Docket: IMM-150-15
Citation:
2015 FC 988
Montréal, Quebec, August 19, 2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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TAREQ RAHIMI
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BENAFSHA RAHIMI
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Applicants
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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 real test of the truth
of the story of a witness in such a case must be its harmony with the
preponderance of probabilities which a practical and informed person would
readily recognize as reasonable in that place and in those conditions” (Faryna
v Chorny, [1952] 2 D.L.R 354 (BCCA)).
As specified in Froment v Canada
(Minister of Citizenship and Immigration), 2006 FC 1002, 299 FTR 70). As
quoted from Kitomi v Canada (Minister of Citizenship and Immigration),
2012 FC 1293 [Kitomi].
II.
Introduction
[1]
Pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001,
c 27 [IRPA], the Applicant challenges the decision of a visa officer of the
High Commission of Canada in London, United Kingdom [High Commission], dated
November 7, 2014, refusing his sponsorship application of his spouse.
III.
Background
[2]
The Applicant was born in Kabul, Afghanistan.
The Applicant and his family fled the war in Afghanistan and initially sought
refuge in Iran. The family resettled in Canada when the Applicant was 18 years
old, after having been recognized as refugees by the United Nations.
[3]
On March 30, 2009, the Applicant became a
Canadian citizen.
[4]
The Applicant has six sisters and two brothers
who live in the Montréal area.
[5]
The Applicant married for the first time on
April 6, 2006. The couple later separated on November 1, 2010, and
obtained a judgment of divorce in the Quebec Superior Court on March 27,
2013.
[6]
The divorce took effect thirty-one days later,
on April 27, 2013.
[7]
On June 12, 2012, after having been
introduced by a family member, the Applicant and his spouse spoke on the phone
for the first time.
[8]
The Applicant and his spouse got engaged over
the phone on November 25, 2012.
[9]
On March 18, 2013, the Applicant traveled
to Pakistan to meet his spouse for the first time. The couple married two weeks
later, on March 31, 2013. On April 14, 2013, the Applicant returned
to Canada.
[10]
On August 11, 2013, the Applicant applied
to sponsor his new spouse as a member of the family class.
[11]
On September 10, 2013, Citizenship and
Immigration Canada advised the Applicant that he is ineligible to sponsor his
spouse because he was the spouse of another person at the time of their
marriage.
[12]
On December 12, 2013, the Applicant
submitted a request for humanitarian and compassionate [H&C] considerations
pursuant to subsection 12(1) of the IRPA.
[13]
The Applicant enquired about the status of his
sponsorship application on two occasions, on May 26, 2014 and
July 31, 2014. On both occasions, the High Commission replied that the
application was in process or waiting to be reviewed, and that no further
action was required on the Applicant’s part.
[14]
On November 7, 2014, the visa officer
informed the Applicant’s spouse that her application for a permanent resident
visa was rejected on the basis of insufficient H&C grounds to overcome the
Applicant’s ineligibility.
[15]
It is this decision which is being challenged
before the Court.
IV.
Impugned Decision
[16]
In a letter dated November 7, 2014, the
officer found that the Applicant’s spouse cannot be considered as a member of
the family class under paragraph 117(1)(a) of the Immigration and
Refugee Protection Regulations, DORS/2002-227 [IRPR] by virtue of
subparagraph 117(9)(c)(i) of the IRPA. This provision excludes a foreign
national from the family class whose sponsor was, at the time of their
marriage, the spouse of another person.
[17]
The officer also considered section 4 of the
IRPR, which provides that for the purpose of the IRPR, a foreign national shall
not be considered a spouse, a common-law partner or a conjugal partner of a
person if the marriage, common-law partnership of conjugal partnership is not
genuine and was entered into primarily for the purpose of acquiring any status
or privilege under the IRPA.
[18]
Finally, the officer concludes the following:
Your sponsor was not free to marry at the
time of your marriage. You have not provided us with any updated information
demonstrating a continued relationship with your sponsor since your wedding.
Your sponsor has indicated your intention to have children but you do not have
any children at the moment. There are no immigration barriers to your sponsor’s
living in your country of residence. I am not satisfied that there are
sufficient H&C grounds to overcome your sponsor’s failed eligibility.
(Officer’s Decision dated November 7,
2014, Applicant’s Record, at p 7)
V.
Legislative Provisions
[19]
Subsection 11(1) and 12(1) of the IRPA provide:
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Application before entering Canada
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Visa et documents
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11. (1) A foreign national must,
before entering Canada, apply to an officer for a visa or for any other
document required by the regulations. The visa or document may be issued if,
following an examination, the officer is satisfied that the foreign national
is not inadmissible and meets the requirements of this Act.
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11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
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Family reunification
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Regroupement familial
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12. (1) A foreign national may be
selected as a member of the family class on the basis of their relationship
as the spouse, common-law partner, child, parent or other prescribed family
member of a Canadian citizen or permanent resident.
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12. (1)
La sélection des étrangers de la catégorie « regroupement familial »
se fait en fonction de la relation qu’ils ont avec un citoyen canadien ou un
résident permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père
ou mère ou à titre d’autre membre de la famille prévu par règlement.
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[20]
Subsection 117(9) of the IRPR enunciates the
applicable family class exclusion:
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117. (1) A foreign national is a
member of the family class if, with respect to a sponsor, the foreign
national is
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117.
(1) Appartiennent à la catégorie du regroupement familial du fait de la
relation qu’ils ont avec le répondant les étrangers suivants :
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(a) the sponsor's spouse, common-law partner or conjugal
partner;
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a) son
époux, conjoint de fait ou partenaire conjugal;
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…
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[…]
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Excluded relationships
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Restrictions
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117. (9) A foreign national shall not
be considered a member of the family class by virtue of their relationship to
a sponsor if
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117.
(9) Ne sont pas considérées comme appartenant à la catégorie du regroupement
familial du fait de leur relation avec le répondant les personnes suivantes :
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…
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[…]
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(c) the foreign national is the sponsor's spouse and
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c)
l’époux du répondant, si, selon le cas :
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(i) the sponsor or the foreign national was, at the time of
their marriage, the spouse of another person, or
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(i) le répondant ou cet époux étaient, au moment de leur
mariage, l’époux d’un tiers,
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VI.
Issues
[21]
The Applicant submits the following issues to be
considered by the Court:
a)
Did the High Commission err in law by failing to
consider or mention the major points submitted by the Applicant for H&C
considerations?
b)
Was the High Commission’s decision unreasonable
in light of the reasons given?
c)
Did the High Commission use the wrong test in
refusing to exercise its H&C discretion under section 25 of the IRPA? In
such discretion limited to cases of unusual and undeserved, or disproportionate
hardship?
d)
Did the High Commission violate the principles
of natural justice by advising the Applicants that no further action by them
was required and subsequently rejecting the application because the Applicant’s
spouse had not provided any updated information demonstrating a continued
relationship with her sponsor since her wedding?
(Applicant’s
Memorandum, Applicant’s Record, at para 32)
VII.
Arguments
A.
Applicant’s Position
[22]
First, the Applicant submits that contrary to
the guidance provided in the applicable Operational Manual IP 5, section
5.10, the officer failed to consider the H&C factors put forward by the
Applicant, including his relationship with his spouse, his establishment in
Canada, the support he provides to his siblings in Canada, the lack of
opportunities for the Applicant in Pakistan, and the dangers of living in
Peshawar.
[23]
The Applicant also submits that the officer’s
failure to mention the major factors that speak to hardship justifies the
intervention of the Court and that the officer’s decision was made without
regard to the evidence (Cepeda-Gutierrez v Canada (Minister of Citizenship
and Immigration), [1998] FCJ 1425 [Cepeda-Gutierrez]).
[24]
Second, the Applicant argues that the officer’s
decision is unreasonable in its consideration of H&C factors. In
particular, the officer’s cursory evaluation failed to assess the relationship
between the Applicant and his spouse, as well as the factors which are critical
in evaluating the genuineness of a marriage, such as credibility,
compatibility, communications, the couple’s knowledge of one another, and the
development of the relationship.
[25]
Furthermore, the Applicant contends that the
officer failed to address evidence that is relevant to the question of cultural
norms. The Applicant points out that the officer did find that the Applicant
and his spouse “are similar ages, appear well-matched
in terms of education/background” and that they “appear
to have followed cultural norms when celebrating marriage, which appears to
have been well-attended” (Officer’s Notes, Certified Tribunal Record, at
p 5). The evidence suggests that the marriage, while not formally arranged, did
follow cultural norms with an introduction from a family member and the
presence of family from both sides at the engagement party, the first meeting
and the wedding celebration.
[26]
The Applicant also argues that the officer’s
decision is unreasonable in that it fails to give weight to the Applicant’s
family integrity, which is fundamental value and human right recognized in
international law.
[27]
Third, relying on the Federal Court of Appeal’s
decision in Kanthasamy v Canada (Minister of Citizenship and Immigration),
2014 FCA 113 [Kanthasamy], the Applicant contends that the unusual,
undeserved, or disproportionate hardship test applied by the officer incorrectly
narrows the scope of H&C discretion.
[28]
Fourth, the Applicant submits that the officer
failed to observe the principles of natural justice, on the one hand, by not
giving the Applicant an opportunity to provide updated information relating to
his and his spouse’s relationship and on the other, by relying on the lack of
evidence pertaining to this factor in the reasons for decision.
[29]
Finally, the Applicant submits that he and his
spouse had a legitimate expectation that they could rely on the High
Commission’s communications advising them that “no
further action is required at this time”.
B.
Respondent’s Position
[30]
The Respondent argues that the issues before the
Court relating to the officer’s exercise of discretionary power pertaining to
H&C grounds and assessment of the genuineness of the relationship, which
are questions of fact and of mixed facts and law, are to be reviewed on the
deferential standard of reasonableness.
[31]
First, the Respondent contends that the
Applicant is ineligible to act as a sponsor and his spouse is excluded from the
family class, in accordance with subparagraph 117(9)(c)(i) of the IRPR.
The facts demonstrate that the Applicant was still married to his former spouse
at the time he married his current spouse.
[32]
Second, as evidenced by the refusal letter dated
November 7, 2014, and the officer’s Global Case Management System [GCMS]
notes, the officer duly considered all the H&C considerations and provided
coherent reasons in rejecting the application.
[33]
The Respondent points to the evidence that the
relationship between the Applicant and his spouse does not appear to be genuine
and their marriage seems to have been entered primarily for the purpose of
acquiring a status or privilege under the IRPA. As such, it was reasonable for
the officer to conclude that the Applicant’s relationship does not weigh in
favor of granting the requested exemption.
[34]
According to the Respondent, contrarily to the
Applicant’s assertions, the visa officer adequately outlined the Applicant’s
submissions in the GMCS notes, which form part of the reasons. The Respondent
submits that the Applicant is inviting the Court to reweigh the evidence on
file.
[35]
Third, the Respondent argues that the H&C
test of “unusual and undeserved or disproportionate
hardship”, enunciated by the Federal Court of Appeal’s decision in Kanthasamy,
above, remains applicable.
[36]
Finally, the Respondent contends that there was
no breach of procedural justice. The Respondent submits that the onus rests
upon the Applicant to present sufficient evidence by providing all relevant
information and evidence demonstrating sufficient H&C considerations. It is
commonly accepted that procedural fairness does not require that a visa officer
provide an Applicant with a running score of the weaknesses of their
application (Rukmangathan v Canada (Minister of Citizenship and Immigration),
[2004] FCJ 317).
VIII.
Analysis
[37]
It appears that the major factors or elements
submitted by the Applicant-Sponsor were not considered. No mention is made of
the fact that the sponsor and his siblings, all of whom he supports in Canada,
were, as per the evidence, Afghan refugees, recognized by the United Nations
and resettled in Canada due to their precarious situation; the officer,
nevertheless, despite their plight, and although they were recognized in
Pakistan by the United Nations for that which had taken place in Afghanistan
(thus, requiring resettling as had been accepted by the United Nations, and
then by Canada in the case of the sponsor and his siblings, who had been
received de facto, and, de jure status in Canada), concludes
without substantiation, that the sponsor could join his spouse in the Peshawar
region of Pakistan (without mention of the precariousness of the region due to
its inherent problems imported from Afghanistan).
[38]
The decision under analysis does not appear to
be reasonable in view of the detailed significant and intricate local,
cultural, oriented subject-matter as to the sum of all parts of the intrinsic evidence
of the narrative itself. The evidence, in essence, is not contradicted, at its
very core, in respect of the situation of the sponsor, nor in regard to the point-specific
proof of the family situation as a unit and key factors as to the relationship
of the entire family with the sponsoree. Reference is made to paragraph 17 of Cepeda-Gutierrez,
above.
[39]
It is based on both cultural norms and the
inherent logic that flows from the context from which the couple originates (Kitomi,
above).
[40]
It is most important to recall that the
July 31, 2014 High Commission’s reply clearly stated in writing “your application is in process, no further action is
required at this time”, furthermore, with thanks “for keeping your correspondence to a minimum”.
[41]
Also, it does not appear that the factors listed
in the operation manual, in respect of establishment, support of relatives in
Canada, as well as ties to Canada, were adequately considered. Nor was it
recognized that the short-fall duration count in respect of the original
declaration of divorce and subsequent coming into effect of the divorce of the principal
Applicant was an inadvertent oversight by the principal Applicant due to the procedural
technicality as specifically demonstrated in the pleadings of the Applicant as
to the misunderstanding between the declaration of divorce and its coming into
effect.
[42]
The test in respect of subsection 25(1) of the
IRPA must be revisited in this case. It appears that the test was made more
stringent than it is.
[43]
Answers given to the officer’s questions, as
they appear in the responses of the sponsored spouse questionnaire, have not
been duly considered for significant key information. In addition, the officer
had simply set aside his very own remarks in regard to that which he had already
found and had noted as satisfactory.
[44]
Also, the written statement of the High
Commission as transmitted in two emails in respect of the application of the
Applicants, that “no further action is required at this
time” with thanks “for keeping your
correspondence to a minimum” must be considered in light of the judgment
of the Federal Court of Appeal in Bendahmane v Canada (Minister of Employment
and Immigration), (C.A.), [1989] 3 F.C. 16. This judgment must be kept in
mind due to the reiterated last few words of thanks also to the Applicants for “for keeping your correspondence to a minimum” as to
the principle of “reasonable expectation”. This
phrase, in and of itself, refutes the officer’s decision in question.
IX.
Conclusion
[45]
For all of the above reasons, the motion for
judicial review is granted and the matter is to be considered by a different
decision-maker anew.
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