Halifax, Nova Scotia, November 24, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision by an immigration officer, dated October 26, 2005, which refused to grant the applicant permanent residence as a member of the spouse in-Canada class on the basis that her marriage was not genuine.
[2] The applicant seeks:
1. an order of certiorari setting aside the immigration officer’s decision;
2. an order of mandamus directing the tribunal to grant the applicant a new assessment interview; and
3. an order preventing the deportation of the applicant until the final determination of this application for judicial review.
Background
[3] The applicant, Ms. Dongmei Cao, is a citizen of China. In August 2003, the applicant came to Canada under a study permit. This permit expired on March 30, 2006.
[4] The applicant met Skyler Bower-Scott (the sponsor), a Canadian citizen, in September 2003. The two were introduced by the sponsor’s uncle, whom the applicant stated that she met in Shanghai in 2002. The applicant started dating the sponsor soon afterward and the couple began cohabiting in December 2003. The couple were engaged in March 2004 and married on June 18, 2004.
[5] On August 9, 2004, the applicant applied for permanent residence under the spouse in-Canada class, and was sponsored by her husband. On October 6, 2005, this application was considered by an immigration officer. The applicant was sent a call-in notice (the notice) by Citizenship and Immigration Canada (CIC), dated October 6, 2005, advising that she and her sponsor were to attend an interview scheduled for October 24, 2005, in order to assess her status as a spouse of a Canadian citizen. The notice also requested that the applicant bring a number of documents to the interview.
[6] The couple failed to attend the interview. The applicant claimed that she and her sponsor were staying at a friend’s home during the period in which the letter was sent and did not check their mail. The applicant claimed that she only became aware of the interview on October 27, 2005, three days after the date upon which it was supposed to take place.
[7] On October 26, 2005, the applicant’s application for permanent residence was refused. The immigration officer found that there was insufficient evidence of a bona fide marital relationship between the applicant and her sponsor. This is the judicial review of the immigration officer’s decision.
Reasons for the Officer’s Decision
[8] Subsection 124(a) of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations) states that in order to qualify as a member of the spouse in-Canada class, the applicant must demonstrate that she is the spouse of a sponsor and that she cohabits with her sponsor in Canada. The immigration officer noted that a foreign national is not considered a spouse if the marriage or relationship is not genuine or was entered into primarily for the purpose of acquiring any status under IRPA.
[9] The officer reviewed the information on file and noted the following considerations in her Field Operations Support System (FOSS) notes:
O6Oct05 – File Review. In-Canada spousal case. Sponsorship provided by spouse who is a Canadian citizen. PC is a citizen of China, 22 years old. She came to Canada in Aug2003 as a student. According to submission, she met her sponsor less than a month after her arrival at her sponsor’s home, introduced by sponsor’s uncle whom PC stated she met in China in 2002. The two moved in together in Dec2003 and in June2004 they were married.
PC told a story of intense love affair, yet provided lettle (sic) evidence. Majority of the photos were taken on their civic wedding day, with the rest taken in a couple of other occasions, all in the time frame from Jan to June2004.
Bank account is under PC’s name only. There is nothing under their joint names. The copy of lease is on a Toronto Real Estate Board form. There is no other evidence to prove their relationship. A few restaurant receipts provided. However they could not be considered as proof of bona fide marriage. Friends dine together, too. Interview required to assess bona fide marriage. SHA
24Oct05 – PC and her sponsor were no show for the interview scheduled for this date.
26Oct05 – PC and sponsor were no show for interview. As mentioned earlier, there is insufficient information and evidence to support a bona fide relationship. Therefore, I am not satisfied, based on information and documents on file, the relationship is genuine and the marriage is bona fide. This application is refused. SHA
PC has valid study permit expires on March 30, 2006. No enforcement action taken at this moment. SHA
[10] The officer concluded that based upon the available information, the relationship and marriage were not bona fide. The officer also noted in her letter to the applicant that she was not satisfied that the marriage was not entered into primarily for immigration purposes and that as such, the applicant did not meet the requirements of the spouse in-Canada class. The applicant’s application for permanent residence was therefore refused.
Issues
[11] The applicant submitted the following issues for consideration:
1. Did the immigration officer err in law by taking into account erroneous and
irrelevant considerations in reaching her decision and basing her decision on erroneous findings of fact made in a perverse and capricious manner?
2. Did the immigration officer fail to observe a principle of natural justice, fundamental fairness or other procedure required by law?
3. Did the immigration officer exercise her discretion reasonably and within the parameters of procedural fairness?
[12] I would rephrase the issues as follows:
1. Did the officer err in refusing the permanent residence application on the basis that
the applicant’s marriage was not genuine?
2. Did the officer breach the duty of procedural fairness by reaching a decision without giving the applicant a reasonable opportunity to respond?
Applicant’s Submissions
[13] The applicant submitted that immigration officers must exercise their discretion reasonably and within the parameters of procedural fairness. It was also submitted that this Court should not intervene unless an officer’s discretion has been exercised unreasonably, since it is the officer’s role to assess the weight to be given to relevant factors (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[14] The applicant submitted that the immigration officer misapplied her discretion, considered irrelevant factors and acted unreasonably when reaching her decision. It was submitted that the officer reached a premature conclusion on October 6, 2005, when she found that there was no evidence of the relationship and that nothing was held jointly by the couple. It was also submitted that the officer drew an adverse inference about the applicant’s evidence without giving her a chance to respond.
[15] The applicant submitted that certain documents, (such as proof of joint bank accounts and deeds), are not required for a determination of spouse in-Canada class applications involving married spouses. It was noted that these documents are not mentioned in CIC’s application forms, document checklist, or instructional manual. The applicant submitted that the officer should not have exercised her discretion or weighed the evidence on file regarding the existence of jointly named documents on October 6, 2005, since these documents were not required to be submitted by the applicant at that stage and could have been presented during the interview scheduled for October 24, 2005.
[16] The applicant submitted that the officer denied the application without granting her a meaningful opportunity to be heard. The applicant submitted that the notice was dated October 6, 2005, but that the envelope containing the notice was post-marked October 11, 2005. Also, the applicant noted that she did not receive the notice during the week of October 10 to October 14, 2005, and that she and her husband were away from their home during the week of October 17 to October 21, 2005. Finally, the applicant stated that on October 27, 2005, the applicant received both the notice and the refusal letter dated October 26, 2005.
[17] The applicant submitted that the officer acted unfairly and capriciously in refusing her application two days after she failed to attend the interview. It was also submitted that the officer waited only two days to refuse the application because she had already drawn an adverse inference about the quality and quantity of the documents on file. The applicant submitted that the officer’s actions were unfair to the applicant.
Respondent’s Submissions
[18] In response to the applicant’s suggestion that she was denied a meaningful opportunity to be heard, the respondent noted that the notice was dated October 6, 2005, which was 18 days prior to the interview date. In addition, the notice was post-marked October 11, 2005, which was two business days after it was written. The respondent also noted that the applicant did not check her mail for two weeks, even though she was still in town and considered the correspondence very important.
[19] The respondent submitted that the officer was not responsible for ensuring the applicant’s receipt of the notice. It was also submitted that the officer did not act unreasonably in sending the notice since it was drafted and mailed well in advance of the interview. The respondent submitted that there was no error or delay in mailing the letter and that the officer was neither responsible for postal delivery nor the fact that the applicant had failed to check her mail diligently.
[20] The respondent denied that the officer handled the application in a capricious or unreasonable manner and noted that the notice sent to the applicant stated the following:
If you do not attend this interview, the decision about your exemption will be made based upon the information on your file. If the decision is to refuse your request for an exemption, there is no authority to re-examine or re-open this decision. If you wished any new information to be considered, you would have to submit a new application, including new fees. If you cannot attend this interview, please write to this office immediately explaining why.
(Emphasis added)
[21] It was submitted that the officer followed the procedure set out in the notice excerpted above. The officer reviewed the evidence on file after the applicant failed to attend the interview, and subsequently made her decision. As the officer did not have the authority to re-consider her decision, she did not respond to the applicant’s request of November 15, 2005.
[22] The respondent submitted that section 124 of the Regulations includes a cohabitation requirement which applies to spouses and is also set out in the instructions relied upon by the applicant in making her application. The respondent noted that the application instructions state that in addition to the documents listed in the documents checklist, CIC may request more information at any time during the application process.
[23] The respondent submitted that proof of cohabitation and a genuine marriage are required for spouse in-Canada applications and are therefore relevant considerations. It was submitted that the applicant was given an opportunity to provide such evidence, but failed to attend the scheduled interview. It was also submitted that the applicant could have provided relevant evidence with her initial application or at any time afterward.
Analysis
Standard of Review
[24] The first issue concerns the officer’s determination that the applicant’s marriage was not genuine. This determination was one of mixed fact and law, as the officer was required to determine whether, on the evidence filed, the applicant’s marriage was genuine, as required under subsections 4(1) and 124(1) of the Regulations. This Court’s jurisprudence indicates that the standard of review applicable to the decision of an immigration officer regarding the bona fide nature of a marriage, made in the context of spouse in-Canada class permanent residence applications, is that of reasonableness simpliciter (see Singh v. Canada (Minister of Citizenship and Immigration), 2006 FC 565 at paragraph 4 and Mohamed c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2006 CF 696 at paragraph 39).
[25] A reasonable decision is one which is supported by reasons which can withstand a somewhat probing examination (see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 47).
[26] A breach of procedural fairness would result in the immigration officer’s decision being vitiated by this Court.
[27] Issue 1
Did the officer err in refusing the permanent residence application on the basis that the applicant’s marriage was not genuine?
Under section 123 of the Regulations, the spouse in-Canada class is prescribed as a category of foreign nationals who may become permanent residents on the basis of the criteria set out in Division 2 of Part 7 of the Regulations. The criteria listed under section 124 of the Regulations include:
1. being the spouse or common-law partner of a sponsor and cohabiting with that sponsor in Canada;
2. having temporary resident status in Canada; and,
3. being the subject of a sponsorship application.
[28] Should these criteria be fulfilled, a spouse is not required to leave Canada in order to apply for permanent residence and is therefore exempt from the requirement under section 11 of IRPA that such applications be made from outside the country.
[29] In the case at hand, the applicant married and cohabited with her sponsor in Canada, had temporary resident status until March 30, 2006, and is the subject of a sponsorship application. The applicant’s August 2004 application for permanent residence was made under the spouse in-Canada class.
[30] As mentioned above, in order to qualify as a member of the spouse in-Canada class, the applicant must be the spouse of a sponsor. Section 4 of the Regulations states that a foreign national shall not be considered a spouse if the marriage entered into is not genuine or took place primarily for the purpose of acquiring any status or privilege under IRPA.
[31] I have reviewed the file material and the officer’s notes, and I note that the applicant has stated in her applications that she is married. She provided additional information to the officer in response to the letter of January 12, 2005, including an agreement to lease (residential) in the applicant and her husband’s joint names. This document also appears to have been provided with the applicant’s original application. The applicant’s file includes pictures of the marriage ceremony and pictures prior to the time of the ceremony.
[32] Having reviewed the officer’s notes and refusal letter, I cannot ascertain the reasons why the officer believed that the marriage was entered into primarily for immigration purposes. In fact, the available evidence would not lead to the conclusion that the marriage was entered into for this purpose. Had the interview taken place, it is possible that other evidence may have been found to either further support the genuineness of the marriage or to show that the marriage was not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the IRPA.
[33] I am of the view that based on the officer’s notes and refusal letter, the officer made a reviewable error.
[34] For these reasons, I would allow this application for judicial review and refer the matter to a different officer for re-determination following a new interview of the applicant and her spouse.
[35] Because of my finding on Issue 1, I need not deal with the other issue.
[36] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[37] IT IS ORDERED that the judicial review is allowed and the decision of the officer is set aside and the matter is referred to a different officer for re-determination following a new interview of the applicant and her spouse.
ANNEX
Relevant Statutory Provisions
Relevant provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 are as follows:
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11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
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11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et se conforme à la présente loi.
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Relevant provisions of the Immigration and Refugee Protection Regulations, S.O.R./2002-227, are as follows:
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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.
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.
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.
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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.
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.
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.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7066-05
STYLE OF CAUSE: DONGMEI CAO
- and –
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 1, 2006
APPEARANCES:
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David Molson
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Maria Burgos |
SOLICITORS OF RECORD:
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David Molson Toronto, Ontario |
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John H. Sims, Q.C. Deputy Attorney General |