairness letter attached to the Primary Applicant’s affidavit
filed as part of the application record does not contain this declaration.
[24]
In response to the fairness letter, the
Applicants submitted a letter dated June 28, 2013, which included additional
information and materials about Mr. Melo’s recent absence from Canada and his accident in Brazil. This letter and the enclosures were clearly considered by the
Officer since the reasons for his decision refer to the Secondary Applicant’s
accident in Brazil and other matters contained in the Applicants’ June 28th
letter.
[25]
The Officer nevertheless rejected that
explanation because of certain “confirmations”
that the Applicants were residing at separate addresses for a long period of
time. These “confirmations” were the two
additional statutory declarations dated September 30 and November 15, 2011,
from the same CBSA officer who visited the Primary Applicant’s residence on
March 13, 2013. These declarations describe visits to Mr. Melo’s residence,
during which a neighbour and the building superintendent did not recognize a
photograph of the Principal Applicant. These “confirmations”
were not provided to the Applicants.
[26]
I disagree with the Respondent’s argument that
the duty of fairness owed by the Officer to the Applicants was met in this
case. It is true that the Officer here referred to the issue of the Applicants’
cohabitation in the fairness letter, and that the Applicants were afforded an
opportunity to respond to the Officer’s concern in this regard. However, the
Officer clearly based his decision on not only the statutory declaration
following the home visit in 2013, but also on the 2011 statutory declarations.
[27]
I agree with the Applicants that the fairness
letter misleadingly implied that the home visit report was the only source of
concern. The Applicants should have been provided with copies of the earlier statutory
declarations or, at a minimum, more information about the contents of these
declarations so they could have responded with appropriate evidence or
explanations.
[28]
This case is not like Ali Gilani, where
Justice Kane noted at paragraph 47 that “…all the
allegations arising from the CBSA investigation were set out in the procedural
fairness letter and the applicant provided submissions in response…”. In
this case, the fairness letter to the Primary Applicant merely stated that the
CBSA home visit report “confirms that you are not
cohabiting with your sponsor.” The Applicants could not have known about
the other evidence against them, and hence the Applicants did not know the case
they had to meet and provide an informed response. It would be not only wrong
but a miscarriage of justice if the manner by which the Officer made his
decision in this case was sanctioned by this Court.
V.
Conclusion
[29]
As the Officer’s decision was unfair, it is not
necessary to address the other issues or arguments raised by the parties.
[30]
The Applicants’ application for judicial review is
therefore allowed. The decision is set aside and the matter is to be returned
to a different immigration officer for re-determination, with leave to the
Applicants to update their application.
[31]
Neither party proposed a serious question of
general importance for consideration, so no such question is certified.
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