Date: 19991207
Docket: IMM-272-99
OTTAWA, ONTARIO, THIS 7th DAY OF DECEMBER 1999
BEFORE THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
BETWEEN:
ISAAC AWUAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O R D E R
The matter is sent back for consideration before another immigration officer.
"Danièle Tremblay-Lamer"
JUDGE
Date: 19991207
Docket: IMM-272-99
BETWEEN:
ISAAC AWUAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision rendered by the Minister"s delegate, Ms. Chantal Sarrazin, on October 16, 1998 pursuant to subsection 114(2) of the Immigration Act1 (the "Act"). Ms. Sarrazin determined that the claimant should not be exempted from the requirements of subsection 9(1) of the Act on account of humanitarian and compassionate grounds.
[2] The claimant arrived illegally in Canada on June 11, 1994. He used an American "green card" which did not belong to him. He claimed refugee status which was denied on May 21, 1996. On September 22, 1996, the application for leave and judicial review of that decision was dismissed. On March 22, 1997, the claimant married Ms. Akosua Bonsu, a permanent resident of Canada. On October 21, 1997, the claimant filed an application for an exemption based on humanitarian grounds. Ms. Sarrazin subsequently found that there were no humanitarian or compassionate grounds justifying an exemption.
[3] In the recent decision Baker v. Canada (M.C.I.)2 the Supreme Court of Canada overturned the traditional deferential approach given to discretionary decisions as elaborated in Shah v. Canada (M.C.I.),3 and established a new standard of review a court should take with respect to a discretionary decision.
[4] More specifically, the Supreme Court of Canada ruled that the standard of review to be applied to a reviewing court under subsection 114(2) of the Act is reasonableness simpliciter.
[5] The reasonableness standard requires a court sitting in judicial review to verify if the reasons offered by the Minister"s Delegate stand up to a somewhat probing examination. In other words as articulated in Canada ( Director of Investigation and Research) v. Southam,4 the Court must ask if the evidence support the conclusions, and verify if the conclusions drawn from the evidence are logical.
[6] It is worthy to note as enunciated in Baker, that the discretion conferred to the immigration officer under section 114(2) of the Act, must be exercised in accordance with " the values underlying the grant of discretion",5 that is, an evaluation which is respectful of H & C considerations.
[7] In order to determine whether the immigration officer acted within the boundaries of her discretionary power, it is useful to recall that chapter 9 of the Immigration Manual6 sets guidelines for the officers exercising their discretionary powers, guidelines that are regarded by the Supreme Court of Canada as instructions to officer"s about how to exercise their power.7 For instance, guideline 9.07, directs immigration officers to consider marriage to a Canadian resident as a criteria which may lead to a positive decision under section 114(2) of the Act.
[8] In the present case, the applicant"s application on H & C is based on his spousal relationship with a Canadian citizen. Therefore, the question is whether the Minister"s delegate (or the immigration officer), notwithstanding the discretionary powers conferred to her pursuant to section 114(2) of the Act, acted reasonably when she determined that there were insufficient H & C considerations to justify an exemption from the Act. In looking at the reasons I conclude that she acted unreasonably.
[9] The immigration officer"s notes reveal that she found many contradictions in the applicant"s declarations, namely, contradictions based on who was in attendance at the applicant"s wedding, as well as the time when the couple started living together.
[10] More generally, the officer did not find the applicant to be credible because of some problems that he had with welfare in the past.
[11] Looking at the interview record, it is apparent that there are only a few discrepancies which in themselves cannot justify a determination that the applicant"s marriage is not genuine. Considering the existence of uncontradicted evidence that the marriage took place (pictures, video, and an affidavit of applicant"s father-in-law attesting his support of the marriage), I fail to see how such discrepancies in the applicant"s testimony relating to who was in attendance, is evidence that the marriage is not bona fide .
[12] In arriving at her conclusion, the officer based her decision largely on the applicant"s credibility, tainted by his past welfare activity, holding that due to "numerous contradictions" that the applicant was of bad faith. Clearly, the conclusion that there were "numerous contradictions" is not only incorrect, but also does not take into account the H & C factors at issue in the case, that is, the genuine nature of the spousal relationship.
[13] Counsel for the respondent submits that credibility is a factor to consider in the evaluation of a bona fide marriage. I agree, yet, the fact that the applicant lied to collect welfare is remotely pertinent to an assessment of the authenticity of a marriage. At best, this is an element to consider in determining whether he deserved the granting of an H & C exemption because he does not come with clean hands.
[14] Counsel for the respondent also suggests that an underlying factor to be considered in the evaluation of the authenticity of a marriage, is the fact that the applicant is in the country illegally, and that marriage represents his last chance to remain in Canada.
[15] While I recognize that such a situation may perhaps warrant a more vigilant examination by the officer, however, it does not preclude a fair evaluation of the evidence to determine if the marriage is bona fide. Moreover, it should not be the determining factor in the evaluation of a bona fide marriage.
[16] Notwithstanding the fact that decisions made under subsection 114(2) of the Act remain discretionary, it must be recalled as affirmed in Baker,8 that an evidentiary foundation must support the decision rendered by the officer. I do not find it to be present in the case at bar. In addition, I am of the opinion that the officer acted unreasonably in affording little consideration to the central factor in this H & C application, namely the authenticity of the applicant"s marriage.
[17] For these reasons, the matter is sent back for consideration before another immigration officer.
[18] Neither counsel recommended a question for certification.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
December 7, 1999.
__________________2 (1999), 174 D.L.R. (4th ) 193.
3 (1994) 170 N.R. 238 (F.C.A.).
4 [1997] 1 S.C.R. 748 at para. 56.
5 Supra note 2 at paras. 65, 66.
6 Examination and Enforcement [Employment and Immigration Canada, 1983 (looseleaf)].