Date: 20010430
Docket: IMM-5669-99
Neutral Citation: 2001 FCT 414
BETWEEN:
CARLOS MANUEL MARTINEZ RODRIGUEZ
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The Applicant seeks judicial review of the November 9, 1999 decision of an immigration officer wherein the officer decided not to recommend a favourable decision regarding the applicant's H & C Application made pursuant to section 114(2) of theImmigration Act, R.S.C. 1985, c.1-2, as amended (the "Act").
[2] The Applicant raised the following issues:
(1) Did the immigration officer violate the duty of fairness by not advising the Applicant that she doubted the bona fides of his relationship; by failing to make inquiries about this issue when she contacted those people who had provided letters in support of the applicant's H & C application; and by considering extrinsic evidence of which the Applicant had no knowledge.
(2) Did the immigration fetter her discretion by only giving consideration to the types of evidence detailed by the IP-5 Guidelines; by failing to consider evidence regarding the applicant's establishment in Canada; and failing to determine whether the applicant had established himself in Canada?
Analysis:
[3] The Applicant argues that the duty of fairness was violated because the immigration officer did not advise him that she doubted the bona fides of his relationship with his partner, and therefore did not give him adequate opportunity to respond as per the decision of Rouleau J. in Bayovo v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1939 (T.D.) (Q.L.).
[4] It must be remembered that, pursuant to subsection 8(1) of the Act, the onus is on the Applicant to show that he meets the requirements of the Act:
Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to the Act or the regulations rests on that person.
[5] The IP-5 manual states at 6.1, page 13:
Applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain an immigrant visa from outside of Canada in the normal manner would be (i) unusual and undeserved or (ii) disproportionate. Applicants may present whatever facts they feel are relevant.
[6] Section 8.2, page 24 of the IP-5 manual sets out the grounds for H & C consideration for common law and same sex partners as such:
8.2 Common-law and same sex partners
The separation of common-law or same sex partners who reside together in a genuine conjugal-like relationship is grounds for H & C consideration. As with all applications, cases involving common-law or same sex relationships must be reviewed on their individual merit.
[7] The manual then goes on to list certain matters to be considered in determining whether a relationship is bona fide, i.e. not one entered into for immigration purposes. In determining the level of interdependency between the partners, section 8.2, page 24 suggests inter alia that:
Documentary evidence pertaining to the relationship such as joint bank accounts, joint real estate holdings, other joint property ownership, wills, insurance policies, letters from friends and family.
[8] The immigration officer asked the Applicant to produce such documentary evidence following the interview. As a result of this request, the Applicant opened a joint bank account with his partner and forwarded bank statements as proof of such to immigration. This clearly indicates that the Applicant was aware that his relationship was an issue and also indicates he had an opportunity to make his own representation on that issue. The Supreme Court in Baker v. Canada (MCI), [1999] 2 S.C.R. 817 held that while the right to be heard is part of the content of fairness in the H & C context, that right was afforded the appellant before the Supreme Court. Writing for the Court, Madame Justice L'Heureux-Dubé said the following at paragraph 34:
The opportunity, which was accorded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case.
The Supreme Court has clearly stated that it is not necessary to provide an oral opportunity to be heard in order to deal with the problem in question.
[9] The immigration officer also phoned some of the authors of letters that were submitted by the Applicant with respect to the relationship issue. One of the authors of the letters confirmed that the Applicant was indeed residing with his partner. The Applicant submits that the immigration officer should have contacted Ms. Alicia Vera with respect to the bona fides of the Applicant's relationship. The immigration officer did contact said person, but as there was no mention in the letter to immigration concerning the Applicant's relationship, that was not part of the discussion.
[10] The Applicant also submits that it was improper for the immigration officer to rely on a statement made by the landlord, during a telephone conversation with the immigration officer, wherein the landlord stated the applicant resided alone. See page 203 of the Tribunal Record. However, the letter from the landlord which was addressed "to whom it may concern" specifically stated in the last paragraph that the recipient could phone and get further details if required. There was no duty to inform the Applicant of the landlord's reply. Furthermore, there is nothing in the immigration officer's notes that indicated that she did indeed rely on this statement. The immigration officer states in her notes, found at pages 12-13 of the Applicant's record:
INVOLVED IN A SAME SEX RELATIONSHIP AND THAT HE AND HIS PARTNER RESIDE TOGETHER. SUBJECT STATED THAT HE AND HIS PARTNER HAVE BEEN TOGETHER FOR APPROXIMATELY THREE YEARS. SUBJECT COULD NOT PROVIDE ANY EVIDENCE PERTAINING TO THIS RELATIONSHIP SUCH AS JOINT BANK ACCOUNTS, JOINT REAL ESTATE, JOINT OWNERSHIP, WILLS, INSURANCE POLICIES, LETTERS, BILLS OR APPARTMENT [SIC] LEASE. SUBJECT HOWEVER AFTER OUR INTERVIEW OPENED A JOINT ACCOUNT WITH HIS PARTNER AND SENT US A COPY OF A STATEMENT. SUBJECT DID PRODUCE LETTERS FROM FRIENDS STATING THAT THE SUBJECT WAS IN A RELATIONSHIP WITH JOHN FREITAS A CANADIAN CITIZEN.
[11] Later, at pages 19-20 of the Applicant's record, the immigration officer states:
OVERALL, SUBJECT HAS NOT SATISFIED THAT THERE IS A GENUINE RELATIONSHIP BETWEEN HIMSELF AND JOHN FREITAS OR THAT THERE IS [SIC] SUFFICIENT HUMANITARIAN AND COMPASSIONATE GROUNDS EXIST [SIC] TO WARRANT WAIVING A9 (1).
[12] The Applicant argues that the Visa Officer's handwritten note which recorded the information she obtained from the Applicant's landlord regarding the fact that he lived alone constitutes extrinsic evidence. As such, submits the Applicant, the Officer had a duty to give the Applicant an opportunity to respond to that evidence. However, I find this contention unconvincing and accept the Respondent's submission that there is no indication that the Visa Officer relied upon the information she obtained from the landlord. This information was not mentioned anywhere in the Officer's reasons for decision. Therefore, there was no duty to give the Applicant an opportunity to respond to this information.
[13] The Applicant submits that the immigration officer fettered her discretion by limiting relevant evidence to that detailed in the IP-5 manual. However, the Supreme Court of Canada in Baker, supra, disapproved of an immigration officer's decision not to follow the said guidelines in the H & C context. L'Heureux-Dubé, J. wrote at paragraph 72:
[72] ... The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power.
[14] The immigration officer did look at the letters put forward by the Applicant and actually took it upon herself to call the authors of the letters. She did not feel herself bound by the IP-5 manual guidelines when assessing the bona fides of the Applicant's relationship, and the officer did not fetter her discretion by allowing herself to be guided by the said guidelines.
[15] The Applicant further submits that the officer fettered her discretion by not doing her own risk assessment. The immigration officer states in her notes at pages 16-19 of the Applicant's record:
SUBJECT STATED THAT THE HARDSHIP HE WOULD ENCOUNTER IF HE WERE TO RETURN HOME IS EMOTIONALLY HE LOVES HIS PARTNER AND THAT THEY DEPEND ON EACH OTHER BOTH EMOTIONALLY AND FINANCIALLY. SUBJECT ALSO STATED THAT HE WILL BE HARASED [SIC] BY THE GOVERNMENT AND THE POLICE IF HE RETURNS HOME DUE TO HIS SEXUAL ORIENTATION. HE WENT ON TO SAY THAT HE HAS NO HOME OR EMPLOYMENT TO RETURN TO AND FEARS HE WILL BE ARRESTED FOR HIS POLITICAL OPINION AND DESERTION DUE TO HIS EMPLOYMENT WITH THE CUBAN AIRLINES PRIOR TO COMING TO CANADA. SUBJECT'S PARTNER WANTED TO ADD THAT THE SUBJECT IS A VALUABLE ASSET TO CANADA AS HE IS SELF SUFFICIENT, HAS NOT BEEN INVOLVED IN CRIMINAL ACTIVITY, WILLING [SIC] TO HELP OTHERS AND HE LOVES HIM.
AFTER CAREFUL CONSIDERATION OF THE INFORMATION PROVIDED BY THE SUBJECT AND HIS COUNSEL, I AM NOT SATISFIED THAT THE SUBJECT WOULD FACE UNDUE AND DISPROPORTIONATE HARDSHIP IF RETURNED TO CUBA. SUBJECT HAS BEEN IN CANADA FOR EIGHT YEARS. HE CLAIMED REFUGEE STATUS SHORTLY AFTER HIS ARRIVAL TO [SIC] CANADA AND THAT CLAIM WAS REFUSED. HE HAS HAD BOTH THE BENEFIT OF A DROC AND PDRCC WHICH WERE ALSO DETERMINED TO BE NEGATIVE. SUBJECT HAS FAMILY RESIDING IN THE U.S. AND IN CUBA. IN CANADA, HE HAS HIS PARTNER JOHN FREITAS.
[16] The immigration officer did err by referring to a DROC, which did not occur, but this was not a material error. The Applicant submits that the PDRCC was insufficient in serving as a risk assessment since the PDRCC had been conducted three years prior to the H & C assessment. However, the Applicant made essentially identical arguments regarding risk at the PDRCC hearing. The immigration officer does not have to conduct her own risk assessment in determining an H & C application, as this is not a refugee claim. It is sufficient that she considered the Applicant's claim on this issue in coming to her decision. Her notes indicate that she did indeed give consideration to the potential risk faced by the applicant if returned to Cuba. I note that the immigration officer is entitled to weigh the evidence before her and this Court does not have the right to second guess that weighing of the evidence.
[17] The Applicant also submits that the immigration officer failed to make a finding regarding his level of establishment in Canada. However, the Applicant did not raise this matter in submissions to the immigration officer. Section 8.7, page 29 of the IP-5 manual states:
Positive consideration may be warranted when the applicant has been in Canada for a significant period of time due to circumstances beyond his or her control.
....
When the period of inability to leave due to circumstances beyond the applicant's control is of significant duration and where there is evidence of a significant degree of establishment in Canada, these factors may combine to warrant a favourable H & C decision.
[18] There is no indication in any event that the immigration officer disregarded the evidence of the Applicant's establishment in Canada. The immigration officer does not have the duty to specifically list each and every ground for her decision in her concluding statements. It is enough that she mentioned some of the criteria in her notes. For example, she notes that the Applicant is a self-employed hairdresser, that he attended ESL classes and obtained his hairstylist licence in 1997, and that he is involved with community groups (i.e. the Centre for Spanish Speaking People, the Salvation Army and the San Juan Bautist Church).
[19] The Applicant also submits that it was not reasonable for the immigration officer to reach the decision that she did based on the evidence before her. I agree with the Applicant that the standard of review is reasonableness simpliciter. However, on the evidence before her, it was not unreasonable for the officer to conclude that the Applicant had not satisfied her that there was a genuine relationship between himself and Mr. Freitas, and that there are insufficient humanitarian and compassionate grounds to warrant waiving section 9 (1) of the Immigration Act.
[20] For the above reasons, the application is dismissed. There is no question to be certified.
"W.P. McKeown"
JUDGE
Ottawa, Ontario
April 30, 2001
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