Date: 20071114
Docket: IMM-6393-06
Citation: 2007 FC 1181
Toronto, Ontario, November 14, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
PHANG
SOKPHEARUM
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a
decision of an Immigration Program Manager (the decision maker) stationed at
the Visa Section of Singapore, dated November 21, 2006, denying the applicant’s
request for humanitarian and compassionate consideration (H & C) pursuant
to subsection 25(1) of the Act.
Background
[2]
Khorn
Huong (the sponsor) has been the applicant’s alleged wife since June 22, 2006.
She submitted an application to sponsor the applicant under the spousal class
but was found to be ineligible because she had already sponsored a spouse (an ex-spouse
who filed for divorce on March 21, 2006) and her three year undertaking in that
sponsorship will not expire until April 4, 2008.
Decision
under Review
[3]
The decision maker determined that the H & C
considerations did not justify granting permanent residence to the applicant or
exemption from any applicable criterion and obligation of the Act. This is not
only because of her doubt that the relationship between the applicant and his
sponsor was bona fide, but also due to the fact that his sponsor’s
previous marriage was probably one of convenience. In addition, the decision maker
was not convinced that the applicant was the father of the child his sponsor
was carrying.
Issue for
Consideration
[4]
Did the decision maker breach the duty of procedural
fairness owed to the applicant or make an unreasonable finding of fact?
Standard of
Review
[5] In Terigho v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1061, Justice Richard Mosley
discussed the standard of review for such decisions at paragraphs 6 and 7:
The
appropriate standard of review for decisions made under section 25 is
reasonableness. Considerable deference should be accorded to immigration
officers exercising the powers conferred by the legislation, given the
fact-specific nature of the inquiry, its role in the statutory scheme as an
exception, the fact the decision-maker is the Minister, and the wide discretion
evidenced by the statutory language: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.
Reasonableness is not about whether the decision maker came to the right result. As
stated by Justice Iacobucci in Canada (Director of
Investigation and Research) v. Southam, [1997] 1 S.C.R. 748 at
paragraph 56, an unreasonable decision is one that, in the main, is not
supported by any reasons that can stand up to a somewhat probing examination.
Accordingly, a court reviewing a conclusion on the reasonableness standard must
look to see whether any reasons support it. See also Law Society
of New Brunswick v. Ryan, 2003 SCC 20 at paras 55-56.
[6]
However, issues concerning procedural fairness should be
reviewed on a standard of correctness (See e.g. Shripnikov v. Canada
(Citizenship and Immigration), 2007 FC 369, at paragraph 19).
Analysis
[7]
The applicant alleges that the decision maker did not give
him an opportunity to address his concerns regarding the fact that he was a bona
fide student or that the relationship with his sponsor was not bona fide
since the previous marriage of the sponsor was probably not genuine. Finally,
the applicant alleges that he ought to have been given an opportunity to
address the decision maker’s doubts about the applicant being the father of the
sponsor’s child who was born January 31st, 2007.
[8]
On an H & C application for exemption, the onus of
establishing his claim is on the applicant. Although it is true that the birth
certificate cannot be obtained before the child is born and DNA testing might
have been hard to obtain at that stage, I can find no breach of procedural
fairness concerning the observations of the decision maker concerning the lack
of evidence that the applicant is the father of the child.
[9]
The decision maker relied on the decision of the visa
officer concerning the student visa, which was denied because he was determined
not to be a bona fide student. The applicant was well aware of that
decision and I cannot believe that the applicant and his sponsor were not aware
of the content of their own application forms, signed by them. The applicant
even had the help of an interpreter to complete his form.
[10]
Neither the applicant nor the sponsor has had the
opportunity to be interviewed.
[11]
The respondent relies on the Federal Court of Appeal’s
decision Owusu v. Canada (Minister of Citizenship and Immigration), 2004
FCA 38, which states at paragraph 8:
H & C applicants have no right or
legitimate expectation that they will be interviewed. And, since applicants
have the onus of establishing the facts on which their claim rests, they omit
pertinent information from their written submissions at their peril. […]
[12]
On the other hand, in Hakrama v. Canada (Minister of Citizenship
and Immigration), 2007 FC 85, Mr. Justice John A. O'Keefe
held, at paragraph 23 :
Upon review of the officer’s notes and the file material, I
cannot determine what facts would support the officer’s finding that the
marriage was not bona fide. The fact that a couple do not have a joint
bank account or do not have both of their names on utility bills does not mean
that their marriage is not bona fide. There were documents before the
officer which indicated that the couple were married and lived together. If the
officer doubted the credibility of the documentary evidence presented to show
that the couple were in a bona fide marriage, the officer should have
called them in for an interview, since there was no factual evidence to show
that they were not married.
[13]
Unlike the case cited above, the applicant never requested
an interview and the decision maker wrote in the CAIPS notes :
While the above may
give the impression that the current relationship may be genuine, the many
inconsistencies on file and PA’s negative history with our department suggest
otherwise.
For example, as late
as March 2006, PA re-applied for a student permit in Bangkok.
Throughout his application he failed to mention about sponsor and his
relationship with her. This is not consistent with a bona fide relationship.
PA was considered a
non bona fide student. His English was poor despite having been on student
permit for a few years. Obviously he was not attending classes.
[14]
In my opinion, the decision maker had sufficient facts
before her to support the finding that the relationship was not genuine.
[15]
Unlike the case cited above, this was not the first
marriage of the sponsor. Moreover, the fact that the sponsor sent the marriage
certificate of her previous sponsorship application in December 2004 while the
applicant declared in the “Sponsored spouse/partner questionnaire” at question
11, that she introduced him to her Brother on October 31st, 2004
gives a factual basis to the decision maker not to believe the sponsor’s first marriage
to be genuine.
[16]
It has been held by Justice Richard Mosley in Bui c. Canada (Ministre de la
Citoyenneté et de l'Immigration), 2005 CF 816, at
paragraph 13:
I am satisfied that there was no breach of procedural
fairness in this case. Mr. Bui was given sufficient opportunities to present
evidence relevant to his application and what he submitted was fully and fairly
considered. That he received poor advice from the paralegal he first consulted
is unfortunate, but he chose that counsel. It is not sufficient to say now that
he did not know what was being filed over his signature: Cove v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 266. It was his responsibility to ensure that the
information was accurate. The officer cannot be faulted for not convening an
interview to determine what was false and what was accurate in his written
submissions.
[17]
In the case at bar, the applicant is trying to explain
information given by him and his sponsor previously. In his affidavit submitted
in support of this application for judicial review, the applicant swore that he
moved in with his sponsor in July 2005. The applicant, in the “Sponsored
spouse/partner questionnaire” wrote at question 9: “On 18 February 2005 we
cohabite at Hamilton”. He signed this form and
had the help of an interpreter when he completed the questionnaire. In the
“Sponsor questionnaire – Sponsorship of a spouse, common-law partner or
conjugal partner”, at question 12, the sponsor declared: “I have cohabited with
my husband Phang Sophirum since February 18, 2005 until July 15, 2006”.
[18]
The applicant further explains, in his affidavit, the fact
that he did not mention his relationship with his sponsor in his March 28, 2006
interview held in Bangkok –
concerning his application for a student visa – was because he only got married
to his sponsor June 22, 2006. I would like to point out that it appears from
the CAIPS notes dated April 25, 2006 (so less than a month later and still
before the wedding) that during another interview for a student visa held in Singapore, the applicant actually did speak about
his fiancée and I quote:
Stated he left Cda on
15MAR for home visit as he needed to tell his parents that he wants to get
married in JUL06 in Cda. HOF has not been attending lessons for 6 weeks, he does not
know the vacation schedule of school in Cda.
[19]
Thus, I find that the explanation submitted by the
applicant is incoherent and of no help to his case. Even if a breach of
procedural fairness was found in the case at bar, it is clearly a case where
further written submissions or an interview would have led the decision-maker
to the same conclusion.
[20]
I am not convinced that the decision maker made a
reviewable error in not allowing an interview in this case.
[21]
The Applicant cannot suggest that the visa officer did not
take into consideration some important pieces of evidence like photographs of
the wedding, list of phone calls made in Cambodia. In fact, the visa officer had no obligation to mention all pieces of evidence
and to comment on each of them. The decision is based on all the evidence
provided. Photographs of a wedding could be evidence of such a ceremony; nevertheless,
it does not prove per se that the relationship between the sponsor and
the applicant was a genuine or bona fide relationship.
[22]
This is not a case where the decision maker disregarded to
the evidence before her, but one where the presumption that all the material
has been considered has not been rebutted (Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425
at paragraph 16 (QL).
[23]
Essentially, the applicant is asking this Court to consider
the concerns raised by the decision maker in her decision and the explanations
provided by the applicant in this judicial review, and to re-weigh the evidence
to come to a different conclusion. It is not the place of this Court to do so.
Having carefully considered the decision of the decision maker, I cannot
conclude that the decision maker based her decision on an erroneous finding
of fact that was made in a perverse or capricious manner or without regard for
the material before her.
[24]
For the above reasons, the judicial review is dismissed.
[25]
Neither counsel provided a question for certification.
JUDGMENT
THIS
COURT ADJUDGES that:
1.
The application is denied.
2.
There is no question for certification.
“Pierre Blais”
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