Date: 19981109
Docket: IMM-318-98
BETWEEN:
VALERIE ANTILLON
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON, J.
The Application
[1] The Applicant, Valerie Antillon, has applied under s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act"), for judicial review of a decision of an immigration officer (the "Officer") dated February 4, 1998, refusing the Applicant's application under section 114(2) of the Act for an exemption under section 9(1) of the Act (the "Decision"). The Applicant had alleged that there were humanitarian and compassionate ("H & C") grounds to justify having her application for permanent residence status processed from within Canada.
[2] The application for judicial review is based on the following grounds:
| (1) Bias - The Officer's treatment of the Applicant, Mr. Antillon and Applicant's counsel indicate that the Officer had decided the matter before the Applicant's interview. |
| (2) Fairness - The Decision was made unfairly, in that the Applicant and Mr. Antillon were not given an opportunity to explain inconsistencies in their separate testimony at the conclusion of their interviews. |
| (3) The Burden of Proof and Legal Test - The Officer erred in law by misinterpreting the burden of proof and the legal test to be applied in determining whether the Applicant's marriage is genuine. |
| (4) Irrelevant and Relevant Considerations - The Decision was based on irrelevant considerations and the Officer ignored relevant considerations. |
The Facts
[3] The Applicant and Mr. Antillon married at Toronto City Hall on October 26, 1996. They had dated since they met in January of 1995 and they had lived together since April of that year. Approximately 100 guests attended the wedding, including the Applicant's sister from Grenada.
[4] In February of 1997, the Applicant asked Parkdale Community Legal Services, Inc. ("PCLS") to prepare her application for landing. Mr. Antillon was to be her sponsor. In April of 1997, after the necessary fees were paid, PCLS began work on the application.
[5] In May of 1997, the Applicant and Mr. Antillon had a domestic dispute, and the Applicant called the police. When they arrived, Mr. Antillon denied that the Applicant was his wife and said that their marriage was one of convenience. As a result, the Applicant was detained by police and eventually taken to the Mississauga Immigration Detention Centre.
[6] On May 23, 1997, the Applicant, Mr. Antillon and counsel attended a detention review hearing. Mr. Antillon stated that his repudiation of the marriage had been false. The officer conducting the hearing agreed to adjourn the inquiry until the Applicant's application for landed status was completed and filed. The Applicant was released from detention on a $1,000 cash bond, which was paid for by Mr. Antillon.
[7] On June 13, 1997, the Applicant's application for landing was filed and it named Mr. Antillon as the Applicant's sponsor.
[8] On November 29, 1997, the Officer conducted separate interviews with the Applicant and Mr. Antillon to determine whether their marriage was bona fide. On January 19, 1998, the Applicant was informed by telephone that her application for landing was refused. On January 27, 1998, after a hearing, a deportation order was made against the Applicant.
The Evidence
[9] The Officer made 4" long pages of closely-spaced handwritten notes at the time she interviewed the Applicant and Mr. Antillon on November 29, 1997 (the "Interviews"). These notes will be referred to as the "Officer's Notes". The Officer also entered material into FOSS. FOSS is the acronym for the respondent's in-house computerized file system. The entries it contains will be described as the "FOSS Notes". Finally, nine months after the interview, the Officer made an affidavit dated August 31, 1998, as part of these judicial review proceedings (the "Officer's Affidavit"). The Officer's Affidavit describes the Interviews and the correspondence she subsequently received and is stated to be based on her personal knowledge. However, it is not made clear whether she had any independent recollection of events when she made her affidavit or whether she relied entirely on the Officer's Notes and the FOSS Notes.
[10] The Applicant and Mr. Antillon both swore affidavits for these proceedings as did members of PCLS. Of particular note, is the affidavit of Ms. Noreen Teo (the "Teo Affidavit"). It was made 3" months after the Interviews and it sets out her version of the events. Ms. Teo was the law student who represented the Applicant and Mr. Antillon at the Interviews.
[11] Although the Teo Affidavit refers to extensive notes she took during the Interviews, those notes are not in evidence. However, Ms. Teo prepared a memorandum immediately after the Interviews. It was presumably based on her notes and is in evidence as Exhibit D (the "Teo Memorandum") to the affidavit of Immi Sikand of March 18, 1998. Ms. Sikand is another law student at PCLS. Her affidavit also exhibits the Applicant's Application for Landing, which was prepared by PCLS. The covering letter for the Application for Landing was dated June 13, 1997. It discussed the genuine nature of the Applicant's marriage and described her courtship and wedding. The employment history of both the Applicant and Mr. Antillon was reviewed. As well, Mr. Antillon's past sponsorships of his brother and mother were described, and his mother's unwillingness to accept his financial aid were detailed.
[12] Finally, two letters were sent by the PCLS Staff Lawyer after the Interviews. One dated December 4, 1997, was sent to the Officer and the second, dated December 4, 1997, was sent to her supervisor. In spite of confusion about the date of the second letter, it appears from the Officer's Affidavit that she reviewed both letters. They will be described as the "Follow-Up Letters".
The Issues
1. Bias
[13] The Applicant bases her allegation that the Officer pre-judged the Decision on three submissions: (1) that the Officer's behaviour was impatient, impolite and hostile in the Applicant's interview; (2) that the Officer stated that she was bound to follow a policy to the effect that a sponsor in default could not act as a sponsor in a subsequent case; and (3) that the Officer stated to Mr. Antillon that "when you talk to Immigration we have to go by what you say". I will deal with each submission in turn.
[14] Counsel submits that the reason the Officer was rude to the Applicant was because she had looked at the FOSS Notes prior to the interview. Specifically, those were the FOSS Notes dated November 29, 1997. It is conceded that the notes are accurate, but it is argued that they do not paint a true picture because they are incomplete. For example, the FOSS Notes mention Mr. Antillon's sponsorship default without providing his explanation for his inability to support his mother.
[15] I am not able to accept this submission. While it is clear from the Officer's Notes that she must have prepared for the Interviews, it is not at all clear what she looked at during her preparation. The Officer's Affidavit says that she had access to the FOSS Notes. Although she does not actually say that she read them, I presume she did or she would not have mentioned them. However, counsel conceded that the Officer would also have had the Application for Landing in her file. Its covering letter explains the sponsorship default. On this evidence alone, I am not prepared to infer that the Officer came to the Interviews having pre-judged the Applicant's case.
[16] However, I should note that this submission is also flawed because it is clear from the evidence that it was the Applicant who was exposed to the Officer's alleged rudeness. In contrast, the interview with Mr. Antillon went smoothly. If the Officer was, in fact, biased, Mr. Antillon was the one who was in default under a sponsorship agreement and was the one who said he had lied to the police. In these circumstances, one would expect the Officer's rudeness to have been directed to Mr. Antillon as well as to the Applicant. As it was not, I cannot conclude, on the basis of her attitude, that the Officer pre-judged the case.
[17] I have reviewed all parties' evidence about the Officer's conduct and I accept that Ms. Teo's affidavit is based on a more current memorandum of events. However, I am not satisfied that there was any conduct by the Officer which could lead to a finding of bias. I accept that she was abrupt and impatient, and indeed she may have been rude, but I do not find evidence of any sarcasm or racist or sexist remarks which might disclose bias. As well, there is no evidence of repeated interruptions. In an interview that lasted approximately 45 minutes, it is clear that the Applicant was upset for about ten minutes of that time, but not so upset that she could not answer questions. Her counsel, Ms. Teo, only complained about one series of questions in 45 minutes. Finally, it is clear that Ms. Teo was not silenced. The Officer's Notes disclose that she intervened effectively a number of times during the interview.
[18] The second submission concerns the Officer's apparent attitude to the sponsorship default. If the Officer read the Application for Landing, she would have known before the Applicant's interview that Mr. Antillon's mother refused to accept his support. In any case it is clear that, during the interview with the Applicant, the sponsorship default was discussed. The Officer's notes say:
| |
Counsel states that the sponsor has done everything to get his mother off welfare. She apparently refuses. He apparently has offered her money. |
|
The Teo Memorandum indicated that, after the Applicant's interview, the Officer spoke about sponsorship default and how it disqualified Mr. Antillon as a sponsor for the Applicant. Apparently the Officer said that the policy is very rigid, is the law, and that she must abide by it. Counsel before me both agreed that sub-section 5(2)(g) of the Immigration Regulations (the "Regulations") provides that a person who gives an undertaking regarding the sponsorship of members of the family class should not be in default of a previous sponsorship obligation. Both counsel conceded that ss. 5(2)(g) of the Regulation would have been in place at the time of the interviews and also agreed that there was no doubt that, under s. 114(2) of the Act, the Officer had the discretion to ignore the Regulations. As there was no relevant policy on the point, I have concluded that, when the Officer spoke of the "policy", she meant ss. 5(2)(g) of the Regulations.
[19] At the end of the Applicant's interview, Ms. Teo told the Officer that the Regulation need not be followed in a H & C assessment, and it is clear that her comment was accepted by the Officer. I say this because the Teo Memorandum also records that, in the subsequent interview with Mr. Antillon, the Officer said that, since Mr. Antillon was in default of sponsorship, it is "questionable" whether he could sponsor the Applicant. In addition, in the Follow-Up Letter of December 4, 1997, the Officer was advised that she had the discretion to ignore ss. 5(2)(g) of the Regulations.
[20] The Officer's Notes do not mention the matter, but the Officer's Affidavit does, and there she states that she was very concerned by Mr. Antillon's default in his previous sponsorship undertaking relating to his mother. She further observed that, although she was not bound by departmental policy "in exercising my discretion under s. 114(2)", she considered the policy that sponsors who are in default of their sponsorship should have subsequent applications for sponsorship reviewed and assessed very carefully.
[21] Looking at this matter in its entirety, I have concluded that when the Officer said "I must abide by the policy", she said it at a time when she knew the facts of the case, and it is therefore likely that what she meant was that, in the circumstances of this case, I must abide by the policy. In my view, she could have concluded that nothing she had heard during the Applicant's interview about Mr. Antillon's reasons for not supporting his mother suggested to her that she should exercise her discretion to ignore ss. 5(2)(g) of the Regulations. Whether or not I am correct, it is also very clear that the Officer was aware that she had discretion long before she made her Decision. Accordingly, in the circumstances of this case, I cannot find that her statement that she must abide by the policy indicates that she had made up her mind in advance of understanding the law and the facts of the case.
[22] The third allegation on the question of bias relates to a statement the Officer is alleged to have made about Mr. Antillon's repudiation of his marriage when he spoke to the police. The statement appears in the Teo Memorandum and in the Follow-Up Letter of December 4, 1997. According to the Teo Memorandum, what the Officer is alleged to have said to Mr. Antillon at the end of his interview is "when you talk to Immigration we have to go by what you say". However, the evidence is clear that Mr. Antillon repudiated the marriage before the police, and they reported his statement to immigration officials. The Officer was clearly speaking of this chain of events and her substitution of immigration officials for the police is not material. The point is that the repudiation was made.
[23] The Applicant suggests that the Officer meant that, when Mr. Antillon made his statement to police, it had to be accepted as an accurate statement, and there was no room to consider an explanation to the effect that it might have been a lie. I am not prepared to interpret the Officer's statement that way. I think what she meant was, if you tell the police one thing and you tell us another, then you have to deal with the inconsistency you have created - it cannot be ignored. In my view, this is a perfectly reasonable statement and does not support an allegation of bias.
2. Fairness
[24] The Applicant submits that, in spite of the Federal Court of Appeal decision in Shah v. Canada (Minister of Employment and Immigration), (1994) 170 N.R. 238 (F.C.A.), which gives minimal content to the duty of fairness in cases of H & C review, there is a requirement, in cases involving separate interviews to determine if a marriage is bona fide, to conclude the process by holding a joint interview to give the parties an opportunity to explain inconsistencies which arose during their separate interviews. I cannot accept this submission in view of the clear statement of Hugessen J.A. (at 239-240) to the effect that:
| |
In the case of perceived contradictions, however, the failure to draw them specifically to the applicant's attention may go to the weight that should later be attached to them but does not affect the fairness of the decision. |
|
[25] I take from this statement that, though it is not a requirement, a failure to draw material inconsistencies to the Applicant's attention for explanation in some suitable manner might affect the weight that could be given them.
[26] In this case, however, it is clear that:
| 1. The inconsistencies were not viewed by the Officer as being material. The Officer's Notes and Officer's Affidavit indicate that few discrepancies were noted in the Applicant's and Mr. Antillon's respective responses to questions. |
| 2. In any event, an opportunity to explain the inconsistencies did exist. The second Follow-Up Letter in fact explained the more significant inconsistencies. |
In these circumstances, I can find no breach of the minimal duty of fairness imposed by Shah, supra.
[27] I should add that I prefer the evidence of Ms. Teo to that of the Officer on the question whether Ms. Teo was given a chance to question the Applicant and Mr. Antillon to explain any inconsistencies in a joint interview at the conclusion of the separate Interviews. Ms. Teo's evidence is based on her Memorandum, which is closer in time to the events. Ms. Teo says she was promised an opportunity to elicit explanations but, because the Officer ran out of time, she was not given the opportunity as promised. The Officer, on the other hand, indicates in her Officer's Affidavit that she "would not prevent a person from asking any questions or making any statements they felt necessary prior to the end of the interview". I am sure this is true, but it does not address the facts of this case where interview time ran out. I have concluded that, because the Officer's Notes do not mention this matter, the Officer has no actual recollection of the conclusion of the interview. Ms. Teo is entitled to be frustrated that her efforts to elicit explanations were unsuccessful but, in the context of this case, the circumstances do not disclose a reviewable error.
3. a) The Appropriate Burden of Proof
[28] The Examination and Enforcement Guidelines published by Employment and Immigration Canada (the "Guidelines") deal in section 9.14 (2)(b) with situations when officers may refuse to exercise their discretion to grant an H & C request under section 114(2) of the Act. The first version of sub-section 2(b), at the bottom of page 8, says that "... it is sufficient, in order to refuse to exercise discretion, that officers have a reasonable doubt about the bona fides of the marriage." (my emphasis). On page 9 at the top, a second version of sub-section 2(b) contains a different burden of proof. I am advised by counsel that this change to the burden of proof in the Guidelines was made in November 1993, and that it is this latter provision in the Guidelines which applied at the Applicant's interview on November 29, 1997. It reads "[t]herefore it is sufficient in order to refuse to exercise discretion, that officers are satisfied on the balance of probabilities that the marriage was entered into for immigration purposes. Please ensure that the words 'reasonable doubt' are deleted from form refusal letters. Use instead 'on the balance of probabilities or other similar wording'" (my emphasis). This second version of sub-section 2(b) has beside it a vertical black line in the left margin, which, I assume, is to indicate that it is the new version of sub-section 2(b).
[29] The Applicant argues that, because the outdated version of sub-section 2(b) at the bottom of page 8 is not deleted and not even crossed out, it is possible that an officer making reference to the Guidelines could mistakenly rely on the outdated version on page 8 instead of the correct version on page 9.
[30] In my view, this section of the Guidelines is written in a sloppy manner and should be corrected. It is possible that, in 1993 or 1994, an officer might have made the error suggested. However, the amendment was four years old by the time the Applicant was interviewed, and, in this circumstance, and absent any evidence that the wrong burden of proof was actually used, I am not prepared to infer that an error was made.
3. b) Reliance on Improper Test for Genuine Marriage
[31] The Applicant submits that the Officer erred in law by relying on a stricter test for ascertaining a genuine marriage than the legal test currently accepted by the Court. In her Decision, the Officer wrote that the Applicant's marriage to Mr. Antillon was "not a marriage of substance and of likely duration, and that it has been entered into primarily for immigration purposes".
[32] The words "marriage of substance and of likely duration" are not contained in s. 4(3) of the Regulations. This language is derived from s. 9.06(2) of the Guidelines. The Applicant submits that the Officer erred in law by relying upon the Guidelines rather than on the test set out in s. 4(3) of the Regulations.
[33] However, this is not a case where the Officer is bound to apply section 4(3) of the Regulations. In an H & C review she has the discretion to ignore section 4(3). Accordingly, I can find no reviewable error in her use of the language in the Guidelines.
4. a) Reliance on Irrelevant Considerations
[34] The Applicant takes the position that the Officer improperly used the question whether Mr. Antillon could be a sponsor for the Applicant in her assessment of the bona fides of the marriage. While there is no doubt that the sponsorship issue was relevant to the overall H & C assessment, I agree that it was not relevant to an assessment of the marriage. However, I can find no evidence that the Officer actually confused the issues. Indeed, in the Decision, the bona fides of the marriage and the overall H & C assessment are dealt with separately.
4. b) Failure to Rely on Relevant Considerations
[35] In many ways this problem is at the core of the Applicant's application. The Applicant cannot accept that, on the facts of her case, the Officer could not conclude that the marriage is bona fide. She emphasizes that:
| - She and Mr. Antillon have lived as husband and wife since 1995 |
| - They were married in 1996 |
| - 100 friends and relatives attended the wedding, including the Applicant's sister from Grenada |
| - After the Applicant's arrest, Mr. Antillon immediately withdrew his repudiation of the marriage and posted the Applicant's bond. Mr. Antillon explained his repudiation as a reaction to his fear of police. |
| - The parties were reconciled immediately after the Applicant's release from detention and have lived together since then. |
[36] The Applicant says that, given this consistent behaviour over the long term, the Officer's conclusion that the marriage is not bona fide is perverse and can only be explained by the fact that the Officer ignored the relevant evidence.
[37] The reality may be different. The Officer interviewed Mr. Antillon, and her Officer's Notes indicate that she did not find him to be credible. She clearly concluded that his repudiation of the marriage was not a lie, but rather a truthful statement. She heard his explanation about his fear of police but did not accept it. Once she reached this conclusion, the other indicia of a bona fide marriage were compromised in the sense that they could be expected to be found in a well-planned marriage of convenience.
[38] The Applicant asserts that some independent evidence is needed, such as a third party reporting that the marriage is a fraud. The Applicant also says that the matrimonial dispute leading to a call to the police and the repudiation of the marriage should have been viewed as indicia of a real relationship.
[39] I cannot accept either submission. The repudiation by Mr. Antillon, once accepted as truth, was sufficient to justify the Officer's Decision. As well, I do not fault the Officer for concluding that an assault, which was sufficiently severe to prompt the Applicant to call the police, and the repudiation of the marriage could be indicia of a marriage of convenience. The Officer's assessment of Mr. Antillon's credibility was based on all the facts and was open to her on the evidence. Accordingly, I cannot conclude that she erred by ignoring relevant facts.
Certification
[40] The Applicant submitted the following questions for certification:
Question 1:
Whether the test for a "genuine" or "bona fide" marriage, as applied by an immigration officer who is delegated to consider an application for landing in Canada on "humanitarian and compassionate" grounds based on the marriage of an applicant to a Canadian citizen or permanent resident, is the same as the test prescribed by section 4(3) of the Immigration Regulations for a spouse who is a member of the family class.
or,
Whether the test for a "genuine" or "bona fide" marriage, as applied by an immigration officer who is delegated to consider an application for landing in Canada on "humanitarian and compassionate" grounds based on the marriage of an applicant to a Canadian citizen or permanent resident, is the identical test as applied by a visa officer abroad who is required to determine where a person is a "spouse" for the purpose of immigration as a member of the family class in accordance with section 4(3) of the Immigration Regulations.
Question 2:
Whether the immigration policy guidelines of "genuine" or "bona fide" marriage, as set out in Chapter IE-9 of the Immigration Policy Manual, which indicates that an immigration officer must determine whether the marriage is "one of substance and likely duration", improperly fetters the discretion of an immigration officer dealing with a spousal application for landing on "humanitarian and compassionate" grounds, by importing subjective criteria not warranted by the legislation, as set out in section 4(3) of the Immigration Regulations, defining a "spouse" who is a member of the family class.
Question 3:
Accepting that administrative fairness does not require an immigration officer to conduct an interview of an applicant for "humanitarian and compassionate" consideration unless issues of credibility are to be determined, and accepting that the principle of administrative fairness does not confer a right to counsel at such an interview if an interview is held, nevertheless, if an applicant is invited to an interview, and if the applicant has counsel at that interview, does the duty of fairness require that counsel be permitted, at some point during the interview, to ask questions and elicit evidence to assist the applicant to clarify any confusions or misunderstandings which may have arisen during the interview.
[41] Questions 1 and 2 are predicated on the applicability of section 4(3) of the Regulations in this case. As I have concluded this section does not bind an officer in an H & C review, these questions could not be dispositive. Hence they will not be certified.
[42] Question 3 will not be certified for two reasons. Firstly, it would not be dispositive as, in this case, the discrepancies were clearly immaterial. As well, as noted above, it is my view that this issue has clearly been decided in Shah, supra. There is no such duty.
Conclusion
[43] For all these reasons, an order will be made dismissing the application for judicial review and declining certification.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
November 9, 1998
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: VALERIE ANTILLON
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT NO.: IMM-318-98
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 22 and 23, 1998
REASONS FOR ORDER: SIMPSON, J.
DATED: November 9, 1998
APPEARANCES:
Geraldine Sadoway for Applicant
Michael Morris for Respondent
SOLICITORS OF RECORD:
Parkdale Community Legal Services for Applicant
Toronto, Ontario
Morris Rosenberg for Respondent
Deputy Attorney General of Canada
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