Date: 20020813
Docket: IMM-2833-01
Neutral Citation: 2002 FCT 854
Montreal, Quebec, August 13, 2002
Present: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
DORIS AIGBIRIOR
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Immigration officer Mary A. Shaw (hereinafter referred to as "immigration officer") dated May 18, 2001, refusing an application for ministerial exemption from subsection 9(1) of the Immigration Act [hereinafter referred to as the "Act") on humanitarian and compassionate (H & C) grounds pursuant to subsection 114(2) of the Act.
FACTS
[2] The applicant was born on November 15, 1976 in Lagos, Nigeria.
[3] She arrived in Canada on November 6, 1996 and made a claim for Convention refugee status. Her claim was refused on June 16, 1997.
[4] The applicant met Mr. Clement Amegor at Christ Chosen Church of God. They began dating and moved in together in March 1999.
[5] In August 1999, the applicant learned she was pregnant with Mr. Amegor's child. They decided to marry immediately.
[6] On September 21, 1999 the applicant completed an application for permanent residence in Canada under an H & C sponsorship of Mr. Amegor.
[7] By letter dated November 20, 2000 the immigration officer provided the applicant with an opportunity to explain the circumstances of her marriage and to substantiate the applicant's claim that she cohabited with Mr. Amegor.
[8] By letter dated May 18, 2001 the applicant was advised that her application had been rejected.
[9] At the beginning of the hearing, the applicant's counsel informed the Court that the child passed away.
ISSUES
[10] 1. Did the immigration officer breach the principles of procedural fairness in failing to conduct an interview?
2. Did the immigration officer err in relying on evidence which was irrelevant to the issues before her?
ANALYSIS
1. Did the immigration officer breach the principles of procedural fairness in failing to conduct an interview?
- No, the immigration officer did not breach the principles of procedural fairness in failing to conduct an interview.
[12] The immigration officer refused the applicant's application because she was satisfied that she entered into marriage for the purpose of gaining landed immigrant status, implying that the marriage was one of convenience. At page 1 of the letter, it is read:
After reviewing the file on November 20, 2000, I requested further documentation from the applicant, as there was insufficient evidence on file to show that the [sic] she and her sponsor were living together in a genuine relationship.
[13] The applicant alleges that the immigration officer breached the requirements of procedural fairness.
[14] It is true that typically an interview is used to assess the bona fides of a marriage. However, I agree with the respondent that in the case at bar the applicant did not provide a prima facie case of a genuine marriage to the immigration officer. The applicant failed to provide sufficient information to indicate that the couple lived at the same residence, rented or owned property or even prove that Mr. Amegor was in fact the father of the applicant's child which is what she had alleged.
[15] Normally, an immigration officer is provided with documentary evidence that indicates prima facie that there is a genuine marriage and as a result of that information, the immigration officer will conduct an interview to confirm the submissions made by the applicant. However, in the present matter, there was insufficient evidence for the immigration officer to confirm. In addition to this, an interview would not have necessarily addressed the core issue of whether the applicant and Mr. Amegor actually cohabited and whether Mr. Amegor was the father of the child. These questions required a documentary basis in order to establish a prima facie case of a genuine marriage. The applicant failed to provide such documentation.
[16] Turning to the jurisprudence, the applicant relies on a number of cases to support her proposition that an interview is required in ascertaining credibility. Pangli v. Canada (Minister of Employment and Immigration), [1987] F.C.J. No. 1022 (F.C.A) is a case where the issue of an interview not being granted arose in the context of a sponsorship application. The Federal Court of Appeal felt that an interview was required in the circumstances of the case since the decision-maker was presented with contradictory sworn statements by the applicant. The applicant also cites Khan v. University of Ottawa (1997), 34 O.R. (3d) 535 (Ont. C.A.) where credibility was in issue. In that case, the appellant claimed to have completed a fourth examination booklet although the proctors of the exam claimed only to have received three booklets from her, the Court held that procedural fairness required the decision-maker to grant an oral interview because the issue turned completely on credibility. In Masciangelo v. Spensieri, [1990] O.J. No. 1429 (Ont. Sup. Ct.) the Court held that summary judgment could not be granted where the credibility of a witness was to be determined.
[17] I do not find these cases to be instructive due to the particular circumstances of the case at bar.
[18] In my opinion, the applicant was provided with a "full and fair opportunity" in order to satisfy the immigration officer of her credibility and of the bona fides of her marriage, but failed to avail herself fully of it. I have produced the relevant portions of this letter found at page 129 of the Tribunal Record:
In order to further assess the humanitarian and compassionate factors related to your application, further information is required, specifically: photocopies of the following:
* your birth certificate, all pages of your passport, both sides of the driver's licences of both you and your husband (if not available some other photo id with address shown).
* Statement of Live Birth listing both parents for your child (ren)
* letters from your [sic] and your husband's previous or present employers indicating the nature of employment, salary, and length of time employed.
* T4's and Notice of Assessment for 1999 for you and your husband
* If renting provide a copy of your rental agreement; if you own provide a copy of the title to the mortgage
* other proof of income/current savings/statements of assets
* proof of cohabitation dating back to March 1999: bills, insurance policies (home, car, life), wills, statements from a joint bank account, and any other documents you wish to have considered.
Please provide this information in writing to this office within the next fifteen (15) days from the date of this letter. If you do not provide this information within fifteen (15) days from the date of this letter, the decision to approve or refuse your request for an exemption from an immigrant visa, will be made on the basis of all the information on your file. [...]
[19] The immigration officer provided the applicant with an opportunity to satisfy her and the applicant was unable to do so through the afforded means. Therefore one must ask without the requested documentation, what would have been the purpose of an interview?
[20] I find therefore that in the present case, the principles of procedural fairness were not violated.
2. Did the immigration officer err in relying on evidence which was irrelevant to the issues before her?
[21] No, the immigration officer did not err in relying on evidence as it was not irrelevant to the issues before her.
Other considerations
[22] The immigration officer discovered on her own recognizance that the applicant had not disclosed her criminal record nor had she disclosed the fact that she had received social assistance at an address that was unknown to Immigration officials. However these factors did not form the basis of the immigration officer's decision, they simply added to the immigration officer's concerns.
[23] The immigration officer was not satisfied with other aspects of the applicant's application, specifically her address history and her criminal convictions. At page 1 of her letter, it can be read:
Having done social services and CPIC checks, I found that Ms. Aigbirior had received social assistance from November 1996 until February 1998 at the following address: 103-549 North Street, Mississauga. Ms. Aigbirior did not list this address on her IMM 5001, which asks an address history dating back ten years. CPIC indicated that the subject had several criminal convictions, one each under sections 463(d), 342(1)(c), 354(a), and 129(a) of the Criminal Code. The date of the convictions were February 23, 1999. Ms. Aigbirior indicated that she had no criminal convictions on her application for permanent residence dated 21/09/1999.
[...]
In addition, the inconsistencies between the information provided on the Imm 5001 and the information I have gathered regarding the applicant's criminal convictions and address history are cause for concern.
[24] The immigration officer also came to this conclusion on page 2 of her letter:
In evaluating whether there are sufficient other humanitarian and compassionate factors that might warrant granting a visa waiver, I have considered the applicant's establishment in Canada. In relation to establishment, I note the following:
The applicant has never worked in Canada (as per 5001).
Applicant has presented insufficient evidence of having integrated into the community through involvement in community organizations and/or volunteer activities.
Applicant has presented insufficient evidence of having undertaken any professional, linguistic, or other study since coming to Canada.
Applicant has a criminal record.
[25] The immigration officer was aware of the deficiencies in the applicant's application. Taking these important elements into consideration was not a useless endeavour. It is my opinion that the immigration officer did not err in relying on additional evidence as it was not irrelevant to the issues before her.
[26] Therefore this application for judicial review is dismissed.
[27] Neither counsel suggested any question for certification.
"Pierre Blais"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020813
Docket: IMM-2833-01
BETWEEN:
DORIS AIGBIRIOR
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2833-01
STYLE OF CAUSE:
DORIS AIGBIRIOR
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 30, 2002
REASONS FOR ORDER AND ORDER :
THE HONOURABLE MR. JUSTICE BLAIS
DATED: August 13, 2002
APPEARANCES:
Mr. Gregory James FOR THE APPLICANT
Mr. Michael Butterfield FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mamman & Associates FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario