Docket: IMM-6496-24
Citation: 2025 FC 542
Toronto, Ontario, March 24, 2025
PRESENT: Madam Justice Whyte Nowak
BETWEEN: |
MOHAMMED MUSAEED MOHAMMED SALEH |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Mohammed Musaeed Mohammed Saleh, seeks judicial review of the refusal of his permanent resident application by an officer [Officer] of Immigration, Refugees and Citizenship Canada [IRCC]. The Applicant submitted an application under the one-year window of opportunity provision [OYW] under Part 8 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations], based on his common-law relationship with his transgender partner who had received permanent resident status in November 2021 as a Convention refugee.
[2] By decision dated January 22, 2024 [Decision], the Officer refused the application on the basis that the Officer did not find the relationship to be genuine given that the Applicant could not provide answers to what the Officer considered to be “rudimentary questions”
about the Applicant’s partner. Upon a request for reconsideration by the Applicant in light of new evidence submitted, the Officer issued a decision dated February 5, 2024 [the Reconsideration Decision] in which the Officer stated that the new evidence did not allay the Officer’s concerns regarding the bona fide nature of the relationship.
[3] The Applicant seeks judicial review of both the Decision and the Reconsideration Decision [collectively, the Decisions], which have been consolidated in this single application for judicial review.
[4] For the reasons that follow, I find that both Decisions are unreasonable for failing to account for significant evidence that supported the genuineness of the Applicant’s relationship and for failing to consider the Applicant’s evidence in its social and cultural context.
II. Legislative Framework
[5] OYW applicants may be granted permanent resident visas based on the OYW applicant’s relationship with a permanent resident in Canada; they derive their status from the permanent resident in Canada, and do not need to meet the definition of Convention refugee or country of asylum class in their own right.
[6] Section 4 of the Regulations provides that a foreign national is not considered the spouse or common-law partner of a person if the relationship was entered into primarily for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] or if the relationship “is not genuine.”
III. Facts
[7] The Applicant is a gay man who currently resides in Egypt. His application for permanent residence was based on his common-law relationship with his transgender partner Ghassan Mohssen Naji Abd Saleh [Ghassan], who obtained permanent residence based on a United Nations High Commissioner for Refugees [UNHCR] application and resettlement application made in 2021. The Applicant was listed on Ghassan’s refugee application and declared before Ghassan came to Canada.
A. The Applicant’s Interview
[8] The Officer considered the Applicant to have provided “vague”
statements about Ghassan, which led the Officer to doubt that a genuine relationship existed between them.
[9] The Officer’s first concern was with the Applicant’s knowledge of Ghassan’s personal characteristics. The Officer noted that the Applicant was asked what he liked about his partner. According to the Officer, the Applicant responded that he is a “people person”
; however, when asked about some of his habits and behaviours that he found endearing, the Applicant indicated only that he liked the way that Ghassan smiles but was under otherwise unable to give any additional response. When confronted about this failing, the Applicant’s only explanation was that he and Ghassan did not get to spend a lot of time together in the house when they lived together.
[10] The Officer’s second concern was with the Applicant’s knowledge of Ghassan’s religious practices. The Officer asked about Ghassan’s religion and when the Applicant stated that Ghassan was Muslim and was not actively religious, the Officer drew Ghassan’s UNHCR application to the Applicant’s attention, noting that Ghassan claimed that he converted to Christianity the same year that he and the Applicant met. According to the Officer, when confronted with this inconsistency, the Applicant claimed ignorance, stating that he never saw Ghassan practice Christianity, and he did not discuss Christianity with him.
B. The Decision
[11] The Officer concluded that the Applicant had failed to demonstrate that he satisfied the requirements of the Act as required by subsection 11(1) of the Act, stating:
At interview, you were unable to present rudimentary information regarding your common-law partner that I would have reasonably expected from a couple in a close and committed relationship. When given procedural fairness and provided with a chance to respond, you failed to allay my initial concerns.
C. The New Evidence on Reconsideration
[12] After receiving the decision, Ghassan wrote three letters to IRCC:
A letter dated January 22, 2024, explaining that Ghassan did not share the fact of his baptism with the Applicant as a matter of personal choice, as it was part of his life that he was not proud of;
A letter dated January 23, 2024, explaining that: the Applicant experienced communication challenges during the interview; Ghassan had not shared his baptism and had left Christianity; and the Applicant accurately answered the Officer’s question about Ghassan’s family tribe, including by providing a map showing the location of the district where his family came from; and
A letter dated January 24, 2024, providing additional supporting documents which consisted of: (i) photographs of the couple (which Ghassan described as “moments shared together”
); and (ii) documents showing Ghassan’s transfers of money to the Applicant between July 2022 and October 2023 (which according to Ghassan shows their commitment to each other’s well-being).
[13] The Applicant requested that the Officer reconsider the Decision.
D. The Reconsideration Decision
[14] The Officer considered Ghassan’s explanation for not having shared his Christian conversion with the Applicant. However, the Officer gave “less weight”
to this explanation based on aspects of the timing of: (i) Ghassan’s introduction to Christianity between 2016 and 2017 in Yemen when the Applicant began to cohabitate with Ghassan in Yemen; and (ii) Ghassan’s baptism in January 2020, after which he wore a cross as a sign of his Christian faith, which roughly coincides with the start of the Applicant’s “serious relationship”
with Ghassan as common-law partners. The Officer stated:
As such, I would have reasonably expected [Ghassan] and [the Applicant], should they be in a bona fide close and intimate relationship, to know the details about their partner’s deeply held religious beliefs, especially as it was central to [Ghassan’s] expedited UNHCR referral at the time and claim of a well-founded fear of persecution. I place less weight on [Ghassan’s] claim that they did not simply share their religious beliefs with [Ghassan] as [sic] matter of personal choice, as [Ghassan] continued to claim persecution due to their Christian conversion as late as March 2021 as per the signed RRF, 7 months after they claim to have begun a serious relationship with [the Applicant].
[15] The Officer concluded that the explanation given by the Applicant and Ghassan, along with the photos and financial statements, did not allay the Officer’s concern with the genuineness of their relationship.
E. The Further Evidence on Judicial Review
[16] The Applicant has provided a supporting affidavit that details aspects of the Applicant’s interview that he states are not reflected in the Decisions [Further Evidence].
[17] The Further Evidence explains that the Applicant was uncomfortable during the interview: he was claustrophobic, and it reminded him of past interrogations.
[18] The Applicant also details a number of personal questions about Ghassan that the Applicant says he answered accurately but were not reflected in the Officer’s notes. These questions include information about: (i) Ghassan’s full name and date of birth; (ii) Ghassan’s siblings from both his father’s first and second marriages; (iii) the timing of the Applicant’s last visit and co-habitation with Ghassan; and (iv) what Ghassan likes to do, which includes cooking, travelling, and enjoying sunny days. According to the Applicant, he answered more than the fact that he likes Ghassan’s smile and said that he loves everything about Ghassan’s personality.
[19] While the Applicant acknowledges that he answered that Ghassan was a Muslim, he contends that when the Officer challenged him about Ghassan’s religious conversion and baptism in Egypt, the Applicant told the Officer that he remembered that Ghassan told him that he was Christian and attended Church every Sunday night after he arrived in Canada, but that he left Christianity and embraced Islam again. The Applicant says that he answered truthfully about never having seen Ghassan perform any religious rites when they were together and the fact that he knew nothing about Ghassan’s baptism. The Applicant claims that he told the Officer that Ghassan must have kept it from him, and he respects Ghassan’s decision.
IV. Issues and Standard of Review
[20] The sole issue raised on this application is whether the Decision and Reconsideration Decision are reasonable.
[21] The applicable standard of review of the merits of a decision is that of reasonableness as articulated by the Supreme Court in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paragraphs 16-17 and 23-25. In determining whether a decision is reasonable, the court must consider whether it is justified, transparent and intelligible to those who are subject to it (Vavilov at paras 86, 95). Both the rationale and the outcome must be justified in relation to the relevant factual and legal constraints that bear on the decision maker (Vavilov at para 99).
[22] The Court must engage in a robust review while showing deference to the expertise of the administrative tribunal below and must refrain from re-weighing or re-assessing the evidence (Vavilov at paras 94, 125).
V. Analysis
[23] The Applicant has raised a number of arguments; however, I find that it is sufficient to dispose of this application by addressing two of those arguments, which I find render the Decisions unreasonable.
A. Did the Officer fail to account for significant evidence that ran counter to the Officer’s Decision?
[24] The Applicant argues that the Officer failed to acknowledge the significant evidence on record which supports the genuineness of the Applicant’s relationship with Ghassan. I agree. That evidence includes: (i) Ghassan’s financial support of the Applicant dating back to 2022; (ii) the fact that the Applicant and his mother have taken care of Ghassan’s foster son, Adel, since Ghassan left Yemen; (iii) the questions the Applicant accurately answered about Ghassan, his family and tribal district; and (iv) the screenshots of social media communications between the Applicant and Ghassan dating back to 2018, which refer to their engagement.
[25] While the Applicant’s same-sex relationship should not be assessed based on stereotypes or incorrect assumptions, neither should the traditional hallmarks of a genuine relationship be ignored as the Officer did here (M v H, [1999] 2 S.C.R. 3 at para 59). The Officer failed to acknowledge the evidence that the Applicant and Ghassan shared shelter, sexual and personal behaviour, social activities and economic support. The Officer’s silence on the Applicant’s care for Ghassan’s son is particularly questionable. Ghassan took in an abandoned child and became the child’s legal guardian. When he was forced to flee Egypt, the Applicant and his mother took over the care of Ghassan’s son. The Officer’s failure to acknowledge such significant evidence renders the Decision unreasonable (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1999] 1 FC 52 at para 17 and Vavilov at para 126).
B. Did the Officer fail to consider the Applicant’s testimony in its social and cultural context?
[26] The Officer considered the Applicant’s answers during the interview to be vague and lacking in the detail that would be expected of someone in an intimate relationship. The Applicant submits that the Officer failed to take into account the evidence on record related to the social and cultural context in which the Applicant and his partner carried out their relationship (citing Leroux v Canada (Citizenship and Immigration), 2007 FC 403 at para 23). I agree. In particular, the Officer should have considered this factor in assessing the vagueness of the Applicant’s answers.
[27] Article 7.6.1 of the Immigration and Refugee Board’s [IRB] Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics [the Guidelines] provides helpful guidance in assessing the testimony regarding a same-sex relationship by suggesting that decision makers “examine whether there are cultural, psychological or other barriers that may explain the manner in which testimony is delivered.”
While the Guidelines are not intended for non-IRB decision makers and are not legally binding (Farah v Canada (Citizenship and Immigration), 2018 FC 1162 at para 22), they offer valuable guidance for decision makers in assessing circumstances that may be beyond their own experiences.
[28] This guidance is applicable to the circumstances of this case involving the assessment of the genuineness of a same-sex relationship in Yemen and Egypt. The Officer needed to show that they had considered whether the vagueness in the Applicant’s answers was due to a lack of bona fides in the relationship, or whether it stemmed from the Applicant’s unease in talking openly with a government official about something that the Applicant had been forced to hide out of fear of persecution in a country that not only stigmatizes and does not recognize same-sex relationships, but criminalizes them.
VI. Conclusion
[29] This application is granted as the Officer’s errors in the assessment of the evidence in both Decisions are significant and warrant intervention by this Court.
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