Docket: IMM-5987-14
Citation:
2015 FC 187
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 16, 2015
Present: The Honourable Mr. Justice Martineau
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BETWEEN:
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ISABELLE PATRY-SHALA
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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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JUDGMENT AND REASONS
[1]
The applicant is challenging the legality of a
decision of the Immigration Appeal Division of the Immigration and Refugee
Board [Panel], dated July 16, 2014, dismissing the appeal she filed with
regard to the refusal of an application for a permanent resident visa in the
family class made by her husband, Valon Shala [visa applicant].
[2]
The applicant, a Canadian citizen, met the visa
applicant, an Albanian from Kosovo, in August 2009, during a trip to
Italy. The applicant and the visa applicant met by chance in a bar and spent
the rest of the applicant’s vacation together. After the applicant returned to Canada,
they kept in touch by Skype, MSN and telephone. The visa applicant applied for
a visitor’s visa, which was refused on October 23, 2009. In
December 2009, the applicant returned to Italy and proposed marriage to
the visa applicant. The visa applicant agreed, and both of them went to Kosovo,
where they married on December 22, 2009. The applicant then returned to Canada.
[3]
The visa applicant filed his first application
for permanent residence as a member of the family class, which was refused on
August 11, 2010. The applicant appealed the refusal but withdrew her
appeal on November 12, 2010. The visa applicant then filed a second
application for permanent residence, again in the family class. Following an
interview with the visa applicant, the visa officer refused the application.
This time, the applicant’s second appeal was heard, but the Panel dismissed it
on July 16, 2014, hence this application for judicial review, which
challenges the reasonableness of the Panel’s decision while questioning the
impartiality of the member, Dana Kean, who heard the appeal [the member].
Reasonableness of the Panel’s decision
[4]
The reasons given by the Panel and clear and
intelligible. Essentially, the Panel concluded that the marriage was not
genuine and that the visa applicant entered into the marriage primarily for the
purpose of acquiring a status in Canada and was therefore not considered a
spouse under subsection 4(1) of the Immigration and Refugee Protection
Regulations, SOR/2002-227. The Panel noted several inconsistencies or
contradictions concerning the visa applicant’s answers following the applicant’s
marriage proposal; whether a wedding reception had been held; the fact that the
visa applicant did not know that the applicant had not told her family about
her wedding plans; and the fact that the applicant had questioned the visa
applicant’s intentions in MSN conversations. The Panel also pointed out that
the applicant and the visa applicant do not share a common language because the
visa applicant has very little knowledge of English. Moreover, the Panel was
not satisfied with the answers to several legitimate questions, namely, why the
visa applicant’s relatives did not attend the wedding; why Albanian traditions
were not respected; why the wedding photographs were only taken in 2010; and,
finally, why the visa applicant was now able to answer a number of questions
that he had been unable to answer at the interview with the visa officer.
[5]
The applicant now submits that the Panel’s
findings—which should be afforded deference on judicial review—are nevertheless
reviewable in this case because they are based on conjecture and do not take
into consideration the explanations given to the Panel. The respondent
challenges this, of course, arguing on the contrary that the Panel’s findings
in this case are based on evidence in the record and are reasonable.
[6]
First of all, the applicant notes in particular
that the Panel’s findings regarding the inconsistency between the applicant’s
questioning of the visa applicant’s intentions in MSN conversations and the
fact that the visa applicant denied having had these conversations were
exaggerated and amounted to a memory test. Furthermore, the visa applicant’s
explanation that the changes in his relationship status on Facebook had been
made by hackers was reasonable but was ignored by the Panel. Since civil
marriage is a mere formality in Kosovo and the spouses did not wear traditional
dress because they are not religious, the Panel could not draw a negative
inference from the fact that no wedding photos were taken.
[7]
Second, the applicant alleges that the
conclusion that the marriage is not genuine is unreasonable because the Panel
ignored numerous positive factors: the economic support provided by the
applicant; their continued and constant communication; the marital relationship
during the applicant’s trips; the spouses’ knowledge of the details of each
other’s personal lives; the public nature of the relationship; their plans for
the future; and the fact that they communicate with each other in English at a
level that suits them. The applicant alleges that this evidence directly
contradicts the Panel’s findings and that the Panel must therefore explain why
this evidence was not accepted (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425, 1998 CanLII 8667 (FC)
at para 17 [Cepeda-Gutierrez]).
[8]
The respondent replies that the Panel’s finding
that the visa applicant entered into the marriage primarily for the purposes of
obtaining permanent residence is based on ample evidence: the short duration of
the relationship before marriage; the visa applicant’s difficulties speaking
English; the contradictions, insufficient answers and lack of wedding
photographs; the fact that the visa applicant was living in Italy illegally
when he met the applicant; and his interest in obtaining a status in Canada. According
to the respondent, the specific items of evidence raised by the applicant do
not truly contradict the Panel’s finding of fact, such that the decision in Cepeda-Gutierrez,
above, does not apply. The Panel agreed that the applicant had acted in good
faith, that she had visited the visa applicant many times and that they stayed
in constant contact. The fundamental problem is that the applicant’s evidence
does not show that the visa applicant acted in good faith, such that this
application for judicial review must be dismissed: Gill v Canada (Minister
of Citizenship and Immigration), 2012 FC 1522.
[9]
I agree with the respondent that the applicant’s
arguments should not be accepted. The Panel did not cast doubt on the
applicant’s good faith and did not reject the applicant’s evidence, including
the submissions to the effect that the applicant and the visa applicant were in
contact, that they lived as husband and wife when the applicant came to visit,
that the applicant supported the visa applicant financially and that they had
talked about future plans. However, the Panel concluded that the visa applicant
was not credible and that his intention was to enter into the marriage for the
purposes of obtaining a status in Canada. Although some of the inconsistencies
or contradictions noted by the Panel may seem minor at first glance, we must
consider their cumulative effect, which on the whole undermines the visa
applicant’s credibility. I am therefore of the opinion that the Panel’s
findings of fact regarding the genuineness of the marriage and the visa
applicant’s intentions are reasonable, even if another decision maker might
have arrived at a different conclusion, which I do not have to rule on for
myself today (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47; Kim
v Canada (Citizenship and Immigration), 2008 FC 1291 at para 18).
No reasonable apprehension of bias
[10]
The applicant is also of the view that the
member’s general behaviour at the hearing gives rise to a reasonable
apprehension of bias. In her affidavit, the applicant states that at the
hearing, the member [translation] “adopted an intimidating and hostile attitude towards [her]
and [the visa applicant]” and that the member was [translation] “aggressive
. . . ; she rolled her eyes, waved her arms, intimidated me and gave
me the impression that she was not neutral and impartial”. The applicant
alleges that the Panel was acting not as a fact finder, but as an actual judge
and accuser by assisting counsel for the Minister in her work, which is
contrary to the rules of natural justice. The applicant states that, since the
signs of bias surfaced gradually, the fact that she did not raise a reasonable
apprehension of bias at the hearing does not imply a waiver of the rules of
natural justice. This is a case where the Court must be flexible in this regard
(Chaudhry v Canada (Minister of Citizenship and Immigration), 2006 FC
1015), particularly because under section 23 of the Code of Conduct for
Members of the Immigration and Refugee Board of Canada (December 15,
2012, online: IRB < http://www.irb-cisr.gc.ca >), “[m]embers are expected to approach each case with an open
mind and, at all times, must be, and must be seen to be, impartial and
objective”.
[11]
In response, the respondent notes that there is
a strong presumption that administrative decision makers discharge their duties
appropriately and with integrity. The applicant bears the heavy evidentiary
burden of rebutting this presumption, and the Panel is allowed to show signs of
frustration. According to the respondent, the fact that the Panel conducted a
zealous examination does not allow this Court to find a reasonable apprehension
of bias. Moreover, most of the questions that the Panel asked, including those
raised in the applicant’s memorandum, were open-ended questions, and all the
questions were relevant. The Panel did not make any unwarranted or
inappropriate comments. Likewise, counsel for the Minister states that, at the
hearing, [translation] “[she did] not notice anything unusual in the [Panel’s] behaviour”
and that she did [translation] “not notice that [the Panel] sighed, rolled her eyes or waved
her arms” (Affidavit of Ariane Cohen, Respondent’s Memorandum and
Affidavits, at paras 5-7). Furthermore, at the hearing, the applicant’s
lawyer agreed to allow the Panel to ask all these questions. According to the
respondent, the applicant waived her right to argue a reasonable apprehension
of bias by not raising it at the first available opportunity: Chamo v Canada
(Minister of Citizenship and Immigration), 2005 FC 1219 at para 9; Acuna
v Canada (Minister of Citizenship and Immigration), 2006 FC 1222 at
paras 34-38; Hulej v Canada (Citizenship and Immigration), 2014 FC
283 at para 11. Moreover, counsel for the applicant misinterpreted Chaudhry,
above, because the Court itself noted at para 16 that “Mr. Chaudhry’s counsel appropriately objected to the
Member's conduct”.
[12]
I agree with the respondent’s general reasoning.
I would add that even if the Court found that the applicant did not waive her
right to argue a reasonable apprehension of bias, the applicant did not show
that the member’s behaviour gave rise to a reasonable apprehension of bias. For
example, to show bias on the part of the member, the applicant cites in her
written memorandum several questions that were asked, but it is apparent that
these questions, when placed in their proper context, do not show bias. Here
are some of the excerpts from the hearing transcript that the applicant submits
(the Panel’s questions are marked “Q.”, and the applicant’s answers are marked
“A.”):
[translation]
Q. Mr. Shala was still in Italy?
A. Yes.
Q. And you were in Canada.
A. Exactly, yes.
Q. What was he doing in Italy?
A. He was—he was working.
Q. What kind of work?
A. Construction.
Q. Do you have any more details?
A. Well, he did house repairs.
Q. For what company? On what terms? Did he
have papers?
A. Well, he didn’t have any papers. He
didn’t have a work visa but he worked with his friends to help out [the company].
I don’t know. I don’t remember.
(Certified Tribunal Record [CTR], Hearing
Transcript, at pages 9-10).
Q. Your counsel
could maybe show you. The first sentence on page 26, it’s your husband’s
form, okay? The first thing he says is, [translation]
“The reception didn’t happen”.
. . .
A. Okay. [translation]
“The reception didn’t happen”. Well, actually, it—it did happen. Well .
. . We did—basically, we, the ceremony, it’s—pardon me?
Q. I’m not asking for your version because I
fully understood your version. My question concerns why Mr. Shala’s
version seems to be different.
A. Because maybe for him a supper in
(inaudible) normal is not a reception. But me, I think that it’s—you know,
there’s a supper; it’s celebrated with the whole family. It’s like a reception.
For me, a supper, it’s—it’s a reception. Maybe for him in his—you know? It's
different from me. But for me, that’s a reception.
Q. Okay. Who filled out this form, madam?
A. Well, it’s both of us. It’s me.
Q. Whose handwriting is this?
A. It’s me. It’s me. It’s my handwriting.
Q. Okay. Why did you write this when your
understanding of the facts is different? Because it was you who filled it out.
That’s what I don’t understand.
A. It’s not—I—me, for me, having supper,
then—for me, it’s like a ceremony. Maybe I—
Q. But madam, you were the one who wrote
that. That’s why it is not logical.
A. Yes, I know. I know it.
(CTR, Hearing Transcript at pages 37-39)
Q. So, what lead
to this exchange, madam?
A. What do you want me to say?
Q. The truth would be helpful, madam.
(CTR, Hearing
Transcript at page 81)
[13]
The other examples to which the learned counsel
for the applicant referred in court during his oral arguments are inconclusive.
I do not think that the transcript shows that the member was trying to trap the
applicant and the visa applicant, or that her examination was aggressive or
intimidating. As the respondent noted, the member asked relevant and, for the
most part, open-ended questions without any objection from counsel for the
applicant. The fact that the member tried to elicit more specific details, noted
contradictions or a lack of logic, or corrected factual errors does not prove
that the member was looking for ways to lure the applicant and the visa
applicant into contradicting themselves or each other. There is no video
recording of the hearing. That said, the affidavit of Ariane Cohen contradicts
the applicant’s affidavit with regard to the member’s behaviour. I am of the
opinion that the facts in this case can be sharply distinguished from the
reprehensible conduct of the member in question in Guermache v Canada (Minister
of Citizenship and Immigration), 2004 FC 870.
[14]
What “an informed
person, viewing the matter realistically and practically—and having thought the
matter through—” would conclude is that the member’s behaviour did not give
rise to a reasonable apprehension of bias, having regard to the circumstances
of the case (Committee for Justice and Liberty v National Energy
Board, [1978] 1 S.C.R. 369, Justice de Grandpré, dissenting, at p 394; R
v S (RD), [1997] 3 S.C.R. 484 at para 111).
[15]
For these reasons, the application for judicial
review should be dismissed. The parties did not raise any serious question for
certification, and the Court will not certify any such question.
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