Docket: IMM-3482-16
Citation:
2017 FC 595
Ottawa (Ontario), June 15, 2017
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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NDAHIMANA
PASCAL
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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 seeks judicial review of the
decision rendered on July 12, 2016, by an Immigration Officer [officer], which
denied his sponsored application for permanent residence as a member of the
Spouse of Common-Law Partner in Canada Class.
[2]
The applicant is a 28 year old citizen of Rwanda
who arrived in Canada in January 2012. Although his refugee claim and his Humanitarian
and Compassionate application [H&C] were both denied, the applicant filed,
on April 15, 2015, an inland sponsorship application, marrying his wife who is
a Canadian citizen. On July 7, 2016, the applicant and his wife were
interviewed by the officer regarding the information provided in his
application. At the conclusion of this interview, the applicant was asked to
provide further documentation to complete his application, notably his lease,
letters of employment, and his tax declaration for 2014/2015. However, in this
particular case no specific deadline was indicated by the officer to provide said
documents. The applicant provided all the required documentation by the
following week, which is on Friday, July 15, 2016.
[3]
By letter dated on July 12, 2016, the officer
denied the applicant’s application, stating that she was not satisfied that he
met the requirements of the spouse or common-law partner in Canada class as
provided by Immigration and Refugee Protection Regulations, SOR/2002-227
[Regulations]. According to paragraph 4(1) of the Regulations, a foreign
national is precluded from being eligible to be considered as a spouse and sponsored
for permanent residence if his or her marriage was entered into primarily for
the purpose obtaining a status or benefit under the Immigration and Refugee
Protection Act, SC 2001, c 27. Therefore, this disposition excludes bad
faith relationships from the family class. Although her refusal letter is quite
short, the officer wrote in her notes that there were too many discrepancies
between the applicant’s answers and his wife’s testimony at the interview.
Consequently, the officer concluded that the development of their relationship
did not seem credible and found that the applicant’s marriage was not
authentic.
[4]
As previously stated, the applicant, who was not
represented by counsel, submitted the required documentation on July 15, 2016,
unaware that the officer had already rejected his application, but it was not
until July 19, 2016, that the applicant received the officer’s final decision. However,
the applicant filed an application for judicial review on August 17, 2016,
beyond the prescribed delay to do so, due to his difficulties to find a
bilingual lawyer to represent him in Edmonton, Alberta, where he recently moved
for his job. It was only there that he learned the full extent of the reasons
of his refusal with the receipt of the certified record.
[5]
The extension of time for filing the application
of judicial review, which is not opposed by the defendant, is granted by the
Court. There is no prejudice to the other party, as the respondent as already
filed its written submissions on the merit of the decision. Second, the delay
can be easily explained by the fact that no information was provided to the
applicant about the limitation period to exercise his right to seek judicial
review, nor was he informed that he was entitled to this recourse. There was
also a continuing intention to pursue the matter. Finally, the application for
leave was allowed, which supposes that the judge who granted leave was
satisfied that the applicant has raised an arguable case.
[6]
It is not disputed by the parties that the appropriate
standard of review for issues of procedural fairness and natural justice is
correctness (Canada (Mission Institution v Khela, 2014 SCC 24,
[2014] 1 S.C.R. 502 at para 79; Essaidi v Canada (Citizenship and Immigration),
2011 FC 411 at para 11; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] SCJ No 12 at para 43; Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 50).
[7]
For the following reasons, the present
application for judicial review shall be allowed.
[8]
I will immediately dispose of the subsidiary
argument made by the applicant which I find unfounded. The applicant submits
that the officer did not properly conduct the interview, as she failed to
confront him about the inconsistencies noted in his interview. Indeed, the applicant
underlines that he and his wife were both interviewed separately. He submits this
failure amounts to a violation of natural justice which, alone, warrants the
intervention of this Court. I disagree with the applicant that the officer
erred by failing to confront him about the different discrepancies in his
testimony and his wife’s answers or by not explaining why his supporting
evidence did not satisfy the officer’s concerns (Anabtawi v Canada
(Citizenship and Immigration), 2012 FC 856 at para 48). In general, the
case law recognizes that visa officers are under no obligation to alert
applicants of concerns where they pertain to matters that arose directly from
the applicant’s own evidence and from statutory requirements (see Liu v
Canada (Minister of Citizenship and Immigration), 2006 FC 1025, [2006] FCJ
No 1289 at para 16; Singh v Canada (Minister of Citizenship and
Immigration), 2008 FC 673 at para 13).
[9]
The determinative issue in this case is the
haste taken to render the impugned decision. The applicant submits that the
officer breached her duty to act fairly by rendering her decision without
waiting for the additional documentation, which was provided a week after the
interview. Considering that no formal deadline was provided to the applicant,
it was unreasonable for the officer to deny his application only three business
days after his interview. Again, the interview was held on Friday, July 7,
2016, while the officer denied the application on the next Wednesday, July 12,
2016. In response, the defendant submits that the applicant has not
demonstrated any breach of procedural fairness since an officer is under no
obligation to request further information from an applicant and the onus is on
the latter to present sufficient positive information to warrant a positive
decision (Pacheco Silva v Canada (Citizenship and Immigration), 2007 FC
733 at para 20; Sharma v Canada (Citizenship and Immigration), 2009 FC
786 at para 8).
[10]
In the case at bar, I am satisfied that the
officer breached her duty to act fairly when she rendered her decision without
waiting for the additional documentation that she required of him at his
interview. The requested documentation was provided a week after the interview.
This was certainly a reasonable delay. I have considered the affidavit of the
officer which confirms that no specific deadline was provided for the applicant
to submit his additional documentation. Although the officer says that she
generally requires applicants to provide additional documents “the same day or the next day at the latest”, there is
no proof on record that this what the officer actually did in the present case.
[11]
The respondent points out that the applicant was
aware prior to the interview that the spouse had to bring a number of documents
mentioned in the June 21, 2016 notice. In principle, an applicant bears the burden of supplying all of the documentation
necessary to support their claim. However, in the case at bar, the officer
specifically requested said documentation at the interview. Overall, I find
that the officer’s conduct in the present case conveyed a legitimate
expectation to the applicant that he would have reasonable time to provide his
documentation which would have been considered by the officer in her final
decision. By failing to do so, the officer has breached the applicant’s right
to procedural fairness. It was arbitrary for the officer to render her decision
in only three business days after the interview without sending a notice to the
applicant (Pramauntanyath v Canada (Minister of Citizenship and Immigration),
2004 FC 174 at para 17).
[12]
The Supreme Court of Canada confirmed that the doctrine
of legitimate expectation is “an extension of the rules
of natural justice and procedural fairness” (Canadian Union of Public
Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 SCR
539 at para 131. The doctrine originates in the common law, and arises
when either an express promise, or a reasonably implicit one, made on behalf of
public authority leads a person to believe that a practice will be respected (Araujo
v Canada (Citizenship and Immigration), 2009 FC 515). This doctrine was
given a strong foundation in Canadian administrative law in Baker v
Canada (Minister of Citizenship and Immigration), 1999 SCC 699,
[1999] 2 S.C.R. 817, in which it was held to be a factor to be applied in
determining what is required by the common law duty of fairness (Agraira v
Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2
SCR 559 at para 94 [Agraira]). As stated by the Supreme Court in Agraira,
the specific conditions which must be satisfied in order for the doctrine of
legitimate expectations to apply were summarized succinctly in a leading
authority entitled Judicial Review of Administrative Action in Canada: “The distinguishing characteristic of a legitimate
expectation is that it arises from some conduct of the decision-maker, or some
other relevant actor” (Agraira at para 95).
[13]
In light of the foregoing, the extension of time
for filing the application for judicial review and the application for judicial
review are allowed. The impugned decision is set aside and the applicant’s
application for permanent residence is sent back for reconsideration by a
different immigration officer. There is no question of law of general importance
raised in this case.
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