Docket:
IMM-7254-13
Citation:
2014 FC 551
Ottawa, Ontario, June 6, 2014
PRESENT: The
Honourable Mr. Justice Rennie
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BETWEEN:
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MARGARET MONICA TRAVERSE
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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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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant sponsored Mr. Deloof for a
permanent resident visa as a member of the conjugal partner class. However,
the visa officer found that the applicant and Mr. Deloof were not in a
“conjugal relationship” within the meaning of section 2 of the Immigration
and Refugee Protection Regulations (SOR/2002-227) (IRPR). The
applicant appealed that decision to the Immigration Appeal Division of the
Immigration and Refugee Board (the Board). The Board dismissed the appeal,
similarly, on the basis that the applicant’s relationship with Mr. Deloof was
not a conjugal relationship. The applicant brings this judicial review
application to set aside that decision of the Board.
[2]
The judicial review is granted. Though I
conclude that the Board reasonably found no conjugal relationship, I ultimately
grant the judicial review for a breach of procedural fairness relating to the
manner in which the Board handled one aspect of the hearing.
II.
Key Facts
[3]
The applicant is a Canadian citizen. Mr.
Deloof, whose visa application she sponsored, is a citizen of Belgium. The applicant identifies Mr. Deloof as her partner in her application.
[4]
The applicant and Mr. Deloof met online in July
2008 and in person in September 2008. At the time, Mr. Deloof had been working
in Canada as a driver of heavy trucks under a work permit that was valid from
May 2008 – May 2010. However, in October 2008, Mr. Deloof was convicted for
impaired driving. As a result of his conviction (and the corresponding
two-year prohibition from driving), he was no longer able to work as a truck
driver. Further, a section 44 Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA) report was prepared, alleging that he was inadmissible
to Canada for criminality. A deportation order was issued on December 19,
2008.
[5]
Given his conviction, the applicant suggested
that Mr. Deloof live with her in her home in Truro, Nova Scotia. He did so
from mid-November 2008 until January 2, 2009, when he left Canada.
[6]
Since his departure, the applicant has been to
visit Mr. Deloof in Belgium three times: in April 2009, for about four weeks;
in 2010, for about three months; and from December 2011 to the end of January
2012. This last visit was cut short due to the death of the applicant’s
mother.
[7]
Throughout their five year relationship the
applicant and Mr. Deloof have cohabited for approximately seven months. They
are not married and have no children. The applicant has significant physical
limitations and reduced mobility, as a result of which she has been unable to
work since 2000. This condition explains her lack of travel in recent years.
Friends and family perceive them to be a “couple,” and the applicant was
significantly involved in Mr. Deloof’s legal proceedings.
[8]
In dismissing the appeal the Board wrote:
What are even more significant and alarming are
the appellant’s statements about the possibility of marrying the applicant.
Aside from the issue of the procedures in Belgium, the appellant stated that
there had been no question of marriage because her personal preference would be
to live with the applicant for at least one year before marrying him.
[…]
[T]he most relevant factors for assessing an
individual’s level of commitment to their partner are still the financial commitment
and the effort made to spend as much time as possible with that partner,
despite the difficulties and obstacles encountered. Given the evidence, the
panel is not at all satisfied that within the context of a five-year
relationship, the effort made by the appellant and the applicant reflects the
level of commitment of a married couple.
[9]
However, in coming to that conclusion, the Board
also summarily dismissed one of the applicant’s witnesses from providing
testimony (described in greater detail below).
III.
Issues
[10]
There are two issues in this case.
1.
Whether or not the Board made a reviewable error
in its assessment of the alleged conjugal relationship between the applicant
and Mr. Deloof.
2.
Whether or not the Board violated the
applicant’s procedural rights by not permitting one of her witnesses to provide
testimony.
IV.
Standard of Review
[11]
Reviewing the Board’s decision regarding the
conjugal relationship is subject to a standard of reasonableness. There could
be different opinions, simultaneously reasonable, based on the facts as found,
that the relationship was or was not conjugal. A reasonable decision must be
defensible in respect of the facts and the law, and reflect an intelligible,
transparent justification and application of the law to those facts: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para
59; Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47.
[12]
However, a violation of procedural fairness –
the second issue – is subject to a standard of correctness: Turner v Canada (Attorney General), 2012 FCA 159 at para 38.
V.
Analysis
A.
The Board Reasonably Assessed the Absence of a
Conjugal Relationship
[13]
“Conjugal partner” is defined at section 2 of
the IRPR and means:
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[I]n relation to a
sponsor, a foreign national residing outside Canada who is in a conjugal
relationship with the sponsor and has been in that relationship for a period
of at least one year.
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À l’égard du répondant, l’étranger résidant à l’extérieur du
Canada qui entretient une relation conjugale avec lui depuis au moins un an.
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[14]
The Board approached the issue of whether the
parties were in a conjugal relationship by following M v H, [1999] 2 SCR
3, which specifies seven non-exhaustive criteria, namely:
a)
shared shelter;
b)
sexual and personal behaviour;
c)
services;
d)
social activities;
e)
economic support;
f)
children; and
g)
societal perception of the couple.
[15]
The applicant takes issue with these criteria
because they were established in the context of conjugal partners who live in
the same country (M v H arose under the Ontario Family Law Act).
In particular, the applicant argues, convincingly, that the Board failed to
tailor them to the unique circumstances of this case where the applicant cannot
travel to Belgium by reason of her disability, and Mr. Deloof cannot travel to Canada because of the outstanding section 44 order. That being said, applying these
established principles, with adequate sensitivity to the unique context of
partners living in separate countries, is reasonable.
[16]
The panel relied on the M v H criteria
and applied them reasonably in their decision.
[17]
In this case, the Board considered evidence from
the applicant which established that:
a)
They are not married;
b)
They do not have children;
c)
They shared shelter minimally and intermittently
for at most seven months during five years;
d)
Have been intimate and are perceived by their
friends as a couple;
e)
Shared some social activities while visiting one
another;
f)
Provided economic support for visits and these
legal proceedings but do not share any assets or rely on each other for
financial support;
g)
Have not seen one another since January 2012;
and
h)
That Ms. Traverse had not made significant
efforts to obtain any status in Belgium.
[18]
In light of that evidence, the Board concluded
that the couple’s efforts did not reflect the level of commitment of a married
couple. In their view, the evidence supported, at best, a plan to have
a conjugal relationship in the future: Gibbs v Canada (Minister of
Citizenship & Immigration), 2004 CarswellNat 6212. Indeed, the
applicant’s evidence before the Board was that she only wishes to adopt
marriage-like attributes, such as combining assets, on the condition that Mr.
Deloof moves to Canada, suggestive of an intention to form a conjugal
relationship, rather than one having already crystallized.
[19]
I accept the applicant’s argument that the
underlying decision is not perfect. It appears to mischaracterize the
applicant’s health condition and reduced mobility, which informs her
explanation for not having visited Mr. Deloof in recent years. Additionally,
the underlying decision may have placed inordinate emphasis on factors from M
v H like combining finances and common shelter given that those factors are
clearly more difficult for partners living apart to satisfy – especially when
those partners have physical and legal barriers to being together. However,
perfection is not the controlling standard. Despite these gaps in the
consideration of the evidence, when the decision is assessed in the context of
the evidence as a whole, no reviewable error arises from the conclusion that
they were not in a conjugal relationship. A reasonable test was applied
through a reasonable weighing of various factors in the complicated assessment
of a conjugal relationship.
B.
The Board Breached the Applicant’s Right to
Procedural Fairness
[20]
A second challenge to the decision arises from
the summary decision of the Board not to hear a witness. Late in the day, near
6:00 p.m., the applicant asked to call a witness. The witness had been
excluded from the hearing throughout the day. The transcript reads:
BY PRESIDING MEMBER (to appellant)
- Do you want to have your friend in?
BY APPELLANT (to
presiding member)
- Yeah.
BY PRESIDING MEMBER (to appellant)
- I don’t have any questions for her.
BY APPELLANT (to
all)
- Nobody’s got questions for her?
BY PRESIDING MEMBER (to appellant)
- I don’t have, but I’m not sure if the Minister’s counsel
would have any questions for her.
BY MINISTER’S COUNSEL (to presiding
member)
- No.
BY APPELLANT (to presiding member)
- I have only a few questions, it’ll be very quick.
BY PRESIDING MEMBER (to appellant)
- It’s about what, because if it’s admitted by the
Minister’s counsel then there is no need to.
BY APPELLANT (to presiding member)
- I’m sorry?
BY PRESIDING MEMBER (to appellant)
- What exactly she will come to say in general?
BY APPELLANT (to presiding member)
- What I want her – well, basically what I want her to say
(inaudible) ---
BY PRESIDING MEMBER (to appellant)
- I just want to avoid to repeat information that is on
file that you’ve mentioned, and that he’s mentioned.
BY APPELLANT (to presiding member)
- Okay.
- These are my questions I was going to ask her, so you
could tell me.
1. How long have you known Margaret? How long has she
known me?
2. When did – when did you first meet Marnix Deloof?
3. Where was your first contact with Mr. Deloof?
4. Do you ---
BY PRESIDING MEMBER (to appellant)
- This we all know because you mentioned it.
BY APPELLANT (to presiding member)
- Okay.
- So these three are no’s?
BY PRESIDING MEMBER (to appellant)
- No.
[…]
BY PRESIDING MEMBER (to minister’s
counsel)
- Do you have any concerns about ---
BY MINISTER’S COUNSEL (to presiding
member)
- I don’t have any concerns that’s she’s – I believe she’s
going to come here and say that for her it’s a genuine relationship.
BY APPELLANT (to presiding member)
- We don’t need her then.
[21]
Procedural fairness encompasses a broad range of
protection, but its content is informed by the context, statutory and
jurisprudential nature of the issues which it is called upon to adjudicate.
Accordingly, Board members, sitting in their quasi-adjudicative/investigatory
role, have discretion to direct the proceedings before them. They need not sit
passively and listen to repetitive evidence or irrelevant evidence simply
because a party wishes to call that evidence.
[22]
There are, however, several factors unique to
this case which support the finding of a breach of procedural fairness. I note
that the applicant was self-represented, and, it is unclear as to why she could
not call the witness. In the dialogue between the Minister’s counsel and the
Board, the applicant was clearly an unequal participant. I note, as well, that
the Board readily accepted the initial characterization of the proposed
evidence offered by the Minister’s counsel to the effect that it was simply to
prove that the relationship was genuine. How the Minister’s counsel knew this,
and whether it was in fact true, remains unknown.
[23]
The member pre-emptorily dismissed the witness’s
testimony. After being told that the applicant wished to call the witness the
member said she had no questions for her, although she had no idea as to what
the witness would say.
[24]
Counsel for the Minister correctly points out
that no adverse findings of credibility were made against the applicant and that
the witness’s evidence was only tangentially relevant to the central legal
question. The member accepted that they were perceived as a couple, and that
they were in a loving relationship. Nevertheless, she concluded that their
relationship did not reflect the degree of commitment one would see in a
conjugal relationship.
[25]
These observations, while accurate, overlook the
fact that the evidence of this witness could have affected the Board’s
appreciation of the evidence in respect of the M v H factors and
reinforced the weight given to aspects of the applicant’s evidence. No
pressing reason motivated or justified the pre-emptory rejection of apparently
relevant evidence. As a consequence, I find a breach of procedural fairness
and grant the application for judicial review.
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