Docket: IMM-5119-16
Citation:
2017 FC 1137
Ottawa, Ontario, December 13, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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GRACE OLUWASEUN
OKUNEYE ASHIRU
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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
[1]
The applicant, Ms. Ashiru is a citizen of
Nigeria. Her spouse, Prince Olugbenga Ashiru, sought protection in Canada on
the basis that he feared persecution in Nigeria due to his sexual orientation.
His claim was accepted in July 2015. Mr. Ashiru then initiated an In-Canada application
for permanent residence naming Ms. Ashiru, the Applicant, and their three
children as family members.
[2]
In June 2016, Ms. Ashiru submitted an
application for a permanent resident visa as a member of the family class. In
November 2016, after providing procedural fairness letters, the application for
permanent residence was denied. The Officer was not satisfied that the marriage
was genuine.
[3]
Ms. Ashiru brings this application for judicial
review under subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA]. She argues the decision was unreasonable as the
evidence established the marriage was valid in law and genuine.
[4]
The reasons for the negative decision are set
out in the Global Case Management System [GCMS] notes, which state:
In his submission on his BOC, In-Canada
applicant refers to having a same-sex partner. In-Canada applicant has had
various relationships with different men prior to and throughout his claimed
marriage with applicant. Prior to In-Canada applicant arriving in Canada the
relationship between applicant and In-Canada applicant was strained and
unhappy. There is very limited evidence that applicant and In-Canada applicant
are legally married. At the time of In-Canada applicant’s TR application he
declared he was single. This would imply the relationship between applicant and
In-Canada applicant was over. In-Canada applicant did not see himself as
married. Applicant is not in agreement with In-Canada applicant’s lifestyle
and wants him to change. Applicant fled to Canada because of his sexuality. He
is free now to live his life as he pleases. The evidence of communication is
limited. There is very limited evidence of an ongoing relationship. I am not
satisfied applicant and In-Canada applicant are in a committed, mutually
exclusive relationship. I am not satisfied the relationship between applicant
and In-Canada applicant is genuine. [Emphasis added.]
[5]
It is evident from the underlined portion of the
GCMS notes that the declaration attributed to Mr. Ashiru to the effect that he
was single at the time he sought a temporary resident [TR] visa factored into
the Officer’s decision.
[6]
Mr. Ashiru disputes the Officer’s finding that he
reported his marital status as single. Rather he states that he consistently reported
his marital status as “married” in all
immigration documents.
[7]
The Certified Tribunal Record does contain the
TR application that the Officer appears to have relied upon. In reviewing that
TR application it is evident that it does not relate to Mr. Ashiru but rather another
individual who appears to have had some connection to Mr. Ashiru as part of a
musical group. The respondent acknowledged this error in oral submissions but
argued that there was still evidence to allow the Officer to reasonably
conclude the marriage was not genuine.
[8]
I do not dispute that there may well remain a
basis upon which the Officer could reasonably conclude the marriage was not
genuine. However, such an outcome is not certain. It is not for this Court on
judicial review to engage in the weighing of evidence or to exercise the
discretion that is vested in the decision-maker: “[i]t
must be remembered that the administrator, not the reviewing court, is the
merits-decider” (Robbins v Canada (Attorney General), 2017 FCA 24
at para 17). The Officer’s reliance on the incorrect TR renders the decision
unreasonable. The application for judicial review is granted.
[9]
The Applicant has named the Minister of
Immigration, Refugees and Citizenship Canada as the Respondent in this matter.
The correct Respondent is the Minister of Citizenship and Immigration (Federal
Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, s
5(2) and Immigration and Refugee Protection Act, SC 2001, c 27, s 4(1)).
Accordingly, the Respondent in the style of cause is amended to the Minister of
Citizenship and Immigration.
[10]
The parties have not identified a question of
general importance for certification, and none arises.
JUDGMENT IN IMM-5119-16
THIS
COURT’S JUDGMENT is that:
1.
The application is granted;
2.
The matter is returned for redetermination by a
different decision-maker;
3.
The Respondent in the style of cause is amended
to the Minister of Citizenship and Immigration; and
4.
No question is certified.
"Patrick Gleeson"
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