Date:
20130731
Docket:
IMM-11989-12
Citation:
2013 FC 833
Ottawa, Ontario,
July 31, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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IKECHUKWU OBI
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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]
The
applicant seeks judicial review of a decision by an immigration officer
(Officer) refusing his application for permanent residence in Canada on humanitarian and compassion (H&C) grounds. I have concluded that the Officer’s
decision was based on speculation and was made without regard to the relevant
evidence. I have also concluded that the Officer fettered his discretion in
considering the application before him. The application is therefore granted.
Background
[2]
The
applicant is a citizen of Nigeria and has lived in Gambia since 1993. He met
his wife, Ms. Shylon, in 1998, after she had fled to the Gambia to escape civil war in Sierra Leone.
[3]
Prior
to their marriage, Ms. Shylon was referred to Canada for resettlement by the
United Nations High Commissioner for Refugees (UNHCR) as a woman at risk. A
Canadian immigration officer interviewed Ms. Shylon on March 2, 2000. The
interview notes indicate that the only topic for the interview was Ms. Shylon’s
experience during the civil war. The notes corroborate her evidence that she
was not asked whether she was in a relationship. The officer concluded that
her application should be processed quickly because she had a child as the
consequence of being raped by a rebel during the war.
[4]
Ms.
Shylon married the applicant on April 15, 2000 and subsequently advised a UNHCR
official. That official told her to sponsor her husband for permanent
residence after she landed in Canada. Apart from the interview of March 2,
2000, she dealt exclusively with the UNHCR prior to her immigration to Canada and only received her visa documents immediately prior to traveling.
[5]
Ms.
Shylon’s evidence is that she advised an immigration official that she was
married the morning she arrived in Canada, after landing. That official told
her to sponsor the applicant once she paid off her transportation loan.
[6]
The
applicant applied for permanent residence in Canada as a member of the family
class in 2003. The application was refused in 2005 because Ms. Shylon had
not disclosed their marriage before being granted permanent residence status. The
applicant is now excluded from sponsorship in the family class pursuant to paragraph
117(9)(d) of the Immigration and Refugee Protection Regulations,
SOR/2002-227.
[7]
Ms.
Shylon has remained in Canada with her daughter but maintains her relationship
with the applicant. She became a Canadian citizen on June 8, 2011.
Decision Under
Review
[8]
The
applicant submitted an application in 2011 requesting H&C consideration
pursuant to subsection 25(1) of the Immigration and Refugee Protection Act,
SC 2001,
c 27
(IRPA).
His counsel submitted that there were compelling reasons to allow the
application, including the fact that Ms. Shylon had experienced trauma and
torture during the civil war, was unaware that she needed to disclose her relationship
and followed the guidance of persons in authority.
[9]
Ms.
Shylon was interviewed on January 17, 2012 and the interviewing officer
recommended a positive decision. The interviewer accepted that Ms. Shylon had
not been asked about her relationship prior to coming to Canada and had attempted to declare her marriage to an UNHCR official. The interviewer also
accepted that there was no reason she would have tried to circumvent the law
and that their relationship was stable and genuine. Finally, the interviewer
noted that Ms. Shylon
and the applicant may have difficulty reuniting in the Gambia or Nigeria as Ms. Shylon does not have status in those countries.
[10]
The
Officer responsible for deciding the case disagreed with this assessment and
refused the application. In the decision letter, the Officer stated that he
gave “…significant weight to the policy objective of preserving the integrity
of the immigration system.” He stated that Ms. Shylon failed to provide
compelling reasons or a reasonable rationale for failing to disclose her
marriage.
[11]
The
notes in the file complete the Officer’s reasons. He wrote, “I find the
sponsor’s submission that she was unaware of her obligations to declare a
change in martial status during the processing of her application to be
credible.” However, the next sentence reads, “The evidence supports a
conclusion that the sponsor chose not to declare this dependant spouse at the
time of her landing.”
[12]
For
the purpose of this judicial review, the Officer has provided an affidavit
attempting to explain the contradiction in the above notes as a typographical
error. He states that he does not remember the applicant’s case specifically
but believes that he concluded that the applicant was not credible. Affidavits
sworn after the decision has been made are routinely rejected as ex post
facto attempts to bolster weak reasoning or to patch-up omissions. In this
case, even were the affidavit allowed into evidence, it would not save the
decision.
Analysis
[13]
The
issue for this judicial review is whether the Officer erred in denying the
H&C application. The standard of review is reasonableness: Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The H&C
application process provides relief from unusual, undeserved or
disproportionate hardship. An immigration officer must weigh the factors
favouring family reunification in Canada against public policy concerns arising
from a misrepresentation: Kisana v Canada (Minister of Citizenship and
Immigration), 2009 FCA 189, para 27.
First
Ground - Deliberate Concealment
[14]
The
Officer based his decision largely on a finding that Ms. Shylon’s nondisclosure
was intentional. In doing so, he departed from the conclusions of the
Immigration Appeal Division and the interviewer, both of which found that the
nondisclosure was inadvertent.
[15]
The
Officer found that Ms. Shylon had a significant incentive to conceal her
marriage, namely the possibility that she would not have been resettled in Canada had it been known that she was no longer a single mother. The existence of a
motivation to lie is only one factor to be considered in assessing
credibility. While relevant, it is not determinative: R v Batte, [2000] OJ
No 2184, 49 OR (3d) 321, paras 120-121 (ONCA). All H&C
applicants, and their sponsors, will have an interest in the outcome of their
case. Their testimony may not be rejected for this reason alone. In this
case, the Officer provided no further basis for disbelieving Ms. Shylon.
Therefore, it was unreasonable to find that she had lied in her interview.
[16]
Additionally,
there is no evidence in the record that Ms. Shylon’s resettlement in Canada actually depended on her being unmarried, much less that she knew this was the case.
The interview notes from March 2000 indicate that her file was prioritized
because of her daughter, not her martial status.
[17]
The
uncontroverted evidence in the record is that Ms. Shylon disclosed her marriage
to a UNHCR official prior to being granted a visa. Her evidence was that the
UNHCR official told her to sponsor her husband after landing. This is
inconsistent with an attempt to conceal her marriage. It is also
uncontroverted that she received her visa immediately prior to her departure
for Canada. The reasons for the decision and the notes in the file do not
indicate that the Officer considered this evidence in concluding that she had
intentionally concealed her marriage.
[18]
The
heart of the Officer’s decision was a finding of deliberate concealment by Ms.
Shylon of her marital status. The interviewer who had recommended that the
application be granted stated that, “it appears that the sponsor was not asked
this question by the officer who granted her PR status.” Nonetheless, the Officer
concluded that “the evidence supports a conclusion that the sponsor chose not
to disclose the dependent spouse at the time of landing.”
[19]
The
officer who interviewed the applicant accepted that she had attempted to inform
officials about her marriage at various points in the immigration process. The
interviewer considered the applicant to be credible and was in the best
position to make this assessment, having questioned her personally. While the
decision maker is not bound by the interviewer’s conclusions, it is
unreasonable to discount them in circumstances such as this, where the
documents and testimony support the interviewer’s findings. A unilateral
statement of disagreement is insufficient. Some explanation rooted in the evidence
is required.
Second
Ground – Fettering of Discretion
[20]
There
is a second, independent ground on which the decision should be set aside.
[21]
The
reasons make very clear that the Officer considered the misrepresentation to be
the paramount and controlling factor in the exercise of his discretion. While
misrepresentation and conduct are relevant considerations in the exercise of
H&C discretion, they are not determinative. This point has been made
consistently, but from different perspectives by judges of this Court.
[22]
Justice
Yves de Montigny situated the relationship between section 25 and inadmissibility
findings in the broader context of the role section 25 plays in discharging Canada’s obligations under international human rights law. He observed in Sultana v Canada (Minister of Citizenship and Immigration), 2009 FC 533, at paragraph 25:
That
being said, one must not forget that the presence of section 25 in the IRPA has
been found to guard against IRPA non-compliance with the international
human rights instruments to which Canada is signatory due to paragraph 117(9)(d):
de Guzman v. Canada (Minister of Citizenship and Immigration),
2005 FCA 436 (CanLII), 2005 FCA 436, [2006] 3 F.C.R. 655, at paragraphs
102–109. If that provison is to be meaningful, immigration officers must do
more than pay lip service to the H&C factors brought forward by an
applicant, and must truly assess them with a view to deciding whether they are
sufficient to counterbalance the harsh provision of paragraph 117(9)(d).
As my colleague Justice Kelen noted in Hurtado v. Canada
(Minister of Citizenship and Immigration), 2007 FC 552 (CanLII), 2007 FC
552, at paragraph 14, “if the applicant’s misrepresentation were the only
factor to be considered, there would be no room for discretion left to the
Minister under section 25 of the Act.” This is indeed recognized in the Overseas
Processing Manual (OP), Chapter OP 4: Processing of Applications under
Section 25 of the IRPA, Appendix F, where officers are reminded that they
should ensure “that their H&C assessments go beyond an explanation as to
why applicants are described by R117(9)(d) to consider the positive factors an
applicant has raised in support of his/her request for an exemption from
R117(9)(d).”
[23]
In
Phung v Canada (Minister of Citizenship and Immigration), 2012 FC 585,
Justice Richard Mosley referred to Sultana and set aside a decision
refusing H&C relief where the officer allowed his appreciation of the
H&C factors to be “coloured “ by the misrepresentations and fixated on the
applicant’s prior immigration history to the exclusion and detriment of other
relevant considerations.
[24]
An
officer considering an H&C exemption starts from the premise that the
applicant has already been deemed inadmissible. The integrity of the immigration
system has been maintained by the exclusion order itself. What is in issue,
rather, is whether there are circumstances which warrant relief from the usual
consequences of the IRPA. As my colleague Justice Catherine Kane
pointed out in Kobita v Canada (Minister of Citizenship and Immigration),
2012 FC 1479 at paragraph 29, at this stage it is not disputed that the
applicant is not a member of the family class and is inadmissible, such that “…it
appears to defeat the purpose of that section to dwell on the fact that the
applicant is inadmissible as part of the H&C considerations.”
[25]
In
this case, the Officer did indeed dwell. Apart from a reference en passant
to the best interests of the child, he noted, and gave “significant weight” to
the misrepresentation. In fact, in the course of a brief decision, he
mentioned that he was giving “significant weight” to this factor on two
occasions. The decision does not demonstrate the identification of relevant
criteria and their subsequent weighing and balancing, characteristic of sound
decision making.
[26]
In
sum, the decision does not stand up against the standard of reasonableness. It
was unreasonable to conclude that Ms. Shylon was not to be believed simply
because she had a motive to lie, and it was unreasonable to reject an H&C
application on the basis of a misrepresentation without considering the full
range of relevant criteria.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review
is granted and the decision is set aside. The matter is remitted to a
different immigration officer for reconsideration. There is no question for
certification.
"Donald J.
Rennie"
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