Date: 20051123
Docket: IMM-3216-05
Citation:
2005 FC 1583
OTTAWA, Ontario, the 23rd day of
November 2005
PRESENT:
THE HONOURABLE MR. JUSTICE PAUL U.C. ROULEAU
BETWEEN:
CLAUTILDE
DJUIPOU NZIKO
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
ROULEAU, J.
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision
delivered on May 4, 2005 by Patrizia Passaglia, Immigration Officer, refusing
the sponsorship application under the “Spouse or Common-law Partner” class, as
well as the application for permanent residence submitted in Canada on
humanitarian and compassionate grounds.
[2]
The
applicant, Clautilde Djipou Nziko, is from Cameroon. She arrived in Canada on
an undetermined date and made a claim for refugee protection at the Montréal
offices of CIC on February 27, 2002. Ms. Nziko first met her future husband,
Brunel St-Cyr, on February 15, 2003. They began living together on March 1,
2003.
[3]
Mr.
St-Cyr obtained a divorce from Carmina Lucinda Williams on January 5, 2004.
The applicant married Mr. St-Cyr on March 13, 2004.
[4]
On
February 16, 2004, an Immigration and Refugee Protection Board (IRB) panel in
Canada refused the applicant’s claim for refugee protection, having found that
she lacked credibility.
[5]
On
February 23, 2004, the applicant filed in Federal Court an application for
leave and for judicial review of the IRB’s decision dated February 16, 2004
(IMM-1622-04). The application was dismissed on May 25, 2004, by Martineau J.
[6]
On
September 15, 2004, the applicant filed a request for exemption from the
immigrant visa requirement.
[7]
Relations
between the couple became strained in the fall of 2004. In September 2004, a
restraining order was issued against Mr. St-Cyr, prohibiting him from coming
within 100 metres of his spouse’s home and/or workplace. In addition, Mr.
St-Cyr was jailed a number of times between November 2004 and January 2005 for
breaching the restraining order against him. In October 2004, Mr. St-Cyr filed
a complaint of assault against his spouse after she allegedly attempted to [translation] “wreck his car”. Mr.
St-Cyr withdrew his assault complaint on April 20, 2005, the date of the applicant’s
appearance.
[9]
The
applicant seeks to have the decision dated March 4, 2005 overturned. Her
application for judicial review is based on the following grounds:
(1) the Immigration Officer based her
decision on erroneous findings of fact made in a perverse and capricious manner
when she ruled that the marriage was not a bona fide one;
(2) the Immigration Officer based her
decision on evidence that she did not bring to the applicant’s attention and,
incidentally, did not give the applicant an opportunity to respond to it;
(3) the Officer erred in her
analysis of the integration component; and
(4) the Officer’s findings
demonstrate a lack of impartiality.
[11]
In
terms of the part of the decision relating to “sponsorship”, the respondent
alleges that the Officer was justified in not being convinced of the bona
fides of the marriage. According to the respondent, the onus was on
the applicant to make her case and not on the Officer to ask her to do so.
[12]
In
terms of the part of the decision concerning the application on humanitarian
and compassionate grounds, the respondent alleges that the Officer’s assessment
of the facts was not unreasonable.
[13]
Moreover,
the respondent alleges that the Officer did not demonstrate bias in identifying
gaps in the applicant’s evidence.
(1) Did the Immigration Officer base her
decision on erroneous findings of fact made in a perverse or capricious manner
when she found that the marriage was not a bona fide one?
(2)
Did the Immigration Officer base her decision on evidence that she did not
bring to the applicant’s attention and, incidentally, not give the applicant an
opportunity to respond to it?
(3) Did the Officer err in her
analysis of the integration component?
(4) Do the Officer’s findings
demonstrate a lack of impartiality?
ANALYSIS
Did the Immigration Officer base her
decision on erroneous findings of fact made in a perverse or capricious manner
when she found that the marriage was not a bona fide one?
[14]
The
Immigration Officer began by assessing Ms. Nziko’s application under the new
policy on spouses and common-law partners announced by the Minister of CIC on
February 18, 2005 (sponsorship application). The policy allows any
non-Canadian who is the subject of a sponsorship undertaking and whose spouse
or common-law partner is a Canadian citizen or permanent resident to have his
or her application assessed under the Spouse or Common-law Partner in Canada
class. Therefore, under paragraph 124(a) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations), the
applicant had to prove that she was the spouse or common-law partner of a
sponsor and lived with this sponsor in Canada.
[15]
The
Immigration Officer determined that the applicant had not proven that she and
her partner lived together in a conjugal relationship. Furthermore, the
Officer found that the marriage between the applicant and her assisting
relative was not a bona fide one. On this point, the Officer noted the
following:
[translation]
The applicant and the sponsor apparently
first met on February 15, 2003, began to cohabit two weeks later on March 1,
2003, and were married on March 13, 2004, one month after the application
for leave for judicial review by the Federal Court was dismissed on February
23, 2004. [Emphasis added.]
[16]
In
fact, it was on May 25, 2004 that Martineau J. dismissed the applicant’s
application for judicial review, as indicated in IMM‑1622-04. A little
later in her decision of May 4, 2005, the Immigration Officer makes the same
error of fact again:
[TRANSLATION]
Moreover, in the interview, I noted an
absence of common activities, future plans, connections, a degree of financial
or emotional interdependence, or desire to reconcile after a period of
disagreement. Also noticeably absent from the file: documents, cards, photos
or notes indicating some relationship as a couple. I must also point out the
very short time between dismissal of the application for judicial review and
the date of the wedding, and the very short period between when the couple
stated that they met and when they decided to cohabit. [Emphasis added.]
In view of these facts, they have not
convinced me that they are still living in a conjugal relationship and leading
a life together as a couple, as we conceive of it, with common activities,
pastimes and plans. Moreover, they have not convinced me that they are living
under the same roof, and I am even less convinced that this is not a
marriage for immigration purposes. [Emphasis added.]
[17]
The
Immigration Officer relied on this error of fact again as a partial basis for
her refusal to waive the visa requirement on humanitarian and compassionate
grounds:
[translation]
The applicant arrived in Canada on an
undetermined date and applied for refugee status at CIC Montréal on February
27, 2002. She apparently met her spouse on February 15, 2003, and they began
to cohabit on March 1, 2003. The IRB panel found that the application was not
credible on February 16, 2004, and on February 23 the application for leave
for judicial review was dismissed. The applicant and her sponsor were married
on March 13, 2004. As of today, the sponsorship application under the Spouse
or Common-law Partner class under the Regulations is refused because the couple
have not convinced me that their marriage is a bona fide one . .
. . [Emphasis added.]
. . .
As regards her marriage, the application
was refused, as its bona fides was in question. I am therefore of the
opinion that separation from her partner cannot be considered disproportionate
hardship . .
. . [Emphasis added.]
[18]
Paragraph
18.1(4)(d) of the Federal Courts Act, R.S.C., 1985, c. F-7, allows
the Federal Court to overturn the decision of a federal board, commission or
other tribunal where it based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or without regard for the
material before it. In her statement of facts, the Officer indicated February
23, 2004 as the date when Martineau J. dismissed the application for judicial
review.
[19]
Having
said this, I must add that not all erroneous findings of facts allow the
Federal Court to stay the decision of a federal board, commission or other
tribunal. In Amevenu v. Canada (Solicitor General), [1994] F.C.J. No.
2065 (QL), (1994) 88 F.T.R. 142, Cullen J. set out the circumstances justifying
judicial interference for an erroneous finding of fact. In the case at bar, it
is clear that the Officer made an erroneous finding of fact; she gave the
incorrect date three times. On the other hand, it is clear that this finding
was not made in a perverse or capricious manner.
[20]
In
her decision, the Officer also offered other grounds for doubting the bona
fides of the marriage.
[translation]
Moreover, in the interview, I noted an
absence of common activities, future plans, connections, a degree of financial
or emotional interdependence, or desire to reconcile after a period of
disagreement. Also noticeably absent from the file: documents, cards, photos
or notes indicating some relationship as a couple . . . .
[21]
Had
it not been for that error of fact, it is conceivable that the Immigration
Officer might still reasonably have reached the same conclusion that the
marriage was not a bona fide one.
Did the
Immigration Officer base her decision on evidence that she did not bring to the
applicant’s attention and, incidentally, not give the applicant an opportunity
to respond to it?
[22]
The
applicant alleges that the Officer used some of the evidence and failed to
confront her with it before finding that the marriage was not a bona fide
one. Without identifying the specific evidence in question, the applicant
argues that the Officer erred in doubting the bona fides of her marriage
when her testimony, as well as that of her husband, clearly showed that their
marital relations were bona fide. The applicant therefore alleges that,
in finding that the marriage was not bona fide, the Officer did not
assess the content of her evidence in a reasonable manner. The applicant also
argues that she was prepared to provide any evidence relating to her marriage,
although the Officer did not ask for any.
[23]
In
view of the decision in Owusu v. Canada (Minister of Citizenship and
Immigration), 2003 FTR 94, [2003] F.C.J. No. 139 (QL), it is clear that the
onus in the case of an application for exemption from the visa requirement on
humanitarian and compassionate grounds lies with the applicant. At paragraph 7
of Prasad v. Canada (1996), 34 Imm. L.R. (2d) 91 (F.C.T.D.), Muldoon J.
writes the following concerning judicial review of a visa officer’s decision:
The onus is on the applicant to satisfy
the visa officer fully of all the positive ingredients in the applicant's
application. It is not for the visa officer to wait and to offer the applicant
a second, or several opportunities to satisfy the visa officer on necessary
points which the applicant may have overlooked.
[24]
The
onus is therefore on the applicant to file any material evidence demonstrating
the bona fides of the marriage.
[25]
The
applicant has not succeeded in demonstrating that the Officer’s findings were
unreasonable in terms of the bona fides of the marriage. Unless the
decision has been proven unreasonable, the Court cannot and must not substitute
its opinion for that of the Immigration Officer. The Officer reasonably found
that the marriage was not bona fide. While her assessment of the
credibility of the evidence is brief, it does mention the grounds on which it
is based.
Did the Officer err in her analysis of
the integration component?
[27]
According
to the Officer, the applicant’s life will not be at risk if she returns to
Cameroon, since the threats relate to the human rights situation faced generally
by other individuals in that country and are not a personalized risk requiring
special attention. In her application for permanent residence, the applicant
stated that she owns a company called Air Afrique dedicated to hairdressing and
the sale of entertainment products. She also stated that she employs a number
of Canadian citizens and permanent residents. However, the Officer doubted the
applicant’s credibility on the latter point, as the applicant had submitted no
evidence in this regard. The Officer also stated that, after researching the
business, she found that it had no fixed address and that its telephone numbers
were no longer in service. The Officer stated that she had informed the
applicant of the results of her research.
[28]
The
Officer also ascertained that the applicant had no family connection in Canada
or, if she did, it was too insignificant to mention, since the applicant denied
knowledge of the presence of a sister in Canada. All the other members of her
family, including her own daughter, lived in Cameroon.
[29]
The
Immigration Officer accordingly found that the applicant’s connections or
habits were not so solid, grounded or essential that they would have
unfortunate effects on her life, this despite the fact that she had spent three
years in Canada.
[30]
Here
again, the applicant has failed to demonstrate that the Officer’s decision was
unreasonable. Given the facts on record, the Officer was reasonably entitled
to draw the inferences and conclusions that she drew.
Do the Officer’s findings demonstrate a
lack of impartiality?
[32]
The
test applicable to a reasonable apprehension of bias followed by Canadian
courts was set out in Committee for Justice and Liberty v. The National
Energy Board, [1978] 1 S.C.R. 369:
[T]he apprehension of bias
must be a reasonable one, held by reasonable and right-minded persons, applying
themselves to the question and obtaining thereon the required information . . .
. [T]hat test is “what would an informed person, viewing the matter
realistically and practically—and having thought the matter through—conclude .
. . ” .
[33]
This test has a two-part objective element: the
person examining the allegation of bias must be reasonable, and the
apprehension of bias must itself be reasonable having regard to the
circumstances of the case. In R. v. R.D.S., [1997] 3 S.C.R. 484 at page
532, Cory J. also asserted that "[t]he onus of demonstrating bias lies
with the person who is alleging its existence”. In Beno v. Canada
(Commissioner and Chairperson, Commission of Inquiry into the Deployment of
Canadian Forces to Somalia), [1997] 2 F.C. 527 (C.A.), the Court held that
there is a presumption that a decision maker will act impartially.
[34]
In the instant case, the applicant provides no
support for her claims concerning her reasonable apprehension of bias by the
Officer. At most, the applicant relies on the fact that she disagrees with the
Officer’s findings. Obviously, that is insufficient to demonstrate a
reasonable apprehension of bias.
JUDGMENT
In
view of the fact that there are no grounds for intervention, the application
for judicial review of the decision of May 4, 2005 is dismissed.
“Paul
U.C. Rouleau”
Certified true translation
Michael Palles
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