Date: 20081104
Docket: IMM-5118-07
Citation: 2008 FC 1227
Ottawa, Ontario, November 04,
2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
HONG BIN CHEN
NI ZHAO
YIZHE ZHAO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Hong
Bin Chen applied for permanent residence at the Canada Consulate General in Hong Kong as a member
of the skilled worker category. Included as family members were his wife, Ni
Zhao, and her son by a previous marriage, Yizhe Zhao. The Visa Officer (the
“Officer”) refused Mr. Chen’s application because the Officer was not satisfied
Mr. Chen answered truthfully about his marriage to Ms. Zhao.
[2]
On
review of the file and the Officer’s report, the Immigration Program Manager
(the “Reviewing Manager”) decided Mr. Chen was inadmissible pursuant to section
40(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27, (IRPA)
because he misrepresented material facts relating to his marriage.
[3]
The
applicants apply for judicial review of these two decisions.
[4]
In
my view, the issues that arise and are dispositive of this judicial review are
as follows:
1. Did the
Officer have jurisdiction to look at the bona fides of a marriage in a
skilled worker application?
2. Did the
Officer deny the applicants procedural fairness in the examination to assess
the bona fides of the marriage?
3. Did the
Officer err in concluding that the adult applicants’ marriage was not genuine?
STANDARD OF REVIEW
[5]
The
question of whether the Officer had jurisdiction to look at the question of the
bona fides of marriage in a skilled worker application involves a matter
of statutory interpretation. This question goes to the fundamental issue of
whether section 4 of the Immigration and Refugee Protection Regulations,
S.O.R./2002-227 (Regulations), confers jurisdiction upon an officer
processing an application in the skilled worker class.
[6]
Given
the fundamental importance of questions of jurisdiction, the standard that must
apply is that of correctness. A reviewing court applying the correctness
standard undertakes its own analysis of the question and asks whether the
decision was correct. Dunsmuir v. New Brunswick 2008 SCC 9 at para. 50.
[7]
Procedural
fairness requires a very high standard of review. In Menon v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1273, the Court held that
procedural fairness is required in the application of section 40(1) of IRPA
on the Regulations where a foreign national was determined inadmissible
for misrepresentation. Procedural fairness therefore applies in respect of the
Reviewing Manager’s decision on Mr. Chen’s inadmissibility. In my view, the
same standard applies in respect of the Officer’s decision based as it is on
the issue of truthfulness involving the same facts and applicant.
[8]
The
process of determining whether a marriage is bona fide is a factual
determination. Factual determinations by the decision maker attract a standard
of reasonableness. An immigration officer assessing an application for
permanent residence is involved in making factual conclusions within his or her
area of expertise. The officer is to be afforded deference with respect to the
finding. Deference requires the courts to give “a respectful attention to the
reasons offered”. Dunsmuir at para. 48.
BACKGROUND
[9]
Mr.
Chen applied for permanent residence in Canada in May
2005. There is no dispute that Mr. Chen, based on his age, education,
experience, language ability and adaptability had a sufficient number of points
to qualify for permanent residence as a member of the skilled worker category.
[10]
Mr.
Chen included as accompanying family members, Ms. Zhao, whom he had married
three months earlier on February 21, 2005, and her son, Yizhe Zhao, who was the
progeny of a previous marriage.
[11]
The
Officer determined that an interview was required because:
a. Mr. Chen had
never been married before his marriage to Ms. Zhao two and a half months before
applying for permanent residence.
b. The
circumstances of the marriage were inconsistent with local and Chinese customs
that an unmarried young man marry a woman eleven years his senior with a
dependant child.
[12]
The
Officer’s concern was whether the marriage was entered into in order for Mr.
Chen to serve as a “courier” husband and stepfather and thereby assist Ms. Zhao
and her son gain admission to Canada as family members.
[13]
The
Officer did not advise Mr. Chen or Ms. Zhao that the purpose for the scheduled
interview was to ascertain whether their marriage was genuine.
[14]
Mr.
Chen claimed to have had a relationship with Ms. Zhao since 1999 while she was
still married to her first husband. He admitted at the interview:
i.
the couple
did not have a wedding banquet;
ii.
neither
wanted their respective parents to know of the marriage;
iii.
Ms. Zhao’s
dependent son did not know of the marriage and referred to her husband as Mr.
Chen;
iv.
Mr. Chen
had not met Ms. Zhao’s brother; and
v.
Mr. Chen
had not brought Ms. Zhao to any of his family’s dinners or gatherings since
their marriage.
[15]
Based
on the interview and information on file the Officer was not satisfied their
marriage was genuine. The Officer concluded the marriage was entered into for
the purpose of helping Ms. Zhao gain admission to Canada with her son
as a member of the family class.
[16]
The
Officer relied on section 16(1) of IRPA which states that a person who
makes an application must answer truthfully all questions for the purpose of
examination. The Officer found that Mr. Chen had not answered truthfully as
required by section 16 of IRPA. The Officer concluded that Mr. Chen would
be denied a visa under section 11(1) of IRPA which requires that prior
to a visa being issued an officer must be satisfied the applicant has met the
requirements of IRPA.
[17]
The
Officer alerted the Review Manager who, after consideration of the record, determined
Mr. Chen was inadmissible pursuant to section 40(1) of IRPA because of
misrepresentation, and consequently, both Ni Zhao and Yizhe Zhao were
inadmissible as accompanying family members. That section states a foreign
national is inadmissible for misrepresentation of material facts that could
induce an error in the administration of IRPA. Section 40(2) provides
that an applicant remains inadmissible for a period of two years.
[18]
After
the Officer’s decision, the applicants sent a package with written submissions
and supporting documents as further proof that their marriage was genuine. The
Officer responded by letter advising the decision had already been made.
ANALYIS
Did
the Officer have jurisdiction to look at the bona fides of a marriage in a skilled
worker application?
[19]
The
applicants submit that the Officer’s determination was not made on the basis of
whether the marriage was invalid but rather on the basis of bad faith by the
applicants. The applicants submit that while it is permissible to assess bona
fides of a marriage in a family class application, there is no statutory
basis to do so in the skilled worker category.
[20]
The
applicants submit that section 13(1) of IRPA and section 4 of the Regulations
must be read in conjunction:
Sponsorship of Foreign Nationals
Right to sponsor family member
13. (1) A Canadian citizen or permanent
resident may, subject to the regulations, sponsor a foreign national who is a
member of the family class.
|
Régime de parrainage
Droit au parrainage : individus
13. (1) Tout citoyen canadien et tout résident permanent
peuvent, sous réserve des règlements, parrainer l’étranger de la catégorie
« regroupement familial ».
|
The Regulations at section 4
state:
|
Division
2
Family Relationships
Bad faith
4.
For
the purposes of these Regulations, a foreign national shall not be considered
a spouse, a common-law partner, a conjugal partner or an adopted child of a
person if the marriage, common-law partnership, conjugal partnership or
adoption is not genuine and was entered into primarily for the purpose of
acquiring any status or privilege under the Act.
SOR/2004-167, s. 3(E).
|
Section
2
Notion de famille
Mauvaise
foi
4. Pour l’application du
présent règlement, l’étranger n’est pas considéré comme étant l’époux, le
conjoint de fait, le partenaire conjugal ou l’enfant adoptif d’une personne
si le mariage, la relation des conjoints de fait ou des partenaires conjugaux
ou l’adoption n’est pas authentique et vise principalement l’acquisition d’un
statut ou d’un privilège aux termes de la Loi.
DORS/2004-167,
art. 3(A).
|
[21]
The
applicants submit that determination of whether a marriage is genuine is
reserved for family class applications only.
[22]
The
applicants further submit that section 85 of the Regulations provide
that as long as a deponent is in fact a family member and the dependant is not
inadmissible, the person is qualified for immigration to Canada accompanying a
qualified skilled worker.
[23]
At
the time of Mr. Chen’s application, Section 85 of the Regulations
stated:
|
Permanent
resident status
85.
A
foreign national who is a family member of a person who makes an application
for a permanent resident visa as a member of the federal skilled worker class
shall become a permanent resident if, following an examination, it is
established that the family member is not inadmissible.
|
Statut de résident permanent
85. L’étranger qui est
membre de la famille de la personne qui présente une demande de visa de
résident permanent au titre de la catégorie des travailleurs qualifiés
(fédéral) devient résident permanent s’il est établi, à l’issue d’un contrôle,
qu’il n’est pas interdit de territoire.
|
[24]
Section
85 has been since amended and now reads:
|
Permanent
resident status
85. A foreign national who is an
accompanying family member of a person who makes an application as a member
of the federal skilled worker class shall become a permanent resident if,
following an examination, it is established that
(a)
the person who made the application has become a permanent resident; and
(b) the foreign
national is not inadmissible.
SOR/2008-202,
s. 1.
|
Statut de résident permanent
85. L’étranger qui est un
membre de la famille et qui accompagne la personne qui présente une demande
au titre de la catégorie des travailleurs qualifiés (fédéral) devient
résident permanent si, à l’issue d’un contrôle, les éléments ci-après sont
établis :
a)
la personne qui présente la demande est devenue résident permanent;
b) il n’est pas interdit de territoire.
DORS/2008-202,
art. 1.
|
[25]
The
applicants submit that the Officer exceeded her jurisdiction by considering the
bona fides of their marriage as nowhere in IRPA does the
legislation indicate that the spouse of a skilled worker is to be assessed
against the criteria of section 4 of the Regulations.
[26]
The
modern principle of statutory interpretation as expressed by Driedger:
Today there is only one principle or
approach, namely, the words of an Act are to be read in their entire context,
in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.
Elmer A. Driedger, The Construction of
Statutes (Toronto: Butterworths, 1974), at p.67
[27]
The
positioning of the bad faith marriage provision at the beginning of the Regulations
instead of within the family class provisions is indicative that the provision
is to apply to all relevant following provisions concerning family provisions.
The language of section 4 is broadly stated beginning with “For purposes of
these Regulations ….”. This wording expresses the legislative intention that
section 4 is to apply to all subject matter addressed in the Regulations
including skilled worker applications as well as family class sponsorship.
[28]
Section
4 imposes consequences if a marriage or relationship is “not genuine” and
entered into primarily for the purpose of acquiring status or privilege under IRPA.
“Genuine” is defined as:
(1) really coming from its stated,
advertised or reputed source; (2) properly so called; not sham; (3) (of an
opinion) etc. sincere; (4) (of a person) free from affectation or hypocrisy. Canadian
Oxford Dictionary, Second Edition, Oxford Press 2004.
[29]
I
take from the definition that the section 4 word “genuine” is directed to an
intention to form a familial relationship rather than a description of the
legality of the marriage.
[30]
Finally,
the closing words of the provision refer to the question of the marriage or
relationship being entered into “for the purpose of acquiring any status or
privilege under the Act”. IRPA and the Regulations
set out a process for acquiring immigrant status with defined criteria and
procedures. Section 4 is directed at maintaining the integrity of IRPA
by preventing the acquisition of immigrant status by subterfuge. The language
of the provision is not limited to a particular process or category referring
as it does to “any status or privilege”.
[31]
In
my review of section 4 in the context of the purpose of IRPA and the Regulations
as a whole, I conclude that it is not limited to family class sponsorships. Section
4 of the Regulations applies to family members of an applicant in the
skilled worker class.
Did
the Officer deny the applicants procedural fairness in the examination to
assess the bona fides of the marriage?
[32]
The
applicants did submit that the Officer’s failure to consider their additional documents
and submissions in the assessment of the bona fides of their marriage was
a breach of procedural fairness. It is clear from the Record that the Officer
considered the genuineness of the marriage as the primary issue when she called
the applicants in for the examination. The examination results were a
significant factor in both the Officer’s and Reviewing Manager’s respective
decisions.
[33]
In
Menon at para. 15, the Court held that a very high standard of
procedural fairness is to be applied in the application of section 40(1) where
a foreign national is determined inadmissible for misrepresentation. I am of
the view that a similar standard of fairness must apply where the issue
involves an examination with respect to section 4 of the Regulations, the
bad faith marriage provision.
[34]
The
applicants had no notice that the marriage issue was vital to their application
for a permanent resident visa. Had the applicants been notified in advance
about this issue, the potential for being denied a permanent resident visa, and
the consequence of being ruled inadmissible, they could have had the
opportunity to obtain additional documents and make focussed submissions to the
Officer.
[35]
I
conclude that the Officer denied the applicants’ procedural fairness when,
having not given advance notice of the purpose of the examination, she did not
afford the applicants the opportunity to supply further documentation and
submissions.
Did the Officer err in
concluding that the adult applicants’ marriage was not genuine?
[36]
Deciding
as I have on the question of procedural fairness, I need not address this
issue.
DECISION
[37]
The
application for judicial review is granted in respect of both the Officer’s
decision that Mr. Chen did not answer truthfully as required by section 16(1)
of IRPA and the Reviewing Manager’s decision that Mr. Chen was
inadmissible pursuant to section 40(1) of IRPA.
CERTIFIED QUESTION OF
GENERAL IMPORTANCE
[38]
The
applicants submit the following question for certification:
In the context of a skilled worker
application assessment, does an officer have the jurisdiction to enquire into
the bona fides of the relationship of the principal applicant and his or
her dependant spouse or partner under s. 40 of the [Immigration and Refugee
Protection Act (“IRPA”)] misrepresentation?
[39]
The
Respondent opposes the question.
[40]
Having
decided this judicial review on the issue of procedural fairness, I consider
the evidence to be factually incomplete. I decline to certify the question as
one of general importance but do so without prejudice to the applicants
advancing the question should there be a subsequent proceeding.
ORDER
THIS COURT ORDERS AND
ADJUDGES that:
1. The
application for judicial review of both the decision of the Visa Officer and
the Immigration Program Manager is granted.
2. The matter is
to be referred back for reconsideration.
3. No costs are
awarded.
4. No question
of general importance is certified.
“Leonard
S. Mandamin”
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