Docket: IMM-3585-11
Citation: 2012 FC 269
Vancouver, British Columbia, February
27, 2012
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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GEMMA ABONITA AZURIN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review brought forth under subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
seeking to set aside a decision made by an immigration officer [the officer] of
the Case Processing Centre [CPC] in Vegreville, Alberta, dated February 4,
2011. The officer rejected the applicant’s application for permanent residence
in Canada as a member
of the Live-in Caregiver Class pursuant to subparagraph 72(1)(e)(i) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations].
I. Background
and Decision under Review
[2]
Ms.
Gemma Abonita Azurin [the applicant] is a citizen of the Philippines who moved to
Canada in 2002 to
work as a member of the Live-in Caregiver Program. The applicant has not
returned to the Philippines since her arrival, nor has she seen any of her
family members in that time.
[3]
On
April 1, 2005, the applicant submitted an application for permanent residency
in Canada as a
member of the Live-in Caregiver in Canada Class. In it, she identified four
children and a husband, Mr. Napoleon Azurin (Trial Record [TR] at 154).
[4]
In
a letter dated January 30, 2006, the CPC informed the applicant that she met
the eligibility requirements for permanent residence as a member of the Live-in
Caregiver Class, but that a final decision would not be made until all
remaining requirements were met, including background checks of all her family
members, irrespective of whether they planned to join her in Canada
(Applicant’s Record [AR] at 100).
[5]
In
a letter dated September 13, 2007, the applicant informed the CPC that she had
recently discovered her marriage to Mr. Azurin was null and void because he was
already married to someone else at the time. The applicant indicated that she was
shocked and devastated by this news and that it was her intention to remove Mr.
Azurin from her application (AR at 102). Also included with this letter was an
affidavit in which the applicant specified that Mr. Azurin married another
woman on March 19, 1988, a little over a month before he married the applicant
on April 24, 1988. She also stated that she was cancelling her sponsorship of
Mr. Azurin and putting herself as head of the household (AR at 103). The
applicant now adds that she informed Mr. Azurin that their relationship was
over in September of 2007 and that they have not been in a marital-like
relationship since that time (AR at 86, Applicant’s Affidavit [AA] at paras
8-9).
[6]
The
CPC followed up with the applicant in a letter dated October 21, 2008, where
after providing the definition of a ‘common-law partner’ as set out in
subsection 1(1) of the Regulations, it asked her to advise it as to whether Mr.
Azurin met the definition of a common-law partner or not and to provide details
(AR at 104).
[7]
The
applicant responded in a letter dated October 30, 2008, where under a heading
entitled “Common-law relationship history”, she included the following table:
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Relationship History
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Address
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Comments
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April
24, 1988 – October 09, 2002
I
left the Philippines to work as a live-in
caregiver on October 10, 2002. Napoleon stayed to look after our four
children. He was unable to work for over a year due to a motor vehicle
accident in 2003.
I
sent funds on a regular basis to support Napoleon and my four children and
ensure that my children continue with their studies.
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Sta.
Cruz, Nabus, Camarines Sur, Philippines 3444 4434
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Napoleon
Azurin and I has been living as husband and wife since April 24, 1988. We
lived in one roof and were blessed to have four children:
1) Erwin
Azurin born on September 08, 1988;
2) Beverly
Azurin born on June 04, 1990;
3) Brenda
Azurin born on April 28, 1992;
4) John Paul
Azurin born on February 03, 2001.
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The applicant acknowledges that this table
is “somewhat confusing” (AR at 143, Applicant’s Memorandum of Argument [AMA] at
para 16). She also explains in her affidavit that she had not understood the
contents of the CPC letter, specifically “what a common-law partnership was” or
the words ‘cohabitating’ and ‘conjugal’ found in the definition in subsection
1(1) of the Regulations (AR at 86, AA at paras 11-12). Whatever the case may
be, the notes from the Computer Assisted Immigration Processing System [CAIPS]
make clear that the CPC thought the applicant’s letter confirmed the common-law
partnership (TR at 35).
[8]
On
July 7, 2010, the CPC sent the applicant a letter [the fairness letter]
advising her of the following (AR at 116):
In
the course of reviewing your file, it appears that your application for
permanent residence may have to be refused as you and/or your family member(s)
do not appear to meet immigration requirements […]
Specifically,
in response to your letter dated October 30th, 2008, we have
received confirmation from the visa post in Manila that they believe a genuine, common-law
relationship exists between you and Napoleon Azurin. Therefore, as an eligible
family member, he is subject to examination and his inadmissibility, as
outlined below, may render you inadmissible which could result in a refusal of
your application for permanent residence.
Regulation
72(1)(e)(i) states a foreign national in Canada becomes a permanent resident if,
following an examination, it is established that they and their family members,
whether accompanying or not, are not inadmissible.
The CPC went
on to cite paragraphs 36(1)(c) and 36(2)(c) of the IRPA regarding criminality before
saying that “[t]he information we have been given regarding your common-law
spouse’s inadmissibility is as follows […]” and then enumerates charges of
bigamy, perjury, and ‘reckless imprudence’ while driving. The fairness letter
went on to inform the applicant that she had the opportunity to make any
submissions related to this matter, in writing, within 60 days (AR at 116).
[9]
On
August 19, 2010, the applicant responded to the fairness letter by stating she
would like to continue with her application for all eligible members of her
family and as for Mr. Azurin, she realized she wouldn’t be able to include him
in her application as it may result in a delay and refusal for her and her
children’s permanent residence. She concluded by repeating her request to
continue her and her children’s application (AR at 119). The applicant now adds
that because the fairness letter stated that the CPC had confirmation from the
Manila visa post that she was in a genuine common-law relationship, and because
she did not understand what that term meant, she assumed the CPC must have been
correct that she was indeed in a common-law partnership (AR at 87-88, AA at 16).
[10]
On
February 4, 2011, the officer rendered the decision at issue in the present
judicial review. For the same reasons highlighted in the fairness letter, the
applicant’s application for permanent residence was refused as a result of the
requirement under subparagraph 72(1)(e)(i) that all family members, whether
accompanying the applicant or not, must not be inadmissible. The letter
explains that Mr. Azurin, identified as the applicant’s “common-law husband,”
was determined to be inadmissible for bigamy, perjury, and operating a vehicle
in a dangerous and negligent manner resulting in an accident (AR at 4-5).
[11]
On
June 30 2011, the applicant received the result of an Access to Information and
Privacy Request, the results of which contained an e-mail from the Manila visa post to
the CPC dated November 28, 2007. In the e-mail, in which a Designated
Immigration Officer was apparently responding to a CPC enquiry, the officer
informed the CPC of the allegations of bigamy, perjury, and reckless driving
committed by Mr. Azurin. The officer also writes the following (AR at 125):
D.
VOID MARRIAGE vis-a-vis CONTINUOUS MARITAL RELNS WITH AFL
In
[the applicant’s September 2007 affidavit], the [applicant] stated that her
marriage to [Mr. Azurin] having been contracted in the subsistence of another
should be considered void. Consequently, she further stated that she would like
to “cancel her sponsorship” for Napoleon. As established from respective
interviews of spouse and eldest son, marital reins are clearly intact. This
only appears to be an attempt by [the applicant] to exclude spouse from
processing in order to facilitate landing for herself and her children. Without
any judicial declaration of nullity, every marriage should be deemed valid. At
the very least, [Mr. Azurin] can be considered [the applicant’s] common-law
partner and would still be an eligible family member who requires examination.
Any future attempt of [the applicant] to [establish] separation or initiate
divorce should be looked into very closely.
E.
CONCLUSION: Spouse, Napoleon, is inadmissible to Cda based on grounds cited
above. This also renders AFL inadmissible under A42 [emphasis added].
[12]
The
applicant alleges that both the e-mail and the fact the Manila visa post’s
conclusions were based on interviews conducted with Mr. Azurin and one of the
applicant’s children were not disclosed to her. The applicant was also
informed by an Access to Information and Privacy Assistant on July 19,
2011, that the contents of either interview could not be disclosed to her
without their consent and the applicant states that she still does not know
what was said during these interviews that would have led the Manila visa post
to conclude marital reins between the applicant and Mr. Azurin were still
intact.
II. Parties’
Positions
[13]
The
applicant raises three issues. The first is that the officer breached the
principle of procedural fairness by failing to disclose to the applicant the
existence and content of interviews conducted by the Manila visa post with Mr.
Azurin and her son. The second is that it was unreasonable for the officer to
conclude the applicant and Mr. Azurin were in a common-law partnership when she
had stated in her September 2007 letter and accompanying affidavit that she
severed her common-law partnership. The third is that the officer breached the
duty of procedural fairness in this case by not conducting an interview with
her.
[14]
For
its part, the respondent contends the officer had no duty to advise the
applicant that the Manila visa post would conduct interviews, that she
was advised her husband and son had been interviewed, and that she was given an
opportunity to respond to the conclusion that she was in a common-law
partnership, but simply failed to do so. The respondent submits the officer’s
finding regarding the common-law partnership was therefore reasonable. As to
the issue of not having conducted an interview with the applicant, the
respondent argues that foreign nationals are entitled to a minimum degree of
procedural fairness, that there is no obligation to offer an interview, and
that the officer is under no obligation to apprise the applicant of concerns
unless they are based on extrinsic evidence (Qin v Canada (Minister of
Citizenship and Immigration), 2002 FCT 815, [2002] FCJ 1098 [Qin]).
The respondent asserts that the interviews cannot be considered extrinsic
evidence since they were held with family members as part of the same
application.
III. Issues
[15]
This
matter raises three issues:
1. Did the
officer breach the principles of procedural fairness by failing to inform the
applicant of the interviews or their content?
2. Did the
officer breach the principles of procedural fairness by not conducting an
interview with the applicant?
3. Did the
officer err in concluding the applicant was in a common-law partnership with
Mr. Azurin?
IV. Standard
of Review
[16]
The first
two issues concern procedural fairness and must be reviewed on a standard of
correctness. If it is found that the officer committed an error by failing to
inform the applicant of the contents of the interviews with her husband and son
or by not conducting an interview with her, the decision will be set aside (Batica
v Canada (Minister of Citizenship and Immigration), 2006 FC 762 at para 5,
[2006] FCJ 951 [Batica] and Chitterman v Canada (Minister of
Citizenship and Immigration), 2004 FC 765, [2004] FCJ 955 [Chitterman]).Whether
the applicant was in a common-law partnership is a question of mixed fact and
law and calls for the application of the reasonableness standard of review (Ortega
v Canada (Minister of Citizenship and Immigration), 2010 FC 95 at para 11, [2010]
FCJ 107). Reasonableness requires the existence of justification, transparency
and intelligibility within the decision-making process and asks whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1
SCR 190).
V. Analysis
A. Did the
officer breach the principles of procedural fairness by failing to inform the
applicant of the interviews or their content?
[17]
I
first note that while the applicant acknowledges the CPC afforded her numerous
opportunities to provide submissions regarding whether she was in a common-law
partnership, she claims never having understood what was being asked of
her as she did not understand the terms ‘common-law partnership’, ‘conjugal
relationship’, or ‘co-habitating’. This court cannot hold the CPC or the
officer responsible for the applicant’s potential ignorance of these terms. Concerned
with determining the status of the applicant’s relationship with Mr. Azurin,
the CPC provided her with the definition of a ‘common-law partner’ as set out
in subsection 1(1) of the Regulations and asked her to advise as to whether Mr.
Azurin met that definition or not and to provide details (AR at 104). If
the applicant did not understand the definition set out in the Regulations, it
was her responsibility to inform herself or to seek clarification from the CPC
prior to answering.
[18]
Even
the applicant acknowledges in her submissions that “it is not the [CPC’s] fault
that the applicant did not understand what was being asked of her”, yet she
accuses the CPC of exacerbating the situation by indicating the Manila visa
post had confirmed that the she was in a common-law partnership. She also blames
the officer for not revealing the information received in the interviews or
that this was the reason for the Manila visa post’s confirmation. She contends
that because she did not understand what a ‘common-law partnership’ was, and
because she did not know why the Manila visa post concluded that she was in
such a partnership, “she simply assumed that she must have been in a common-law
partnership since the [CPC] said that it was ‘confirmed’ that she was” (AR at
153, AMA at para 38). This reasoning does not stand the test of scrutiny.
[19]
First,
in a letter dated January 30, 2006, the CPC informed the applicant that a final
decision concerning her application would not be made until all remaining
requirements were met, including background checks of all family members,
irrespective of whether they planned to join her in Canada. The letter also
notified the applicant that “[the] office in Manila will be
contacting your family members [emphasis added]” (Applicant’s Record [AR] at
100). The fact the Manila visa post contacted Mr. Azurin and her son
should therefore not have been a surprise to her.
[20]
Second,
while the applicant claims she only became aware of the interviews and their
role in the Manila visa post’s finding regarding her common-law partnership
after receiving a copy of the November 28, 2007 e-mail, I have difficulty
reconciling this with a letter written by the applicant to the CPC, received on
June 9, 2008. In it, the applicant writes the following: “I would like to enquire
as to the status of our application. I understand that the Canadian embassy in Manila has already forwarded
the results of the interview on November 28, 2007 [emphasis added]” (TR at
117). Clearly the applicant was aware of at least one interview conducted by
the Manila visa post,
that the status of her application was related to the interview results,
and that these results had been forwarded to the CPC on November 28, 2007. Whether
the applicant was aware of only one interview or both changes little since the
Manila visa post makes clear both interviews led to its finding: “As
established from respective interviews of spouse and eldest son, marital reins
are clearly intact” (AR at 125). The applicant’s allegations are thus
inconsistent with the evidence above.
[21]
The
applicant argued the officer breached the principle of procedural fairness by
failing to disclose to her the existence and content of the interviews. As
confirmed by the evidence, the applicant was aware of at least one interview
and was told of the results of the Manila visa post interview.
She had information that the Manila visa post concluded that the relationship
was a genuine common-law relationship.
[22]
The
applicant also contended that she was denied an opportunity to fully respond to
concerns on the determinative issue of whether the applicant and Mr. Azurin
were in a common-law partnership and to correct or contradict any
statements made during the interviews (Muliadi v Canada (Minister of
Employment and Immigration), [1986] 2 FC 205, 66 NR 8 (FCA) [Muliadi];
Batica, above; Torres v Canada (Minister of Citizenship and
Immigration), 2011 FC 818, [2011] FCJ 1022). I am not swayed by these cases
as they address extrinsic evidence provided by third parties, which I do not
agree is the case here. The applicant included Mr. Azurin and her eldest son in
her application and she appears to have maintained contact with them throughout
the application process. The evidence shows the applicant was aware of at least
one interview, was aware her application was dependent on its results, and had
been given the opportunity to respond and to clarify the status of her
relationship. The applicant failed to do so. Even if the interviews were
considered to be extrinsic evidence, in Muliadi, the Federal Court of
Appeal believed it was the officer’s duty to inform the applicant of the
negative extrinsic evidence and to give him a fair opportunity of correcting or
contradicting it before making a decision (Muliadi, above, at paras 14
and 16). I am of the opinion this requirement was met when the applicant was informed
of the Manila visa post’s
conclusion and given the opportunity to correct or contradict it. As a result,
I find no breach of procedural fairness arose as a result of not informing the
applicant of the content of the interviews with Mr. Azurin or her son.
B. Did the
officer breach the principles of procedural fairness by not conducting an
interview with the applicant?
[23]
The
applicant argues the officer breached the duty of procedural fairness in this
case by not convoking her for an interview. She relies on Chitterman,
above, where this court found that while there is no general requirement for an
oral hearing, under the special circumstances of determining the bona fides of
a relationship, the only fair way to resolve an immigration officer’s concerns
may be for the officer to convoke a hearing. For its part the respondent
contends that foreign nationals are entitled to a minimum degree of procedural
fairness, that there is no obligation to offer an interview, and that the
officer is under no obligation to apprise the applicant of concerns unless they
are based on extrinsic evidence (Qin, above).
[24]
In
the circumstances, I agree with the respondent that it was not incumbent on the
officer to conduct an interview with the applicant. The applicant was not
entitled to a full hearing (Muliadi, above, at para 16). The applicant
was given sufficient opportunity to clarify the status of her relationship, but
simply failed to do so. When an adequate response was not provided, the onus
did not shift to the officer to pursue the matter further.
C. Did the
officer err in concluding the applicant was in a common-law partnership with
Mr. Azurin?
[25]
The
applicant argues the officer never seriously considered whether the applicant’s
September 2007 letter and accompanying affidavit severed her common-law
partnership, a possibility acknowledged in section 5.37 of Citizenship and
Immigration Canada’s Operation Manual, OP 2 – Processing Members of the Family
Class [the manual]. The manual indicates a common-law relationship is deemed
severed when at least one partner does not intend to continue the conjugal
relationship and that the facts of the case must be examined to determine if
the intent of at least one partner is to stop such a relationship. The
applicant contends that the officer appears to have disregarded her letter and
affidavit from September 2007, instead relying almost exclusively on the
interviews.
[26]
I
must reject the applicant’s argument. First, after receiving the applicant’s
correspondence from September 2007, the CPC must have considered whether she
had severed her relationship since it enquired with her in the October 21, 2008
letter as to whether Mr. Azurin met the definition of a common-law partner or
not. From her response, the CPC concluded that the relationship continued:
December 31, 2008 CAIPS notes describe the applicant’s letter as “confirming
the common-law relationship” (TR at 35). After receiving further information
from the Manila visa post that interviews with the applicant’s son and Mr.
Azurin confirmed the common-law relationship continued, the CPC provided the applicant
a second opportunity to respond. The applicant did not refute the finding
regarding her relationship and acknowledges in her submissions that she
understood herself to be in such a relationship (AR at 153, AMA at para 38). In
light of the applicant’s failure to refute the Manila visa post’s
finding of a continued common-law partnership, it was reasonable for the officer
to reach the same conclusion.
[27]
No
question for certification arises and none was suggested by the parties.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed and
no question will be certified.
“Simon
Noël”
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