Docket: IMM-2432-16
Citation:
2017 FC 550
Ottawa, Ontario, June 6, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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KELROY SONNEL
JOHNSON
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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
I.
Overview
[1]
Mr. Johnson, the Applicant, was denied permanent
resident status under the spouse and common-law partner class. After
interviewing Mr. Johnson and his spouse on May 24, 2016, the Immigration
Officer [Officer] concluded that he failed to satisfy the definition of a
spouse under section 124(a) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [IRPR]. Specifically, the Officer was not
satisfied that Mr. Johnson was in a genuine relationship thereby failing to
satisfy section 4 of the IRPR.
[2]
In bringing this Application, Mr. Johnson asks
that I declare he meets the requirements for immigration to Canada or in the
alternative that I quash the decision and return the matter for redetermination
by a different officer. He submits that: (1) the process was procedurally
unfair; (2) the Officer ignored material documentary evidence; and (3) the
decision is unreasonable.
[3]
Having considered the Parties’ written and oral
submissions this Application can be resolved on the issue of procedural fairness
without the need to address the other issues. As set out below, I am satisfied
that the process was procedurally unfair, that the unfairness may have impacted
upon the decision, and the intervention of this Court is warranted. The
Application is granted.
II.
Background
[4]
Mr. Johnson is a citizen of St. Vincent and the
Grenadines. He arrived in Canada in November 2004 as a visitor, and has
remained in Canada since then. He met his spouse on May 1, 2014, and they began
to live together on May 30, 2014.
[5]
Mr. Johnson proposed to his spouse in September
2014 and they were married in Toronto, Ontario in August 2015. An application
for permanent residence under the spouse or common-law partner in Canada class
was submitted in September 2015.
[6]
On May 24, 2016 at approximately 11:50 a.m. Mr.
Johnson received a phone call from the Officer requiring him to attend an
interview at the immigration office by 2:00 p.m. that same day. The Officer
advised Mr. Johnson that the purpose of the interview was to establish his identity.
Mr. Johnson advised he could not be at the office by 2:00 p.m. and the Officer
requested that he arrive by 2:30 p.m. The Officer also advised Mr. Johnson his
spouse need not attend.
[7]
Prior to arriving at the office Mr. Johnson
spoke with his spouse and although she was not obliged to attend at the
interview she chose to accompany him. The Officer interviewed both Mr. Johnson
and his spouse separately and together. The interview resulted in inconsistent
answers to a number of questions and it was on this basis that the permanent
residence application was refused.
III.
Decision under Review
[8]
The Officer’s reasons begin by indicating that
the interview was convoked for identity purposes and that Mr. Johnson was
advised his spouse was not required to attend. The reasons indicate that Mr.
Johnson appeared, as instructed, with his spouse, although she was not
required, and “[Mr. Johnson] and [his spouse] were
interviewed separately and asked the same questions.”
[9]
The Officer noted a number of discrepancies in
the information provided. The Officer indicates serious credibility concerns as
it was unclear from the answers given when the couple met and began to cohabit,
why many different avenues of application for permanent residence were
considered, and why a fingerprint document submitted in support of the spousal
sponsorship application was completed on the same date the couple commenced
cohabitation. The Officer also noted inconsistencies relating to whether Mr.
Johnson’s spouse was working or attending school, the name of his sister and
when he retained the services of an immigration consultant. The Officer states,
relying on an overall assessment of the documentary evidence and the
inconsistencies that “I am not satisfied they are in a
genuine relationship”. The application was refused.
IV.
Standard of Review
[10]
The standard of review to be applied when
addressing questions of procedural fairness is correctness (Kozak v Canada
(Minister of Citizenship and Immigration), 2006 FCA 124 at para 44). The
Court must determine whether the duty to act fairly has been satisfied within
the specific context of the matter before the Court (Baker v Canada
(Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 21 [Baker]).
V.
Analysis
[11]
Mr. Johnson argues that the Officer acted
unfairly. He was advised on short notice that he was required to attend for an
interview for the purpose of establishing identity. Despite the notice, the
interview was not limited to issues of identity and his spouse was also
interviewed. He argues that this was contrary to the Respondent’s own
procedures that state “Officers should give applicants
adequate notice regarding the process or the interview that will result or lead
to a decision … [and] should accurately describe to applicants the
documentation they are required to submit in order to address their concern”.
(Citizenship and Immigration Canada, “Manual – OP 1:
Procedure” at section 8 Procedural Fairness (Ottawa: CIC, as it read at
the time)). Mr. Johnson submits the failure to notify him, his spouse or his
counsel of the new purpose of the interview or that the interview would lead to
a final decision was procedurally unfair.
[12]
The Respondent counters that the questions posed
by the Officer were basic and routine requiring no time for preparation or
consultation. The Respondent submits that the questions posed were not legal in
nature and therefore counsel’s presence was not required to answer any of the
questions posed. The Respondent further submits that in these circumstances the
Officer’s decision to embark on an interview that included an assessment of the
genuine nature of the marriage was in itself adequate notice and by extension
that there was no violation of the principles of natural justice. In the
alternative, relying on the Supreme Court of Canada’s decision in Canada
(Citizenship and Immigration) v Khosa, (2009 SCC 12 at para 43), the
Respondent submits that even if Mr. Johnson was not afforded required
procedural safeguards, the error was purely technical and does not merit
relief. I cannot agree.
[13]
The duty of fairness varies and depends upon an
appreciation of the context in which the issue arises (Baker, at para
21; Ha v Canada (Minister of Citizenship and Immigration), 2004 FCA 49
at para 40).
[14]
In Bushra v Canada (Minister of Citizenship
and Immigration), (2016 FC 1412 [Bushra]), Justice Henry Brown found
the applicant had been treated unfairly where a visa officer convoked an
interview where much turned on certain humanitarian and compassionate related
considerations with no mention of these concerns in notice to the interviewee.
Similarly in Chen v Canada (Minister of Citizenship and Immigration),
(2008 FC 1227 [Chen]), the applicants argued before Justice Leonard
Mandamin that the officer’s failure to explain in the notice convoking the
interview that questions would turn on the genuineness of marriage was a breach
of procedural fairness. Justice Mandamin agreed and further found there to be a
higher standard of procedural fairness when s. 4 of the IRPR is engaged
(Chen at para 33). He stated the following at paragraphs 34-35:
[35] The applicants had no notice
that the marriage issue was vital to their application for a permanent resident
visa. Had the applicants been notified in advance about this issue,
the potential for being denied a permanent resident visa, and the consequence
of being ruled inadmissible, they could have had the opportunity to obtain
additional documents and make focussed submissions to the Officer.
[36] I conclude that the Officer denied
the applicants’ procedural fairness when, having not given advance notice of
the purpose of the examination, she did not afford the applicants the
opportunity to supply further documentation and submissions.
[Emphasis added]
[15]
In this case Mr. Johnson was told that the
interview would address issues related to identity. He was told that his spouse
need not come, although she did. He was given just over 2.5 hours’ notice that
the interview, to address concerns related to identity, would take place. He
was not advised of the change in the purpose for the interview, that in
changing the purpose of the interview it would be addressing an issue
fundamental to his application for permanent residence as a spouse or that the
interview would lead to a sudden determinative decision. Considering these
facts it is difficult to envisage how the Officer’s decision to engage in
questions related to s. 4 of the IRPR on the spot might be viewed as “adequate notice” as suggested by the Respondent or be
procedurally fair in the context of section 4 of the IRPR in light of
this Court’s jurisprudence.
[16]
I am also unable to conclude that this error was
simply a technical breach not meriting relief. As noted in both Bushra and
Chen, had the applicants in those cases received a notice that
adequately reflected the nature of the interview, they may have prepared and
acted differently, and submissions may have been more focussed before the
Officer (Bushra, at para 20; Chen, at para 34).
[17]
In my view, the reasoning of Justices Brown and
Mandamin is applicable to the present application. The Respondent’s argument
that a number of the inconsistencies arose out of simple and routine questions
that should not have required time for consideration or preparation fails to
consider the fact that a number of the areas of concern related to a consideration
of events that had occurred in the past. Had Mr. Johnson and his spouse
received adequate notice explaining that they would be questioned about the
genuine nature of their marriage, they may have prepared differently and they
may have been better prepared to reconcile their individual memories of the
time frames that were of interest to the Officer and make focused submissions
about their marriage including the potential of further supporting
documentation. One of the reasons for notice is to allow an individual to
reflect upon and recall the timelines of past events. In fact, Mr. Johnson
argues that a number of the inconsistencies the Officer identified were
clarified in further questioning.
[18]
Had Mr. Johnson and his spouse been given
adequate notice of the nature of the interview their answers may indeed have
been more focussed, less confused and the outcome may have been different.
VI.
Conclusion
[19]
The failure to provide Mr. Johnson adequate
notice of the nature and purpose of the interview was procedurally unfair. I am
unable to conclude that the breach of fairness was merely technical. The
Application is granted and the matter is returned to be redetermined by a
different officer.
[20]
The Parties did not identify a question of
general importance and none arises.
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