Docket: IMM-5299-23
Citation: 2025 FC 488
Toronto, Ontario, March 17, 2025
PRESENT: Madam Justice Go
BETWEEN: |
CHARLES OLUMUYIWA MOYELA |
Applicant |
and |
THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA
|
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Charles Olumuyiwa Moyela [Applicant], a citizen of Nigeria, brings this application for judicial review of a decision dated April 14, 2023 [Decision] by an immigration officer [Officer] refusing the Applicant’s application for permanent residence as the spouse of a protected person [PR Application].
[2] In 2016, the Refugee Protection Division [RPD] granted the Applicant’s spouse, O.M., and their children Convention refugee status in Canada [RPD Decision]. The RPD found that O.M. faced a serious risk of persecution in Nigeria due to her bisexuality. The RPD also found the Applicant’s family, and the Applicant himself, were a risk to the children in Nigeria because the Applicant would be forced to allow his children to undergo certain cleansing rituals at the request of his family, including potential female genital mutilation [FGM].
[3] The Officer refused the PR Application because they were not satisfied the Applicant’s marriage to his wife was genuine, as required by subsection 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR]. As such, the Officer found that the Applicant did not meet the definition of “family member”
under subsection 1(3) of the IRPR. The Officer further found that humanitarian and compassionate [H&C] considerations under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 did not warrant granting the PR Application.
[4] For the reasons set out below, I find the Decision unreasonable and I grant the application for judicial review.
[5] The Applicant raises several issues for the Court’s determination. The Applicant argues that the Officer breached procedural fairness, based the Decision on irrelevant considerations, and engaged in an unfair and imbalanced assessment of the evidence. The Applicant further submits that the Decision is void ab initio because the Officer’s identity was concealed from the Applicant.
[6] I do not find many of the Applicant’s arguments persuasive. However, I agree with the Applicant that the Officer’s assessment of the evidence was unreasonable.
[7] As per Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], a reasonable decision is one that displays justification, transparency, and intelligibility with a focus on the decision actually made, including the justification for it: Vavilov at para 15. Overall, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrain the decision-maker: Vavilov at para 85. The Decision in this case fell short of the reasonableness standard.
[8] Before rendering the Decision, the Officer sent the Applicant a procedural fairness letter [PFL] informing the Applicant of the Officer’s concerns with the PR Application. In particular, the Officer noted:
Based on information available to me, I have concluded that your marriage to/partnership with [O.M.] is not genuine. Information on [O.M.]’s application indicates she is estranged from her spouse due to her declared sexual orientation. I also have concern that issuing you a visa would not be in the best interest of the dependent children as there were concerns in regards to Female Genital Mutilation (FGM) in which you were identified as an agent of harm.
[9] It would appear that the Officer’s concern stemmed from the RPD decision which found that the Applicant’s children have been targeted by the Applicant’s family because his family perceived the children to be influenced by O.M.’s sexual orientation and that the only way to cleanse them of such influence was to undergo particular traditional rituals, rites, or practices.
[10] The RPD member also analysed the role, if any, the Applicant would play with respect to his family’s plan to “cleanse”
the children, and noted as follows:
… It was asked of [O.M.] why the children would be forced to undergo such rituals and we talked about their father, [O.M.’s] currently estranged husband, would have no choice because it is part of the community and he would have to allow the children to participate or to undergo such rituals in order for them to be cleansed and continue to go to school.
Therefore, I do find that the father is an agent of harm against the children and that he would be forced, and in my mind there is no distinguishing him, as merely a participant or complicit in their persecution and, therefore, they are at risk due to their father in Nigeria.
[11] In his response to the PFL, the Applicant provided further submissions as well as evidence including but not limited to the following:
The Applicant’s statement/response to the PFL dated March 8, 2023 [March 8, 2023 Statement]
The Applicant’s affidavit dated June 10, 2016, sworn in support of O.M.’s refugee claim [June 10, 2016 Affidavit];
Statement of O.M. in support of the Applicant’s PR Application;
Copies of exit and entry visas for the Applicant showing his journeys to Canada;
Copies of email communications between the Applicant and his children;
Letter of support from the Applicant’s daughter;
Excerpts from text message and WhatsApp message exchanges between the Applicant and O.M.; and
Evidence of money transfers by the Applicant to O.M. and their children in Canada.
[12] In the June 10, 2016 Affidavit, the Applicant expressed that he was “furious”
and that he felt “betrayed”
when O.M. told him about having a same-sex partner when she was out of the country. The Applicant also stated that he only cared about the well-being of his children as his family was asking them to return to Nigeria for ritual cleansing. The Applicant ended by noting that he did not believe there could be anything between him and O.M. because what she did to him was very painful, and that he made the affidavit for the sake of his children and for no other reason.
[13] In the March 8, 2023 Statement, the Applicant explained that he was “shocked”
that he was being perceived as “an agent of harm”
to his children. The Applicant asserted that he loves and appreciates O.M. for her strength of character and has “never ceased being a positive influence”
on O.M. and his children. The Applicant claimed that his marriage to O.M. is genuine, as they have been together for over 20 years and have been “happily married for 17 years.”
The Applicant noted that his initial thoughts and rejoinder upon realization of O.M.’s bisexual orientation was “impulsive and a knee-jerk reaction.”
The Applicant emphasized that he has professionally campaigned for gender equality and parity and against all forms of gender-based violence including FGM, citing several published articles he penned as proof of his commitment to gender equality. The Applicant also stated that he is not, has never been, and never will be an agent of harm of any child, and that he has continued to be involved in the lives of O.M. and their children. The Applicant also mentioned his daily communication with O.M. and his visits to Canada to spend time with O.M. and their children.
[14] In the Global Case Management System [GCMS] notes, which formed the reasons for the Decision, the Officer summarized the Applicant’s March 8, 2023 Statement, without indicating how the Officer assessed the statement, or what weight, if any, they assigned to it.
[15] Immediately following the summary of the March 8, 2023 Statement, the Officer went on to state as follows:
Sworn affidavit from sponsor [sic] – reviewed – dated June 10, 2016; Speaks of not talking to his spouse and only writing the affidavit for the sake of his children…doesn’t think there can be anything between himself and [O.M.] because what she did to him is very painful – Great weight given to this affidavit because it alludes to or confirms of the separation or estrangement of applicant and in-Canada applicant…
[Emphasis added]
[16] In coming to this conclusion, I find the Officer erred for the following reasons.
[17] First, based on the GCMS notes, the Officer gave greater weight to the June 10, 2016 Affidavit “because it alludes to or confirms of the separation or estrangement of applicant and in-Canada applicant.”
This reason seems to suggest that the Officer was looking for evidence to confirm their conclusion that the couple are separated.
[18] I pause here to note, as an aside, that throughout the Decision, the Officer kept referring to O.M. as the “in-Canada applicant,”
even though she was never part of the current application because she had already obtained her citizenship status.
[19] At the hearing, the Respondent submitted, in response to a question from the bench, that the Officer was referencing the couple’s separation and estrangement at the time of the RPD hearing in 2016, and that the June 10, 2016 Affidavit thus confirms that the couple were estranged at the time.
[20] I do not read the Officer’s reason in the manner that the Respondent suggested. The Officer did not put a time stamp on the weight they assigned to the June 10, 2016 Affidavit to be limited only to the period in or around 2016. Further, I note that later on in the GCMS notes, the Officer repeated that the Applicant stated in the June 10, 2016 Affidavit that he was not talking to his spouse, before concluding they were not satisfied the Applicant and O.M. have been in an ongoing relationship and that they have not adequately addressed the concern of the estrangement.
[21] The Decision, read as a whole, reveals that the Officer relied on the June 10, 2016 Affidavit to confirm the estrangement between the Applicant and O.M. in 2016 and beyond, and that the Officer gave the June 10, 2016 Affidavit “great weight”
because it confirms the estrangement.
[22] First, by putting great weight on a piece of evidence because it supported a certain conclusion, as opposed to conducting a proper assessment of the totality of the evidence before reaching their conclusion, the Officer thereby engaged in circular reasoning. Put differently, the Officer appeared to have formed a certain conclusion about the Applicant’s relationship with O.M. and decided to attach more weight to the evidence that supported their conclusion.
[23] Second, while the Decision explicitly gave weight to the June 10, 2016 Affidavit, the Decision never explained what weight, if any, that the Officer assigned to the March 8, 2023 Statement that speaks to the relationship between the Applicant and O.M. since 2016.
[24] The March 8, 2023 Statement explained how the Applicant came to terms with his wife’s sexual orientation and expressed the Applicant’s love for O.M. and their children. It also provided information about the Applicant’s ongoing contact with O.M. and their children. The Officer failed to explain what weight they assigned to the evidence included in the March 8, 2023 Statement.
[25] It was certainly open to the Officer to give more weight to the sworn June 10, 2016 Affidavit, and less weight to the unsworn March 8, 2023 Statement, should they so choose, provided that they offered some rationale for doing so.
[26] However, regardless of how much weight the Officer gave to the June 10, 2016 Affidavit confirming the couple’s estrangement at the time of the RPD hearing, the Officer should have still assessed the March 8, 2023 Statement in order to assess the genuineness of the relationship at the time of the PR Application. Yet, nowhere in the Decision did the Officer indicate how they assessed the March 8, 2023 Statement, other than providing a précis of the statement at the beginning of the GCMS notes.
[27] The Respondent submits the Officer considered all the evidence the Applicant submitted and indicated in the Decision that “some weight [was] given to these considerations.”
My review of the Decision suggests that “these considerations”
referred to the other evidence submitted by the Applicant, including the letter from O.M., letters of support from family members, the letter from the Applicant’s daughter, evidence of travel, as well as email exchanges between the Applicant and his children about their homework. There was no mention of the March 8, 2023 Statement in the context of “these considerations.”
[28] I acknowledge the Respondent’s submission that it is not the role of the Court on judicial review to re-weigh the evidence. However, in this case, I find the Officer erred by engaging in a selective review of the evidence, and/or by adopting a circular reasoning process. Either way, the Decision failed to meet the requisite justification, transparency, and intelligibility: Vavilov at para 15, and must be set aside.
III. Conclusion
[29] The application for judicial review is granted.
[30] There is no question to certify.
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