Docket: IMM-5034-16
Citation:
2017 FC 653
Ottawa, Ontario, July 5, 2017
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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CARSANDRA
ALEXANDER
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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, Carsandra Alexander, came to
Canada from Grenada in 1999. In December 2011, she filed for permanent
residency on humanitarian and compassionate grounds and was landed as a
permanent resident in January 2013.
[2]
In October 2013, the Applicant married Mr. Yvan
Denroy Burke, her common-law partner with whom she has allegedly been living
since 1997.
[3]
The Applicant applied to sponsor her husband in August
2014 by submitting an inside Canada sponsorship application based on the Spouse
or Common-Law Partner in Canada Class.
[4]
By letter dated November 16, 2016, an officer at
the Case Processing Centre of Immigration, Refugees and Citizenship Canada
[IRCC] in Mississauga found the Applicant ineligible to sponsor her husband
because she had failed to declare her common-law partner in her 2011
application for permanent residence and as such, she did not meet the
requirements of paragraph 125(1)(d) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [IRPR]. This provision operates to
prevent a foreign national from being considered a member of the spouse or
common-law partner in Canada class if the foreign national was a
non-accompanying family member and was not examined at the time the sponsor
made an application for permanent residence and became a permanent resident.
[5]
The Applicant seeks judicial review of this
decision. She submits that she declared her common-law partner to Citizenship
and Immigration Canada [CIC] when she applied for permanent residency in 2011,
as the information was included in the Supplemental Information Form and in the
affidavit enclosed with her application. As for her common-law partner not
being examined in 2011, she contends that the CIC officer who treated her
application had to have determined that he was not required to be examined and
thus fell within the exception to the exclusion, as described in subsection
125(2) of the IRPR. Otherwise, the CIC officer breached his duty by failing to inform
her of the implications of her common-law partner not being examined, pursuant
to subsection 125(3) of the IRPR.
[6]
The Respondent argues that when the Applicant
submitted her permanent residence application in 2011, she was required to
complete a Generic Application Form for Canada. In that form she was to declare
“her current marital status”, the date of
marriage or entering of a common-law relationship, the name of her “current spouse/common-law partner” and whether the
declared family member would be accompanying her to Canada, and if not, why.
Despite the clear language of the form, the Applicant declared herself as “single” and left the other spaces blank. The
Respondent submits that it was not unreasonable for the IRCC officer to find
that the Applicant did not declare her common-law partner on her application
for permanent residence and thus was ineligible to sponsor her common-law partner
pursuant to paragraph 125(1)(d) of the IRPR, even if he was mentioned
elsewhere in her application.
[7]
At the outset of the hearing, I indicated to
counsel for the parties that I had concerns regarding the inclusion of
documentation in the Applicant’s application record that was not part of the Certified
Tribunal Record [CTR] and in particular, the Applicant’s 2011 permanent
residency application. Both parties argued that the 2011 application should have
been included in the CTR as it would normally have been reviewed by the IRCC officer
in the context of the 2014 sponsorship application or at the very least, the IRCC
officer would have had access to it. There appears to have been some confusion
regarding the contents of the CTR as the Court received an initial copy on April
18, 2017 and further documentation on June 23, 2017. The parties agreed that I
should proceed on the basis that the Applicant’s 2011 permanent residency
application formed part of the CTR, given its relevance to the IRCC officer’s
determination and since both parties referred to it extensively in both their
written and oral submissions.
[8]
Accordingly, I have considered all of the
material submitted by the parties as well as their oral and written submissions
and find that the IRCC officer’s decision is unreasonable.
[9]
The decision of an IRCC officer regarding
applications for permanent residence under the family class involves questions
of mixed fact and law reviewable under the standard of reasonableness (Thakor
v Canada (Citizenship and Immigration), 2011 FC 400 at para 26). In
reviewing a decision against the reasonableness standard, the Court must
consider the justification, transparency and intelligibility of the decision-making
process, and whether the decision falls within a range of possible, acceptable
outcomes which are defensible in light of the facts and the law (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59; Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
[10]
The Global Case Management System [GCMS] notes
which support the IRCC officer’s determination of ineligibility state on May
19, 2016: “SPR landed on 2013/01/30 and there is no
evidence that this relationship was declared/examined when SPR landed”.
This statement is clearly wrong as there is evidence that the Applicant
declared her common-law partner when she applied for permanent residency in
2011. While the information was not included in the Generic Application Form, the
Applicant did declare her common-law partner both in section 5 of her Supplementary
Information Form (IMM-5283) and in an affidavit enclosed with her application.
[11]
It is not clear from the decision or the record
how the IRCC officer came to the conclusion that there was no evidence that the
Applicant declared her common-law partner. The Court is unable to determine whether
the IRCC officer missed the information in the Supplementary Information Form
and accompanying affidavit or whether the IRCC officer ignored it and inferred from
the fact that Mr. Burke had not been examined pursuant to paragraph 125(1)(d)
of the IRPR that the Applicant had not declared him. As such, the decision
lacks both intelligibility and transparency. Moreover, as the Applicant
contends, it is also possible that the CIC officer who processed the
Applicant’s permanent residency application in 2011 determined pursuant to
subsection 125(2) of the IRPR that an examination of Mr. Burke was not required,
in which case the IRCC officer’s decision would be unfounded and clearly
unreasonable.
[12]
Given the CTR is possibly incomplete, and in the
absence of further documentation relating to the 2011 application including the
supporting GCMS notes, I am unable to determine, without engaging in
speculation, how the IRCC officer reached the conclusion in 2016 that there was
no evidence that the Applicant had declared her common-law partner when she
applied and was granted her permanent residence.
[13]
For these reasons, the application for judicial
review is allowed and the matter is remitted to a different IRCC officer for
redetermination.
[14]
No questions were proposed for certification and
I agree that none arise.
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