Date: 20091204
Docket: IMM-1987-09
Citation: 2009 FC 1241
Ottawa,
Ontario, December 4, 2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
AGLAYA
LUGO GARCIA,
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
The narrative is the key and the very source of
understanding the nature of the human condition in a decision. No compromise is
ever to be made in pursuit of accuracy of key facts in the evidence. Just as in
real estate, the key is location, location, location; in jurisprudence, the key
is the story, the story, the story. To leave out key facts may distort
their meaning and, thus, may set aside the key evidence in a decision. To set
aside key evidence is to do away with justice. Without an accurate narrative,
no decision would ever be complete. Even if brief, the summary of key facts
must be complete.
II. Introduction
[2]
[9] …
where
there is relevant evidence that contradicts the tribunal's finding on a central
issue, there is an obligation on the tribunal to analyse that evidence and to
explain in its decision why it does not accept it or prefers other evidence on
the point in question. The greater the relevance of the evidence, the greater
the need for the tribunal to explain its reasons for not attributing weight to
them:
Cepeda-Gutierrez v. Canada(Minister of Citizenship and
Immigration),
(1998) 157 F.T.R. 35, [1998] F.C.J. No. 1425 (QL) (T.D.); Hilo v. Canada(Minister of Employment and Immigration)
(1991),
130 N.R. 236,
15 Imm. L.R. (2d) 199 (F.C.A.).
[10] There is no question that the documentary evidence was highly
relevant to the issue of the genuineness of the marriage. When cross-examined
on her affidavit as to why she made no mention of the documents in her
decision, the officer's response was, in essence, that they were only one piece
of evidence and that she preferred to rely upon the face to face interviews and
her assessment of the spouses' consistency in answer to her questions. Thus it
appears that the officer totally discounted the documents and based her
decision entirely upon the opinion she formed from the interviews. While I
have no doubt that interviews can be an effective tool in uncovering fraud in
the H & C process, the results achieved do not relieve the officer of the
responsibility to properly analyse the other evidence. Her failure to do so
is a reviewable error.
[11] Apart
from that conclusion, I also find it difficult to understand how the
discrepancies cited by the officer were in fact inconsistent, as most are of a
minor nature and easily explained, as indeed, counsel for the applicant did in
subsequent correspondence. The applicant and his wife
answered most of the questions consistently with one another and demonstrated
that they were intimately involved in one another's lives. Applying due
deference to the officer's decision as a whole, it does not stand up to "a
somewhat probing scrutiny." Accordingly, the application will be granted.
(Emphasis added)
(Terigho v. Canada (Minister of
Citizenship and Immigration), 2006 FC 835, 150 A.C.W.S. (3d) 203).
III. Judicial Procedure
[3]
This is an
application for Judicial Review pursuant to paragraph 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of an Immigration Officer,
rendered on April 2, 2009, refusing the Applicant’s claim for permanent
residence from within Canada as the spouse of a protected person or refugee.
IV. Facts
[4]
Following
an interview held with the Applicant, Ms. Aglaya Lugo Garcia, and her husband,
Mr. Joel Velazquez Flores, on March 30, 2009, the Immigration Officer
determined that their marriage was not bona fide.
V. Issue
[5]
Did
the deciding Immigration Officer breach the principles of fairness and draw
erroneous conclusions without regard to the evidence provided in support of Ms.
Lugo Garcia’s application for permanent residence from within Canada as the
spouse of a protected person or refugee?
VI. Analysis
[6]
During
the interview for determination as to whether the couple has a bona fide
relationship, the Immigration Officer asked Ms. Lugo Garcia and her husband if
they preferred to proceed with the interview in English or French, after which,
the couple chose English.
[7]
It
is not clear whether the couple fully recognized the possibility as a right of
requesting an interpreter.
[8]
In
the reasons provided by the Immigration Officer, several of the alleged
inconsistencies might have taken place due to flawed communication between the
parties and the resulting confusion. Ms. Lugo Garcia and her partner may
have been unable to express themselves completely in regard to the validity of
their relationship.
[9]
In
and of itself, this is of such importance, as it touches on the entirety of the
assessment made by the Immigration Officer, that the Court’s intervention is
warranted.
[10]
Furthermore,
the Immigration Officer is required to specify any contradictory evidence that
points to a different conclusion, and explain why this evidence was not
retained. The more important the evidence, and the closer it is related to a
central issue, the more important it is that the Immigration Officer explain
why the evidence is discarded. (In this regard, reference is made to the
Applicant’s Reply Memorandum, dated July 13, 2009).
[11]
This
principle is summarized and explained as follows in this Court’s decision in Simpson
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 970, 150 A.C.W.S. (3d) 457:
[44] While it is true that there is a presumption that the Board
considered all the evidence, and there is no need to mention all the
documentary evidence that was before it, where there is important material
evidence on the record that contradicts the factual finding of the Board, a
blanket statement in the Decision that the Board considered all of the evidence
will not be sufficient. The Board must provide reasons why the contradictory
evidence was not considered relevant or trustworthy…
(Reference is also made to Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35,
83 A.C.W.S. (3d) 264).
[12]
In
the present case, Ms. Lugo Garcia and her husband provided the following
evidence, among other things, to demonstrate that their relationship is bona
fide: marriage certificate; proof of wife’s pregnancy; wedding, vacation
and other photos; receipts from wedding purchases; common utility and telephone
bills; lease of apartment (Exhibits B and C of the Applicant’s Record).
[13]
Despite
the evidence, there is no mention of any of these elements provided by Ms. Lugo
Garcia to prove her ongoing relationship with her husband.
[14]
As
no clear mention is made of evidence that demonstrates elements of a
relationship, an error exists which warrants the intervention of this Court.
[15]
The
Immigration Officer reports several alleged flaws drawn from the interview with
Ms. Lugo Garcia and her husband; however, these alleged contradictions,
namely, errors in certain dates and addresses, may be of a secondary nature.
[16]
During
the interview, due to a language challenge, the Immigration Officer may have concluded
that contradictions arose; these contradictions may have been avoided had an
interpreter been present. It also appears from the affidavits of both Ms. Lugo
Garcia and her husband that they had difficulties in attempting to answer fully
due to the absence of an interpreter. Consequently, Ms. Lugo Garcia’s
right to be heard necessitates the Court’s intervention.
[17]
The
Immigration Officer made no significant mention of any explanations provided by
Ms. Lugo Garcia and her husband to reconcile what the officer considered
to be discrepancies in their testimony.
VII. Conclusion
[18]
For
all of the above reasons, the application for judicial review is allowed and
the matter is remitted for redetermination by a different Immigration Officer.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be allowed and the
matter be remitted for redetermination by a different Immigration Officer.
“Michel M.J. Shore”
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