Akomah v. Canada (Minister of Citizenship and Immigration), 2002 FCT 99

Date: 20020128

Docket: IMM-5341-00

                                                                                                    Neutral Citation: 2002 FCT 99

BETWEEN:                                                                                              

MARGARET AKOMAH

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                    REASONS FOR ORDER

HANSEN J.

[1]                 This is an application for judicial review of the August 2, 2000 decision of a Citizenship and Immigration officer ("the officer"), wherein the officer denied Margaret Akomah ("the applicant") processing from within Canada on humanitarian and compassionate (H & C) grounds. The officer found the applicant's marriage was a marriage of convenience.

Background

[2]                 The applicant is a citizen of Ghana. She was married to Frank Oduro in Scarborough, Ontario in April 1997. Her husband applied to sponsor her application for landing in November 1998.

[3]                 The applicant states that soon after her marriage she discovered her husband had a child with another woman. This resulted in her separating from him briefly, during which time she resided in Montreal. The couple reconciled and resumed cohabitation during the spring of 1998.

[4]                 Both the applicant and her husband were interviewed separately by the officer on September 15, 1999. The officer questioned the bona fides of the applicant's marriage because when immigration investigators attended at the residence of Josiahn Saunders, the mother of Frank Oduro's son, on February 16, 1999, the investigators noted that a "male occupant of the apt. was Frank Oduro". The investigator also noted that "Oduro has never lived with Margaret Akomah". Further, Mr. Oduro's driver's licence, which he offered as identification, showed an address other than the one listed on the applicant's records. As a result, it was suspected the applicant's marriage to Frank Oduro was a marriage of convenience.

[5]                 Both the applicant and her husband have sworn affidavits stating their marriage is genuine.

[6]                 In the end, after having interviewed both parties, the immigration officer denied the application on the basis that the marriage was not bona fide.

Decision under Review

[7]                 The officer's notes detail the applicant's and her husband's responses to the officer's questions about her background in Ghana, how the couple met and where the couple lives, their furniture and their daily routine. With respect to the issue of Frank Oduro's child and his relationship with the mother of his child, the notes state as follows:

Frank was never married before but he has a 2 yr old son, named NANA KLUAME ODURO. No Nana does not live with them, he lives with his mom. The child returned to Jamaica with his mother.

It was after Margaret married Frank that she found out about the child's mother.

...

When they got married they started living together and then when she found out that he had a child with someone else she moved to Montreal. Then under coaxing of her Minister she came back to Toronto in April /98 to try to work things out.

Husband: she was mad that I had a child outside of marriage so she left.

Issue

[8]    The central issue is the applicant's allegation that she was denied natural justice, on the basis that the immigration officer didn't advise her that there was adverse information in the file with respect to whether her marriage was genuine. The applicant also alleges the immigration officer's finding was unreasonable in all the circumstances. It is the applicant's position that she was denied a meaningful opportunity to present her case.

1.         Did the officer breach the principles of natural justice by not advising the applicant of the adverse information on her file with respect to the bona fides of her marriage?

[9]                 The applicant and her partner were asked to an interview and that interview was their opportunity to establish the basis of the applicant's grounds for seeking exemption from the rules for landing as they apply to other applicants. As section 6.1 chapter 6 of the Inland Processing Manual explains:

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 Canada in the normal manner would be (i) unusual and undeserved or (ii) disproportionate. Applicants may present whatever facts they feel are relevant.

[10]            However, it is well established in the jurisprudence that the duty of fairness requires an immigration officer assessing an H & C application to provide the applicant with notice of any extrinsic evidence and to give the applicant an opportunity to respond to it prior to rendering a decision (See for example Belharkat v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1805).

[11]            The essence of the applicant's argument is that the investigator's notes comprise extrinsic evidence to which she was not given any opportunity to respond. In her submission, the failure of the officer to disclose the investigator's report deprived her of a full and fair opportunity to present her case to the officer.

[12]            While the applicant attests that the officer did not advise her of the investigator's findings and give her an opportunity to counter these concerns, the respondent's position is that the officer did confront the couple with the adverse information. The respondent relies on the affidavit of Gregory G. George, a solicitor with the Immigration Law Section of the Department of Justice, for this position.

[13]            The affidavit of Mr. George was the subject of much debate at the hearing of this matter. The respondent did not file an affidavit of the immigration officer Donna Reid-Moncreiffe. Instead, the affidavit of Mr. George, attesting to the content of a telephone conversation he had with Ms. Reid-Moncreiffe on January 22, 2001, was tendered.

[14]            The applicant raised rule 81(1) of the Federal Court Rules, 1998, in support of her argument that the affidavit should be struck from the record. Rule 81(1) states as follows:

[15]            The rationale for the rule that affidavits must be on personal knowledge is the same as that of the common rule against hearsay. The evidence in the affidavit must be capable of being tested by cross-examination of the affiant (Bressette v. Keettle and Stony Point First Nations Band Council (1997), 137 F.T.R. 189 (T.D.).

[16]            The respondent, however, states that rule 12(1) of the Federal Court Immigration Rules, 1993 applies in these circumstances. It states as follows:

[17]            I agree with the respondent that rule 12(1) applies. The effect of this rule is that the usual common law rules of evidence, including the hearsay rule, will govern the admissibility of the George affidavit.

[18]            The Supreme Court of Canada in R. v. Khan, [1990] 2 S.C.R. 531 established that hearsay evidence will only be admissible when the Court is satisfied that the two-part test of necessity and reliability is met. McLachlin J. (as she then was) stated at pages 546, 547 and 548:

The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as "reasonably necessary". The inadmissibility of the child's evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which could establish the requirement of necessity.

The next question should be whether the evidence is reliable. Many considerations such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances, and are best left to the trial judge.

...

I add that I do not understand Ares v. Venner to hold that the hearsay evidence there at issue was admissible where necessity and reliability are established only where cross-examination is available. First, the Court adopted the views of the dissenting judges in Myers v. Director of Public Prosecutions which do not make admissibility dependent on the right to cross-examine. Second, the cross-examination referred to in Ares v. Venner was of limited value. The nurses were present in court at the trial, but in the absence of some way of connecting particular nurses with particular entries, meaningful cross-examination on the accuracy of specific observations would have been difficult indeed.

[19]            In the present case, there is a direct contradiction between the testimony of the applicant and the position taken by the respondent. Under these circumstances it is critical for the applicant to be afforded the opportunity to cross-examine the officer on her evidence with respect to the questions that were asked during the interview. The respondent did not tender any evidence for why Ms. Reid-Moncrieffe could not have been deposed on the content of the interview herself. Accordingly, the respondent has failed to satisfy the Court of the necessity of bringing forward the immigration officer's testimony in this manner. For this reason, no weight will be given to the affidavit of Mr. George in this proceeding.

[20]            In the absence of an affidavit of the officer, the record must be scrutinized to determine if there is any evidence before the Court to contradict the applicant's sworn statement that the officer failed to confront the couple with the adverse information in the investigator's report.

[21]            The applicant submits the notation on her file, "suspected marriage of convenience", entered by the investigator following his visit to Ms. Saunders' apartment, ought to have been brought to her attention during the interview. The information constitutes extrinsic evidence, adverse to the applicant's interest, that affected the officer's consideration of her application.

[22]            The applicant argues that she was not given any information as to the content of the investigator's notes, or even the fact of their existence. The applicant submits that the officer approached the file in a manner that was biassed by taking into account secret information not disclosed to the applicant.

[23]            The immigration officer took extensive notes of the interview. In many cases, she indicated where the applicant's responses to her questioning differed from her husband's. The portions of the notes that mentioned Frank Oduro's child or the child's mother were reproduced earlier in these reasons. Nowhere in the notes does the officer record the responses of the applicant or her husband when confronted with the information from the investigator's notes.

[24]            Given the extensive notes taken by the officer, one would expect that if the officer had confronted the applicant and her husband about the information from the investigators report, this would be reflected in her notes. However, the officer made no notes with respect to this line of questioning.

[25]            The duty of fairness requires that the officer bring extrinsic evidence that is adverse to the applicant's interest to her attention. She must be afforded the opportunity to respond to the information, especially in this case where the applicant may not have even been aware of the incident at Ms. Saunders' apartment. On the evidence before me, I find that the applicant was not afforded that opportunity.

[26]            Accordingly, the application for judicial review is allowed.

                                                                                "Dolores M. Hansen"             

                                                                                                      J.F.C.C.                      

OTTAWA, ONTARIO

January 28, 2002