Ottawa, Ontario, November 16, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Had the Applicant been given an effective opportunity to respond to extrinsic information obtained after the Applicant and her “spouse” were interviewed, that would have been enough to satisfy the Court that the requirements of natural justice had been met.
BACKGROUND
[2] The Applicant, Mrs. Rosalie Jn Baptiste, applied for permanent resident status in Canada under the spouse or common-law partner in Canada class. After reviewing the evidence and interviewing the Applicant and her “spouse”, the Immigration Officer (Officer) decided to deny the Applicant’s application on the basis that the evidence showed that her marriage was not bona fide.
FACTS
[3] Ms. Baptiste is a citizen of St. Lucia who came to Canada in July 2003 to visit friends. She married a permanent resident of Canada on May 11, 2004.
[4] On June 16, 2005, Citizenship and Immigration Canada’s Case Processing Centre in Vegreville received from Ms. Baptiste her completed application for permanent residence under the spouse or common-law partner in Canada class.
[5] On March 13, 2006, an Officer interviewed Ms. Baptiste and her “spouse” in separate interviews. After conducting the separate interviews, the Officer brought Ms. Baptiste and her “spouse” together in order to confront them with the discrepancies found in their separate interviews and to give Ms. Baptiste an opportunity to explain the discrepancies.
[6] After thoroughly considering the evidence, including the results of the interviews, by decision dated March 28, 2006, the Officer rejected Ms. Baptiste’s application for permanent residence pursuant to s. 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), on the basis that Ms. Baptiste had not shown that her marriage was bona fide.
[7] Ms. Baptiste sought leave to commence a judicial review application in respect of this decision. By Order dated August 17, 2006, leave was granted.
Relevant statutory provisions
[8] Under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and related Regulations, a foreign national may apply for permanent residence under the spouse or common-law partner in Canada class provided that that person meets the requirements of the legislative scheme. (s. 12(1) of IRPA; ss. 123 and 124 of the Regulations.)
[9] Pursuant to s. 124 of the Regulations,
|
124. A foreign national is a member of the spouse or common-law partner in Canada class if they (a) are the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada; (b) have temporary resident status in Canada; and
(c) are the subject of a sponsorship application. |
124. Fait partie de la catégorie des époux ou conjoints de fait au Canada l’étranger qui remplit les conditions suivantes : a) il est l’époux ou le conjoint de fait d’un répondant et vit avec ce répondant au Canada; b) il détient le statut de résident temporaire au Canada; c) une demande de parrainage a été déposée à son égard. |
[10] Pursuant to s. 4 of the Regulations :
|
4. For the purposes of these Regulations, a foreign national shall not 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. |
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. |
ISSUES
[11] (1) Did the tribunal base its decision on erroneous findings of fact, without regard to the evidence before it, misconstrued the evidence and therefore made patently unreasonable findings?
(2) Did the tribunal err in law by denying the Applicant natural justice and not complying with the duty to act fairly?
ANALYSIS
[12] The Officer did all that had to be done in regard to fact-finding in respect of the matter before the Officer except for one significant fact-finding initiative by telephone which was not related to Ms. Baptiste and to which the Ms. Baptiste was not given an opportunity to respond.
Natural Justice: The Consideration of Extrinsic Evidence by the Officer
[13] The Officer erred by importing extrinsic evidence by unilaterally obtaining information in a telephone conversation, the results of which were relied upon as evidence in rendering the negative decision. The Officer used this information to dispute statement made by Ms. Baptiste.
[14] If the Officer wanted to use this information, it was required that the Officer provide it to Ms. Baptiste and to give her an opportunity to refute the evidence. As described in Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.), the duty of fairness requires the Officer to give the applicant an opportunity to refute negative evidence. In Packirsamy v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 368 (QL), a humanitarian and compassionate case, Justice John M. Evans stated:
[11] It was common ground between the parties that, in determining the applicants' claim under subsection 114(2), the immigration counsellor was subject to the duty of procedural fairness, which normally includes a duty on decision-makers to make reasonable disclosure of any material on which they propose to rely, so that those potentially adversely affected may comment on it…
The Meaning of Patently Unreasonable
[15] When a decision is illogical and the error is apparent on the fact of the tribunal’s reasons, the decision is patently unreasonable. The meaning of “patently unreasonable” was examined by Justice Danièle Tremblay-Lamer in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (QL):
[16] However, accepting a more deferential approach does not preclude this Court from intervening where there is a palpable error or where the Board's conclusion is not supported by a reasonable interpretation of the facts.
[16] The Officer did not comply with the rules of natural justice by not providing the Applicant with an opportunity to respond to extrinsic evidence obtained after the interview, but which was most significant to the decision.
[17] In Baker v. Canada (Minister of Employment and Immigration) (1999), 174 D.L.R. (4th) 193, (S.C.C.), the Supreme Court of Canada disagreed with the decision of the Federal Court of Appeal in Shah v. Canada (Minister of Employment and Immigration), 81 F.T.R. 320, [1994] F.C.J. No. 1299 (QL), that although the decision to be made is a discretionary one, there was a duty to act fairly and given that the decision had important implications for the individual, the duty to act fairly required the Applicant and other affected parties to be given a full opportunity to be heard; to make full submissions; to an unbiased decision-maker, and to reasons for any adverse decision.
[18] In Bayovo v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1939 (QL), the Court quashed a decision based on a breach of the duty of fairness. Justice Paul Rouleau noted:
[6] I am satisfied the decision should be set aside and the matter returned for reconsideration. The principles of natural justice and fairness require the Immigration Officer to convey to the applicant sufficient information so as to enable him to know the reasons for the refusal and to provide the applicant with an opportunity to respond to those reasons. If the Immigration Officer had doubts with respect to the bona fides of the marriage, fairness required the applicant and his spouse be provided with an opportunity to respond to those concerns…
[19] Had the Officer provided Ms. Baptiste with an opportunity to respond to extrinsic information obtained after the Applicant and her “spouse” were interviewed, that would have been enough to satisfy the Court that an opportunity to respond had been effectively given to do so.
[20] The Officer had the opportunity to act fairly in order to ascertain the quality of extrinsic evidence obtained after the interview to assist the Officer in making a decision in Ms. Baptiste’s case but the Officer failed to act fairly.
[21] The extrinsic information was central to the Officer’s decision and had serious consequences because Ms. Baptiste should have been given a chance to be heard on the new information.
[22] The Officer applied facts in a misconstrued manner.
[23] It is trite law that credibility findings are ones of fact which, if they are central to the decision, can only be set aside on the basis provided for in paragraph 18.1(4)(d) of the Federal Courts Act, R.S., 1985, c. F-7.
[24] The decision can only be set aside if this Court is satisfied that the tribunal, in this case, based its decision on a matter of natural justice which requires the standard of review based on correctness.
[25] It is not the role of a reviewing Court to reweigh evidence that was before a tribunal.
[10] The Court should not seek to reweigh evidence before the Member simply because it would have reached a different conclusion. As long as there is evidence to support the Member's finding of credibility and no overriding error had occurred, the decision should not be disturbed.
(Thavarathinam v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J.; No. 1866 (QL) by Justice James Russell.)
[26] Where the Board erred in its treatment of the Applicant’s claim, it was set aside. The errors were sufficiently serious to warrant the decision being set aside. (Basak v. Canada (Minister of Citizenship and Immigration), 2005 FC 1496, [2005] F.C.J. No. 1839 (QL).)
[27] Credibility findings must be based on reasonably drawn inferences, not conjecture or speculation. Where inferences are improperly drawn, the Court is more likely to interfere with the Board’s decision. (Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238, [1992] F.C.J. No. 481 (QL).)
[28] It is trite law that an Officer must give the Applicant an opportunity to explain any questions or issues arising but he failed to do so in this case. (Hussein v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 726 (QL).)
[29] The Officer violated the rules of procedural fairness by not giving an opportunity to the Applicant to explain questions and made a patently unreasonable finding. (Xu v. Canada (Minister of Citizenship and Immigration), 2005 FC 1528, [2005] F.C.J. No. 1885 (QL).)
[30] Where the Officer did not give the Applicant any opportunity to explain any perceived misunderstanding, it constituted a breach of natural justice for which the appropriate remedy is to set aside the decision and remit the matter to the Minister for reconsideration by a different Immigration Officer. (El-Hajj v. Canada (Minister of Citizenship and Immigration), 2005 FC 1737, [2005] F.C.J. No. 2166 (QL).)
[31] The tribunal also erred in law by denying Ms. Baptiste natural justice and not acting fairly by not giving her an opportunity to be heard on facts which were central to the determination of her application.
CONCLUSION
[32] This Court must interfere with the decision of the Officer. The Officer failed to comply with the rules of natural justice and was in breach of the duty to act fairly. Therefore, the matter is to be returned for redetermination before another Immigration Officer.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be allowed and the matter be remitted for redetermination by a different Immigration Officer due to the breach in procedural fairness.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1911-06
STYLE OF CAUSE: ROSALIE JN BAPTISTE
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 7, 2006
REASONS FOR JUDGMENT: SHORE J.
APPEARANCES:
|
Mr. Isaac Owusu-Sechere
|
|
|
Ms. Lynn Marchildon
|
SOLICITORS OF RECORD:
|
ISAAC OWUSU-SECHERE Barrister, Solicitor & Notary Ottawa, Ontario
|
|
|
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
|