Date: 20060912
Docket: IMM-654-06
Citation: 2006
FC 1089
Calgary, Alberta,
September 12, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
SUMAILA
DONKOR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review of the decision of an Immigration Officer that the
applicant did not meet the requirements for a positive decision under the
policy on spouses and common-law partners in Canada, and secondly that there
were insufficient humanitarian and compassionate considerations to warrant an
exemption from the normal legislative requirements pursuant to subsection 25(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“the
Act”).
BACKGROUND
[2]
The applicant is a
citizen of Ghana. He arrived in Canada in January 1999 and made a claim for refugee protection in February
1999. His claim was rejected by the Refugee Protection Division on May 26, 2000
and leave for judicial review of that decision was denied on October 27, 2000.
He then filed an application for an exemption on humanitarian and compassionate
(“H&C”) grounds which was received for processing in March, 2001.
Additional information was submitted in October, 2002 and again, by different
counsel, in April and May of 2004.
[3]
On February 18, 2005 a
new policy was announced by the Minister of Citizenship and Immigration Canada
(“CIC”) which allowed H&C applications previously submitted which had not
been finalised as of that date, to be converted to spousal in Canada applications if the H&C applicant was married, in
a common-law or conjugal relationship. CIC determined that the applicant was
eligible under this new policy and his application was converted to a spousal
in Canada application.
[4]
On April 7, 2005 the
applicant’s present counsel submitted supporting information indicating that
the applicant began living in a common-law relationship with Fernanda Beshir, a
permanent resident of Canada, in February 2003. An interview with both
the applicant and Ms. Beshir was convened for June 13, 2005. Following the
interview, the applicant’s file was referred to the Pre-removal Risk Assessment
Unit. A negative Pre-Removal Risk assessment was completed
on November 2, 2005. The spousal in Canada sponsorship application
was denied on January 23, 2006.
DECISION
[5]
In her decision, the
officer stated that the applicant had not shown that he met the requirements of
section 4 Immigration and Refugee Protection Regulations, 2002, SOR/2002-227 as there was little evidence that he was in a genuine
marriage and that it was not entered into primarily for the purpose of
acquiring permanent resident status in Canada.
[6]
In her notes to file,
the officer stated that there were several factors casting doubt on the genuineness
of the common law relationship including discrepancies regarding their
first meeting and introduction, incomplete knowledge of each other’s family,
inconsistencies regarding financial arrangements, and claims of being “single”
made by the spouse on her 2003 and 2004 income tax returns and by the applicant
on his 2003 tax return.
[7]
The notes also indicate
that the officer considered a number of other H&C factors submitted by the
applicant, including the fact that he is under medical care for an ulcer, the applicant’s
level of establishment in Canada, and the applicant’s fear in returning to Ghana. The officer concluded that there was insufficient
objective evidence before her to conclude that humanitarian and compassionate
considerations exist to warrant an exemption from the requirements of the Act.
ISSUES
[8]
The issues
as identified by the applicant are as follows:
1.
Did the
officer err in finding that the common law relationship was not genuine?
2.
Did the
officer breach a principle of natural justice by failing to provide adequate reasons?
RELEVANT LEGISLATION
[9]
Section 4
of the Immigration and Refugee Protection Regulations, 2002,
SOR/2002-227 states:
|
4.
For the purposes of these Regulations, a foreign national shall not be
considered a spouse, a common-law partner, a conjugal partner or an adopted
child of a person if the marriage, common-law partnership, conjugal
partnership or adoption is not genuine and was entered into primarily for the
purpose of acquiring any status or privilege under the Act.
|
4. Pour l’application du présent règlement, l’étranger
n’est pas considéré comme étant l’époux, le conjoint de fait, le partenaire
conjugal ou l’enfant adoptif d’une personne si le mariage, la relation des
conjoints de fait ou des partenaires conjugaux ou l’adoption n’est pas
authentique et vise principalement l’acquisition d’un statut ou d’un
privilège aux termes de la Loi.
|
ANALYSIS
Standard of Review
[10]
The
parties agree that the standard of reasonableness applies when reviewing a
humanitarian and compassionate decision: Baker v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817 at paras. 61-62; Lee v. Canada (Minister of Citizenship and
Immigration), 2005 FC 413 at para.6. A decision will be unreasonable only
if there is no line of analysis within the reasons that could reasonably lead
the tribunal from the evidence before it to the conclusion at which it arrived:
Law Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247 at paras. 55-56.
The decision must be able to withstand a "somewhat probing
examination": Canada (Director of Investigation and Research) v.
Southam Inc., [1997] 1 S.C.R. 748.
[11]
I note
that in an analogous case, a family class sponsorship application based on
marriage, Justice Michel Shore held that a finding of
fact as to whether the marriage was genuine or not was subject to the standard
of patent unreasonableness: Canada (Minister of Citizenship and Immigration) v.
Navarrete 2006
FC 691 at paragraph 17. This was in relation to a decision made by the
Immigration Appeal Division under the comparable provisions of the former regulation. There appears to be no reason for this Court to apply a different
standard of review to factual findings made by immigration officers under s.4
of the current regulations.
Preliminary Question of Interpretation:
[12]
The
parties are in general agreement that section 4 of the Regulations must be read
conjunctively, that is the questioned relationship must be both not genuine and
entered into primarily for the purpose of
acquiring any status or privilege under the Act. That would seem to follow from a plain
reading of the enactment and is supported by several decisions of this Court: Sanichara v. Canada (Minister of Citizenship and Immigration) 2005 FC 1015 (at para. 16); Singh
v. Canada (Minister of Citizenship and Immigration), 2006 FC
565 (at para. 7).
[13]
A conjunctive
interpretation leaves open the possibility that a marriage which was originally
entered into for the purpose of gaining status under the Act may become genuine
and therefore not excluded under the regulation.
[14]
The
respondent submits, however, that the intent of the makers of the regulation
was to assess the circumstances surrounding the date the relationship was
entered into. The intention
of the regulation would be subverted if the passage of time allows for a
genuine common-law marriage to be created. The Court is urged to interpret the
regulation as intended to prevent people from acquiring status or privileges
under the Act by means of a common-law relationship when the benefits thus claimed
were a primary reason for the creation of the relationship.
[15]
The
question the immigration officer must determine, the respondent says, is
whether the common-law relationship was genuine from the outset. Support for
this proposition is found in jurisprudence interpreting the former regulation: Horbas v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 359 (T.D.)
[16]
In Horbas, Justice
Strayer, as he then was, stated:
It should
first be observed that the test is a double test: that is, the spouse is
disqualified under subsection 4(3) only if the marriage is entered into
primarily for the purpose of gaining admission to Canada and not with the
intention of residing permanently with the other spouse.
***
It must be
kept in mind that in order to reject such an application on the basis of this
subsection, it must be found that there is both a marriage entered into by the
sponsored spouse primarily for purposes of immigration and lack of intention on
his or her part to live permanently with the other spouse.
[17]
Section 4 (3) of the Immigration Regulations, 1978, SOR/78-172 stated:
The family class does not include
a spouse who entered into the marriage primarily for the purpose of
gaining admission to Canada as a member of the family class and not with the
intention of residing permanently with the other spouse. [Emphasis added]
As noted in Horbas:
|
4.
|
|
... (3) Paragraph (1)(a) does not apply to a spouse who entered into the
marriage primarily for the purpose of gaining admission to Canada as a member
of the family class and not with the intention of residing permanently with
the other spouse.
|
[18]
It is clear that the test to be
applied under the old regulation for determining whether a marriage was genuine
was the time of the marriage itself. However, the new regulation does not state
that this is the time at which the relationship is to be assessed. It speaks in
the present tense for a determination of the genuineness of the relationship
and in the past tense for assessing the purpose for which it was created. This seems
to be consistent with the practice followed by Immigration Officers in
assessing spousal sponsorship applications. It appears, from the cases which
the Court has seen, that in interviews with claimants and their putative
spouses the officers focus on whether there is a continuing relationship.
[19]
The drafters of
section 4 may thus have left the door open to marriages of convenience found to
be sincere and enduring at the time of the assessment. But does that avail the
applicant in these proceedings? Regardless of the interpretation to be given to section 4 of the
regulations, the officer in this case, in the exercise of her discretion,
determined that the common law relationship between the applicant and his
spouse was not genuine. It is up to the applicant to demonstrate that this
finding was made in reviewable error.
Assessment of the relationship
[20]
The applicant submits
that the officer’s decision is not supported by the evidence. In determining
that the relationship was not genuine, the officer ignored the fact that
the applicant and his common-law spouse answered several questions regarding
financial arrangements, their living arrangements and each other’s families
consistently. The officer also failed to refer to documentary evidence before
her which supports the common-law relationship such as the fact that the
applicant declared himself to be in a common-law relationship on his 2004
income tax return. The officer cited the fact that applicant’s spouse declared
herself single on her 2003 income tax return and therefore should have
considered the applicant’s 2004 income tax return.
[21]
The respondent submits
that the officer properly considered the application. The officer interviewed
the applicant and his spouse in order to assess their knowledge of each other
and the genuineness of the relationship and noted several inconsistencies in
their responses regarding their first meeting and introduction, their first
date, their first sexual encounter, their engagement rings, lack of knowledge of
each other’s family and educational background and their financial
arrangements.
[22]
The applicant’s
disagreement with the officer’s interpretation of the facts does not, in my
view, demonstrate a reviewable error. The
applicant has not shown that the officer failed to consider either the evidence
referred to in his affidavit or the circumstances surrounding the applicant’s relationship
to his sponsor. A tribunal need not mention every piece of evidence in its
reasons and is assumed to have weighed and considered all evidence before it,
unless the contrary is shown: Hassan v. Canada (Minister of Employment and
Immigration) (1992) 147 N.R. 317 (F.C.A.); Akram v. Canada (Minister of
Citizenship and Immigration), 2004 FC 629 (at para. 15).
[23]
The officer provides,
at the very least, a tenable line of reasoning to support her conclusion: Law
Society of New Brunswick, above. Based on the evidence before her, the officer has not made
an unreasonable finding that the relationship between the parties was not
genuine.
Sufficiency
of the Officer’s Reasons
[24]
The applicant submits
that the officer’s reasons for her decision do not stand up to a somewhat
probing examination: Naddaf v. Canada (Minister of Citizenship and Immigration), 2005 FC 824 (at para. 5).
[25]
Counsel for the
applicant fairly conceded that there were discrepancies in certain of the
applicant’s and Ms. Beshir’s responses during their interviews. However, she
submitted that the officer must go further than simply recording discrepancies.
Mere statements such as “inconsistencies regarding the time they met” and
“inconsistencies regarding the applicant’s salary” render the reasons
insufficient. It cannot be determined whether there were in fact discrepancies
or whether these were significant: Zhang v. Canada (MCI), [2002] I.A.D.D. No. 1349 (QL) (at para. 15).
[26]
Reasons will be insufficient when they simply consist
of a review of the facts and the statement of a conclusion, without any
analysis to back it up. In essence, the applicant must be provided with enough information
to know why his claim has been rejected. Adu v. Canada (Minister of Citizenship and Immigration), 2005 FC 565 (at para. 14).
[27]
In this case, the officer’s reasons dealing
with whether there are humanitarian and compassionate grounds to allow the
applicant to remain in Canada are extensive. The officer
clearly considered a number of factors including level of establishment, the
hardship of separation between the applicant and his spouse, the health
problems of the applicant (specifically an ulcer), and the applicant’s fear of
returning to Ghana.
[28]
When it came to the officer’s findings with
regard to the applicant’s relationship with Ms. Beshir, the reasons are not as
detailed although the officer took copious notes of the interviews. I am
satisfied that the applicant was provided with sufficient information to know
on what grounds his application was rejected. The officer’s reasons adequately
referred to the evidence that she relied upon in arriving at her decision to
demonstrate the path of her reasoning.
[29]
I further find that the evidence
before the officer reasonably supported her conclusion that the genuineness of
the relationship had not been established, and conclude that the officer
committed no reviewable error in the assessment of the humanitarian and
compassionate factors presented by the applicant.
[30]
No serious questions of general
importance were proposed and none are certified.
IT IS THE JUDGMENT OF THIS COURT that the application is dismissed. No questions are
certified.
“Richard G. Mosley”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-654-06
STYLE OF CAUSE: Sumaila
Donkor v. MCI
PLACE OF
HEARING: Calgary, Alberta
DATE OF
HEARING: September
11, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: MOSLEY J.
DATED: September
12, 2006
APPEARANCES:
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Ms. Lori
O’Reilly
Mr. Brad
Hardstaff
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FOR THE APPLICANT
FOR THE RESPONDENT
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SOLICITORS
OF RECORD:
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O’Reilly Law
Office
Calgary, Alberta
|
FOR THE
APPLICANT
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John H. Sims,
Q.C.
Deputy
Attorney General
Of Canada
|
FOR THE
RESPONDENT
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