Docket: IMM-1514-16
Citation:
2016 FC 1262
Ottawa, Ontario, November 14, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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JOSE MANUEL
LARA DEHEZA
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CLARIFEL CAMIT
GAPUZAN
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Applicants
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicants seek to set aside a decision of a
Visa Officer (the Officer) at the Canadian Embassy in Mexico, dated April 11,
2016, which found that Mr. Deheza was not a member of the family class for the
purpose of a spousal sponsorship application for permanent residence and that
his exclusion from the family class would not be exempted under subsection
25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 on
Humanitarian and Compassionate (H&C) grounds.
[2]
For the reasons that follow, the application for
judicial review is allowed.
I.
Background
[3]
Jose Manuel Lara Deheza is a Mexican citizen
seeking permanent resident status in Canada as a member of the family class by
way of spousal sponsorship. Clarifel Camit Gapuzan is Mr. Deheza’s wife and
sponsor.
[4]
Ms. Gapuzan met Mr. Deheza in 2009, while she
was employed as a live-in caregiver for a family. Mr. Deheza was in Canada
awaiting the outcome of his 2008 refugee claim.
[5]
On September 1, 2011, Ms. Gapuzan became a
permanent resident of Canada. She did not declare Mr. Deheza as her common-law
partner at that time, although they had been co‑habiting for over one
year.
[6]
Mr. Deheza’s refugee claim was refused in 2010,
and he returned to Mexico in August 2012. In or around June 2012, Ms. Gapuzan
applied to sponsor Mr. Deheza for permanent residence in Canada as a member of
the family class. In March 2013, a Visa Officer found that Mr. Deheza was
excluded from the family class under paragraph 117(9)(d) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations) because Ms.
Gapuzan had not named him as a non-accompanying family member at the time she
became a permanent resident, despite the fact that they had been co-habiting
for over a year.
[7]
In June 2013, Ms. Gapuzan again applied to
sponsor Mr. Deheza. This time, the Applicants requested an H&C exemption
from the paragraph 117(9)(d) exclusion. They noted that they began
co-habiting on August 27, 2010, and, as a result, became common-law partners
one year later—four days before Ms. Gapuzan attained permanent resident status.
They also explained that Ms. Gapuzan was unaware that, by law, she was in a
common-law relationship. In January 2014, the sponsorship application was
denied again. A visa officer found that Mr. Deheza and Ms. Gapuzan had
been common-law partners for five months when Ms. Gapuzan became a
permanent resident and the relationship was not disclosed at that time. The
officer simply stated that there were insufficient H&C grounds to overcome
the exclusion, without any analysis. The Applicants sought judicial review of
the decision. On consent of the Respondent, the application was remitted to the
visa office for redetermination.
II.
The Decision under Review
[8]
In the April 11, 2016 decision, the Officer
again found that Mr. Deheza did not qualify as a member of the family class and
that H&C considerations were insufficient to overcome his exclusion.
[9]
The Officer noted the Applicants’ argument that
Mr. Deheza had become Ms. Gapuzan’s common-law partner only four days before
she attained permanent resident status. The Officer acknowledged a letter from
Ms. Gapuzan’s employer, stating that Ms. Gapuzan was a live-in caregiver and
resided with her employer until August 27, 2010. However, the Officer relied on
two credit card statements that showed Ms. Gapuzan and Mr. Deheza shared an
address in March 2010, and that Ms. Gapuzan had changed the address on her
driver’s licence to Mr. Deheza’s address in May 2010.
[10]
The Officer concluded that the Applicants had
been cohabiting since March 2010 and became common-law partners one year later,
in March 2011, five months before Ms. Gapuzan became a permanent resident.
[11]
The Officer noted that Ms. Gapuzan had not been
intentionally deceitful, but had been negligent in failing to monitor the
status of her relationship prior to being declared a permanent resident. The
Officer stated that, for these reasons, he gave little weight to the
submissions that an H&C exemption was warranted.
[12]
With respect to establishment in Canada, the
Officer noted that the Applicants purchased their home at a time when Mr.
Deheza’s status in Canada was uncertain and while they were aware of the risk
involved; as a result, the Officer gave this factor low weight.
[13]
The Officer rejected Ms. Gapuzan’s argument that
she would face obstacles, including inability to find employment and language
barriers, if she joined her spouse in Mexico, noting that this was no different
than the challenges faced by others in similar situations.
[14]
The Officer noted that the positive factors were
the Applicants’ genuine and long standing relationship (including their
marriage in September 2013), their social ties to their community and church in
Canada, and the fact that Mr. Deheza had a standing job offer in Canada
(although that offer was outdated). The Officer found that these positive
factors were not sufficient to overcome the exclusion.
[15]
The Officer concluded that none of the H&C
considerations assessed individually or globally, warranted an H&C
exemption.
III.
The Issues
[16]
The Applicants raise two arguments; first, the
Officer breached the duty of procedural fairness by making findings of
credibility and not providing an opportunity for the Applicants to respond;
and, second, the Officer’s assessment of the H&C considerations,
particularly with respect to the Applicants’ establishment in Canada, was not
reasonable.
IV.
The Standard of Review
[17]
A breach of procedural fairness is reviewed on
the standard of correctness.
[18]
Issues of mixed fact and law are reviewed on the
reasonableness standard. See Canada (Citizenship and Immigration) v Kimbatsa,
2010 FC 346 at paras 26-27; Gonzalez Ortega v Canada (Citizenship and
Immigration), 2010 FC 95.
[19]
The discretionary decision to grant or refuse an
H&C exemption is also reviewed on the reasonableness standard (Terigho v
Canada (Minister of Citizenship and Immigration), 2006 FC 835 at para 6,
[2006] FCJ No 1061 (QL); see also Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817 at paras 57-62).
[20]
To determine whether a decision is reasonable,
the Court focuses on “the existence of justification,
transparency and intelligibility within the decision-making process” and
considers “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 SCR 190). Deference is owed to the decision-maker, and the
Court will not re-weigh the evidence.
There is no breach of procedural
fairness
[21]
The Applicants argue that by relying on the
March 2010 credit card statements and May 2010 driver’s license, rather than on
the letter and affidavit of Ms. Gapuzan’s employer, the Officer must have
doubted the credibility of both Ms. Gapuzan and her employer. The Applicants
submit that they should have been afforded an interview or been provided with a
fairness letter to respond to the credibility findings.
[22]
I do not agree that the Officer made credibility
findings. The issue is whether the Officer ignored relevant evidence. The
Officer did not acknowledge or properly construe the information in Ms.
Gapuzan’s affidavit or in the affidavit of her employer. The Officer referred
to the “letter” from the employer, but there was
also a sworn affidavit from the employer attesting to the fact that Ms. Gapuzan
lived in her home as a “live-in” caregiver until
August 27, 2010.
The Decision is not Reasonable
[23]
The Officer noted that Ms. Gapuzan was negligent
in not monitoring the status of her relationship. The Officer assessed the
H&C considerations on the basis of his finding that the Applicants had been
in the relationship for five months, since March 2011. He stated that for all
these reasons (“pour toutes ces raisons”), he attributed little weight to the H&C factors. The Officer’s
approach fails to appreciate that the purpose of an H&C exemption is to
overcome a provision of the Act that the Applicants cannot or fail to meet. The
Officer also failed to assess all the evidence on the record with respect to
the Applicant’s relationship.
[24]
The Applicants acknowledge that, regardless of
whether they were officially common‑law partners in March 2011 or August
2011, Ms. Gapuzan failed to declare Mr. Deheza as her common-law partner when
she became a permanent resident in September 2011. However, the date the
Applicants met the definition of a common-law partnership is a relevant factual
determination in the circumstances of this case.
[25]
The Officer made a finding of fact that the
Applicants were in a common-law relationship as of March 2011—based on the
credit card bills and Ms. Gapuzan’s change of address on her driver’s
licence—without explaining why he rejected the contradictory evidence from
Ms. Gapuzan’s employer (in the form of an affidavit and the Record of
Employment) that supported Ms. Gapuzan’s evidence. Nor did the Officer explain
how the credit card statements he relied on established that the Applicants’
relationship met the definition of a common-law partnership, as set out in the
Regulations.
[26]
The Regulations provide in subsection 1(1) that:
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common-law
partner means, in relation to a person, an
individual who is cohabiting with the person in a conjugal relationship,
having so cohabited for a period of at least one year. (conjoint de fait)
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conjoint de
fait Personne qui
vit avec la personne en cause dans une relation conjugale depuis au moins un
an. (common-law partner)
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[27]
In Cai v Canada (Minister of Citizenship and
Immigration), 2007 FC 816, Justice Kelen considered a similar issue where
the date on which the sponsor and applicant became common‑law partners
was determinative. Justice Kelen referred to the Regulation and noted, at para
12:
[…] The Regulations do not provide for the
definition of a “conjugal relationship”. However, as noted by Mr. Justice
Rouleau in Siev v. Canada (Minister of Citizenship and Immigration),
2005 FC 736, the Operating Procedures prepared by the respondent reflect the
common law test set out by the Supreme Court of Canada:
Para 15. The guide OP 2 - Processing Members
of the Family Class sets out the tests laid down by the Supreme Court in M.
v. H., [1999] 2 S.C.R. 3 for determining whether two persons are actually
living in a conjugal relationship:
- shared
shelter (e.g. sleeping arrangements);
- sexual and personal behaviour (e.g. fidelity, commitment,
feelings towards each other);
- services (e.g. conduct and habit with respect to the sharing
of household chores)
- social activities (e.g. their attitude and conduct as a
couple in the community and with their families);
- economic support (e.g. financial arrangements, ownership of
property);
- children
(e.g. attitude and conduct concerning children)
- the
societal perception of the two as a couple.
From the language used by the Supreme Court
throughout M. v. H., it is clear that a conjugal relationship is one
of some permanence, where individuals are interdependent -- financially,
socially, emotionally, and physically -- where they share household and related
responsibilities, and where they have made a serious commitment to one
another.
Based on these factors, the following
characteristics should be present to some degree in all conjugal relationships,
married and unmarried:
- mutual
commitment to a shared life;
- exclusive -- cannot be in more than one conjugal relationship
at a time;
- intimate
-- commitment to sexual exclusivity;
- interdependent -- physically, emotionally, financially,
socially;
- permanent
-- long-term, genuine and continuing relationship;
- present
themselves as a couple;
(Point 5.25 in the Guide)
[Emphasis in original]
[28]
The Respondent’s own publicly available material
(which is for the information of applicants and is not a legal document) notes
that a common-law relationship “[r]efers to a person
who is living in a conjugal relationship with another person (opposite or same
sex), and has done so continuously for a period of at least one year. A
conjugal relationship exists when there is a significant degree of commitment
between two people. This can be shown with evidence that the couple share the
same home, support each other financially and emotionally, have children
together, or present themselves in public as a couple” (Citizenship and
Immigration, Guide IMM 3999, “Sponsorship of spouse,
common-law partner, conjugal partner or dependent child living outside of
Canada” (22 July 2016)).
[29]
With respect to the meaning of cohabitation,
Citizenship and Immigration, Operational Manual OP 2, “Processing
Member of the Family Class” (14 November 2006) provides at 5.35:
“Cohabitation” means “living together.” Two
people who are cohabiting have combined their affairs and set up their
household together in one dwelling. To be considered common-law partners, they
must have cohabited for at least one year. This is the standard definition used
across the federal government. It means continuous cohabitation for one year, not
intermittent cohabitation adding up to one year. The continuous nature of
the cohabitation is a universal understanding based on case law.
[Emphasis in original]
[30]
The Officer’s factual finding that the
Applicants were co-habiting in March 2010 was made without acknowledgement or
consideration of the definition of “common-law partner”
in the Regulations, the Operational Manual, or the jurisprudence, and without
any analysis of how the evidence met the relevant criteria.
[31]
With respect to the Applicants’ submissions that
the Officer failed to conduct the appropriate H&C analysis, I note that
there is sometimes a fine line between re-weighing the evidence, which the
Court will not do on judicial review, and finding that the analysis was flawed.
[32]
In the present case, the analysis was flawed
because, first, it was not conducted with a view to determine if the failure to
comply with the Act could be overcome, and, second, the evidence of the
Applicants’ establishment in Canada was misconstrued.
[33]
The Officer’s unreasonable finding that the Applicants
had been in a common-law relationship for five months, and that Ms. Gapuzan had
been negligent in monitoring her status, tainted the Officer’s H&C analysis
to the extent that the Officer pre-determined that little weight would be given
to the H&C factors and that the H&C factors could not overcome the
exclusion. The error in the Officer’s approach to the H&C analysis is
sufficient to find that the decision is not reasonable, as it is not justified
by the facts and the law.
[34]
In addition, the Officer discounted the
Applicants’ purchase of a house in Canada because the Applicants were aware of
Mr. Deheza’s precarious immigration status and his pending removal. This
suggests that the Applicants purchased the house only to bolster their
subsequent application for permanent residence. Coupled with the other evidence
of their establishment, including their involvement in their church, their
social network, Ms. Gapuzan’s employment, and the offer of employment for Mr.
Deheza (albeit dating from 2013), the purchase of a home should not have been
characterised in this way. Such an approach discourages those seeking status in
Canada from establishing themselves. Had the Applicants not sought to establish
a long term residence, the Officer could have also made a negative finding.
[35]
As noted by Justice Zinn in Sebbe v Canada
(Minister of Citizenship and Immigration), 2012 FC 813), albeit in obiter:
The Officer has taken a perverse view of the
evidence of establishment forwarded by the applicants. Is every investment,
purchase, business established, residence purchased, etc. to be discounted on
the basis that it was done knowing that it might have to be given up or left
behind? Is the Officer suggesting that it is the preference of Canadians that
failed claimants do nothing to succeed and support themselves while in Canada? Is
he suggesting that any steps taken to succeed will be worthless, because they
knew that they were subject to removal? In my view, the answers to these questions
show that it is entirely irrelevant whether the persons knew he or she was
subject to removal when they took steps to establish themselves and their
families in Canada. While some may suggest that in establishing themselves
applicants are using a back-door to gain entry into Canada, that view can only
be valid if the applicants have no real hope to remain in the country. In
virtually all these cases applicants retain hope that they will ultimately be
successful in remaining here. Given the time frame most of these applicants
spend in Canada, it is unrealistic to presume that they would put their lives
on hold awaiting the final decision.
The proper question is not what knowledge
they had when they took these steps, but what were the steps they took, were
they done legally, and what will the impact be if they must leave them behind.
[36]
Similarly, in the present case, the Officer
failed to consider establishment as a positive factor and failed to consider
the impact on the Applicants if Mr. Deheza does not return to his home in
Canada and reunite with his wife, or if Ms. Gapuzan is required to leave her
home and employment in Canada.
An Award of Costs is not Warranted
[37]
The Applicants submit they should be awarded
costs because: (i) the Officer made the same error in the re-determination of
their application that was made in the first determination in 2014, (ii) two
requests to re-open the decision were ignored, and (iii) the Applicants waited
a further 18 months for the April 2016 decision.
[38]
Rule 22 of the Federal Courts Citizenship,
Immigration and Refugee Protection Rules, SOR/93-22 provides that “No costs shall be awarded to or payable by any party in
respect of an application for leave, an application for judicial review or an
appeal under these Rules unless the Court, for special reasons, so orders.”
[39]
In Adewusi v Canada (Minister of Citizenship
and Immigration), 2012 FC 75 at para 23, Justice Mactavish noted that the
threshold for establishing “special reasons” is
high and went on to provide some examples from the jurisprudence where the
threshold had been met. Such examples include where one party has acted in a
manner that may be characterized as unfair, oppressive, improper or actuated by
bad faith (ibid at para 24, citing Manivannan v Canada (Minister of
Citizenship and Immigration), 2008 FC 1392, [2008] FCJ No 1754 (QL) at para
51) and where there is conduct that unnecessarily or unreasonably prolongs the
proceedings (ibid at para 25, citing John Doe v Canada (Minister of
Citizenship and Immigration), 2006 FC 535, [2006] FCJ No 674 (QL); Johnson
v Canada (Minister of Citizenship and Immigration), 2005 FC 1262, [2005]
FCJ No 1523 (QL) at para 26; and Qin v Canada (Minister of Citizenship and
Immigration), 2002 FCT 1154, [2002] FCJ No 1576 (QL)).
[40]
In the present case, the Applicants endured a
further delay awaiting the re-determination and the Officer erred in his
assessment of the facts and the law. However, there is no evidence of bad faith
or other conduct which prolonged the rendering of the decision that would meet
the high threshold of special reasons to support an award of costs.
[41]
However, I accept the Applicants’ submission
that some time frame should be imposed on the Respondent for the second
re-determination of the H&C application and that the first stage
determination should be made before the Applicants are again required to
provide the medical and criminal records information. I acknowledge the
Respondent’s submissions that a two to three month time frame is not likely
feasible. As this will be the third time this application is considered, it must
be expedited. Therefore, I direct that the Respondent process the application
as expeditiously as possible and provide the Applicants with a determination on
the merits of the H&C application no later than four months from the date
of this judgment (March 14, 2017).
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