Date: 20081231
Docket: IMM-5356-07
Citation: 2008 FC 1418
Ottawa, Ontario, December 31, 2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
EMMANUEL
VALERA VALVERDE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application by Emmanuel Valera Valverde (Mr. Valera) challenges a decision
by the Respondent denying his claim to permanent resident status.
I.
Background
[2]
In
May 2007, the Canada Border Services Agency received an anonymous call
indicating that Mr. Valera had separated from his immigration sponsor, Elizabeth
Amador. This allegation led Citizenship and Immigration Canada to conduct
separate interviews with Mr. Valera and Ms. Amador enquiring mainly
about their recent common activities. As the result of some perceived factual
inconsistencies in their answers, the decision-maker (Officer) concluded that
their marital relationship was not genuine and Mr. Valera’s claim to
permanent residency status was accordingly denied.
[3]
The
question that must be resolved on this application is whether the Officer’s
conclusion was reasonable having regard to the evidence she relied upon.
The Decision
Under Review
[4]
The
Officer’s notes are quite cryptic but they are sufficient to understand the basis
for her decision. The Officer began by confronting the parties with the
anonymous information alleging their estrangement. Both Mr. Valera and
Ms. Amador denied this allegation. The Officer’s notes also set out the
details of their respective interviews and concluded with the following:
Sponsor did not have any evidence living
at 106 Goldsboro save a letter from the
landlord. Did interview with them (marriage) not satisfied they are
co-habiting. Discrepancy in answers e.g. Thanksgiving, his birthday, when last
time they had sex. Not satisfied with marriage bona fides….
II. Issues
[5]
Having
regard to the evidence, was it reasonable for the Officer to conclude that this
relationship was not genuine?
III. Analysis
[6]
Notwithstanding
the deference owed to decisions regarding the genuineness of a marriage, I am
satisfied that the Officer erred in reaching her conclusion that
Mr. Valera and Ms. Amador were not co-habiting. There is no doubt
that the Officer was entitled to weigh the evidence and to draw reasonable
conclusions from the evidence, but the evidence must reasonably support the
conclusions reached. Here it did not.
[7]
The
Officer perceived that the parties had provided inconsistent answers to her
questions during their separate interviews and, on that basis, she found that
they were not living together. Upon close examination it is apparent that what
the Officer found to be inconsistent answers amounted, at most, to inconclusive
ambiguities. The three principal “inconsistencies” noted by the Officer
involve responses to questions about their recent sexual activity and about their
activity on the Thanksgiving holiday and on Mr. Valera’s birthday. Those
exchanges are set out below:
Q. What did you do for
Thanksgiving?
A. (Mr. Valera) We
did nothing. We stayed home.
A. (Ms. Amador) We ate
turkey. We went to my parent’s house.
[…]
Q. Last time had sex?
A. (Mr. Valera)
Last week. I don’t remember.
A. (Ms. Amador) On the
weekend.
[…]
Q. Birthday (his)?
A. (Mr. Valera) We
went out. Eat something. She did not give me gift.
A. (Ms. Amador) 27/08/81.
We made a party. People were at the party. We rented a place at Jane and
Wilson.
[8]
While
counsel for the Respondent argued with some justification that Mr. Valera
and Ms. Amador were not particularly forthcoming in their responses, the
fundamental problem with this evidence is the Officer’s failure to ask rather obvious
supplementary questions which would have clarified any perceived inconsistencies.
For example, one cannot tell from the Thanksgiving exchange if the answers
pertained to Thanksgiving Day (Monday) or to their celebration of Thanksgiving,
which may well have been on the preceding Sunday. Without that point being
clarified by further questions, it is possible to reconcile the two answers.
[9]
The
exchange concerning the parties’ last sexual activity is admittedly vague but
it is not inconsistent. The subject interviews were on a Thursday. Sexual
activity on the prior Saturday would be consistent with both answers given.
[10]
Similarly,
Mr. Valera’s response that they had gone out to eat on his birthday is not
in conflict with Ms. Amador’s answer that they had arranged a party at a
place at Jane and Wilson. In order to elicit meaningful responses on this
point several obvious supplementary questions should have been asked of
Mr. Valera such as “Where did you go?” and “Who were you with?”. In the
absence of clarifying information one is left with inconclusive, but not
inconsistent, answers.
[11]
A
review of the entire transcript of these interviews discloses one or two
additional but minor inconsistencies. Many other answers are consistent and
suggest a genuine relationship between Mr. Valera and Ms. Amador.
[12]
Where
the parties to a claimed relationship offer generally concordant answers during
their respective interviews, it is dangerous to place too much significance on
a few relatively minor inconsistencies about common activities and interests.
One is reminded of the Lerner and Loewe lyrics from the song “I Remember It
Well” pointing out that marital memories can be fleeting.
[13]
I
would add that it is not entirely clear to me whether the Officer’s notes constitute
a verbatim account of the interviews or an attempt at paraphrasing. Given the
importance of such interviews to the interests of an applicant, it would be
good practice to record all such exchanges. If the Officer’s notes in this
case are a precise record of the interviews, they do reflect a certain lack of
comfort with English by the parties, which may explain the paucity of detail
provided.
[14]
Nothing
in the Officer’s decision suggests that she was influenced by the anonymous tip
which led to the investigation into the bona fides of this relationship
and, in the result, I draw no such inference. Suffice it to say that information
of this type may provide a basis for an investigation but it is inherently
unreliable and should almost always be entirely disregarded in the process of
making a decision: see Redman v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 1568 (F.C.). I am also satisfied that the
Officer treated the parties fairly by disclosing the substance of this
information at the outset of their interviews and by allowing them each to
respond to it.
IV. Conclusion
[15]
In
conclusion, this decision must be set aside. If the Respondent continues to
have reservations about the legitimacy of this relationship, a fresh and
thorough investigation will be required, to be carried out by a different
decision-maker.
[16]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed and the
decision under review is set aside.
“ R. L. Barnes ”
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