Docket: IMM-2079-17
Citation:
2018 FC 27
Ottawa, Ontario, January 11, 2018
PRESENT: The
Honourable Madam Justice McDonald
|
BETWEEN:
|
|
AMANDEEP
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Applicant seeks
judicial review of a Visa Officer’s [the Officer] decision of April 24, 2017 rejecting
the Applicant’s spousal sponsorship application under the Spouse or Common Law
Partner in Canada class. For the reasons that follow,
this judicial review is dismissed.
I.
Background
[2]
The Applicant and his spouse began dating in March
2012. They began cohabitating on April 1, 2014.
[3]
On his November 2, 2015 application for permanent
resident status through the Canadian Experience Class, the Applicant listed himself
as “single” with no dependents. According to the
Applicant and his spouse, the common law relationship concept does not exist in
their respective cultures. Furthermore, both families’ disapproved of their
relationship.
[4]
On December 6, 2015, they married.
[5]
On January 1, 2016, the Applicant’s spouse’s
application for permanent residence as a Member of the Spouse or Common-Law
Partner in Canada Class was processed and “locked in.”
[6]
On February 27, 2017, the Applicant’s spouse
received a letter from Immigration, Refugees, and Citizenship Canada [IRCC]
requesting further information on the relationship timeline between herself and
her husband.
[7]
On April 24, 2017, the application was rejected
because the Applicant was not an eligible sponsor for his spouse.
II.
Decision Under Review
[8]
The April 24, 2017 decision consists of a letter
and the Global Case Management System [GCMS] notes of the Officer.
[9]
In the letter, the Officer states that the Applicant
was an ineligible sponsor because he failed to declare his spouse to IRCC on
his own application for permanent residence, at his landing interview, or at
the time he became a permanent resident. As a result, IRCC could not conduct an
examination of the spouse. The Officer relied upon s. 125(1)(d) of the Immigration
and Refugee Protection Regulations [IRPR].
[10]
In the GCMS notes, the Officer states that he
was satisfied that the Applicant and his wife met the definition of a conjugal
relationship prior to landing because “beyond
probabilities” they shared “sleeping
arrangements, personal behaviour, shared services, shared social activities,
economic perception, and social perception…”
[11]
As such, the Officer rejected the Applicant’s
spouse’s application.
III.
Issue
[12]
The parties agree that the only issue is whether
the Officer’s decision that the Applicant was ineligible to be a sponsor is
reasonable.
IV.
Standard of Review
[13]
On the issue of whether the Applicant’s facts
satisfy the legal test for common law spouses, as this is a question of mixed
fact and law, it is reviewable on the reasonableness standard (Canada
(Director of Investigation and Research v Southam Inc), [1997] 1 S.C.R. 748 at
para 35; Dunsmuir v New Brunswick, 2008 SCC 9 at para 53[Dunsmuir]).
[14]
Further, the standard of review of a visa
officer’s decision relating to the issue of cohabitation and the Spouse or
Common-Law Partner class is reasonableness (Nzau v Canada (Citizenship and
Immigration), 2013 FC 74 at para 8; Rakheja v Canada (Citizenship and
Immigration), 2009 FC 633 at para 16).
V.
Analysis
[15]
The Applicant argues that the Officer failed to
consider the well-established legal test for determining whether the Applicant
was in a common law relationship. The Applicant argues that the Officer only focused
on the fact of cohabitation without considering other factors such as mutual
commitment to a shared life, exclusivity, permanence, interdependence, and
presentation as a couple.
[16]
For the purposes of the Spouse or Common-Law
Partner in Canada class, whether the spouse and sponsor exist in a common law
relationship is governed by the IRPR and IRCC policies and guidelines.
[17]
In the IRPR, a “common-law
partner” is defined as:
…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.
[18]
In defining a conjugal relationship, the
Operating Procedures (OP 2- Processing Members of the Family Class) [Operating
Procedures] of the Respondent cite the Supreme Court of Canada’s decision in M.
v H., [1999] 2 S.C.R. 3 [M. v H.] for determining whether applicants
reside in a conjugal relationship. The Operating Procedures note that a number
of factors are considered, including shared shelter, social activities,
economic support, and societal perception as a couple. The Operating Procedures
note that a conjugal relationship is one of some permanence, where the
individuals are interdependent financially, socially, emotionally, and
physically.
[19]
This Court has adopted this definition of “common-law partner” for the purposes of the IRPR: Deheza
v Canada (Immigration, Refugees and Citizenship), 2016 FC 1262 at para 27 [Deheza];
Cai v Canada (Citizenship and Immigration), 2007 FC 816 at para 12.
Notably absent from this definition is the subjective belief of the spouses as
to their status, which the Applicant submits is a defining factor militating in
favour of his arguments.
[20]
Here, the Decision indicates that the Officer
considered the relevant factors and applied the correct test for common-law
spouses. He assessed the relationship timeline and relied on a number of events
to support his conclusion of the existence of a conjugal relationship, namely:
the signing of a joint-tenancy lease, joint bank accounts, the “open advertising” of the relationship, and the
attending of social activities together. These events occurred prior to the
Applicant indicating on his permanent residence application that he was single.
[21]
Notwithstanding these facts, the Applicant
argues that, owing to the couple’s cultural backgrounds there was no “spousal relationship” as they “could only see themselves as boyfriend and girlfriend,”
for cultural and family reasons.
[22]
However, the subjective belief of the spouses does
not factor into the definition of a conjugal relationship as defined in M. v
H., incorporated in the Operating Procedures, and interpreted by this
Court. The objective evidence available to the Officer supported his conclusion
that “beyond probabilities” the Applicant and
his spouse shared sleeping arrangements, social activities, and the like.
[23]
It follows that this case is different from Deheza.
In that case, the Officer found that two applicants were cohabiting. The Court
concluded that this finding was made “without
acknowledgment 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.” Here, the
Officer analyzed the objective evidence offered and considered the appropriate
factors set out in M. v H. and adopted by the Operational Procedures.
[24]
As the Officer is presumed to have considered
all of the information before him, this Court cannot reweigh the evidence (Flores
v Canada (Citizenship and Immigration), 2008 FC 723 at para 15).
[25]
Overall, the Officer turned his attention to the
evidence and applied the proper test. Therefore his decision is justifiable,
transparent, and intelligible in the language of Dunsmuir, at para 47.
[26]
The judicial review is therefore dismissed.
Email this Content