Docket: IMM-574-15
Citation:
2015 FC 1048
Ottawa, Ontario, September 4, 2015
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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FRANZ CARL
(JR.) ALUB GUERRERO
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KRISTINE MAJE
MERAMBEL
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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
[1]
This is an application for judicial review of
the January 14, 2015 decision of a Visa Officer and Manager, Economic Immigrant
Unit, at the Embassy of Canada in the Philippines, wherein the Applicants’
permanent residence applications were denied on the basis that they did not
answer truthfully or produce all required documents, contrary to ss. 11(1) and
16(1) of the Immigration and Refugee Protection Act SC 2001 c 27 [IRPA],
and the Applicants were ruled inadmissible to Canada for misrepresentation
under section 40(1)(a) of the IRPA [the Decision].
[2]
The Applicants’ request that the Court quash the
Decision and refer the matter back for reconsideration by a different visa
officer.
[3]
For the reasons that follow, this application is
allowed.
I.
Background
[4]
The Applicant, Franz Carl (Jr.) Alub Guerrero
[Guerrero] is a 33 year old citizen of the Philippines. He married the other
Applicant, Kristine Maje Merambel [Merambel], on April 23, 2013 in the
Philippines. They claim that their relationship began in 2004.
[5]
Guerrero has been in Canada since September
2007, working as a food service supervisor. He applied for permanent residence
in November 2010 under the Federal Skilled Worker Program. Merambel was added
to his application after they were married in 2013.
[6]
On November 15, 2013, Guerrero attended the port
of entry at Carway, Alberta to finalize his permanent residence. He was
accompanied by his alleged former girlfriend, Mae Yvette Martinez [Martinez],
who worked for the same employer. They were questioned and the Canadian Border
Services Agency [CBSA] officers learned about their relationship. As a result,
the Applicants’ permanent visas were revoked. It is disputed whether Martinez
and Guerrero admitted that they were still in a relationship at that time or
rather that they had been in a relationship in the past. After the incident at
the port of entry, Guerrero confessed his infidelity to Merambel.
[7]
On January 6, 2014, Guerrero was sent a
procedural fairness letter from the Visa Office in the Philippines, referencing
provisions of the IRPA relevant to the disclosure obligations of an applicant
for permanent residence and the consequences of misrepresentation, and asking
him to respond to concerns that he had an ongoing relationship with Martinez
and therefore that his relationship with Merambel did not appear to be genuine.
In response, Guerrero submitted a statutory declaration, letters from each of
Merambel and Martinez, and documents intended to establish the genuineness of his
marriage.
[8]
The Decision was issued on January 14, 2015,
rejecting the Applicants’ permanent residence application, finding
contradictions between the port of entry evidence and Guerrero’s statutory
declaration, and concluding that the Applicants’ marriage was not genuine and
that Guerrero had misrepresented or withheld material facts related to his
conjugal relationship with Martinez.
[9]
On February 4, 2015, the Applicants applied for
leave and judicial review of the Decision.
II.
The Impugned Decision
[10]
The Decision states that on November 15, 2013 at
Carway, Alberta the Applicant misrepresented or withheld the bona fides
of his marital relationship with Merambel. It further states that this
determination was reached because, when he applied to become a permanent
resident on that date, he was accompanied by Martinez. His spouse, Merambel,
whom he married in April 2013 and included in his application, was not present.
During questioning by the Border Services Officer, the Applicant revealed that
Martinez was his long-term girlfriend with whom he had been living in Canada
since 2009 in a conjugal relationship. Martinez confirmed living together since
2009 in a conjugal relationship. This misrepresentation or withholding of facts
was material and induced an error in the administration of the IRPA as the
Applicant’s declared spouse, Merambel, had been issued a permanent resident
visa as an eligible family member on his application.
[11]
The Decision includes a letter from a Visa
Officer dated January 14, 2015, stating that the Applicant’s marriage to
Merambel is not genuine and was entered into for the purpose of facilitating
her entry into Canada. That letter notes that, on January 6, 2014, the
Applicant, as a matter of procedural fairness, was given an opportunity to respond
to the Officer’s concerns arising from the information received at the port of
entry, but that his response did not alleviate such concerns.
[12]
As a result, the application for permanent
residence was refused and the Applicant was found to be inadmissible to Canada
for a period of five years from the date of the letter and pursuant to
subsection 40(3) of the IRPA. He may not apply for permanent resident status
during this five year period.
[13]
The record before the Court also includes
entries in the Global Case Management System [GCMS], which form part of the
reasons for the Decision and reflect the following:
A.
Some information provided in the Applicant’s
statutory declaration contradicts information he provided when questioned at
the port of entry. For instance, the Applicant stated that he and Martinez had
a relationship for only four months in 2009. He stated that he broke it off
when he went to visit Merambel in the Philippines in May 2009 and did not
resume his relationship with Martinez upon his return. He stated that he and
Martinez only started up their relationship again when they moved into the same
house together in June 2010. In contrast, at the port of entry, he admitted
that they had been in a relationship since 2008 and had been living together since
2009 and further indicated he would end his relationship once Merambel moved to
Canada;
B.
In his statutory documentation, the Applicant
stated that he and Merambel had been in a relationship since January 2004 and
provided proof of his genuine and ongoing marital relationship. The GCMS notes
record the following:
i.
The Applicant proposed in 2009 when he visited,
but he and Merambel only married in 2013;
ii.
They married in civil rites despite a long
engagement, and the wedding photos do not show that the wedding had the level
of preparation that would be usual after a long engagement; and
iii.
Joint property was bought in December 2013,
after the Applicant was refused landing, and he remitted money only once before
the marriage. After the marriage, he remitted money three times, one of which was
after he was refused landing;
C.
The letter from Merambel stated that the reason
for their long engagement was because the Applicant was helping his family
financially and that, when she found out about the affair, she was angry but
decided to forgive him due to their history;
D.
The letter from Martinez confirmed the same
dates as the Applicant’s document and stated that, despite their relationship
ending in April 2013, she still had feelings for the Applicant and would be
moving back to the Philippines;
E.
The Officer was not satisfied that the marital
relationship was genuine and ongoing and that the other relationship had
ceased. Despite having married Merambel in April 2013, it appeared that Guerrero’s
relationship with Martinez continued to the point of his landing. The evidence
provided to support the bona fides of his marital relationship was not
sufficient to alleviate the Officer’s concerns;
F.
On balance, the Officer concluded that the
Applicant entered into a marriage of convenience and added Merambel as a spouse
after submission of his application in order to facilitate her entry into
Canada; and
G.
On the balance of probabilities, it is more
probable that the Applicant has misrepresented his marital status that is
material to a determination under the IRPA.
III.
Issues
[14]
The Applicant raises the following issues for
the Court’s consideration:
A.
Whether there was a breach of the duty of
fairness in relying on extrinsic evidence (the port of entry notes) without
first allowing the Applicant an opportunity to respond;
B.
Whether the findings about discrepancies between
the port of entry evidence and the Applicant’s statutory declaration are
unfounded;
C.
Whether there was an error in ignoring evidence
or in rejecting evidence without justification; and,
D.
Whether the finding about the bona fides
of the Applicants’ marriage is unreasonable.
IV.
Standard of Review
[15]
The parties agree, and I concur, that visa
officers are afforded discretion in their decisions and that the appropriate
standard of review to apply to a decision refusing an application for permanent
residence on the grounds of misrepresentation is reasonableness (Mahmood v
Canada (Minister of Citizenship and Immigration), 2011 FC 433 at para 11).
[16]
The Applicants also argue that the standard of
review applicable to considerations of procedural fairness is correctness (Sketchley
v Canada (Attorney General), 2005 FCA 404). While there is undoubtedly
considerable jurisprudential support for this position, the recent decision of
the Federal Court of Appeal in Bergeron v Canada (Attorney General),
2015 FCA 160, at paras 67-72 canvasses authority to the effect that some degree
of deference should nevertheless be given to the decision-maker on some
elements of the procedural decision. That decision does not resolve what
Justice Stratas refers to as a “jurisprudential muddle”
in this area, in part because it was not necessary to resolve the issue as the
Court’s conclusion was that, even on a standard of correctness, there was no
basis to interfere with the applicable decision on the basis of procedural
fairness.
[17]
Similarly in the present case, for the reasons
explained below, my conclusion is that procedural fairness concerns require the
Decision to be revisited, even if I were to afford some degree of deference to
the manner in which the decision-maker approached the process.
V.
Submissions of the Parties
A.
Applicants’ Position
[18]
First, the Applicants argue that the Visa
Officer did not provide the port of entry notes to them in order to allow them
an opportunity to respond to the alleged contradictions between those notes and
the evidence subsequently submitted. The Applicants submit that this represents
a breach of the duty of fairness owed to the Applicants.
[19]
Second, it is submitted that the Visa Officer
erred with respect to the findings of alleged contradictions between Guerrero’s
statutory declaration and the evidence that was given at the port of entry. The
Applicants submit that a proper review of the statutory declaration does not
reveal any of the alleged contradictions:
A.
Guerrero stated that he met Martinez in December
2008, which does not contradict what was said at the port of entry about their
relationship having started in 2008;
B.
There is no denial in Guerrero’s statutory
declaration that he and Martinez lived in the same house between June 2010 and
November 2014. He describes joint living arrangements among many co-workers;
and
C.
Neither Guerrero nor Martinez advised the port of
entry officers that their relationship had been continuous since they first
began seeing each other.
[20]
The Applicants submit that the Visa Officer made
negative credibility findings by focusing on minute details and neglected the
essence of the evidence relating to Guerrero’s and Martinez’s relationship.
This fixation prevented the Visa Officer from adequately assessing the
underlying issue of whether the Applicants were in a genuine marital
relationship.
[21]
Third, the Applicants submit that the Visa
Officer erred in ignoring evidence or in rejecting evidence without
justification. The Officer references the letters from Martinez and Merambel
but does not state anything more about what role the evidence played in the
ultimate Decision. The Officer provides no analysis of the fact that these
letters corroborate Guerrero’s statutory declaration with respect to his
affairs. This evidence was crucial with respect to assessing the bona fides
of the Applicants’ marriage.
[22]
Fourth, the Applicants submit that the Officer’s
findings about the bona fides of the marriage are unreasonable. Merambel
never ceased to be a member of Guerrero’s family class by virtue of his affair.
The Applicants acknowledged that there is no dispute that Guerrero and Martinez
were in a romantic relationship. Rather, the dispute was as to the timing and
duration of that relationship and whether it continued beyond the time that
Guerrero married Merambel in April 2013. The Applicants also raised the
argument that it is possible to be in two relationships at once. In other
words, the fact of the relationship with Martinez did not preclude the
relationship with Merambel being genuine.
[23]
The Applicants also argue that the Officer
impugns the genuineness of the Applicants’ relationship based on
generalizations and stereotypes. The Applicants submit that the Officer did not
provide any basis for assumptions underlying the finding that the marriage was
not genuine.
B.
Respondent’s Position
[24]
First, the Respondent argues that there is no
merit to the Applicants’ assertion of a breach of procedural fairness. The Visa
Officer advised Guerrero of the concerns regarding the validity of the marriage
and the reasoning for those concerns in the procedural fairness letter. The
Applicants’ response to the letter also indicates that they were fully aware of
the Officer’s concerns. The Respondent noted that it is not common practice to
provide port of entry notes in such circumstances as part of the duty of
procedural fairness and took issue with the Applicants’ characterization of
these notes as extrinsic evidence, given that they reflect Guerrero’s own statements
at the port of entry. In oral argument in reply to this point, the Applicants
submit that, in the interests of procedural fairness, such practice should be
changed in circumstances where port of entry notes are to be used to impugn an
applicant’s credibility.
[25]
Second, the Officer properly reviewed the
statutory declaration, and the contradictions cited in the Decision reflect the
evidence provided. The Officer did not make negative credibility findings by
focusing on minute details. He considered the totality of the evidence when
making the Decision and referred to the contradictions and inconsistences,
which precluded him from making a positive determination.
[26]
Third, the Respondent argues that no evidence
was ignored and submits that the Applicants’ arguments are merely an invitation
for this Court to reweigh the evidence. The Officer need not mention every
piece of evidence in his/her reasons.
[27]
Fourth, the Respondent submits that the findings
about the bona fides of the marriage were reasonable. The burden is on
the Applicants to show that the marriage is genuine, on a balance of
probabilities. There was proper and thorough consideration of the responses and
submissions. The GCMS notes identify specific contradictions and note why the
few explanations that were provided were not persuasive. The Officer was not
required to advise the Applicants of his concerns and how they impacted the
decision to be made. Overall, the Decision falls within the range of
acceptable, possible outcomes, defensible on the law and facts.
VI.
Analysis
[28]
In my view, this application turns on the
procedural fairness issue raised by the Applicants. They rely on Muliadi v
Canada (Minister of Employment and Immigration), [1986] 2 FC 205 for the
principle that an applicant must be provided a fair opportunity of correcting
or contradicting negative statements before a decision is made. This principle
has been further developed by this Court and is often expressed as a
requirement that, if an officer intends to base a decision on extrinsic information
of which an applicant is unaware, an opportunity to respond must be made
available to enable the applicant to disabuse the officer of any concerns
arising from that evidence (Huang v Canada (Minister of Citizenship &
Immigration), 2012 FC 145 at para 7). However, where the issue arises out
of material provided by the applicant, there is no obligation to provide an
opportunity for explanation, since the provider of the material is taken to
know the contents of the material (Poon v Canada (Minister of Citizenship
& Immigration) (2000), 198 FTR 56 (Fed TD) at para 12; Wang v Canada
(Minister of Citizenship & Immigration) (1999), 173 FTR 266 (Fed TD)).
[29]
The authorities also draw a distinction between
concerns about sufficiency of the evidence before a decision-maker and concerns
about the credibility, accuracy or genuineness of the evidence. The duty to
provide an opportunity to respond arises in the latter situation, but not in
the former (Hassani v Canada (Minister of Citizenship & Immigration),
2006 FC 1283 at para 24).
[30]
In the case at hand, the evidence that the
Applicants say should have been provided to them, before the Decision was made,
are the port of entry notes. These notes purport to record the statements made
by Guerrero and Martinez to CBSA officers at the Carway, Alberta port of entry
in November 2013. The Respondent argues that the notes should be considered to
represent evidence provided by Guerrero, of which he is aware, and therefore
not extrinsic evidence that should have been disclosed to the Applicants.
[31]
The challenge for the Respondent in advancing
this position is the fact that, prior to production of the Certified Tribunal Record
as part of this judicial review application process, the Applicants had never
seen, reviewed or approved these notes. The notes are therefore different from
a written statement or other documentary evidence submitted by an applicant and
different from someone else’s record of what an applicant has said where the
applicant was provided an opportunity to review such record. In my view, in the
absence of such an opportunity, depending on the use of the record, the duty of
procedural fairness may be engaged so that the impugned individual is not
deprived of the opportunity to raise concerns about whether the statements were
recorded accurately.
[32]
The question therefore becomes whether the
particular use of the port of entry notes in this case engages this duty of
fairness and whether the content of the procedural fairness letter provided to
the Applicants served to discharge that duty. This is not a situation where the
Decision turns solely on the sufficiency of the evidence. As reflected in the
Decision, and confirmed by the Respondent at the hearing, the Respondent’s
position is that the misrepresentation upon which the Decision turns was
failing to disclose the existence of the relationship with Martinez, which
persisted into the period of the marriage. This in turn raised doubts as to the
bona fides of the marriage.
[33]
The GCMS notes reflect that the Officer based his
analysis in part on the documentary evidence submitted by the Applicants, such
as photos and financial transactions, which did not satisfy the Officer that
the marriage was genuine and could potentially be characterized as a
sufficiency issue. However, those notes also make clear that the Decision is
based at least in part on inconsistencies between the port of entry notes and
the evidence contained in Guerrero’s statutory declaration and the letters of
Martinez and Merambel.
[34]
The Officer refers to contradictions related to
the precise timing of when the relationship with Martinez commenced, was
suspended and resumed. The Applicants take issue with whether the evidence
supports this finding of contradictions and submit that such finding focuses on
minute details and ignores the essence of the evidence provided. However, there
is certainly a fundamental inconsistency between the port of entry notes and
the evidence provided in response to the procedural fairness letter. The former
reflects that Guerrero stated in November 2013 that he was still in a
relationship with Martinez, which he would end when his wife moved to Canada,
while the latter indicated that the relationship had ended by the time of the
marriage in April 2013. The Decision reflects that it was at least in part on
the basis of this inconsistency that the Officer concluded that the marriage
was not genuine. As such, the Decision turns in part on an adverse credibility
determination, which engages the duty of fairness.
[35]
The procedural fairness letter of January 6,
2014 was intended to discharge this duty. The relevant paragraphs of the letter
state as follows:
You included an accompanying spouse,
Kristine Maje Merambel, in your application whom you wed on April 23, 2013
however when you attempted to land in November 2013 at Carway, Alberta, it came
to light that you have an ongoing long-term relationship with a girlfriend in
Canada. You may therefore be found non-compliant as your marriage to Kristine
does not appear to be genuine and may have been entered into in order to obtain
permanent residence in Canada.
Before a decision is made concerning your
inadmissibility, you may forward to us a written explanation regarding
the current state of your relationship with Kristine as well as your relationship
with your girlfriend in Canada. You must also provide documentary evidence to
support you relationship. Note that third party affidavits alone are not
conclusive evidence to support an ongoing marital relationship.
[36]
The question is whether this letter gave the
Applicants the required opportunity of correcting or contradicting negative
statements before the Decision was made. I find it does set out the Officer’s
concern, that Guerrero had an ongoing long-term relationship with a girlfriend
in Canada, such that his marriage did not appear to be genuine. However, it
does not set out the detail of the statements, purported to have previously
been made by Guerrero and Martinez as reflected in the port of entry notes, on
which the Officer’s concerns were based. Guerrero’s affidavit, filed in support
of this judicial review application, states that he advised the CBSA officers
in November 2013 that his relationship with Martinez came to an end in April
2013 when he married Merambel and that he never stated that he would end the
relationship when his wife came to Canada.
[37]
CBSA officers are presumably well-trained in the
skills necessary to take accurate notes to capture oral statements made by an
applicant or other witness in this sort of situation. As such, Guerrero might
have expected to face a significant challenge in attempting to convince the
Officer of the position that he is advancing - the CBSA officers got it wrong
and misunderstood what he was telling them in November of 2013. However,
without having been apprised of the details of the statements that were
attributed to him and Martinez, he was deprived of the opportunity to try to
correct these statements, which I find represents a breach of the fairness
obligation.
[38]
This is the sort of concern, albeit in a different
context, that Justice Keith Boswell addressed in his recent decision in Huang
v Canada (Minister of Citizenship and Immigration), 2015 FC 905 [Huang].
That case concerned what Justice Boswell held to be an outdated exception,
applicable to spousal interviews, to the obligation to seek clarification of
any potential misunderstandings in cases where the evidence would have been
sufficient had it not been for doubt about the credibility, accuracy or genuine
nature of information submitted by an applicant. In finding that there was a
duty to disclose to the applicant in that case the content of an interview with
his spouse, Justice Boswell held at paragraph 17 that the breach of that duty
was material because, had the applicant been confronted with the supposed
inconsistencies, she might have been able to convince the officer that they
were just misunderstandings.
[39]
In the case at hand, the inconsistencies were
between different sets of statements both attributed to Guerrero, and also
partially as against statements attributed to Martinez. Regardless, the
reasoning in Huang is applicable, as Guerrero should have been afforded the
opportunity to convince the Officer of his position that that the
inconsistencies were a result of a misunderstanding of the evidence given at
the time of the port of entry interview.
[40]
I am conscious of the Respondent’s point that it
is not common practice to provide port of entry notes in circumstances such as
these as part of the duty of procedural fairness. I am not suggesting that
there should be a general obligation to do so. Rather, my conclusion is that,
in the specific circumstances of this case, given the particular use that was
made of such notes by the Officer in making the Decision, the content of the
procedural fairness letter did not contain sufficient detail to satisfy the
duty of fairness. My finding is that the Officer’s approach to the discharge of
that duty was accordingly incorrect and, if I were to afford some degree of
deference to the manner in which the Officer approached that duty, I would also
conclude such approach to be unreasonable.
[41]
On this basis, the Decision must be set aside
and referred back for reconsideration by a different visa officer. It is
therefore unnecessary for the Court to consider the other issues raised by the
Applicants.
[42]
The parties were consulted, and neither proposed
a question for certification for appeal.
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