Borysova v. Canada (Minister of Citizenship and Immigration), 2002 FCT 696

Date: 20020619

Docket: IMM-4129-01

Neutral citation: 2002 FCT 696

Ottawa, Ontario, this 19th day of June, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                             MARYNA BORYSOVA,

also known as MARYNA CHAKIROV

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION CANADA

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application pursuant to subsection 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, for judicial review of the decision of the immigration officer (the "officer") dated July 24, 2001, wherein the officer decided not to make a favourable recommendation under subsection 114(2) of the Immigration Act, supra.

[2]                 The applicant seeks an order setting aside the decision of the officer. The applicant seeks an order granting an exemption from the requirements of subsection 9(1) of the Immigration Act, supra on humanitarian and compassionate ("H & C") grounds.

Background

[3]                 The applicant is a citizen of Ukraine and entered Canada on April 25, 1998 on a visitor's permit issued March 10, 1998.

[4]                 The applicant married her spouse and sponsor Albert Chakirov on July 19, 2000 in Edmonton, Alberta in a civil marriage ceremony.

[5]                 The applicant submitted her application for H & C consideration in the fall of 2000.

[6]                 The applicant and her spouse attended an interview with the officer on July 5, 2001.

[7]                 In the decision dated July 24, 2001, the officer wrote:

There are discrepancies in information provided by applicant and her spouse in regard to her request for a visa exemption:

i.)             Applicant stated that she and spouse used a condom for their first sexual experience however I note that spouse stated no birth control was used.

ii.)            Applicant stated there was concern she was pregnant on four or five occasions whereas spouse stated there was concern on one occasion.

iii.)           Applicant stated there was no formal engagement and that the ring spouse gave her was a promise ring, not an engagement ring. Spouse stated he and applicant were engaged one month before their wedding and that the ring given to the applicant was an engagement ring.

iv.)           Applicant stated that the civil ceremony took place in the basement of the person who performed the ceremony and that two guests were present. I note however that spouse stated the ceremony took place at his friend's house and that seven guests were present.

v.)            Applicant stated she and spouse have not yet bought wedding rings and did not exchange rings at their civil ceremony because they intend to do so at a future church ceremony in Ukraine. I note however that spouse stated he and applicant bought wedding rings together and that they exchanged these rings at their civil ceremony.

vi.)           Applicant stated she is Christian Orthodox and spouse is Muslim and that they have not made a decision on the type of ceremony. Spouse stated that they have decided on an Orthodox ceremony.

vii.)          Applicant stated that spouse would be unwilling to convert to Orthodox however if spouse asked, she would convert to Islam. I note that spouse stated he would be willing to convert to Orthodox. He also stated he has not asked applicant to convert to Islam, nor does he intend to do so.

viii.)         Applicant stated she and spouse have discussed what they will do if the exemption request is refused and that they plan to reside in Ukraine if the application is refused. Spouse stated he and applicant have not discussed what they will do if the request is refused, and that he does not think about the possibility.

. . .

I have reviewed all of the information and facts in this case. I am not satisfied that this is a marriage of substance and one that will endure. Therefore, I am not satisfied that there are sufficient Humanitarian and Compassionate grounds to warrant waiving 9(1) of the Act.

[8]                 The officer denied the applicant's request for an exemption from the landing requirement of subsection 9(1) of the Immigration Act, supra. This is the judicial review of the officer's decision.

Applicant's Submissions

[9]                 The applicant submits that the officer failed to take any steps in making inquiries of third parties to further investigate the alleged discrepancies that arose in his interviews of the applicant and her spouse.

[10]            The applicant submits that the officer's questions on the use of birth control and the finding that their marriage was not one of substance suggests that he was more concerned with the possibility that the applicant would eventually become a liability and burden on the government and its social programs. The applicant submits that the officer's findings and reasons demonstrate a reasonable apprehension of bias against the applicant.

[11]            The applicant submits that the officer based the decision on unreasonable inferences based on minimal information without having afforded the applicant an opportunity to respond to the alleged discrepancies arising in the interviews. The applicant submits that the officer did not allow the applicant to present evidence from independent sources that would have corroborated the status of her marriage.

[12]            The applicant submits that the officer failed to consider the valid marriage certificate issued by the province of Alberta. The applicant submits that the officer based the decision on speculation and opinion.

[13]            The applicant submits that the officer's decision failed to properly take into consideration the intent and purpose of the Act to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad. The applicant submits that the officer's decision will cause irreparable harm to the applicant's ability to bring an application for immigration from the Ukraine because she will be financially unable to return to Canada.

Respondent's Submissions

[14]            The respondent submits that a judicial review should only proceed on the basis of the evidence that was before the decision maker. The respondent submits that a number of the exhibits to the affidavit of the applicant were not before the officer.

[15]            The respondent submits that the applicant was given ample opportunity to present her case to the officer. The respondent submits that the onus is on the applicant to bring to the officer's attention any relevant evidence regarding her H & C claim.

[16]            The respondent submits that there is no requirement that the applicant be given an opportunity to respond to discrepancies arising from a spousal interview. The respondent submits that the purpose of the interview is to avoid collusion, so allowing the applicant and her spouse to restate their position once confronted with discrepancies would frustrate the process. The respondent submits that the officer asked the applicant and her spouse a variety of questions to which a married couple would know the answers.

[17]            The respondent submits that it is not disputed that a wedding ceremony took place, rather the issue was whether the marriage was a bona fides marriage.

[18]            The respondent submits that there is no evidence that the officer based the decision on mere speculation.

[19]            The respondent submits that the officer is not required to make inquiries of third parties to further investigate the discrepancies that arose at the interviews with the applicant and her spouse. The respondent submits that the applicant's assertion that the officer should have considered the hardship on the applicant to return to the Ukraine or whether she had any family in the Ukraine does not raise relevant considerations for a spousal H & C application.

[20]            The respondent submits that the officer did not commit a reviewable error in basing the decision on the numerous discrepancies found during the interviews with the applicant and her spouse.

[21]            Issues

1.          Did the officer exhibit a reasonable apprehension of bias?

2.          Did the officer commit a reviewable error?

Relevant Statutory Provisions and Regulations

[22]            Subsection 9(1) of the Immigration Act, supra states:

[23]            Subsection 114(2) of the Immigration Act, supra states:

[24]            Section 2.1 of the Immigration Regulations, 1978, S.O.R. /78-172 states:

Analysis and Decision

[25]            The style of cause is amended to correct the applicant's first name. The portion that reads "also known as MYRNA CHAKIROV" is amended to read "also known as MARYNA CHAKIROV.

[26]            The respondent submits that certain parts of the applicant's affidavit were not before the officer. I agree that in almost all cases that evidence not before the decision maker should not be used in the judicial review application. On this basis, I would strike: Exhibits 6, 7, 8, 9, 10, 11; the portion of Exhibit 12 not before the officer; Exhibits 13, 14, 15, 16, 17, 18 and 19, as those documents were not before the officer.

[27]            Issue 1

Did the officer exhibit a reasonable apprehension of bias?

The statement now most often quoted as the correct test for apprehension of bias is from the dissenting opinion of Grandpré J. in [1978] 1 S.C.R. 369">The Committee for Justice and Liberty et al. v. The National Energy Board et al. [1978] 1 S.C.R. 369. Grandpré J. stated at pages 394 to 395:

The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the 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. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly."

I can see no real difference between the expressions found in the decided cases, be they ‘reasonable apprehension of bias', ‘reasonable suspicion of bias' or ‘real likelihood of bias'. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".

[28]            The applicant submitted that the officer's questions of the applicant "suggests that he was perhaps more concerned with the possibility that the applicant would eventually become a burden on the government and social programs". I have reviewed the file material and I do accept this proposition. Applying the above outlined test for apprehension of bias, I cannot find any apprehension of bias on the part of the officer.

[29]            Issue 2

Did the officer commit a reviewable error?

The onus is on the applicant and her spouse to present any relevant evidence to the officer to support the H & C applicant. Consequently, the officer did not err by failing to contact third parties with respect to the discrepancies that arose at the interview.

[30]            The applicant also submitted that the officer should have given an opportunity for a response to the discrepancies that arose from the spousal interview. As the H & C application was based on the applicant's marriage to a Canadian, it was proper for the officer to ask questions to determine whether the marriage was one of substance. The very purpose of interviewing the husband and wife separately is to obtain the answers to questions which any couple who are in a marriage of substance should know the answers and these answers in a marriage of substance should be similar. It would totally defeat the purpose of such an interview if the husband and wife were given a chance to respond to the different answers. For example, a husband and wife should know how many guests were at their wedding when the wedding has a very small number of guests. In this case, the applicant stated that the civil ceremony took place in the basement of the person who married them and that two guests were present. Her spouse said the ceremony took place at his friend's house and that seven guests were present. Another example of a conflict in the evidence concerns the wedding rings. The applicant stated that she and her spouse had not bought wedding rings and did not exchange rings at their civil ceremony. Her spouse stated that they had bought wedding rings and exchanged them at the civil ceremony. There is no need for a further response to questions and discrepancies of this nature.

[31]            Although some of the answers to the questions asked by the officer may not have been in as much conflict as suggested by the officer, I am satisfied on the totality of the answers to the questions that the officer was entitled to find that the marriage was not a marriage of substance and one that would endure. The officer did not make a reviewable error in this respect.

[32]            With respect to the Alberta marriage certificate, I would point out that a person can have a valid marriage according to provincial law and still not be in a marriage of substance.

[33]            The application for judicial review is dismissed.

[34]            Neither party wished to propose a serious question of general importance for certification.

ORDER

[35]            IT IS ORDERED that the style of cause is amended to correct the applicant's first name. The portion that reads "also known as MYRNA CHAKIROV" is amended to read "also known as MARYNA CHAKIROV.

[36]            AND IT IS ORDERED that the application for judicial review is dismissed.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

June 19, 2002

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-4129-01

STYLE OF CAUSE: MARYNA BORYSOVA,

also known as MYRNA CHAKIROV

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                   Edmonton, Alberta

DATE OF HEARING:                                     Thursday, May 23, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Wednesday, June 19, 2002

APPEARANCES:

                                     Ajaje Yaggey

FOR APPLICANT

Tracy King

FOR RESPONDENT

SOLICITORS OF RECORD:

Joseph Doz Law Offices

9928 104 Street

Edmonton, Alberta

T5K 0Z3

FOR APPLICANT

Department of Justice

211 Bank of Montreal Building

10199 - 101 Street

Edmonton, Alberta

T5J 3R8

FOR RESPONDENT

                    FEDERAL COURT OF CANADA

                                  TRIAL DIVISION

Date: 20020619

Docket: IMM-4129-01

BETWEEN:

MARYNA BORYSOVA,

also known as MYRNA CHAKIROV

Applicant

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

             REASONS FOR ORDER AND ORDER