Docket: IMM-3748-14
Citation:
2015 FC 609
Toronto, Ontario, May 8, 2015
PRESENT: The Honourable Mr. Justice Campbell
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BETWEEN:
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LWAM MEKUR
GEBRESELASSIE
LULIA MEBRAHTU
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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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ORDER AND REASONS
[1]
The present Application is a challenge to the
decision of the Minister’s delegate (Officer), dated February 25, 2014, in
which the Applicants’ application for a permanent resident visa was rejected.
The Applicants are a mother (principal Applicant) and her dependent daughter
from Eritrea who are seeking permanent residence as members of the family
class. The principal Applicant applied as the common law partner of her
sponsor. The application was rejected because the Officer did not accept that
the principal Applicant had resided with her sponsor for the required one year
and, therefore, was not the common law partner of her sponsor. A primary issue
in the present Application is whether the Officer’s conclusion is based on
fact-finding error.
[2]
With respect to the issue, Counsel for the
Applicant provides a précis of the evidence tendered to the Officer arising
from an interview of the Applicant conducted on October 8, 2013 in Nairobi,
Kenya:
The principal Applicant and Mr. Teclemichael
[the sponsor] first met on February 4, 2006 in Asmara, Eritrea in church and
they set up a date at a coffee shop. They then exchanged numbers and started to
meet each other as often as possible to get to know each other. Their
relationship developed and on March 25, 2006, Mr. Teclemichael met the
principal Applicant's brother, Musie Mekur, and her friends, Helen Tesfay and
Eden Selernon. On April 10, 2006, he met the principal Applicant's mother,
Letezge Gebreyohanes, and her sister, Helen Mekur.
In May 2006 the principal Applicant and Mr.
Teclemichael began to live together in her family's home.
The principal Applicant explained that the
minor Applicant was born in 2004 and that her pregnancy was the result of a
short relationship with a boyfriend, whom she did not marry. The pregnancy was
an accident and her family was not happy. She told the interviewing officer
“both of us were young, it was unacceptable”. She also explained that the minor
Applicant does not know her biological father and only knows Mr. Teclemichael
as her father.
The principal Applicant was asked at the
interview why her parents agreed to let her and Mr. Teclemichael live together
without being married. She answered that this was because she already had a
child and that he too had children. The officer's notes state that the
principal Applicant stated “if you have a child before marriage, everything is
possible, they can accept it.”
(Applicants' Record, 161-162)
[3]
The rejection letter of February 25, 2014 cites
the following reasons:
Based on information available to me, you
have been unable to demonstrate that you have a common law relationship with
Amanuel Beyene Teclemichael. You were unable to provide me with any proof
whatsoever that you and Mr. Teclemichael cohabited for more than one year
prior to your departure from Eritrea.
It would have been unusual for your
family to consent to you cohabiting in your family's home prior to marriage.
Further, once Mr. Teclemichael left Eritrea
he did not join you in Uganda but rather went to Sudan with his family
[Emphasis added in the original to identify an uncontested error of fact].
Since his arrival in Canada he has not come
to Uganda to visit you.
In addition you have indicated that Mr.
Teclemichael has two children with another woman but you are not sure if he
simply cohabited with her as if they were legally married.
For these reasons I am not satisfied that
you and Mr. Teclemichael meet the definition of common law partners.
[Emphasis added]
(Certified Tribunal Record, p.3)
[4]
In my opinion, it is clear that the Officer
approached the evidence with a suspicious mind. There is no clear reasoning
provided for not accepting the Applicant’s evidence at face value. Most
importantly, there is no reason provided for rejecting the Applicant’s answer to
the question of why her family would accept her and Mr. Teclemichael to live
together in the family home. Rather than accept the Applicant’s evidence, the
Officer depended upon an unverified understanding of the “cultural context”.
This finding constitutes an implausibility finding which is unsupported by any
evidence on the record at the time the decision was made.
[5]
I find that in the reasons it was incumbent on
the Officer to explain the source of the understanding so that its accuracy
could be considered against the evidence supplied by the Applicant. If the
Officer’s understanding arose from experience, the details of that experience
were required to be stated in the decision. To not follow this elementary
process of fact finding, is contrary to law (see: Zakhour v Canada (MCI),
2011 FC 1178).
[6]
I find that, because the decision was rendered
in reviewable error, it is unreasonable.
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