Docket: IMM-4040-13
Citation:
2015 FC 53
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BETWEEN:
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YUN LIN
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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 JUDGMENT
O’KEEFE J.
[1]
The applicant requested permanent residence in Canada as a member of the family class under the Saskatchewan Immigrant Nominee Program
[SINP]. A visa officer in Beijing, China refused her application. The applicant
now seeks judicial review of that decision pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act].
[2]
The applicant seeks an order setting aside the
negative decision.
I.
Background
[3]
The applicant is a Chinese citizen. She has two
dependents on the permanent residence application: her husband and her son. The
applicant’s sister-in-law, a Canadian citizen residing in Saskatchewan, is the
sponsor.
[4]
The applicant has one son from her previous
marriage. Her divorce was finalized on August 5, 2004. In early 2008, she met
her present husband and they were wed at the end of 2008. The couple obtained
an official marriage certificate on April 29, 2009.
[5]
The applicant’s sponsor sold her house in Toronto and moved to Saskatchewan in 2009 in order to help the applicant’s family to
qualify for Saskatchewan’s immigration policy on the referral of family
members. Her application under the SINP was approved provincially on March 14,
2011.
[6]
In April 2012, the applicant received phone
inquires at work from an immigration officer. On July 4, 2012, a CBSA officer
visited the applicant’s company for an in-person interview. Questions included
applicant’s work, family and spousal relationship.
[7]
On July 20, 2012, the visa officer sent a letter
to the applicant pertaining to the above concerns. On August 18, 2012, the
applicant sent the visa officer a letter in response with explanations. The response
was received on September 11 and reviewed on September 21, 2012.
[8]
In the letter, the applicant explained that her
knowledge as an assistant financial manager is mainly data summarization and
she was unable to come up with the CBSA officer’s requested numbers due to the
structure and operation of the company. Also, she stated the photo in her
wallet is of her ex-husband and it was in her wallet because she forgot to take
it out after showing it to her son. As for the information relating to her
current husband, she did not remember his number because she had stored his
number in her phone and she did not know where her husband was at work because
of the nature of his work as a self-employed electrician.
[9]
On May 13, 2013, the applicant and her husband
attended a four hour interview with the immigration officer, where they were
examined separately regarding concerns of the applicant’s marriage.
II.
Decision Under Review
[10]
The visa officer refused the applicant’s
permanent residence application on May 14, 2013. He cited section 4 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [the Regulations] and
stated he was not satisfied that the applicant’s relationship with her husband
was genuine. In particular, the visa officer’s decision was based on the site
visit on July 4, 2012 and the interview on May 13, 2013 which had conflicting
answers between the applicant and her husband.
[11]
Insofar as the site visit on July 4, 2012 is
concerned, the visiting CBSA officer made the following conclusion of “confirmed fraud”:
PA did not appear familiar with her work. It is
not acceptable for a chief accountant to not know the most recent payments for
the company’s projects signed just the day before. She did not know how much
taxes the company paid in the last year. This is something that every company
accountant should know. PA’s salary slips appears to have [sic] amended
for 2008-2011. Receipts did not have PA’s stamps prior to 2011. PA also knew
nothing about her spouse, she could not even tell CBSA LO where he is working
or his cell phone number. Serious concerns with spousal relationship. PA is
carrying another man’s picture in her wallet. As we do not have ex-spouse’s
photo. Cannot confirm if picture in PA’s wallet is ex-spouse.
[12]
Insofar as the interview on May 13, 2013 is
concerned, the visa officer based his determination of a lack of genuineness in
the applicant’s marriage on the following facts: the applicant thinks her
husband’s best friend is also his apprentice because they often talk about
work; the applicant’s husband does not remember the exact number of days the
applicant went away for vacation; and the applicant and the applicant’s husband
do not consider what is a gift the same way.
[13]
The visa officer concluded the marriage was
entered primarily for acquiring status in Canada and the applicant is not
considered a spouse and cannot therefore qualify under the family member
category. Further, the visa officer stated that the applicant was given an
opportunity to address the concerns regarding the applicant’s spousal
relationship, but the applicant’s responses did not alleviate the officer’s
concerns.
III.
Issues
[14]
The applicant submits the following issues:
1.
What is the standard of review?
2.
Did the officer provide adequate reasons for the
negative decision pursuant to section 4 of the Act?
3.
Was the applicant denied procedural fairness?
[15]
The respondent replies with the following:
1.
The applicant cannot complain of inadequate
reasons.
2.
The applicant was not denied procedural
fairness.
[16]
In my view, there are three issues:
A.
What is the standard of review?
B.
Did the officer breach procedural fairness?
C.
Did the officer assess the genuineness of the
applicant’s marriage reasonably?
IV.
Applicant’s Written Submissions
[17]
The applicant submits that under Kastrati v
Canada (Citizenship and Immigration) 2008 FC 1141, [2008] FCJ No 1424 and Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [Dunsmuir], the
appropriate standard of review in this case is correctness as it involves
questions of law and questions of natural justice.
[18]
On the issue of adequacy of reasons for the
decision, the applicant submits the visa officer’s reasons, less than one page,
are not detailed enough and do not meet the criteria stipulated by this Court. The
applicant references Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, [1999] SCJ No 39 [Baker]; Thalang
v Canada (Minister of Citizenship and Immigration), 2007 FC 743, [2007] FCJ
No 1002; and Za’rour v Canada (Minister of Citizenship and Immigration),
2007 FC 1281, [2007] FCJ No 1647.
[19]
On the issue of procedural fairness, the
applicant analyzes the five factors listed in Baker. The applicant submits
that first, the nature of the decision is not one of spousal sponsorship, so
the applicant could not have reasonably expected the assessment of section 4 on
the genuineness of the marriage; second, under the statutory scheme, the
refusal by the federal branch under the provincial nominee program does not
afford an appeal to the Immigration Appeal Division; third, the decision is
very important to the applicant and her spouse because they are looking to
start a new life in Canada; fourth, under legitimate expectations, the
applicant only expected examination by the federal branch on security and medical
reviews, as opposed to challenges on the genuineness of their marriage; and
fifth, under the choices of procedure made by the agency itself, since the visa
officer was aware there are no appeal rights, his choice is unfair to the
applicant because he did not provide an opportunity to the applicant to address
his concerns.
V.
Respondent’s Written Submissions
[20]
Here, the respondent has not made any submission
pertaining to the standard of review.
[21]
In response to the applicant’s argument on the
issue of the adequacy of reasons, the respondent submits the applicant should
have requested the CAIPS notes, which contain a more detailed rationale for the
decision. Also, the respondent submits the insufficiency of reasons in and of
itself is not a singular basis to quash an administrative decision; rather, it
is only a basis when the insufficiency of reasons frustrates the reviewing
court’s inquiry into the reasonableness of a decision (see Marine Atlantic
Inc v Canadian Merchant Service Guild [2000] FCJ No 1217 at paragraph 5, 98
ACWS (3d) 1214).
[22]
On the issue of procedural fairness, the
respondent counters that the applicant has erred in relying on the factors
under Baker in determining the degree of procedural fairness to assert
that the visa officer breached procedural fairness. In particular, the
respondent submits that the applicant has made three flawed arguments: 1) the
applicant is under a statutory obligation to establish the presence of a
genuine family relationship under section 11 of the Regulations and the visa
officer’s assessment on this factor is not a breach of procedural fairness; 2) procedural
fairness guarantee does not preclude a particular decision from being made; and
3) the applicant fails to establish that the visa officer breached procedural
fairness in his decision.
VI.
Applicant’s Further Written Submissions
[23]
In response to the respondent’s memorandum, on
the issue of adequacy of reasons, the applicant submits that even if she
requested the CAIPS notes, she would not receive them in time to submit with the
application record. Also, because the respondent relies on the CAIPS notes
towards the adequacy of reasons, the respondent should have either attached the
notes or requested an affidavit from the visa officer. The applicant further
submits this case is unusual because the application was already approved at
the provincial level.
[24]
On the issue of procedural fairness, the
applicant further submits that the visa officer failed to provide a reasonable
opportunity for the applicant to respond to his concerns. She cites the
following cases: Canada (Minister of Citizenship and Immigration) v Ishmael,
2007 FC 212, [2007] FCJ No 289; Zaouch v Canada (Minister of Citizenship and
Immigration), [1996] FCJ No 982 at paragraphs 10 to 12, 64 ACWS (3d) 844; Velazquez
Sanchez v Canada (Minister of Citizenship and Immigration), 2012 FC 1009,
[2012] FCJ No 1097; Chico v Canada (Minister of Citizenship and Immigration),
2009 FC 4, [2009] FCJ No 226; and Zhang v Canada (Minister of Citizenship
and Immigration) 2008 FC 1120, [2008] FCJ No 1409.
VII.
Respondent’s Further Written Submissions
[25]
In the respondent’s further memorandum, it
argues the visa officer did not breach procedural fairness. The applicant was
required to comply with the requirements of the SINP as well as federal immigration
law; and under paragraph 4(1)(b) of the Regulations, a key requirement is to
demonstrate a genuine relationship. Therefore, procedural fairness does not
preclude an assessment of whether there was a genuine marriage.
[26]
Further, it argues the applicant already had an
adequate opportunity to respond to the concerns about the genuineness of the
marriage because the applicant was notified of this concern during the site
visit. The applicant did have an opportunity to respond in the form of a letter
and the officer did have all the documents pertaining to marriage in front of
him.
VIII.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[27]
A review on procedural fairness typically
triggers the standard of correctness (see Mission Institution v Khela, 2014
SCC 24 at paragraph 79, [2014] 1 S.C.R. 502; Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12 at paragraph 43, [2009] 1 S.C.R. 339 [Khosa]).
Here, the applicant submits the standard of correctness should be adopted for
this judicial review. I agree.
[28]
Insofar as the assessment of the genuineness of
the marriage is concerned, it is a factual determination which is reviewable on
a standard of reasonableness (see Dunsmuir at paragraph 47; see also Kaur
v Canada (Minister of Citizenship and Immigration), 2010 FC 417 at
paragraph 14, [2010] FCJ No 482; and Koffi v Canada (Minister of Citizenship
and Immigration), 2014 FC 7 at paragraph 16, [2014] FCJ No 3 [Koffi]).
This means that I should not intervene if the decision is transparent,
justifiable, intelligible and within the range of acceptable outcomes (see Dunsmuir
at paragraph 47; Khosa at paragraph 59). As the Supreme Court held 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.
Issue 2 - Did the officer breach procedural
fairness?
[29]
On the issue of adequacy of reasons, I agree
with the respondent that the visa officer provided sufficient reasons and did
not breach procedural fairness. First, under Liang v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 1301, 91 ACWS (3d) 141,
Mr. Justice John Evans stated at paragraph 31:
… the duty of fairness normally only requires
reasons to be given on the request of the person to whom the duty is owed and,
in the absence of such a request, there will be no breach of the duty of
fairness.
[30]
Here, the applicant submits that even if she
requested the CAIPS notes, she would not receive them in time to submit with
the application record. There is an obligation on the applicant to request
reasons from the visa officer (see Marine Atlantic Inc v Canadian Merchant
Service Guild, [2000] FCJ No 1217 at paragraph 5, 98 ACWS (3d) 1214). The
time of receipt for the reasons of a decision does not affect the sufficiency
of the reasons. Here, the reasons of the decision are available upon request. In
this case, the CAIPS notes contain detailed reasons why the visa officer
concluded the applicant does not qualify as a spouse under the statutory
definition.
[31]
The visa officer’s decision is based on the
issue of credibility. Here, I agree with the respondent that the visa officer
did not breach procedural fairness. A visa officer is required to put the
questions of credibility forward to the applicant in order to comply with
procedural fairness. Here, the applicant was provided with an opportunity to
address the visa officer’s concerns after the site visit in July 2012 and to
address the conflicting information provided by the applicant and her spouse
during the interview in May 2013. The visa officer clearly stated he refused
the application based on the discrepancies and that he found the applicant’s
explanation unsatisfactory to convince him otherwise. Therefore, the visa
officer did not breach procedural fairness.
C.
Issue 3 - Did the officer assess the genuineness
of the applicant’s marriage reasonably?
[32]
Here, I am satisfied that the visa officer
assessed the genuineness of the applicant’s marriage reasonably. Under the
category of family relationships, section 4 of the Regulations states there is
a genuineness requirement in a marriage for someone to be considered a spouse.
[33]
There is no particular criterion or set of
criteria to determine whether a marriage is genuine pursuant to the Regulations
(Koffi). The determination is very fact specific. Here, I will give a
high deference to the visa officer’s findings.
[34]
There are a few findings of inconsistency in
this case. The visa officer based his determination on a lack of genuineness in
the applicant’s marriage on the following facts: the applicant thinks her
husband’s best friend is also his apprentice because they often talk about
work; the applicant’s husband does not remember the exact number of days the
applicant went away for vacation; and the applicant and the applicant’s husband
do not consider what is a gift in the same way.
[35]
In my view, I cannot reweigh the evidence. Here,
the officer’s decision is transparent, justifiable, intelligible and within the
range of acceptable outcomes. Therefore, the officer did not commit a
reviewable error and his decision is reasonable.
[36]
For the above reasons, the application for
judicial review is denied.
[37]
The applicant has no proposed serious question
of general importance to submit to me for my consideration for certification.
The respondent shall have one week from the date of these reasons to submit a
proposed serious question, if any, for my consideration for certification. The
applicant shall have one week from the receipt of any proposed question to make
submissions.
"John A. O'Keefe"
Halifax, Nova Scotia
January 15, 2015
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