Date: 20110331
Docket: IMM-383-10
Citation: 2011
FC 400
Ottawa, Ontario, March 31, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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NITESH JAMALSINH THAKOR
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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 pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c. 27 (the Act) for judicial review of
a decision of an immigration officer (the officer) of Citizenship and
Immigration Canada (CIC), dated January 5, 2010, wherein the officer denied the
applicant’s application for permanent residence as a member of the spouse or
common-law partner in Canada class because the applicant was
described in subparagraph 125(1)(c)(i) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations).
[2]
The
applicant requests an order quashing the decision of
the officer and remitting the matter back for redetermination by a different
officer.
Background
[3]
Nitesh
Jamalsinh Thakor (the applicant) was born on April 17, 1979 and is a citizen of
India.
[4]
The
applicant entered Canada on June 24, 2005. He
married Lesley Ann Callaghan, a Canadian citizen, on December 8, 2007.
[5]
The
applicant’s marriage license indicates that his spouse was never previously
married. However, the applicant’s spouse was married in 2002 and she applied
to sponsor her first husband in 2003.
[6]
On
June 19, 2008, the applicant’s spouse submitted an application undertaking to
sponsor and support the applicant in which she indicated that she had never
been married, in a common-law or conjugal relationship. She declared all the
information in the undertaking to be complete and correct.
[7]
CIC
interviewed the applicant and his spouse on October 27, 2009. CIC requested
that they bring copies of their marriage license as well as any divorce
certificates, if either of them were previously married.
[8]
During
the interview, the applicant’s spouse admitted that she had in fact been
previously married, that she had attempted to sponsor her husband and that she
was unsure whether she was legally divorced from her first husband.
[9]
The
applicant and his spouse were given until December 5, 2009 to provide a divorce
certificate showing that the applicant’s spouse was divorced at the time of
their marriage. By fax dated December 4, 2009, the applicant’s Member of
Parliament (MP) submitted a request on behalf of the applicant for an extension
of time until the end of January 2010, to provide the document. This fax did
not provide reasons for why the extension was required or what actions had been
taken until that point to obtain the divorce certificate. CIC granted an
extension of time until December 31, 2009. The applicant did not contact CIC
again.
[10]
CIC
refused the applicant’s application on January 5, 2010 for failure to show that
his spouse was not married to another person at the time that the applicant
married her as required by subparagraph 125(1)(c)(i) of the Regulations.
Officer’s Decision
[11]
The
officer found that the applicant had not complied with subparagraph
125(1)(c)(i) of the Regulations which states that a foreign national cannot be
a member of the spouse
or common-law partner in Canada class if either party to the applicant’s
marriage was the spouse of another person at the time of their marriage.
[12]
The
officer found that the applicant had not provided evidence that at the time of
his marriage, his spouse was not married to another person. The officer refused
the application on this basis.
Issues
[13]
The
applicant submitted the following issues for consideration:
1. Did the officer err
in law in the exercise of his discretion by ignoring evidence, misconstruing
evidence and fettering his discretion?
2. Was the application
denied fundamental and natural justice by the conduct of the officer in this
case?
[14]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
breach the duty of fairness to the applicant by not allowing a longer extension
of time to provide the divorce certificate?
Applicant’s Written Submissions
[15]
The
applicant submits that the officer acted unfairly in determining the
applicant’s permanent residence application. The applicant did not know that
his spouse had been previously married and, therefore, did not know the need to
produce a divorce certificate at the October 27, 2009 interview. The officer
was aware that the divorce certificate would need to be obtained from India and should
have provided the time requested to do so.
[16]
The
applicant submits that by providing the applicant a shorter time extension than
that which he requested, the officer fettered his discretion. An individual
fettering of discretion can result in a breach of the duty to act fairly. The
date selected by the officer was arbitrary, especially given that the
application for permanent residence was first submitted in June 2008 and had
already taken approximately seventeen months to be processed. The extra 22 days
requested by the applicant would not have been an inordinate delay in these
circumstances.
Respondent’s Written Submissions
[17]
The
respondent emphasizes that the applicant’s spouse misrepresented her martial
status in her undertaking to sponsor the applicant and apparently in obtaining
her marriage license. Despite the requirement to be truthful on immigration
applications, the applicant and his spouse both stated on their immigration
application and forms that neither had been previously married.
[18]
The
applicant and his spouse were advised that they should bring with them to the
October 27, 2009 interview, a photocopy of any previous divorce certificates.
[19]
The
applicant’s spouse did not tell the truth at the interview about being
previously married until she was confronted with the fact that she had applied
to sponsor her first husband.
[20]
The
respondent submits that the applicant and his spouse were given a reasonable
period to provide the divorce certificate. There is no evidence that the
officer was advised that the applicant would be seeking a document from India. The applicant was
granted a further extension of time, until December 31, 2009, despite the fact
that he provided no explanation for why he needed an extension and what he had
done to try and obtain the document.
[21]
The
applicant did not contact CIC after being given the extension until December
31, 2009 to indicate that it was not sufficient time. He did not contact CIC
after the December 31, 2009 deadline. Due to his own actions, the applicant has
waived any right to now complain about the time extension provided.
[22]
The
Court cannot consider the divorce deed as it was not before the officer in
making his decision. The applicant has not provided any indication of when the
document was requested or received. Assuming the divorce deed is valid, it
indicates at paragraph 7 that the applicant’s spouse was provided with a copy. There
is no evidence that the applicant’s spouse did not have it in her possession
prior to the October 27, 2009 interview.
[23]
The
Federal Court has held that not granting an extension of time does not
automatically amount to breach the duty of fairness.
[24]
The
applicant was under an obligation to produce the requested document. Since it
was not produced, it was open to the officer to refuse the application for the
reasons that he did. The applicant and his spouse were treated fairly.
Analysis and Decision
[25]
Issue
1
What is the
appropriate standard of review?
Where previous jurisprudence has determined
the standard of review applicable to a particular issue before the court, the
reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 57).
[26]
Decisions
of an immigration officer regarding applications for permanent residence under the
family class involve questions of mixed fact and law and the established
standard of review is reasonableness (see Natt v Canada (Minister of Citizenship and
Immigration), 2009 FC 238, 80 Imm LR (3d) 80 at paragraph 12).
[27]
Issue
2
Did the
officer breach the duty of fairness to the applicant by not allowing a longer
extension of time to provide the divorce certificate?
The content
of the duty of fairness varies depending on the facts of each case (see Ha v
Canada (Minister of Citizenship and Immigration), 2004 FCA
49, 236 DLR (4th) 485).
[28]
Mr. Justice Edmond Blanchard
held in Khwaja v Canada (Minister of Citizenship and Immigration), 2006
FC 522, 148 ACWS (3d) 307 at paragraph 17, that the “duty of fairness requires
that an applicant be given notice of the particular concerns of the visa
officer and be granted a reasonable opportunity to respond by way of producing
evidence to refute those concerns.”
[29]
In this case, the issue is
whether or not the applicant was provided a reasonable opportunity to respond to
the concern that at the time of his marriage, his spouse was married to another
person.
[30]
The
applicant and his spouse were notified by CIC in a letter and accompanying
document checklist sent on September 29, 2009 that they were to bring divorce
certificates of any previous marriages to their interview with CIC.
[31]
In
the October 27, 2009 interview with CIC, the applicant’s spouse admitted to
being previously married despite stating the contrary on her sponsorship
undertaking. She and the applicant were provided 30 days to present the divorce
certificate. The day before that deadline arrived, the applicant, through his
MP, requested a further extension of time but did not provide reasons why he
needed the extension or details about what efforts he had taken to obtain the
document. He was nevertheless given an extension until December 31, 2009. The
applicant gave no indication that he could not obtain the document in the time
provided and he had no further contact with CIC.
[32]
The
onus was on the applicant to provide the immigration officer with all necessary
documents to determine the application for permanent residence. The officer was
not required to provide the applicant with several opportunities to satisfy the
officer that the applicant met the requirements of the Act and the Regulations
(see Madan v Canada (Minister of
Citizenship and Immigration), 172 FTR 262, [1999] FCJ No 1198 (FCTD) (QL)
at paragraph 6).
[33]
There
is jurisprudence from this Court that refusing to grant an extension may result
in a breach of the duty of fairness. In Ram v Canada (Minister of
Citizenship and Immigration), 189 FTR 306 (FCTD), Mr. Justice Max Teitelbaum quashed
a visa officer’s decision refusing a request for an additional 30 days to
respond. However, as noted by Deputy Justice Orville Frenette in Anbouhi v Canada (Minister of
Citizenship and Immigration), 2008 FC 284 at paragraph 40 in analyzing Ram above:
It is important to note that
the applicant in that case provided reasons for why the required documentation
could not be obtained within the time granted.
(Emphasis
removed)
[34]
In the particular circumstances of
this case, the applicant’s spouse misrepresented her previous martial status,
the applicant and his spouse had notice to provide any divorce certificates,
the applicant was given two extensions of time to produce the certificate and
the applicant failed to offer reasons for why he was unable to obtain the
document in the time given. Under these circumstances, it was reasonable for
the officer to make his decision refusing the
application for permanent residence based on the information before him on
January 5, 2010. The application for judicial review is dismissed.
[35]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[36]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection
Regulations
(SOR/2002-227)
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125.(1) A foreign national shall
not be considered a member of the spouse or common-law partner in Canada
class by virtue of their relationship to the sponsor if
. . .
(c) the foreign national is the sponsor's spouse and
(i) the sponsor or the spouse was, at the time of their
marriage, the spouse of another person, or . . .
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125.(1) Ne sont pas considérées comme
appartenant à la catégorie des époux ou conjoints de fait au Canada du fait
de leur relation avec le répondant les personnes suivantes :
. . .
c) l’époux du répondant, si, selon le
cas :
(i) le répondant ou cet époux était, au moment de leur
mariage, l’époux d’un tiers,
. . .
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