Present: The Honourable Mr. Justice Beaudry
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision by Laurence Couture, immigration officer (the officer), dated November 1, 2005, denying the applicant’s permanent residence application on the grounds that her marriage with her husband was not genuine.
ISSUES
[2] The issues raised in this matter are as follows:
- Did the officer make an error warranting the intervention of this Court in determining that the marriage between the applicant and her husband was not genuine?
- Is there a reasonable fear of bias with regard to the officer’s decision?
[3] For the following reasons, these questions are answered in the negative and this application for judicial review will be dismissed.
BACKGROUND
[4] The applicant is a citizen of Djibouti, born on April 29, 2004, in Djibouti.
[5] She married Abdul Wahab Youssouf, a Canadian citizen, on May 23, 2001, in Djibouti.
[6] The facts as alleged by the applicant may be summarized as follows.
[7] The applicant worked as a cleaning lady at the hospital in Djibouti from September 1999 to August 2001.
[8] She met her future husband in March 2001, while he was visiting Djibouti to find himself a wife. They were married two months later, which is not unusual in their culture. Her husband returned to Canada shortly after the marriage was solemnized.
[9] Following her involvement in a demonstration in August 2001, she was incarcerated until February 2002. Before her incarceration, her husband sent her $300 a month to support her.
[10] When she was released from prison, she fled to Ethiopia, where she stayed until May 2004. First she lived with her husband’s parents, then with a girlfriend.
[11] During this period, the spouses communicated by telephone and her husband sent her money regularly until September 2002, when he lost his job. Her husband’s parents then began to send her about $60 per month.
[12] The applicant’s husband initiated a sponsorship application in 2002, but mistakenly sent the documents to the Canadian embassy in Nairobi, and the applicant never received her copy of the documents.
[13] In June 2004, the applicant used the travel documents and visa belonging to the girlfriend with whom she lived in Ethiopia to travel to Dallas, in the United States. She intended to assume her girlfriend’s identity to enter the United States in order to then join her husband in Canada.
[14] In the interim, her husband had found employment. He was supposed to pick her up in Dallas on June 16, 2004, but his employer denied his request for time off. He then asked the applicant to wait until October 2004.
[15] On October 14, 2004, her husband came to get her in Dallas and brought her to the Buffalo border.
[16] The applicant revealed her true identity to the customs officers, but she was denied a temporary residence permit, and she was detained until November 26, 2004.
[17] The couple has been living together since November 26, 2004.
[18] On the advice of an immigration officer, the applicant’s husband withdrew his sponsorship application and prepared a new application under the spouse in Canada class.
[19] The applicant’s spouse has been providing for her since that date. He handles her medical expenses, has named her as beneficiary of 50% of his Registered Retirement Savings Plan (RRSP), and they have a joint bank account.
[20] The spouses had an interview with the immigration officer on July 19, 2005. An interpreter provided by the officer was present, but the applicant had difficulty understanding him and the majority of the interview took place in French.
[21] During this interview, the officer expressed her disbelief that they were married after knowing each other for only two months. The officer allegedly stated that she was single and that she would never have married anyone after two months.
[22] On November 1, 2005, the officer made a negative decision on the sponsorship application, the grounds for her decision were sent to the applicant on November 9, and the following day she filed an application for leave for judicial review with this Court.
[23] On November 15, 2005, there was a negative decision on her pre-removal risk assessment application (PRRA).
[24] The date for the applicant’s removal was scheduled on November 30, 2005, but she failed to report for it and an arrest warrant was issued against her.
IMPUGNED DECISION
[25] In her letter dated November 1, 2005, the officer stated that the application for permanent residence in the spouse in Canada class was denied because the applicant and her husband had not provided enough evidence establishing the authenticity of their relationship.
[26] In the reasons for her decision, which were sent to the applicant on November 9, 2005, the officer set out several reasons to justify the dismissal of that application.
[27] The officer stated that the applicant and her husband had not provided enough evidence to establish the following facts:
· The applicant’s husband filed, after their marriage but before he left for Canada, an application for a temporary residence visa so that he could accompany her to Canada;
· The applicant’s husband regularly contacted the applicant by telephone and sent her money while she was in Ethiopia (no receipts for transfers of funds, telephone bills or calling cards establishing their communications);
· The information provided by the applicant at the interview regarding the period of her incarceration in Djibouti was inconsistent with her statement in an affidavit submitted by her counsel;
· The applicant’s spouse actively pursued the steps of his sponsorship process when the applicant was abroad;
· The applicant remained in contact with her husband’s parents after she left their home;
· The applicant and her husband remained in contact by telephone while she was living with his parents in Ethiopia;
· The statements by the applicant and her husband regarding the length of her stay with her husband’s parents are inconsistent: she states that she stayed a few days, her husband says that she stayed a few weeks;
· After her refoulement to the Canadian border in October 2004, the applicant stated to American customs that she had entered the United States under a false identity in June 2004. The records of American customs do not mention such a statement;
· The applicant and her husband made statements that were inconsistent regarding when the applicant had contacted her husband after arriving in the United States;
· The relationship of the couple had developed since they began living together in Canada;
· The couple truly lived together since her arrival in Canada.
[28] Moreover, the officer found that the following factors tend to suggest the absence of a genuine relationship between the applicant and her husband:
· Their almost complete absence of communication while she was in Ethiopia, despite the difficulties they had to face;
· When the officer was questioning them, the spouses provided inconsistent answers about the activities they did together;
· The applicant spent five months in Dallas waiting for her husband to come get her rather than go alone to Canada, even though she had managed to get as far as Dallas via Miami under a false identity;
· The joint bank account was not opened until October 24, 2005;
· The date that the applicant was named as beneficiary of the RRSP was not clear, but the officer did not receive it until October 27, 2005, when it had not been provided in July 2005.
RELEVANT STATUTORY AND REGULATORY PROVISIONS DISPOSITIONS
[29] The relevant provisions of the Act read as follows:
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3. (1) The objectives of this Act with respect to immigration are . . . |
3. (1) En matière d’immigration, la présente loi a pour objet: […] |
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(d) to see that families are reunited in Canada;
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d) de veiller à la réunification des familles au Canada;
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12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
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12. (1) La sélection des étrangers de la catégorie « regroupement familial » se fait en fonction de la relation qu’ils ont avec un citoyen canadien ou un résident permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père ou mère ou à titre d’autre membre de la famille prévu par règlement.
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63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
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63. (1) Quiconque a déposé, conformément au règlement, une demande de parrainage au titre du regroupement familial peut interjeter appel du refus de délivrer le visa de résident permanent. |
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72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court.
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72. (1) Le contrôle judiciaire par la Cour fédérale de toute mesure — décision, ordonnance, question ou affaire — prise dans le cadre de la présente loi est subordonné au dépôt d’une demande d’autorisation.
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(2) The following provisions govern an application under subsection (1):
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(2) Les dispositions suivantes s’appliquent à la demande d’autorisation:
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(a) the application may not be made until any right of appeal that may be provided by this Act is exhausted;
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a) elle ne peut être présentée tant que les voies d’appel ne sont pas épuisées;
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(b) subject to paragraph 169(f), notice of the application shall be served on the other party and the application shall be filed in the Registry of the Federal Court (“the Court”) within 15 days, in the case of a matter arising in Canada, or within 60 days, in the case of a matter arising outside Canada, after the day on which the applicant is notified of or otherwise becomes aware of the matter;
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b) elle doit être signifiée à l’autre partie puis déposée au greffe de la Cour fédérale — la Cour — dans les quinze ou soixante jours, selon que la mesure attaquée a été rendue au Canada ou non, suivant, sous réserve de l’alinéa 169f), la date où le demandeur en est avisé ou en a eu connaissance;
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(c) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice;
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c) le délai peut toutefois être prorogé, pour motifs valables, par un juge de la Cour;
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(d) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance; and
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d) il est statué sur la demande à bref délai et selon la procédure sommaire et, sauf autorisation d’un juge de la Cour, sans comparution en personne;
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(e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.
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e) le jugement sur la demande et toute décision interlocutoire ne sont pas susceptibles d’appel. |
[30] The relevant provisions of the Immigration and Refugee Protection Regulations, SOR/ 2002-227 (the Regulations) read as follows:
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4. For the purposes of these Regulations, no foreign national shall be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.
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4. Pour l’application du présent règlement, l’étranger n’est pas considéré comme étant l’époux, le conjoint de fait, le partenaire conjugal ou l’enfant adoptif d’une personne si le mariage, la relation des conjoints de fait ou des partenaires conjugaux ou l’adoption n’est pas authentique et vise principalement l’acquisition d’un statut ou d’un privilège aux termes de la Loi.
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123. For the purposes of subsection 12(1) of the Act, the spouse or common-law partner in Canada class is hereby prescribed as a class of persons who may become permanent residents on the basis of the requirements of this Division. |
123. Pour l’application du paragraphe 12(1) de la Loi, la catégorie des époux ou conjoints de fait au Canada est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents sur le fondement des exigences prévues à la présente section.
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124. A foreign national is a member of the spouse or common-law partner in Canada class if they
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124. Fait partie de la catégorie des époux ou conjoints de fait au Canada l’étranger qui remplit les conditions suivantes:
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(a) are the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada;
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a) il est l’époux ou le conjoint de fait d’un répondant et vit avec ce répondant au Canada;
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(b) have temporary resident status in Canada; and
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b) il détient le statut de résident temporaire au Canada;
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(c) are the subject of a sponsorship application. |
c) une demande de parrainage a été déposée à son égard. |
ANALYSIS
1. Did the officer make an error warranting the intervention of this Court in determining that the marriage between the applicant and her husband was not genuine?
[31] The applicant contends that the officer erred in law in her interpretation of section 4 of the Regulations, and that she applied the wrong test to determine whether the marriage was genuine. The applicant claims that the officer examined the dynamic of their relationship after the marriage rather than the applicant’s intention at the time of the marriage.
[32] The applicant claims that her application should have been allowed once she established that she was not married primarily to gain admission to Canada or that she intended to live permanently with her husband.
[33] The respondent replied that it was rather the applicant who misinterpreted section 4 of the Act and that she had the burden of establishing that she was not married primarily to gain admission to Canada or that she intended to live permanently with her husband.
Standard of review
[34] The applicant’s argument involves the interpretation of section 4 of the Regulations, which is a question of law. The appropriate standard of review is therefore that of correctness (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
[35] In my opinion, the respondent is correct on this point. The test provided under section 4 is conjunctive, and the officer was entitled to examine the conduct of the couple after the marriage in order to determine what the applicant’s intention was at the time of the marriage (Gavino v. Canada (Minister of Citizenship and Immigration), 2006 FC 308, [2006] F.C.J. No. 385 (F.C.T.D.) (QL), Deo v. Canada (Minister of Citizenship and Immigration), 2004 FC 1339, [2004] F.C.J. No. 1612 (F.C.T.D.) (QL)).
[36] Therefore, I find that the officer did not err in law in interpreting section 4 of the Regulations.
[37] The applicant also alleged that that the officer erred in fact in determining that the marriage was not genuine and that adequate evidence had been filed to establish the authenticity of the spouses’ relationship.
[38] The respondent contends that the officer’s decision was not unreasonable, considering the many shortcomings pointed out by the officer in the reasons of her decision.
Standard of review
[39] The officer’s finding to the effect that the applicant had not filed sufficient evidence establishing that her relationship with her husband was genuine is a mixed question of fact and law. The appropriate standard for this decision in the context of this judicial review is that of an error of unreasonableness simpliciter (Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817).
[40] After carefully reading and rereading the officer’s reasons, I do not find that her decision, considered as a whole, is unreasonable. The evidence filed by the applicant and her husband have many shortcomings, and they had the burden of establishing that their relationship was genuine.
2. Is there a reasonable fear of bias with regard to the officer’s decision?
[41] The applicant contends that the officer’s remarks at the interview to the effect that she was single and that she could not imagine marrying someone she had only known for two months gives rise to a reasonable apprehension of bias.
[42] The applicant argues that by applying the test elaborated in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, a reasonable and well-informed member of the community would perceive bias in the officer’s remarks. These comments are not suggestive of an open mind regarding the culture and customs of the applicant and her spouse.
[43] The respondent replies that the applicant did not rebut the presumption of the officer’s impartiality (Canada (Minister of Citizenship and Immigration) v. Mugesera, [2005] 2 S.C.R. 91). The respondent argues that the officer only expressed her personal opinion regarding marriages between spouses who have not known each other for very long, but her remarks did not in any way suggest that she had a closed mind regarding the genuineness of the relationship between the applicant and her husband.
[44] The respondent alleges that, applying the test of Committee for Justice, a reasonable person reviewing all of the evidence before the officer would make the same decision.
[45] I agree with the respondent on this point. Applying the test in Committee for Justice, I do not believe that a reasonable person reviewing all of the evidence would have a reasonable apprehension of bias with regard to the officer’s decision. However, I note that the comment made by the officer was inappropriate at the very least and should not have been made.
[46] With regard to the interpretation problems raised by the applicant at the interview, the Court observes that the applicant was represented by counsel and that it was not until one hour after the interview began that she raised this issue. The interview was held in French. The tribunal record indicates that the applicant signed documents in French and, in the notes at the port of entry, she had indicated that she could speak French and Somalian. The Court does not hesitate to find that there was no breach of procedural fairness.
[47] The parties did not propose any questions for certification and no question is involved in this matter.
JUDGMENT
THE COURT ORDERS that this application for judicial review be dismissed. No question is certified.
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6790-05
STYLE OF CAUSE: RODAL HOUSSEIN MOHAMED
v. MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT
APPEARANCES:
Aissa B. Nauthoo FOR THE APPLICANT
Vanita Goela FOR THE RESPONDENT
SOLICITORS OF RECORD:
CFT French Legal Aid Services FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario